HL Deb 27 June 1989 vol 509 cc662-726

Proceedings after Third Reading resumed.

Clause 104 [Water quality objectives]:

Lord McIntosh of Haringey moved Amendment No. 57. Page 116, line 37, after ("classification") insert ("and in accordance with subsection (2A) below.").

The noble Lord said: My Lords, this is an important amendment. It is comparable with the amendment we tabled on drinking water quality. It applies the principle of trying to establish a date for the timescale required for water quality objectives. Although it is an important amendment, I believe that I can deal with it rapidly in the form of a question.

We know that the Government have resisted strongly the idea of a timetable for drinking water quality objectives. We know that even now the Minister of State is putting alternative proposals to the European Commission which, presumably, will have to contain an alternative date. What stage have the Government reached in the water quality and river quality objectives? If they cannot agree to the date of 31st December 1993, what date do they think is realistic? It would be inappropriate for a House of this size at this time of night to proceed to a Division. But any help the Government can give would be of assistance to my right honourable and honourable friends in another place in securing that there is a sensible debate about river water and drinking water quality. I beg to move the amendment in the form of a question to the Government Front Bench.

Lord Hesketh

My Lords, I fully appreciate the point that the noble Lord, Lord McIntosh, has made. I hope that he will understand that I feel that I should reply to his amendment, albeit briefly, because that would be as appropriate as trying to answer his question.

The effect of the amendment would be to require that all statutory quality objectives must be achieved by the end of 1993 except where the Secretary of State, in the light of representations from effluent dischargers, decides that that is an impracticable goal and that more time is needed. However, in no circumstances would the Secretary of State be able to extend the deadline for achieving an objective beyond December 1995.

Clause 104(1) provides that water quality objectives may be set both for the maintenance and the improvement of the quality of controlled waters. The amendment would be perfectly compatible with any objectives requiring the maintenance of water quality which were set no later than 31st December 1993 for objectives for the maintenance of water quality must be met from the day they are set. However, it is difficult to reconcile the amendment with any subsequent variation of an objective made after 1993 requiring the waters to be maintained at a new higher standard. Even more significant perhaps the amendment is totally incompatible with objectives designed to achieve long-term improvements in water quality. The best example I can give is that of the Mersey Basin campaign which we established in 1983. By the time that it is finished £2.5 billion will have been invested in eliminating all poor and bad quality waters and in upgrading all existing fair quality waters, but it is not expected to be finished until about 2010. That campaign cannot be reconciled with the amendments making it impossible to set deadlines for any improvements which could not be met by 1993 or, at the latest, 1995.

Are we to deny ourselves the opportunity to use quality objectives for one of the key purposes for which they were designed—the necessary long-term improvement of our rivers? The amendment would mean that water quality objectives would, in a few years' time, be of use only in maintaining water quality. They would be stripped of their role as a means of securing improvements. I am not sure what the Bill has to do with the EC directive on drinking water quality. The government position remains as set out at previous stages of the Bill. Beyond that, it would be inappropriate for me to anticipate what might happen in another place.

Lord McIntosh of Haringey

My Lords, that is a most unhelpful answer to the major question that I put. However, I understand from what the Minister said that there is a danger that the amendment as drafted would make it more difficult to apply higher qualities in the future. That was not our intention. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 58 not moved.]

Clause 105 [General duties to achieve and maintain objectives etc.]:

The Earl of Arran moved Amendment No. 59: Page 117, line 40, leave out from ("under") to end of line 41 and insert ("this Chapter, to monitor the extent of pollution in controlled waters and to consult, in such cases as it may consider appropriate, with river purification authorities in Scotland.").

On Question, amendment agreed to.

Lord McIntosh of Haringey had given notice of his intention to move Amendment No. 60: After Clause 105, insert the following new clause:

("Duty to with respect to breaches of objectives.

.—(1) It shall be the duty of the Secretary of State and the Authority to exercise the powers conferred on him or it, by or under the provision of this Chapter and Chapter VI below in such manner as ensures that the investigation and determination of breaches or possible breaches of water quality objectives as established under section 104 above is completed as soon as practicable.

(2) The Authority shall, in any case where it identifies a breach or possible breach on a single occasion of one or more water quality objectives, or where such a breach is brought to its attention, undertake sufficient sampling, together with any other appropriate investigation, as shall enable it to establish as soon as practicable whether or not a breach of a licence, consent, or statutory provision has occurred, or whether an offence has been committed under section 106 below.").

The noble Lord said: My Lords, this amendment has been overtaken by government Amendment No. 145.

[Amendment No. 60 not moved.]

Clause 106 [Offences of polluting controlled waters etc.]:

The Earl of Arran moved Amendment No. 61: Page 118, line 30, at end insert ("or derives from a prescribed process or from a process involving the use of prescribed substances or the use of such substances in quantities which exceed the prescribed amounts.").

On Question, amendment agreed to.

Clause 108 [Deposits and vegetation in rivers etc.]:

Lord Addington moved Amendment No. 62: Page 121, line 7, at end insert ("provided that a person shall not be guilty of such an offence where the removal was carried out in an emergency in order to avoid danger to life.").

The noble Lord said: My Lords, the amendment is concerned with the dangers of flooding, and that emergency action, which would otherwise be an offence, should not be regarded as an offence when it is designed to remove any risk to life and limb as a result of flooding. The clause prevents a person from removing silt which has accumulated at the bottom of a stream bed because that action is banned. Someone acting under land drainage boards is not guilty of an offence, but rapid flooding caused by extra heavy rains may cause there to be a danger. By acting to release water pressure which might build up, for instance, as a result of a dam caused by silting, someone would be acting to save lives. The amendment is appropriate because such action is not against the spirit of the clause and is designed to protect life. I beg to move.

The Earl of Arran

My Lords, we cannot imagine a person being prosecuted, convicted and fined, for disturbing mud while saving life. If the amendment is needed here, it is needed throughout the statute book; but it is not needed. I am sure that we can instead rely on the good sense and humanity of the NRA and the courts. It is for those reasons that I ask the noble Lord, Lord Addington, to withdraw the amendment.

Lord Addington

My Lords, I feel rather chastened by that reply, but having been given that assurance, which is now on the record, the amendment has served any purpose it might have had and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 109 [Requirements to take precautions against pollution]:

The Earl of Arran moved Amendment No. 63: Page 121, line 30, leave out ("the matter from entering") and insert ("or controlling the entry of the matter into any").

The noble Earl said: My Lords, on behalf of my noble friend I beg to move Amendment No. 63. The effect of this amendment will be to enable the Secretary of State to make regulations under Clause 109 prescribing works, precautions, and other steps to be taken to control the entry of poisonous, noxious or polluting matter into controlled waters. As currently drafted, Clause 109 only allows such regulations to be made for the purpose of completely preventing the entry of such matter into such water.

As a result of this amendment it will be possible to require that anyone in charge of poisonous, noxious, or polluting matter must not only store that matter in a safe manner, but must take precautions to ensure that should an accident occur the polluting effect of the matter will be minimised. An example of the precautions which might be prescribed is a requirement on the person having charge of the polluting matter to keep decontaminants to hand for use in an emergency. I commend the amendment to your Lordships.

On Question, amendment agreed to.

Clause 110 [Water protection zones]:

The Earl of Arran moved Amendments Nos. 64 to 70: Page 122, line 4, after ("consultation") insert ("(in the case of an area wholly or partly in England)").

Clause 117 [Information and assistance]:

Page 128, line 24, leave out (", to give the Secretary of State") and insert ("or the Minister, to give him"):

Page 128, line 26, after ("State") insert ("or the Minister").

Page 128, line 28, after ("State") insert (", the Minister").

Page 128, line 30, after ("State") insert (", the Minister").

Page 128, line 33, after first ("or") insert ("the Minister or by").

Page 128, line 35, after ("State") insert ("or the Minister").

On Question, amendments agreed to.

Clause 126 [Minimum acceptable river flows]:

Lord Graham of Edmonton had given notice of his intention to move Amendment No. 71:

Page 132, line 34, at end insert— ("(3A) The National Rivers Authority shall review all abstraction licences within a period of not more than five years, for the purpose of determining the impact of such abstraction on the physical condition and amenity of the inland waters concerned and the surrounding area and on the quality of the water, and shall submit the results of such review with recommendations where it considers them appropriate to the Secretary of State. (3B) The National Rivers Authority may, in any circumstances where a licence is or has been under review, issue an interim direction to the licence-holder for the purpose of determining the permitted level of abstraction where the Authority considers it expedient for the purposes of improving or maintaining the physical condition or amenity of the inland waters concerned, or of its surrounding area, or of the quality of the water.").

The noble Lord said: My Lords, I have decided not to move this amendment because another amendment—Amendment No. 72—standing in the name of the noble Lord, Lord Norrie, is substantially the same. I indicate to the House that I shall not move Amendment No. 71.

[Amendment No. 71 not moved.]

8.45 p.m.

Lord Norrie moved Amendment No. 72: After Clause 126, insert the following new clause:

("Licences to abstract water.

Where the Nature Conservancy Council, the Countryside Commission, the Regional Rivers Advisory Committee or the Regional Fisheries Advisory Committee is of the opinion that it is appropriate to do so, they may request the Authority to review any particular licence and for the Authority to vary the conditions or revoke or otherwise suspend such licence in order to ensure the flow, level or volume of any inland water or any water contained in underground strata fur the purposes of protecting fisheries, flora, fauna or natural beauty.").

The noble Lord said: My Lords, it has become apparent in the last weeks, through national and local press and television coverage, that over-extraction of water is and will continue to be a contentious issue for the water industry. I do not intend to reiterate the numerous case studies of over-extraction which have already been drawn to the attention of the House by myself and other noble Lords during the Committee and Report stages.

It is an issue to which I feel particularly committed. While the Minister had some sympathy for my amendment at the Report stage, he still felt that the powers and duties of the NRA already in the Bill were sufficient. I fear that this rather underestimates both the problems and the concern of the countryside users who are seeing their rivers and wetlands drying up.

Your Lordships will know that I moved amendments at both Committee and Report stages and I make no apology for tabling two amendments at this late stage. I view the amendments as being a belt and braces approach. They simply seek to ensure that evidence of environmental damage through over-extraction of water will trigger a review of licences by the NRA. The Bill in its present form does not specifically address the problem.

My first amendment, No. 72, provides the means for relevant agencies to request the NRA to carry out a review when problems arise. The second amendment, No. 121, which is grouped with Amendment No. 72, ensures that the NRA takes into account its environmental duties when reviewing licences.

Let me speak first to Amendment No. 72. It is similar to the one which I tabled at Report stage and will provide the Nature Conservancy Council, the Countryside Commission and the NRA's advisory committees with a statutory right to request a review of water abstraction licences. I welcome the Minister's previous assurance that the NRA will have the power to review licences of right. However, during the Report stage I tried to convince the House that the NRA should have a duty to review abstraction licences in the same way as it has a duty to review discharge consents.

The Minister tried to persuade me that this was not necessary as the NRA is to be independent from the water service plcs. That is one of the advantages of separating the two arms of the water industry—a concept which I fully support. Nevertheless there is a strong case to be made for the adoption of statutory means which will ensure that the NRA conducts a review of abstraction licences which are considered as having a damaging effect on the environment. The precedent for this already exists in relation to discharge consents.

My contention with the Government is that if they feel that there is a need for a statutory review of what flows down the river, surely it is equally important to review how much water is taken out. The NCC, which is the body responsible for advising the Government on conservation matters, believes that the NRA should have a statutory duty to review abstraction licences. Since no such duty is provided for in the Bill, there should be as a minimum requirement a power for the NCC, the Countryside Commission and the NRA's advisory committees to be able to request the NRA to review these licences. That is exactly what my amendment seeks to do. I know that the Minister will tell me that the NCC or anyone else is at liberty to request a review of abstraction licences, but this amendment will strengthen and formalise the process and not leave it to chance.

When the Minister responds to the amendment, I should be grateful if he would clarify one small point. Will the NCC have the legal right to request the review of an abstraction licence which affects a river or wetland, neither of which is notified as a site of special scientific interest? That would clarify the Clause 9 duties for both the NRA and the NCC.

I now wish to speak to Amendment No. 121. It is a simple amendment which would clearly identify environmental problems resulting from over-abstraction with the ability of the NRA to review licences. It is an amendment to the relevant section of the 1963 Water Resources Act which provides for the review of abstraction licences. I have used the same wording as has been used in Clause 126(4)(b) with respect to the setting of minimum flows. That subsection ensures that the NRA will have due regard to its Clauses 8 and 9 environmental duties when it comes to determining minimum flows.

My amendment seeks to ensure precisely the same duty with respect to abstraction licences. Where there is evidence of environmental damage caused by over-abstraction, the NRA will have a clear duty under its Clauses 8 and 9 responsibilities to consider reviewing the abstraction licences. I accept that the power to deal with licences exists in the Bill but I believe that an issue that is of such concern to so many people should have a clear reference in the Bill. I do not believe that the amendment is in any way contentious and I feel that the Government should be able to accept it. I beg to move.

Lord Graham of Edmonton

My Lords, I only intend to take a minute or two of your Lordships' time. I believe that the noble Lord, Lord Norrie, has put forward an acceptable case most persuasively. What are we faced with? In previous debates the Minister talked about bureaucratic nightmares which of course are the device and the last refuge of a Minister of the Government who does not wish to have duties imposed upon him which he does not like. I can tell him that in my view the people who would be affected by this bureaucratic nightmare would prefer to have it than to face the prospect of the beauty, the facilities and amenities which we seek to protect being damaged.

All the new amendment does is to make statutory and to lay down something which the Minister will probably tell us will be done in any case. In the amendment we say that environmental duties on a statutory basis need to be taken into account. We ask for a periodic review. As the noble Lord, Lord Norrie, said, it is all very well saying, as the Minister did previously, that these things can be requested. We do not want that; we want people to acknowledge that if we are serious about these matters it should be part and parcel of the obligations to carry out these matters as good husbanders of our natural resources.

I very much hope that the Minister will accept that this provision is designed to maintain and improve the condition or the amenity of water, or the surrounding area, or the quality of the water itself. That very much rests upon arresting the depletion of water from our watercourses when that takes place unnecessarily and dangerously. In my view, this is an eminently reasonable amendment.

The Earl of Caithness

My Lords, I shall be extremely brief. However, that implies no discourtesy to my noble friend or the House. In moving the amendment, my noble friend told the House exactly how I would answer it. I think we can both award ourselves 10 out of 10 for perseverence with the same arguments, and nought out of 10 for bringing forward any new arguments on Third Reading.

As regards Amendment No. 72, I am afraid I can only repeat what I said on Report; namely, that there is no point in putting on the face of an Act a provision which is completely unnecessary. The NCC and any other interested party can always request the NRA to exercise its powers, or to exercise them in a particular way; the fact that this may be done by means of abstraction licences is immaterial, and it is irrelevant whether it is a question of an SSSI, so my noble friend's concern is totally met. In fact my noble friend's amendment has a mischief in it. The mischief is that to formalise the position in statute could, I contend to the House, only cast doubt on the ability of parties other than those named to make similar requests. I am sure that my noble friend will see the wisdom of that.

I have rather similar remarks to make in connection with Amendment No. 121. Here again, Clause 8 itself already requires the NRA to take environmental and conservation matters into account in formulating any proposals. That includes proposals to revoke or amend abstraction licences.

Lord Norrie

My Lords, I have listened carefully to what the Minister has said. I am afraid that the Government have not given any ground since the Committee and Report stages on the amendments on water abstraction. The amendments which I tabled today were put down in response to the Government's previous criticisms, and are not, I believe, in any way contentious at all. The Minister has repeated his criticism that the additional powers are not necessary. However, I still find it horrifying that this Bill does not contain a reference to a very major problem—that is, over-abstraction.

I accept that there are resource implications in dealing with over-abstraction, but that should not be the reason for failure to resolve this problem. All the conservation bodies, including the Government's own advisers, feel strongly about this issue. Indeed, having seen so much damage caused in my own local environment by over-abstraction of water, which has been perpetuated as a result of 23 years of inaction by the present water authority, I hold out no hope of improvement under the privatised water industry unless an appropriate amendment is made to the Bill. I can only hope that the problems of over-abstraction can be resolved when the Bill goes back to another place. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 130 [General drought orders]:

[Amendment No. 73 not moved.]

Clause 131 [Emergency drought orders]:

[Amendment No. 74 not moved.]

Clause 145 [Ministerial directions to the Authority]:

The Earl of Arran moved Amendment No. 75: Page 153, line 1, after ("to") insert ("the making of applications for orders under section 111 above or with respect to").

On Question, amendment agreed to.

The Earl of Arran moved Amendment No. 76: Page 153, line 4, leave out from ("to") to ("anything") in line 5.

On Question, amendment agreed to.

Clause 14 [Admissibility of analyses of samples]:

The Earl of Arran moved Amendment No. 77: Page 154, line 44, after ("sewer") insert ("or other outfall belonging to a sewerage undertaker").

On Question, amendment agreed to.

The Earl of Arran moved Amendment No. 78: Page 154, line 46, after ("sewer") insert ("or outfall").

On Question, amendment agreed to.

Clause 151 [Restriction on disposals of land]:

Lord Graham of Edmonton moved Amendment No. 79:

Page 157, line 16, at end insert— ("(3A) Before granting any consent or authorisation under this section, the Secretary of State may establish a local inquiry to report to him with recommendations and the report of any such inquiry shall be published. (3B) The Secretary of State shall, in respect of any local inquiry established under subsection (3A) above, make arrangements to secure that

  1. (a) such individuals and organisations as appear to him to be concerned receive notice of the inquiry, is terms of reference and procedure of the making of submissions; and
  2. (b) that notices of matters referred to in paragraph (a) above are placed in the London Gazette and such local newspapers and other publications as appear to him to be relevant.").

The noble Lord said: My Lords, in moving this amendment, I wish to speak also to Amendment No. 80, standing in the name of my noble friend Lord McIntosh of Haringey. These amendments deal with public consultation on land disposals. I hope the House will agree that that is a most important aspect of the Bill.

These amendments return to the issue raised by Amendment No. 140F at Report stage, which was moved to the Government's then new clause on disposals, now incorporated as Clause 151 of the Bill. My noble friend Lord McIntosh argued that a process of public notification and consultation was necessary in relation to proposed disposals. The amendment would have required notification in the London Gazette and local newspapers of the receipt of an application, and of the results of a determination. My noble friend Lord McIntosh described the fact that the clause made no provision for such public notification as "an astonishing omission" which was: out of keeping with the spirit of much recent legislation and with the Government's own proclaimed support for open government".—[Official Report, 8/6/89; col. 953.)

In reply, the noble Lord, Lord Hesketh, did not really deal with the issue of whether or not the public had an interest in knowing of proposed disposals and the planning implications arising from them. This does indeed seem to be an extraordinary omission. Public concern may be less with the transfer of ownership than with the possibility of development of land whether for housing or more intensive recreational use. This is precisely the sort of issue which generates intense public interest to which the Government seem largely to be insensitive.

I am sure that the Government ministers will by now be very much aware that these are the matters that excite interest and concern in the national and local press. The reply of the noble Lord, Lord Hesketh, at col. 975 dealt wholly with whether or not such a public notification procedure would be useful to the Secretary of State in reaching a view on whether or not a change of ownership should take place. We believe, having read the Minister's reply, that it reveals the degree to which the Government misunderstand the extent of public concern, and the particular sensitivity to possible development of land currently held by water authorities. The Government need hardly be concerned that the placing of an advertisement in respect of an uncontroversial piece of waste ground or a redundant site in an urban area will draw any substantial public reaction. They must accept, however, that a notice of sale in respect of an area of some scenic interest will naturally still be of concern to local residents. I remind the House of the Secretary of State's own experiences with controversy over the releasing of agricultural land for housing development in the South of England in recent years. That should of itself have demonstrated to him that concern. The Minister chose to concentrate on the narrow issue of change of ownership. The much more important issue would be that of the consequences of such a change.

Accordingly, the amendments now tabled seek to explore further what appears to have been a wholly neglected area of the Government's thinking in drawing together the disposals proposals. The first amendment would give the Secretary of State the discretion to establish a local inquiry to report to him with recommendations in respect of a proposed disposal. The second amendment would require the Secretary of State to undertake public consultation and invite representations and publish notices of the consultative process.

I believe that if one is concerned about taking the public along with this legislation, rather than stripping the Bill of any onerous duties upon the prospective investors, one should appreciate that these amendments are sensible and reasonable. I beg to move.

9 p.m.

Lord Hesketh

My Lords, these amendments would provide that the consent powers of the Secretary of State for the disposal of environmentally sensitive land in Clause 151 should be subject to substantial obligations in respect of public consultation through advertisement in local papers, the London Gazettes and to the discretionary public inquiry procedures. We obviously have some sympathy with the proposal of the noble Lord, Lord Graham. The fact of our establishing a requirement of the Secretary of State's consent reflects acceptance that there may be significant issues of public interest involved. Clearly, relevant bodies should be consulted. The issue is how we achieve that in a simple and effective manner.

Our view is that this proposal is disproportionate. What we are considering here is the transfer of ownership which could have some hypothetical impact on certain landscape, conservation or amenity considerations. We are not considering substantial or immediate development proposals. For what is involved extensive advertising requirements and formal consideration of objections are excessive. That is too blunt an instrument.

Instead, we propose that before any consent is issued there will be a requirement, through the terms of a general authorisation, that the undertaker consult the Countryside Commission. That body is in the best position to advise whether, in the light of consultation with the NCC and other statutory bodies concerned, significant issues are raised by the proposal. Where appropriate it will no doubt seek the views of other relevant bodies or affected interests before recommending to the Secretary of State whether the consent should be granted, and if so, subject to what conditions.

I suggest that that is a reasonable, flexible and sensible approach. By contrast the noble Lord's proposal would mean that every time an undertaker sold a car park or vehicle depot within the very extensive designated areas advertisement in the London Gazette would be required. We believe that to be excessive. However, I hope that what I have said will reassure the noble Lord that we are taking due account of the need for consultation, and that he will not therefore consider it necessary to press his amendments.

Lord Graham of Edmonton

My Lords, the Minister rests his argument on the fact that the NCC will be consulted. Can the Minister tell the House what are the NCC's powers as regards consultation in these matters? How long do they have to respond? If consultation is to be meaningful there must be an opportunity for the NCC to consider whether it is competent to respond or whether it needs the views of others. Can the Minister help us?

Lord Hesketh

My Lords, the important point is that consultation takes place. I do not have with me information as to the exact period of time but I shall certainly let the noble Lord, Lord Graham, know.

Lord Graham of Edmonton

My Lords, I understand the Minister's difficulty in responding to that point. But the Minister will understand that he is asking the House, and the country, to accept that the mere process of consultation with the NCC will be sufficient to satisfy anyone who is concerned. The NCC itself may wish to have time for consultation. I wonder whether the Minister is now in a better position to give such an indication.

Lord Hesketh

My Lords, we shall specify a period in the general authorisation. Obviously, we shall take into account what the noble Lord, Lord Graham, has said this evening.

Lord Graham of Edmonton

My Lords, the Minister is very wise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 80 not moved.]

Lord Hesketh moved Amendment No. 81: Page 157, line 20, after ("above") insert ("and subject to subsection (5A) below").

The noble Lord said: My Lords, the amendments derive from consideration at Report stage of the Government's proposals for special protective controls of the disposal of environmentally significant land when I said that we would consider what could be done to clarify and extend the scope of the controls.

Baroness David

My Lords, can the Minister tell us which amendments he is speaking to?

Lord Hesketh

My Lords, I am speaking to Amendments Nos. 81, 83 to 86, 88 and 90 to 92. I apologise deeply to the House for not having said so at the start.

Lord McIntosh of Haringey

My Lords, the grouping which we agreed, which includes our amendments, comprises Amendments Nos. 81 to 88 and 90 to 93. That includes amendments in my name, in the name of the noble Lord, Lord Gibson, and in the name of my noble friend Lady Nicol. We have the Government's agreement to speak to them all as a group and I hope that the Minister will also do so. That would make for a much more sensible debate.

Lord Hesketh

My Lords, I was just coming to the point which the noble Lord, Lord McIntosh, has raised. I propose that it would be sensible for me to speak to the government amendments and at the end of the debate answer the opposition amendments, if that would be satisfactory.

Perhaps I may first draw the attention of the House to an error in the third line of Amendment No. 85, where the words "or the Minister" should follow the reference to the Secretary of State. That reflects the reference to the Secretary of State or Minister in subsection (4).

The government amendments make three proposals: first, Amendment No. 85 applies the Secretary of State's power to require to offer a first refusal explicitly to the two cases covered in the Government's announced policy: the sale of compulsorily acquired land and the sale of land within national parks, areas of outstanding national beauty, and, if other amendments are accepted, SSSIs. The other amendments provide for special controls on environmentally sensitive land to extend to all SSSIs. Thirdly, they correspondingly withdraw the reserve order-making power of the Secretary of State for other specific areas to be brought within the scope of the controls on an exceptional basis.

When the Government originally introduced the proposals at Report stage, I undertook to come back to the House at Third Reading on two related points: whether SSSIs could be brought within the scope of the protection, and more generally whether anything could be done in the terms of the clause to make it clearer and firmer in its effects. The amendments before you are the result.

I have emphasised that policy on water authority land must strike a delicate balance. It must meet the need for permanent protection of special environmental areas; it must not inhibit development for socially important purposes in the right areas elsewhere; and it must not inadvertently blight land valuations in circumstances where, as under our proposals, water customers will directly benefit from any sales.

This evening I shall seek to point out to the House two matters: first, that overall our amended proposals represent a better balance of various factors which must be weighed; secondly, that our amended proposals are overall a considerably better deal for the environment.

Before I deal with the specific terms of the amendments, perhaps I may reiterate the two fundamental aspects of our proposals. The first is the reason why we are singling out certain areas for protective controls and not others. We are doing so because certain types of water authority land, notably the upland catchments and important lowland reservoirs, have distinctive conservation features. On such land water authorities have often done more by way of conservation, access and amenity than ordinary planning and countryside legislation could achieve. Elsewhere, on most ordinary utility land, that does not apply. Our ordinary planning and conservation legislation remains an important and sufficient protection.

The second consideration is the range of controls which should be available within those special areas. It remains our view that the variety of circumstances requires three alternatives: purchase by conservation bodies, management agreements or covenants which can cope with the variety of circumstances that can arise. In those three options, our proposals go beyond anything pressed upon us, but, in our view, rightly so.

I remind the House of those considerations as background to the three groups of amendments to which I now turn. I shall deal first with Amendment No. 85. It is the Government's policy that the Secretary of State of the day should have power to require that land placed on the market by undertakers should first be offered to particular bodies in two particular cases. The first is the case of compulsorily acquired land. In accordance with the Crichel Down rules, we believe it right that it should be offered back in the first instance to those from whom it was compulsorily purchased. The second case is the special circumstances to which I referred in respect of land in any designated area—the national parks, AONBs and SSSIs—where the Secretary of State, advised by the Countryside Commission, would have power to require that the land be first offered to a suitable conservation body, where the land is of particular importance and where protective ownership by a conservation body is the best way in which to ensure that it is indefinitely protected.

To cover those two cases, the earlier drafting of the clause went wide, as some noble Lords remarked. It could have implied that any land of any kind in the ownership of the undertakers, even if not compulsorily acquired or of special conservation or amenity value, would be subject to the power. That would be unreasonable and it was clearly right that we should ensure that the powers in the clause should match their announced and intended use. That is simply what Amendments Nos. 81, 85 and 86 achieve.

I now turn to the amendments which provide for the widening of the application of the clause to cover all SSSIs. We considered that with great care because it is a very substantial widening. As the House knows, we had certain doubts as to the need for it. SSSIs are exceedingly diverse and a high measure of continuing protection can be provided by the SSSI procedure itself. But, at the end of the day, we have felt it right to have regard to two particular considerations. First, the feeling of this House, which we believe to be that, in spite of the niceties of logic, it is safe and better that such sites should be covered and that, given the inclusion of national parks and areas of outstanding natural beauty, it was invidious not to cover SSSIs also. The second consideration is the advice of the Nature Conservancy Council, which believes that there will be circumstances in which the existence of such powers, particularly in respect of covenants, would be very helpful to it.

Having regard to those considerations and, more generally, the fact that the water and land of the water industry represent a special resource for certain kinds of flora, fauna and habitat, we have felt it right to alter our proposals. The effect on the scope of the controls of bringing in SSSIs will be considerable. The Nature Conservancy Council has substantially completed its notification of sites on reservoirs, lakes and associated land and some 200 to 250 sites are now covered. The effect is that the number of significant countryside sites alone which are brought within protection increases by 40 per cent.

I must say that it is most unlikely that inclusion of so many sites would or could ever have been justified or even contemplated by the reserve order-making power. I must also say that most of the sites for which we anticipated using the order-making power are covered by the inclusion of SSSIs. In those circumstances, we had to question whether there was a justification for maintaining the discretionary power for the Secretary of State to include other sites by order. That risked causing uncertainty and confusion and, because of that uncertainty, it would also have an effect on the valuation of land assets and could ultimately reduce the financial benefits from the disposal of surplus lands which are now, under our proposals, to flow back in large measure to water service customers.

Having satisfied ourselves that, through the SSSIs, we have brought firmly into it the majority of sites for which an arguable case for inclusion might in future have been made, we concluded that more would have been lost than gained by preserving the discretionary power. The fact is that the extension of protective controls is so wide that the justification for reserve power for additional ad hoc designation no longer holds. The purpose that that would have served would have been to allow the full coverage of what the Countryside Commission has identified as the jewels in the crown; inclusion of certain other areas, upland moors and lowlands of value on landscape, amenity and recreation grounds; and inclusion on an exceptional basis of particular SSSIs. In practice, the inclusion of SSSIs secures substantial coverage of those three elements now and on a firm basis, rather than leaving it to an uncertain future decision.

SSSIs bring in almost all of the Elan Valley and most of Vrynwy, so that, taking account of national parks, AONBs and the proposed AONBs, all the "jewels in the crown" would now be covered. They also bring in many of the important lowland reservoirs such as Rutland Water and Grafham Water, which are important on access and recreation grounds as well as in terms of nature conservation, and a number of reservoirs and lakes in urban areas which are of value for amenity and conservation. As I have said, overall, we estimate that the net effect of the proposals will be to increase by around 40 per cent. the coverage of sites of countryside and amenity value.

Finally, I should like to emphasise one further point. There have been reports, either muddled or mischievous, that the effect of our proposals tonight is to reduce the protected area of the total water authority holdings from some 450,000 acres, which it is claimed the designation power could have involved, to the 170,000 acres of national parks and AONBs. That is simply wrong. I emphasise that of its very nature the reserve designation power could only be used exceptionally for isolated cases of land analogous with national parks and AONBs. If the argument is pursued in terms of acreages, then what we are now doing will increase the 170,000 acres by about a further 100,000 acres. That is more than is likely ever to have been covered by our earlier proposals, assuming that the Secretaries of State at the time had seen fit to make use of the reserve powers on that scale.

What we are proposing tonight is justified on four grounds. It avoids uncertainty and makes clearer distinctions. It draws firm and defensible lines reflecting clear statutory designations. It brings in now the majority of those sites, the inclusion of which might, on an exceptional basis, have been in future proposals. In substantially extending by some 40 per cent. the total sites covered, it provides wider protection than previously proposed.

For all those reasons it is a better proposal and one which is better above all for the long-term protection of the environment. I commend the amendment to your Lordships' House.

9.15 p.m.

Lord McIntosh of Haringey

My Lords, it is curious that in making a speech in which he claims that there is such a major advance in government thinking, the Minister should have been so defensive. I remind the House that this whole matter has been the subject of intense concern since Second Reading and in Committee. It was as a result of pressure on the Government from all sides of the House that concessions were made on the disposal of land. I remind noble Lords that we on these Benches welcomed those concessions, although, as will be apparent, we felt that they did not go far enough.

Let me say without equivocation that we welcome the inclusion of the SSSIs in the provisions for restrictions on disposals of land, the pre-emption first option provisions and the other controls which are proposed. We recognise that in that respect the Government have moved significantly toward the position urged on them by their own colleagues and by my noble friends and other noble Lords from all sides of the House and particularly from the Cross-Benches. So, to that extent, we do not in any way want to minimise the value of what has been done by the inclusion of the SSSIs.

In his speech the Minister set out the extent of the protection, and it is useful to have it established in terms of the numbers of acres and the percentage of the total which is involved. But then, in an extraordinary shift, where the indication was that they were going to accept the pressure on SSSIs, the Government suddenly say that this will be at the expense of the power of the Secretary of State to designate other areas.

Again, I have to remind the House that the designation and inclusion of particular types of land in these provisions has two effects. First of all it affects the concession by means of which a relevant body, such as the National Trust, would be offered the land on a first refusal basis. Of course that provision will be available for SSSIs but it will no longer be available for designated areas. Secondly, the requirement for consultation with the Countryside Commission and the Nature Conservancy Council will now be restricted to the national parks, the Broads, the AONBs and the SSSIs.

We welcome the consultation and the first refusal but for the life of us we cannot understand—and understand even less after having heard the Minister's speech—why the reserve power for the Secretary of State to designate other areas for inclusion in these provisions should now be taken away. The Minister was very candid with us. He said it was never the Government's intention to use the reserve powers to bring in anything like as many areas as will now be covered by the SSSIs, He said nothing about that when the amendments were introduced. Indeed a lot of the concern expressed at Report stage when these amendments were first introduced was defused by the fact that reserve powers were available to the Secretary of State and that he could designate areas if he thought it was necessary.

The Minister in his speech has chosen to use the examples of the Elan Valley and Lake Vrynwy. There are still 7,000 acres of the Elan Valley which will not be covered by the SSSIs and cannot now be covered by reserve powers. There is still about 50 per cent. of the 21,800 acres of Lake Vrynwy not covered by SSSIs or by any of the other designations which cannot now be covered by the reserve powers. There are 7,600 acres of the Washburn catchment in North Yorkshire and 9,700 acres of the West Pennine moors in Lancashire. So it is not a small amount of land that we are talking about. It is a very significant amount of land and it seemed to us—this may sound paradoxical to those of us who have been trying to get the Bill to be more precise and less discretionary—that to take away this discretionary power is to freeze the designation of land at June 1989 in a way in which it should simply not be frozen. The designation power ought not to have been taken away when the concession on SSSIs was given.

I am forced to the conclusion, without in any way impugning the honour of the Ministers concerned, that there is an element of switch-sell in this. We have been given something which the Government would undoubtedly have had to yield on a Division had it not been yielded by a concession of this kind. But it has been done in such a form that, quite rightly, it raises the suspicions of those who know most about our countryside and are most concerned about it. I am authorised by the noble Lord, Lord Gibson, who is very sad that he is not able to be here tonight—he is dining at Buckingham Palace—to tell the House of his fury that this change has been made and that the improvement as regards SSSIs has been accompanied by the damage resulting from the removal of the designated areas.

For that reason I am urging upon the House my Amendments Nos. 82, 87 and 93, which deal with the designated areas while keeping the concession on SSSIs. In particular, I am urging the House to reject those government amendments which remove the designated areas from the face of the Bill.

Lord Addington

My Lords, I should like briefly to rise to express my support for the noble Lord, Lord McIntosh, on this matter. My name is attached to Amendment No. 82 for the simple reason that I too am unable to see why the Government should effectively say "thus far and no further". The noble Lord, Lord Hesketh, spoke about jewels in the crown. I would suggest that we could do with a few more of those jewels in that particular crown. We should not shut the door on any area of expansion in this section, as we do not know what will happen in the future. An area that is now not regarded as being of great natural beauty or as worthy of inclusion in a national park may be so regarded in the future. I suggest that we should keep the door open to allow for future improvements and for any future steps towards greater conservation and greater protection. I urge your Lordships to support Amendment No. 82 and to oppose these government amendments.

The Earl of Balfour

My Lords, before my noble friend Lord Hesketh replies, I think that at the very beginning of his speech he said there was a mistake in Amendment No. 85. I wonder, when he winds up, whether he could tell me again what the mistake was. I did not quite catch it.

Baroness Nicol

My Lords, as my noble friend has said, his Amendments Nos. 82, 87 an .d 93 have the effect which all of us who wished to protect the SSSIs desired—that is, all those of us who wished to see SSSIs included in the specific protections provided by Clause 151—but without the penalty which is now being imposed by the Minister.

As my noble friend Lord McIntosh has said, we are grateful for the inclusion of sites of special scientific interest for all the reasons which we ourselves gave at an earlier hearing and upon which the noble Lord, Lord Hesketh, has now enlarged. But we are dismayed to find that the price to be paid is the loss of the general discretion—the discretion of the Secretary of State to protect from unsuitable development any undesignated areas which may later emerge, as the noble Lord, Lord Addington, said, as important in terms of ecology or amenity. We cannot understand why it has to be "either/or".

The noble Lord, Lord Hesketh, gave various reasons, none of them very convincing, for why the discretion had to be lost; why we could not have extra protection for SSSIs without losing that discretion. My Amendment No. 91, to which no one has yet spoken, draws attention to a difficulty which could arise. For example, discussions are taking place about the need for a European directive on the protection of habitat, known as the Flora and Fauna Habitats Directive. Such a directive could identify sites of international importance to wildlife conservation. The United Kingdom Government would be under a duty to protect such sites within their borders. The Government's proposal to remove the Secretary of State's general discretion would make such protection difficult. An amendment such as Amendment No. 91 becomes necessary if the general discretion does not remain.

I do not wish to seem ungrateful for the concessions which the Government have made, but it seems incredible that a power added by the Government only two or three weeks ago should be removed so soon. It is disheartening that every gain in conservation matters has to be fought for so hard and can be lost so easily. We question yet again the Government's commitment to environmental matters. It seems that they must always be last in the queue, a long way behind financial gain or political expediency.

All the protective powers in Clause 151 are hedged about by ifs and buts. There is no absolute protection for anything. As we now see, when certainty is introduced, it is a certainty in favour of protective developers and not of conservation. The reaction of the Countryside Commission, the National Trust, the Council for the Protection of Rural England, the RSPB and others proves the value of the discretionary powers which could now be lost. I hope that the House will support the amendments of my noble friend, Amendments Nos. 82, 87 and 93.

Lord Norrie

My Lords, I should like to give a warm welcome to the Government's proposed amendment which will bring all sites of special scientific interest within the safety net of Clause 151. The House will know that I supported an earlier amendment tabled by the noble Baroness, Lady Nicol, which sought just to do that. To that end I congratulate the Government on accepting the need to safeguard SSSIs which may become surplus to the requirements of the water industry. A number of conservation bodies were deeply worried that the wildlife value of many of the industry's lowland sites would deteriorate without there being a mechanism to help to guard against inappropriate land disposals, or without the ability to apply conditions relating to access or land management. The Royal Society for the Protection of Birds in particular considers that the proposed amendment will provide a basis for helping to safeguard many of the water authorities' lowland sites which are important to wildlife.

In welcoming the inclusion of the SSSIs into the scope of the disposal restrictions, I am particularly concerned by the Government's intention to withdraw the provision accepted by the House at the Report stage which would have retained a large amount of flexibility in the application of the new restrictions. If the Government's move to withdraw the power to designate areas outside national parks, AONBs or SSSIs is accepted, we shall have removed the only opportunity under the Bill to preserve recreation or the environment in non-designated areas.

My noble friend Lord Caithness kindly wrote to me to explain that sites of special scientific interest, which are now to receive protection, also cover many areas of importance for recreation; that that would substantially meet the concerns expressed by the recreational bodies about land disposal. I am afraid that it does not. I do not think that the Government expect us to believe the proposition that recreation is best preserved by designating areas of high conservation value. After all, what about recreation in other areas? Do the Government really wish to leave themselves without a reserve power to protect areas of particular amenity or conservation value? We are considering a discretionary power which need not unduly fetter the Government or the water industry.

In persuading me that I should withdraw another amendment relating to preservation of recreation on water industry land the Government relied on the proposed power. In such circumstances I believe that it would be wrong for them now to withdraw the power. Much as I welcome the inclusion of SSSIs in the provision of Clause 151, I hope that my noble friend will accept the views of Members on all sides of the House on this important matter and will take steps to retain the power to designate areas under Clause 151.

9.30 p.m.

Lord Ross of Newport

My Lords, I support what has already been said. It is a major concession in respect of SSSIs and I congratulate the Government on giving that power. I am worried about the ability of conservation bodies such as the RSPB to find the money to acquire such sites if they are put on the market. I am also worried about the market price which will be put on them. Already we know that the Nature Conservancy Council has reported to the Government, who are considering a loan, about whether some of the reservations which they now control and own should not also be sold to some of the voluntary bodies. With the best will in the world their finances are limited, as I well know. If suddenly vast tracts of land are to be offered to such bodies they will have an awful job to find the money to acquire and subsequently manage them. On the other hand, the concession is greatly to be welcomed.

The other side of the coin is most disappointing. There are always sites which suddenly come into consideration and which should have been scheduled in one way or the other. The flow country is a typical example which blew up in everyone's face when we saw what was happening in Caithness. Action was then taken and a great deal of money was put in by the NCC to deal with the problem. Recently we have heard about the Rose Theatre, but a year or so ago no one even dreamt of that situation and hardly knew it existed. Suddenly it is there and the Secretary of State had to become involved—I think reluctantly, but he did so.

We should not withdraw and lose the fallback situation and the flexibility of deciding that some sites which are not necessarily scheduled in any other way are important and should be preserved. At this late hour I beg the Government to think again about that matter. I congratulate them in respect of the SSSIs, which is a major step forward. I accept that totally. However, in respect of planning consent SSSIs have been lost all round. The figure is now into the hundreds and they override the control which we thought existed. There will always be cases where people expect the Government to step in. They will probably throw them back and say that there is no legislation to cover the issues. I believe that that is a grave mistake.

Lord Moran

My Lords, I was one of the many noble Lords who raised the question of land disposal on Second Reading. I warmly welcomed the amendment put forward by the Government to create protected areas. I also supported the amendment proposed by the noble Baroness, Lady Nicol, to include SSSIs. I am glad that the Government have agreed to make that change in the Bill. I believe that it is most important.

However, I am also dismayed by the proposal to remove the Secretary of State's discretionary power. Indeed, when I was first informed about it, I found it hard to believe. At first, I refused to credit the fact that it should be the Minister from the Department of the Environment who was making the change only two weeks after the Government had introduced it.

There are all sorts of cases which may arise concerning land outside areas of outstanding natural beauty, national parks or SSSIs which may be endangered for one reason or another and which may need to be protected. I believe that it is obviously sensible that the Secretary of State should have that reserve of power. To surrender that seems to me a profound mistake.

I give one example of the sort of problem which may arise in the sphere of conservation; that is, the case of a declining bird, the merlin, in Wales. There are only about 40 pairs left in Wales, and only a very small percentage of their breeding sites and hunting grounds on which their survival depends are included in SSSIs. If this already very rare bird continues to decline in number, we may be unable to do anything to protect it further, if proposals are made to use land in ways which would be damaging to its survival, if we dispense with that power.

It seems to me quite extraordinary that the Government should have brought in this measure, on the one hand bringing in the very good change of including SSSIs and, on the other, the very bad change of getting rid of the discretionary power. I too ask the Government, even at this very late hour, to think again.

Baroness Blatch

My Lords, is it not true that if an area of land conformed with the criteria to become an SSSI, it could be recommended for such status; and if it acquired that status, it would enjoy that protection under this Bill? If that is so, not only is there the protection enjoyed by SSSIs, as the amendment sets out, but there is also the assured protection should an area of land conform. However, I am not sure about that and I should like some confirmation.

Lord Hesketh

My Lords, perhaps I could first answer the question of my noble friend Lord Balfour concerning the error which I pointed out and which he did not pick up. The error is on the third line of Amendment No. 85 where the words "or the Minister" should follow the reference to the Secretary of State. That reflects the reference to the Secretary of State or the Minister in subsection (4).

Perhaps I may then move on to Amendment No. 91, in the name of the noble Baroness, Lady Nicol. This amendment would provide that designated areas for the purpose of Clause 151 should include areas designated for the purpose of complying with international obligations relating no doubt to the protection of birds, wetlands and other Clause 8 matters. We believe that the greater part of the effect of this amendment is already achieved through the designations covered by this clause; that is, the national parks, the AONBs and the SSSIs. For that reason we do not believe that the amendment is justified.

It may be that the noble Baroness is referring to isolated individual cases which are not so covered. However, I suggest that it would be wrong to complicate the legislation by seeking cover those exceptions and, as I said earlier, we should try to draw clear and simple lines.

I accept that the RSPB put to the Government the case for including sites covered by international designations. However, that was only if we were unable to include SSSIs, which is what it most wanted and warmly welcomed. We take the view that inclusions of SSSIs would satisfactorily cover internationally designated sites. I hope that the noble Baroness will understand why we resist her amendment on that particular point.

I believe that it is fair to say that the only point at issue is the withdrawal of the discretionary power which would leave any areas at risk which would reasonably have been protected by it. Noble Lords have referred to various organisations and examples outside this House and the noble Lord, Lord McIntosh, referred particularly to the Washburn catchment among others. That is in a proposed area of outstanding natural beauty and will come into control if justified on that basis. With reference to the Pennine moors around Hebden Bridge, the chairman of Yorkshire Water has already confirmed publicly the intention to retain these within the utility companies and to preserve public access across them.

Rather than argue the toss the fact, as my noble friend Lady Blatch has pointed out, is that extension of protection is available. Far from being a power taken away with designation it is a power that has been superseded. I am slightly disappointed to have to come to the Dispatch Box in your Lordships' House and say that the Government wish to increase by 100,000 acres the area which will go into immediate protected status rather than possibly benefit from designation. We have the powers both for the extension of areas of outstanding natural beauty and, as my noble friend Lady Blatch pointed out, for further designation of SSSIs.

It is wrong to suggest that the figures, areas, acreages or places are frozen in terms of this week in 1989. There are the methods and the wherewithal available today and tomorrow to create and to protect those sites which are considered important. We have gone a very long way. I believe that we have made a major contribution to the environment. There are methods to extend it even further without the power referred to this evening. We believe that we have flexibility for the future; we believe too that we have made a great leap forward in terms of nearly doubling the acreage that will go into perpetual protection.

9.42 p.m.

On Question, Whether the said amendment (No. 81) shall be agreed to?

Their Lordships divided; Contents, 67; Not-Contents, 61.

Alexander of Weedon, L. Hives, L.
Allenby of Megiddo, V. Hooper, B.
Alport, L. Johnston of Rockport, L.
Arran, E. Joseph, L.
Auckland, L. Kimball, L.
Balfour, E. Knutsford, V.
Belstead, L. Lindsay and Abingdon, E.
Blatch, B. Long, V.
Boardman, L. Mackay of Clashfern, L.
Borthwick, L. Mersey, V.
Brabazon of Tara, L. Middleton, L.
Brougham and Vaux, L. Monk Bretton, L.
Bruce-Gardyne, L. Montgomery of Alamein, V
Caithness, E. Morris, L.
Camegy of Lour, B. Mowbray and Stourton, L.
Carnock, L. Munster, E.
Cork and Orrery, E. Norrie, L.
Craigmyle, L. Oxfuird, V.
Crathorne, L. Radnor, E.
Davidson, V. [Teller.] Renton, L.
Denham, L. [Teller.] Rochdale, V.
Dundee, E. Saltoun of Abernethy, Ly.
Elliot of Harwood, B. Sanderson of Bowden, L.
Elliott of Morpeth, L. Sharpies, B.
Fanshawe of Richmond, L. Skelmersdale, L.
Fortescue, E. Stanley of Alderley, L.
Fraser of Carmyllie, L. Strathcarron, L.
Gainford, L. Strathclyde, L.
Gisborough, L. Thomas of Gwydir, L.
Glenarthur, L. Trafford, L.
Gridley, L. Trumpington, B.
Haig, E. Wynford, L.
Henley, L. Young, B.
Hesketh, L.
Addington, L. Hampton, L.
Blackstone, B. Harris of Greenwich, L.
Blease, L. Hatch of Lusby, L.
Blyth, L. Hirshfield, L.
Brooks of Tremorfa, L. Howie of Troon, L.
Callaghan of Cardiff, L. Irvine of Lairg, L.
Carmichael of Kelvingrove, L. Kennet, L.
Kilbracken, L.
Carter, L. Llewelyn-Davies of Hastoe, B.
Cledwyn of Penrhos, L.
Cocks of Hartcliffe, L. Longford, E.
David, B. McCarthy, L.
Dean of Beswick, L. Mclntosh of Haringey, L.
Donoughue, L. McNair, L.
Dormand of Easington, L. Masham of Ilton, B.
Ewart-Biggs, B. Mason of Barnsley, L.
Falkland, V. Mayhew, L.
Gallacher, L. Monson, L.
Galpern, L. Moran, L.
Graham of Edmonton, L. Morris of Kenwood, L.
Grey, E. Mountevans, L.
Murray of Epping Forest, L. Stedman, B.
Nicol, B. [Teller.] Stoddart of Swindon, L.
Pitt of Hampstead, L. Strabolgi, L.
Ponsonby of Shulbrede, L. [Teller.] Taylor of Gryfe, L.
Underhill, L.
Prys-Davies, L. Walston, L.
Rea, L. Whaddon, L.
Ross of Newport, L. White, B.
Sefton of Garston, L. Winchilsea and Nottingham, E.
Shepherd, L.
Somerset, D. Winstanley, L.
Stallard, L.

Resolved in the affirmative, and amendment agreed to accordingly.

9.50 p.m.

[Amendment No. 82 not moved.]

Lord Hesketh moved Amendment No. 83: Page 157, line 37, leave out ("a designated area") and insert ("an area of outstanding natural beauty or special scientific interest").

On Question, amendment agreed to.

Lord Hesketh moved Amendments Nos. 84 and 85: Page 157, line 39, after ("Commission") insert ("and, in the case of an area of special scientific interest, with the Nature Conservancy Council").

Page 157, line 47, at end insert— ("(5A) A consent or authorisation shall not be given on any such condition as is mentioned in subsection (5)(a) above except where the Secretary of State is satisfied that the condition will have effect in relation only to—

  1. (a) land which, or any interest or right in or over which, was acquired by—
    1. (i) the Authority;
    2. (ii) the water undertaker or sewerage undertaker in question; or
    3. (iii) any predecessor of the Authority or undertaker, either compulsorily or at a time when the Authority, undertaker or predecessor was authorised to acquire it compulsorily; or
  2. (b) land situated in a National Park, in the Broads or in an area of outstanding natural beauty or special scientific interest.").

The noble Lord said: My Lords, with the leave of the House I should like to move these amendments en bloc.

On Question, amendments agreed to.

Lord Hesketh moved Amendment No. 86: Page 158, line 14, after ("a") insert ("company holding an appointment as a").

On Question, amendment agreed to.

[Amendment No. 87 not moved.]

Lord Hesketh moved Amendment No. 88: Page 158, line 15, leave out ("a designated area") and insert ("an area of outstanding natural beauty or special scientific interest").

On Question, amendment agreed to.

Lord Norrie moved Amendment No. 89: Page 158, line 17, leave out ("and") and insert ("or").

The noble Lord said: My Lords, when I moved this amendment on Report I explained that it was a simple change with a moderate but important aim: to provide that when the Secretary of State considers whether to grant his consent to a land sale he should, in all cases, be bound by the general duties to the environment and recreation which are set out in Clause 8.

On that occasion my noble friend Lord Hesketh said that he had some sympathy with my concerns but that he felt my amendment went too far. He persuaded me to withdraw the amendment on the specific grounds, as he reminded your. Lordships' House, that the Secretary of State could by order designate areas of water industry land not falling within national parks or areas of natural outstanding beauty. He said that it was most important to keep that important power in mind. It was for that reason that my noble friend hoped I would not press the amendment.

I was therefore considerably disturbed, having been persuaded to withdraw the amendment, to see that the Government subsequently decided to withdraw the power to designate special areas. My noble friend Lord Caithness kindly wrote to me in an attempt to reassure me that the Bill would nevertheless provide full and effective protection for recreation. I am afraid that I cannot agree with that contention. It is now crystal clear that areas of lowland which may be of particular importance for recreation but which fall outside national parks and other special areas will have no protection whatever under the terms of the Bill should the land be sold. It is especially worrying that this type of land, now left starkly exposed by the way in which the Government have withdrawn their amendments, is the very land which is most likely to be sold off and developed by the water industry.

The remaining safeguard is that the Secretary of State must agree to the sale. But that is hardly reassuring when the Government are refusing to accept that the Secretary of State should be bound by duties to the environment and recreation when considering whether to grant his consent. My noble friend the Minister told me that the Government have had particular regard for the views of recreational interests in developing the code of practice and that the new water companies will have a positive incentive to provide for recreation. I still have doubts about the strength and efficacy of the recreation duties under the Bill. However, I acccept that the Government have moved a long way in extending protection for recreational interests on land in which the water industry has an interest.

My point is that such measures simply and abruptly end at the point where it is decided to sell the land. The decision itself is not even covered by the duties in the Bill. It is really no good to extol the virtues of protective measures when they can be ended by a simple conveyance.

Whether or not the power to designate areas of importance will return to the Bill, my firm belief is that the amendment is straightforward and reasonable, and one which the Government could accept without damage to the Bill or their privatisation plans. It does not aim to prevent land sales; it aims merely to bring recreational and environmental considerations into the decision-making process when land is sold. It does not go as far as the Government's principal measures in the clause which extends protection in perpetuity. In view of the change of circumstances, I hope that my noble friend the Minister will now tell me that he can accept my amendment. I beg to move.

Lord Renton

My Lords, I hope that my noble friend on the Front Bench will explain why it is that, having been persuaded at an earlier stage of the Bill to include a power to designate an area, he, or the Government, have now changed their mind. There may be a good explanation and I think that we deserve an explanation. In any event, apart from that point, if the amendment were to be accepted it would have the advantage that the proposal concerned would have to be one, or could be one, for which the Secretary of State's consent or authorisation is required. For those two reasons, I think that my noble friend Lord Norrie is entitled to a full answer from the Government on the important case that he has made.

Lord Hesketh

My Lords, the amendment from the noble Lord, Lord Norrie, is to require that the Clause 8 duties—more importantly the duty to further conservation of flora, fauna, natural beauty etc.—shall apply to the Secretary of State's consideration of all disposals, not simply those which are within the national parks, areas of outstanding natural beauty and other designated areas.

As I said on Report, we have some sympathy with the noble Lord's concerns, but I have to say to him again that we think that the amendment goes too far.

The Clause 8 duties, particularly the duty to further conservation, are onerous ones. We believe that it is a proper duty to maintain on the undertakers in performing their duties and managing their land; but the question is whether it should carry through in all circumstances to the term of each and every sale.

Let me make the Government's position clear. In national parks, areas of outstanding natural beauty and SSSIs (areas 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.

We must not forget the position elsewhere—redundant sewage works in urban areas, for instance. There may be urgent need to develop that land for housing, employment or other important social needs. The existence of SSSI designations will protect flora and fauna. Over and above that, to have a duty to further conservation would go too far and could prejudice decisions which may need to be taken about the future use and development of the land.

It remains our view that we must strike an appropriate balance here. 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 it is less appropriate, and could, as I say, inhibit proper consideration of all those other factors—housing, employment and urban renewal—which must also be weighed in the balance.

With the inclusion tonight of SSSIs we have increased the scope of the Clause 8 duties in ways which will be favourable to recreation and amenity as well as conservation.

Finally, my noble friend Lord Renton asked about the removal of the powers which we discussed on a pevious amendment. As I pointed out then, and perhaps I may do so again, that amendment is superseded by the government amendment which places a further 100,000 acres in perpetual protection. That would not have been the case had we not introduced the amendments. It is because we feel that we have superseded the special powers and not replaced them and because we still have the powers in regard to areas of outstanding natural beauty and sites of special scientific interest which can be extended to new and important sites that we believe that we have answered that part of the question. I hope that the noble Lord, Lord Norrie, may feel that in view of the various steps which we have taken he need not press his amendment.

10 p.m.

Baroness White

My Lords, before the noble Lord sits down, can he explain in what way the very valuable addition of so many acres of sites of special scientific interest will make a great deal of difference to the areas available for recreation? SSSIs as a rule—but not invariably—are not places in which recreation is strongly encouraged. They are protected from too much intrusion. That is not universally true; but it is true of a great many SSSIs. To my mind at any rate it is not of such significance as the Minister tried to indicate when we discussed the possibilities for recreation.

Lord Hesketh

In answer to the noble Baroness's question, I can immediately off the cuff give two examples: one is Rutland Water and the other is Grafham Water, which provide enormous pleasure to thousands of people.

Lord Norrie

My Lords, I am grateful to the noble Lord for his full explanation. Under the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hesketh moved Amendment No. 90:

Page 158, line 36, at end insert— (" "area of outstanding natural beauty or special scientific interest" means an area which—

  1. (a) is for the time being designated as an area of outstanding natural beauty for the purposes of the National Parks and Access to the Countryside Act 1949; or
  2. (b) is an area in relation to which a notification given, or having effect as if given, under section 28 of the Wildlife and Countryside Act 1981 (areas of special scientific interest) for the time being has effect;
and the reference in subsection (5)(c) above to an area of special scientific interest shall, accordingly, be construed as a reference to an area such as is mentioned in paragraph (b) of this definition; and").

[Amendment No. 91, as an amendment to Amendment No. 90, not moved.]

On Question, amendment agreed to.

Lord Hesketh moved Amendment No. 92: Page 158, line 38, leave out from ("1988") to end of line 47.

On Question, amendment agreed to.

[Amendment No. 93 not moved.]

Clause 160 [Duty to move pipes etc. in certain cases]:

The Earl of Caithness moved Amendments Nos. 94 to 96: Page 167, line I, at beginning insert ("Subject to subsections (2A) and (2B) below,").

Page 167, line 4, at end insert— ("(2A) Nothing in this section shall require a water undertaker or sewerage undertaker to alter or remove any pipe or apparatus which is kept installed in, under or over any street. (2B) A water undertaker or sewerage undertaker may make it a condition of complying with the duty to which it is subject by virtue of a notice served by any person under subsection (1) above that such security as the undertaker may reasonably require has been provided for the discharge of any obligation of that person under subsection (3) below.").

Page 167, line 9, at end insert— ("(3A) Where any sums have been deposited with a water undertaker or sewerage undertaker by way of security for the discharge of any obligation under subsection (3) above, 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. (3B) An approval or determination by the Director for the purposes of subsection (3A) above may be given or made in relation to a particular case or description of cases or generally and may be revoked at any time.").

The noble Earl said: My Lords, I beg to move Amendments Nos. 94, 95 and 96 en bloc. They are consequential upon Amendment No. 1.

On Question, amendments agreed to.

Clause 171 [Indemnities in respect of fluoridation]:

Lord Monson moved Amendment No. 97: Page 176, line 4, at beginning insert ("Subject to subsection (3) below").

The noble Lord said: My Lords, in moving Amendment No. 97, perhaps I may speak at the same time to Amendment No. 98, for which Amendment No. 97 is merely a paving amendment. Those noble Lords who were still around at about a quarter to eleven on Tuesday 13th June may remember that a number of noble Lords from various quarters of the House joined me in attempting to prevent taxpayers' money from being used to indemnify the privatised companies in respect of any costs or damages awarded against them by a court as a result of behaviour which resulted in an excessive amount of fluoride being added to the water supply.

In response, the noble Lord, Lord Hesketh, speaking for the Government, argued that the amendment as then drafted might catch a water undertaker who was accidentally responsible for a slight overdose. That was certainly not my intention. In the light of that possible ambiguity, I withdrew the amendment for further consideration.

The redrafted substantive amendment—that is to say, Amendment No. 98—will, I am sure, meet the Government's objections and those of certain Members of the Opposition Front Bench. The noble Lord, Lord Hesketh, argued at Report stage, at col. 1389 of Hansard, that although one milligram per litre was the optimal fluoride content, a content of slightly more than that level constituted absolutely no danger to health. That is why the Department of the Environment's standing technical advisory committee on water quality permits the content to fluctuate up to 10 per cent. above the optimum—in other words, to 1.1 milligrams per litre.

However—this is the important point to take on board—the Minister went on to concede that the standing technical advisory committee of the Department of the Environment stipulates that the fluoride content of the supply should never exceed 1.5 milligrams per litre. He revealed that this absolute maximum from the point of view of safety was also strongly endorsed by the World Health Organisation and by European Community directives relating to the quality of water intended for human consumption. Accordingly, we have modified the amendments so that they come into play, as it were, only when the fluoride content exceeds the absolute safe maximum, currently set at 1.5 milligrams per litre, as defined by these three prestigious organisations.

It is also important to note in this context that a recent addition of Probe, which is the journal of the General Dental Practitioners' Association, argues that the margin between a safe daily intake of fluoride and a potentially harmful one is impressively small. That is a further argument for keeping the maximum at 1.5 milligrams per litre.

We have further tried to accommodate the Government by substituting the word "negligence" for the word "actions". Eminent counsel, from whom I have taken legal opinion, tell me that to be negligent in legal terms one has to be very negligent indeed. This runs the risk that a statutory water undertaker may be able to secure taxpayers' support following an overdosing incident which a lay person would consider negligent, but which was not strictly negligent in law. All the same, this seemed a risk worth taking in order to render the amendment more acceptable to the Government, whom we are leaning over backwards to try to accommodate.

Your Lordships will also notice that we provide for the safe maximum level to be revised periodically in the light of new medical knowledge. On Report, I reminded your Lordships that asbestos had been considered not only safe but positively beneficial for over 100 years, until about 10 years ago. The same can be said of butter and other animal fats. One might add that sunbathing was considered safe and indeed beneficial until a mere five years ago. In contrast, it was revealed only two days ago that cigarettes are positively beneficial to people suffering from Alzheimer's disease; in other words, safety levels recommended by doctors and scientists are always in the process of fluctuating. The right people to set a safe maximum level, and the most impartial people to do so, are, I believe, the World Health Organisation. It is worth noting in this context that on 15th October 1984, the World Health Organisation published a communiqué warning of the great toxicity of fluorines and recommending that they should not be used when they could be avoided.

The European Community, 75 per cent. of whose members oppose fluoridation, as I pointed out on a previous occasion, might well set even lower safety levels. However, as someone who opposes excessive harmonisation within the EC, I did not wish to take advantage of that particular loophole, tempting though it was.

There is one more thing to be said in connection with this pair of amendments. Although it does not think the amendments go far enough, and it would much prefer the total deletion of Clause 171, the political party which won 15 per cent. of the votes at the recent Euro election, and which probably has the support of a further 15 per cent. for some of its less radical proposals, fully endorses these amendments. I am grateful for that support, but it is not for that reason but because I believe that these modest compromise amendments will act as an incentive to privatised water undertakers to be careful with the health and well-being of the people they serve, that I beg to move.

Lord Colwyn

My Lords, I had not intended to be tempted to get to my feet and say anything about this provision, as I do not think it is a good idea at this stage of the evening yet again to get into a fluoridation debate. With the greatest respect to the noble Lord who has moved the amendment, I feel that it would try the patience of the House if I, as a vice-president of the Fluoridation Society, were to reiterate the arguments in favour of fluoridation.

The amendment would reverse the effect of the new clause which the Government inserted at Committee stage which will indemnify the new water companies and enable them in some cases to continue using fluoride and in other cases to start using fluoride, without the danger of people who are not well informed seeking to sue them.

I should like to assure noble Lords that the supplementation of water supplies with fluoride to bring the level up to one part per million is probably the most widely researched and safest aspect of public health. Without going into the fluoridation argument, I urge your Lordships to reject the amendment.

Lord Stoddart of Swindon

My Lords, like the noble Lord, Lord Colwyn, I shall not go into the anti-or pro-fluoridation argument and I shall be brief. However, it seems to me that when certain subjects are discussed common sense goes out of the window. That seems to be the case here. All the amendment asks is that people who are careless of the public good should not be indemnified. All we say is that a water undertaking or employee who discharges considerably more than the recommended dose of fluoride into the water system should not be indemnified against being sued by a water consumer.

Anyone who has seen what happened at Camelford, where downright carelessness resulted in excess doses of aluminium, would surely agree that such negligence should not be indemnified by the Government. That is all the amendment asks. I should have thought that it was a commonsense amendment which the Government could accept and which this House ought to support.

Lord Hesketh

My Lords, I hope that I can persuade the movers of these amendments that they are unnecessary and should be withdrawn. As I have said to noble Lords on previous occasions, fluoridation in this country is carried out according to guidelines laid down by the Standing Technical Advisory Committee on Water Quality. Those guidelines impose an upper limit on the concentration of fluoride in the water supply resulting from a fluoridation scheme of 1.5 milligrams per litre. The upper limit allows a very wide margin of safety.

The guidelines provided for water undertakers require that the scheme should generally run at between 0.9 milligrams per litre and 1.1 milligrams per litre, and daily readings as high as 1.5 milligrams per litre would be most unusual. Water undertakers are obliged to keep within the guidelines, as the guidelines are written into the contracts which govern fluoridation schemes. If one of the daily readings shows a concentration of over 1.5 milligrams per litre the water undertaker will rectify this immediately by temporarily halting the supply of the fluoride compound. In fact, most of the plants operating in this country have systems which do this automatically.

It is important to put this whole matter in perspective. Short-term consumption of water fluoridated at levels over 1.5 milligrams per litre has absolutely no ill effects. Indeed, the United States Environmental Protection Agency has concluded that a permanent level of 4 milligrams per litre still allows an adequate margin of safety.

I can understand noble Lords' concerns that the negligence of a water undertaker should not be indemnified by the Secretary of State. I would, however, point out that the terms of any indemnity granted must, under this clause, be approved by the Treasury. I therefore see absolutely no need for this extra statutory restriction on the Secretary of State and I would ask that these amendments be withdrawn. I hope that the noble Lord, Lord Monson, will also see his way to withdrawing his amendment.

10.15 p.m.

Lord Monson

My Lords, I am grateful to all noble Lords who have spoken and, in particular, to the noble Lord, Lord Stoddart of Swindon, for his support. The noble Lord, Lord Colwyn, seemed to imply that this was an anti-fluoridation amendment. It is not. It is an anti-excessive fluoridation amendment.

We reluctantly—I admit—accept that Clause 171 is in the Bill, but it is excessive, dangerous fluoridation that we oppose. I find it hard to believe that the noble Lord, Lord Colwyn, thinks that it is no serious matter that excessive fluoridation should be tolerated, particularly bearing in mind the article in the journal of the General Dental Practitioners' Association to which I referred in my opening speech.

The noble Lord, Lord Hesketh, said that it was most unusual for the upper limit of 1.5 milligrams to be exceeded and that, if it was exceeded, the water supply would immediately be cut off. I am bound to say that that is reassuring, but I doubt whether there would be no ill effects. The World Health Organisation does not seem to think so, nor does the European Community or the Department of the Environment's own committee on the matter. American scientists may claim otherwise, but that is not the view generally held in this country or on the continent of Europe.

I originally intended to test the opinion of the House on the matter, but in view of the strong hint from the noble Lord, Lord Hesketh, that, were a privatised water undertaker to exceed that limit other than by a very small degree or on more than a very rare occasion and were it to be sued in consequence, the Treasury would refuse to grant consent for indemnity. That is the kind of thing that we want to hear. With that implied assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 98 not moved.]

Clause 190 [Local statutory provisions: consequential amendments etc.]:

The Earl of Arran moved Amendments Nos. 99 to 101: Page 193, line 4, leave out ("or amend") and insert (", amend or re-enact (with or without modifications)").

Page 193, line 8, at end insert— ("( ) make provision applying generally in relation to local statutory provisions of a description specified in the order;").

Page 193, line 30, after ("(6)") insert ("Subject to the provisions of Schedule 26 to this Act,").

The noble Earl said: My Lords, on behalf of my noble friend, I should like with the leave of the House to move Amendments Nos. 99, 100 and 101, en bloc.

These amendments are proposed in response to an amendment put down at Committee stage by my noble friend Lady Blatch. Amendment No. 100 makes provision for a general translation of water authorities' local statutory provisions to be made in an order under Clause 190 of the Bill. Amendment No. 99 enables water authorities' local statutory provisions to be consolidated, if appropriate. Amendment No. 101 qualifies subsection 6 of the clause to take account of the transitional provisions and savings in Schedule 26. If any noble Lord requires further clarification on the amendments, I shall most gladly give it. I beg to move.

Baroness Blatch

My Lords, I thank my noble friend the Minister for the changes.

On Question, amendments agreed to.

Clause 193 [Short title, commencement and extent]:

The Earl of Arran moved Amendment No. 102: Page 195, line 37, after ("1967,") insert ("the Capital Allowances Act 1968,").

On Question, amendment agreed to.

Schedule 1 [The National Rivers Authority]:

[Amendments Nos. 103 and 104 not moved.]

The Earl of Arran moved Amendment No. 105: Page 197, line 45, after ("No") insert ("member or other").

On Question, amendment agreed to.

The Earl of Arran moved Amendment No. 106: Page 198, line 16, after ("If") insert ("any person or ceasing to be").

On Question, amendment agreed to.

[Amendment No. 107 not moved.]

Schedule 2 [Schemes providing for the Initial Transfers]:

The Earl of Arran moved Amendment No. 108: Page 205, line 34, leave out from beginning to ("so") in line 37 and insert ("Where a scheme under this Schedule for the division of a water authority's property, rights and liabilities comes into force on the transfer date, this paragraph shall have effect on that date").

On Question, amendment agreed to.

Schedule 4 [Customer Service Committees]:

Lord Hesketh moved Amendment No. 109: Page 211, leave out lines 18 to 25.

The noble Lord said: My Lords, with the leave of the House in moving this amendment I propose to speak also to Amendment No. 143. The purpose of Amendment No. 143 is to provide for public access to meetings of the regional and local flood defence committees established under Clauses 136 and 138, to meetings of the NRA's regional rivers advisory committees established under Clause 2 and to meetings of the NRA's regional and local fisheries advisory committees established under Clause 140.

Schedule 4 paragraph 7 already provides for public access to meetings of the customer service committees by bringing these committees within the ambit of the Public Bodies (Admission to Meetings) Act 1960. Following on from the debate at report stage on public access to the NRA's committees, we have considered these issues and I am satisfied that the application of this Act to the committees listed is the most appropriate way of meeting the genuine concerns expressed by noble Lords that these committees should be open and accessible to the press and public.

Amendment No. 109 is a technical amendment deleting reference to the Public Bodies (Admission to Meetings) Act 1960 from Schedule 4 as this would no longer be necessary since customer service committees are covered by Amendment No. 143.

I commend these amendments to your Lordships. I beg to move.

Lord McIntosh of Haringey

My Lords, perhaps I may express my gratitude to the Government for these amendments which not only take up the points we raised at earlier stages but in fact extend them further than we asked. They are very welcome and a real extension of accountability for these committees.

On Question, amendment agreed to.

Schedule 5 [Transitional Provision on Termination of Appointments]:

The Earl of Arran moved Amendment No. 110:

Page 216, line 5, at end insert: ("( ) make provision applying generally in relation to local statutory provisions of a description specified in the order;").

On Question, amendment agreed to.

Schedule 8 [Sewerage Functions]:

The Earl of Arran moved Amendment No. 111: Page 226, line 16, at end insert ("and after the word "horticulture" in the words after paragraph (b) there shall be inserted the words "fish farming".").

On Question, amendment agreed to.

Schedule 10 [Provisions relating to Meters etc.]:

The Earl of Arran moved Amendment No. 112: Page 232, line 26, after ("premises") insert (", or any land occupied with those premises,").

On Question, amendment agreed to.

Schedule 12 [Consents to certain Discharges]:

The Earl of Arran moved Amendments Nos. 113 to 118:

Page 239, line 24, leave out from ("shall") to end of line 25.

Page 239, line 26, leave out ("in the prescribed form").

Page 240, line 1, leave out from ("Authority") to ("and") in line 4 and insert ("to consider any written representations or objections with respect to an application under this paragraph which are made to it in the period of six weeks beginning with the day of the publication of notice of the application in the London Gazette").

Page 240, line 34, leave out ("three") and insert ("four").

Page 243, line 3, leave out ("in the prescribed form").

Page 243, line 20, leave out from ("Authority") to ("and") in line 23 and insert ("to consider any written representations or objections with respect to a consent under this paragraph which are made to it in the period of six weeks beginning with the day of the publication of notice of the consent in the London Gazette").

The noble Earl said: My Lords, on behalf of my noble friend I should like with the leave of the House to move Amendments Nos. 113 to 118 en bloc. The amendments propose a number of technical changes to the procedure which the NRA is to follow under Schedule 12 in handling discharge consent applications.

Amendments Nos. 113 and 117 remove the requirement for the Secretary of State to prescribe in regulations the form of advertisement to be used by the NRA in advertising consent applications. We believe that the NRA is fully competent to decide this for itself and there is no need for the Secretary of State to make regulations covering it.

Amendment No. 113 removes the requirement that advertisement of an application should take place within two weeks. We believe that such a deadline could be quite unreasonable and impractical in certan circumstances.

Amendments Nos. 115 and 118 make clear that the six-week period referred to in paragraph 3 refers to the period within which they are to be made, not to be considered. In complex cases with representation coming towards the end of the six weeks, consideration may clearly need to extend longer.

Finally, Amendment No. 116 extends from three months to four months the period from the receipt of an application before which the application is deemed refused. For complex cases three months may simply be unreasonably tight, although we are sure that the NRA will make every effort to process applications quickly.

These amendments offer the NRA a little extra time and flexibility in the handling of consent applications. They prevent the Bill's requirements being—as we believe they might otherwise have been—unreasonable in some circumstances. I beg to move.

On Question, amendments agreed to.

Baroness Blatch moved Amendment no. 119: Page 246, line 6, after ("section") insert ("107(1)(a) or").

The noble Baroness said: My Lords, in speaking to Amendment No. 119, I should like to speak also to Amendment No. 120. I apologise for the fact that these amendments have not previously been tabled but I would have to say to my noble friend the Minister that this particular point has only recently been spotted.

Perhaps I may first welcome the provisions in the Bill at paragraph 9 of Schedule 12, which will enable the NRA to levy charges on the "polluter pays" principle: that is something I am sure all Members of your Lordships' House would agree with. As I understand the position, in practice the NRA would submit a draft charges scheme to the Secretary of State for his approval but before doing so there would be a requirement to advertise the draft scheme. Those not satisfied with it would be able to object. Ultimately it will be for the Secretary of State to decide who will be required to pay, and how much. The Bill, quite rightly in my view, affords adequate protection for those who are likely to be charged under such a scheme. However, as your Lordships will readily appreciate, the NRA or the Secretary of State will not be able to formulate a charges scheme which is outside the framework of the enabling legislation. It is therefore vital that Parliament should get the framework right; and this brings me to the specific amnement which is before the House.

As presently drafted, any charges scheme would have to be confined to levying charges on those who actually make a discharge, as is referred to in paragraph 9(2). In other words, the NRA could not seek to charge a person who merely had a consent to discharge but did not in fact take advantage of it in any particular year. For example, as regards storm overflow consent for a sewerage works which may be used only, say, once in five years, I believe that the NRA should be able to make a charge on the person who has the benefit of the consent, although he may not actually take advantage of it each year. The fact that he does not use it may very well be taken into consideration in fixing the charges under such a scheme. However, that is a quite separate issue and not part of the amendments. I do not think it is one with which the House should concern itself tonight. What is important is that the enabling legislation should be in place.

Coupled with this amendment goes an amendment to paragraph 9(2)(b), since, without the deletion of the word "specified" in the amenement, the NRA would be able to charge only the original person to whom the consent had been granted. However, as the House will be well aware, COPA consents run with the land, so they last for many years. Some which are still in existence today are 30 or 40 years old. Inevitably during those years the ownership or occupation of such land to which the consent relates changes. Clearly the intention here was that the holder for the time being of the consent should be liable to pay, rather than simply the original person.

By accepting these amendments, and in particular Amendment No. 119, it would at least be possible to identify a person whom the NRA knew was entitled to be charged. That would give that same person an incentive to notify the NRA if someone else was actually making the discharge. My Amendment No. 120 would ensure that the appropriate person was charged. These are two very important amendments and I hope that my noble friend will see fit to accept them. I beg to move.

The Earl of Arran

My Lords, these amendments would seem to address two separate issues: the first concerns the power of the NRA to charge for the use of a discharge consent. We accept that a problem clearly can arise if the NRA is not sure who has actually been using a consent. Under these amendments it would not be able to seek out the actual discharger. Instead it could impose the charge on anyone with a right to make use of the consent concerned. This would hardly be fair. Moreover, in so far as it encouraged the NRA to take a cavalier attitude to the identity of the actual discharger, it would have unacceptable implications for pollution control. If the NRA is to be able to prosecute the discharger for breaching the conditions of a consent, it will need to know who the discharger is. It would do the NRA no good to bring a prosecution against an innocent third party simply because that third party was entitled to use the consent.

The second issue to which these amendments relate is the case of discharge consents used on a most infrequent basis. Clearly it would be impossible to levy an annual charge for the use of such consents for those years in which the consents were not used. These amendments would instead allow charges to be levied for the mere right to use a consent. However, where consents were not used, the NRA would not need to carry out a monitoring programme in respect of which it would need to recover its costs. In any event, if there were some reasons why the NRA might incur costs in respect of consents not in use, it could always revoke them and grant new ones later when they were actually needed.

What my noble friend has identified are not defects in the Bill. They are the consequence of what is and has long been an essential feature of pollution control legislation—namely, that consents refer to the making of a discharge and do not limit to a named individual the right to discharge. Were we to tie consents to named individuals the whole structure of the legislation would need to change. Inescapably, therefore, we cannot follow the course of charging those who have a right to discharge, but must charge those actually making the use of a discharge consent at a particular time. As I have said, we believe that this is perfectly practical and need not cause any insuperable administrative difficulty. For these reasons, I hope my noble friend will not find it necessary to press these amendments.

Baroness Blatch

My Lords, I am disappointed with that reply. It seems to me that the person receiving the consent—that is, the person with the ownership of the consent—needs to be vigilant about how that consent is discharged or, in other words, about who will use it. I am absolutely in agreement with my noble friend the Minister that, whoever the polluter is, he should be penalised if the pollution is in breach of a consent or if it is unauthorised. But I should like to think that the owners of a consent would be as vigilant as possible about the way in which it was used.

My other amendment, which is intended to make sure that the appropriate person is charged, seems to me to be a very fair amendment. Ownership of land changes and a previous owner of 30 or 40 years back seems to me to be the most inappropriate person to be charged. I am very disappointed that my noble friend the Minister cannot accept the second amendment.

This is a Third Reading. I do not intend to press the amendments, but I nevertheless record my disappointment.

Amendment, by leave, withdrawn.

[Amendment No. 120 not moved.]

Schedule 13 [Amendments of the Water Resources Act 1963]:

[Amendment No. 121 not moved.]

Schedule 14 [Drought Orders]:

10.30 p.m.

The Earl of Arran moved Amendment No. 122: Page 259, line 15, leave out from first ("of') to ("for") in line 18 and insert ("a power to make discharges of sewage effluent or trade effluent in pursuance of any consent shall be made by the applicant for the order to any person who has been exercising that power").

On Question, amendment agreed to.

Schedule 16 [Boundaries of Regional Flood Defence Areas]:

Lord Hesketh moved Amendments Nos. 123 to 125:

Page 271, line 39, leave out ("public authority which") and insert ("person carrying out functions under any enactment who").

Page 272, line 8, leave out ("public authority (if any) on which") and insert ("person (if any) on whom").

Page 272, line 17, leave out ("public authority which") and insert ("person who").

The noble Lord said: My Lords, these amendments reflect points raised in the House by my noble friend Lady Blatch. By substituting the rubric "persons carrying out functions under any enactment" for the existing references to "public authorities", they will extend the range of bodies which will have to be notified. To take an example, if the NRA wishes to seek the Secretary of State's approval for a by-law under Clause 113 affecting a water undertaker's reservoir it will, as a consequence of these amendments, have to serve notice of its intention on the undertaker. Clearly, it is right that an undertaker should be notified in such a case. I therefore ask the House to accept these amendments.

On Question, amendments agreed to.

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

The Earl of Radnor moved Amendment No. 126: Page 284, line 28, after ("only") insert (''except in the circumstances specified in sub-paragraph (5) below, after the consent of every owner and occupier of the land where the power is to be exercised has been given, which consent shall not be unreasonably withheld and any question whether such consent is or is not unreasonably withheld shall be referred to and determined by the Secretary of State; in the circumstances specified in sub-paragraph (5) below").

The noble Earl said: My Lords, in moving Amendment No. 126, I shall speak also to Amendment No. 127, which ties in with it. It is important to speak to the two together. The amendments alter the rules in the Bill concerning the entry of plcs on to private land to lay pipes. Clearly, under the Bill they may give reasonable notice and then carry on with the job.

Under the amendment the onus is upon them to receive the consent of the owner and the occupier, which consent is not to be unreasonably withheld, before they may enter the land. If consent is considered to be unreasonably withheld, there is a referral to the Secretary of State.

In the following amendment three exceptions are allowed for, at least two of which were raised by my noble friend on Report. The first is an emergency which may be connected with health or any other matter. It would then be unreasonable to have to wait for the consent of the owner or the occupier. The second is a requisition under the Act which is also understandable. The third and new element which I have introduced in the amendment since Report is a requirement that, should there be multiple negotiations which would make life too difficult for the pipe layer in carrying out the job, the Secretary of State can certify that reasonable notice is enough. I have included that requirement in the amendment particularly because my noble friend Lord Caithness mentioned the ring main around London.

Although at Report stage I was not taken aback, I did not then know much about the ring main around London. However, I have now found out a little about it. On average it travels 30 metres below ground and in most cases the rising mains come up on what will be plc property. They then join up to existing distribution points. I accept that there must be difficulties and extremely difficult occasions when it would be impossible for the plcs to negotiate with too many people. Again, that matter is dealt with in the amendment.

As I said on Report, from 1945 to 1974 the rules were much as they are in the amendment and they worked well. Since 1974 they have not worked particularly well. I am sure that they were put there with the best of intentions, but reasonable notice has not proved to be reasonable in any way whatever. In the country there have been difficulties with timing, planning, payment, reinstatement and all the matters that would have been better put right before the pipe layer ever entered the property.

I have read carefully the model code of practice. In its essential part it states exactly the same as is stated in the Bill. It is only a model code and under "Notice of Works" it states that: the undertaker shall as soon as reasonably possible endeavour to make contact with all owners and occupiers". That is part of the trouble about which we are talking.

If your Lordships would like a comparison then look at the gas pipelines. I should have declared an interest, as should most noble Lords who are concerned with land. I have a number of pipes of one kind or another under my land and recently I had close experience of the ring main which carried gas around England in a distributor main. I looked at the letters from the agents of the gas authorities and they all begin by asking for consent.

It is not only one-way traffic. The fact that there is negotiation and consent is requested often leads to the situation where the owner and occupier can be of help to the company in giving local and practical knowledge. I make no excuse for repeating the fact that this concerns not only big farms and estates but also small pieces of land.

I also make no excuse for repeating the case of Mr. Hatton who on 30th March was given notice that a pipe would be run through his bungalow. It was run through on 2nd May and the bungalow was destroyed. Rightly he was very upset and took the Esher Urban District Council to court. The action of the district council was upheld because it was considered that that was reasonable notice. So far as I am concerned that example alone is enough to alter this part of the Bill in the way that I have outlined. I beg to move.

Lord Middleton

My Lords, the issue is very simple; namely, whether the water companies should remain the only public utilities with compulsory powers to enter land or premises through which pipes are to run. There is nothing new in saying that they should not, and this amendment says that they should not except in emergencies or in special circumstances.

There is nothing new about that because, as my noble friend Lord Radnor reminded the House, the Water Act 1945 provided that entry onto land or premises to lay pipes required the consent of the owner or occupier. An order made nearly 30 years later gave the water authorities a much wider power to enter without consent after merely giving reasonable notice. Schedule 19 to the Bill transfers that power to the water companies, and that is what we object to.

I moved an amendment in Committee requiring the water companies to seek agreement, as under the 1945 Act. The amendment provided that in an emergency or when a pipeline is being laid to comply with a requisition under the Act, then there would merely have to be reasonable notice so that fast action could be taken.

The Government's objection at that stage was that, unlike British Gas and the oil companies, which operate very satisfactorily and without friction by consent, the water companies are operating in the realms of public health and therefore require compulsory powers. In Committee, we were also told that to avoid the conflict and grievances which have arisen under the post-1974 powers of entry, the Government propose a mandatory code of practice to regulate the behaviour of water companies which would also have to move pipes if they were put in the wrong place.

Like my noble friend Lord Radnor, I felt that a code of practice was not a sufficient safeguard and that it is much too late to be able to have pipes moved after they had been mislaid—if that is the right expression—or after some disastrous mistake had been made. All that could surely be avoided by proper consultation in the first place. It was my view that the Government's objections were taken care of by my amendment which I, nevertheless, withdrew for further consideration.

My noble friend Lord Radnor reminded us that on Report he moved a similar amendment which was given support from all sides of the House. In his reply my noble friend Lord Caithness recognised the problems which have arisen through the arbitrary exercise of entry powers by the water authorities. My noble friend Lord Radnor quoted the extreme case of the Esher Urban District Council which wished to lay a pipe through the unfortunate Mr. Hatton's bungalow. It gave notice on 30th March and entered on 2nd May. The pipe was laid and that is the end of Mr. Hatton's bungalow, which was destroyed in the process. There were no negotiations and no consent although the UDC gave a month's notice. As my noble friend reminded us, that action was upheld by the courts.

On Report, the Minister reiterated the public health argument and the need for speedy action in an emergency. In my view that was allowed for in my noble friend's amendment on Report. However, the Minister produced a further argument which was cogent; namely, that where there is an undertaking like the London ring main involving a multitude of urban properties, it could hardly be expected to negotiate and reach agreement without enormous delay. I believe that my noble friend was right to recognise the force of that argument and to withdraw his Report stage amendment.

This amendment, as my noble friend reminded us, allows for other circumstances and these would surely cover a scheme such as the London ring main where the consent of the Secretary of State could be sought by the water companies in order to avoid delay. I very much hope that the Government will now be able to accept this amendment which cuts down what I and many noble Lords think are unacceptable arbitrary powers but which still allows for emergencies and special operations. I support my noble friend wholeheartedly.

10.45 p.m.

Lord Renton

My Lords, there are strong practical reasons why reasonable notice should be given before there is entry on land for any of the purposes envisaged in this schedule; for example, growing crops, the presence of cattle, and various other work being carried out on the land. That is in addition to the ordinary courtesies expected in a civilised society.

As my noble friend Lord Middleton mentioned, and as the Government mentioned at an earlier stage, there are cases where it is difficult to identify all the owners. That applies not only in the case of urban land, as my noble friend mentioned, but, as I remember very well, on the fens. After the fens were drained over 100 years ago, part of them—a part I know well—was divided into fairly small plots and to this day it is not easy to identify the owner of each plot. As I understand it, my noble friend Lord Radnor has accepted that position. Although I am one of those people who regret having to go into too much detail in legislation, this paragraph of the schedule has gone into a great deal of detail and we might as well try to get it right.

Subject to what my noble friend on the Front Bench might say, I feel that the amendment moved by my noble friend Lord Radnor is a very wise attempt to try to get it right. I therefore hope that these amendments will receive sympathetic consideration.

The Earl of Balfour

My Lords, I am concerned about one aspect of the amendment. I hope I have read it correctly. I draw your Lordships' attention to paragraph 5 of Schedule 19, on page 284, dealing with stopcocks. I have the impression from reading the amendment that it might prevent an undertaker from even putting in a stopcock on private land. That is of concern to me because stopcocks need to be put in and often changed.

Lord Monson

My Lords, now that the noble Earl, Lord Radnor, has revised and watered down this pair of amendments to make them more acceptable to the Government I very much hope that the Government and the House will accept them. They would merely restore the position to what it was 15 years ago, prior to 1974, as the noble Earl reminded us.

Over the past 10 years the present Government have encouraged private individuals to stand on their own two feet. Most people would consider that by and large to be a good thing. However, the corollary is that private enterprise companies should also stand on their own two feet. Unfortunately, as the Bill stands, the private water companies are given the go-ahead to stand on other people's feet—and very heavily at that.

We are meant to be reassured by the promise of a code of practice but, as with estate agents, a code of practice has no legally binding force and leaves the way open for the less considerate and the less scrupulous to ride roughshod over the rights of individuals. This is particularly unsatisfactory where profit-making private enterprise firms are concerned. Platitudes about the public interest do not alter this fact. I hope that the Government will see the justice of the amendment. If, by some misfortune, they do not, I hope that the noble Earl will stick to his guns.

Lady Saltoun of Abernethy

My Lords, some years ago in a similar situation I supported amendments to the Telecommunications Bill. Eventually, a government amendment was concocted which met our concerns. I wonder why the Government are being so inflexible this time. Exactly the same situation has arisen with the Electricity Bill. Perhaps the fact that different government departments have been involved with these Bills has something to do with it. Government departments do not get together very often to compare notes. That may be a reason why past experience does not seem to have had any effect in this instance.

Lord Carter

My Lords, I am pleased to add my support to the amendment. It seems to meet all the points and objections made by the Government on this subject during previous stages of the Bill. It seems to protect the rights that should be protected while giving the Secretary of State all the rights that he needs. It seems to strike the correct balance between private rights and public duties.

While listening to the problem concerning the London ring main, and having read the second amendment, Amendment No. 127, it occurred to me that I am involved in the farming of some land which is subject to a lease drawn up in the 17th century. The Secretary of State would have some difficulty in identifying all the owners of the land in that case. This amendment meets such a difficulty. I am extremely pleased to support it.

Lord Addington

My Lords, from these Benches I should like to support the amendments for the simple reason that they seem to be fair and reasonable. The fact that if too many owners were involved or there was an emergency the consents would not have to be sought should cover everything. The owner should at least have the right to be consulted if somebody is going to enter his land.

The Earl of Caithness

My Lords, this is the third occasion on which we have debated this issue during our consideration of the Bill. I have to say that, although I very much appreciate that my noble friend Lord Radnor has again tailored his amendment to meet the remarks I made on Report, the effect of his latest amendment would be to impose extremely cumbersome arrangements on the Secretary of State and water and sewerage undertakers which would to a large extent defeat the object of the pipe laying powers.

The Secretary of State would be required by the amendment to determine whether it would be exceptionally difficult to obtain within a reasonable time the consent of every owner and occupier of the land where the power is to be exercised. In many cases the Secretary of State would be able to satisfy himself that this was so only after a lengthy process involving independent advice. This would be a time-consuming exercise which would offer scope for significant delays in pipe laying operations. The purpose of the powers to lay pipes on notice is to enable water and sewerage undertakers to put in place the infrastructure, often to meet public health needs, without the constraints that would be imposed if they were required to seek the agreement of all landowners concerned or use compulsory powers. The amendment would, I fear, open the undertakers to ransom demands from certain landowners—I agree not all—who would be willing to allow pipes to be laid on their land, but only at a price.

The more I look at the amendment—I have looked at it again while noble Lords have been supporting it—the more I feel that it would impose on any Secretary of State a most onerous burden and would place him in an invidious position. It would also open up a Pandora's Box of difficulty and potential objections arising from the Secretary of State deciding that he should exercise his power and the land owners saying that that was totally unreasonable and that they were just about to agree in any case. That would only lead to further delays and complications.

I appreciate that in raising this issue again my noble friend is concerned to ensure that the interests of landowners are fully protected. Indeed, I think that Members of the House, from all quarters, are equally concerned about the matter. However, as I explained on Report, we believe that the new provisions in the Bill provide the protection that landowners have a reasonable right to expect: they ensure that the powers are not abused.

The powers are to be subject to a statutory code of practice to be submitted by the private companies to the Secretary of State for approval. These codes will be mandatory. I think that the noble Lord, Lord Monson, said that such powers would not be mandatory. I must correct him on that point. These codes will be mandatory and the powers will be subject to the oversight of the director general. In addition, there is provision 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.

The interests of landowners are further protected by the provisions in Clause 160 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. 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. An undertaker will be able to recover its reasonable expenses.

I know from what has been said, the strength of feeling that there is about these powers. My noble friend Lord Middleton said that the water undertakers would be the only undertakers with such powers. They are, however, essential if water and sewerage undertakers are to be able effectively to meet the operational and public health responsibilities placed on them and to enable them to comply with EC requirements.

The noble Lady, Lady Saltoun, asked why this legislation appears to be different from the Telecommunications Act. I covered that aspect at some length during the earlier stages of the proceedings on the Bill. However, perhaps I may just repeat that I remember acting for and against water authorities where they were laying pipes under the Public Health Act 1936—rather than subsequent legislation—for the very reason of having to meet a public health concern. My right honourable friend the Secretary of State, my honourable friend the Minister for Water and Planning and myself have been at pains to amend the Bill so as to take into account such concerns. I realised at first hand, when I was a land agent, that the concerns which landowners faced were very real. However, having considered the matter we think that it is right that they should still have such powers; but they are substantially different from the powers under which the water authorities would have acted in the case of which my noble friend Lord Radnor reminded us.

There has been a major and fundamental step forward. I believe that, with the new provisions we have included in the Bill, we have now struck the right balance between the need to ensure that landowners' interests are protected and the reasonable needs of undertakers.

Lady Saltoun of Abernethy

My Lords, before the noble Earl sits down, can he say whether the code of practice will be enforceable in a court of law?

The Earl of Caithness

My Lords, as I said, the code of practice will be mandatory and the powers will be subject to the oversight of the director general rather than the courts.

The Earl of Radnor

My Lords, I am most grateful to all noble Lords from all quarters of the House who have given their support to the amendment. I must confess that I am not convinced by my noble friend's explanation about how difficult it would be as regards time, and about the difficulties that the Secretary of State would face.

While my noble friend was speaking, I read the amendment again very carefully. I just cannot see anything there as regards what he said, except that his explanation is an exaggeration of what might happen. I still make the comparison with gas and all the other concepts which work perfectly well in practice, and which are reasonable, far more democratic and sensible than that which is written into the Bill. What is written in the Bill will not lead to efficiency; indeed, there is a danger that it will lead to inefficiency and petty arrogance. On that note, I must ask for the opinion of the House.

11 p.m.

On Question, Whether the said amendment (No. 126) shall be agreed to?

Their Lordships divided: Contents, 62; Not-Contents, 53.

Addington, L. [Teller.] Knutsford, V.
Airedale, L. Llewelyn-Davies of Hastoe, B.
Alport, L. McCarthy, L.
Blackstone, B. Longford, E.
Blease, L. McIntosh of Haringey, L.
Blyth, L. McNair, L.
Callaghan of Cardiff, L. Mason of Barnsley, L.
Carmichael of Kelvingrove, L. Middleton, L.
Carter, L, [Teller.] Monk Bretton, L.
Chorley, L. Monson, L.
Cledwyn of Penrhos, L. Moran, L.
Cocks of Hartcliffe, L. Murray of Epping Forest, L.
Craigavon, V Nicol, B.
David, B. Pitt of Hampstead, L.
Dormand of Easington, L. Ponsonby of Shulbrede, L.
Elliot of Harwood, B. Prys-Davies, L.
Ewart-Biggs, B. Radnor, E.
Falkland, V. Raglan, L.
Gallacher, L. Rea, L.
Galpern, L. Ross of Newport, L.
Gibson, L. Saltoun of Abernethy, Ly.
Gisborough, L. Sefton of Garston, L.
Graham of Edmonton, L. Somerset, D.
Grey, E. Stanley of Alderley, L.
Hacking, L. Stoddart of Swindon, L.
Hampton, L. Strabolgi, L.
Hatch of Lusby, L. Underhill, L.
Hirshfield, L. Winchilsea and Nottingham, E
Irvine of Lairg, L.
Kennet, L. Winstanley, L.
Kilbracken, L. Wynford, L.
Kirkhill, L.
Alexander of Weedon, L. Henley, L.
Allenby of Megiddo, V. Hesketh, L.
Arran, E. Hives, L.
Balfour, E. Hooper, B.
Belstead, L. Johnston of Rockport, L.
Blatch, B. Joseph, L.
Boardman, L. Kenilworth, L.
Borthwick, L. Kimball, L.
Brabazon of Tara, L. Lindsay and Abingdon, E.
Brougham and Vaux, L. Long, V.
Caithness, E. Mackay of Clashfern, L.
Campbell of Alloway, L. Mersey, V.
Carnegy of Lour, B. Montgomery of Alamein, V
Carnock, L. Morris, L.
Colwyn, L. Mowbray and Stourton, L.
Craigmyle, L. Munster, E.
Crathorne, L. Norrie, L.
Davidson, V. [Teller.] Oxfuird, V.
Denham, L. [Teller.] Sanderson of Bowden, L.
Dundee, E. Skelmersdale, L.
Elliott of Morpeth, L. Strathcarron, L.
Ferrers, E. Strathclyde, L.
Fraser of Carmyllie, L. Thomas of Gwydir, L.
Glenarthur, L. Trafford, L.
Gridley, L. Trumpington, B.
Haig, E. Young, B.
Harmar-Nicholls, L.

Resolved in the affirmative, and amendment agreed to accordingly.

11.8 p.m.

The Earl of Radnor moved Amendment No. 127:

Page 284, line 32, at end insert— ("(5) The circumstances in which powers shall be exercised only after reasonable notice as provided in sub-paragraph (4)(a) above are—

  1. (a) in an emergency; or
  2. (b) when a pipe is laid in order to comply with a requisition under this Act; or
  3. (c) where the Secretary of State determines it would be exceptionally difficult to obtain within a reasonable time the consent of every owner and occupier of the land where the power is to be exercised and so certifies.").

On Question, amendment agreed to.

Schedule 20 [Orders conferring Compulsory Works Powers]:

The Earl of Caithness moved Amendment No. 128: Page 289, line 36, after ("copy") insert (", together with a plan showing the general effect of the draft order so far as it relates to the footpath or bridleway,").

The noble Earl said: My Lords, in moving this amendment I am also speaking to Amendments Nos. 130 to 134. These amendments follow an undertaking I gave to the noble Lord, Lord Gallacher, at Report stage, to consider further the amendments he proposed to Schedule 20 to the Bill. I beg to move Amendment No. 128.

Lord Gallacher

My Lords, I thank t he noble Earl for these amendments and for implementing the promise he made at Report stage.

On Question, amendment agreed to.

[Amendment No. 129 not moved.]

The Earl of Caithness moved Amendments Nos. 130 to 144: Page 290, line 31, leave out ("and").

Page 290, line 36, at end insert— ("(f) such other persons as may be prescribed.").

Page 290, line 52, at end insert ("and of any relevant map or plan").

Page 291, line 15, at end insert— ("(4) Where, on an application for an order under section 154 of this Act, the appropriate Minister refuses to make an order, the applicant shall, as soon as practicable after the refusal, notify the refusal to every person on whom the applicant was, by virtue of paragraph 1(1)(c)(i) above, required to serve a copy of the notice with respect to the application. (5) The duty of a water undertaker under sub-aragraph (4) above shall be enforceable under section 20 of this Act by the Secretary of State.").

Page 291, line 45, at end insert—

("Notice after making of order

4A.—(1) As soon as practicable after an order under section 154 of this Act has been made, the applicant for the order shall—

  1. (a) publish a notice of the making of the order, at least once in each of two successive weeks, in one or more newspapers circulating in each relevant locality; and
  2. (b) not later than the date on which that notice is first published—
    1. (i) serve a copy of the notice on every person on whom the applicant was, by virtue of paragraph 1(1)(c)(i) above, required to serve a copy of the notice with respect to the application for the order;
    2. (ii) in the case of an order authorising the stopping-up or diversion of a footpath or bridleway, cause such a copy, together with a plan showing the general effect of the order so far as it relates to the footpath or bridleway, to be displayed in a prominent position at the ends of the appropriate part of the path or way.

(2) The notice required by virtue of sub-paragraph (1)(b) above to be published with respect to an order under section 154 of this Act shall—

  1. (a) state the general effect of the order;
  2. (b) in the case of an order made wholly or partly for the purpose of enabling any discharges of water to be made—
    1. (i) contain particulars of the discharges, stating the purposes of the discharges and specifying each place of discharge;
    2. (ii) specify the places at which the water to be comprised in the discharges is to be taken and the treatment (if any) which the order requires the water, or any of it, to receive before being discharged under the order;
    3. (iii) state the effect which, in the opinion of the applicant, the discharges would have on the flow, level and quality of water in any inland water or underground strata; and
  3. (c) specify a place where a copy of the order and of any relevant map or plan may be inspected by any person free of charge at all reasonable times.

(3) Where an order under section 154 of this Act has been made, the applicant for the order shall, at the request of any person and on payment by that person of such charge (if any) as the applicant may reasonably require, furnish that person with a copy of the order and of any relevant map or plan.

(4) The duties of a water undertaker under this paragraph shall be enforceable under section 20 of this Act by the Secretary of State.

(5) In this paragraph "relevant locality", in relation to an order made under section 154 to this Act, means—

  1. (a) any locality which is affected by any provision made by the order for the purpose of enabling any engineering or building operations to be carried out; and
  2. (b) where provision is made by the order for the purpose of enabling discharges of water to be made, each locality in which the place of any of the discharges is situated or in which there appears to the applicant to be any inland water or underground strata the flow, level or quality of water in which may be affected by any of the discharges.").

Page 292, leave out lines 8 to 23.

Schedule 22, page 303, line 46, leave out ("it is") and insert ("they are").

Page 306, line 48, after ("(d)") insert ("may,").

Schedule 23, page 312, line 1, leave out from ("(b)") to ("make") in line 2.

Page 313, line 34, after ("above") insert (", or in a notice under section 104 of the Water Act 1989,").

Schedule 24, page 339, line 41, leave out ("public authorities") and insert ("persons carrying out functions under any enactment").

Schedule 25, page 342, line 48, leave out ("Schedule 10") and insert ("Schedules 10 and 20").

Page 345, line 51, leave out ("under section 100(3)") and insert ("made for the purposes of section 100(2)(c)").

Page 352, line 12, at end insert—

("The Public Bodies (Admission to Meetings) Act 1960 (c.67)

In paragraph 1 of the Schedule to the Public Bodies (Admission to Meetings) Act 1960 (bodies to which Act applies in England and Wales), at the end there shall be inserted the following sub-paragraphs—

  1. "(i) regional and local flood defence committees;
  2. (j) advisory committees established and maintained under section 2 or 140 of the Water Act 1989;
  3. (k) customer service committees established and maintained under section 6 of that Act.";
and the functions of those committees shall be regarded as public functions for the purposes of that Act.").

Page 368, line 30, at end insert— ("( ) Part XIII of that Act (arrangements and reconstructions) shall have effect in relation to statutory water companies that are not limited companies with such modifications as may be prescribed; and in this paragraph "statutory water companies", in relation to any time before the transfer date, has the same meaning as in the 1973 Act.").

The noble Earl said: My Lords, I beg to move Amendments Nos. 130 to 144 en bloc. I believe they have all been spoken to.

On Question, amendments agreed to.

Schedule 26 [Transitional Provisions and Savings]:

The Earl of Caithness moved Amendment No. 145:

Page 383, line 17, at end insert— ("(7) Where the rights and liabilities in respect of any such consent are transferred to a water authority's successor company in accordance with a scheme under Schedule 2 to this Act and the conditions of that consent include one or more of the following, that is to say—

  1. (a) a condition that requires that authority to take samples of any matter discharged;
  2. (b) a condition that requires that authority to furnish any person with information about samples taken by that authority; or
  3. (c) a condition that is contravened where there is a failure by more than a specified number of samples taken by that authority to satisfy specified requirements,
then any such condition as is mentioned in paragraph (a) or (b) above shall cease to have effect on the transfer date and any such condition as is mentioned in paragraph (c) above shall have effect on and after that date as if any samples taken on behalf of the Authority in exercise, at any time on or after that date, of a power conferred by this Act, but no other samples, were the samples falling to be taken into account for the purposes of that condition.").

The noble Earl said: My Lords, Amendment No. 145 invites the House to do two things. The first is to make amendments to the terms of existing consents for sewage treatment work discharges and to eliminate references to water authorities themselves taking samples of the effluent discharge which could be inappropriate to apply to the private sewerage undertakers. After the transfer date it will be for the NRA to take such samples. The second is to put beyond doubt that where a work's compliance is judged by a programme of samples taken over a relevant period, on and after the transfer date, only samples taken by the NRA shall count as a basis for prosecutions of the new companies. In other words, the new bodies and their staff shall not be liable for acts and omissions of their predecessor bodies.

Amendment No. 146, standing in the name of the noble Lord, Lord McIntosh, seeks in short to achieve the opposite effect to the government amendment. In retrospect, the Government should perhaps have foreseen that, as this amendment touches on controversial issues, it would evoke more controversy than the normal run of transitional provisions, even though it is a simple, fair, natural, and indeed inescapable proposal.

However, in the light of the disproportionate response it has evoked, and the noble Lord's counter amendment, I clearly cannot now limit myself to the brief factual account I had intended. The record must be set straight, and I must therefore ask your Lordships to be a little patient with me, even at this late hour, so that I can deal with some of the wilder accusations which have been raised.

Let me deal first of all with the accusation that this is some ploy, furtively slipped in at the last moment, to assist privatisation. Yes, it does come at the last moment but that is the inevitable fate of a transitional provision, especially one which applies not to the primary legislation, not even to secondary legislation, but to instruments made under it. Maybe, even in a Bill of this great scope, we should have got every detail right and overlooked nothing, however detailed and remote. But the impossibility of that is part of the need and justification of your Lordships' House, and I see no need to apologise for troubling the House with this matter.

Let me now turn to the real matter of substance. I shall not long delay the House on the first two provisions of the amendments. These simply disapply from consents certain provisions concerning monitoring and reporting by the water authorities. It is surely utterly self-evident that, with the establishment of the NRA, it would not be appropriate for the undertakers to take their own samples and to report on their own performance to the Secretary of State. Consequently, these provisions should go.

The remaining provision deals with circumstances where compliance with discharge consent standards is assessed over a series of samples taken over a 12-month period, for instance the look-up table system used for sewage treatment works discharges. All it does is to secure that the new company shall be liable only in respect of discharges it makes. In other words, the relevant period for assessment of compliance shall begin with the establishment of those companies. The effect of this is no more than to secure the operation of basic natural justice, that new companies shall not be liable for actions of a different corporate body and its different executives and directors some 12 months previously, going back even before legislation to establish those companies was published, let alone enacted by Parliament.

I ask one simple question: how could we ever have contemplated that we could, in fairness and propriety, consider any other possibility? And of course, we did not, The provision before your Lordships simply makes clear that the ordinary principles of justice are to apply and reflects the implications of paragraph 58 of Schedule 26 that criminal liability does not pass to the successor bodies.

Be all that as it may, it is said that the principle produces unacceptable results, that the companies have "immunity" for a year, that the NRA is crippled at birth, and other such unrealistic arguments. These bear no relationship to the facts. There are four principle reasons for this. First, and most important, there will be no immunity in the early stages of the companies' life. It is quite wrong to suggest that the companies will be able to discharge what they like and get away with it. Companies will have to comply with the terms of their consent conditions from the outset, and failures will go on the public registers. Non-complying samples will clock up against them. They will not be discounted. If the record reveals non-compliance over the sampling period, the NRA will be able to bring prosecutions in respect of breaches of the discharge consents for that period.

Secondly, discharge consents for all works now non-compliant, or at a high risk of non-complying, which are varied for the period improvement works are in progress, will in any case include so-called "upper tier" limits. This is a new environmental safeguard, a single breach of which—I repeat, a single breach of which—will open 1 he company immediately to the risk of prosecution. As well as being an important environmental safeguard, this will provide the NRA with a new enforcement mechanism for these works.

Thirdly, in the case of all the other works with no history of non-compliance, it is unlikely that samples taken by the water authority before the transfer date would have any significance for prosecution purposes. It is true that the NRA would need to take samples over a 12-month period before bringing a prosecution, but it is the position now that compliance for sewage treatment works has to be assessed retrospectively over a 12-rrionth period. There is nothing new in that. In practical terms we must remember that prosecution is a tool of last resort. While this will be a matter for the NRA, early evidence of non-compliance is likely to be a trigger for investigation and discussions with the discharger. The NRA, under its normal enforcement policy, would want to go through a number of stages, including warnings, before contemplating prosecution.

Finally, the Secretary of State is enabled under paragraph 6 of Schedule 12 to direct the NRA at any time to revoke or vary consents when it appears to him appropriate to do so for the protection of public health or flora or fauna. In the event I hat the NRA was seriously concerned about a particular discharge and about constraints within the consent on its ability to take enforcement action, it could draw the case to the attention of the Secretary of State. It is likely that it would be open to him to direct the authority to revoke or vary the consent, perhaps by imposition of an "upper tier" limit, breach of which would make possible immediate enforcement action.

For these four reasons, I tell the House once more that any argument that the NRA will be significantly impeded in its enforcement role by the terms of this amendment is wholly without foundation.

On all those grounds, there is no reason why we should not proceed on the basis set out in the amendment. There is one overwhelming reason why we should so proceed. How could the NRA or anyone else conceivably justify prosecuting a company on the basis of evidence relating to the actions of its predecessor, a body legally distinct from it and in important ways quite different? To attempt to do so would surely be quite unjust.

What the Government propose in this amendment is the only fair and proper course. It is the only course consistent with the provision already in the Bill that criminal liability shall not pass to successor bodies. That was an amendment which was agreed without any discussion at all. It is the only course consistent with legal principles which have always appeared important to this House. Above all, it is a way forward which holds no risks for the NRA, for pollution control or for its effective enforcement. I commend the amendment to the House. I beg to move.

11.15 p.m.

Lord McIntosh of Haringey moved, as an amendment to Amendment No. 145, Amendment No. 146: Line 13, leave out from ("in") to end of line 19 and insert ("those paragraphs shall have effect on and after the transfer date in the same manner as before that date, except that any reference to samples taken by that authority shall be taken to mean samples taken by the National Rivers Authority insofar as it refers to samples taken after the transfer date").

The noble Lord said: My Lords, this is an astonishing story. It is one which reflects no credit on the Government and no credit on those who have advised the Government. At the very best this is a story of negligence in the drafting of legislation. It leaves us now, as the Minister himself has admitted, at the very end of the last stage, with a new provision which is not dependent on any amendments which have arisen during the course of the consideration in your Lordships' House, which could have been introduced at any stage in another place or here, and which is only thought of at the last minute and is presented initially as being purely a transitional amendment.

When I was first told that it was a transitional amendment I took that at face value. It was only at the very last minute, at lunchtime on Friday, that I realised that something was wrong. I immediately took the precaution of having a telephone call made to the Minister's staff to ask whether the amendment meant what we thought it meant: that there is in effect immunity from prosecution for 12 months after privatisation. The answer my staff received was that somebody would telephone them back. No reply came until after 4.30, which was the last moment for putting down amendments on Friday and for giving the Government a sensible opportunity to consider amendments.

We were therefore forced to put down an amendment and to the conclusion that our analysis of the Government's amendment was correct. Looking at the amendment, I think that noble Lords will agree that it is virtually inpenetrable. It is couched in such detailed, complex prose that it is virtually impossible to tell what it means.

But what the amendment means is now clear and has been confirmed by the Government. It means—and this has been confirmed by the Minister from the Dispatch Box this afternoon—that the sampling procedures which have been debated at length in the House and which require that samples of river water quality shall be built up over a period of 12 months shall come to a full stop at the time of privatisation. Those samples which have been—to use the Minister's phase—clocked up over the period up to privatisation shall be of no account, and we shall have to start again.

The 12-month period starts from day one on the day of privatisation. However much may be clocked up, nothing can happen until the 12 months of sampling have been completed. That means that Her Majesty's Inspectorate of Pollution—and all the provisions that have provided for the enforcement of clean rivers in this country—cannot achieve its full effect by prosecuting breaches of river water quality until a period of at least 12 months has passed. Bearing in mind the time that the provision will take to become law and be enforced afterwards, it will probably be a period of significantly more than 12 months.

The only arguments that are advanced in opposition to that view seem to me so pathetic that I hardly dare to refer to them. The first argument is that it is unfair—if you please—to the plcs that they should be saddled with the testing and the deficiencies of their predecessors. Those plcs are composed, in a realistic sense, of their predecessors. They are inheriting the staff, fixed capital, assets and customers of the existing water authorities. In what way should their obligations to achieve adequate river water quality be exempt from all of those other assets and liabilities, rights and obligations that they are inheriting at the time of privatisation? There is no conceivable reason why they should be exempt in that way and not in any other way.

The second argument is that because the plcs are a separate entity, there is something unconstitutional—it was even suggested—in them taking over the liabilities. The Government have abolished local authorities and created new authorities with the rights and responsibilities of their predecessors. It has never been suggested that it was unconstitutional for new local authorities to have the liabilities of their predecessors and to be subject to enforcement procedures against the deficiencies of their predecessors. It has always been accepted that, when they take over the rights and liabilities, they take over those liabilities complete, including, if necessary, the liability to face prosecution for defects.

If the Greater London Council had not been responsible for the faults—if they existed—of the London County Council, the London Government Act 1963 could not have been put through. If the successor authorities at the time of the Local Government Act of 1986 had not been responsible for their predecessors, then those Acts could not have been put through. It is a nonsense in law to suggest that the new authorities that are taking over the rights and turning them, it is supposed, to profit, must not also take over the responsibilities and, with those responsibilities, the legal liabilities.

The people who are forgotten in all of this and who were never mentioned once in the Minister's speech are those who suffer from poor river quality; namely, the people of this country. It is those people who demand that there should be continuity. They demand that the Government should accept the responsibilities of privatisation. They have not asked for privatisation. It is this Government who are insisting on privatisation. They must demand that there is continuity of responsibility and of enforcement of river water quality. They must and do demand that this amendment be carried and that the Government are not allowed to let the new water undertakings off the hook. I beg to move.

Lord Addington

My Lords, Amendment No. 146, as the noble Lord, Lord McIntosh, has already said, tries to bring back what may be regarded as the status quo. The new plcs are taking over the old water authorities' plant and their responsibilities in regard to providing good water quality. It would seem absolutely ludicrous if this continuity were brought into question by saying that there is a cut-off point for switching responsibilities from one to the other and that the creation of the new plcs produces entirely new entities. Effectively, they will be run by the same people and with the same plant.

I have always regarded greater protection of the environment as one of the few benefits provided by this Bill. If we do not accept this amendment we shall be allowing a gap of possibly up to 12 months when considerable damage could be done. I suggest that we accept Amendment No. 146 for reasons of continuity and give support to those who seek to maintain our river quality.

Baroness Blatch

My Lords, I believe that there has been considerable over-emotion on this subject. To suggest that this is not a transitional arrangement is simply not a serious statement. This is a transitional arrangement and the year of grace suggested in Amendment No. 145 is not a year in which nothing will happen. Those of us who oppose Amendment No. 146 do so because we see the year of grace as a year in which the improvements that we all want to see will take place. We all know that there are some sewage treatment works which do not comply with their consents. Therefore, something must be done.

It is wrong to suppose that on the day that the companies are formed they will automatically be in breach of their consents and therefore liable to be sued. What is absolutely right is that some time should be given so that the companies bring all sewage treatments into line. In fact there is already a programme in train to bring discharges up to consent levels. As a House we should insist that that improvement continues.

I believe that to put one year on that time for improvement is absolutely right. If we really want to achieve improvement and not simply knock the Bill at this stage, then, instead of settling for what I believe is the art of the impossible, we should be going for the art of the possible and bringing about the improvements.

It is a matter of going for what is practicable and what is assuredly achievable. That covers also one of my objections to putting the year 1993 as the time for bringing drinking water up to quality standards. In my opinion this one year of grace—and I hope that it is just one year that the Government give—for the water companies to bring all their water sewage treatment works up to consent levels is something that should be supported by the House.

I believe that the noble Lord, Lord McIntosh, has gone rather over the top in his objection to this amendment; I hope that his argument will be opposed.

Lord Mason of Barnsley

My Lords, as I understand it this government amendment, if it goes through, means that the newly established private water plcs with their exemptions cannot be prosecuted for pollution on the basis of samples taken by the NRA, the Anglers' Co-operative Association or any other independent body, for at least 18 months after this Bill becomes an Act of Parliament.

As chairman of the Anglers' Co-operative Association I expressed my concerns at Second Reading. The use of samples, tripartite samples, and look-up tables is essential to provide evidence for the polluter to be prosecuted. The ACA has been in existence for 40 years. It exists to fight the anglers' cause when their fishing waters are polluted. This amendment, if accepted, will take away the tools that we require to do the job. The effectiveness of the National Rivers Authority will be equally adversely affected. Indeed it has already been stated by the Minister that there is bound to be a twelve months' stoppage of anti-pollution prosecutions. It will provide the plcs with a major prosecution-free holiday at the expense of the health of the nation. It will place handcuffs on the NRA and tie ACA.

The main objective of this amendment is to protect all the new privatised companies from prosecution when they pollute rivers with effluents from sewage works, because the NRA and the ACA will be unable to use pollution evidence gathered from and by the present water authorities before the act of privatisation. I really believe this to be a cynical move at this late stage of the Bill and I believe the Government are frightened that investors will shy away from a purchase without these prosecution exemptions; so it is a blatant attempt to buy off the investor.

This is how the ACA and the NRA will by stymied under this amendment. So far prosecutions have been brought against the water authorities under Section 32 of the Control of Pollution Act. Evidence has to be sought that a breach of the conditions attached to their consents for discharge of sewage effluent has taken place, and also that there have been more than the permitted number of breaches in one year, working back from the one breach complained of. Secondly, a reference to a look-up table to check the number of breaches is required. These are going to be denied to the National Rivers Authority and the Anglers' Co-operative Association in any effective manner for twelve months, just as the Minister stated.

The effect of this government amendment is twofold. The Government want the plcs to start with a clean sheet. In other words, the NRA and the ACA cannot have information of the last twelve months' samples or the use of look-up tables. Therefore no prosecutions can take place against all those exempted sewage works for at least eighteen months. Twelve months have to elapse before the new sampling regime can begin to act, and a further six months are needed to collate the evidence and prepare the cases for court. What is more, cases in the prosecution pipeline, those pending and in preparation, are likely to fall. Existing offences will be written off. Already the legal sub-committee of the ACA is experiencing delays by some of the water authorities refusing to move on some of the legal cases that are pending. The ACA legal sub-committee has met today to consider 41 cases of pollution, and the water authorities, where they are affected, are, I suspect, purposely being unco-operative in the hope that their cases will fall.

Already applications have been made by all ten water authorities for relaxations of the conditions attached to their consents to discharge sewage effluent in respect of problem sewage works. Over 500 applications have been made. There are 6,400 sewage works: all of them might claim immunity from prosecution for river pollution. The water authorities have already admitted over 500 because they have sought special immunity for them for at least twelve months, although it would appear that more than 1,000 problem sewage works are wanting at least a 12-month amnesty from prosecutions.

I thought this Bill was giving us the opportunity to stop the polluter being protected by his own water authority, with the water authorities being both poacher and gamekeeper, but now this is clearly not so. Twenty per cent. of sewage works regularly discharge illegal effluent, and many of them would and should face prosection as private companies. I believe this is a cynical rescue operation to save the water privatisation programme, to save the sell-off. It has now become a sell-out, ditching the environmentalists.

The most guilty polluters, those who have poisoned our rivers for years, are going to be allowed to carry on polluting and discharging filthy effluent into our waterways in order to effect a more attractive flotation prospectus. I believe that to be the truth of the matter. That is why this amendment came in late; that is why it has been bandied about in the press by the Government as a technical amendment. But what I have said is the truth of the matter. It appears to be a last minute panic amendment to save the privatisation programme, irrespective of the damage that it may do to our people's health. I hope that the noble Earl, when he replies, will allay all my fears and my concerns about these consequences.

Lord Moran

My Lords, I am seriously disturbed by this amendment. It seems to me that, in an effort to protect the plcs from criminal actions based on the quality of sewage effluents before vesting, the Government are giving them, under this amendment, complete immunity over a period of at least 12 months. That seems to me to be wrong.

As I understand it—the Minister will correct me if I am wrong—the one exception is where relaxed consents are given, which I think applies to about 15 per cent. of all sewage effluents. In that situation, as I think he told us, an upper tier value will be applied which, if it is exceeded, will form the basis of an immediate prosecution.

My understanding is that the HM Inspectorate of Pollution and the NRA suggested a level for this upper tier value of somewhere between 1.5 times to twice the consent value, but that the water authorities are asking for a much higher value of something like three times. If that is true, I am told that in at least one NRA region in 50 per cent. of the works where conditions are being relaxed the consent value when converted to an upper tier value three times higher will have a strength greater than raw sewage. It would therefore be possible for a plc to discharge raw sewage before screening and not exceed the upper tier limit for the works in question.

I think that would be an intolerable situation, if it is right. What worries me very much about this is that it will start the NRA off on the wrong foot. The Government have constantly said throughout the discussions on this Bill that they mean to have a strong and effective NRA. I have accepted that and I believe it, but, if the amendment goes through, it will mean that the NRA will be emasculated for the first 12 months of its existence. We shall have to see the pollution of our rivers by sewage works continuing without being able to do anything at all about it. If there is, for example, a major fish kill or a grave pollution incident damaging one of our rivers very seriously indeed, the public will see the NRA with its hands tied, unable to do anything. I cannot imagine a worse way of starting it off, because we want everyone to have full confidence in the NRA and its effectiveness. To see it start off by being unable to move for a whole year on questions like this would totally undermine public confidence.

I therefore greatly hope that the Government will have second thoughts over this amendment.

Lord Trafford

My Lords, I do not want to keep the House at this late hour, but I believe that certain statements made from the Opposition Benches have really rather exaggerated the situation. The speech of the noble Lord, Lord McIntosh, began by implying that nothing is happening now, yet we have heard endlessly during the proceedings on the Bill that improvements are even now taking place. Further investment is taking place and various examples, which I shall not list because everybody is aware of them, were given. Secondly, there is being put in place a stricter, better and more complete system of control in which the poacher and the gamekeeper are not one and the same person. It will be introduced on a specific date.

It is true that one could argue against this amendment that a year is a long time, except that there is provision for sampling. However, with a new system and new companies taking over and with a different and tighter system of control, it is not unreasonable to suggest that there should be a period of adjustment. It is assumed that any plc which takes over from a water authority will be completely crazy and will allow pollution to continue knowing perfectly well that sampling will be taking place, after which it will be inviting prosecution if it does not improve the environment or reduce pollution.

Let us assume that the figure of 20 per cent. given by the noble Lord, Lord Mason, is accurate. If they are not completely crazy, those companies will be making every endeavour to ensure that, at the end of the period, they are not causing as much pollution. Otherwise they will be inviting prosecution. It seems not unreasonable to argue that it is fair and just that a period of adjustment should be allowed because the system of control and the separation of the industry will come into being. For those reasons I believe that it is right and proper to include the amendments which my noble friend has moved.

The Earl of Caithness

My Lords, I am grateful for what my noble friend Lord Trafford has said, because, with respect, I believe that some of your Lordships followed speaking notes prepared before I had spoken. A great deal of what I said covered and met the concerns subsequently raised by your Lordships.

The situation is that our sewerage works have not been given the full investment that they should have received. During the late 1970s funds were drastically cut by the Labour Party—by 50 per cent. in real terms. That was a terrific boost for pollution. At the same time charges to the consumer rose—earlier this afternoon I quoted a figure of 43 per cent. in one year.

Since then there has been a dramatic improvement. We now have a situation where about 20 per cent. of our sewerage works are not meeting at some stages the consents under the Control of Pollution Act. That means that 80 per cent. are doing so. When one compares that record with what is happening in Europe one may be surprised to learn how far Britain is in advance of its EC partners in this matter. Some of them are still busy trying for the first time to install sewerage works for their major cities.

There has been a tremendous improvement and it is continuing. My honourable friend the Minister for Water has said that, with the £1 billion programme for sewerage works, they will all have been brought up to standard by March 1992. That will be good for the environment and it is something we all wish to see.

We are now in a transitional period. It is quite right that during that time when money is being spent on sewerage works with new consents they should not be the subject of prosecution for old consents granted to authorities whose legal basis was not remotely like that of the proposed NRA.

Let me just take one point raised by the noble Lord, Lord Moran. He mentioned the upper tier limit. There has been no government decision on the upper tier limit. That will be set to ensure that there is no possibility of raw sewage being discharged. Of course Her Majesy's Inspectorate of Pollution inspectors will have to be satisfied that the upper tier limit is appropriate.

Let me remind your Lordships that the upper tier limit is an entirely new item which was brought in to improve the environment. It does not exist at present and I know that the noble Lord. Lord Moran, who studies these matters carefully, will realise that when one is working on a 95 per centile basis, in the other 5 per cent. there can be a rapid discharge of very high polluting substances—and not heavy metals because they are dealt with under separate legislation—which cause enormous damage. That is not being tackled at present but it will be tackled as a result of improvements which we have made to the Bill and will apply to the 20 per cent. of sewerage works currently being refurbished. One single breach of that will allow the full power and authority of the noble Lord, Lord Mason of Barnsley, and the NRA to come down on that authority.

Therefore, there is no question of any period of legal immunity. Up until vesting date prosecutions can be based on the present series of samples. From vesting date, any discharge in breach of the consent will contribute to the potential legal liability of the undertakers. What is important is that from vesting date the gamekeeper/poacher conflict will end and I know that that will be welcomed by all of your Lordships. The new NRA will be in place as a powerful body properly financed and acting in the interests of the environment, which we all care for so much. It will not be a shackled body but will be trying to improve the environment. Moreover, at the first sign that the sewerage works are not coming up to standard, for the first time there will be an independent body to take on the water authority plcs.

It is true that vesting day must bring a new regime but in that new regime any sample which fails on day one can contribute to a successful prosecution in just the same way as a sample taken on the last day of the old regime. There is no legal immunity at any period whatever.

11.45 p.m.

Lord McIntosh of Haringey

My Lords, that reply was very carefully phrased and has not started to dent the arguments against this new government amendment. The fact is that sampling is taking place now. Sampling is being carried on by ':he water and sewerage authorities and that sampling will be of no effect unless prosecutions can be mounted before the day of flotation.

Indeed, as regards the water authorities, if this government amendment is agreed to without further amendment, they may as well stop sampling now because between now and flotation there is no possibility of effective enforcement of the sampling of river water quality.

The sampling, control and improvement of river water quality is or should be a continuous process. It is not affected dramatically by vesting day on day one or on day 365 or on day 366. The investment programmes which the Minister has talked about—and we all applaud the investment programmes just as we applaud the creation of the NRA, as we have throughout the passage of this Bill—are not suddenly introduced on the day that the water and sewerage industry is privatised. They are a matter of gradual progress towards acceptable standards.

The government amendment halts the control of progress towards acceptable standards. It says that all of the sampling being carried on now and which will be carried on until the day of transfer is of no avail and they will have to start again and build up a new set of evidence on a scarcely different basis—and the Government have secured that the basis is not very different—after that time. Not until 12 months have passed will evidence have accumulated sufficiently to allow the start of prosecution or enforcement procedures.

As I said, the argument has not been dented. The noble Baroness, Lady Blatch, called it a year of grace. It is a year of grace for the shareholders and investors but not for the rivers and those who use our rivers. In effect, it is a year of disgrace. I invite the House to support the amendment.

11.50 p.m.

On Question, Whether the said amendment (No. 146), as an amendment to Amendment No. 145, shall be agreed to?

Their Lordships divided: Contents, 52; Not-Contents, 58.

Addington, L. Kennet, L.
Airedale, L. Kilbracken, L.
Alport, L. Kirkhill, L.
Blackstone, B. Llewelyn-Davies of Hastoe, B.
Blease, L. McCarthy, L.
Blyth, L. McIntosh of Haringey, L.
Bonham-Carter, L. Mackie of Benshie, L.
Buckmaster, V. McNair, L.
Callaghan of Cardiff, L. Mason of Barnsley, L.
Carmichael of Kelvingrove, L. Monson, L.
Carter, L. Moran, L.
Cledwyn of Penrhos, L. Nicol, B.
Cocks of Hartcliffe, L. Pitt of Hampstead, L.
Craigavon, V Ponsonby of Shulbrede, L. [Teller.]
David, B.
Ewart-Biggs, B. Prys-Davies, L.
Falkland, V. Raglan, L.
Gallacher, L. Rea, L.
Galpern, L. Ross of Newport, L.
Gibson, L. Sefton of Garston, L.
Graham of Edmonton, L. Stoddart of Swindon, L.
Grey, E. Strabolgi, L.
Hampton, L. Tordoff, L. [Teller.]
Hatch of Lusby, L. Underhill, L.
Hirshfield, L. White, B.
Irvine of Lairg, L. Winchilsea and Nottingham, E
Kenilworth, L.
Alexander of Weedon, L. Hesketh, L.
Allenby of Megiddo, V. Hives, L.
Arran, E. Hooper, B.
Balfour, E. Johnston of Rockport, L.
Belstead, L. Joseph, L.
Blatch, B. Kimball, L.
Boardman, L. Knutsford, V.
Borthwick, L. Lindsey and Abingdon, E
Brabazon of Tara, L. Long, V.
Brougham and Vaux, L. Mackay of Clashfern, L.
Caithness, E. Mersey, V.
Carnegy of Lour, B. Middleton, L.
Carnock, L. Monk Bretton, L.
Coleraine, L. Munster, E.
Colwyn, L. Norrie, L.
Craigmyle, L. Oxfuird, V.
Crathorne, L. Radnor, E.
Davidson, V. [Teller.] Renton, L.
Denham, L. [Teller.] Sanderson of Bowden, L.
Dundee, E. Skelmersdale, L.
Elliot of Harwood, B. Somerset, D.
Elliott of Morpeth, L. Stanley of Alderley, L.
Ferrers, E. Strange, B.
Fraser of Carmyllie, L. Strathclyde, L.
Gisborough, L. Thomas of Gwydir, L.
Glenarthur, L. Trafford, L.
Haig, E. Trumpington, B.
Harmar-Nicholls, L. Wynford, L.
Henley, L. Young, B.

Resolved in the negative, and amendment to the amendment disagreed to accordingly.

On Question, Amendment No. 145 agreed to.

11.57 p.m.

The Earl of Caithness moved Amendment No. 147:

Page 384, line 13, at end insert— ("( ) Where an application for a licence under the 1963 Act—

  1. (a) has been made before the transfer date to the Secretary of State by a water authority in pursuance of any regulations under section 52 of that Act (modification of Act in the case of water authority abstractions etc.); and
  2. (b) that application is pending on that date and is an application the rights and liabilities in respect of which are allocated by a scheme under Schedule 2 to this Act to the water authority's successor company,
the Secretary of State shall refer that application to the Authority to be determined on or after that date as if it were an application made to the Authority under that Act and may direct, in relation to such an application, that specified requirements of that Act with respect to procedure and publicity are not to apply, or are to be deemed to have been complied with if the requirements set out in the direction are complied with.").

On Question, amendment agreed to.

Schedule 27 [Repeals]:

The Earl of Caithness moved Amendments Nos. 148 to 151:

Page 399, column 3, after ("from") insert ("by a").

Page 399, column 3, leave out lines 31 and 32.

Page 403, line 36, column 3, leave out ("in paragraph (d) the words "charging scheme or" and").

Page 403, line 41, column 3, leave out ("in subsection (6) the words "charging scheme or"").

On Question, amendments agreed to.

Lord Denham

My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that Her Majesty and His Royal Highness, having been informed of the purport of the Water Bill, have consented to place their prerogatives and interests so far as they are affected by the Bill at the disposal of Parliament for the purposes of the Bill.

11.57 p.m.

The Earl of Caithness

My Lords, I beg to move that the Bill do now pass.

Moved, that the Bill do now pass.—[The Earl of Caithness.]

Lord McIntosh of Haringey

My Lords, this is the occasion when we put aside the differences that have divided us over the weeks and months and pay tribute to those who have helped us and to those who have taken part in debate. We also attempt a summary of the Bill as it leaves your Lordships' House.

The first part of this task I undertake with pleasure and a sense of honour and humility. I am deeply grateful to my noble friends and to other noble Lords on this side of the House and indeed to noble Lords on all sides of the House for taking part in the critical evaluation, which we believed to be necessary, of this most complex Bill. It is invidious to mention names, but I must refer, first, to my noble friends on the Front Bench, Lord Graham of Edmonton and Lord Gallacher. Among my noble friends on other Benches, the very fact that I can refer to my noble friends Lady Birk, Lord Carter, Lady David, Lord Howie, Lady Lockwood, Lord Mason, Lady Nicol, Lady Phillips and Lady White—I do so in alphabetical order but no doubt there are others—makes it clear how many of my noble friends and how many in the Labour Party feel strongly that this Bill deserved the full and critical attention it has received.

We could not have done the work without the help which we received from a very small and devoted circle of admirers. I do not know whether it is in order for me to mention names, but I should especially like to name Mr. Damien Welfare and Miss Katherine Sand who have played a very distinguished and devoted part in helping us with the work which we have carried out. I should also like to mention the reseachers in the Opposition Whips' Office.

These debates do not take place in a simple straightforward way; there is always a complex mesh of agreement, antagonism of movement and change. However, one thing is always unchanging and certain, and that is the relationship between the Front Benches on this side of the House and the Front Bench on the other side.

As I have been able to do on many occasions in the past, I thank and congratulate the noble Earl, Lord Caithness, the noble Lord, Lord Hesketh and the noble Earl, Lord Arran, for the part they played in the proceedings on the Bill. They, of course, have to do what we do not have to do; they must be concerned with every amendment. Moreover, although they receive more help than we do this is still a formidable task. I congratulate them for the work they have done on the Bill and thank them for their almost unfailing courtesy in dealing with our amendments. There was an occasion when they lost their tempers and tried to refuse me permission to withdraw an amendment. I do not think that they will remember that with much pride. Nevertheless, in formal terms—in non-political terms, if you like—I hope that relationships between the Front Benches have not been seriously strained throughout the passage of the Bill.

I should also like to refer to other noble Lords on the Front Benches and especially those of the Liberal and Social Democratic Party, many of whom have played an active part in the debates on the Bill. We have been particularly glad to have the assistance of the noble Lord, Lord Addington, who has added considerable distinction to the proceedings on what is, I think, the first occasion that he has dealt with major legislation. We have also been glad of the assistance given by many other noble Lords on those Benches and of the Social Democratic Party.

This has been a Bill in which the Cross-Benches have been particularly active and there are many noble Lords on those Benches who played an extremely valuable part, as has been evidenced by the results.

This is a Bill which is deeply offensive to the instincts of this country. It has emerged now as offensive as it has ever been. There has been no success by the Government in achieving popularity or esteem for the Bill; indeed, it has gone out in a blaze of public distrust at almost the very last stage in regard to what was almost the last amendment moved on the last night of our deliberations. That shows how deeply people feel that it is wrong to be privatising the water and sewerage system in this country.

When she took office in 1979, the Prime Minister quoted St. Francis of Assisi. I too should like to quote him. He said: Praise be my Lord for our sister water; who is very serviceable to us, and humble and precious and clean". Throughout the passage of this Bill it has been our intention to seek to secure that our water is humble, precious and clean. I hope that it will survive the period of privatisation and that when we come to return water—as it must be returned—to public control we shall find that not too much damage has been done to our sister water.

Lord Ross of Newport

My Lords, I thank the noble Lord, Lord McIntosh, for his kind remarks. I also thank my noble friends Lord Ezra and Lord Addington, Sir John Bates and our own researcher, Mark. We congratulate the Minister on achieving his Bill. His patience and willingness have been greatly appreciated on all sides of the House and especially on these Benches.

Despite our fears for the future, shared by many outside the House—I shall not go into that any further, because I am already in trouble for saying what I said earlier—I feel that our time has not been wasted. The Bill has been much improved during its passage through your Lordships' House. I thank noble Lords on all sides of the House for the part they have played in achieving that objective. It is in no small measure due to the attentiveness and kindness of the noble Earl, Lord Caithness, and his two colleagues on the Front Bench opposite. I thank them.

Lord Renton

My Lords, perhaps I may say a brief word from these Benches. As the noble Lord, Lord McIntosh, said, my noble friend Lord Caithness has had a most formidable task. He has performed it with tremendous efficiency and courtesy. He has shown—I hope that I shall not be mistaken if I say this—nearly always, very good judgment. We are grateful for such concessions as he has been able to make. He has been ably assisted by my noble friends Lord Hesketh and Lord Arran.

I should like to acknowledge the spirited and efficient way in which the noble Lord, Lord McIntosh of Haringey, has led for the Opposition. He too has had a formidable task, and one can but admire the way in which he has discharged it.

I am in favour of the main principles and the main purpose of the Bill. It is significant, and we should take note of the fact, that the water authorities broadly support the Bill. However, I am dismayed by the way in which the Bill is constructed and by its inordinate length—416 pages long when we started the Third Reading—its mass of detail and its overlapping provisions. Despite the repeal schedule being 18 pages long, too much of the present law is repeated, with or without amendment. Eventually there should be a consolidation, and I hope that will not be long delayed.

The legislative method of carrying out our good intentions does not give me pride and satisfaction, but having criticised that method, I firmly believe that the Bill is desirable and that it will lead to improvements which cannot be achieved under the present system. I wish the Government well in carrying out its provisions. It will be judged by results.

I should like to congratulate the Government on choosing my noble friend Lord Crickhowell as chairman designate of the NRA. He deserves our full support in meeting his responsibilities. The main problems with which the new authorities and new companies will have to deal are first and foremost river pollution. The rivers need cleaning, although they are much better than they used to be thanks to the legislation passed in the past 30 years. Pollution of the sea by sewage is still a serious matter. Drinking water, in my opinion, is mostly wholesome, but all of it should become so. Recreational facilities should be made more freely available and should be improved. Having said all that, I wish the Government well in the implementation of the Bill.

The Earl of Caithness

My Lords, at eight minutes to three on the afternoon of 17th April we set out, in your Lordships' House, to consider the second largest Bill in living memory. I said then that the main purpose of the Bill was to restructure the provision and regulation of water and sewerage services in England and Wales, and to enable the privatisation of those services. I said that the Bill would be a good one for consumers and for taxpayers; it would be good for the environment; it would create a more efficient and effective water industry; and above all it was the way to achieve the water quality standards we all want.

During our consideration of the Bill, its central objectives have stood up well to the close scrutiny which your Lordships' House has given them. It has become better understood both in the House and more widely.

When I introduced the Bill, I explained that we looked forward to listening to the arguments that would emerge. Our minds were open on whether the Bill represented in every last detail the best structure for the future. In the main we have ended our consideration of this Bill in the same constructive way by today approving a further batch of improvements flowing from commitments given at earlier stages.

We originally undertook to listen carefully to positive proposals that were put forward, I hope your Lordships will agree that we have done just that. We have had over 100 hours of debate over 13 days with the opinion of the House being tested on over 40 occasions. Most importantly, we have improved the Bill in more than 50 ways involving over 360 amendments to the Bill as received in this House.

Perhaps I can touch on some of the most significant changes we have made. All of us have been keenly interested to ensure that almost half a million acres of water authority land finds its way into the private sector subject to proper environmental controls, so that its protection is assured under the private sector just as it is under the public sector. In fact, with the addition of the major amendments on the protection of disposals of water industry land, we have introduced a degree of protection far stronger than that which exists at present. That is something I know my noble friend Lord Norrie and the noble Baroness, Lady Nicol, will welcome. At the same time we have ensured that customers will share in the proceeds—including the development value which might be gained through obtaining planning permission for alternative development—when the water industry disposes of its surplus land.

I freely pay tribute to the arguments of the noble Lord, Lord McIntosh, who persuaded us that the environmental code of practice should be applied to the NRA, and to those of the noble Lord, Lord Greenway and others who persuaded us that Parliament should have a role in the approval of that code of practice.

The Bill has been amended to reflect the successful outcome of discussions between the Government and the European Community. The Community is now satisfied, with the Bill amended as in Clause 20 and with the commitments we made in introducing those amendments, that the Government intend to rectify any deficiencies in water supplies as quickly as possible, taking certain practicalities into account. But I have to say to the noble Lord, Lord McIntosh, that there is one group of his amendments on drinking water which would take us beyond the practicable. This House is a revising chamber and we are bound to send back the Bill in a workable form. My regret is that in this one respect we shall be sending back an unworkable Bill and we may not have heard the last of the topic in this House, whatever the noble Lord may say about voting for dirty water.

We have made a great deal of progress in the area of charges. For example, my noble friend Lord Stanley of Alderley has been instrumental in persuading us, with his usual eloquence, of the need to clarify the Bill to make absolutely clear that the interests of rural customers are to be protected in this respect. We have ensured that water used for various fire-fighting purposes should be exempt from charges and we have improved the position of those who pay for their water through their landlords. We have also made sure that developers pay their fair share of the additional costs they impose on water and sewerage undertakers, and in this respect I pay particular tribute to my noble friend Lord Jenkin of Roding who cogently sustained arguments that we first started to hear in the other place.

Another major set of amendments introduced in this House following undertakings in the other place were those which will ensure much better protection of water supplies in areas which are sensitive to the overuse of nitrate fertilizers. In addition to these major points there have been a whole host of minor amendments to the Bill, all improving it in one way or another.

I am sincerely grateful to all noble Lords for the appreciation and courtesy extended to myself and my noble friends Lord Belstead, Lord Hesketh, Lady Trumpington and Lord Arran during the many hours of debate. We very much appreciated that. I thank my noble friends, particularly my noble friend Lord Hesketh, who has done a fine job in supporting me, in particular on those days when I was rather more than a thousand miles away. Both he and my noble friend Lord Arran visited water authorities before and during the passage of the Bill. They are very knowledgeable about treatment plants and sewerage works. One could say that they are thoroughly immersed in their subject. Indeed I know that my noble friend Lord Hesketh greatly regrets that he was unable to bring out in the debates his knowledge of the optimum shape of sewer pipes and the gradients at which such pipes can be self-cleaning. The House, I can assure it, has missed an interesting dissertation on the theory of the inverse egg.

I should like to thank those on the Back Benches behind me who have helped me most of the time. In particular I would mention my noble friend Lord Renton who has very much kept us on the legal straight and narrow through our scrutiny of this massive Bill. We are all, on all sides of the House, grateful to my noble friends Lord Nugent of Guildford and Lord Elliott of Morpeth who have brought a wealth of experience to our debates and who ensured not only that we looked at the detail of the Bill but that we tested the very principles on which privatisation is to proceed. I would also like to thank my noble friends Lord Trafford, Lady Carnegy of Lour, Lady Blatch, and Lord Radnor who did a splendid job in assisting me, and, of course, criticising me when it was due. I must pay tribute to my noble friend Lord Balfour for his sustained interest from the first debate. I suspect that few people have read as much of the 400 pages as he. Last but not least on this side of the House, I must mention my noble friend Lord Crickhowell, who goes forward with these debates ringing in his ears as he sets out to lead the National Rivers Authority through its crucial early years.

I have had an advantage in our proceedings on this Bill for I had the honour to be the Minister responsible for water for much of the first part of last year. That was an enormous help to me in understanding the industry, yet I must confess I thought my task fairly hard work. How much more difficult it has been for the noble Lord, Lord McIntosh of Haringey, who has shouldered so much of the work of the Bill on his side. He has led his party with very great distinction through our thorough consideration of the proposals and our detailed discussions of every aspect. We may not always have agreed on the principles, but I very much appreciate the constructive way in which we have tackled the details. I join him in thanking his team of the noble Lords, Lord Graham of Edmonton and Lord Gallacher, who have continually tested us.

I also welcome the contributions from the noble Lords, Lord Ross of Newport and Lord Addington, which were always and invariably brief and to the point. They were ably reinforced by the noble Lord, Lord Ezra, who has the advantage of his French connection in appreciating the opportunities of a private sector water industry.

Finally I should like to stress my thanks for the backing I have received, in particular from my honourable friend the Minister for Water and Planning and from my right honourable friend the Secretary of State, who have been closely involved with the deliberations in this House, and have willingly shown flexibility to respond to your Lordships' pressure to improve this Bill in very many detailed ways.

I wish on behalf of the whole House to thank the officials who have looked after us with their normal courtesy for long hours, the Hansard writers and the clerks. I wish to pay a special tribute, as the noble Lord did, to my team who have helped my noble friends and myself.

I said on Second Reading that this was a good Bill. There is little more to say except that with the efforts of your Lordships' House it is an even better Bill. It will be even better for us as consumers and as taxpayers. It will, I am glad to say, be even better for the environment; and we shall all benefit from the better, more efficient and more effective water industry that it will bring about. I look forward keenly to the new era for the water industry in this country.

On Question, Bill passed, and returned to the Commons with amendments.