Lords Sitting of 8 May 1989

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.

Sea Bathing: Health Warnings
Lord Aylestone Lord Aylestone asked Her Majesty's Government:
What action is being taken through the appropriate local authorities to warn the public of the possible danger of infection from sea bathing at some United Kingdom seaside resorts.
The Minister of State, Department of the Environment (The Earl of Caithness): My Lords. it is for local authorities, acting on the advice of their medical officer of environmental health, to warn the public of any possible danger of infection from sea bathing in their area.
Lord Aylestone: My Lords, I thank the Minister for his reply and note that the responsibility is placed on the local authorities. That is probably correct. Is he aware that it does not need a chemical analysis of the sea water to determine how bad the situation is? All that is necessary is to use one's eyes and sense of smell, and it becomes very vivid indeed. Is he aware that in the case of sea water that is disturbed, for example, by weather or current, it is usual to hoist a red flag warning the public not to bathe there? I am not asking for the same action; but is it not possible to introduce some method of warning the public that they and their children should not bathe in sewage?
The Earl of Caithness: My Lords, I agree with the noble Lord that in certain areas the standards are not what we should like. That is why we are spending so much money in trying to improve the standards to those of the Community regulations.
Lord Mason of Barnsley: My Lords, is the Minister satisfied that, following privatisation of water authorities, the utility companies will be able to enforce the progress necessary to bring all those beaches up to the standard required by the Common Market's directive? Will the National Rivers Authority have power to enforce progress? Of the 380 beaches that are subject to the directive, how many have so far been awarded the blue flag of purity?
The Earl of Caithness: My Lords, on the second point, the blue flag scheme is not only for bathing waters but for the beach as well. The beach is very much the responsibility of the local authority. Part of the criteria for a blue flag award is that there should be no dogs on the beaches, as the noble Lord will know. Therefore although the bathing water might be clean, the beach might be disbarred not only as a result of dogs but because of litter and
390
other factors. On the first question that the noble Lord asked, I have no doubt that the Water Bill, which we shall be discussing later this afternoon, will be of immense benefit.
Lord Graham of Edmonton: My Lords, is the Minister aware that on the whole, mainly due to lack of resources, and because of other priorities local authorities do not put up notices where there is danger of infection from bathing waters? Will the Minister ensure that resources are available to local authorities in order for them to undertake their own monitoring of bathing water and to take steps to warn the public about beaches where appropriate? Does the Minister understand that in many instances it is a question of resources and not will?
The Earl of Caithness: My Lords, as the noble Lord knows, we give substantial sums of money to local authorities. How they spend that money is up to them.
Lord Paget of Northampton: My Lords, now that the weather has so improved, will the noble Earl include in his advice a note saying that the risk is well worth taking?
The Earl of Caithness: My Lords, if temperatures such as those at present continue, it might be possible to bathe in some comfort off the British Isles.

MoD Workers: Relocation from South-East
2.40 p.m.
Baroness Strange Baroness Strange asked Her Majesty's Government:
What recent progress has been made by the Ministry of Defence in moving jobs from the South of England to other parts of Britain.
The Minister of State for Defence Procurement (Lord Trefgarne): My Lords, the Ministry of Defence has recently completed the transfer of 1,400 jobs to Glasgow as part of the Government's existing dispersal programme. On 9th March this year we announced a move of the Ministry's Quality Assurance Directorate—some 1,500 jobs—to Teesside. A number of smaller moves are proposed which would involve a further 1,200 jobs being relocated from London and the South-East over the next two years.
Baroness Strange: My Lords, I thank my noble friend for that extremely encouraging reply. Can he say what other plans there are for relocating other defence works farther north, or at least outwith London?
Lord Trefgarne: My Lords, we are currently considering the possibility of relocating the land and air systems controllerates involving some 3,400 posts from London to somewhere outside. We expect to reach a decision on that very shortly. A range of further relocation possibilities is also under review

391
with a view to finding appropriate sites for as many jobs as we can.
Lord Molloy: My Lords, with these jobs that are being created, will full attention be given to the high techniques that are required today to ensure that the arms that are put into soldiers' hands are the best that can be provided by anyone?
Lord Trefgarne: Yes, of course, my Lords. It is essential in any of these relocation considerations to ensure that they remain as effective as ever.
Lord Boyd-Carpenter: My Lords, when workers are moved as part of these relocation schemes, are allowances paid to make up for the additional expense of moving and finding new accommodation?
Lord Trefgarne: Yes, indeed, my Lords. Allowances are presently paid. We are concerned to ensure that these meet the necessary expenses which people incur. We are therefore reviewing the present package of allowances to see whether it needs to be improved.
Lord Irving of Dartford: My Lords, in the first part of his answer the noble Lord gave the number of movements. Can he say what proportion of staff who are offered relocation take it? Secondly, what consultations take place in developing these programmes and what regard is paid to regional economic plans?
Lord Trefgarne: My Lords, we take great care to discuss these plans at as early a stage as possible with all those directly concerned, not least the representatives of the personnel themselves. I believe that is the main point which the noble Lord was concerned about.
Lord Rochester: My Lords, can the noble Lord assure us that it is only considerations of national security that prevent the Government from locating more defence establishments, and thus establishing more jobs, in parts of Britain other than the south of England?
Lord Trefgarne: My Lords, for very good traditional historical reasons, now very much lost in the mists of history, a great proportion of Ministry of Defence establishments are located in the South-East of England. The reason, I am told, was to counter the threat from Napoleon many years ago. Clearly, different considerations now apply; we are therefore working hard to correct the imbalance that undoubtedly exists. The problem is that the cost of moving many of these establishments, leaving aside the disruption to the personnel, is often considerable.
Lord Dormand of Easington: My Lords, as deputy chairman of the Teesside Development Corporation, may I unusually congratulate the Government on their wisdom in bringing the 1,500 jobs which the Minister has just mentioned to Teesside? Those jobs are very much needed in that part of the country.
392
How much time is likely to elapse between the announcement that was made, as he said, on 9th March, and jobs actually being created in the area?
Lord Trefgarne: My Lords, as the noble Lord will be aware the necessary facilities must be set up for the quality assurance directorate. Quite a range of technical equipment is required to carry out the work, some of which will be removed from its present site, mostly at Woolwich. Other equipment will be acquired locally. All that will, I fear, take some time; so it will be two or three years before the benefits of this change are seen in jobs in the district.
Lord Cledwyn of Penrhos: My Lords, the noble Lord has referred to the moves which are to be made to Glasgow and the North-East. Will he consider the claims and the needs of Wales when further transfers are under consideration? Will he indicate what is the ratio of jobs created in any of these areas in relation to the numbers transferred from the South-East to Glasgow, the North-East and elsewhere? As far as Wales is concerned, will he be good enough to consult carefully with Mr. Peter Walker, who, as he knows, is very keen on these things?
Lord Trefgarne: My Lords, I should have to take some advice concerning the ratio of the remaining jobs. Some 60,000 civilian jobs presently exist in the South-East area represented by the Ministry of Defence. As for the claims of Wales for any future relocations, Cardiff is among the places being considered for the land and air systems controllerate move to which I referred a moment ago.

Industrial Disputes: Policy
2.45 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
What is their policy towards employers and employees during an industrial dispute.
The Secretary of State for Trade and Industry (Lord Young of Graffham): My Lords, if such disputes arise, the Government hope that they will be resolved without damage to the interests of the business in which both employers and employees are engaged.
Lord Dean of Beswick: My Lords, I am grateful to the noble Lord for that reply. However, does his answer not seem to be in conflict with what is happening in the national dock labour scheme dispute, bearing in mind that one of the parties, the union representing the workers, has already offered to go to ACAS to settle the matter amicably? The Government have chosen to force through a Bill which is totally one-sided and seen to be on behalf of the employers. Is that not in complete contradiction with the Minister's answer?
Lord Young of Graffham: My Lords, it can scarcely be provocative for the Government to propose that the dock workers in today's well-paid port industry

393
should have the same rights and obligations as other employees and in addition should have special compensation for redundancy for a three-year period.
Lord Mellish: My Lords, is the Minister aware that it is the belief of some of us that ACAS was set up to deal with this problem? In a dispute between employees and employers the Government could help both sides to go to ACAS to try to settle the matter round the table which is the civilised method of doing it. Can he say something about ACAS?
Lord Young of Graffham: My Lords, ACAS works with the voluntary agreement of all parties concerned. It is for both parties therefore to go to ACAS if they so desire.
Baroness Turner of Camden: My Lords, is it not rather disingenuous to expect there to be no industrial disaffection in a situation where employees are offered deals much below the rate of inflation and in a situation also where mortgage rates are a heavy obstacle and obligation upon employees? Is it not absurd to expect there to be no industrial disruption in such circumstances?
Lord Young of Graffham: My Lords, I do not expect there to be industrial disruption in the circumstances because the one thing that employees in our land have learnt over the last few years is that industrial disputes lead to the destruction of people's jobs. It is true that interest rates on mortgages are high—but no higher than they were two or two-and-a-half years ago while the general level of wages is above that. There is only one thing that can bring down this country and keep the rate of inflation rising. That is wage claims that are too high and not earned.
Lord Rochester: My Lords, can the noble Lord confirm that, for better or worse, now that the Government's legislation affecting industrial disputes is in place, it is essential that the Government should adopt an even-handed approach between employers and representatives of employees in any particular dispute?
Lord Young of Graffham: Yes, my Lords, I confirm that the Government do precisely that.
Baroness Turner of Camden: My Lords, if that is so, would it not be good if the Government were openly to declare their support for arbitration and arbitration processes rather than, as far as one can see, undermining the role of the Central Arbitration Committee, as has happened in recent years?
Lord Young of Graffham: My Lords, no. The point of government standing away from such disputes is that they should not interfere with either the employer and employee or the employer and the union; and that is what it would mean.
Lord McCarthy: My Lords, does the Minister agree that he cannot get away with it by saying that it is a matter for ACAS; that under the terms of the 1896 Conciliation Act, the Secretary of State has the
394
responsibility to take such steps as he deems expedient to promote an amicable dispute settlement; and that he must do so particularly when one of the parties will not come? Why will the Secretary of State not use his powers under the 1896 Act?
Lord Young of Graffham: My Lords, I so deem that I should not use those powers.
Lord Grimond: My Lords, the Minister rightly said that one of the great dangers to the country is inflation through excessive wage demands. Does he agree that those demands are fuelled by the enormous increases for the people at the top of the professions and industry? Does he also agree that it is hard to expect the employees of the BBC to be satisfied with 6 or 7 per cent. when the director general is awarded an increase of 30 per cent.?
Lord Young of Graffham: My Lords, that attitude prevailed in this country for decades after the war and we all know where it got us. We should not look at what other people receive; we should look at what we do ourselves and at how much we deserve.
Lord Dean of Beswick: My Lords, does the Minister not understand that during the passage of previous legislation through your Lordships' House reference was made to the observations of the Master of the Rolls, who in his capacity as chairman of the industrial relations courts said even then that legislation was weighted in favour of the employers? Does he not understand that his Answer to my Question can only be interpreted by those involved as meaning that the Government are not bent on giving trade unionists basic rights, as they keep on saying, but instead are bent on removing most of the basic rights? Is it not true that their stand has been shown to be a complete sham by the recent statement of the International Labour Organisation on the basis of what the Government are doing to the trade union movement?
Lord Young of Graffham: My Lords, no. The TUC has said that the International Labour Organisation has made a statement but it has not. A committee of the ILO has reported. It will be interesting to see what the ILO has to say when it is aware of the full facts regarding trade unions and the rights of trade unions in this country, which still have a privileged position in our legal system.
Baroness Seear: My Lords, do I understand from what the Secretary of State said that the Government are discouraging the use of arbitration when there is a dispute and are supporting the idea that employers should resist going to arbitration? Secondly, on reflection, will the Secretary of State not revise his comment that the only thing which can hold back this country is wage increases? Surely there are plenty of other things such as inadequate training, inadequate investment and inadequate infrastructure. Does the Secretary of State really say that the only thing is pay claims?
Lord Young of Graffham: My Lords, I shall gladly agree that there are other matters which could hold back this country. However, I do not see that I have a positive duty to intervene, as the noble Lord, Lord Dean, implied that I should.
Lord Molloy: My Lords, can the Secretary of State tell the House why he arrived at that decision and why he is not prepared to use the legislation provided by this Parliament? Why has he deemed it unnecessary to use that legislation and to intervene? Can we please have the reasons?
Lord Young of Graffham: My Lords, no. There is no positive duty on me to say why I should not do something in this instance, and nor shall I.

Turkey: Human Rights
2.54 p.m.
Lord Kilbracken Lord Kilbracken asked Her Majesty's Government:
Whether, in view of the banning for many years of the public use of the Kurdish language in Turkey despite Article 39 of the Treaty of Lausanne, they will bring pressure to bear on the Turkish Government to conform with that article and, in particular, whether they will oppose Turkey's application to join the European Community until they have done so.
The Minister of State, Foreign and Commonwealth Office (Lord Glenarthur): My Lords, in discussing human rights with the Turkish Government, we have frequently made clear that we expect them to respect and abide by the terms and conditions of the international treaties and conventions to which they are a party. Turkey's application to join the EC is currently being considered by the Commission. Once its opinion is available, the application will then be considered further by the Council of Ministers, which will take into account all relevant factors.
Lord Kilbracken: My Lords, I am grateful to the Minister for that Answer. Will he agree that under the treaty, to which the British Empire as it then existed, France and Italy were principal signatories, Turkey agreed that:
"No restrictions shall be imposed on the free use by any Turkish national of any language in private intercourse, in commerce, religion, in the press, or in publications of any kind or at public meetings … or … before the Courts"?
Is it not a fact that the 8 million to 10 million Kurds in Turkey, whose principal language is Kurdish, are permitted no Kurdish language books, newspapers, radio or TV programmes and no Kurdish-speaking schools, and that the use of the Kurdish language in the law courts is prohibited? Is that not in direct contravention of the agreement made by Turkey in 1923 at Lausanne, and should they not now be compelled to conform with their undertaking?
Lord Glenarthur: My Lords, the noble Lord accurately quotes from Article 39 of the Treaty of Lausanne. The difficulty is that there is an earlier
396
sentence in that article which may to some extent conflict with that which he has quoted. Nevertheless, we expect the Turkish Government to treat all their citizens with due regard to the terms of the relevant international conventions to which Turkey is a party, and this is such a convention.
Lord McNair: My Lords, will the Minister confirm that the Kurds make up approximately one-quarter of the population of Turkey? Might it be helpful to inform the Turks of the much more generous way that we treat, for example, the Welsh-speaking element in this country, a smaller minority, which has Welsh-speaking schools, a television channel and so forth?
Lord Glenarthur: My Lords, I am sure that the Turkish Government appreciate the importance of Welsh speaking in this country, particularly in Wales. Nevertheless, I do not believe that we can go down that particular road, although I confirm that the figures given by the noble Lord are broadly correct.
Lord Cledwyn of Penrhos: My Lords, I do not propose to deal with the noble Lord's intervention at this stage. Will the Minister confirm that his initial Answer means that Her Majesty's Government will make Turkey's approach to human rights a major consideration when the Turkish application for membership of the EC is decided?
Lord Glenarthur: My Lords, I am not in a position to say anything more about the EC application other than that it is now being considered by the Commission. I cannot predict what will happen or how long it will take. However, there are many other suitable avenues for ventilating the concerns which exist about human rights anywhere, and they include the European Convention on Human Rights, to which Turkey is a party.
Viscount Buckmaster: My Lords, does the Minister agree that Iraq's attacks on the Kurds over the past two years represent violations of human rights as terrible as any perpetrated worldwide since the end of World War II?
Lord Glenarthur: My Lords, I am well aware of many of the concerns which have been raised about the abuses of human rights to which the noble Viscount has referred. However, his question goes a little further than the Treaty of Lausanne.
Lord Kilbracken: My Lords, I do not know what the earlier sentence is to which the Minister referred in the Treaty of Lausanne, but could I direct his attention to another earlier sentence in Article 37? It states that Turkey undertakes that the stipulations contained in the article that I quoted shall be recognised as fundamental laws, and that no law, regulation or official action shall conflict or interfere with those stipulations.
Lord Glenarthur: My Lords, I also have that article in front of me, but I cannot interpret the Treaty of Lausanne from the Dispatch Box in quite the way

397
that the noble Lord suggests. I suspect that it is a matter for international lawyers.

Business
2.59 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Water Bill will be adjourned at approximately 7.00 p.m. for approximately one hour and that during this adjournment the Legal Aid (Functions) (No. 2) Order 1989 and the Beef Special Premium (Protection of Payments) Order 1989 will be taken.

Water Bill
3 p.m.
The Earl of Caithness: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Earl of Caithness.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES (LORD ABERDARE) in the Chair.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 91 A:
Before Clause 8, insert the following new clause:
("Duty to protect the environment and promote recreation.
—(1) This section has effect, in relation to a relevant body—

(a) whether or not that body is formulating or considering proposals as specified in sections 8(1) or 8(2) below; and

(b) notwithstanding any duty of the Secretary of State or the Director under section 7(2) or 7(3) or (d).

(2) The duties imposed under this section shall apply in relation to—

(a) any land which at the date of passing this Act was owned by a water authority or which has been acquired, or in which an interest has been acquired, by a water or sewerage undertaker at any times after that date, whether or not that ownership or interest is still held by the undertaker;

(b) any buildings, objects, flora, fauna or natural features or any land to which paragraph (a) above applies; and

(c) any river, reservoir, stream, canal or other waterway, or the banks thereof, and any beach or coastal area likely to be affected by the carrying out of any water or sewerage function.

(3) A relevant body shall, in respect of its functions under this Act, have a duty to protect the environment, further conservation and generally to enhance beauty and amenity in relation to any matters to which section 8 below refers.
(4) Subject to subsection (3) above, a relevant body shall, in respect of its functions under this Act, have a duty to promote public access to land and waters for recreational purposes.
(5) For the purposes of this section, "relevant body" means the Authority, a water undertaker, a sewerage undertaker, an internal drainage board, or any person who—

(a) has an interest in land or waters in which, at the date of passing this Act, was owned or leased by a water authority;

(b) undertakes any function which, at the date of passing of this Act, was undertaken by a water authority.").

The noble Lord said: Amendment No. 91A introduces a new clause before Clause 8, and your Lordships may think that is a rather curious procedure. It does that because Clause 8 is defective in so many ways that it is difficult to correct those defects within the scope of the clause as it has been framed.
As Members of the Committee will see from the Marshalled List, we have many detailed amendments relating to Clause 8, but we thought that it would be helpful to the Committee, rather than slowing matters down, if we tabled an amendment, Amendment No. 91 A, which deals with everything we think is wrong with Clause 8 and sets out the way in which we think the protection of the environment under this Water Bill should be handled.
The later amendments to Clause 8 deal with—and I set them out in only the barest outline because there will be a number of hours of debate on those subjects—first, the loose wording which exists and the fact that the clause continues to use words like "having regard to the desirability" of doing something rather than actually doing it; secondly, the matters which are left out of Clause 8 which should be put in—and examples of that are angling interests and the protection of coastal waters; and, thirdly and in particular—and this is a matter of which I give advance notice—the fact that the clause does not properly apply to subsidiary companies of water or sewerage undertakings.
Generally speaking, Clause 8 is weak because, as has been said on a number of occasions as we have considered this Bill, it is subordinate to the prime duty of the Secretary of State and the director general in Clause 7 to see that the water undertakings have an adequate return on capital; in other words, the interests of the environment, like the interests of the consumer which we discussed last week, come second to the profit motive.
Even if all these amendments were accepted there would still be a fundamental problem with the duties imposed on the Secretary of State, the National Rivers Authority, the Director General of Water Services and the relevant bodies—the relevant bodies being the water and sewerage undertakings. The problem is that the main duties contained in subsections (1) and (2) of the clause apply only when the undertaking or the director or whoever it may be is considering or formulating proposals relating to water plc land.
That makes Clause 8 essentially a defensive mechanism. It means that where there are proposals, there the director or the water undertaking has specific duties in order to protect the environment. In seeking to insert this new clause into the Bill, we are arguing that, even if all the other defects in Clause 8 were corrected, there is a need for a positive duty on the water and sewerage undertakings rather than simply a defensive duty which applies only when proposals are to be considered.
If there is no positive duty, there cannot be any realistic prospect of the environment having its true force, the force that it should have, against the prime responsibility for maintaining the profitability of

399
the water undertakings. Why—and I ask this in all humility because I realise that the structure of the Bill is very carefully thought out indeed—cannot the Government agree that there should be positive obligations on the Secretary of State, on the director, on the authority and on the water undertakings? Why do all those obligations have to be secondary to the profit-making interest?
That question is being asked not by me alone: it is clearly exercising the public of this country at large, because the deep opposition to these privatisation proposals does not arise from a public belief that water is a God-given commodity which should not be charged for. I believe that those romantic ideas are long past, if they ever existed. The problem is that people think water is such an essential and so naturally monopolistic a phenomenon that it should be subject to social criteria aimed at protecting the consumers and the environment rather than subject to the profit motive.
If the Government seek to convince the public as well as those of us on these Benches who think differently, then they must convince us that environmental interests have in the Government's mind at least equal priority with the other considerations. The Secretary of State has consistently called this an environmental Bill and has consistently talked about the National Rivers Authority—in that case with some justification—as being a step forward in the way in which we treat environmental matters. The acceptance of Amendment No. 91A and the insertion of this new clause before Clause 8 would show the Government's good faith in this matter and would enable them to give effect to what the Secretary of State and the government spokesmen have consistently said since this Bill in its present form was first formulated.
Perhaps I may now turn to the detail of the content of the new clause. Subsection (1) gives effect to the obligations, whether or not the water plc or authority is formulating or considering proposals as specified in Clause 8(1) or (2). It gives that effect regardless of the obligations under Clause 7(2).
Subsection (2) means that the clause will refer not only to the operational land of the water and sewerage undertakings but to all land and to that land regardless of the ownership in which it subsequently alights. That presages amendments which we have put down to ensure that the water undertakings cannot get out of their environmental obligations under this Bill simply by disposing of the land either to other companies altogether or, indeed, to their own subsidiaries. Therefore, it seems to us that if there is to be environmental protection for water authority land, that must be a continuing environmental protection, no matter in whose ownership the land is after privatisation.
However, it is not just land with which we are concerned. We are also concerned with buildings, objects, flora and fauna, with natural features on the land and with rivers, reservoirs, streams, canals, other waterways and the banks of such waterways. All those should be protected in the same way as the land is protected. The same is true of beaches and
400
coastal areas which might be affected by the carrying out of water and sewerage functions.
Clause 8 sets out in some detail—and we hope that after this amendment it will set out in even more detail—the precise duties which will exist for the Secretary of State, the authorities, the director general and the relevant bodies, the water and sewerage undertakings. However, if the detailed duties are not protected by this clause, they will be triggered only if proposals are put forward for different use of the land. We are rationalising this procedure and making sure that it is an abiding duty for all time on those concerned with the land. The proposals apply not only to what actually happens to the land but also to public access to the land. They apply not only to the authority, the water undertakings and the internal drainage board but also to those persons who have acquired an interest in the land which was formerly owned or leased by a water authority.
It is therefore fair to say that this new clause draws together the more important of the obligations which we believe should be placed on the water undertakings which will succeed the present water authorities. If the Government can see their way to agreeing to the amendment we will feel much happier not only about Clause 8 as it is presently drafted but also about the amendments which, as the noble Earl, Lord Caithness, has indicated, are to be introduced to Clause 8 to protect land of special environmental value. We do not know what those new amendments will propose. We do not attempt in any way to anticipate, either negatively or positively, what form they will take. The Minister was not able to say what form they will take; he was good enough to say that he would listen to Members of the Committee before making a final decision on what form they should take. That is clearly the correct procedure.
I hope that the Minister will feel that this new clause is a helpful contribution to our collective thinking, that he will agree that the principles embodied in it are worthy of inclusion in the Bill and that he can indicate the Government's acceptance of the amendment. I beg to move.
Lord Broadbridge: The purpose of this amendment, to which I have put my name, is, to use the language of solicitors, the avoidance of doubt. It seeks to specify comprehensively exactly what land and waters are to be conserved so that when the Bill leaves Parliament and has to be operated by others not close to our debates they will not be left in the unenviable position—alas, not unknown—of saying that it is all very well but Parliament did not make clear beyond an iota of doubt what exactly is to be protected.
In supporting this amendment I am most concerned with what might be called urban fringe land. I spoke on Second Reading and again on Amendments Nos. 2 and 8, which were taken together, in that context. Much is made of the risks to national parks, areas of outstanding natural beauty, SSSIs and the like. Such areas are already corporately protected, although it was gratifying, as the noble Lord, Lord McIntosh, said, to hear the Minister when replying to Amendments Nos. 2 and 8 say that

401
the Government will give special additional thought to the worries expressed by the Committee.
At that time the Minister differentiated between what broadly he called uplands and the urban fringe. In the context of the latter he wondered whether I was aware that some 500,000 houses have to be built by the year 2000. That may well be so, and the present and successive Secretaries of State will have the unenviable task of exercising the wisdom of Solomon in deciding where they should be built. However, I must mention—I promise this will be for the last time—that if the 29 acres of reservoirs and filter beds at Stoke Newington are to be taken as an example the present balance is between 1,100 luxury dwellings and associated shopping facilities on the one hand, and one of the few remaining large amenities, available to about 1 million or 2 million people living in inner north London, on the other. I feel that such a situation is replicated all over the country; otherwise I would not mention a parochial issue. It is a microcosm of situations which must exist elsewhere.
The amendment seeks to ensure that such an area is initially within the protection areas covered by the Bill by comprehensively specifying those areas. It is not only those areas of land and water having a high national profile of usage and enjoyment that need initial protection. There are also the areas about which I have spoken—a sort of rag-bag of often small locations that could easily be totally changed. They may not be of national importance; they may be small; but they are a vital lung to a surprisingly large number of people, many of them elderly, some of them young, and in either case often poor. Such people enjoy these crucial areas daily. I do not consider it an exaggeration to say that it is a part of what keeps them out of psychiatric treatment.
The amendment is designed to be helpful and constructive, not divisive or wrecking. I hope that Her Majesty's Government will accept it in the spirit in which it is offered and not, to bend a rather well known aphorism, take the stance of, "Beware of Greeks, especially when they bring gifts".
3.15 p.m.
Lord Ross of Newport: I speak briefly in support of the amendment. Clause 8 will alarm anyone who looks at it closely. It is lamentably weak. It is full of sentences such as, "having regard to", "taking account of", and "having regard to the desirability of". That does not satisfy anyone who has an interest in conservation. I do not think that it can be said that so weak a Bill will conserve.
With these amendments we seek to move from the defensive to the positive. Why is it not possible for positive environmental duties to be included in the Bill? The Minister has said that he is prepared to come forward on Report with amendments to Clause 8; we all appreciated that. He said that he would listen to suggestions. I suggest one possible way forward. For land with environmental prospects the Government could offer to the water authorities a long lease of, say, 999 years with restrictive covenants. That is one possibility. It would not be particularly difficult and certainly there are many
402
bodies, such as the NCC and the Countryside Commission, which could advise the Minister on what land should be transferred. That would be a positive step, though it probably does not appeal to the Minister.
In the meantime, the amendment goes to the root of the matter and, if accepted, would please many in the Committee who have later amendments dealing with individual subjects such as fishing, and so on. Therefore, I hope the amendment will receive a sympathetic hearing.
Viscount Caldecote: I have considerable sympathy for the objectives of this amendment. My understanding of it is that there are two aspects. The first is continuity of protection, on which the noble Lord has just spoken. It is an obvious point that I hope the Government will take on board because there is no point in protecting the use of land and water areas which now belong to the water undertakings and abandoning that protection if and when the land is sold.
Secondly, subsections (3) and (4) of the proposed new clause refer to conservation and recreation. Both are important, but I am not sure that I am entirely happy about always putting conservation in front of recreation. It is, of course, a difficult balance to be held, but I should like to emphasise the great importance of recreational opportunities for the young. We shall come back to that point later in the Bill. There is no doubt that much hooliganism today is because young people do not have enough outlets for their energies. They need interesting and challenging recreational activities. Sailing is one of those activities. Sailing and racing on reservoirs and rivers constitute a very important outlet for young people. I hope that the Government will give a firm indication that they support that principle, whether or not the amendment is the ideal way of achieving it.
Lord McIntosh of Haringey: Before the noble Viscount sits down, it is not intended in this amendment that conservation should have priority over recreation. It is simply that the words have to be in one order or another. There is no intention whatever that full attention should not be paid to recreation. There is, of course, sometimes a conflict, as the noble Viscount will recognise, between access and recreation. That is a professional or technical matter; it is not an issue which we intend to pre-judge in our wording of the new clause.
Viscount Caldecote: I was very glad to hear what the noble Lord said. The wording of subsection (4) "Subject to subsection (3)" implies that subsection (3) is more important than subsection (4). No doubt that point can be dealt with in subsequent amendments.
Lord Renton: I must agree with my noble friend Lord Caldecote about the need for continuity in planning arrangements. We had a discussion about that last week. I do not wish to repeat the argument that I and others put forward. The obvious need for continuity is that you do not get adequate protection

403
of the environment unless you have it. It is not fair on the people whose interests are involved if we do not have continuity, and if we are always chopping and changing the policy.
Having said that, I do not see how anyone can disagree with the broad motives of the noble Lord, Lord McIntosh, in putting forward the amendment. As I see it, his trouble is that those motives are already embodied in Clauses 8, 9 and 10 of the Bill and are set out in very considerable detail. The actual words of the amendment used sometimes overlap with the words in those subsequent clauses, especially Clause 8. I believe that if we were to add this clause to the Bill before Clause 8, we would be making a very confused situation in the reading of the Bill on this vitally important subject. I grant that this is one of the most important matters for us to be considering in connection with the Bill. I shall be very interested to hear what my noble friend Lord Caithness (or whoever is to answer for the Government) has to say. I would not expect them to accept the amendment as it stands.
The Earl of Onslow: As my noble friend Lord Renton said, I do not believe that anyone can in any way disagree with the motive. I believe we have to be quite careful about preserving the Stoke Newington filter beds as if they were the Pyramids of Egypt or the Colossus of Rhodes. After all, they were created by man. If we are not very careful and the filter beds are not looked after properly, they could easily become derelict industrial wasteland. I see the conflict, and I see that it is essential in that part of London to produce proper recreation and conservation with proper access to wildlife. There should be proper access to all the things that almost all Members of the Committee have been privileged to have. We must be very careful how it is done. One has to consider whether one should apply a special piece of legislation to one's old chums to build the roads in Stoke Newington. I am not totally sure whether that is right.
We must wait until Report to see the amendment of my noble friend Lord Caithness on this very subject. I hope that he can get the amendment published as quickly as possible so that we can have almost a pre-Report stage discussion at some later stage in the Bill when it can be tagged on. If views emerge that modify the amendment a little and make it a little better, then those changes can be taken in before the amendment is finally tabled at Report stage. The point that the noble Lord, Lord McIntosh, has raised is absolutely valid. We must not preserve the Stoke Newington filter beds solely and forever. It seems equally important that we must get the Government's proper thinking and allow the planning process to take its due regard as well. This is too complicated and it seems that there are many balls in the air at the same time. All these matters should be looked at very carefully before we take a decision on what the noble Lord, Lord McIntosh, wants.
Baroness White: Perhaps I may pass from Stoke Newington to the highlands of Wales. I have here a
404
report of a public meeting held by Welsh Water on Friday of last week. The heading in the local newspaper of Saturday morning is "Hotels plan for private reservoirs". The article continues:
"Hotels and leisure developments may be built overlooking lakes and reservoirs in Wales after Welsh Water is privatised. But the authority's chiefs stressed yesterday that any construction on some of the most beautiful stretches of Welsh countryside would be 'sensitive' to the environment".
The article goes on to explain that on the assumption that privatisation is to take place, Welsh Water will be subdivided into subsidiaries. This brings emphasis to the point made by the noble Lord, Lord Renton, and others, that unless one has continuity of responsiblity, a great deal of Clause 8 will be of little value. The report continues by stating that while the core functions of Welsh Water will be carried out by Dwr Cymru—that is simply Water Welsh in Welsh—there will be three other subsidiaries; namely, Welsh Water Engineering and Environment, Welsh Water Enterprise and then the subsidiary which is connected with this proposed new clause, Welsh Water Land and Leisure.
It is made quite clear that:
"Land and Leisure will be a self-contained profit making subsidiary. Profits will not be transferred to Dwr Cymru to keep down water prices but it may make up a substantial part of the dividends to shareholders".
We are given the assurance by the current managing director of Welsh Water, reinforced by his chairman, that:
"Welsh Water Land and Leisure will make 'commercial use of the company's land and recreation assets in a very sensitive way' ".
I am quite certain that they are entirely sincere in this intention, but what concerns most of us is surely how sensitive can the new subsidiary company afford to be? I am quite certain that it will start off with the best of possible intentions. It is made entirely clear that it will have to provide profits for the shareholders. I am not arguing that particular point concerning the consumers and the prices. Under the Bill such an undertaking will be entirely legitimate. It has now been publicly announced, regarding the areas of the other water authorities that are to become plcs, that they will do very much the same, and they will seek to exploit any landscape or other features at their disposal. The Welsh situation is similar. It will be very difficult indeed for them to resist maximum exploitation. One cannot blame them for that because that is the nature of the new creation. However, it makes it absolutely essential that in dealing with this situation, and if we really care about the environment—the beauty of the landscape, wildlife, the flora and fauna and other natural and archeological features—we make quite sure that Clause 8 is adequate.
With the greatest respect to the noble Lord, Lord Renton, in particular, no one can really pretend that Clause 8 as at present drafted is anything like adequate to meet the situation that I have described, and which I have every reason to suppose will be affecting the majority of the new water plcs. I am equally sure that most of them will wish to carry out their duties quite conscientiously. I am equally convinced that they will find that the pressures on them when they become commercial companies will

405
be such that they will almost certainly be led into putting forward development schemes which may or may not get past the planning authority. If they do, then in many situations they will not be the most desirable ways of treating areas of beautiful country which many of us would wish to see not developed unnecessarily, but to remain peaceful and calm and a refreshment to those who wish to go to them.
3.30 p.m.
Baroness Phillips: I should like to underline what my noble friend has just said and ask the noble Lord, Lord Renton, this question. How many times have we heard the argument that as this will already be covered in the Bill we do not need it again? It is better to have it in the Bill twice than not to have it at all. There is always the danger that there will be something slightly different in the amendment from the words already contained in the clause.
I want to take up one point with my noble friend on the Front Bench. As a Christian I happen to believe that water is God-given. Of all the government privatisations, this is the one for which they will have to answer later to the Almighty. Water is there for man to use. We must keep that point firmly in front of us.
On conservation, and following the points about Wales and Stoke Newington, in Fulham where I live there is great competition to get the river sites so that expensive flats can be erected. Such flats would look over the river at a beautiful open space. What is that beautiful open space? It is the Barnes reservoir. When I was a small girl I was always told that it would never be taken away and that it was there in perpetuity. It is a beautiful space which we in London value. We should think carefully before we allow anyone to destroy the open spaces, the trees and the plants which are there for enjoyment and recreation. Surely the Government could for once write something into the Bill twice. Does it really matter? The strange argument is always used that the Bill already says this. If the clause is not clear—and with due respect to the Government, it is not clear—what is wrong with underlining the point with this amendment?
Viscount Buckmaster: The noble Baroness may like to know that the Moslems have a saying, "We have created from water every living thing".
Baroness Lockwood: Perhaps I may follow my two noble friends and other noble Lords and take the Committee on a geographical tour of the country, from Stoke Newington to Wales, and from Fulham up to the Yorkshire Moors and Dales. This matter affects not only areas like London but all the large industrial towns in our country. Most of them have reservoirs and areas of land which are well used in the vicinity by local inhabitants. In Yorkshire one thinks of the Washburn Valley, which provides a real amenity to the citizens of Leeds and Bradford. It is not part of the Yorkshire Dales national park but is nevertheless not only an amenity but a recreational area where young and old can come to enjoy the countryside and begin to
406
appreciate the flora and fauna and other natural beauty in the area.
Noble Lords have talked about the importance of continuity. That is embodied in the amendment. We are not just thinking of the water undertakings as they are at present but as the water plcs which might either subcontract or sell some of the land. The rights embodied in the amendment would go with the land so that a company which took it over would be equally responsible for fulfilling the obligations. My noble friend Lord McIntosh spoke of the amendment as a defensive mechanism and went on to point to the positive duty embodied in it. There is a positive duty to protect and conserve the environment and to enhance its beauty and amenity. The clause gives as much weight to the importance of this function as is given to the responsibilities embodied in Clause 7.
Unlike the noble Lord, Lord Renton, I do not feel that Clauses 8, 9 and 10 in themselves are adequate protection. We need something to balance the obligations in Clause 7 to make these undertakings subject to the overriding business and profit principle. The Minister has on previous occasions assured us that there is protection in the Bill. Many people are not convinced by that argument and they would like something specific and positive written into the Bill. I hope therefore that he will be able to accept the amendment.
The Earl of Halsbury: Perhaps I may rise on a purely technical point of draftsmanship with particular reference to the point made by the noble Lord, Lord Renton. I have always been taught that, from the standpoint of what I might call the aesthetics of draftsmanship, the general should precede the particular. The most general aspect of the Bill is its Long Title. Clause 1 is the most general clause and so on, following in order throughout the different clauses, where the general precedes the particular. If the amendment of the noble Lord, Lord McIntosh, is of a more general character than Clauses 8, 9 and 10, which follow, the point made by the noble Lord, Lord Renton, fails. If, on the other hand, it is as particular as what follows, there could be confusion between the different aspects. The noble Lord's point would then have substance.
Lord Ezra: The number of noble Lords who have intervened in the debate on this amendment demonstrates the importance attached to it. In fact, that is a reflection of public opinion. The public is concerned about what will happen to the land which is associated with the water industry and which has substantial environmental and recreational impact. It would be in the Government's interest to show beyond any doubt that it is their intention to safeguard those aspects. That is what the public wants. Clause 8 as presently drafted does not go far enough. If, as some noble Lords have suggested, some duplication of what is said in the Bill is necessary, so be it. Let us duplicate on a point of real public concern.
The noble Lord, Lord Renton, made an important contribution to our discussion. However, he accepted that continuity of the environmental and

407
recreational aspects of the land is important. This has to be emphasised beyond doubt. The noble Earl, Lord Caithness, said at an earlier stage that the Government would introduce measures to safeguard this land and would do so at a later stage. I hope that when he comes to reply to the debate he will tell us what he has in mind so that our doubts can be set at rest. The Committee attaches the greatest possible importance to maintaining the environmental and recreational benefits offered by this land. We want them to be retained not only in its present ownership but in any future possible ownership. We look to the Government to make sure that that is enshrined in legislation.
Baroness Carnegy of Lour: Unfortunately I missed the beginning of the speech of the noble Lord, Lord McIntosh, so I may have misunderstood his amendment. Does it say that any land which at the date of the passing of the Act was owned by a water authority will in perpetuity, whoever owns it, continue to have its environmental and ecological protection and public access organised by a water or sewerage undertaking? Is that what it says? It is terribly important that land which is not necessary to the undertaking but which is wanted by the public for public access—and for which the planners want to ensure that there is such access—may be owned by a number of people who would need to organise their own protection of the environment and their own public access without any interference which may arise just because the land happened at one time to be owned, for whatever reason, by a water authority. I wonder whether I have perhaps misunderstood the meaning of the amendment.
Lord McIntosh of Haringey: The noble Baroness has raised an interesting and most helpful point. The intention is that those who receive land under the Act—that is, the water undertakings—shall have a continuing responsibility whether or not they continue to own the land. Such undertakings, as they dispose of the land, must secure adequate covenants to give effect to the provisions under this clause and under Clause 8. That is a well-established procedure which exists in many circumstances in the private sector.
My wife and I own a house in London which used to be a tennis club. The covenant dating back to the 1920s on the club stipulates reasonably that no alcohol shall be sold on the premises. There is also a continuing covenant, which my solicitors drew to my attention when we bought the premises, that no alcohol shall be consumed thereon. I think that we have managed to find our way round that particular covenant. The principle of a continuing covenant on the disposal of land is not one which is foreign to our law and there need be no difficulty in ensuring that continuing obligations are carried out.
From the public point of view it is absolutely essential that there should be continuing obligations regardless of who the current owner of the land is. The relevant bodies—in other words, the undertakings who receive the land under the
408
Act—must be the people who are responsible in the first place for imposing the covenants.
The Earl of Radnor: The point should be made that control by covenant is not nearly so strong as it used to be. Moreover, it is very dependent on the previous owner having influence over whatever is sold and upon which the covenant is held. I can imagine that that might not necessarily be the case with a water plc selling on something to someone else; indeed, it may not have any influence in that particular geographical area. Therefore if the matter came before the courts it would be found that the covenant was not as valuable as we seem to think it is at present.
Lord McIntosh of Haringey: I am grateful to the noble Earl for that helpful point. It seems to me that what we are gathering from this discussion is that all Members of the Committee who have spoken thus far are in favour of the principle of continuity. Indeed, that includes the noble Lord, Lord Renton, and the noble Earl, Lord Onslow. If so and if it is the case, as the noble Earl, Lord Radnor, suggested, that the covenant procedure is not adequate, then we must find a way of ensuring that the Act makes that protection available.
Baroness Carnegy of Lour: I think the fact that the noble Lord, Lord McIntosh of Haringey, had to find a way around the covenant as regards alcohol when he bought his house is a good illustration of what my noble friend has just said.
Baroness Blatch: The two explanations which we have just received from the noble Lord, Lord McIntosh, are most helpful. They emphasise just how much the main objective is shared by all participants in the debate; that is, continuity and continued access to all of these sites. But the amendment goes a little too far. Subsection (2) refers to "any land", "any buildings, objects, flora, fauna", and "any river, reservoir", and so on. It seems to suggest that if the amendment were accepted—again it would be helpful to have further clarification—there would be no varied land use of any piece of land, or any building, which could be owned by a water authority either prior to the passing of the Bill or subsequent to its enactment. Therefore I think that that provision would be too all-embracing.
I am reminded that both on Second Reading, and subsequently in this debate, my noble friend the Minister has promised that an amendment is to come from the Government at some stage. The amendment will protect the interests and concerns which have been expressed by all speakers in the debate. Therefore I should prefer to wait and listen to what the Minister has to say on the matter in terms of protection of these areas of special interest and to see the amendment which will be put forward in due course by the Government.
The Earl of Caithness: It is a tradition of this Chamber that it gives particular care and attention to the protection of our environment. With its ability to stand back and take a long-term view it is

409
invaluable that it should do so. It is therefore entirely in keeping with that tradition that the three clauses—namely, Clauses 8, 9 and 10—before us today have evoked exceptional interest and a particularly diverse range of proposed amendments and additions.
But, if the clauses are few, they are of considerable breadth and complexity. So I begin, if I may, by complimenting the noble Lord, Lord McIntosh of Haringey, for providing, in the first amendment, one which precisely distils a number of fundamental issues to which many have been giving careful thought. If to distil the issues were to solve them, I would be in the happy position of beginning today's proceedings with full agreement. But, inevitably, that is not the case and for fundamental reasons I cannot do so. However, because the noble Lord has distilled all today's discussion into one amendment, and because there appears to be some misunderstanding of the Government's position and their intentions, I hope Members of the Committee will bear with me if I take some time to reply.
Perhaps I may start by sketching the background and identifying certain general considerations which will be relevant to all our proceedings today. As the Committee will be aware, Clause 8 carries forward and develops, in various ways, the duties on water authorities in the Water Act 1974 and the Wildlife and Countryside Act 1981 in respect of conservation, access and recreation. There has been a tendency in discussion of the Bill elsewhere to portray our proposals here as too limited. In this area I suspect it is impossible to satisfy everyone, but I hope that Members of the Committee will not lose sight of three particular considerations.
First, the duties—particularly that of further conservation—are stronger than those which attach to any other industry in the private sector or in the public sector. I wonder how many noble Lords would have expected a year ago that any government would place a duty to further conservation on new private companies. That is an unprecedented step. I hope that noble Lords will not lose sight of the fact that it is a unique marriage of private status and public responsibility in this area.
Secondly, the duties are modelled closely on those already applying to the public water authorities. We regard this as a merit because it ensures continuity of practice and legal interpretation. In the last 10 years those duties have been a success. In many areas the water authorities have a proud record in conservation. And for all the well-orchestrated complaints the fact is that the water authorities have increased public access to their land in recent years.
The third consideration is the need for balance. This Chamber rightly places great emphasis on conservation and environmental matters. As I said, it is able to take a long-term view and the Government listen particularly to it on these matters for that reason. But there is always a temptation to go further for the sake of doing so. I know that the Chamber would not resort to that: it would be inappropriate because what we propose is not the minimum we thought might prove acceptable. On the contrary, it is what the Government regard as the right balance
410
between environmental obligations and all the other needs and objectives that need to be served.
I make these three points now, not to make them again, at least for a while. But I hope that Members will not lose sight of them as we move through the many proposals before us today and particularly this first amendment.
The origin of this particular amendment may be speculated upon. The noble Lord collected his checklist of matters in Clause 8 which have been the subject of any doubt in another place or outside this Chamber and sent instructions to his crack team of draftsmen, "Give me a clause that solves all possible problems, squares all obvious circles". The amendment is wide-ranging and sweeping indeed. It cuts out any subordination to the general duties in Clause 7; it cuts out the limitation of the duty to the relevant body's performance of its function. It deals at a stroke with all issues related to disposal of land and makes any possible protection run for ever, in any circumstances, under any future owners; and it frees public access from any sort of constraint or limitation.
Now, all those separate issues are to come before the Committee in the 29 groups of amendments which follow. And that is how we should deal with them: separately, fully and on their merits, which is how, until the last possible moment on Friday, it seemed that we would deal with them. But then the noble Lord, Lord McIntosh, in the adept way to which this place is now well accustomed, pulled the rabbit from the hat. Well, the proposal is here and we must deal with it. The question the Committee must consider is whether it is not so flawed—flawed not in detail but in substance—that it should find no place in the Bill. To assist in this, let me deal in turn with each of the subsections of the amendment and the particular issues that they raise.
I begin with subsection (1), which is by way of preamble and has two parts. Paragraph (b) states simply that the clause shall have effect notwithstanding the duties of the Secretary of State and director in Clause 7; but of course that must be the case because, unlike Clause 8 itself, this new clause does not apply to the Secretary of State and director general.
Well, what are we to infer from this? What we infer is that the proposers have simply evaded the issue. They recognise, I suspect, that if the Secretary of State and director are to be subject to the duties, the relatonship to Clause 7 must be dealt with—and that can only realistically be done in the way the Bill does it—by making Clause 8 and any new clause subject to Clause 7 so far as the Secretary of State and director are concerned; but, to avoid being forced to the sensible position in the Bill, the new clause simply omits the Secretary of State and director from the duties. That loses more than it gains, for all parties involved in these matters should be subject to the same general environmental duties.
Subsection (1)(b) simply dodges the issue. But it is in subsection (1)(a), which deals with the relationship of the duties to functions, that the clause really begins to fall apart. For what do we find? In (1)(a) it is declared that, unlike Clause 8, the duty shall

411
apply whether or not the relevant body is formulating or considering proposals related to its functions. The link to functions, it seems, is to be severed. With one bound, or so it seems to the reader, we are free. But hold on. For further down, in subsections (3) and (4) we are told that actually the duties apply only in respect of the relevant body's functions.
What are we to conclude? We are to conclude, I suggest, that the underlying purpose may have been to end the link to functions; but then inescapably, inevitably, back we find it had to come. The particular conservation and other duties in question are there because they are specially relevant to the functions of the water industry; but they have no special relevance to all those other activities which, in common with all other companies, they may engage in, and which have nothing to do with the functions which Parliament expressly requires the water authorities to perform.
I now turn to subsection (2), with which I must associate subsection (5). Together they define when the duties arise, who are the relevant bodies for purposes of the clause and in what circumstances land is to be protected by them. The key points are not only that subsection (2) applies the duties to any land held by the relevant bodies, but also that they are applied for ever and a day through subsection (5), which imposes the duties on any successor owner who may in future acquire ownership of any water authority land. The difficult issues of the need for special protection for certain special categories of land in special circumstances are dealt with in the most radical way possible.
Once more, with one bound, we are free. Or are we? Subsection (5)(a) certainly tells us that anyone who acquires the land acquires the duties; but then, just to spoil it, subsection (5)(b) starts talking about functions again. The key question is whether, for a body to become a relevant body and acquire the duties, both conditions have to be satisfied or just one. We look to the clause for clarification. Are the two conditions linked by an "and" or by an "or"? As neither appears, we have no clarification. The uncomfortable fact is that the draftsman has collided with the reality the proposers so obstinately ignore. If we are to read in an "and", then the clause does not change the sensible position in the Bill; but if the duty can fall on any person simply because he acquires the land, simply because it was at one time water authority land, and regardless of the acquirer's possibly totally different functions, we have an absurdity.
That absurdity is at its most stark with regard to formerly operational urban land. Never mind whether it has any merit on conservation and amenity terms; forget future—indeed present—needs which might conflict with this: housing, employment and all those other considerations that a responsible government must weigh and a responsible opposition should weigh. What a proposal—a proposal to extend state interference in perpetuity in the long-term use of private property. That on a day when the Labour Party has apparently moved to abandon its Marxist heritage.
412
The noble Lord, Lord Broadbridge, said that when considering decisions in the future, the Secretary of State must have the wisdom of Solomon. What he really meant was that the Secretary of State must have the wisdom of Solomon but he is not allowed to exercise it here. If the effect of these subsections is as I have described, I am bound to say that the proposal lacks that essential ingredient to which I previously referred. It lacks balance. It is injudicious. It is unsafe and unsound.
We are then left with the two central subsections, which set out the actual content of the duty. Subsection (3) refers to protecting the environment, furthering conservation and enhancing amenity, much in the terms of the Bill as drafted, and I have no quarrel with them. But subsection (4) imposes a duty to promote public access to water authority land for recreation. That is a different matter. It goes beyond what we propose, and it is dangerous because it is unqualified in any way. First, it covers not just the places of natural beauty and amenity referred to in the Bill as drafted, but all undertakers' land; any urban depot or sewage works to which people might, for reasons best known to themselves, wish to have access for recreation; secondly, it is not subject to any qualification such as, "so far as practicable" or, "reasonably practicable". The undertakers shall promote public access, and that is that. Never mind possible conflicts with operational needs, the costs that could arise, safety considerations, or the owner's liabilities. Thirdly, the undertaker is to promote public access not only so long as he owns that land, but even in the act of sale and thereafter.
As the Committee is aware, the Government support continued protection and indeed enhancement of public access to water industry land, where appropriate and practicable, and subject to reasonable constraints. As we shall see when we debate that topic, nothing in the Bill prejudices that. However, the effect of this subsection would be to sweep away all those reasonable constraints. Here again, the proposal lacks balance. It is unwise. It is too open-ended, and is unsound.
My noble friend Lord Onslow raised the important point of the assurance that I gave at an earlier stage. I fully take on board the necessity to bring the matter to the Committee's attention as soon as possible, but until I have heard all that the Committee has to say it is difficult for me to bring it forward. Of course I cannot tell the noble Lord, Lord Ezra, what the amendments are until we have listened to and considered what the Committee says. The noble Lord's interpretation of listening and considering is rather different from mine.
I have now reviewed each of the subsections and all the key issues the proposed new clause raises. In each respect the clause is found to be fatally flawed—flawed not just in details or technicalities which we would happily leave our draftsmen to disentangle for us, but in its fundamentals. Time and again it evades issues or contradicts itself. At every turn it collides with reality.
The proposed amendment has nonetheless served a useful purpose: it has focused on major issues and allowed us to take a broad view, as we should; and

413
for that I thank the noble Lord who proposed it. That being so, I hope that he does not feel bound to press it to a Division. If he does so, then I am bound to advise the Committee that, being so flawed in its fundamentals, and scattering its shot in all directions, it should find no place in the Bill.
Where then would that leave us? It would leave us where we were on Friday, before the rabbit was pulled from the hat—with 29 sets of amendments which enable us to deal, separately and on their merits, with all the different issues that these clauses raise. I can assure the Committee that from this Bench we shall approach them in an open and constructive manner. We have already said that we should, and in due course will, find a means to deal with the main outstanding difficulty: the need to provide some permanent protection for sites of particular conservation and amenity value. The noble Lord tried to pre-empt my assurance to the Committee on day one by dividing on the second amendment. I repeat that assurance again. I hope on reflection that Members of the Committee will not spurn it. Our minds are open and they will remain so on all the following issues and matters on which I look forward to hearing the views of Members of the Committee.
4 p.m.
Viscount Caldecote: Perhaps I may ask the noble Earl one short question. He referred to the continuing protection of conservation and amenity values. Does "amenity" include recreation?
The Earl of Caithness: There is a considerable amount of recreation on water authority land at the moment. As I said, it has been increased in the last 10 years. That too is a matter which we shall be debating.
Lord McIntosh of Haringey: I am always pleased when the noble Earl feels it necessary to depart from the departmental brief and go to the Conservative Central Office brief—or is it the Prime Minister's speech writer who wrote the piece about former Marxist traditions in the Labour Party? I do not think that comes from Marsham Street. I shall save myself the pleasure of responding to the noble Earl's speech until I have dealt with the remarks of other noble Lords who have taken part in the debate.
It has been a helpful debate, not least because it has revealed an all-party, I would say a universal, concern that the Bill as drafted does not provide the full degree of protection, particularly continuity of protection for the environment, which not just pressure groups and interest groups but the people of this country as a whole expect from us in going through a Bill.
The noble Lord, Lord Renton, was particularly concerned about the danger of overlap with Clause 8. But I thought that the noble Earl, Lord Halsbury, dealt with that very effectively. Our new clause refers in subsection (3) to,
"any matters to which section 8 below refers".
As the noble Earl, Lord Halsbury, suggested, it is intended as a general statement of the principles
414
which ought to be adopted in considering Clauses 8, 9 and 10. As the Minister rightly reminded us, all of those are concerned with the protection of the environment. Again as he rightly reminded us, these are extremely complex measures.
Our concern is that complexity in this case has not produced clarity. At the end of the day what we need is clear and unambiguous commitments to the protection of the environment. Particularly with the subordination of Clause 8 to Clause 7, that is simply not available under Clause 8 as it is drafted. Our tabling Amendment No. 91A on Thursday afternoon was an attempt to help the Government rather than the reverse. It was an attempt to clarify the whole range of issues which, as the Minister rightly said, are embodied in the 29 groups of amendments to be considered today.
We take the view that it does not matter how sympathetic the Government will be to the 29 groups of amendments. I do not know whether I am right in drawing the conclusion that the Minister will be sympathetic to some of them. Maybe I am too naive and anticipating too much, but he certainly seemed to indicate that there was a degree of concern which the Government shared on these matters. However, as Clauses 8, 9 and 10 passed through another place with inadequate amendment they will still be inadequate to protect the environment. If that is the case, then as we rise at the end of the evening we shall be very pleased to have achieved more.
However, I do not think that is what the people of this country want. I think that they want in the first instance not just amendments at the margin. They want those, and we shall pursue them. But they want a clear statement of the Government's intention not to allow water privatisation to damage our environment. It is not a question of imposing new duties on anybody; water authorities are at present under public control. As citizens of this country, ultimately we have the power through our democratic process to control what the water authorities do with our land which is in their ownership. It is our land; it is the people's land. That is above all what the amendment is intended to protect.
I do not think that we would be right to accept the suggestion of the noble Earl, Lord Onslow, that we should wait for the Government's amendments. The Minister himself in his reply did not indicate that we should do that. He suggested, I think rightly, that we should continue to discuss Clauses 8, 9 and 10 as they are before the Committee and that he and the Government would take into account what amendments required to be brought forward as a result of the Committee's discussion. I take that to be the correct view.
As we have the responsibility of putting down amendments at this stage, we should for our part seek to secure the best result on Clauses 8, 9 and 10 and in the new clause preceding Clause 8 that we can, and that should be the basis on which the Government will consider what further amendments are required. I see no constitutional difficulty in that; no argument against our amendment that the Government have given a necessarily imprecise—I

415
am not complaining—indication of future concessions. In order to help clarify the Government's mind, we must do the best we can. I have no doubt that my friends who have prepared the amendment will be delighted with the phrase, "crack team of draftsmen", but it is much less cynical and much less instrumental than the Government seem to think.
I listened with great care to what the noble Earl said about our amendment. Until he came almost to the penultimate line, I did not find any serious or effective criticism of the drafting. The one case where I think we are at fault is in the failure to put "and" or "or" between sub-paragraphs (a) and (b) in subsection (5). If I were to say to the noble Earl that yes, he indicated that "or" would be preferable and if he agreed to the amendment I would ensure that at Report stage the word "or" was inserted, would he then agree to the amendment? I think not. Of course he would not, because it is nothing like as important a matter as he claims.
However, that was the only defect of any substance which was brought forward against the amendment because, as a whole, it deals with the problems which are before the public mind. It deals with the problem that Clause 8 in particular only refers to proposals which come before the undertakings. It deals with the problem that all the protections in Clause 8 are subordinate to the profit-making obligation in Clause 7. It deals with the problem that the obligations do not continue after the undertakings dispose of the land, whether to a third party or not, and even to a subsidiary, as my noble friend Lady White set out very clearly. The amendment deals with that problem. The government clause does not deal wih it. The amendment defines more clearly than the Government have ever done in Clause 3 the nature of the duties to protect the environment. It deals in subsection (4) with the question of public access to land, which is inadequately dealt with in the clauses as we have them.
In his opening remarks, the Minister sought to suggest that these were unprecedented obligations on private companies. I suggest to the Committee that these are unprecedented private companies. What they have is complete control of a natural monopoly on something that is essential to all of us. Any company, private or public, which has the privilege of supplying the British people with something which is essential to them, and supplying it on a monopoly basis, must have extra obligations imposed upon it. The British people require that as consumers of water, as inhabitants of this country and as those who are concerned with the preservation and conservation of this country's environment. It is on those bases that I move this amendment.
The Earl of Onslow: Surely it is a total waste of time to walk around in circles. The noble Lord knows perfectly well—he has said it before—that arithmetic will mean that he loses this matter. On Thursday night, by sweet reason, eloquence and powerful argument, my noble friend Lord Caithness was persuaded to do something. I think this Chamber will listen to reason. My noble friend Lord Caithness
416
has said that he will come forward with an amendment which will deal very fully with this matter. Obviously, we should like to hear a lot more about what is contained in that amendment. I am totally in agreement with what the noble Lord wants to do; but I think that walking around in circles to a pre-determined mathematical result is a waste of everybody's time.
Lord McIntosh of Haringey: I am the first to congratulate the noble Earl in achieving success with his amendment on Thursday night. I think that was well worth doing. But I have to remind the noble Earl that what he contemptuously described as walking around in circles—or what outside this Chamber could be described as walking around in a circle down to the polling station and back again—is rather an important part of our democracy. It is important for our democracy that we express our opinions. People outside this Chamber, as well as Members on these Benches, expect us to express our opinions as clearly as we can. We do not always do so in the expectation of immediate success, but in the expectation that people will understand that what we are saying is right. I think this amendment is right. I hope I shall not have to make a second peroration on this amendment and that the Committee will be prepared to proceed to a Division.
4.12 p.m.
On Question, Whether the said amendment (No. 91 A) shall be agreed to?
Their Lordships divided: Contents, 92; Not-Contents, 108.

DIVISION NO. 1

CONTENTS

Addington, L.

Howie of Troon, L.

Amherst, E.

Hughes, L.

Ampthill, L.,

Jenkins of Hillhead, L.

Ardwick, L.

Jenkins of Putney, L.

Aylestone, L.

Kennet, L.

Blyth, L.

Kilbracken, L.

Bonham-Carter, L.

Kilmarnock, L.

Boston of Faversham, L.

Kinloss, Ly.

Bottomley, L.

Lawrence, L.

Briginshaw, L.

Leatherland, L.

Broadbridge, L.

Listowel, E.

Bruce of Donington, L.

Llewelyn-Davies of Hastoe B.

Buckmaster, V.

Carmichael of Kelvingrove, L.

Lloyd of Kilgerran, L.

Lockwood, B.

Carter, L.

Lovell-Davis, L.

Chitnis, L.

McGregor of Durris, L.

Cledwyn of Penrhos, L.

McIntosh of Haringey, L.

Davies of Penrhys, L.

McNair, L.

Dean of Beswick, L.

Mais, L.

Dormand of Easington, L.

Mason of Barnsley, L.

Elwyn-Jones, L.

Mayhew, L.

Ezra. L.

Milner of Leeds, L.

Falkender, B.

Molloy, L.

Falkland, V.

Mulley, L.

Fisher of Rednal, B.

Nicol, B.

Foot, L.

Ogmore, L.

Galpern, L.

O'Neill of the Maine, L.

Graham of Edmonton, L.

Peston, L.

Greenhill of Harrow, L.

Phillips, B.

Gregson, L.

Ponsonby of Shulbrede, L. [Teller.]

Hampton, L.

Hanworth, V.

Rathcreedan, L.

Hirshfield, L.

Rea, L.

417

Reilly, L.

Strabolgi, L.

Ritchie of Dundee, L.

Taylor of Blackburn, L.

Rochester, L.

Taylor of Mansfield, L.

Ross of Newport, L.

Tordoff, L. [Teller.]

Sainsbury, L.

Turner of Camden, B.

Seear, B.

Underhill, L.

Serota, B.

Wallace of Coslany, L.

Shepherd, L.

Walston, L.

Somers, L.

White, B.

Soper, L.

Williams of Elvel, L.

Stallard, L.

Wilson of Rievaulx, L.

Stedman, B.

Winchilsea and Nottingham, E.

Stewart of Fulham, L.

Stoddart of Swindon, L.

Winstanley, L.

NOT-CONTENTS

Airey of Abingdon, B.

Hives, L.

Alexander of Tunis, E.

Hood, V.

Annaly, L.

Hooper, B.

Arran, E.

Hylton-Foster, B.

Ashbourne, L.

Jenkin of Roding, L.

Auckland, L.

Knutsford, V.

Balfour, E.

Lloyd-George of Dwyfor, E.

Beaverbrook, L.

Long, V.

Beloff, L.

Lucas of Chilworth, L.

Belstead, L.

Lyell, L.

Bessborough, E.

Mackay of Clashfern, L.

Birdwood, L.

Macleod of Borve, B.

Blatch. B.

Malmesbury, E.

Boyd-Carpenter, L.

Mancroft, L.

Brabazon of Tara, L.

Margadale, L.

Bridgeman, V.

Marley, L.

Brougham and Vaux. L.

Merrivale, L.

Bruce-Gardyne, L.

Middleton, L.

Butterworth, L.

Monk Bretton, L.

Caithness, E.

Monteagle of Brandon, L.

Campbell of Croy, L.

Montgomery of Alamein, V.

Carnegy of Lour, B.

Mowbray and Stourton, L.

Carnock, L.

Munster, E.

Chelmsford, Bp.

Nelson, E.

Chorley, L.

Norfolk, D,

Clitheroe, L.

Norrie, L.

Colnbrook, L.

Nugent of Guildford, L.

Constantine of Stanmore, L.

Onslow, E.

Cottesloe, L.

Oppenheim-Barnes, B.

Cullen of Ashbourne, L.

Orkney, E.

Davidson, V. [Teller.]

Pennock, L.

De Freyne, L.

Penrhyn, L.

Denham, L. [Teller.]

Peyton of Yeovil, L.

Denvent, L.

Radnor, E.

Dundee, E.

Reay, L.

Eden of Winton, L.

Reigate, L.

Effingham, E.

Renton, L.

Elles, B.

St. Davids, V.

Elliot of Harwood, B.

Saltoun of Abernethy, Ly.

Elliott of Morpeth, L.

Sanderson of Bowden, L.

Erroll of Hale, L.

Shannon, E.

Faithfull, B.

Sharpies, B.

Ferrers, E.

Skelmersdale, L.

Fraser of Carmyllie, L.

Strange, B.

Fraser of Kilmorack, L.

Strathcarron, L.

Gainford, L.

Strathclyde, L.

Gibson, L.

Terrington, L.

Gridley, L.

Teviot, L.

Hailsham of Saint Marylebone, L.

Trumpington, B.

Vaux of Harrowden, L.

Halsbury, E.

Westbury, L.

Harmar-Nicholls, L.

Whitelaw, V.

Havers, L.

Wolfson, L.

Henley, L.

Young of Graffham, L.

Hesketh, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.20 p.m.
Clause 8 [General environmental and recreational duties]:
[Amendment No. 92 not moved].
Lord Norrie Lord Norrie moved Amendment No. 93:
Page 7, line 47, leave out ("the functions of").
The noble Lord said: This amendment and Amendments Nos. 106 and 123 have the same purpose. That purpose is to extend the scope of the conservation and recreation duties set out in Clause 8 so that they apply to all land presently owned by the water authorities.
To a considerable extent the Committee has already discussed this issue and many noble Lords have expressed their concern that private water companies will be able to dispose of their assets, either through sales or by transfer to subsidiary companies, with the result that conservation and recreation duties will no longer apply. The Minister went some way to allaying those concerns by announcing that the Government will come forward with amendments at Report stage to ensure that countryside areas of special conservation and amenity value cannot subsequently be disposed of without a measure of protection.
Provided they are effective, such new provisions will be particularly welcome. However, before the Minister goes away to consider the detail of the Government's amendments, I ask him and the House to consider the need to preserve recreational and amenity use of all water authority land, not just that in special areas or land which is in operational use. The land to which the Minister referred was principally land in highland and upland areas and of quite outstanding beauty and environmental importance. It is right that the Bill should provide proper protection for such land; but what of land of less scenic importance?
The special use of the water authorities' 500,000 acres of land for recreational activities does not end at the bottom of hills. In fact some 70 per cent. of water authorities' land lies outside the specially protected areas which I understand the Minister's amendments will cover. Yet much of that land is immensely important for amenity use. Angling and boating rely on access to reservoirs in the lowlands. Indeed, the reservoirs might have little scenic attraction but nevertheless provide traditional and accessible recreational facilities for the majority of the population who live in urban areas. Much is countryside, which may not qualify for special protection in the same way as land in a national park, but it is often of particular value in providing green lungs for our cities and towns; yet its very proximity to population centres makes it a prime target for development.
We are told that the environmental and recreational duties set out in this clause are to relate only to water undertakers' functions; in other words their operational activities. What of non-operational land? Private water companies will be free to dispose of it or transfer it to a subsidiary company. They could develop it, close down an official recreational facility and restrict or simply end any freedom of

419
access, with only normal planning procedures to satisfy. I am afraid that I have difficulty in understanding how the planning system could prevent a private water company from simply terminating recreational use of land.
Obviously a company will need planning permission if it wants a time-share development on its land because in this case there is a proposed change of use. That would not be the case if the company merely wished to restrict public access. It seems to me that there is very little to prevent a private water company from barring entry, even when the land is operational and when Clause 8 duties are meant to apply. However, if land happens to be non-operational, the stark truth is that the company could bar access or charge heavily for it with impunity.
I am particularly concerned that by excluding non-operational land from the special duties in Clause 8 the Government will be encouraging private water companies to declare land non-functional. In the past there has been very little reason for the water authorities to do so as they have not been able to realise their land assets and at present all water authority land is subject to existing conservation duties. That is set to change and I suggest that the private water companies to be are aware of it. They will have two powerful incentives to declare land non-functional: first, to realise the asset, and, secondly, to escape the special duties in Clause 8. That is quite apart from the fact that future technological developments in the water industry, such as the London ring main, could result in a lot more land becoming non-operational.
Amendments Nos. 93 and 106 aim to close this loophole in the Bill. By removing the reference to functions, the conservation and recreational duties would no longer apply just to water undertakers' operational land. Water companies would be placed under special duties when developing or considering any proposals, not just those relating to their functions. If a water company proposed to sell off land or transfer it to a subsdiary company, it would have to meet the recreation and conservation duties of Clause 8 even if the land were not operational. Amendment No. 123 simply reinforces the change by ensuring that successor bodies and subsidiary companies fall within the scope of the conservation and recreation duties.
I do not accept the argument that the recreation and conservation duties should apply only to water undertakers' operational land. The reason that we should protect existing fishing rights, rights of access, sailing rights, climbing and all the many recreational activities which take place on water authority land and water is that those facilities were made specially available because the water authorities were publicly owned. Where the public has enjoyed access to water authority land, that access should be preserved, whether or not it happens to relate to a function of the water undertaker and whether or not the land happens to be in a national park. If, as is claimed, the planning system will adequately conserve private water company landscape, what then is the point of the special duties in the Bill in the first place?
These amendments will, more than any others, expose what the Bill is about. All privatisations claim to reconcile the interests of consumer and investor. This one, through these few clauses, is also meant to recognise the interests of the environment and recreation. So, when less land will be protected after privatisation than beforehand, it is hard to avoid the conclusion that the interests of the investor are being placed above those of the environment or the recreational user. These simple amendments can restore the balance. I beg to move.
Lord McIntosh of Haringey: I was impressed by the simplicity and effectiveness of the amendments when I saw them on the Marshalled List. I am even more impressed having listened to the closely and powerfully argued case put forward by the noble Lord, Lord Norrie. It cannot be the public conception of water privatisation—or if it is, it cannot be to the advantage of this Government—that the effect will be that non-operational land of the water authorities will be, in effect, free from all the environmental constraints that are sought in Clauses 8, 9 and 10.
If that is not the case, and if the Government have a different interpretation of the wording, and if it is the case that non-operational land is indeed covered by those clauses, then we have to hear much better arguments than have been put forward either at Second Reading in this House or throughout the lengthy Committee stages in another place. As the argument stands, it appears that the control exercised over the water and sewerage undertakings and the responsibilities of the Secretary of State, the National Rivers Authority and the director general refer primarily if not entirely to the operational aspects of the water undertakings and the operational land that they need.
As the noble Lord, Lord Norrie, rightly said, one effect may well be that water authorities seeking to maximise the return on capital, as they are obliged to do under Clause 7, will seek to declare what would otherwise be operational land as non-operational for this purpose in order to escape the provisions of Clause 8. I cannot believe that that is what the Government want. The noble Lord has pointed out a grave defect in the Bill as drafted. I hope that, without any great need for further partisan discussion, this can be treated as a matter in which all of us in the Committee are in agreement, and that the Government will accept the noble Lord's amendment.
4.30 p.m.
The Earl of Onslow: I believe that my noble friend's amendment makes an immense amount of sense. He has presented it extremely clearly. On the grubbiest possible political level, for a Conservative Government to be seen to take away the rights of people to do this or that in furtherance of private interests would not do their electoral chances much good. As I hope that I shall see those happy, smiling faces on the Front Bench after the next election, I sincerely hope that my noble friends will take notice of what my noble friend Lord Norrie has said.

421
That is the matter at its most cynical level. There is a much more important level; namely, that it is right that water, when privatised, should maximise its assets. Part of the problem is that it has not maximised its assets up to now. If one suddenly imposes upon a private company that sort of duty to maximise its assets, one must equally impose upon it strict guidelines and structures through which it maximises those self-same assets. It would be right, therefore, to go very far down the road indicated by my noble friend.
We must be careful that the planning system, certainly in the upland areas and in some of the countryside areas, does not stop the blanket planting of sitka spruce, the grubbing out of hedgerows or some of the other practices about which the environmentalists now complain. That is partly the fault of the tax system which encourages that method. However, having said all that and pointed out what should not need to be pointed out, I sincerely hope that my noble friend will take a great deal of notice of what my noble friend Lord Norrie has said.
The Earl of Caithness: Amendments Nos. 93, 106 and 123 deal specifically with certain issues which have already arisen in the amendment that we have just discussed, ending the link between the environmental duties and the functions of the relevant body and extending the duties to subsidiary companies and to others to whom undertakers' land might pass. I hope that the Committee and my noble friend Lord Norrie will bear with me if I reiterate at greater length points that I have already made. These are important matters that we need to set out clearly.
Perhaps I may deal first with Amendments Nos. 93 and 106, which concern the conservation and public access duties. Their effect would be that the duty should apply when relevant bodies formulate or consider any proposals, not merely proposals related to their functions. In short, the question is: why should the duties be tied to proposals in relation to the performance of functions? The answer is that this is the essential and inescapable logic of the issues. The functions of the relevant bodies—water supply and sewerage, drainage, pollution control and the rest—interact with the natural environment at every step and to an unsurpassed degree. Application to functions therefore makes perfect sense because conservation of nature should be an integral feature of all those activities.
That is what the Government want, and our draft code of practice breaks new ground in spelling out the detail of what is to be resolved. We shall refer regularly to the draft code of practice. It is in the Library of the House. I hope that noble Lords have seen it. It is headed Draft Code of Practice Conservation, Access and Recreation and it was published on 24th January.
There are many activities in which the appointed companies may engage and rights that they may exercise which cannot be construed as their functions and to which it would be quite unreasonable to have the duty attached. For instance, the companies will no doubt hold some of their cash and reserves in
422
security. Are they to have to further conservation every time they trade such stocks, perhaps having to invest in environmentally friendly companies? Perhaps there is some merit in that, but there is absolutely no merit in legislation whose effect might conceivably be to require it.
Let me take another example which I know is of some concern. Like other utilities, the new companies may from time to time have surplus urban land that the planning authorities may agree should be developed to meet housing needs. But if such proposals cannot be reconciled with a duty to further conservation, proposals of great social importance but possibly of little or no conservation value may prove impossible. Perhaps I may remind the Committee that we shall bring forward proposals for the long-term protection of land of particular environmental significance. We can discuss that matter on other amendments, but we cannot and should not have the duty to further conservation attaching to every step that the relevant bodies take, however little intrinsic relevance it has to it.
The criterion applied in the Bill and at present in the current legislation is the right one. Furtherance of conservation is deeply and specially relevant to all the functions of the water industry, but it has no special relevance to all those activities which, in common with all other companies, they may pursue and which have nothing to do with the functions that Parliament has expressly required them to perform. In the duty to further conservation in performing its functions, the Bill places uniquely heavy and important conservation obligations on the water industry. I hope that the Committee will not wish to press them to the unreasonable and impractical lengths which would be involved in widening the duty to bite on any proposals that a relevant body might have on any occasion to consider.
To conclude on the first part of the amendments in this group, perhaps I may offer my noble friend and the Committee some reassurance. "Functions" is a broad term, and very little water authority land is likely at any one time not to be functional. In particular, while all the catchment lands may not be used for operational purposes, they are functional in the sense of being related to the function of water conservation. Hence, any proposals relating to them are likely to be caught by the duty. If my noble friend would feel it helpful for us to make clear that wide interpretation in the Clause 10 code of practice, we shall gladly consider that point.
The Earl of Onslow: I am sorry to interrupt my noble friend on this point. Does that provision take into account the possibility of a water company off-loading land to a subsidiary and then taking it back again, if it should need it, if it wants to get out of its conservation duties?
The Earl of Caithness: As I understand it, if the land can be termed functional—that is the broad definition and could well apply in the case to which my noble friend alluded—and if the water authority or plc wants that particular land but gives it to a subsidiary in the meantime, it would still be classed

423
as functional and therefore subject to the proposed duties. From what my noble friend said, it may be helpful if we make that clear in the code of practice.
Perhaps I may now turn to Amendment No. 123, which is separate but linked through discussion. It also deals with an issue that has already been raised. The amendment invites the Committee to add to the relevant bodies to which the duty is to apply
"a successor body or any subsidiary thereof".
The use of the term "successor bodies"—which, in the Bill, means the NRA and undertakers—may create some confusion, but I shall leave that aside. I understand my noble friend to mean bodies to which land or indeed functions might subsequently pass, and also any subsidiary companies. I address that important question of substance.
Perhaps I may deal first with subsidiary or associated companies. To extend the duty to them would be misconceived. The Clause 8 duties bite upon the functions of water bodies, which, as I have said, by their nature have profound implications for the environment. But a subsidiary or associated company of a water or sewerage undertaker will not by definition carry out the appropriate functions because they are for the appointed company itself. Necessarily, it will pursue quite different activities to which the Clause 8 duties may have only tenuous connection or no connection at all.
The same considerations apply in the case of successor bodies to which the land allocated under schemes under Schedule 2 might pass, but with even greater force. The fact is that the great majority of the duties apply in respect of functions, and should so apply, and it is most unlikely that any successor owner would share the functions of the relevant bodies. I am driven therefore to the conclusion that to extend the duties to successor owners and subsidiary bodies would be flawed in logic and irrelevant in practice.
Nevertheless I recognise that my noble friend is drawing the attention of the Committee to an issue which we accept is significant and substantial. This is again the concern that land which is of special value by reason of the purposes to which Clause 8 is directed may not be properly protected if it passes to a successor or subsidiary. I realise that my noble friend went rather wider than that in what he said.
I share my noble friend's concern because in some areas of high environmental or amenity value the water authorities may have established special conservation or access arrangements which there would be no means to secure under subsidiaries or successor owners. That was precisely the concern which I expressed to the Committee last week and which I said we intended to address in an amendment at a later stage. Applying the duties to subsidiary or successor bodies is not in our view a practical option, but others are open and those are the ones we are exploring.
I offer my noble friend the assurance that, while for the reasons I have given we cannot resolve the problem he raises in the manner he proposes, we shall certainly address it by other means. In the
424
circumstances I hope that he will wish to reflect on what I have said, and I shall of course be happy to discuss it with my noble friend who, as the Committee will know, has wide experience of this with the British Trust of Conservation Volunteers.
Lord McIntosh of Haringey: Before the noble Lord makes up his mind whether to press this amendment, may I draw his attention to two points about the Minister's reply, which was in some ways helpful? The first is that he is relying substantially on the code of practice in Clause 10. As we shall be showing later today, this code of practice is deeply defective. It lacks statutory authority and it contains a number of provisos that make it much less effective than we should like it to be.
Secondly, the noble Earl is relying on some of the detail in Clause 8, which, as the Minister himself reminded us in response to the previous amendment, has been the subject of a thick cluster of amendments designed to increase its effectiveness. Therefore, any assurances that the Minister gives based on either of those two clauses must be taken subject to a view (which it is not possible to take yet) of the Government's response to the amendments which have been put down to those clauses. Therefore, we must handle these assurances with a very long spoon, if I may put it in that way.
The second point that I want to make is that the Minister has on this occasion, as on previous occasions, given assurances about the Government's intention to table further amendments at a later stage related to land of special conservation value which is not required for operational purposes. He has made a valid and a valuable point about the distinction between functional land and operational land that certainly we should all take account of.
The noble Earl's undertaking to introduce further amendments was based on his undertaking to listen to your Lordships' debate on these amendments. We ought not in any way to curtail our debate on these subjects because of an undertaking to introduce amendments at a later stage; otherwise the amendments themselves might not be as far-reaching as we think they ought to be.
4.45 p.m.
Lord Ezra: Before the noble Lord, Lord Norrie, replies to the Minister I should like to add a few comments. The Minister has touched on the nub of the whole issue, which we touched on earlier today and which is still recurring. These privatised water companies are not going to be ordinary private companies. They are going to inherit a great tradition of efficient water supply and of responsibility for the lands associated with their operations.
Therefore it is right and proper that two firm responsibilities should be clearly laid on them in this legislation: namely, the water supply side of their activities, and the land ownership side of their activities. I hope that this will come out clearly. I hope too when we debate the amendments that the noble Earl will be proposing later that we shall bear that in mind. However, at this stage I feel that this is something that should be pressed pretty hard, and I hope that the noble Lord, Lord Norrie, will do so.
Lord Norrie: My noble friend the Minister has already agreed to come forward with amendments at Report stage to give special protection to countryside with particular conservation and amenity value. In doing so he has been true to his Secretary of State's pledge given to the standing Conference on Countryside sports last month that the Government would carefully listen to debate on these matters. In the same spirit I do not wish to press my amendments today, but I ask my noble friend to maintain the dialogue. I therefore beg leave to withdraw the amendment.
The Earl of Caithness: Before my noble friend concludes let me say that I am grateful for that. At least he takes an assurance of mine seriously.
Amendment, by leave, withdrawn.
[Amendment No. 94 not moved.]
The Deputy Chairman of Committees (The Earl of Listowel): Before I call Amendment No. 94A I should point out that this amendment would make it impossible for me to move Amendments Nos. 95 or 96.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 94A:
Page 8, leave out from beginning of line 2 to ("so") in line 4.
The noble Lord said: In moving Amendment No. 94A I should like to speak also to Amendments Nos. 98, 101, 107, 110, 112 and 117. In order to make clear the purport of these amendments I think it is necessary not only to read out the amendments—that is something that is done fairly frequently—but to read out the words that will be omitted or replaced if these amendments are carried, because it is these words (these weasel words) that detract from the confidence that we can be expected to have in the power of Clause 8, which is absolutely fundamental to our argument.
Amendment No. 94A would leave out the words:
"relating to the functions of that body"—
we have debated that issue already in the amendment of the noble Lord, Lord Norrie—
"and, in the case of the Secretary of State and the Director, with their duties under section 7 above".
The Committee has already been reminded that Section 7 refers to the primacy of the profit motive as opposed to the primacy of the environment or the consumer.
Amendment No. 98 leaves out the words:
"have regard to the desirability of protecting".
Amendment No. 101 leaves out:
"take into account any effect".
Amendment No. 107 leaves out:
"have regard to the desirability of preserving".
Amendment No. 110 leaves out the words:
"take into account".
Amendment No. 112 leaves out:
"such steps as are—

(a) reasonably practicable; and

(b) consistent with the purposes of the enactments relating to the functions of that body".

Amendment No. 117 leaves out:
"to such extent as it considers desirable".
I shall not weary the Committee with the context of all these phrases, but their very repetition makes it clear that the power of this clause is simply not sufficient to protect the environment as I believe this Committee would wish it to be protected, and as indeed the Government claim it is protected when Ministers make speeches on this subject. We are not requiring in these amendments that the environment should have absolute priority over all other considerations. What we are requiring is that it should have equal consideration with the other functional and financial obligations of the undertakers.
As it stands, the Bill contains a large number of qualifications. We have pointed out some of them and I have no doubt that if one went through the Bill in great detail we could find many more qualifications of a similar kind. The point that I wish to make to the Committee is not that these qualifications are continuations of existing restrictions on water authorities but that they are in themselves an erosion of existing rights. The rights are there now and the fact that Clause 8 is inadequate in these respects takes away those existing rights.
In some of the most attractive parts of the British Isles, we all now have access to land owned by water authorities. We have an assurance that the land owned by water authorities is maintained, conserved and protected by authorities that are in public ownership and responsible to all of us. It is that protection that is to be taken away by privatisation; and the assurances of Ministers, quite frankly, are simply not good enough.
Let us look at the reasons for this. First, in responding to the last amendment, the Minister referred to the draft code of practice which was issued in January. I remind the Committee of what the Parliamentary Secretary, Mr. Colin Moynihan, said in another place on 22nd March about the codes of practice. He stated at col. 1118 of Hansard:
"All the duties are made enforceable by the Secretary of State who is to take into account how far the companies have complied with the code of practice".
Such enforceability may be all right for the present Secretary of State—I am saying nothing against him personally—but if a Secretary of State has an obligation only to take into account how far companies have complied with the code of practice, then I am afraid the history of these matters in the courts has been that on many occasions "taking into account" is treated with a derisory laugh. It is said, "Yes, we took it into account but we went away and did something different." That is what the undertakings are being invited to do. That is what a Secretary of State is being invited to do by the wording of this clause and by the words of Mr. Moynihan.
The protections in this Bill are a weakening, an erosion, of the duties that exist in the Water Act 1973. In the same column, Mr. Moynihan said, that the proposals in the Bill,
"—preserve for the privatised industry all the present duties of the public sector".—[Official Report, Commons, 22/3/89; col. 1118.]
That is not true. Section 1 of the 1973 Act established the national policy for water. Section 1(2) states:
"It shall be the duty of the Secretary of State to secure the effective execution of so much of that policy as relates to—"—
among other things—"—
"the use of inland water for recreation;
the enhancement and preservation of amenity in connection with inland water; and
the use of inland water for navigation".
That statement was elaborated in Section 20. I do not suppose that the noble Lord, Lord Nugent of Guildford, has a copy of the 1973 Act in front of him, although I know that he keeps it by his bedside and has the wording in his head. However, he will recall that these are duties on the Secretary of State and they are far different from duties to "take into account" a code of practice in considering whether a company has complied with the law. To that extent also the present proposals are an erosion of the protection that the public has under existing legislation.
In the present Bill there are no such positive aims as were set out in the 1973 Act. The Government have resisted any suggestion that there should be such obligations. Our amendments do no more than restore the position in this respect—and there are many others—to that which already obtains under the Water Act 1973.
The third argument that is sometimes used to support this code of practice is that there is a fallback position of planning legislation. Again, Mr. Moynihan—who seems to be taking all the stick on these matters—suggested at col. 117 of Hansard on 22nd March, that:
"With planning controls and the proper regulation that we support and are providing, land can be as well protected in the private sector as in the public".
Planning controls are simply not adequate, as everyone knows who understands about these matters. Planning controls do not apply to change of rural land use between one type of land use and another. The classes of use are not like that. What is required—and this I should have thought was a conclusion generally accepted by those who have dealt with planning law over the years—is that there has to be a positive land management plan. This has to be capable of being called in aid when new proposals for changes in land use arise.
We are talking about land owned publicly by the water authorities which will be transferred to the private water companies. At the moment all the new water companies will be required to do is to take account of environmental and conservation interests. However, their fundamental obligation under Clause 7 will be to realise the highest commercial value from their land holdings. Therefore the Bill as drafted is significantly weaker than the 1973 Act. The code of practice is not legally enforceable.
If we are to maintain the protection that the public already has, if we are to put into legislation the assurances that have been made by Ministers, it is necessary for us to approve these amendments this afternoon. I beg to move.
Lord Renton: Each of these amendments has approximately the same objective; namely, to place upon those who are given powers or duties under the Bill the obligation of carrying out the powers and duties conferred upon them irrespective of all other factors, however important from the public point of view and however unavoidable those factors may be.
Perhaps I may give just one example. If we look at Amendment No. 107, it refers to page 8, line 19. Instead of being told,
"to have regard to the desirability of preserving for the public any freedom of access to areas of… natural beauty",
and so on, the Secretary of State and others would be required, if the amendment were accepted, to preserve, irrespective of other factors, that freedom of access. At first sight of course that sounds absolutely splendid. But let us suppose that there really is a vital need for a new road. It may be a vital need expressed locally because of a landslide that has destroyed an existing road and another one has to be found; or it may be that it is accepted by most people concerned that there has to be a new trunk road. We have disputes over trunk roads going through national parks and areas of natural beauty. The one alongside Loch Lomond is a very obvious example to quote.
We really cannot legislate in an absolute way which makes it impossible for Ministers and others responsible to take these decisions irrespective of other important factors affecting the public interest. We never have legislated in that way. If we were to accept these amendments, moved with great sincerity by the noble Lord, we should be embarking upon what is from the point of view of legislation by Parliament a new process. I therefore do not see how my noble friend could accept these amendments.
So much for that general point. But if we look at the first one, Amendment No. 94A, where the noble Lord seeks to leave out those first three lines or so at the top of page 8—he read them out; there is no need for me to do so again—we would find that we were being inconsistent because we have included in the words here:
"so far as may be consistent with the purposes of any enactment relating to the functions of [the body concerned] … and, in the case of the Secretary of State and the Director, with their duties under section 7 above".
I am sorry, I had to read it again. I think that I had to in order that noble Lords could follow my argument. If we leave that out, we shall be indirectly causing an inconsistency in the Bill, partly with its own contents and partly with other enactments. That is another way in which we should not legislate. So again, if it is not an inappropriate expression in the circumstances, with due regard to what the noble Lord has said, I do not see how my noble friend on the Front Bench can accept these amendments.
5 p.m.
Lord Ross of Newport: I do not intend to speak for very long or to be repetitious because much of what I wanted to say has already been well said by the noble Lord, Lord McIntosh. Perhaps I can answer the noble Lord, Lord Renton. I do not think it is right

429
to say that when the water services are privatised the water authorities and the Director General of Water Services would be put in a rather less onerous position than under the original Water Act of 1973. We are concerned with reasonable practicability, and I feel that that word should be put into the Bill. As for the argument that the noble Lord made about the road bypass, that is certainly valid but one has to be reasonably practical and some decisions must be taken which perhaps go against what we are trying to write into the Bill. I hope it will be agreed that what is there at the moment is hopelessly inadequate.
The Minister obviously feels that we on this side of the House are not taking his assurances as literally as perhaps we should. I sincerely hope that we shall have some good amendments with some teeth when we return to Report stage. But what I, and I dare say other noble Lords, have heard and seen on television or on the radio does not give us any future confidence. The Committee may or may not know from the "World at One" programme that at least £2 million, and probably something up to £30 million, is being set aside for advertising the water companies' privatisation. On the business programme on BBC1 we heard interviews with people who know—not politicians but professors who have studied the water industry—talking about the enormous costs of becoming a plc: an increase which would be put on the water authorities. Something like 50 per cent. extra cost was quoted by a professor from Nottingham. That means that the pressure will be on. We know already that the North West Water Authority is advertising for a surveyor in land management to bring in property companies and the rest. The water authorities will have to look to all their assets, and they may push pretty hard for things that we in this House may not wish to see developed.
I totally agree with what the noble Earl said earlier. There may be areas which were formerly reservoirs, and they may have potential for reasonable development. However, I do not share his view that we shall need all these extra houses in the South-East. Because we have fewer school-leavers now, I believe the pressure will be off housing. I hope it is for his benefit because he is housing spokesman. I do not think that I shall see it, but I hope that I live long enough to see whether I am proved right or wrong. I do not take the statistics too literally; but that is why we are concerned.
The amendment that I really want to speak to is Amendment No. 101 which talks about preventing "any deleterious impact". What do we mean by that? It has been drawn to my attention that it is not the normal problem of development. Draining the marshes is going over the top concerning water drainage. I am sorry to have to tell the Committee that I am about to leave the Isle of Wight, but I can give two examples where the Royal Society for Nature Conservation has become extremely worried because the local water authority, for whom I have a lot of respect, has done extensive drainage at Alverstone and Afton Marshes. But damage has been done; there is no doubt about that.
Mr. Grainger Davies, who used to run the water authority on the island, is already working for the NRA and he knows the area. I have every confidence
430
that he will understand this although he will have to change sides somewhat quickly because he was very much for promoting new water mains and sewerage outfalls while he was with us. That is the area we want to have covered, and I believe most people will accept that. All the rest are there to try to strengthen it and they perhaps may give greater force. If we could return to the position that existed in 1973, I should be satisfied.
Lord Howie of Troon: I wish to refer briefly to the comments made by the noble Lord, Lord Renton. Unless I misunderstand the amendment, I do not think it would preclude roads being built through these areas where they are necessary. Access is the matter which is to be protected, access by the public to the areas listed in the amendment and in the Bill. There is no difficulty about access over a road. One builds a footbridge and can cross from one side to the other. Then the problem of access is solved. Our motorway system involves access bridges for pedestrians, cattle and other animals on almost all our motorways, especially those in rural areas. That was a red herring referred to by the noble Lord in an attempt to illustrate the problem.
As I see it, the intention of the amendments is to make sure that these private companies do not fence off and deny access to areas which were previously open to access by members of the public. If I understand correctly the mind of the noble Lord, Lord McIntosh, he realises that private owners often fence off areas which previously were not fenced off. That is the kind of access that we are talking about. I do not see any difficulty for the Government in accepting the amendments.
Baroness Lockwood: Not only will the Bill if passed unamended weaken the protection that we have already under the 1973 Act, but the very fact that the Bill is before us and is being considered weakens the present arrangements that have been operating under the Act. The National Trust and a whole range of other associated conservation bodies are already concerned about their relationship with the water authorities under the threat of the Bill.
As I pointed out in the debate last week on an earlier amendment, there are signs that the water authorities are already beginning to backtrack on some of the arrangements that they have previously followed. I gave the example last week of the Peak District where the fencing of land by water authorities has taken place without consultation with the park authorities. In the Lake District there has already been some confrontation between ramblers and riders. The North-West water officers are already disinclined to support any specific commitment to dedication of any route to the public in advance of privatisation. We are already seeing an erosion of some of the rights which have been established on a voluntary basis. That concern should be taken seriously by the Government.
In defence of the Bill the Government are relying to a large extent on the code of practice, but, like any other, the code of practice is not mandatory and does not apply to non-operational land. Again, as I pointed out on a previous amendment debated last

431
week, taking for example the Yorkshire Water Authority, out of the 75,000 acres owned by that authority, only 16,000 are operational. Despite the fact that in some senses the Government seem to be claiming that only 5 per cent. of the land owned by the water authorities is non-operational, in some areas a large proportion of the land is non-operational. We shall not have the protection of the code of practice in relation to that, whatever protection a code of practice might bring.
Secondly, the Minister and his colleagues in another place rely on the present planning procedures. My noble friend Lord McIntosh pointed out that planning procedures do not apply in all cases. However, during the past year a series of decisions was made by the planning authorities. Of the appeals which were lodged, only 30 per cent. were successful in respect of the national parks of the country. So if there is currently such a lack of support for conservation under the planning appeals it would appear that we do not have a strong base on which to rely for protection under the Bill.
I hope that Members of the Committee will support the series of amendments which seeks to leave out all the conditional clauses relating to these provisions of the Bill and thereby strengthen our rights under the Bill.
Baroness Macleod of Borve: The noble Lord, Lord Howie of Troon, appears to have the impression that the amendments concern only access. Amendment No. 101, instead of taking into account any effect which the proposals would have on the beauty or amenity of any rural or urban area, inserts the words "prevent any deleterious impact". Will the noble Lord, Lord McIntosh, say whether I am right in believing that it is not about access but about the impact of an event which may happen in the area on the various aspects of the area?
Will the noble Lord also tell the Committee whether it is true that the remarks made by my noble friend Lord Renton about the roads will apply? If in the public interest a road is required and most people believe that it should be built, will that be prevented by the amendment so that there will be no way in which building could occur? I suspect that the noble Lord knows more about planning law than I do, but it appears to me that the amendment would override anything that could happen.
I believe that in his contribution the noble Lord, Lord Ross, took the point made by my noble friend Lord Renton about the roads and probably will not support the amendment. I shall be interested to know what the noble Lord, Lord McIntosh, thinks about the issue.
Lord Howie of Troon: I am grateful to the noble Baroness for drawing attention to that issue. I do not regard a road as having a deleterious impact.
Baroness Blatch: The last remark probably makes the point. The word "protect" in Amendment No. 98 is an uncompromising alternative. While the road may not have a deleterious effect its excavation works and building certainly will. If the amendments
432
are accepted the requirement and demand to protect will not allow for even short-term deleterious effect or damage. To add to "protect" the words "and conserve" goes even further down the road of putting an impossible constraint on the authorities to carry out their normal operational work. If the words "protect and conserve" were accepted it would be important to draw a distinction between the conservation of buildings owned by the authorities and those owned by other landowners.
Lord McIntosh of Haringey: I have not yet spoken to Amendment No. 99, which will be dealt with later.
Baroness Blatch: I am sorry. I shall withdraw my comments and leave them as read when the amendment is dealt with. I believe that Amendment No. 101 is included in the group. Again, the absolute constraint of preventing any deleterious effect thwarts any short-term operational work which will be required to be undertaken by the companies. Therefore, such an absolute constraint is not acceptable and one must return to what is suggested in the Bill: that a duty should be put upon the operators to have regard for reinstatement and restoration.
5.15 p.m.
The Earl of Caithness: The noble Lord, Lord McIntosh, approaches the whole question of this and other parts of the Bill under two definite misconceptions, both of which he has highlighted again today. The first misconception to which the noble Lord continually refers is that profit is the prime motive. Profit is not the prime motive; the customer is the prime motive. I have previously dealt with that fact in great detail. I know that the noble Lord will not listen and that he will continue to pursue his own angle. However, I hope that other Members of the Committee— —
Lord McIntosh of Haringey: I am sorry, but the noble Earl must not confuse listening with agreement. I listened carefully to what he said, but I disagree. On that issue, so does his noble friend Lord Nugent. It is not that I do not listen to him but that I do not agree.
The Earl of Caithness: I am delighted and am now reassured by the noble Lord. There was a moment when I was not quite so sure.
The second misapprehension under which the noble Lord labours relates to this part of the Bill, because he says that the duties are weaker than in the 1973 Act. The duties are very much in the same terms. In addition, I point out to the Committee that in Clause 7 the Secretary of State is under a duty to secure the proper carrying out of the water undertakers' functions. That includes their duties under Clause 8. One can take that forward to the enforcement angle and I refer Members to Clauses 20 to 23, with which we shall come to deal. Let us be absolutely clear that there is no weakening of the environment and recreational duties.

433
I turn to deal with the amendments before the Committee, all of which seek to strengthen in various ways the terms of the general environmental duties in Clause 8. They are separate amendments, not consequential upon one another, but it is useful to discuss them together. Amendment No. 97 concerns the provision in the Bill as at present drafted which makes the duty to further conservation apply only so far as it is consistent for the purposes of any enactment relating to the functions of the relevant body; and in the cases of the Secretary of State and director with their duties under Clause 7. Amendment No. 94A deletes the words relating to the functions of that body. Amendments Nos. 98, 101, 107, 110 and 112 seek to tighten up the terms of particular duties in the clause.
I deal first with the need for consistency with the functions of the body in question. There are three aspects of the proposal to which I must draw Members' attention. First, this limitation exists in present legislation. From what has been said about such matters in another place and today by some Members, I feared that some may see in the Bill as drafted some deep ploy related to the sale of the companies. Nothing could be further from the truth. I ask Members of the Committee to note that limitation has been seen as sensible by our predecessors, and I shall argue that it is just as sensible today.
My second point is the simple reason why it is sensible. The importance of the words in question is so that we do not impose on the relevant bodies conflicting objectives with no indication of how they are to be reconciled; for, in cases, the duty to further conservation may conflict with the duty to supply wholesome water, or effectively to sewer the area, or any other of the undertakers' statutory duties. We should not allow that if we are to attack the problem in a rational way.
In circumstances where that conflict arises I suggest that the duty to further conservation should not apply. It is a point upon which I have previously commented. Much as we may wish to further conservation, the Committee must surely recognise that there can be circumstances where that should take second place, when, as here, that conflicts with the essential and life-sustaining functions of this industry upon which the community depends. There is an alternative. We could adopt a weaker conservation duty which, because it could not inhibit essential water supplies, sewerage and other services, could run more widely. The duty could be drafted simply, "to have regard to conservation". I suggest that more would be lost than gained by such an approach.
The third consideration is a practical one and I believe it provides some reassurance. The fact is that the circumstances where the duty to further conservation will be inhibited by the need for consistency with other functions will be very, very few. If there were many cases in recent years I do not doubt the noble Lord, Lord McIntosh, would rightly have drawn them to our attention. I heard him refer to none.
On these grounds I suggest that much the wiser course is to adhere to the terms of the Bill. Any other
434
approach could entail conflict with essential services and might for that reason bring conservation itself into needless disrepute.
Let me turn now to the second element of the amendment—to delete the reference to the duties of the Secretary of State and the director under Clause 7. I suggest this also would not be sensible. The House has already debated the relationship of Clauses 7 and 8 in another context. Suffice it to repeat here that the subordination of Clause 8 to Clause 7 is very narrow. Let me emphasise that it does not apply to anything the companies may do in the performance of their own duties. The companies' conservation duty will not be directly constrained by customer protection, economy and efficiency. The Committee should draw comfort from that, The qualification applies only in the case of the Secretary of State and director and is to avoid conflict between the duty to further conservation and the duties placed upon them in Clause 7 as to how they exercise their enforcement powers.
In practice the occasions for such conflict will be very few, not least because among the Secretary of State's obligations is the duty to secure that the companies properly carry out their duties, and that includes the duty to further conservation.
I conclude then that the constraints which the amendment seeks to delete are ones which in practice are likely to arise only very rarely: while we must provide for them, they need cause the Committee little concern. The essence of the matter is this: if you want a strong conservation duty of the kind we are preserving, there must be some circumstances, where it conflicts with other essential services or functions, where it is important but should not be seen as of overriding importance. We must achieve a proper and sensible balance in these matters. That is, I suggest, what the Bill as drafted achieves.
Amendment No. 98 asks us to delete:
"have regard to the desirability of protecting",
historic buildings and to insert "protect". As Members of the Committee well know, there is general legislation for the protection of historic buildings. Where such buildings are listed or otherwise subject to statutory protection, there are obligations which fall equally on all owners, whoever they may be and whether in the public or private sector. Now in this clause, as in current legislation, we impose on the water industry a special and more wide-ranging obligation in terms as set out in the Bill. That is not unreasonable since pipe-laying and drainage and other water industry operations can affect historic features. Nevertheless the fact of the matter is that this is a special duty. That duty and the code of practice clearly involve obligations which go beyond what is expected of other bodies.
I submit that it would be quite unreasonable to press these obligations even further. Protection of historic features is a laudable objective, to which we require the water industry always to have regard, but we cannot bind the industry always to secure it. It must always be a consideration, but given other duties and requirements, it cannot always be an obligation.

435
Amendment No. 101, which was very much to the forefront of the mind of the noble Lord, Lord Ross of Newport, deals with natural beauty and amenity and asks us to delete the present term and to insert: "prevent any deleterious impact". My concern here is a related one. It is going too far to ask to require that the particular result be achieved, for often deleterious impacts cannot reasonably be foreseen. We can ask the relevant bodies to have regard for the issues, but it is not practical to ask them to ensure the outcome. Equally it is surely unrealistic to make the obligation mandatory. Other factors may intrude; particular circumstances may arise which make it unreasonable because of the weight of other circumstances to do what the amendment proposes. The amendment imports a degree of rigidity which is wholly unrealistic.
Amendments Nos. 107 and 110 in respect of the public access duty are similarly flawed. The relevant bodies are to be told to preserve public access. But that gives no allowance for the flexibility—a point well made by my noble friend Lord Renton which we must allow. For what happens when their functions require restriction of access? What happens when for proper conservation reasons it may be necessary to close off access to particular land? Those are but some of the problems.
Perhaps I may give your Lordships some examples. I am sure that Members of the Committee will know the problems faced by national parks on the question of access, and I quote from an article in The Times of 24th April on this very subject which brought to everybody's attention the fact that there was a helicopter airlift used in the drive to repair the dales' paths, which stated:
"Each year up to 120,000 pairs of boots trample across 40 miles of footpaths in the three Peaks turning them into unsightly scars, more than 100 yards wide in some places and stripping away the natural vegetation of the area".
The noble Lord, Lord McIntosh of Haringey, wants it both ways. It is clear that already in the national parks it is not possible to have it both ways.
What happens to Schedule I birds under the Wild Life and Countryside Act? The noble Lord, Lord McIntosh of Haringey, wants access anywhere, any time, in the nesting season close to Schedule I birds but he also wants conservation. It is not possible to have both. If human beings are present in those circumstances, Schedule I birds will not nest anywhere near there.
Amendment No. 112 takes us into the recreation duty. We are asked to substitute "all particular steps" for "reasonably practicable steps". By doing that the Committee may exclude all regard for financial consideration. How in the practical world in which we live can that be realistic?
Finally I turn to Amendment No. 117 which relates to Clause 8(4) and which provides the new duty on the NRA generally to promote conservation and recreation, and would delete the qualification that the duty is to be discharged only to such extent as the NRA considers desirable.
Clause 8(4) is an important new provision. It removes in respect of the NRA two significant
436
constraints on the present water authorities in relation to conservation works and recreation provision.
In the first place water authorities can at present only undertake works for the improvement or enhancement of rivers to the extent that such works form part of or are ancillary to the performance of one of their main functions. We believe this is an unreasonable restraint. It is important that there should be a body able to take steps to conserve and enhance the river environment. Often of course such activities will fall to riparian owners or local planning authorities, but the NRA should not be inhibited by lack of powers from playing its part. We would not expect use of the powers to be substantial in the next few years: necessarily most environmental work by the NRA will be part of its drainage, water resources or pollution control functions. Nonetheless, the power is an important one.
With recreation the position is similar. There are already a number of co-ordinating or promotional bodies such as regional councils for sport and recreation and local authorities. The NRA will not want to usurp their contributions. At the same time it must not be limited in its recreation provision to putting its own rights over water to recreational use. It should, for example, be able to help manage effective recreational uses of rivers where there is no navigation authority or give support to local voluntary bodies to do this. And there must be a body which, irrespective of its other regulatory functions, is able to take a clear overall view of the development of recreation on rivers where this is needed. Again it should not be expected that the NRA will make dramatic use of these powers in the short term. However, it is important that from the start it should have the powers to promote recreational uses when it sees clear need and there is no other body well placed to assist.
Against this background it follows that we do not believe that the qualification,
"to such an extent as it considers desirable",
should be deleted. Recreational opportunities on rivers will continue to be provided primarily by riparian owners and there are other promotional and co-ordination bodies whose role should not be usurped. The NRA's task should be supportive: when things need to be done to facilitate recreational uses of rivers, and there is no other body better placed to do them, then it is right that some obligation should fall upon the NRA. But it is the NRA which itself is in the best position to judge this I suggest that,
"to such extent as it considers desirable",
precisely expresses this position and should be retained. An unqualified duty is not necessary and would be beyond what the NRA could discharge. The NRA is enabled by this clause to act in relevant circumstances and it would be wrong to go beyond that.
I have been through all the proposed amendments very thoroughly. I suggest that the present terms have served us well in the past. They are consistent with reason and with the need for balance and discretion. They will require the relevant bodies to protect the environment effectively in the future, just as they have done in the past.
5.30 p.m.
Lord Foot: I do not know whether the noble Earl will welcome any support from me but I should like to add a few words in support of what he had to say about the principles behind the amendment. Incidentally, in taking this view I do not expect to make myself very popular on these Benches.
Clause 8 imposes a duty upon various people and in the remaining part of Clause 8 the extent and the type of that duty is defined. Is not the argument between the noble Earl and the proposers of the amendment in principle that the noble Earl says that you cannot define that duty in absolute terms and that you must define it in qualified terms. I believe he is right. It follows that if you attempt to do the impossible and impose an absolute duty in all circumstances, whatever they may be—even if there is conflict between one environmental interest and another—you do not strengthen the legislation but weaken it. You are passing into law something completely impractical that has to be regarded in the real world.
Therefore, on that ground alone, the noble Earl is right in saying to the Committee that it would be better to leave the words as they stand. It may be, of course, that at a subsequent stage we might be able to think of better words of qualification than presently contained in the Bill, but that is something for the future. On the general principle as to whether one should impose absolute duties in all circumstances, I am on the side of the noble Earl.
The Earl of Caithness: I am extremely grateful to the noble Lord for so clearly putting exactly the message I was trying to get across.
Baroness White: Before my noble friend responds, can the Minister clear my mind on one point? I should know, but I am not certain, how far the duties of the authority under Clause 8(4) extend. The subsection states that it is,
"the duty of the Authority, to such extent as it considers desirable, generally to promote"
and then gives the various desirable areas in which it should do so. However, what happens to the subsidiary companies I was concerned about? Does the authority's word extend in any way to them or is it the position, as I suppose, that it does not cover them at all? Does it apply only, in fact, to operational land? That was the matter exercising the mind of the noble Lord, Lord Norrie. Some of the most undesirable environmental effects may well arise from the activities of the subsidiary companies, not the core company which is carrying out its duties of the water supply and sewerage.
The Earl of Caithness: Much hinges on whether or not the land is functional, which is a point I covered earlier for my noble friend Lord Onslow. If the land is not functional and not involved with the operations and, therefore, is surplus to requirements, there is the assurance I have given the Committee that I will be bringing forward an amendment which might involve some of that land, but might not, in which case there is the proper planning procedure to go through and, indeed, other planning
438
requirements which are relevant should the land be in such a condition.
Lord Ross of Newport: With respect to my noble friend, who is a lawyer and therefore takes a legal attitude to these matters, one of the arguments I put forward is that we are seeking to strengthen the clause for the very reason that the noble Earl has just mentioned. There is a grave risk. We know the new companies will hive off land to subsidiary companies. They will do it immediately. That is what they did in the Isle of Wight when we stupidly allowed Bembridge Harbour to be sold to private individuals. They immediately set up two companies, put all the properties into one of them, and then put the rents up. They even made people pay rent to park next to the beach. That is what will happen.
With the greatest respect, it may well be that my noble friend is right in legal terms. However, on reading the clause, it is obviously weak. If it does not apply to subsidiaries there is no point in wasting our time in arguing. I beg the noble Earl to take that on board.
Lord McIntosh of Haringey: I very much enjoyed the Minister's final remark that the amendments he intends to table on Report may deal with the problem, but, there again, they may not. That is the problem we face. We do not know what amendments the noble Earl intends to table, nor does he. We have to go on stating our case regardless of imprecise commitments. They cannot be called commitments.
We must be grateful to the Minister. He did, as he said, thoroughly go through the amendments and explain the Government's position. I pay tribute to him for the serious way in which he has treated the amendments. The interesting point about both the Government's case from the Front Bench and the interventions of the noble Lords, Lord Renton and Lord Foot, is that they all depend on the claim that the amendments are absolute; that under Clause 8 they put absolute obligations on the undertakers, the authorities and the Secretary of State.
These are lawyers who are intervening from the Back Benches. I am not a lawyer, but I have always thought that in looking at obligations of this kind you look not only at the nature of the offence but also at enforcement. Enforcement does not come under this part of the Bill but under Part II; in particular, in the part of Part II which deals with the modification of orders of appointment of the undertakers. The sanction which the Secretary of State or the Government have against undertakers who break the conditions under Clauses 8, 9 and 10 comes in orders that they may make with respect to the appointments of the undertakers.
I look in particular at Clause 20(5) and the restrictions placed upon the ability of the Secretary of State or the Director General of Water Services to make, in this case, provisional orders. Subsection (5) states that they cannot make orders if,
"the apprehended contraventions are, of a trivial nature … that the company has agreed to take and is taking all such steps as it appears to him for the time being to be appropriate for the company to take for the purpose of securing or facilitating

439
compliance with the condition or requirement in question; or … that the duties imposed on him by Part I of this Act preclude the making or, as the case may be, the confirmation of the order".
It is in the enforcement that the qualification of an absolute duty comes and unless there is absolute enforcement, which there clearly is not in Part II, then there is not an absolute duty in Part I and the objections made to our amendments on the ground that they are absolute have some force. They are intended to be much stronger than Clause 8 as it stands, but they are only absolute if both the duties and the enforcement are absolute. That is far from being the case. What has never been said in opposing these amendments is that the existing wording is satisfactory. There has been no defence of the repeated words, "have regard to" or "the desirability of"; there has been no denial that all of these so-called obligations and duties designed to protect the environment are subordinate to Clause 7. In case it is thought that I have not read Clause 7 it refers to both the functions of the undertakings and the duty to make a reasonable return on capital.
The primacy of the water and sewerage functions and the primacy of the shareholders' return on capital have not been denied in any of the responses to these amendments. Unless I and those on these Benches can be convinced that the Government intend to strengthen the wording of Clause 8 in order to make the protection more effective, then we are not going to be convinced that the Government have got Clause 8 right. There is a long way to go before we have the protection that will satisfy the environmental lobby and those who use the land owned by the water authorities. We have not got anywhere near that yet and I feel it is necessary to take the decision of the Committee.
5.42 p.m.
On Question, Whether the said amendment (No. 94A) shall be agreed to?
Their Lordships divided: Contents, 71; Not-Contents, 109.

DIVISION NO. 2

CONTENTS

Addington, L.

Ezra, L.

Ampthill, L.

Fisher of Rednal, B.

Ardwick, L.

Galpern, L.

Aylestone, L.

Graham of Edmonton, L.

Boston of Faversham, L.

Gregson, L.

Bottomley, L.

Grey, E.

Brooks of Tremorfa, L.

Hampton, L.

Bruce of Donington, L.

Hanworth, V.

Carmichael of Kelvingrove, L.

Hirshfield, L.

Hooson, L.

Carter, L.

Houghton of Sowerby, L.

Cledwyn of Penrhos, L.

Howie of Troon, L.

Cocks of Hartcliffe, L.

Irvine of Lairg, L.

Davies of Penrhys, L.

Jenkins of Hillhead, L.

Dean of Beswick, L.

John-Mackie, L.

Dormand of Easington, L.

Kennet, L.

Elwyn-Jones, L.

Kilbracken, L.

440

Listowel, E.

Rea, L.

Llewelyn-Davies of Hastoe, B.

Ritchie of Dundee, L.

Ross of Newport, L.

Lockwood, B.

Serota, B.

Longford, E.

Shepherd, L.

Lovell-Davis, L.

Simon, V.

McIntosh of Haringey, L.

Stedman, B.

McNair, L.

Stewart of Fulham, L.

Mason of Barnsley, L.

Stoddart of Swindon, L.

Milner of Leeds, L.

Taylor of Blackburn, L.

Mishcon, L.

Taylor of Mansfield, L.

Monson, L.

Tordoff, L. [Teller.]

Mountevans, L.

Turner of Camden, B.

Mulley, L.

Underhill, L.

Nicol, B.

Wallace of Coslany, L.

Ogmore, L.

Walston, L.

Peston, L.

White, B.

Phillips, B.

Williams of Elvel, L.

Pitt of Hampstead, L.

Winstanley, L.

Ponsonby of Shulbrede, L. [Teller.]

NOT-CONTENTS

Airey of Abingdon, B.

Lauderdale, E.

Alexander of Tunis, E.

Lawrence, L.

Annaly, L.

Long, V.

Annan, L.

Lucas of Chilworth, L.

Arran, E.

Lyell, L.

Ashbourne, L.

Mackay of Clashfern, L.

Auckland, L.

Macleod of Borve, B.

Balfour, E.

Malmesbury, E.

Beloff, L.

Mancroft, L.

Belstead, L.

Margadale, L.

Bessborough, E.

Marley, L.

Blatch, B.

Merrivale, L.

Blyth, L.

Middleton, L.

Boyd-Carpenter, L.

Monk Bretton, L.

Brabazon of Tara, L.

Montgomery of Alamein, V.

Bridgeman, V.

Mottistone, L.

Brougham and Vaux, L.

Mowbray and Stourton, L.

Butterworth, L.

Munster, E.

Caithness, E.

Nelson, E.

Campbell of Croy, L.

Norfolk, D.

Carnegy of Lour, B.

Norrie, L.

Carnock, L.

Nugent of Guildford, L.

Chorley, L.

Onslow, E.

Clinton, L.

Orkney, E.

Clitheroe, L.

Orr-Ewing, L.

Coleraine, L.

Pender, L.

Colnbrook, L.

Penrhyn, L.

Colwyn, L.

Peyton of Yeovil, L.

Constantine of Stanmore, L.

Radnor, E.

Cottesloe, L.

Reay, L.

Craigavon, V.

Rees, L.

Cullen of Ashbourne, L.

Reigate, L.

Davidson, V. [Teller.]

Renton, L.

Denham, L. [Teller.]

Renwick, L.

Dundee, E.

Romney, E.

Eden of Winton, L.

St. Davids, V.

Elles, B.

Saltoun of Abernethy, Ly.

Elliot of Harwood, B.

Sanderson of Bowden, L.

Elliott of Morpeth, L.

Sharpies, B.

Faithfull, B.

Skelmersdale, L.

Fraser of Carmyllie, L.

Somers, L.

Fraser of Kilmorack, L.

Strange, B.

Gainford, L.

Strathclyde, L.

Gardner of Parkes, B.

Swinfen, L.

Glenarthur, L.

Trafford, L.

Havers, L.

Trefgarne, L.

Henley, L.

Trumpington, B.

Hesketh, L.

Tryon, L.

Hives, L.

Vaux of Harrowden, L.

Hood, V.

Westbury, L.

Hooper, B.

Whitelaw, V.

Hylton-Foster, B.

Wyatt of Weeford, L.

Jenkin of Roding, L.

Young, B.

Killearn, L.

Young of Graffham, L.

Knutsford, V.

Resolved in the negative, and amendment disagreed to accordingly.
5.50 p.m.
[Amendments Nos. 95 to 98 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 99:
Page 8, line 9, leave out ("have regard to the desirability of protecting") and insert ("protect and conserve").
The noble Lord said: In moving Amendment No. 99; I should like to speak also to Amendments Nos. 100, 102, 108 and 120. The Committee will see that the amendments are in the names of my noble friend Lady Birk and the noble Lord, Lord McGregor of Durris. My noble friend is, fortunately for her, in Spain at the moment and gives her apologies for not being present. The noble Lord, Lord McGregor, has given me his apologies for having to leave before we reach this debate. Therefore I am on my own, but I shall speak long enough for my noble friend and the noble Lord.
These amendments have a common theme. They seek to ensure that Clause 8 adequately reflects the need to preserve our heritage and particularly the need to protect our archaeological heritage. Amendment No. 99 may appear to be a variant on Amendment No. 98. It leaves out the words in line 9 of page 8,
"have regard to the desirability of protecting",
and inserts not just "protect" but " protect and conserve". "Conserve" in heritage and archaeological terms has a specific meaning which goes beyond the meaning of "protect". It is worth saying a few words about this because those who are concerned with archaeology and with the preservation of ancient buildings, monuments and antiquities and indeed with the preservation of industrial archaeology—machinery, factories and documents—realise that this must apply not only to the protection of objects and artefacts from accidental damage but also to their conservation and to ensuring that they are available in the most effective way for the use and enjoyment of scholars and of the general public.
As with the previous amendment we are far from satisfied with the adequacy of the words,
"have regard to the desirability of".
However, I shall not go over that argument again. We are concerned that the duty of conservation, long-term positive conservation, is not adequate for the purposes of archaeology. It has been suggested by the Government Front Bench that the code of practice is adequate for this purpose. Unfortunately, the code of practice is still subject, as is Clause 8, to the overriding requirement under Clause 7 that the Secretary of State and the Director General of Water Services shall secure the finances of the water and sewerage undertakings. If they are faced with a conflict between, for example, laying a pipeline which is the most effective pipeline to lay and carrying out a large archaeological rescue operation, the obligation under Clause 7 will be an absolute obligation.
I am sorry that the noble Lord, Lord Foot, is not present because, in the context, the absolute requirement is on the other side.
They will be absolutely required not to conserve because the word "conserve" does not appear anywhere in the Bill. The current dispute in relation to the Rose Theatre on the South Bank, where a short stay of execution has been obtained for the archaeologists to investigate the remarkably preserved ground plan, floors and part of the walls of the theatre, is a good case in point. If the developers who owned the land of the Rose Theatre were a water company plc under the terms of the Bill, and if the Bill went through unamended, I suspect that the water company would find plenty of justification in Clause 7 to be even more ruthless than any other developer and would not give adequate attention to the need for the conservation of valuable archaeological and cultural remains. This additional duty to conserve our heritage is the theme of Amendment No. 99. It is an important theme which ought not to be ignored.
Amendment No. 100 is perhaps less controversial. It spells out what is meant in line 10 of page 8. Clause 8(1)(b) requires all concerned:
"to have regard to the desirability of protecting buildings or other objects of archaeological, architectural or historic interest".
We welcome those words, as far as they go, but with Amendment No. 100 we seek to add the words,
"including ancient monuments, industrial remains, portable antiquities and documents".
There is no extension of principle here. The extension is of the explicit reference to those elements of our heritage which are often forgotten but ought to be taken into consideration.
Amendment No. 102 uses a valuable phrase which arises—perhaps I should have referred to it before—in the Land Drainage Improvement Works (Assessment of Environmental Effects) Regulations 1988. The amendment inserts the words,
"the need to avoid, remedy or reduce any adverse [effect]".
This obligation, which is by no means an absolute obligation—it refers to the need to "reduce" any adverse effect—is a valuable improvement on the Government's wording. It is not enough to say that this should be reflected in the draft code unless and until the draft code has more powerful status than it has so far. The amendment would be a valuable addition to Clause 8.
Amendment No. 108 seeks to add to subsection (2) of Clause 8 after the words "other places of natural beauty",
"and to buildings and other objects of archaeological, architectural or historic interest".
Those words occur in subsection (1)(b) but would be appropriate in subsection (2)(a):
"to have regard to the desirability of preserving for the public any freedom of access",
to these buildings and other objects of archaeological, architectural or historic interest. Again, it is not an absolute obligation. Nobody denies that there can sometimes be a conflict between access and conservation. But having regard to the desirability of access, it seems to us to be a modest and reasonable extension of the protection of our heritage and the protection of the ability of our people to take advantage of it.
Amendment No. 120 seeks to add a new subparagraph to subsection (4). It seeks to add to the duties of the authority the duty of promoting,
"the conservation of buildings and other objects of archaeological, architectural or historic interest, including in situ organic archaeological deposits and artefacts dependent for their survival on a high water table".
This may appear to be a technical point but it is particularly relevant to water authorities. Many ancient objects, especially of wood, have been preserved because they exist in swamps in waterlogged conditions. Water companies frequently dry out swamps. This desiccates any archaeological remains which may exist in the swamp with the result that they decay rapidly. The Committee may recall the extreme steps that had to be taken to protect the Tudor ship the "Mary Rose" when it was rescued off the south coast. It had been preserved by being in water but would have disintegrated rapidly if it had not been protected. It will be clear that the same can apply to waters or waterlogged land in the ownership of water companies and that they ought to be required—indeed, our amendment would require them—to take steps to protect the archaeological objects found in those circumstances which would otherwise be ruined. It is also true that rivers—because people throw things in them, and have done so throughout the ages, and because objects were lost there when rivers were a major means of transport—yield large numbers of objects of archaeological interest which will now be the responsibility of the National Rivers Authority. It therefore seems proper that the authority should have a further obligation imposed upon it, in addition to the existing obligations contained in subsection (4), to conserve those other objects of archaeological, architectural or historic interest.
I hope that the amendments will not be thought of as controversial. They seek to extend and clarify the relevant duties rather than significantly to extend them. I also hope that they will commend themselves to Members of the Committee. I beg to move.
6 p.m.
Lord Addington: When considering such a wide sphere as archaeology, it is right that we should take special account of it as regards the amount of damage which can be done to an archaeological site through, for example, the lowering of a water table or excavation work. I should like to endorse, without exception, everything that the noble Lord, Lord McIntosh, said. Moreover, I should like to reinforce what he said by making this point. In a nation such as ours where so much of our history is of the non-written type—that is, we have cultures which dominated our history: for example, the ancient Celts and the early Saxons who did not have a written culture—it is basically taught to us through archaeological finds. Thus I think it is most appropriate that we should take every step we can to ensure that most of these archaeological finds are kept in as good a condition as possible.
Baroness Carnegy of Lour: The points made by the noble Lords, Lord McIntosh and Lord Addington,
444
are absolutely valid. Indeed, it is true that sometimes an entire wooden dug-out canoe in an amazing state of preservation can be found in a swamp. Of course it would be most important to ensure that such a find was preserved. However, I take issue with the noble Lord as to whether such hard and fast wording is right in this context.
Amendment No. 99 would require the authority, or whatever body is running the land, to,
"protect and conserve objects of… historic interest".
Amendment No. 100 adds to that provision items of industrial heritage. On moorland a footpath may be suffering from slip because the land above it has become very wet and requires draining. The drainers would attack the matter, begin to dig the drain and might easily discover very old and interesting drainage systems which had been put there previously. They could be either very early stone-rubble drains running straight up and down the hill or perhaps 100 year-old horseshoe-shaped clay drains. In order to drain the area they would need to intercept those drains and put in another clay drain, or some other kind of drain, at an angle to the existing drains in order to disperse the water.
In my view, if it is said that such a drainage system is of extreme interest and must therefore be conserved, it will not be possible to do anything about it; one would have to move the footpath away in another direction, leaving the drainage system under the ground. The right thing to do in such a situation would be to record the drainage system and perhaps dig up one or two of the horseshoe drains and put them on show for the people's interest. Indeed, that is frequently done. This wording is unsuitable for such a situation, although it is absolutely suitable for the dug-out canoe or the piece of pottery which has been thrown in the river. However, such hard and fast wording is not suitable for legislation as regards this particular area of activity.
Lord Howie of Troon: I am happy to support my noble friend Lord McIntosh in these amendments. I should stress, however, that I am mainly interested in Amendments Nos. 108 and 120. I say that lest I inadvertently give the noble Baroness, Lady Carnegy of Lour, the opportunity to score another bull's eye. That is something which I am most anxious to avoid.
Looking at Amendment No. 108, it will be seen that it refers to,
"buildings and other subjects of achaeological, architectural or historic interest".
The water industry has a great many structures which are of historic and, indeed, of other kinds of interest. However, they are not buildings, they are not really objects and they are not architectural, although they should be preserved in so far as that is possible. I refer to aqueducts, locks, sluices, lock gates and tunnels. The whole industrial infrastructure of the water industry is really missed out in this important amendment. I know that Amendment No. 100 refers to "industrial remains", but I am not talking about remains; I am talking about structures which are actually there and which might conceivably become remains sometime in the future. I know that one

445
could argue that they are objects, but I do not think that it is sufficient to refer to the structures which I have in mind as objects. Indeed, they are far more important than that.
I think it may well be in the recollection of Members of the Committee that we came across this same problem about buildings a year or so ago when debating what eventually became the Copyright, Designs and Patents Act 1988. In the course of our debates, when the problem was drawn to the attention of the Minister, he redefined the word "buildings" to include "fixed structures". In fact, a fixed structure is what most of these things are. I am happy to support my noble friend's amendment, Amendment No. 108—I am sure that the Government will accept it—on the understanding that when we come to the Report stage we will amend it to refer not only to buildings but also to fixed structures, and that it will refer to engineering as well as to architectural and historic interest.
Baroness Nicol: I rise primarily to assure my noble friend that he is not quite alone as regards those Members of the Committee who sit immediately behind him on these Benches. I should also like to say that I expect the Minister to make the point that we must rely on the code of practice in this matter. As regards that code of practice, I shall make just two points. First, it represents a weakening of the criteria laid down in the land drainage proposals which were given, I think, about 14 months ago. Secondly, if Members of the Committee will turn to page 9 of the Bill and look at Clause 10(2), they will see that it says:
"A contravention of a code of practice as for the time being approved under this section shall not of itself constitute a contravention of any requirement imposed by section 8 or 9 above".
That provision would seem to weaken the code of practice completely. I hope therefore that when the Minister comes to reply he will draw those two points together and explain to the Committee exactly what is the value of the code of practice upon which we are being asked to rely.
Lord Wyatt of Weeford: I think that the objectives which the noble Lord, Lord McIntosh, has in mind are highly desirable. His amendments would strengthen the possibility that such objectives could be achieved. Therefore I should like to express my support for them.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): I hope that I can be brief on this group of amendments which seek to strengthen and amend in various ways the obligations of relevant bodies to have regard to the desirability or protecting historic features. A number of the comments made in response to the earlier groups of amendments are relevant here and I shall not repeat them.
As regards the specific terms of Amendment No. 99, in so far as it seeks to have as a substitute a mandatory obligation to protect historic features, we believe that it goes too far and we cannot therefore accept it. I shall return to the amendment in a moment.
446
We submit that it would be unreasonable to press those obligations further than is provided for in legislation at present. Perhaps I may indulge myself to the extent of using the example of a house and its prohibitions and restrictions under a restrictive covenant given earlier by the noble Lord, Lord McIntosh of Haringey. I live in a house which, if I applied for planning permission today, would be described as obtrusive, inappropriate and out of keeping with the surrounding environment. If I were lucky enough to be one of the 30 per cent. who got through the appeal procedure described by the noble Baroness, Lady Lockwood, I would then be in the position, if I wished by chance to change the colour of my wife's dressing room, of having to paint it under the cover of darkness, because what would have been inappropriate is now a Grade I listed building.
My experience is that the restrictions and protections imposed in this country are heavily enforced. Protection of historic features is an important objective to which we require the water industry always to have regard; but we cannot bind the industry always to secure it. It must always be a consideration but, given other duties and requirements, it cannot always be an obligation.
The noble Baroness, Lady Nicol, asked what the position was with regard to the code, of which she does not have a high opinion. I should take a moment or two to lay out to the letter what the code does. In addition to considering whether there has been, or is likely to be, a contravention of any of the requirements of Clauses 8 or 9, the Secretary of State is required by Clause 10 to take into account any contraventions of the code of practice with respect to the undertaker.
The enforcement order under Clause 20 requires the undertaker to take specified action, or to refrain from action, to remedy the breach. If the provisions of the enforcement order are contravened, there is a provision in Clause 23 for the Secretary of State to apply to the High Court for a special administration order which may lead to the loss of the undertaker's appointment.
I said that I would return to Amendment No. 99. We are prepared to consider incorporating the word "conserve" into the Bill. We recognise the points made by the noble Lord, Lord McIntosh. We shall look further at what help we can give in placing more items into the code.
Having said that, perhaps I may turn to the other amendments in the group. I recognise here concepts and terms which may provide a more positive and helpful expression of both historic buildings and landscape duties. In the light of what Members of the Committee have said, I accept that there may be scope for a better formulation, without making the obligations unrealistically tight as in the terms of Amendment No. 99. I cannot commit us to particular terms today, and I do not want to mislead the Committee into believing that we can accept the full impact of the amendments. If the Members of the Committee are content, I should like to take away Amendments Nos. 100, 102, 108 and 120 to see whether we can import into the clause some of the more helpful features of those amendments, and thus go some way at least in the direction in which

447
the amendments press us. I hope that on that basis the noble Lord may be able to withdraw the amendment.
Baroness Lockwood: In relation to Amendment No. 99, did the Minister say that he would look at the possibility of including the word "conserve" in the code or in the Bill itself?
Lord Hesketh: In the Bill.
Baroness Lockwood: I thank the Minister.
Lord Howie of Troon: When the Minister takes away Amendment No. 108, will he also take away my comments on it?
Lord McIntosh of Haringey: Should the noble Lord, Lord Hesketh, ever by challenged about the obtrusive nature of his house, he needs only to show the picture of his house with his charming family in front of it published in The Times some 10 days ago. I am sure that that will provide an adequate defence against any challenge.
I must express my gratitude to the Minister for his observations. Clearly, we should prefer to have a stronger obligation than merely "having regard to the desirability", but the inclusion of the word "conserve" as well as "protect" in the Bill will give considerable comfort to those who are concerned with our archaeological and architectural heritage. I am sure that they would wish that I should take up the Minister's offer to consider further amendments. If there is any way in which I could take part in the formulation of those amendments in discussion with him, I should be glad to do so. In the meantime, with my thanks to the Minister and to the Government, I beg leave to withdraw Amendment No. 99.
Amendment, by leave, withdrawn.
[Amendments Nos. 100 to 102 not moved.]
6.15 p.m.
Lord Addington Lord Addington moved Amendment No. 103:
Page 8, line at end insert—

("(d) to have regard to the desirability of preventing the afforestation by conifer trees in areas that form part of the catchment areas of inland waters.").

The noble Lord said: The purpose of the amendment is to protect the visual interest and amenity of the scenic landscape in some parts of the country; to ensure that public walking is freely available and to maintain an ecological balance within the countryside, especially in river basins. Many people agree that planting dense, single species conifer forests is extremely unsightly. There is no variety of colour and no visual interest is produced. A one-species forest is also environmentally unsound as it provides little food for some types of the wildlife that may inhabit it.
However, the impact on the ecology in those areas is more significant as conifer trees shed needles which produce acidic humus. That changes the soil
448
type, and water running off such land tends to become more acid in quality. As a consequence, rivers and stretches of water also become more acidic. The result often inhibits fish growth. For example, fish died in Durham Dales in 1986 as a result of run-off. On that occasion, new drains had been dug in coniferous woodland. That increased the rate of run-off and produced an intensive burst of acidic water entering rivers. However, because plantations tend to be a single species type of conifer, they also produce a more dense canopy which shades out all the undergrowth, thus reducing the range of flora and fauna. Once again, that will reduce the amount of food available in the forest, affecting all the wildlife around.
Access to new plantations would also be increased as one cannot walk through densely planted new conifers. Plantations reach semi-maturity before one can walk through them. That takes about 30 years. Two thinnings are needed before one can enter the woods. In another place Mr. Moynihan referred to the fact that he was aware of the problem. He agreed with the Opposition that it might be useful if reference were made to the issue in the code of practice. It was a highly complicated issue and many conflicting positions had been taken on the potential problems of conifer afforestation, not least the acidification of water supplies.
I hope that the Minister will be able to respond helpfully to the amendment. I beg to move.
The Earl of Radnor: The noble Lord, Lord Addington, has a point, but only one—the acidification of water. I do not go along with any of his other arguments. With coniferous forests planted in the wrong place, acidification is a matter for consideration. Acid rain and dead streams, especially in Wales, are a considerable worry.
As often happens among scientists, there is a great argument as to the exact reason for all. If people go to Wales and talk to the Welsh Water Authority they will be told quite clearly that it has nothing to do with electricity coolers, motor cars or industry because the Welsh winds sweep in from the Atlantic. Therefore, that cannot be the reason. The Welsh attribute the acidification of their streams, or at least they did so two years ago, almost entirely to the unwise planting of coniferous forests.
The matter should be looked at and perhaps covered in this clause of the Bill in some way or another, but certainly not as proposed in the amendment which refers to the catchment areas of inland waters and the desirability of having some influence over them. So far as I am concerned, the catchment areas of inland waters are the whole of England and Wales; that is what we are dealing with in the Bill. It would be quite wrong that those examining the problem and having responsibility for water should have control and influence over tree planting throughout the two countries. I suggest to my noble friend that the proposals are worth looking at. Somewhere in the clause, as well as the flora and the fauna, there should be some mention of the acidification of waters relative to the planting of coniferous trees—but it should not go too far.
Lord Moran: I wish to give my strong support to the general thrust of the amendment for the same reason as the noble Earl, Lord Radnor. The problem of acidification is extremely serious. A large area of upland mid-Wales where I live has been affected by acidification: it has had a damaging effect on the fisheries there. A number of lakes and the upper reaches of many rivers are now biologically dead. There are no fish in them, no invertebrates, and consequently birds like dippers have disappeared.
As the Minister will be aware, the Welsh Water Authority has organised a research programme funded by his department and the Welsh Office which have given the authority £600,000 to pay for research by 20 scientists until 1991. The work has been going on near the Llyn Brianne reservoir. It started orginally because a trap was put in below the dam to catch ascending salmon and sewin and take them up above the dam so that they could spawn. The trap worked very well. They were taken up but did not spawn because they were killed by the low ph and the high level of aluminium. That resulted from the fact that one of the rivers feeding the dam, the upper Towy, flowed through land 90 per cent. of which was covered with conifers. Largely as a result of that, the water became too acid to support fish life.
A great deal of research has been going on and it has been established fairly clearly that one reason is that conifer trees "scavenge"—the technical word used by scientists—the pollutants out of the air. The needles bring them down and concentrate them and they run off into the streams, particularly on poor soils which have no buffering effect, as is the case in many parts of mid-Wales.
Welsh Water is satisfied that surveys throughout mid and north Wales have established that there is a relationship between forestry and streamwater aluminium which is toxic to fish. It is therefore restricting further planting of trees in the sensitive upland area.
It is very important that this problem should be addressed. I wish to ask the Minister what steps the NRA will take to deal with the problem which seems to me of the first importance for river quality in the upland areas. The problem exists in many countries: it has been a problem in Canada; it is a continuing problem in Norway and Sweden; and it is now a serious problem in Wales as well as parts of south-west Scotland and other areas.
I very much hope that even if the Government do not accept the amendment they will be prepared to bring some wording into the Bill which will establish the matter as a very high priority for the National Rivers Authority.
Lord Renten: I support what the noble Lord, Lord Moran, has said. I am glad that he mentioned south-west Scotland, an area where we have a family property. The main public water supply there becomes rather precarious about every four years. This is partly due to the fact that although it is an area with normally fairly good rainfall, every four years there is a drought. The situation is made much worse by the fact that there are vast areas of conifer
450
plantations; these are very thirsty trees indeed. I know of a hillside with three wells which never failed until conifers were planted. When the trees became pretty fully grown they were so thirsty that water had to be carted a considerable distance by tanker in order to replenish the wells.
So it is not only the acidity that is caused by conifers; it is the fact that they cause a lack of availability of water, both public and private supplies, where the water is needed. For that reason I support the amendment.
I do not go along with my noble friend Lord Radnor in saying that we should ignore the effect on the flora and fauna. That is a factor which should certainly be borne in mind among all the other factors when the Forestry Commission or private owners are deciding whether to plant trees.
Lord Wyatt of Weeford: I wish to say a word in favour of the much-maligned conifer forest. These trees are extremely attractive evergreens. They look very agreeable in the winter when they illuminate and make more pleasurable the landscape. I do not believe it is true that they are busy killing fish life and wildlife. After all they grow in profusion in many parts of the world and people are fishing like mad for salmon and God knows what else in the lakes and rivers below them. I hope that the Government will not listen to all this obscurantist prejudice against the charming conifer.
Lord Howie of Troon: Conifers are fine trees and native to my part of the world, but I think it is fairly well established that they play a substantial part in the acid rain problem. The amendment merely talks of preventing further afforestation. There will still be a large number of plantations in south Wales, for example, and south-west Scotland where experiments are taking place.
We must ensure that if we prevent further afforestation the water authorities take other steps to prevent the acidification of lakes, reservoirs and streams. There are experiments now in south Wales involving spreading lime. The same is happening at Loch Fleet in Galloway. Not only should the spread of conifer forests be discouraged, but where they exist water authorities must be obliged to take such steps as liming in the lochs and water courses to counter the ill-effects of the conifers.
6.30 p.m.
Lord Clinton: I do not like this amendment either. It represents another attack on conifers. Conifers should grow well and produce an economic crop on these sites. In the catchment areas they would produce a crop much faster than hardwoods. It has been suggested that hardwoods and softwoods could be grown together. That idea should be considered. Surely the choice should be left to those on the ground to make their decisions on the basis of the usual consultations. This amendment imposes a duty and ties the hands of the relevant body as regards the kind of crop that can be grown. I do not support the amendment.
The Earl of Arran: I think I can be of some partial help to the noble Lord, Lord Addington. His amendment would require that bodies subject to the duties in Clause 8, in considering proposals related to their functions, should have regard for the desirability of preventing conifer afforestation in inland water catchments. I can readily understand the sentiment underlying this amendment. Coniferous afforestation in the wrong places, as my noble friend, Lord Radnor forcefully pointed out, can damage traditional and cherished landscape. It can contribute to soil erosion. And, most important for our present purposes, it can contribute to the acidification, as the noble Lord, Lord Addington, pointed out, of rivers and lakes, potentially harming water supplies and damaging the local ecology.
But the fact that coniferous afforestation can be detrimental to water quality in this way means that it is something to which the NRA and undertakers are bound to have the closest regard. While, therefore what the noble Lord says is, with qualification, valid, given the incentives on the relevant bodies, it hardly needs saying in the Bill.
There are good reasons why it should not be said. The duty in question is already a broad and inclusive one. To single out one particular practice for special reference is inherently undesirable because it can cast doubt on the scope of the provision.
In any case, the terms of the amendment go too far in two particular respects. It is going too far, first of all, to say that prevention of conifer afforestation is desirable everywhere in water catchment areas, as the terms of the amendment could suggest. Secondly, the Forestry Commission has already produced guidelines on how, by appropriate practices, conifer planting and protection of water quality can go together. Good practice can solve problems.
Looking to the wider context, I ask the Committee to recall the changes to government policy last year which made clear that the approval of the Forestry Commission should not normally be given for new planting, which consists predominantly of conifers, in the uplands of England
In these circumstances, and for these reasons therefore, this amendment is neither necessary nor desirable. However, as my honourable friend the Minister of State said in Committee in another place, we accept that this is an issue to which some reference in the code of practice would be useful. What we have heard today strengthens our view that that would be appropriate.
As regards the point that the noble Lord, Lord Moran, made, I can say that, more generally, acidification of upland streams is a matter which I know the NRA will be concerned about and will address in due course. It is, of course, a much wider problem which the department is studying.
If the amendment should be pressed, I urge the Committee to resist it as too sweeping and restrictive in its terms and yet at the same time too specific for a statement of general duties. However, I hope the proposer will feel, in the light of what I have said, that that is not necessary.
Lord Renton: Before the noble Lord replies, I wonder whether my noble friend Lord Arran would make it clear that in the code of practice there would be a reference not only to the danger of acidification, but also to the threat—this does not apply everywhere, but only in certain circumstances—to the availability of water if large conifer plantations are established.
The Earl of Arran: I am sure that what my noble friend Lord Renton says will be taken into account when it is decided how to phrase this particular reference in the code of practice.
Lord Addington: This has been an interesting and beneficial debate. I hope the Committee agrees with me on that. The Minister has met me some of the way and has given what I think I can describe as a broad undertaking to make sure the problem will not get out of hand and that it will be dealt with. I wish to draw attention to the fact that there is more than just the acidification of water in question here. The environment around water areas should also be considered. I hope that that will be dealt with in the code of practice. However, with the assurances I have been given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 103A:
Page 8, line 13, at end insert—
("(1A) Any proposals by, or in relation to, a body or person to which subsection (1) above refers shall where they relate—

(a) to a proposed disposal of land; or

(b) to a proposed change in the use of the land

be made subject to the requirement that the person concerned shall undertake consultation with each local authority in the area in which the land is situated and shall have regard to the results of such consultation in relation to recreational or environmental matters.").
The noble Lord said: Those who follow these matters closely will notice that Amendments Nos. 103A, 103B and 103C all seek to get something written into the Bill about consultation in respect of certain matters. Amendment No. 103A seeks to ensure that—
The Earl of Caithness: Will the noble Lord clarify for the Committee whether he is speaking to all three amendments together?
Lord Graham of Edmonton: I apologise. I understand they will be taken separately. When I consulted my noble friend Lord McIntosh of Haringey, my first reaction was that the three amendments were interrelated although they deal with separate points. I hope that the sweet reasonableness which the noble Earl, Lord Onslow, apparently felt was successful the other night may also be successful as regards one, two or even three of the amendments. But I shall deal with them separately and be grateful for small mercies.
Amendment No. 103A refers to proposals by a body or person having regard to,
"consultation with each local authority in the area in which the land is situated and shall have regard to the results of such consultation in relation to recreational or environmental matters".

453
As the Chamber knows, I am a strong local authority man. I enjoyed my service in local authorities very much. I invite the Chamber to consider the safety net that such consultation would provide. Local authorities often have joint arrangements with water authorities. If a change of ownership is envisaged by means of this legislation, and if subsequently there is a further change by means of the establishment of the plcs, and if other forms of management and ownership flow from that, it is essential that local authorities should be consulted. After all, the interests of the people within the areas of local authorities will be affected by such changes. Not only should local authorities be consulted, but also the gravamen of the consultation should be taken into account.
We on this side are trying to second guess what might be said in response to our proposals. No doubt we shall be told that there are adequate safeguards in planning procedures to make sure that the views of those who are held to be directly affected will be considered. But a number of Members of the Committee have drawn attention to the fate of planning applications in, for instance, the national parks. The situation there is very bleak. If one considers Exmoor, for instance, one can see that the percentage of appeals as regards planning applications is very high indeed. In 1985 it was 57 per cent., in 1986 it was 66 per cent.; and in 1987 it was 50 per cent.
In the Lake District National Park, the percentage of appeals on planning applications was 35 per cent. in 1985; 48 per cent. in 1986; 43 per cent. in 1987; and 44 per cent. in 1988. Like the Minister, we are firm advocates of the planning procedure nexus. If someone wants to make a change and that change is considered and then rejected by a local authority or a planning authority, it is perfectly proper that another court of appeal is established. We are not drawing any inference from the fact that an undue proportion of appeals against local authority planning decisions succeed. However, the Minister will understand the sensitivity of those who are concerned that they should not have to rely on the planning appeal nexus and that they should be consulted.
Like the Minister, I believe that when the Bill becomes an Act we shall be in a new ball game. Everyone concerned in local authorities will have to come to terms with the new facts of life. One can do that in two ways. One can do it the hard way or one can do it the sensible way; namely the Bill should lay down that if a change of use or change of ownership is of substance, the people affected should be consulted. In my view the amendment is eminently reasonable. I also believe that it will go a very long way to satisfy people outside this House that the Minister is especially concerned to ensure that local authorities are consulted, because they spend ratepayers' money and provide recreation and environmental facilities. Local authorities are not solely councils of 15 or 20 people; they represent the people who live in the area. We hope that the Minister will say something helpful about the amendment. I beg to move.
6.45 p.m.
The Earl of Caithness: The amendment seeks to impose a restriction on the ability of successor bodies to dispose of land; not, as the noble Lord, Lord Graham of Edmonton, said, substantial land, but land. It would require that no disposal or change of use of land should take place without consultation with the relevant local authority on recreational or environmental matters.
The first point I should like to make is that it is appropriate to regulate changes of use; they are already regulated by local planning authorities—the very bodies the noble Lord, wants to be involved. What is proposed here would cut across or extend unreasonably those general arrangements. The second objection is that I believe that the requirement to consult in respect of disposals goes unreasonably wide. We are not here restricting it to exceptional amenity or environmental features which might be jeopardised by disposals but are placing the requirement on all disposals. That surely is onerous and unreasonable and would extend unduly the remit of the local authority. Of course local authorities, particularly in their planning function, have an important role in recreation and environment. But we do not believe that that can justify the intrusion of consultation obligations as wide and onerous as these.
Lord Graham of Edmonton: Is the Minister saying that a form of words which is not as all-embracing as those in the amendment would meet with his sympathy, if not his approval? He pointed out that the amendment does not specify the land to which it refers. In essence it is all land which is currently in the ownership of or leased to the water authority. Before such land is disposed of or undergoes a change of use consultation should take place.
The Minister talked about onerous conditions. Who bears those onerous conditions? It will be the new owners. If the Minister says that somehow the amendment would prevent them from doing what they would otherwise do without consultation, he needs to spell out to the Committee and to those outside what the new owners would want to do that would change the use to the detriment of the enjoyment of the land by the current users. What would be onerous? The new plc may decide to rationalise its asset portfolio. It may decide to dispose of land which is surplus to its functional requirements and which is currently used environmentally or recreationally. The new owner may wish to jazz up the recreational use or to chance his arm and ask for planning permission for industrial use, warehousing, shopping facilities or for some other change of use. The Minister says that it would be onerous to lay down conditions requiring them to consult before changing the use of the land. I am surprised.
The Minister might say that planning procedures lay down means by which consultation takes place. However, more than one local authority may be affected by a change in the use of a particular piece of land. For example, I live in the middle of Lee Valley regional park, and am proud to have been a founder member of the Lee Valley authority in

455
1964–65. The Lee Valley covers a number of local authorities. In such areas a change of use on which only the local authority in whose area the land is located—the riparian owner—is consulted might be seen by other authorities as a matter on which they should also be consulted.
I should like the Minister to say a little more about what he is afraid of when he talks about laying a burden on new owners before they change radically, or change at all—I must be careful about my qualifications because there could be arguments—the existing use. I do not say that the use should never ever be changed; changes must be envisaged. But it is clear that the Government are opening up a host of possibilities for change of use in the future. If that is to be possible, why not consult the representatives of the people who will be affected by the changes? I do not mean just the shareholders, the employees or the managers: I mean the people who live in the area.
Baroness Blatch: Before the noble Lord sits down perhaps I may ask him a question about the example which he gave of the area within his own former constituency which extends over a number of district council boundaries. If there were to be a change of use the planning departments of each of those authorities would be involved and there would automatically be liaison with each local authority. Does he agree that they would all be involved in any change of use policy? He appeared to rule that out.
If the noble Lord replies to that question perhaps I may also ask him whether the particular area to which he referred is subject to local enactments anyway.
Lord Graham of Edmonton: I would happily settle for confirmation from the Minister that the planning legislation lays down that all local authorities affected by that change will be consulted about any change of ownership or use of land in an area such as the regional park or in the land which is currently under the sovereignty of the water authorities. That is the case for the amendment. If that is the case, and the noble Baroness, Lady Blatch, whose views I respect, tells me that there is no need for the amendment in those terms, I shall happily withdraw my amendment. But it ain't necessarily so.
The Earl of Caithness: In his first reply to my remarks the noble Lord concentrated very firmly on sub-paragraph (b) of his amendment, which relates to a proposed change of use of the land. It was quite right for him to do so. However, as he knows, and as Members of the Committee know, if there is to be a change of use of the land, local authorities have to be consulted. That is the planning law.
The second time that the noble Lord responded to me, he returned to paragraph (a) of his amendment, which refers to any disposal of land. That is where I take issue with him. It is unnecessary to have the onerous duty of consulting the local authority about the disposal of land in whatever shape, form or location. In my view, to have to discuss matters concerning land currently owned by a water
456
authority with a local authority would be an unnecessarily onerous imposition upon the ownership of land. The proposed change of use—the point of concern to the noble Lord—must be subject to a planning application.
Lord Graham of Edmonton: Is the Minister saying that if, under the planning procedure, there is a change of use, all affected local authorities will automatically be consulted? Does the Minister nod his head at that proposal?
The Earl of Caithness: If more than one authority is involved, it depends whether they are in agreement between themselves.
Lord Graham of Edmonton: Will the Minister confirm that all local authorities, whether there are five or only one, affected by a change of use will be consulted under the planning procedures?
The Earl of Caithness: Again, that depends upon the agreement between the local authorities. It also depends on what the noble Lord means by "affected" by a proposed change of use. A proposed change of use will be submitted to the local authority. If the local authority wishes to consult adjacent local authorities because there is common ownership or a boundary is involved, I am sure that the agreement will already be there, as my noble friend Lady Blatch has said.
Lord Graham of Edmonton: That is interesting. At local level I have come across scores of cases involving a change of use. At one stage I was privileged to be chairman of the planning committee of the London Borough of Enfield. It was our policy—I am sure that it was the general policy—to take the view that the people affected by a change of use should be consulted; for example, with regard to the demolition of a large house and the construction of eight flats or the change from residential to business use. In the main, that meant the people on either side of the house or perhaps on the other side of the road.
However, the Minister will not be surprised by the number of people who were not consulted about the decision and felt that they should have been consulted. It is not an easy science to decide who is affected by a change of use. The Minister said that a local authority—prima facie, the local authority directly affected by a change of use—may decide to consult its neighbouring authorities. I know that from my experience of local matters; for example, in respect of planning applications for large shopping developments on the A.10, adjacent to the M.25, in the Broxbourne area of Hertfordshire. As a courtesy, the authority consulted other London boroughs such as Enfield and Barnet. When a change of use is involved, every affected local authority should be consulted.
The second point that the Minister quite fairly made related to the change of ownership. According to the Minister, it has nothing to do with the local people if someone acquires land and then decides to sell it to other people. As I understand the Minister, the local people should not be consulted and should

457
wait and be surprised by the new owners. The Minister may take the view that he is not concerned when a change of ownership takes place. There is no proscription in respect of that matter. We do not ask that there should be proscription, but we believe that there will be terrible consequences when the Bill is enacted. I am not referring to the purpose for which the land will be used, but to its ownership. From his experience, which I greatly admire, the Minister will be as aware as I am that there are many cases in which land changes hands That land appears to be intended for one purpose, but planning applications may emerge five or six years later, although they had been intended from the first.
We envisage that people will acquire land, whether it be allotment land, green belt or recreational land. In five years' time, a planning application will be submitted by the owners, although their names may not be the names on the door. Local people are entitled to know who are the owners of that land. At present, the owners of all land in water authority areas are the water authorities. When there is a change to a plc, there will be a change of ownership. We protest against that change on principle. When the new owners emerge, we know that they will be a very disparate crew. They may well be desperate, but they will certainly be disparate. Ownership will be scattered. Is it not reasonable for local people who enjoy the facility to be consulted through the local authorities? That is all I ask. Perhaps the Minister will say a little more about my point.
The Earl of Caithness: I take the noble Lord's argument and I shall take it to its logical conclusion. But the intermediate step is: how does one consult the local people when one goes only as far as the local authority? I want to take the noble Lord's argument all the way. He is concerned about any land that the water authorities at present own. Surely, if he is to be consistent, he should argue that any disposal of land, including his house, should be notified to the local authority, to all the other owners and to the person in Cumbria who might happen to like his home in Lee Valley Park and think that the noble Lord is a suitable owner, but would dread the thought of me buying it.
Lord Graham of Edmonton: That response can be arranged. The noble Lord suggests that the disposal of a person's house falls into the same category as the disposal of part of the heritage of this country which involves open space, land and recreational use. With great respect, there is no comparison. Land which is at present owned by the people will now be sold to shareholders in a plc whose prime motive will be to make money out of it and who may then decide to sell that land to other people who believe that they can make even more money out of it. If the Minister tells me that there are people who will buy that land in order to keep it and restore it to its orginal use, he knows more about the matter than I do.
We believe that the people in a community are entitled to be consulted. The Minister makes a fair point. Not all local authorities will be equally zealous in doing that. He is aware that local newspapers may
458
sensationalise matters, but people find out about matters through the local press. We are talking here about large sums of money. The Thames Water Authority has an estimated £1,000 million-worth of assets. We are talking about billions and billions of pounds. The Minister has failed to satisfy me and the Committee. He has marginalised the importance of a change of use and ownership in respect of those important land areas, but I do not think that he will say much more of help to us. I shall consult others and see whether we can come back with a more narrow amendment based upon the Minister's comments tonight. He is not out of sympathy with me, especially with regard to the change of use, but he is adamant that, once the land is owned by other people, it is none of our business to know to whom they will sell it. The people of this country are entitled to know to whom the land may be sold. However, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 103B:
Page 8, line 13, at end insert—
("(1A) It shall be the duty of the Authority and every relevant body, in formulating or considering any proposals relating to the functions of any relevant body or, as the case may be, that body—

(a) to ensure that no such proposals shall affect any scheme, established in consultation or jointly with one or more local authorities, for the purpose of furthering the environmental or recreational amenity of the land concerned;

(b) where sub-paragraph (a) above applies, to attach such restrictive covenants and other safeguards to the use of the land as may further the purposes of that sub-paragraph in relation to that land; and

(c) to ensure that no such proposals shall affect, or make less likely the achievement of, any proposal for a scheme made by a local authority where, were that scheme already in existence, it would be a scheme to which sub-paragraph (a) above applies.").

The noble Lord said: There are currently in existence many agreed recreational and environmental management plans. The ownership of the land about which there are agreed recreational and environmental management plans is not in dispute at the moment. There is a happy relationship with a local authority which often provides expertise, facilities and subsidy from the ratepayers to encourage its residents to use the facilities. I think particularly of management schemes for access to land and for the protection, maintenance and improvement of wildlife habitats and of the operation of river regulatory schemes so as to benefit wildlife, fishing and other recreational pursuits. Many of these arrangements are of a purely voluntary nature.
In the previous debate the Minister said that it is none of our business if the ownership of the land changes hands. I tried to make the case that it was. Suppose that there is a management agreement between a local authority and the new owner, the plc. Then they decide to change the ownership of the land. We say that we ought to have something written into the Bill, or an understanding, that before

459
any existing management arrangement is disturbed there is consultation with the other partner. If a joint agreement is only to be exercised by the new owners of the land and not by the current users and supporters of the land, it is very one-sided indeed. I beg to move.
Lord Renton: This amendment overlaps with subsection (1), which it follows. If I may say so with respect to the noble Lord, it does so in a rather confusing way. For example, he says that the authority must ensure, and so must every relevant body,
"that no such proposals shall affect … a scheme".
What he means is "adversely affect any scheme", but that is not what it says.
Any such proposals may affect any scheme, but that is not what the noble Lord is after. His amendment does not express his intention. We get exactly the same point in paragraph (c) of his amendment, where we again have the words:
"to ensure that no such proposals shall affect, or make less likely the achievement of, any proposals for a scheme made by a local authority where",
the scheme is already in existence. Again the noble Lord needs the word "adversely" in.
Apart from that, if we look at paragraph (b) we find a reference to the tempting proposition that there should be restrictive covenants. We had a most interesting reference—I forget which of your Lordships made it—to restrictive covenants several amendments ago, but they can turn out to be a bit of an illusion because of the law and practice which have grown up in relation to them.
The courts are very reluctant to enforce restrictive covenants if they have become irrelevant owing to a change of owner or a change of use. Indeed in the past, as the noble and learned Lord, Lord Elwyn-Jones, sitting there knows very well, sometimes restrictive covenants have not been enforced as between the original owner and the original tenant or the original vendor and the original purchaser. Therefore if we were to build too much hope on bringing in the concept of restrictive covenants in these circumstances, it might turn out to be a disappointment.
Apart from those detailed points I hope that my noble friends will not accept this amendment, because frankly it adds confusion to a clause which is already perfectly clear thanks to the terms of subsection (1).
The Earl of Cranbrook: I think we need to know whether there are precise examples of such agreements. I have sought information from Anglian Water. So far as I am aware there are no such agreements with the local authority in existence in Anglian Water (which is the largest water authority in the country) to provide recreational or amenity facilities.
Lord Hesketh: The purpose of this amendment is to provide that no proposals of a relevant body shall jeopardise any scheme established jointly with a
460
local authority, or in consultation with it, for recreation or amenity; that it may if necessary achieve this by the imposition of restrictive covenants; and that no such proposals shall adversely affect any scheme currently being developed.
I am grateful to the noble Lord, Lord Graham, for his proposal, which I accept directs the Committee's attention to a matter of relevance which we should consider. The number of joint schemes between local authorities and water authorities is not, we believe, very large—I believe I am right in saying to my noble friend that there are some with Birmingham—but it is significant, and they deserve our attention.
We do not, however, believe that the right solution is to incorporate proposals on the lines of this amendment into the Bill for two particular reasons. First, the obligation to have proper regard for these schemes is implicit in due observance of the existing Clause 8 duties in the Bill in that the schemes would have been established in pursuance of the predecessors of these duties; secondly, the amendment is cast in particularly rigid terms. It would appear, for instance, to prevent a relevant body from seeking to amend or resile from a scheme even where it might be reasonable for it to do so. Nor is it entirely irrelevant that no such reciprocal obligations are to attach to the local authority even though they are joint schemes.
Having said that, I accept that this is not an issue that we should let pass. We believe that the best course would be to seek to cover the issue within the code of practice, taking full account subject to the particular doubts I have expressed, of the terms of this amendment. I hope that with that undertaking the noble Lord, Lord Graham, will be content to let us give effect to the reasonable objectives of the amendment by those means.
Lord Graham of Edmonton: I am grateful for the concluding words of the Minister. I have a number of illustrations here of existing arrangements, none of which relates to Anglia. The Committee in effect wants me to show the colour of my money, or to put my money where my mouth is, in respect of the fact that there are arrangements that could be disturbed. Let me give the Committee the first one.
Many of the river valleys in Greater Manchester, together with the associated reservoirs and water authority lands, are managed jointly by local authorities and the North West Water Authority. Together, as in the Douglas Valley, schemes of access have been agreed with jointly-funded wardens and information services. A massive new recreation resource, which includes the fascinating gardens of Rivington Hall—and we are going to hear more about Rivington later—a water authority property, has thereby been created. That is an agreement of the kind that we are trying to protect.
Secondly, the water levels of certain reservoirs—for instance, Selset in Durham—are maintained at a specific height for as long a period as possible to allow water sport to take place. In this case sailing is possible for much of the summer season but at some cost to Northumbrian Water which now pumps water from other sources. Thirdly, certain reservoirs or certain sections of reservoirs

461
—for example, Gouthwaite reservoir in North Yorkshire and Bakethin dam in Northumberland, neither of which is a national park—are managed as nature reserves. Agreements have been entered into for the management of those sites and no physical development or intensive local uses are permitted.
We believe that those arrangements are in danger. The Minister—and I accept completely what he says—says that he has sympathy with what we are trying to protect and that it may be possible that the code of practice will contain wording, or arrangements, in such a way that this will be satisfied. Like everything else, I of course accept what the Minister says without question in so far as the words are concerned, but we need to see the words on the paper. We need to see the code of practice in order to be satisfied. At this stage I am grateful to the Minister for what he has said. In the light of what he has told the Committee, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
The Earl of Arran: This might be a suitable moment at which to break for dinner. I suggest that we do not return to the Committee stage of the Bill before 8.10 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
7.10 p.m.

International Parliamentary Organisations (Registration) Bill
Brought from the Commons; read a first time, and to be printed.

Legal Aid (Functions) (No. 2) Order 1989
7.11 p.m.
The Lord Chancellor (Lord Mackay of Clashfern)The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft order laid before the House on 17th April be approved [15th Report from the Joint Committee].
The noble and learned Lord said: My Lords, the Motion standing in my name on the Order Paper asks the approval of the House for the making of an order under the Legal Aid Act 1988. On 20th March this year your Lordships approved an order under the act conferring certain functions on the new Legal Aid Board. That order formed part of a package of instruments implementing the Act and effecting the transfer of the adminsitration of legal aid from the Law Society to the board.
Unfortunately, there was omitted from the order provision intended to confer on the board the function of determining the costs of representation in care proceedings in the magistates' courts and the Crown Court. The purpose of the draft order now before your Lordships is to repair that omission.
I should perhaps explain that the regulations that your Lordships approved have that effect but it is
462
right that the Legal Aid Board should have the necessary functions. That is the reason for the order. I beg to move.
Moved, That the draft order laid before the House on 17th April be approved [15th Report from the Joint Committee.]—(The Lord Chancellor)
Lord Elwyn-Jones: My Lords, there is clearly need for provision for costs of representation for the purposes of care proceedings in magistates' courts and in the Crown Court to be made. For that reason we on this side of the House support this repairing of an omission which clearly was an oversight. That can happen in the best of administrations, and in not so good administrations. I am not for a moment indicating any political view on that matter.
The costs that are referred to are to be determined by the Legal Aid Board. The importance of such a provision we discussed when we were considering the Civil Legal Aid (Matrimonial Proceedings) Regulations 1989 when they came before the House in March. During the progress of the Children Bill through the House, the importance of protecting the interest of the child in wardship custody and care proceedings was stressed on several occasions and produced sympathetic reaction from the Government. This order relates only to care proceedings in juvenile courts and the Crown Court. Is there any provision in relation to wardship cases which the noble and learned Lord the Lord Chancellor contemplates?
Lastly, I cannot let this occasion pass without once more returning to my favourite theme of the family court. We regard that as the best means of economy and efficiency. I should be very grateful on behalf of the many noble Lords who are interested in this matter if the noble and learned Lord the Lord Chancellor can give some indication of what progress has been made towards the setting up of a family court.
The Lord Chancellor: My Lords, as the noble and learned Lord has said, this provision deals with the determination in relation to legal aid costs of the juvenile court and the Crown Court. With regard to what the noble and learned Lord referred to as a family court, he knows probably better than I that what is covered by that phrase depends a great deal upon who is using it. Different people have different ideas about it. However, in the Children Bill we have taken a very significant step in improving the arrangements for dealing with children's cases. The Bill contains provisions under which applications for care orders can be taken at the magistrates' court level, the county court level, or the High Court level.
I intimated in the course of the Children Bill how Her Honour Judge Joyanne Bracewell is assisting the president in making the necessary arrangements to facilitate this procedure. I believe that if these arrangements are successful, the result will be a significant improvement in the way children's cases are dealt with by the court, and a model—if successful—for continuing such arrangements in other types of proceedings. I also indicated during discussions on the Children Bill that we intended to embark upon an examination on how to further this

463
approach. I hope that in the not too distant future the noble and learned Lord will see gradually emerging a structure based on the three distinct levels but nevertheless unified in relation to the subject matter which will satisfy him as the best possible way of disposing of family proceedings.
Wardship costs are determined in the ordinary way as are civil costs. Therefore no special provision is required. I commend the Motion to the House.
On Question, Motion agreed to.

Beef Special Premium (Protection of Payments) Order 1989
7.17 p.m.
The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington)The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington) rose to move. That the order laid before the House on 31st March be approved [15th Report from the Joint Committee].
The noble Baroness said: My Lords, the order referred to in the Motion before the House gives effect to the provisions of European Community law on the repayment to beef producers of Community special premium. Before discussing the order itself, I should perhaps remind the House of the provisions of the Community scheme.
A premium of 40 ecus—currently £29·19—per head is payable on male cattle up to a limit of 90 head per producer in any calendar year. Premium payments may be made only once in the lifetime of any one animal. In order to minimise the risk of double payment, animals on which premium is claimed must be permanently marked.
Member states have the option to pay the premium either on farm or else at slaughter and on sale through live auction markets for slaughter. In the last case, animals on which premium has been claimed must be slaughtered within 21 days of sale.
As my right honourable friend the Minister of Agriculture, Fisheries and Food announced on 6th March, we considered that, at least in the first instance, we should operate the premium scheme at slaughter and at live markets in Great Britain. The order therefore gives effect to those provisions of Community law relevant to that option.
The order is made under Section 5 of the Agriculture Act 1957 which empowers Ministers to make orders requiring the marking of produce; the keeping and production of records relating to the purchase and sale of produce; and to provide for powers of entry for authorised officers to inspect land or premises used for the production or sale of such produce.
The order contains 10 articles—the basic scheme rules. For the sake of brevity, I do not intend detailing the contents of each article. Naturally I am willing to answer any of your Lordships' questions to the best of my ability. However, at this stage I must bring two matters to the attention of the House. The Joint Committee on Statutory Instruments found a minor error in the drafting of Article 2.
464
Paragraph 2 of that article was intended to have the effect of excluding officers of the Meat and Livestock Commission who act as agents for the Intervention Board from the powers of entry conferred on authorised officers of the board by Article 9. By an oversight what should have been a reference to Article 9 in this paragraph appears as a reference to Article 8. As such it is meaningless since Article 8 does not refer to the board at all. We have informed the joint committee that we shall put this matter right at such time as the order needs to be amended for other reasons.
Secondly, Article 6 is intended to implement a requirement of Community law that animals in respect of which premium is claimed at live markets must be slaughtered within 21 days of sale. The Joint Committee on Statutory Instruments has pointed out that the provision as drafted in this order does not fully meet that requirement, because it appears to offer the Intervention Board some discretion in deciding whether there should be a time limit for the slaughter of marked animals and, if so, what that time limit should be. Moreover it makes observance of the limit conditional on notice of it having been displayed in the market at the time of sale. We accept that the Joint Committee is right in this regard and we have undertaken to amend this provision at such time as the order needs to be amended for other reasons.
In the meantime, however, we are satisfied that the provision as drafted will have the effect intended by the Community provision, since every approved liveweight centre will in practice display a notice advertising the requirement that marked animals must be slaughtered within 21 days of sale. Such errors are clearly unfortunate, but they are testimony, if one were needed, to the speed within which we were forced to introduce a workable scheme. I should not wish to give the House the impression that we consider this to be an ideal scheme. It is, as I am sure noble Lords will realise, quite a complicated scheme to administer. The principal reason for the complexity of the scheme is the existence of the headage limit, which requires us to compile a register of claimants and to keep a running record of the number of animals in respect of which each applicant has claimed on all production units run by him. We argued strongly against the headage limit during the negotiations on the beef reform package in the Council of Agricultural Ministers, but the Commission and most other member states insisted on retaining it. That being the case, we had no option but to implement the scheme accordingly and in a very short timescale.
Although the Agriculture Council reached agreement on the reform package at its meeting on 23rd-24th January, the detailed rules for the operation of the scheme were not published until 21st March. But the scheme had to be in place on 3rd April. It was primarily for this reason, though not solely because of it, that we decided to operate the scheme in Great Britain at the slaughter stage. This enabled us to build on the administrative structures in existence to operate the beef variable premium scheme and to make a relatively smooth transition to the new arrangements. Of course there

465
have been teething troubles. The documentation for the scheme was necessarily designed quickly and some aspects have needed to be clarified in the first weeks of the scheme. There was some temporary disturbance of marketing patterns and price levels reflecting the anticipated ending of the variable premium. But that was an understandable reaction by producers to the reduction in the level of payments. The new arrangements have worked reasonably well and have not themselves given rise to significant market disruption. Much of the credit for smooth transition must go to those most closely involved in operating the scheme on the ground, the auctioneers at liveweight markets and the staff of the Meat and Livestock Commission and abattoir owners at deadweight centres. We are very grateful to all concerned for the way in which they have co-operated.
I recognise that most of those directly concerned with the scheme would greatly have preferred us to operate the scheme on-farm. Given the entirely new practical arrangements which that would have entailed, I am confident that had we chosen that course at the start the results would have been chaotic. However, our minds are not closed to the possibility of moving to an on-farm scheme in the future. As my right honourable friend the Minister said on 6th March, we shall, in consultation with other agricultural departments, conduct a review of the practicability and cost-effectiveness of moving to an on-farm scheme in due course. In this review Ministers will take account of a range of issues including the costs and administrative consequences of payment on-farm as against payment at marketing for slaughter; the relative impact on the industry of the two different means of administration; the possible transitional problems of making any change from the present arrangements; and the fact that the Community will be reviewing the slaughter option after two years.
Despite the understandable concern felt by many in the industry about the new scheme, the order which we are currently considering has enabled us to meet our obligations under Community law in due time without causing market disruption. Without prejudice to any decisions about future arrangements which might apply, I commend the order to the House. I beg to move.
Moved, that the order laid before the House on 31st March be approved [15 th Report from the Joint Committee].—(Baroness Trumpington.)
Lord Carter: My Lords, the House will be grateful to the Minister for explaining this order. As she says, it puts into legislation a Community decision to end the beef variable premium and to replace it with the headage premium. This is not the place or the time to go into the merits or the demerits of the change, but it is worth noting in passing that according to a Written Answer to a Question in another place on 2nd May the Minister of Agriculture was asked to provide the details of the actual amount paid to beef producers in the last available 12 months of the variable premium and to give his estimate of the total amount of the new premium which will be paid to the producers in the first year of the premium's
466
operation. The Answer from the Parliamentary Secretary was:
"Our provisional estimate of the amount of beef variable premium paid to United Kingdom producers, net of drawback on intervention and clawback on exports, in the financial year 1988–89 is £103 million. Our current estimate of the likely expenditure on the beef special premium in 1989–90 is £44 million".—[Official Report, Commons, 2/5/1989; col. 80.]
That is a reduction in the income of beef producers of £59 million in the first year of operation.
As the Minister said, this order was criticised by the Joint Committee on Statutory Instruments in its 15th report on the defective drafting of Articles 2(2) and 6. Besides the defective drafting, there has been a great deal of criticism of the records and forms which are required under the order. I am sure that the Minister will be aware of this. I have a briefing from the NFU which I do not propose to read in detail, but it seems that there are ambiguities in the records that producers are required to keep. Certain matters which appear in the schedules as required do not appear on the records which are required under the scheme. If these are requirements under the rules of the premium, why do not the forms accommodate all the points in the order?
Secondly, and perhaps the more important point, is this business of the recovery of premium, payments. There is a paragraph in the regulations which sets out the powers of the Intervention Board to recover premiums from producers who have contravened the rules of the premium scheme. But there is a marked ambiguity in the application form which does not make clear whether when the producer fills in the number of animals for which he is applying, that figure is inclusive or exclusive of animals which are on that form. Does the producer have to include the total number he has applied for previously or the numbers he knows have qualified for the premium? Some could have been rejected for the scheme.
That is a crucial point because of the recovery powers under the order in the event of a transgression. We should like to know how the Ministry will deal with producers who entirely innocently contravene the rules of the premium scheme because of the ambiguity of the application form. Will they be penalised and will there be provision for an appeal?
The order came into effect on 3rd April; therefore the criticisms are now dated. How do the Government propose to deal with them? We know that many cattle are sold on the farm to dealers. How will the Ministry ensure that the premium finds its way to the producer in the price that is paid? The Minister said that in the first instance the scheme was set up to pay at the point of slaughter. We assume that the eventual intention is to move towards the payment of the premium on the farm. That will ensure that the premium goes to the producer, as it should.
Baroness Trumpington: My Lords, before the noble Lord sits down, can he repeat his first question? I did not understand it because I was being spoken to as he put it.
Lord Carter: My Lords, it was about the sale of cattle on the farm to dealers. Who will be eligible for the premium? How will the Ministry ensure that when cattle are sold in that form the premium will find its way back to the producer?
Lord Hooson: My Lords, I am also grateful to the noble Baroness for explaining clearly this dubious scheme. It appears that beef producers' income is bound to go down as a result of the scheme. I believe that the money available would have been better directed at the prime producers of the beef rather than the fatteners.
I was intrigued to learn—and perhaps the noble Baroness can explain it—about the sexual discrimination against the female of the species. Why should she be deprived of the extra £30 per head when she goes to slaughter, poor dear? Is that a Common Market decision? According to the terms of the order are ancient bulls included among animals fattened on the farm, however old they are when going to slaughter? It appears to me that they probably are.
The noble Baroness expressed the fear that there may be teething troubles. The scheme is much more likely to have ear troubles, because the explanatory note to the order states:
"Authorised officers at deadweight centres are authorised to remove ears of carcases when they are marked and to take possession of such ears when an offence under section 7 of the Agriculture Act 1957 is reasonably suspected".
The mind boggles at the possibilities.
Is it not true that many Common Market regulations in relation to agriculture lend themselves to fraud? The requirement is that the animals be fattened for at least two months on the farm from which they are finally sent for slaughter before the headage can be paid. Most people know that often dealers eventually grade the cattle and take them to slaughter. The requirement that they be grazed by the final owner for two months appears to lend itself to fraud. I hope that the noble Baroness will be able to tell us about that matter.
Baroness Trumpington: My Lords, if I cannot tell your Lordships now I shall write to you. I listened carefully to the comments made by the noble Lords, Lord Carter and Lord Hooson. I know that my right honourable friend the Minister will read with great care the points that they made. We have not closed our minds to alterations. I shall certainly bring to his attention the point about the difference between the variable and special premiums.
I recognise the fact that there have been problems with the completion of application forms. In the main they relate to the declaration which the applicant must make of the number of animals for which he has claimed premium. In reprints of this form we shall make it clear that the declaration is intended to be exclusive of the animals included on the current application form and applicants will not be penalised.
The punching of holes in animals' ears is now enshrined in Community law. We know of no satisfactory alternative method of ensuring that animals on which payment is claimed at live markets
468
are not re-presented for a premium at deadweight centres. That is one of the factors in trying to avoid fraud.
Lord Carter: My Lords, if the noble Baroness will give way, it is not the punching of the ears but their removal which is mentioned in the order.
Baroness Trumpington: My Lords, yes, but it is the same kind of point. I remind the noble Lord that the ears are not removed until the animals are dead, and it is one way of preventing fraud. The different rules apply to animals which are exported. The Commission requires that the producers should be able to claim premium on those provided that the animals are at least nine months old and they have been kept by the producer for at least two months.
All those concerned with the buying and selling of animals or carcases in respect of which premium has been claimed are required to keep records of their transactions. These records are essential for the follow-up checks which we are required to carry out on farms. Their purpose is to establish the fact that applicants for premium are engaged in the business of fattening cattle for slaughter and that they have sufficient means for production to have fattened for at least two months the number of animals on which premium has been claimed. In order to carry out the checks we need powers of entry, which we have obtained. They are rather wider than usual but have been approved by the Home Office. They enable inspectors to enter on land which a producer had rented under a short-term let or licence and on which he claimed to have produced beef, even though the applicant's interest in the land did not exist at the time when the inspection was made. Therefore, we are taking many measures in order to deal with the possibilities of fraud.
The subject of dealers was raised by the noble Lord, Lord Carter. The premium is payable to the producer who declares that he fattens animals and not directly to dealers.
I do not know whether the noble Lord, Lord Hooson, would like me to enlarge on heifers. All I know is that they are all meant to be virgins. The ending of the beef variable premium scheme results in a significant loss of support for heifer beef because heifers are not eligible for the new special premium. Neither the Commission nor other member states were prepared to consider extending the special premium to heifers. Since most member states operate the premium scheme on farm, inclusion of heifers would give rise to difficulties of control. How can one reasonably be expected to distinguish between a heifer which has been raised for beef and one being raised as a replacement for either the beef or the dairy herd?
I hope that I have answered noble Lords' questions.
On Question, Motion agreed to.
The Earl of Dundee: My Lords, I beg to move that the House do now adjourn during pleasure until 8.10 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.40 to 8.10 p.m.]

Water Bill
House again in Committee on Clause 8.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 103C
Page 8, line 13, at end insert—
("(1A) The duty under subsection (1) above shall include the duty, in relation to any relevant body, to continue to make facilities available for angling at least to the extent prevailing at the passing of this Act.").
The noble Lord said: This amendment is to ensure that fisheries are managed in such a way that the general public is allowed the opportunity to fish. Again, we are dealing with our apprehensions as to what will happen to existing user rights over the lands transferred on the passage of this Bill and the ensuing flotation and creation of companies. Unless there are clear words on the face of the Bill, those companies will possibly contemplate not only disposing of the land which they acquire but also changing its use.
There is no doubt that water authorities could substantially increase their income from fishing if fishing rights were leased to the highest bidder and if the general angler were excluded. Many companies and organisations are prepared to pay quite handsomely for exclusive fishing rights, but in the past the water authorities sought to ensure that both the local angler and the visitor had an opportunity to fish a variety of waters in the area. Under the present legislation a clear incentive exists for water undertakers to develop their properties in such a way as to maximise income rather than use. Once existing leases and agreements come to an end, it is unlikely that rents will be retained at a level the local community and clubs can afford.
Furthermore, the pressure on the all too few stretches of water available for the general public to fish will increase and the gradual erosion of those facilities is inevitable. The amendment which we propose seeks to ensure the continuation of access to fishing by the general public and the local clubs at a price which they can afford. I can well imagine that the Minister will say that what happens to use, rents and arrangements is a matter for the future. Of course it is. That is what is so paralysingly frightening about the attitude of the Government as regards the use of our water facilities and particularly, in this instance, the use which anglers have had.
The noble Earl and others in this Committee may not be affected by the cost of fishing or by the accessibility and availability of it. On the other hand, they may be. However, the noble Earl will not need me to tell him that millions of people fish in the River Lea, which is in my local area. People fish in literally thousands of areas where there is access to fishing of disparate kinds. That provides them with sport, enjoyment and a way of life. They spend their spare time happily and sometimes fruitfully, but often not, at a price which they can afford. This is a probing amendment with purpose. I should like the Minister to tell me that there are plans to try to ensure that the future owners of lands where there are fishing facilities presently available will continue to allow access to the ordinary public, the members of an angling club, at affordable rents.
"Affordable" is a flexible term. We are not talking about low or subsidised rents. We must be realistic about this matter and we must be realistic in respect of costs. However, I would jib if the Minister says that a future owner who is looking at this matter primarily for profit can decide that a rent which may well be £50 a year can rise to £250 a year. There are people to whom £50 or even £200 may be acceptable but we do not wish to see money being the only criterion used to decide whether people can continue to enjoy their existing sport. I beg to move.
8.15 p.m.
Lord Renton: The noble Lord, Lord Graham of Edmonton, has done a good service by referring to angling because that is the largest participant sport in this country. One hopes that facilities which have existed for anglers in the past will be granted in the future or allowed to continue in the future and, indeed, that where possible other facilities may be made available to them.
However, I invite the noble Lord's attention to the fact that Clause 8(4) states:
"Without prejudice to its other duties under this section, it shall be the duty of the Authority, to such extent as it considers desirable, generally to promote—
(c) the use of such waters and land for recreational purposes".
The noble Lord has singled out angling, but there are other recreational pursuits on water; namely, sailing, rowing and water skiing. Water skiing is all right so long as the lake or reservoir is big enough, because to have water skiing in rather confined spaces is dangerous and sometimes environmentally unpleasant.
The question arises as to whether it is right to secure the interests of angling without also mentioning the others and whether in any event it is right to do that by means of this amendment which the noble Lord proposes when the terms of subsection (4)(c) are so comprehensive with regard to recreational purposes. Therefore, while sympathising with the noble Lord, I should not have thought that this amendment was necessary.
The Earl of Balfour: Perhaps I may make another point here. Surely the rivers will be looked after by the National Rivers Authority. I believe that the only cases where the water authorities will be involved will be on their own reservoirs. There is a difference and I wonder, in view of what has been said, whether the two are being confused.
Baroness Nicol: I should like to ask a slightly different question, although I support my noble friend in his desire to see that angling remains within the reach of all those who currently enjoy it. I am rather concerned that in the pursuit of maximising profits from angling societies, insufficient regard will be paid to the needs of conservation, which, after all, is in the long-term interests of the anglers.
Can the Minister advise me on the requirements in the draft code of practice, which I am sure he has with him? Page 21 states:
"When improving or developing fisheries for sport and recreation they should consult conservation bodies over any practice which is likely to damage the natural habitat of a designated site".

471
Can the Minister tell me which conservation bodies are in mind for the purposes of this document? Can he enlarge a little on what form the consultation is expected to take and how firmly that requirement will be implemented?
The Earl of Arran: As the noble Lord, Lord Graham of Edmonton, said, Amendment No. 103 concerns fishing and requires that undertakers make their facilities available for fishing at least to the extent prevailing at the time the Bill is passed.
The aim of the amendment is to protect and guarantee the position of existing fishing facilities after privatisation. That is an objective which the Government fully share with those on both sides of the Committee. There is nothing between us on that. The question is whether that objective would be better served by adopting the amendment or simply by adhering to the present terms of the Bill. The fact is that the amendment is unnecessary; indeed, in some respects it could even weaken and undermine the Bill's provisions.
In Clause 8(3) an obligation is placed upon all relevant bodies to make their water and land available for recreation in the best manner. This substantially continues the present duty in the Water Act. Further, a provision in paragraph 48 of Schedule 23 provides that, subject to any transfer scheme, the NRA and the water authorities' successor companies can continue to do anything under Clause 8 which they were doing under Section 20 of the Water Act.
We have supplemented this with relevant provisions of the code of practice. This states quite clearly that there shall be a presumption that, subject to suitable terms and conditions, public use of sporting and recreational facilities, once established, should be maintained by the grant or renewal of leases or licences.
At the same time the undertakers are to aim to contribute, as circumstances offer, to the wider provision of sport and recreation resources; to secure the best use of suitable existing and new resources; and to plan to cater fairly and equitably for as broad a range of interest groups as is practicable. These are not empty words. The Secretary of State will be under an obligation to take account of the code requirements in determining how and when to use his powers to enforce compliance with the Clause 8 duties. The amendment before us would require undertakers to continue to make their facilities available for fishing at least to the extent prevailing at the time this Bill is passed.
By any criteria fishing is a very important recreation, whether by sheer number of enthusiasts-some 3 million, it is suggested—or by their diversity of the sections of the community from which they are drawn. It is inconceivable in these circumstances that the undertakers and the NRA could exclude fishing from their duty.
It was at this point that the noble Lord, Lord Graham of Edmonton, expressed his concern at affordable rents. I can only say that it would be extremely unwise of the undertakers to have rents that are too high. They could hardly expect people
472
to fish their waters, so it would not be sensible to do that. Furthermore, fishing interests will have the benefits in the NRA of the separate regional fisheries advisory committees. The NRA will inherit the duty to maintain, improve and develop the fisheries in the Salmon and Freshwater Fisheries Act 1976.
As we have made clear in another place, while the Government have every sympathy with the objective, such an amendment is both too imprecise and too rigid. What test are we, for instance, to use as to whether facilities are in future being made available to the extent now prevailing; the number of reservoirs at which some fishing is allowed; the extent of fishing permitted; or the actual number of clubs and day passes? Unless we know how we would determine these matters, we shall be imparting a false impression of precision into the duties which would be misleading and unhelpful.
Over time also the amendment would prove undesirably rigid. It is possible, though unlikely, that in a particular undertaker's area there might be a fall in demand for its fishing facilities—perhaps because of increased provision by other bodies. If this coincided with substantial current demand for another recreation pursuit which conflicted with angling, such a provision would stop the undertaker achieving the requirements of the code—that is, putting recreational resources to the fullest use and meeting the widest range of interests. That cannot be right.
My noble friend Lord Balfour asked about fisheries and bankside activities. When improving or developing fisheries for sport and recreation the undertakers should consult conservation bodies over any practice which is likely to damage the natural habitat of a designated site. Practices which could result in damage include intensive stocking, stocking with alien species of fish not naturally found in the receiving waters and the use of anti-fouling paints. This depends on which body is responsible for designating the site; for example, the NCC on a site of special scientific interest.
I hope it follows from what I have said about the actual terms and effects of the amendment that we do not believe it should be accepted, much as we have sympathy with the proposers' underlying aims. Therefore, I trust that it will not be necessary to press this to a Division.
The Earl of Onslow: Before we go further, has my noble friend any idea whether the present rents are artificially depressed by a general desire by the water authorities not to be particularly commercial? Are the rents likely to go shooting through the roof? That has happened when certain industries have been privatised. Are rents near what could be classed as market rents? Obviously I declare an interest in that I have a lake for which I charge what I can get, within reason, for people to catch tame trout, which they thoroughly enjoy doing.
However, where people are catching gudgeon on, say, the banks of the Trent and Mersey canal or on some reservoir or other, are the rents near to what should be charged or, if not, is the difference known?
Baroness Nicol: Can the Minister answer my question about which conservation bodies are meant in the code of practice? Is it the Nature Conservancy Council, the Countryside Commission, or whom?
The Earl of Arran: In reply to the noble Baroness, it depends upon the circumstances as to which conservation body would be responsible.
As regards the question asked by my noble friend Lord Onslow, I understand—and I believe it to be right—that in some areas the market rents are being charged but nevertheless there is a loss. However, it depends very much on what rates individual areas charge.
Lord Graham of Edmonton: I am grateful to the Minister for giving a full explanation of how he views the future. I certainly feel that those outside the Committee can be assured that the Government believe that there are arrangements whereby the best interests of anglers can be preserved in respect of what goes on, the charges made and so on.
I intend to withdraw the amendment because at this stage of the Bill all we want to do is to get a little more on the official record from the Government than has been said before. It is a certainty that there will be circumstances in which the charge that is made to anglers in some areas is looked on as reasonable while the same charge will be looked on as punitive in others. I cannot believe that, after the regime of this Government for the past 10 years, there will be many public or publicly-oriented bodies that have not been forced to move if not to full market rents then to something approaching them. I doubt very much whether there will be very many bodies where there is what one might call a blatant shortfall in what has been charged; for example, a nominal fee of £5 instead of £50. Most public bodies have been forced to try to come to terms with the fact that not only is subvention from the centre declining but there is also pressure in other ways.
I should like to believe that in future some of the bodies that will be responsible—namely, the new owners—will not prefer to have fewer people fish and higher fees that are likely to mean a greater income charged rather than have more people fish at a lower charge. The former is bureaucratically more convenient. Perhaps even a better quality of fishing may result. At the moment it is generally the case that most water authorities are more anxious to ensure that the fishing facility is available to the many than to try to upgrade the quality of the fishing and have it enjoyed by the few. I subscribe to the former rather than to the latter.
I do not dispute what the Minister said nor am I too upset at the possibility that what he believes may not take place. He has a more touching faith than I in the willingness of people outside who might have a goldmine of one kind or another in their hands and out of which they can make a great deal of money, actually saying "We shan't do it either because it's unfair, it's not right or it's to different to what it was before we came". I have a shrewd idea that, when the accountants and the managers get to grips with how they are to maximise and utilise
474
the new assets, they will be primarily, if not wholly, concerned with maximising the profits that they can get. I am grateful to the Minister. Those outside this Committee will read what he has said. I may very well come back and we shall have further discussions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 104 not moved.]
8.30 p.m.
The Principal Deputy Chairman of Committees (Baroness Serota): In calling Amendment No. 105, I should point out that, if it is agreed to, I shall not be able to call Amendments Nos. 106 and 107.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 105:
Page 8, line 16, leave out from ("body") to ("for") in line 19 and insert ("to preserve").
The noble Lord said: In moving this amendment I shall speak also to Amendment No 109, which one might think of as a fallback position. I say straightaway that these are probing amendments. It should be recognised that the Government at Report stage in another place made some progress towards meeting the very real concerns which were expressed about the risk to freedom of access to the countryside arising from water privatisation. In particular at that stage the Government changed the words from "public rights of access" to "retaining for the public any freedom of access", which we felt widened the scope of the duty and made it more powerful.
Clause 8(6) is very curious. It states:
"Nothing in this section or the following provisions of this Act shall require recreational facilities made available by a relevant body to be made available free of charge".
Why should that be put in and whoever suggested that they should be required to make recreational facilities free of charge? In any piece of land owned by a water authority or anyone else there is almost certain to be a mixture of charging and not charging. You might as well say that you will put into the Act, "Nothing in this section shall forbid recreational facilities to be made available free of charge". It would be as necessary or as redundant. The Act and its provisions in this section and subsequent ones stand on their own merits. If the interpretation could be that some particular part of water company land should be made available free of charge then the section should say so, and if that is not the case it should also say so. There is no reason for it to be second guessed by this particular provision in subsection (6).
As it is, the duty is still an extremely weak one. At present a water undertaker has to have regard to the desirability of preserving access, but it is perfectly free to say "Yes, we have had regard to the desirability of preserving access but we are not going to do anything about it". That does not make very good sense. We have discussed the question of "having regard to" in the past, but the issue of whether they are going to have regard to any such duty is affected by Clause 7 and by the duty on water undertakings to maximise their rate of return. It is true of course that the Secretary of State has the power to enforce any "have regard to" duties, but

475
he has only the power to enforce the duty to have regard. He does not have the power to enforce a duty to do anything once the water undertaking has had regard to something.
It is also true that there is an obligation on the undertakings to put their land to the best use for recreation. But that is qualified by saying that this is necessary only when it is considered practicable by the undertaking and when it is consistent with the functions of that undertaking. Altogether this whole question of access to water-undertaking land and access to the land free of charge where it has been free of charge in the past is not very satisfactory or clearly expressed in the Bill. We have put down an amendment to take out the unnecessary subsection (6). In Amendment No. 109 we have made specific reference to the need to preserve public access on foot. I believe it will be agreed that there may be occasions when special facilities such as car parks are required to be provided by water undertakings. In those circumstances it would be proper for a charge to be made.
Public access on foot is not a case of that kind. By definition that kind of access is something that is not going to cost the water undertaking a great deal of money to provide and it should not be the subject of charging or of any further restriction. There has been considerable correspondence between the Ramblers' Association and the Minister on this matter and no doubt we shall refer to this again in a later amendment. I am now referring to Amendment No. 109. I hope that on the limited aspect of access for the public on foot to water undertaking land the Government will feel that there is no major issue of principle which is breached by the amendment and will be able to agree to it. I beg to move.
Lord Hesketh: Amendments Nos. 105 and 109 relate to Clause 8(2), as the noble Lord, Lord McIntosh, pointed out. This places the general duty on relevant bodies to have regard to the desirability of preserving public access to their land of amenity value. Amendment No. 105 seeks to substitute "preserve" for "have regard to the desirability of preserving". Amendment No. 109 is consequential upon that.
I hope that the Committee will bear with me if I deal with this issue at some length today. Our proposals have been the subject of persistent—I am almost tempted to say determined—misunderstanding with which I must seek to deal. Perhaps I may set out first the present position on public access, then the various arguments that have been raised against the proposals, and finally, against this background, comment on the amendments.
As noble Lords will recognise, public access to water authority land, established and developed over many years, is made available on a number of different bases. There are permanent statutory rights of way. There are rights of access established effectively permanently under local legislation such as the Birmingham and Manchester Corporation Acts; there are access agreements with national parks or other bodies where the rights often pass with the land to successors in title. In addition, there are many
476
paths and bridleways established only by custom and practice. And finally there is concessionary access made available at the discretion of the water authority itself.
I recognise that there is great concern that after privatisation the undertakers may restrict such access. But I do not believe there is any basis for such fears. Nothing the authorities have said or done indicates they will act in this way and, given the nature of most of the land in question—upland, rural areas—there would surely be little advantage to them in it. Since 1974 they have taken down the fences. As they have indicated, they have no intention of erecting them again.
Be that as it may, what will the position be after privatisation? In the first place dedicated rights of way will of course be unaffected. Secondly, arrangements established under private legislation, as for instance in parts of the Lake District and Peak District, will also continue. And, by an amendment to the Bill in another place, the Government have specifically denied themselves any right to vary or amend such legislation in consequence of the enactment of the Bill. Thirdly, in any case where access may form part of a management agreement with a national park authority, such arrangements and agreements continue under successor owners unless there is express provision otherwise.
So the only area of uncertainty we are left with will be concessionary access granted at the discretion of the water authority. However, the fact is that Clause 7 provides a sound basis for continuation of policies of the water authorities by their successors. By an amendment in another place to which the noble Lord, Lord McIntosh, referred, we have put beyond doubt that the duties in Clause 9(2) embrace all freedom of access, including concessionary arrangements and the right to roam, where this is currently allowed.
Now it has, I recognise, been suggested that the terms of the duty are not strong. On the contrary, we believe they will be fully effective. Under the terms of these duties, and having regard for what authorities have in the past done in pursuit of it, there will be little scope for the undertakers seriously to alter their predecessors' policies in this area. The code of practice reinforces this. It requires a positive approach from undertakers towards public access. It incorporates a presumption that policies for opening up land of high amenity value for rambling and quiet countryside pursuits will continue. It refers to arrangements—including consultation—for establishing the current pattern of access rights—formal and informal. And the duties, interpreted in the light of the code, will of course be enforceable by the Secretary of State.
The noble Lord drew our attention to Clause 8(6), which he described as curious. The provision, necessary mainly for technical reasons, simply makes clear that the existence of the recreational duties does not of itself entail that recreational facilities should necessarily and always be provided free. Perhaps I may give an example. I am sure that the noble Lord, Lord McIntosh, has no desire to be voted "Man of the Year" by the Shooting Times. The North-West Regional Water Authority has a

477
number of grouse moors. I am sure that he would feel it right and proper that it should charge the shooting community for the use of them.
The reality therefore is that we have provided a framework which will secure continuation of present policies and practice without bureaucracy and also without the undue rigidity which would result if we took away the discretion the Bill allows and sought to make each and every informal or concessionary arrangement binding. Against this background perhaps I may make clear why the amendments are in the Government's view unacceptable.
Amendments Nos. 105 and 109 would in effect make mandatory all existing access arrangements. The relevant body would have to preserve them rather than have regard to the desirability of preserving them. But what must rule out the noble Lord's proposal is its rigidity. This implies that all rights of access and recreational arrangements, of whatever kind and however temporary they may have been intended to be, shall be indefinitely maintained.
This has two weaknesses. It does not give sufficient recognition to the operational needs of the undertakers which may reasonably require them to withdraw public access at a certain time or in certain circumstances. If undertakers felt they were never again to have any flexibility in the variation or withdrawal of access arrangements, the last thing they would do would be ever to allow any new such arrangements in the first place.
The second weakness is this. Public access is a good—but it is not a unique or overriding good. In many urban areas there is a dearth of suitable land for housing. If in certain cases water authority sites can help to meet that need and that means varying or overriding certain arrangements for public access or recreation, then that is surely not unreasonable—so long as the outcome is consistent with the local planning authority's perception of the best interests of the local community. If one goes to the rural extreme at the other end and finds that somewhere in Cumbria a new pair of golden eagles has landed in an area constantly used by ramblers, it would be entirely reasonable that perhaps 1,000 acres should be declared an exclusion zone in the hope that procreation would take place there.
I have to say therefore that we find these proposals unacceptably rigid and inflexible, and for that reason we are unable to support them. I believe that anyone who reflects upon the provision of the Bill and the code of practice should welcome our proposals. They provide an enforceable framework for ensuring that present policies continue and that the great upland areas owned by the water authorities remain open to public access and enjoyment while allowing reasonable flexibility to the undertakers to allow for changes of circumstances and new operational requirements.
While I hope I have been able to persuade the Committee on this point, I recognise I am unlikely to have been able to persuade the Ramblers' Association and some related organisations which seem intent upon recreating the "mass trespasses" of the past without the slightest shred of present
478
justification. I do deplore this. It is without justification. For, as far as this clause leaves ramblers and climbers in any doubt as to the future security of their pursuit—and it should not—any doubt should be wholly dispelled by another subsection of the clause. This is subsection (3), which requires relevant bodies to put their land and water to best use for recreation. This is an absolute duty, not one of those "have regard for" duties which have been so unfairly criticised. It is the duty most relevant to rambling and climbing, but never mentioned by the Ramblers' Association. However, I hope the Committee will not overlook it. It should provide all the reassurance that can be needed that public access for rambling and informal recreation will be fully secured after privatisation by the terms of the Clause 8 duties.
In the light of what I have said, I hope that the noble Lord, Lord McIntosh, may see fit to withdraw his amendments.
8.45 p.m.
Lord Graham of Edmonton: The Minister chose gratuitously to malign the intentions of the Ramblers' Association and in his final words went so far as to make allusions to its determination to break the law. The Minister should reflect on what he said. If this is related, among other things, to the Rivington Rally, which is perhaps the most public manifestation of the attitude of the Ramblers' Association to its continued free access to the land which it has previously enjoyed, the Committee should listen carefully to those 2,451 people who signed a statement when they met on 7th May. This is what they subscribed to:
"We the undersigned pledge our lifelong intent to regard ourselves at liberty, in exercise of the simple human freedoms which we Britons rightly claim, to walk with our families and friends for recreation of body and mind wherever public access to open country is presently enjoyed by a water authority. We shall cause no damage, break no criminal law, neither threaten nor commit any violence nor intrude upon anybody's privacy. But if free access to these lands is at any time denied, we now declare that the threat of legal action for trespass which is not a criminal offence shall not deter us from exercising our traditional right of access to the hills".
The Minister may interpret that as he wishes. I know that many people—not only in the Ramblers' Association, which represents only a tiny fraction of the millions of people involved—feel that lands which have hitherto been made available to them should continue to be made available to them for the innocent pastime of walking. I am afraid that so far as I am concerned—my noble friend Lord McIntosh has yet to respond to what the Minister has said—the noble Lord is not creating a good atmosphere in which to negotiate or to continue to have a relationship with a responsible body of people.
Lord McIntosh of Haringey: I am sorry that the Minister saw fit to accuse the Ramblers' Association and those who took part in yesterday's demonstration of being misguided. My noble friend had made it very clear that many people there were seriously concerned about a restriction in their rights and were seriously dissatisfied with the Government's proposals. However, they acknowledged and were grateful for the progress made on Report in another place.

479
I am surprised that the Minister should then see fit to repeat what the statement says in subsection (3) of this clause about the obligation to ensure that land is made available for recreational purposes. On moving the amendment I said that this is not an unqualified duty, although it is hedged about with the condition that it is only required to be as reasonably practicable and as consistent with the functions of the undertakers as possible. However, the trouble is that less scrupulous people can drive a coach and horses through this sort of wording; indeed, they have done so.
The wording:
"have regard to the desirability",
is not new; indeed, it can be found in Section 17 of the Countryside Act 1968. It simply has not provided the protection which is required. An authority which wants to restrict access in any way can have regard to the desirability of not restricting access. It can meet and receive a deputation, although it does not even have to do that, it just has to say, "We have considered the matter". It can then go ahead and restrict the access. That of course is not an adequate protection and the Ramblers' Association and the people who met yesterday at Rivington do not think that it is adequate.
This is a complex matter and I do not wish to be accused again of proposing an absolute duty when it is clear that there are occasions when such an absolute duty would not be appropriate. As the noble Earl, Lord Onslow, said, we have already gone around in circles on once occasion about this wording and therefore I do not propose to do so again this evening. However, I undertake that this is a matter to which we shall have to return at a later stage in the Bill's proceedings if the very real concerns—in my view very justified concerns—of those who make active use of our countryside are to be met. I do not believe that the Government have done so thus far. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 106 to 110 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 110A:
Page 8, line 25, after ("to") insert ("subsections (1) and (2) above, and to").
The noble Lord said: This amendment is an attempt to ensure that the relevant body—that is, the water undertaker—which has a duty to make water or land available for recreational purposes, that is,
"water or land associated with water",
as stated in line 34 of subsection (3), does so in a manner consistent with its conservation interests and amenity value. This again raises a most important issue which was touched upon earlier this afternoon. The noble Viscount, Lord Caldecote, questioned me about a previous amendment. He wanted to make sure that when I talked about conservation I was not doing so at the expense of recreation. I am not sure whether I was able to
480
reassure him on that point. However, the point is a valid one because there is, as Ministers have said today, the possibility of a conflict between conservation and recreation.
I think that the Norfolk Broads would be a good example of that conflict. Clearly it is desirable from many points of view that there should be wide access to areas on the Broads, which give enormous pleasure to people who wish to go boating and so on. However, at the same time there is a need for the conservation of bird life in certain parts of the area. Therefore the relevant bodies, the water undertakers, will have to bear in mind both of those priorities when organising access to their land for recreational purposes.
The amendment stipulates that when such undertakers are fulfilling their obligations under Clause 8(3) they should do so in the light of the conservation responsibilities imposed upon them under subsections (1) and (2). I do not think that there is any way in which we can get rid of this potential conflict between conservation and recreation entirely; it will always be a matter of discussion case by case. However, we hope by putting the two issues together in this way that we may come closer to the regulatory framework in which the best decision can be reached in as many cases as is posssible. I beg to move.
Lord Hesketh: This amendment relates to subsection (3) of Clause 8, which sets out the general recreational duties of the relevant bodies—that is, the NRA, the companies and the internal drainage boards. The amendment would subordinate the recreation duty to that for public access. Such an amendment would undermine the proper balance which we believe should be struck between access and recreation duties. It could for instance inhibit the relevant bodies from ever leasing off parts of their land to which there has previously been public access to sporting clubs for specific recreational uses. That is something which one might not consider appropriate in many cases but it is surely not something which should be wholly precluded. The code of practice requires that putting land in water to "best use" for recreation involves striking a reasonable balance among public and private uses and the variety of particular leisure pursuits. That is surely right.
As the noble Lord, Lord McIntosh of Haringey, also rightly pointed out, there will for ever be a conflict to an extent, no matter how small. Therefore, for the reasons which I have given, I hope that the noble Lord will feel able to withdraw his amendment.
Lord McIntosh of Haringey: The Minister will not be surprised to learn that I am not satisfied with phrases in a code of conduct which is in itself unsatisfactory and which has inadequate powers. However, I agree with him that striking a reasonable balance is the right way to approach the matter. It does not of course solve the problem in any particular case, but it at least reminds those concerned of the differences of interest which may arise. I thought that Amendment No. 110A went some way towards striking a reasonable balance; but the Minister seems

481
to think that it is putting recreational interests in a subordinate position to conservation interests. I must stress that it was not my intention to do so as a blanket measure. However, I think that I had better read what the Minister has said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9 p.m.
Lord Greenway Lord Greenway moved Amendment No. 111:
Page 8, line 28, after ("of) insert ("each of the following, that is to say, the Secretary of State, the Minister, the Director and").
The noble Lord said: I now return to the fears which I expressed on Second Reading regarding what might be called the boating interests. Those concerned are anxious so far as possible to maintain what could be termed the status quo. While Clause 8 appears generally to reflect the existing water authorities' duties as contained in Sections 20 and 22 of the Water Act 1973, the recreational duty contained in subsection (3) appears in many ways to have been lessened.
I said initially that boating interests were fearful that the general duties might have been lessened under this Bill compared to those contained in the Water Act 1973. Amendment No. 111 is a small amendment. My aim is to make the duty applicable to the Secretary of State, the Minister and the director as well as the relevant bodies. The wording appears to have dropped the Water Act wording. I am seeking an additional reassurance that the change in the wording does not mean anything. I beg to move.
The Earl of Arran: Amendment No. 111 proposes that the Secretary of State, the Minister and the director general should also have the duty to take such steps as are reasonably practicable to put their lands and waters to best use for recreation. If that is literally what is intended then it should not be accepted. It would be quite inappropriate since the Secretary of State and director have no special rights to land or water on which, in the context of water legislation, the duty could bite; and to go wider would of course be quite absurd. But if the proposal is that the Secretary of State and director should have the duty to take such steps as are reasonably practicable for securing that the companies put their land and water to best use for recreation, then maybe there is something in it. From what the proposer, the noble Lord, Lord Greenway, said, I think that he intends that second approach.
The Secretary of State already has enforcement powers in relation to provisions of this clause, but we recognise that there may be merit in associating him more directly with the discharge of that duty. It is at least a possibility worth considering further, and if the proposer agrees that is what we should like to do.
Lord Greenway: I am most grateful to the Minister for that reassurance and for the fact that he will look at this matter further. I look forward to hearing from him on this point at a later stage of the Bill. In the meantime, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 112 not moved.]
Lord Greenway Lord Greenway moved Amendment No. 113:
Page 8, line 30, leave out from ("practicable;") to end of line 32.
The noble Lord said: Amendment No. 113 relates to the "so far as consistent" proviso contained in subsection (3)(b) which is new in the Bill compared with the Water Act 1973. It may be potentially damaging given that most, if not all, of the other functions of the new plcs are most efficiently fostered in the absence of any recreational activity. One of the new companies might not be well disposed towards boating people. It could happily argue that providing recreational facilities was inconsistent with the supply of water.
The aim of the amendment is to delete the proviso or, failing that, to be reassured that the duty to ensure that the land is made available for recreational purposes will not be rendered ineffective as a result. I should be interested to learn under what circumstances the Government believe that that duty would conflict with,
"the purposes of the enactment relating to the functions"
of the plc, or even the NRA, especially in relation to provisions contained in Clause 7.
Amendment No. 114 seeks to delete the qualifying words,
"so long as that body has rights to the use of water or land associated with water".
Those words appear to leave open the possibility that subsidiary bodies established by the private water companies would not be bound by the recreational duties contained in Clause 8. The point was raised earlier by the noble Lord, Lord Norrie. The Government have accepted that interpretation subject to the proviso that the land holdings are not used for functional or operational purposes. They have gone on to argue that the appropriate safeguards will be provided through the existing planning system.
The boating industries feel that those safeguards are inadequate. They would like to see subsidiary or associated organisations included within the definition of relevant body contained in Clause 8(7).
Amendments Nos. 113 and 114 follow Amendment No. 111 in that I am seeking an additional reassurance that the changes contained in the Bill, as compared with the existing Water Act, would not be detrimental to boating recreational interests. I beg to move.
Lord Hesketh: The amendments relate to Clause 8(3) which sets out the general recreational duties of the relevant bodies. The first point that must be made is that this really is a strong duty: it requires the relevant bodies not just to put their water and land to use for recreation but to do so in the best manner. It is not only a strong duty, it is an important one. As the Committee will recognise, the undertakers will inherit not only the reservoirs—a major resource for water recreation—but also the upland gathering grounds, many of which we recognise are of exceptional amenity value. The fact

483
that the duty is an important one is not of itself a justification for accepting amendments apparently designed to strengthen it but whose net effect would be to render it in practice less effective. For that is the effect that we fear. For instance, Amendments Nos. 112 and 113 would remove the essential qualification on the duty that it be performed consistently with, in the case of the undertakers, their primary duties of water supply and sewerage. Amendment No. 112 would in addition delete the qualification that the duty requires only "such steps as are reasonably practicable".
It is surely quite unreasonable to propose, as that amendment does, that the recreational duty should be allowed to conflict with or override other duties, for instance those for the water supply and sewerage. Moreover, reference to "practicable steps" normally means physically practicable, and is therefore without that due regard for cost which the present formulation of "reasonably practicable" permits. Again, I have to say that that is unrealistic.
Amendment No. 114 is equally unsound in seeking to delete the qualification,
"so long as that body has rights to the use of land or water"
for if it were deleted the clause could require that the undertaker retain the right to the use of land and water if it could be argued that disposal of them did not represent the best use that could be made of the right from a recreational standpoint. That would surely be an unreasonable constraint on the body. It is for these reasons that I hope that the noble Lord, Lord Geenway, will be able to withdraw his amendment.
Lord Greenway: I am grateful to the noble Lord for his answer. The main point I noted was that my amendments would make the duty less effective than the wording contained in the Bill at present. I certainly wish to read what the noble Lord has said more carefully tomorrow. In the meantime, I am very happy to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 114 not moved.]
Lord Greenway Lord Greenway moved Amendment No. 115:
Page 8, line 36, at end insert—
("( ) Without prejudice to the generality of their duties under subsection (1), (2) and (3) above, every relevant body shall have regard to the desirability of securing that, in relation to any land which it may be empowered to dispose of, any such disposal does not prejudice the achievement of the objects of those subsections.").
The noble Lord said: The aim of this amendment is to secure that the recreational duty now contained in Section 20 of the Water Act 1973 is also applicable to land which may be disposed of. The boating interests share widespread concern, a concern which has been expressed from all quarters of the House, about the freedom which the private water companies will have to dispose of non-functional assets. Indeed there will be major pressures on the companies to do so and the wider exploitation of their assets by development can be regarded as inevitable.
484
It is appreciated that such developments may on occasions increase the opportunities for providing boating recreational facilities. But the threat posed to existing recreational uses is, I submit, in danger of being overlooked. As I said at the outset in moving these few amendments, the boating interests are very keen so far as possible to maintain the situation which they enjoy at the moment. I beg to move.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved, as an amendment to Amendment No. 115, Amendment No. 115A:
Line 4, after ("land") insert ("historic buildings or portable antiquities").
The noble Lord said: I do not think that this is a matter of great moment but it is consistent with amendments we moved earlier today about the heritage and sites of historic interest. We believe that the same conditions which the noble Lord, Lord Greenway, wishes to apply to land should apply also to historic buildings or portable antiquities. I hope that he agrees that this amendment does not in any way conflict with his intentions but improves the amendment which he has moved. I beg to move.
The Earl of Caithness: I am rather intrigued by these amendments which would in effect apply the duties under Clause 8 to land disposal, including historic buildings or portable antiquities, by requiring that no such disposal should prejudice the purpose of the clause.
In carefully defined and relevant circumstances, we believe that it could represent one means by which areas of special environmental importance with features of particular value to conservation or amenity might be safeguarded upon disposal. I cannot say it is the best method nor the only method but it is certainly one which I should like to consider.
Lord Greenway: I am rather intrigued with the Minister's reply. I am delighted that we may have found a proposal which he feels he ought to look at again. I cannot speak for the noble Lord, Lord McIntosh, who moved an amendment to my amendment. I am speaking for the boating interests whereas his interests seem to be wider. I thank the Minister for agreeing to examine the point again; in the meantime I am happy to withdraw the amendment.
The Chairman of Committees (Lord Aberdare): We must take the amendment to the amendment first.
Lord McIntosh of Haringey: I echo what the noble Lord, Lord Greenway, has said. In the light of the Minister's offer, which I should be delighted to take up with him if he wishes me to do so, I beg leave to withdraw Amendment No. 115A.
Amendment No. 115A, as an amendment to Amendment No. 115, by leave, withdrawn.
Lord Greenway: I beg leave to withdraw my amendment.
Amendment No. 115, by leave, withdrawn.
Lord Addington Lord Addington moved Amendment No. 116:
Page 8, line 38, after ("Authority") insert ("and every internal drainage board").
The noble Lord said: In moving Amendment No. 116 I wish also to speak to the consequential amendment, Amendment No. 118. The purpose of the amendment is to require internal drainage boards, in addition to the National Rivers Authority, to promote the conservation of nature, natural beauty, flora and fauna under Clause 8(4) of the Bill.
Under existing Water Act legislation, water authorities may only further conservation as an integral part of discharging their functions under any other section of the water and land drainage Acts. Clause 8(4) of the Bill is a new and extremely welcome measure since it gives the National Rivers Authority a positive duty to promote the conservation and enhancement of natural beauty plus flora and fauna. It would enable the authority, for example, to allocate a modest budget to the undertaking of free-standing conservation work. It is therefore surely of considerable benefit to extend this permissive duty to the other major groups involved in drainage work; that is, the internal drainage boards. There are over 250 of these internal drainage boards in England and Wales. They are responsible for drainage matters over low-lying areas of England and Wales. These areas include some of the most important wetlands; for instance the Somerset Levels and the North Kent marshes, the Ouse Washes and the broadlands of Norfolk, Suffolk and East Anglia.
At present, the internal drainage boards are restricted in the same way as water authorities in the extent to which they may undertake conservation work. They may only undertake conservation work as an integral part of a project undertaken for land drainage purposes. There may be circumstances in which the internal drainage boards may wish to undertake free-standing conservation work separate from land drainage schemes: for example, to remedy ecological damage caused by land drainage schemes in the past.
Even if landlords and occupiers wished such remedial work to be carried out, the expenditure would be ultra vires and the boards would risk censure from the district auditor. Acceptance of this amendment would release the drainage boards from this unnecessary restriction and would give them a permissive duty to promote conservation. The amendment, which has the support of the RSPB and the Nature Conservancy Council, would do much to aid the conservation of wetlands and the wildlife within them in some of the most important areas for conservation in England and Wales. I beg to move.
9.15 p.m.
Lord Hesketh: The purpose of these amendments is to place on the internal drainage boards a discretionary duty to promote conservation and recreation in respect of watercourses under their control. This promotional duty is a general duty placed upon the NRA and is quite separate from its conservation and environmental obligations related to its flood defence and land drainage functions.
486
When carrying out its flood defence and land drainage function, the NRA will be bound by the duty under Clause 8(1) of the Bill to act so far as it can to further conservation and the enhancement of natural beauty and to take into account any effects its activities might have on the beauty or amenity of the countryside, its flora, fauna and buildings.
This duty will equally apply to IDBs. In fact, it will be a re-enactment of the current statute under Section 22 of the Water Act 1973, on which the Government have given detailed practical advice. This advice has been well received by both drainage and conservation interests and is widely observed. It will, however, be updated in association with the code of practice under Clause 10. In particular, we plan to make it clear that Clause 8(1) positively requires IDBs to further conservation, and the interests of the environment, so far as they reasonably can. We hope this will reassure both the boards and conservation interests which have been doubtful of the extent of the IDBs' duty in the past.
The general duty placed upon the NRA at Clause 8(4) is to promote not only conservation but also recreation. It will be given practical effect by the NRA's powers at Clause 141 to carry out works and operations appropriate to its functions. Such works will be funded entirely separately from flood defence. IDBs do not have powers to carry out general works unrelated to drainage under Clause 141, and would therefore have neither the means nor the necessary finance to give a promotional power practical effect. It would, in any case, be inappropriate to extend IDB powers and duties in this way when they are essentially bodies concerned with the provision of land drainage and flood defence. We believe the IDBs' conservation and environmental duties are satisfactorily prescribed by Clause 8(1) and that their recreational activities should be limited to making waters available for that purpose, as already provided by Clause 8(3).
In these circumstances, I hope the noble Lord, Lord Addington, will see fit to withdraw his amendment.
Lord Addington: Having heard what the Minister has said, I think he is rather ignoring the fact that this is a permissive duty. It would merely help the National Rivers Authority, and other groups working for the authority, in their duty.
Land drainage work can be very relevant to any conservation work. One of the great cries, particularly in East Anglia where I come from, is that much of the marshlands and wetlands which survive there are under constant threat either from being absorbed by agriculture or from general drainage; for instance, by the removal of water for use in agriculture. However, as the Minister is not prepared to accept the amendment, I shall read what he has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 117 and 118 not moved.]
The Earl of Cranbrook The Earl of Cranbrook moved Amendment No. 119:
Page 8, line 41, after first ("of") insert ("coastal waters, of estuarine waters, of tidal waters and of").
The noble Earl said: I consider that either my amendment or an amendment on these lines is urgently necessary in order to clear up matters in the Bill which relate largely to the use of the English language. Perhaps it should not have surprised me, in a Bill which sets up an authority that is not national and which is concerned with much more than rivers, to find language that seriously confused me and which has evidently equally confused many of the environmental organisations which have lobbied me on this point.
Clause 8(4) gives the authority the specific duty within its general terms of reference of:

"(a) the conservation and enhancement of the natural beauty and amenity of inland waters and of land associated with such waters;

(b) the conservation of flora and fauna which are dependent on an aquatic environment".

The notes on clauses direct us to page 176 of the Bill, which in turn refers us to the Water Resources Act 1963 for the definition of "inland waters". The notes on clauses say that inland waters cover estuaries and lakes as well as rivers.
When I refer to the 1963 Act I see that the term "inland water" means:
"any of the following, that is to say—
(a) so much of any river, stream or other water-course, whether natural or artificial".
I point out that an artificial water course of this nature would mean a canal. I wonder whether it is the Government's intention to give the NRA a duty to promote conservation in canals,
"(b) any lake or pond, whether natural or artificial, and any reservoir or dock".
Again I wonder whether it is the intention of the Government to give the NRA control over conservation of waters in reservoirs, which I think will go the plc. The definition continues:
"(c) so much of any channel, creek, bay, estuary or arm of the sea".
This point was referred to in the debate in another place. The Minister pointed out that "inland waters" includes channels, creeks, bays and estuaries. However, the Minister also said at the time that coastal waters were not covered. Here again I believe that we need clarification rather urgently. We have to accept that in the terms of this Bill inland waters does not mean inland waters in any sense of the English language. I believe that that is a mistake because it confused not only me at first but also a very large number of organisations which have lobbied me.
Speaking as a professional biologist, there is a serious anomaly between the two paragraphs as they stand. Subsection (4)(b) must be interpreted to include the animals and plants of all waters, because that is what it says, and thus must include the denizens of the coastal seas within our national limits—the fish, the crustaceans, the seaweeds and all those creatures which are dependent on permanent or part-time inundation by the sea for their survival. It is clearly the NRA's duty to have the conservation of these in mind.
In coastal waters that is very important. Consents for long sewage outfall pipes are already
488
controversial. In my view they are likely to become more controversial as pressure from the European Community and other member states grows as well as internal pressure from within the nation. At present attention is focused largely on the EC bathing beach directive as the main factor which is creating that pressure when long sea outfalls are installed. Less attention has been paid by the public to the impact on aquatic life forms, but that must also be considered.
A great deal of research has been done and is being done by the Water
Research Centre and the Marine Sciences Committee of NERC on the effects on aquatic life of sea sewage outfalls. I believe that this issue will come to the fore. I welcome subsection (4)(b) in so far as it clearly seems to place the conservation of these fauna within the ambit of the authority which will be concerned with approving or not approving long sea outfalls.
The European Community's directive on shellfish will also be relevant because the shellfish industry is greatly affected. There is no doubt that shellfish are aquatic life. They too should be considered from a conservation point of view.
The non-governmental wildlife organisations which have urged me to put down an amendment of this nature have been fearful for the conservation of the coastal and estuarine environment, which is very important. It includes some of the most spectacular and scenic landscapes of these two nations, England and Wales. Conservation bodies are rightly concerned about the richness of the intertidal muds. However, I believe that, because of the peculiar definition of "inland", those are already covered. It is already the Government's clear intention, as was pointed out in another place, that they should be covered.
It is not helpful in a Bill merely to refer to an Act of 1963 in defining "inland" and to end up with a definition of "inland" which is so peculiar that it includes the maritime and coastal environment. Whatever was said by the Minister in another place, and accepting that coastal seas are those seas below the low water mark at ordinary spring tides—that is where the definition of "inland" ends; the coastal seas lie from the ordinary spring tide low water mark to the limits of our territorial seas—those waters also deserve to have a body dedicated to, or at least interested in, the conservation of wildlife.
It is to draw attention to that matter and to try to bring the language into a sense that will be comprehensible to the ordinary conservation body in the street—the ordinary NGO—that I have put down this amendment. I beg to move.
Lord McIntosh of Haringey: It will be obvious to the Committee that Amendment No. 119A has exactly the same effect as that moved by the noble Earl, Lord Cranbrook. I rise only to support heartily everything that he said. It appears that the definition of inland waters is at variance with common sense in that it does not mean what the ordinary man in the street would think it to mean. But when we come to the legal definition—the noble Earl has far more experience of those matters than I do—it means different things in different parts of the legislation.

489
I do not think that it is a matter with which the Government can be content, particularly in the light of the challenges that the noble Earl has thrown down to the Government as to whether the NRA is to deal with such stretches of water as canals and docks. I could not hope to contend with either the expertise or the eloquence of the noble Earl. I can only add my voice in support of him.
Lord Renton: We all know that my noble friend Lord Cranbrook is a member of Anglian Water. It is within my recollection that the River Great Ouse is tidal right up as far as Seven Holes Sluice at Needingworth, just below St. Ives. If I remember rightly, the River Nene is tidal as far as Peterborough. I wonder whether my noble friend can confirm that Anglian Water at present has responsibility for those tidal waters all the way from King's Lynn to Needingworth in the case of the River Great Ouse and at least as far as Peterborough in the case of the River Nene. If so, we must bear in mind that the NRA will have to assume that responsibility for managing those waters that are at present tidal, but perhaps by definition not strictly inland. Before we go any further and before my noble friend replies, perhaps my noble friend Lord Cranbrook would clarify that point.
The Earl of Cranbrook: The noble Lord is correct. The present definition of "inland", if we follow the 1963 Act, and as I have read my papers, extends to low water of ordinary spring tides. Of course the Anglian Water Authority is concerned with the control of those tidal waters that the noble Lord mentioned.
Lord Renton: I should have mentioned that of course Needingworth is 40 miles from the sea, so in effect it is a long way inland.
9.30 p.m.
The Earl of Arran: These two amendments seek to widen in geographical terms the scope of the general promotional duty in Clause 8(4). Their effect would be to extend the NRA's general duty for promotion of conservation and amenity of rivers to cover tidal, coastal and estuarine waters. The provision as drafted applies this duty simply in respect of "inland waters".
However, I am glad that my noble friend Lord Cranbrook has fully grasped the scope of this term for the purposes of this particular provision. The definition of inland waters adopted here is the definition in the Water Resources Act 1963. This includes channels, creeks, bays and estuaries, as my noble friend has already said. Thus some tidal and all estuarine waters are already covered. We accept that that should be so. Estuaries are of great importance in amenity and ecological terms. On two of the three limbs of his amendment, therefore, I hope that my noble friend will be satisfied. What is, I accept, not covered is coastal waters generally.
To give the NRA wide conservation and amenity duties in such areas—areas of the sea—would, we suggest, be to give it obligations which would be inherently difficult to discharge. In the case of rivers
490
and estuaries the NRA will have a wide range of related functions which amount to a general responsibility for the protection and management of the waters in question. But that will not be the case with coastal waters. Moreover the NRA already has major duties to perform. To extend them at this stage in the way proposed would not, we believe, be reasonable.
For these reasons we hope that, if pressed, the amendments will not be supported. But I hope the Committee will be reassured by what I have been able to say about the scope of the duties in the clause as drafted.
In particular, in the light of what my noble friend Lord Cranbrook has said, I assure him that the duties will apply to rivers, channels, creeks, bays and estuaries and land associated with them all. I believe that that meets my noble friend's particular interests and concerns. Finally, and overall, I am grateful for the explanation that my noble friend has given on the matters that he raised. We shall most certainly consider these points.
The Earl of Cranbrook: I thank my noble friend for his assurance that these points will be considered, because they are material. Our law should be clear to the ordinary man in the street in the way that it is not at the minute. I would also remind my noble friend that a moment or two ago I pointed out that long sea sewage discharges are well beyond the estuarine limit; that is to say, well beyond the ordinary spring tide low water mark. They must have an effect on the conservation of aquatic life.
Secondly, I would point out that aquatic life such as the mussels and things like that have a pelagic phase in their existence and they are at sea beyond the low tide mark. Thirdly, the effects of discharge, let us say in the Humber estuary, to speak of an estuary I know, extend well beyond the effects of those discharges which are the concern of the NRA. They extend well beyond the ordinary low tide mark. Therefore, I hope that my noble friends will think seriously about the points I have made and will perhaps come back with amendments. That said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 119A and 120 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 120A:
Page 8, line 49, at end insert—
("(6) It shall be the duty of each of the following, that is to say the Secretary of State, the Minister, the Director and every relevant body in furtherance of their duties in the foregoing subsections of this section to consult with any relevant Local Authority, the Nature Conservancy Council, the Countryside Commission, the Historic Buildings and Monuments Commission, the owner and occupiers of any land and any other person, body or association who in their opinions is likely to be affected by or as a result of or interested in the exercise by them of any of the aforesaid duties and to consider any representations or objections which are duly made and not withdrawn.").
The noble Lord said: I think Ministers will instantly recognise that this amendment arises from the large numbers of bodies that are concerned with the environment and that have been concerned

491
about this Bill and with putting their views to the Government and to us. Although I am not saying that this amendment has the agreement of all the bodies named in the Bill—far from it—it is an attempt to simplify the duties that are imposed on the Secretary of State, the Minister, the director and any relevant body when faced with the very large number of people who will be making representations to them.
The difficulty with Clause 8 as it is drafted at the moment is that there is no requirement on the bodies to which the clause applies to discuss with other bodies the carrying out of their duty. There is a mass of expertise around. There are many bodies—some of them funded by government, some completely financially independent—which have things to say on these environmental duties in Clause 8. The authority, the director and the relevant bodies may well be consulting these bodies. It seems to us that it would be desirable to formalise the relationship and to make sure that we do not have a more ad hoc form of consultation which may be different in different parts of the country as different water undertakings see fit to undertake consultation.
We hope that if the Government agree to this amendment, far from it complicating the lives of those who have duties under the clause, it will make their lives simpler. I beg to move.
The Earl of Arran: We believe that there are three reasons why the amendment tabled in the name of the noble Lord, Lord McIntosh, should not be accepted. First, the duties touch every aspect of the performance of the undertaker's duties. Given that this is so, the burden of consultation becomes formidable in itself. Secondly, this is rendered even more onerous by the quite prohibitively wide scope of the bodies which it is said should be consulted.
We believe that it is necessary only to read the terms of this amendment to know in one's bones that it is quite unrealistic and impractical. It is a recipe for bureaucratic inertia. However, in asking that the amendment should not be accepted, let me emphasise that we are in no sense opposed to the principle of consultation; indeed quite the reverse. The code of practice strongly emphasises it, but it provides for it in a flexible and selective manner, which is what we suggest that we should do.
We shall look at the drafting of the references in the code to see whether in the light of this evening's debate there is more that we could sensibly add. I hope that that will give the noble Lord, Lord McIntosh, some reassurance when I urge him not to press the amendment in the terms in which it is drafted.
Lord McIntosh of Haringey: I listened willingly to what the noble Earl has said despite my reservations about the status of the code of practice, which are well known. I think that he is being somewhat unfair to the amendment. It states that apart from the named bodies, the
"any other person, persons, body or association",
is restricted to those who in the opinion of the
492
Secretary of State, the Minister, the director and the relevant bodies are,
"likely to be affected by or as a result of or interested in the exercise by them of any of the aforesaid duties".
Therefore if those persons feel that they wish to restrict it to the bodies named in the amendment, they can do so. There is no obligation on them to do other than to consider representations or objections that are duly made and not withdrawn.
I do not think that the amendment is quite so bad as the noble Earl has said. It was certainly our intention—knowing that these bodies will be making representations to the relevant bodies and to the authorities—to try to formalise the position and to make it easier rather than more complicated. If I am wrong about that, I shall clearly have to think again. In the meantime I shall read carefully what the noble Earl has said. I beg to leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman of Committees: Before calling Amendment No. 121, I must tell the Committee that if this amendment is agreed to I cannot call Amendment No. 122.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 121:
Page 9, line 1, leave out subsection (6).
The noble Lord said: In moving Amendment No. 121 I shall also speak to Amendment No. 122 as it may be the only chance I have of doing so. I also understand that we are to discuss Amendment No. 135, which is the new clause in the name of the noble Lord, Lord Ross of Newport.
I apologise to the Committee for anticipating to a considerable extent these amendments when speaking to Amendments Nos. 105 and 109. I was in error in doing so. It was kind of the noble Lord, Lord Hesketh, not to refer to my errors, although the two are connected to some extent. Amendments Nos. 121 and 122 are concerned with Clause 8(6)—the curious subsection, as I said at the time, which states:
"Nothing in this section … shall require recreational facilities [to be] made available … free of charge".
I repeat that I do not see any justification for a subsection of that kind. If it appears that other parts of the Bill require that access be free of charge, and it is desired there should be no such requirement, that should be done at the time. If there is no such obligation in any other part of the Bill—I have been unable to find it—it seems unnecessary to have this subsection here.
I want particularly to deal with concern about public access on foot to land owned by water undertakings. I shall cut short my remarks, having already referred to the matter. It seems wrong that there should be a charge for public access on foot when that does not in itself cause the kind of expenditure to a water undertaking which could arise, for example, in providing a car park to permit access to motorists. We are trying to maintain no less favourable access for the public to water authority land than has been obtained in the past.
We would hope that even if charges were made for a car park, which would not be ruled out by our Amendment No. 122, the access to the land itself could be free or charge. We believe that such provision should be included in the Bill. I beg to move.
Lord Ross of Newport: It seems to me that subsection (6) is a positive encouragement to levy a charge. Why on earth it is there I do not know. Why cannot we just leave it out? If it is there, it seems that the authority would be encouraged to charge and I should have thought that a great mistake. No one objects to water authorities charging, as they already do for certain recreational facilities, such as sailing, car parking in certain areas and so on, but to put this subsection into the Bill seems totally unnecessary.
I have read the debate in Committee in another place. I am totally dissatisfied with the response at that time from the Minister, Mr. Michael Howard, for whom I have some respect. It does not seem to me that he answered the question about what happens when the water authority sets up a subsidiary company which is not totally dealing with the land directly connected with the operation of the authority. That is all left to the planning committee or some other body. I do not trust such an arrangement. Nor do the 2,000 ramblers who assembled this weekend.
Lord Graham of Edmonton: There were 2,451.
Lord Ross of Newport: That is more than I had thought. The position is that people are not yet convinced that the Government are telling the whole truth. They do not believe that it will happen but they think that they may have to leave the issue to local planning authorities of one kind or another.
I suspect that there will be cases where land will be shut off and charges will be made. That is why we have tabled these amendments this evening. I accept the fact, which no doubt will be used in the argument when the Minister responds, that there is overuse of some land in this country by people walking, and so forth, in vast numbers and that they are causing damage. No one objects to it being shut off for a period of time for that reason. I believe that the chairman of the Countryside Commission will agree with that. It has opened up many paths round the country. I happen to live along Offa's Dyke and I know how well it is used. I hope and pray that we shall clarify the position. If water authorities set up subsidiary companies which are not protected by the Bill they can do what they like.
9.45 p.m.
Lord Renton: I have a good deal of sympathy with this amendment. But it is a question of the best way in which to fulfil the purpose which the noble Lords have in mind. One way would be to keep subsection (6) in the Bill as it is but to add some words such as:
"unless they were so before the passing of this Act"—
in other words, available free of charge before the passing of this Act. That would be one way of doing it. I believe that to leave out the subsection altogether might be causing uncertainty and leaving too much
494
to chance. I should rather prefer to see it kept with some words added.
So much for the way of dealing with it. Perhaps I have put the cart before the horse. So far as concerns angling, it is generaly although not always a question of the riparian owners allowing people to fish, and not the river authorities. But as regards boating, on most of our rivers small boats can ply to and fro as they please. I believe that larger boats generally have to be licensed on most rivers. It is a matter which I am sure needs to be attended to. When the bone is in the dog's mouth—if that is not a tactless expression to use—it is best to leave it there. For us to try to alter free recreational facilities which already exist would not be at all popular.
The Earl of Caithness: The purpose and effect of Clause 8(6) has been widely misunderstood. And I am sorry to say there have been those outside this Committee who, as often as we have set the record straight, have refused to listen. Clause 8(6) is in fact a technical provision of purely declaratory nature simply making clear that the Clause 8 duties do not require recreational facilities to be made available free of charge. It does not alter the effect of the Bill: it is there purely for clarification. Nor—and this is an important point—does it in any way alter the present position. In practice the only result of exclusion of Clause 8(6) would be to mislead the unwary into a belief that the duties in the Bill required relevant bodies to provide recreational facilities free of charge. I do not believe that is not an outcome Members of the Committee should seek.
However, let me take the opportunity to explain the Government's approach to these matters. To start with I shall set out the present position. The fact is that, in much of their recreational provision, water authorities already levy charges which largely reflect their costs and what the market will bear. Notions of dramatic extension of charges, or dramatic increases in them, after privatisation have little realistic basis.
But what are the principles which should in future determine recreational charges? I suggest the following. First, costs of facilities should be recovered so far as practicable from those making use of them, as our consultation documents have always indicated. Secondly, there will always be some pursuits—informal recreation or rambling—or special circumstances where it is either not reasonable or not practicable to charge. In such circumstances any costs can, as now, be passed on in general charges, since—for instance, in the case of public access—these costs are incurred by the undertakers in pursuit of a statutory duty. I believe the vast majority of people will find such principles perfectly fair and reasonable, and that they should give no one cause for anxiety.
Nor are there grounds for fearing, as many have suggested, a rapid escalation of charges after privatisation. In providing sport and recreation facilities the companies will seldom in any area find themselves in anything like a monopoly situation. Their charges will have to be competitive. In any case guidance in the code of practice makes clear that charges for new facilities should have regard for charges levied for comparable facilities elsewhere.

495
For all these reasons the position on future charging by undertakers for recreation facilities, which Clause 8(6) clarifies, is, I suggest, reasonable and fair, and it is right and proper that such clarification should be on the face of the Bill.
Perhaps I may turn to Amendment No. 135. We had earlier today a full debate on public access to water industry land. For my part I will not rehearse arguments which we have already extensively pursued but concentrate on only one new but critical feature of the amendment before us. This amendment would provide for the public access, free of charge, to all the undertakers' land which is neither operational nor a house or garden.
The essential feature is the qualification that the rights are to apply only in respect of non-operational land, as defined by Section 222 of the Town and Country Planning Act 1971. I must make clear to the Committee that in our view the use of that definition has the effect of narrowing the scope of the right provided by this amendment so greatly as to render it of almost no effect.
The definition includes within operational land not only land being used for carrying on the undertaking but also land in which an interest is held for that purpose. The effect of this is that probably all the catchment lands, the most relevant land from the point of view of public access, would fall outside the scope of the provision. Indeed it is arguable that the right would apply no more widely than to the small amount of surplus land on the Land Register.
No doubt that is not what the noble Lord, Lord Ross of Newport, intended but it is the reality. That precisely illustrates one of the reasons why the Government prefer to rely on flexible and discretionary arrangements, backed by general duties, rather than to draw tight legal boundaries in circumstances where this is fraught with difficulty—a point made so well by my noble friend Lord Renton earlier this afternoon. Therefore, this is more than a technical defect. It goes to the heart of the issues.
Lord McIntosh of Haringey: I am most grateful to the Minister for that restatement of the Government's intention. However, I must say that when he says that the subsection does not alter the Bill and is only there for clarification, and in virtually the same breath complains that it has been widely misunderstood, I wonder whether it is achieving its objective. I do not believe that the misunderstanding is out of ill will or particular stupidity on the part of those suspicious of it. It must surely be failing in its objective to secure clarification.
Indeed, I wonder whether it is proper to have something in the Bill which does not alter the meaning at all. I know that if we in opposition put forward amendments which do not alter the meaning of the Bill, the noble Lord, Lord Renton, before the Government Front Bench get to us, is the first to say that that is unnecessary and therefore should be resisted. If there is a subsection which does not alter the Bill—and those were the words used by the Minister—I seriously wonder why he so firmly resists the idea that it should be taken out.
496
The suggestion by the noble Lord, Lord Renton, that we should retain free access where it existed before the passing of the Bill sounds attractive in the first instance, but I remind him that water authorities and people concerned with access to water authority land and people concerned with water sports have over the years made more and more agreements to make possible that access.
I see no reason to suppose that that process has come to an end. There is no reason to suppose that there cannot be more water authority land, more water undertaking land, which could not be available for access. One of the many difficulties with privatisation is that with the profit motive coming first, it is likely to bring those negotiations to an end. Therefore, although if necessary I would settle for the suggestion for an amendment by the noble Lord, Lord Renton, failing anything else and might consider tabling it on Report, it is not ideal. It does not recognise the considerable improvement that has been made as a result of negotiation with the water authorities.
I now return to the Minister and the subsection which does not alter the Bill. What we need in order to achieve real clarification is an assurance that there will be no diminution in the rights that presently exist for people to walk over land, free of charge, which are now available and that where rents are appropriate—no one is denying that rents are appropriate for water sports, for example—they will not be raised in line with inflation. If the Minister can give those undertakings, the first of which would be in line with the suggestion made by his noble friend, we would be much more disposed to let this matter go and withdraw the amendment.
The Earl of Caithness: I am sure the noble Lord would be much more disposed, but he knows I cannot give him the assurance that he seeks, particularly on the second point. He will be fully aware of the concession made in another place in regard to the water authority land. This is an area of great concern. We have listened with interest to what Members of the Committee have said today and this is one of the many aspects that we should like to brood upon.
Lord McIntosh of Haringey: I am not familiar with the legislative process of brooding. It is a new thought to me. However, if that is the way that the Minister wants to proceed, I suppose I have no alternative but to let him brood, and I hope that he will lay a rather large and healthy egg.
I do not think I can go further at this stage. I am deeply suspicious of subsections which do not alter Bills and deeply suspicious of the motives of those who include them and then cling on to them. However, the Minister has gone some way in indicating that the matter is not closed and on that basis, and on the basis that I would be willing to assist in his brooding if that is thought to be helpful, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 122 and 123 not moved.]
10 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 124:
Page 9, line 5, after first ("undertaker") insert ("(including any subsidiary companies)").
The noble Lord said: I am reminded of a very popular play, "That Happy Brood"; which I believe is appropriate to continue the tenor of the previous debate.
With this series of amendments, Amendments Nos. 124 to 129, we seek clarification from the Minister on the precise extent of the remit which is understood in respect of, so to speak, the prime person or the prime company. The amendments seek to add that the duties and responsibilities under Clause 8 shall be visited on the agents and on the subsidiary companies.
We are satisfied that one of the devices or ploys that could well be used in order to avoid complying with the duties of the Bill will be for the principal plc to create a legal, constitutional device whereby it will be the body responsible for management and not the body upon whom the duty is laid. As a consequence the duties will be avoided. At present the new companies could set up subsidiaries which would avoid having to fulfil their conservation duties. Is that the position? If the Minister can assure us that there is no way in which that kind of device of avoiding responsibilities is capable of being applied then he will satisfy a great many people. In moving this amendment, I also said that I would speak to Amendment No. 126. I do not intend to move that amendment because, on reflection, I shall be seeking not to move it at the appropriate stage because I wish to come back to it later.
That is the gravamen of the argument. I want the Minister to tell me that, when the Committee and the country believe that there are duties laid on the successor bodies to the water authorities, they cannot get out of those responsibilities by passing them on either to a subsidiary or to other bodies. The device is fairly well known. Someone else is given the responsibilities but under the Bill the duties are found very difficult to comply with. I beg to move.
The Earl of Arran: This group of amendments seeks to extend the range of relevant bodies to which the duties in Clause 8 are to apply. Amendments Nos. 124 and 125 would extend the term to any subsidiary companies of an undertaker. At this point I ask the noble Lord, Lord Graham, whether he is speaking among this group of amendments to Amendment No. 126.
Lord Graham of Edmonton: No. I explained myself badly. I am moving only Amendment No. 124 and speaking to the rest. But I gave an indication that I should not move Amendment No. 126 because I did not wish it to be part of the discussions that are taking place.
The Earl of Arran: I thank the noble Lord, Lord Graham, for that explanation. Amendment No.
498
126A would extend the term to a body with responsibility for inland waters. Amendment No. 128 would extend it to agents and Amendment No. 129 would extend it to any successor owners, occupiers or lessees of land currently owned by the water companies.
At present relevant bodies for the purposes of Clause 8 are the NRA and the water and sewerage companies and the internal drainage boards. It is a fact of course that none of these bodies stands in total and splendid isolation from other bodies with which—and this is the case with the NRA—it may share certain functions, or with which—as in the case of the undertakers—it may have certain corporate connections. But, in relation to the Clause 8 duties, lines have to be drawn somewhere and the question is whether they have been drawn in the best place.
I start by complimenting the noble Lord, Lord Graham, who moved these amendments in the name of his noble friend Lord McIntosh of Haringey, upon the comprehensiveness of his list. It seems that he may have worked on the principle, "if it moves, hit it". But unfortunately so tenuous is the link that I suspect that few of the bodies will have much idea of what it is that has hit them.
Before commenting on particular amendments I should underline one overriding consideration. Clause 8, as we have emphasised, relates the duties primarily to the performance of functions. Two points follow. First, were we to accept any of these amendments it would have to be on the grounds of the relevance of the functions of the body in question; and, secondly, we must have due regard for the scope of the Bill.
As regards the question of agents I believe that I can bring some comfort to the noble Lord, Lord Graham, because all the relevant bodies will themselves be responsible for what is done in their name by their agents. For all practical purposes, therefore, the duties which bite upon the principal extend to his agent. So far, so good, but at this point the noble Lord's aim begins to waver just a little. I quote:
"A body with responsibility for inland waterways".
I understand from what he says that this refers to the British Waterways Board. I take it that the particular formulation put forward reflects the difficulty in bringing the BWB within the scope of the Bill. We have some doubt whether the formulation satisfactorily achieves this. But in any case we have concluded that, while we have some sympathy with the proposer's objective, we do not believe it is appropriate to pursue it at this stage.
The first reason is that the BWB is already subject to substantially similar duties to those in Clause 8 under other legislation so that the need for the amendment is marginal. The second is that we doubt whether we should apply it to the BWB without extending it to all other navigation authorities. But we do not consider that that should be done except in the context of some wider review of navigation law.
As for subsidiary companies and successor owners, I believe I have dealt with them earlier. However, I

499
shall repeat the key points. To extend the duties to them would be wholly misconceived. The Clause 8 duties bite upon the functions of water bodies, which as we recognise by their nature have profound implications for the environment. But a subsidiary or associated company of a water or sewerage undertaker will not by definition be carrying out the appropriate functions because they are for the appointed company itself. Necessarily it will be pursuing quite different activities to which the Clause 8 duties may have only tenuous connection or no connection at all.
The same considerations apply with even greater force in respect of successor bodies to which the land allocated under schemes under Schedule 2 might pass. The fact is that the great majority of the duties apply in respect of functions, and should so apply, and it is most unlikely that any successor owner would share the functions of the relevant bodies.
I emphasise again, as my noble friend Lord Caithness has already mentioned, that we would hope that an amendment to deal with long-term protection of environmentally important areas would go far to allay the concern underlying this proposal. I conclude that while some amendments in this group are inappropriate, others are already achieved or intended. On that basis I hope the noble Lord will feel it appropriate not to press the amendment.
Lord Graham of Edmonton: Not for the first time tonight the Minister has given a full explanation for which I am grateful and which I shall need to read carefully. In his final words he gave an adequate summary of what he was telling me and those outside the Chamber. He said that some of the amendments are not appropriate and others are unnecessary because they are covered by existing arrangements. Perhaps I may read to the noble Earl part of a letter that was sent in January by Mr. Lloyd of the department to Mrs. Kemp, the chairman of the Thames Regional Recreation and Conservation Consultative Committee. It says:
"These statutory duties will only apply to the PLC core business since it would be impossible to justify a blanket extension to the subsidiary companies, given that these companies may be no different from other private companies wholly unconnected with the PLC. It is because the duties will be restricted to the core business that it has proved possible to model them directly on the strong and effective conservation and recreation duties which currently bind the water authorities and to provide for an entirely new statutory Code of Practice giving detailed guidance on the performance of the duties".
I can well understand why the Minister tells us that this relates to the functions. However, if the duty relates to the functions and in the first instance the duties are laid upon the successor company—whatever happens to these subsidiary companies and however the subsequent business is carved up, sold off or changes ownership—who will continue to be responsible for observing that the duties are carried out? If there is a simple way to understand that I shall be most grateful to hear it. However, at present I am at a loss. I do not doubt the Minister's good intentions for a moment. He is certainly not treating
500
the matter in a cavalier way; he is not saying that such duties can be sloughed off by anyone. But I should like him to tell us that he is satisfied that there will always be someone who will be responsible.
The question is: once the successor body to the water authorities decides in its own wisdom—it may be deliberate and we think that there may be such cases, although it may be otherwise—to, so to speak, get out of the business which it is in, does the duty then go with the function? I believe that that was what the Minister was referring to, and indeed that may be the answer. However, can the Minister tell us a little more about whether there will be a continuing liability, and upon whom such a liability will rest, to carry out the duties to observe the code of practice and any other responsibilities?
The Earl of Arran: Very simply, as I understand it, the functions will relate only to the operation lands; that is how it will stand.
Lord Graham of Edmonton: I think that the Minister said that the duties will apply "only to the operation land" and that is how it stands. That does not seem to me to be an adequate arrangement. If in actual fact the ownership of the operation of land changes, is the Minister saying that the duties to observe the responsibilities will also change? We do not want to find a situation in which either by a sleight of hand or anything else the law is not being complied with, conservation is not being dealt with and so on. The Minister must understand that I am not trying to score points or find holes at which to work. I genuinely want him to tell us how the provisions of the Bill will ensure that there is a continuing liability to fulfil the duties by whoever is carrying out the functions on the land. How will this be done?
The Earl of Arran: The provision is as contained in the Bill at present. As I understand it, the director general will require the water authority to receive assets to carry out its duties.
Lord Graham of Edmonton: I think that the Minister said, "receive assets to carry out its duties". I say with great respect to Members of the Committee who are listening, those words do not answer the question. The question was: how do you ensure that the duties under Clause 8 will continue to be exercised by whoever is using the land, whether it is a successor owner, an agent or a subsidiary company? How will that be done?
The Earl of Arran: As I said before, and I shall repeat it again, the core company must discharge the functions given to it by virtue of the provisions in the Bill. Conservation duties apply to whoever discharges the functions, irrespective of ownership of the land.
Lord Graham of Edmonton: That means that whatever the core business does with its land, whether it leases it or creates subsidiary companies, the responsibility for carrying out the duties remains with the original owners. Is that correct? Does it remain with them? If it does not remain with them, how do we ensure that it is transferred? That is what I should like the Minister to tell the Committee.
The Earl of Arran: I think that I can assure the noble Lord that he is correct on that point.
10.15 p.m.
Lord Graham of Edmonton: The Minister says that I am correct, but I have not put forward a proposition. From a sitting position, the noble Lord, Lord Hesketh, tells me that I have. I shall read Hansard carefully tomorrow.
I am asking the Minister to tell us how it is possible to ensure that the duties laid down under the Act are of a continuing nature if the original core business decides to create subsidiaries, holding companies, or to sell. How is it done? If the Minister is saying that I am correct, that there needs to be a mechanism to ensure that that happens—The noble Lord, Lord Trafford, shakes his head. I am not bothered who gives me the answer. Three or four people are getting in on the act.
Lord Trafford: I shook my head, because it seems to me that there is a confusion. If one is an owner of land with certain claims on that land, and others have certain duties and rights on that land, and one sells the land, the existing duties and rights do not necessarily change. That is the first point.
The second point is that the amendment refers to subsidiary ompanies. It is the parent company which is responsible ultimately for what subsidiary companies do. That is the meaning of the word "subsidiary". With due respect to the noble Lord, Lord Graham, I do not believe that there is a problem with regard to understanding how subsidiary companies might behave. The point to which he refers in the amendment is nevertheless present and I should have thought clear-cut. I take his point with regard to changes of ownership, but changes of ownership also carry with them certain rights which one cannot abrogate easily in law. I believe that that is what my noble friend the Minister is telling us is the answer to the question.
The Earl of Arran: I wonder whether I may repeat what I have said. The core company must discharge the functions given it in the Bill. The director general requires that the core companies have the assets.
Lord Graham of Edmonton: The core company has the assets. I must confess my ignorance. I do not understand what that means in this context. Was the noble Lord, Lord Trafford, going to help me?
Lord Trafford: I was not going to help. I was going to ask my noble friend the Minister whether the rather simpler interpretation in the use of these terms which I have just given was accurate or inaccurate, because it seemed to me that we are saying the same thing but using different words.
Lord Graham of Edmonton: This is my last contribution. I understand the difficulty. The hour is late. We need to be clear. All that I want to be understood is that at any given moment someone is responsible for ensuring that the duties laid down under the Act are being exercised. Whether it is by a core company, a subsidiary or someone else, I want
502
to be sure that those duties are being carried out. I believe that we have gone as far as we can tonight. The Minister is genuinely trying to be helpful. It may be that at this late hour I am incapable of assimilating what he has told me, which may well make sense. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 125 to 129 not moved.]
Clause 8 agreed to.
Lord Gibson Lord Gibson moved Amendment No. 129A:
After Clause 8, insert the following new clause:

("Non-functional land and disposals.

.—(1) Any company nominated as a water authority's successor company shall have a duty to consult the appropriate agencies, as determined by the Secretary of State, in order—

(a) to ensure the conservation, enhancement or protection of the natural beauty or special interest of land held by such a company which is no longer required by that company for the purposes of its functions; or

(b) to determine, within a period of 28 days, the competent body to which land shall be offered for sale where such a company seeks to dispose of any area of land.

(2) The land to which subsection (1) refers means any area of land or water which—

(a) is situated in a national park or area of outstanding natural beauty or which is a site of special scientific interest; or

(b) is designated by order made by statutory instrument for the purposes of this section by the Secretary of State, in consultation with the appropriate agencies, by reason of its national importance for its natural beauty, flora, fauna, geological, physiographical or landscape features, or features of archaeological or historical interest.

(3) The offer of land to a competent body made under subsection (1) shall—

(a) be at a price to be determined by the district valuer which shall be assessed as though the only use authorised to be made of the land was the type and intensity of use current at the making of the offer; and

(b) shall remain effective for a period of 6 months.

(4) For the purposes of this section—

(a) the agencies are the Countryside Commission, the Nature Conservancy Council, the Historic Buildings and Monuments Commission and, in the case of Wales, Cadw;

(b) the competent bodies are those included in a list issued by the Secretary of State, after consultation with the agencies in (a) above.").

The noble Lord said: At this late hour I shall be as quick as I can. The amendment, though simple, needs explaining. It has a strictly limited purpose. If agreed, it would provide a way—perhaps the best and simplest way—to provide for the future protection and management in the public interest of areas of land owned by the existing water authorities but which happen also to be of national importance, scenically, scientifically or historically.
I hope that the amendment will be looked upon with favour by the Minister as a special and particular measure of the kind that he had in mind when he spoke in Committee last week of the Government's readiness to adopt one of a range of positive ways of protecting what he called those countryside areas of special conservation and amenity value.
The amendment has been drafted by the National Trust, of which I was chairman for a good many years. It has a formidable body of support from

503
national conservation organisations such as the CPRE, the RSPB, the Council for National Parks, the National Parks Officers Association and the Royal Society for Nature Conservation.
I think I should say at this point that the National Trust normally aims to achieve its objectives through the ownership and management of its properties and rarely involves itself in trying to influence legislation unless one of its properties is directly affected. But the Bill has far-reaching implications for some of the finest landscape in the country and exceptionally the trust thought it right to try to secure adequate protection for it.
In drawing up the amendment we have also relied on the help and guidance of the Countryside Commission whose point of view will be known through the briefing notes it has circulated to the Committee. The effect of the amendment would be to increase the protection for land owned by the water companies but no longer needed for water services if it happened also to be situated in a national park, an AONB, an SSSI of first grade or indeed an area identified by the Secretary of State as being of national importance for any of the reasons specified in the amendment.
Some Members of the Committee may wonder why it should be necessary or even right to legislate to protect land, however important, simply because it is water authority land. Why treat it differently from land in any other ownership? The difference is that water company land is already specially protected in respect of conservation, recreation and access by legislation and by various agreements. We wish to see that protection continued if the land is sold and, if possible, enhanced in places where public access is creating management problems and opportunities. The difference between the scale of public enjoyment on water authority land and privately owned land is considerable.
The amendment would require water companies wishing to sell land to give certain conservation bodies first refusal of such land. Six months would be allowed for the conservation bodies to find the purchase price. If they failed to find it then the land would be free to be sold on the open market.
More precisely, the water companies would first have to consult the Countryside Commission in cases of scenic beauty, the Nature Conservancy Council in cases of scientific importance, or the HBMC, or in Wales, CADW, in cases of historic interest. The appropriate one of these agencies would then determine whether the land was of national importance in any of these respects.
It is worth mentioning, I think, that this is a function which these agencies already perform under the "in lieu" procedure of the Inheritance Tax Act 1984. If they say that the land in question is of such quality, that land would first have to be offered to a responsible conservation body, referred to in the amendment as "a competent body". A list would be drawn up by the Secretary of State which, I imagine, would include such bodies as the National Trust, the RSPB, national parks and so on. But that would be a matter for the Secretary of State.
The body chosen would then be given the opportunity to acquire the land at the district valuer's valuation before it could be sold on the open market. This value should be the district valuer's estimate of the existing use value of the land and not of its development potential. I think Members of the Committee will agree that that is logical. After all, no one who argues that planning controls are adequate to prevent development in such areas could also argue that development potential should be reflected in the valuation. If, after six months, the conservation body in question had not assembled the resources to purchase the land at that valuation, the land could be freely sold. I understand that such an arrangement, although not statutory, already operates in respect of land disposals by the Forestry Commission. So the amendment would give certain conservation bodies a reasonable chance of acquiring areas of national importance—I stress that they would have to be genuinely of national importance—which might otherwise be sold with no protection other than that of planning controls. That is the heart of the matter. Until the Minister last Tuesday gave us a ray of hope—rather more than a ray, I hope I am right in saying—the reaction of the Government had been that the planning system must be relied upon to protect areas which need protecting. As the Committee has frequently been reminded, the water companies own a great deal of land between them—over 450,000 acres—mostly in water catchment areas, some of it of great beauty. So far as I know, they manage it very well and public access is provided either under statutory rights or through arrangements with local planning authorities. Examples are the Elan Valley in mid-Wales, Thirlmere and Haweswater in the Lake District and the High Peak catchment in the Peak District National Park.
In deciding whether they need all this land, the water companies will certainly have more incentive in future than in the past to look critically at what they need and what they can dispose of. They will need all the resources they can muster to modernise their sewerage systems and to meet improved health criteria. Therefore, they may well decide to sell land they do not need.
Furthermore, after privatisation, they will be failing in their duty to shareholders if they hang on to assets not needed for their core business or fail to develop them for other businesses which they may operate or invest in. It has been said that there is no significant surplus of land which is not needed by the companies for water. Nevertheless, a recent example of land which apparently did not need to be owned by the authority concerned was the Elan Valley estate in mid-Wales. That was offered in 1986 to environmental bodies. However, no agreement was reached. After privatisation it may well be offered for sale again. This time it would be offered on the open market, and it may be fragmented by the sale of separate lots to maximise its value. That is an example where, even if planning controls could be relied upon to prevent inappropriate development, they would be inadequate to protect the valley. It is of such beauty that it should be managed for public enjoyment as well as for water.
That is what happens now. It is managed as a whole, and that should continue.
Planning controls can only be negative, even when they are effective. In such an area as the Elan Valley sensitive management for public benefit is what is required. There are not so many such areas in our country that we can afford to let any of them deteriorate. That is why the amendment also envisages that the agencies already mentioned should be consulted about the management of any land the water companies want to retain but which they say they do not need for water purposes. That could perhaps be achieved by management agreements, as already occurs in other contexts.
However, quite apart from the positive benefits of unified and consistent management, even in places where such benefits are not so necessary, is the planning system a reliable form of protection, even negatively? In the experience of the conservation bodies supporting this amendment, it is not. Already in these debates we have been told that something like one-third of planning applications which are dismissed by planning authorities are successful on appeal. Even in designated areas where one would think that more stringent criteria were applied, the figure is almost the same. I believe it was the noble Lord, Lord Ross of Newport, who mentioned a statistic last week which I cannot resist repeating. He said that last year in the Lake District no less than 45 per cent. of planning applications which were turned down by the planning authorities were successful on appeal. It is simply no good thinking in terms of planning controls being adequate. I believe the Government no longer consider they are adequate. I hope that is the case.
Even if the planning system, which faces increasingly difficult and severe pressures, could be relied upon, there are many small developments which fall outside the net of planning regulations but which in really beautiful areas—I am speaking only of the really beautiful areas—can cumulatively still be inappropriate and damaging. I refer to certain types of afforestation, certain changes in agricultural practice and some kinds of recreational development.
Moreover, there is no statutory basis for rights of way and other provision for visitors as have been agreed between local authorities and water authorities. With privatisation ahead of them, water authorities are understandably not keen to see those rights given permanent protection, thus reducing the market value of their land. They will need to maximise their resources and naturally they want to keep their options open. But where their options include selling off areas of national importance with minimum protection in order to maximise the sale price, the public interest requires that that particular option be closed. That is what this amendment principally seeks to ensure. I beg to move.
Viscount Bridgeman: The noble Lord, Lord Gibson, referred to the obligations of directors of the new plcs under what is in effect an equity regime. We can, I am sure, be confident that the initial managements of these plcs will be scrupulous in the discharge of their responsibilities both to the
506
environment and to their shareholders. However, a plc and its management is an evolving body, and the present managements will be succeeded by others. Therefore, we must safeguard against the possibility that in the future, perhaps many years ahead, there may be the odd board of directors of a water plc that may be less mindful of its obligations in respect of heritage lands and that may be tempted by the profit motive. It is against that possibility, particularly in the medium and longer term, that the modest proposals contained in this amendment are such a valuable safeguard.
10.30 p.m.
Lord Chorley: I support the amendment. I have an interest, in as much as I have been involved in the work of the National Trust for many years. As we have heard from the noble Lord, Lord Gibson, the National Trust has a natural interest in the conservation problem of surplus lands.
Last week the Minister acknowledged that,
"the water industry owns…land…of quite outstanding beauty and environmental importance… It remains the Government's view that our planning and countryside legislation can deal with the great majority of risks".—[Official Report, 2/5/89; col. 33.]
His words were obviously carefully chosen, and in some measure I would go along with them. I shudder to think what it would be like today in my part of the world, the Lake District, without the existing legislation. It may well be that the Minister is right in asserting that the planning legislation can deal with the great majority of the risks. However, that is surely not good enough, for it is equally clear, and is in no way inconsistent with that statement, that there have been many problems that planning procedures have not managed to deal with. The noble Lord, Lord Gibson, has given some examples.
The planning procedures and the appeals system have not been sufficient to stand up to the pressures. As has been said, they are not designed to deal with certain types of good conservation practice. I should like to think that that is common ground, and it is in that expectation that I shall not elaborate the point at this late hour, because there is enough evidence to fill a whole volume of Hansard with examples.
In my view there is only one form of protection which is adequate; outright ownership of such surplus land by a reasonable conservation body, that is to say the ownership of the freehold. I say that from long experience at the National Trust. To take one example which has already been referred to this afternoon, namely the use of covenants as a protective mechanism instead of outright ownership, our experience in the trust has been on the whole extremely unsatisfactory. Covenants are not strong enough to serve as a proper protective device.
I believe that the Minister agrees that the planning legislation does not always give satisfactory results. I recognise that we may differ on what constitutes a satisfactory result, but that is a matter of opinion on which views can reasonably differ. What is needed and what the amendment seeks to provide is a mechanism to deal with or to reconcile such differences in a reasonable and balanced manner. I hope therefore that the Minister will accept that

507
any mechanism must include a procedure for the purchase of land, for the reasons I have indicated, by a responsible body. It has to be a reasonable procedure and a responsible procedure, and I believe that the amendment achieves that.
What we have proposed is similar to the procedure and rationale in Clause 9 for cases where schemes and works are proposed, although in this amendment we are concerned with land surplus to requirements. The end point in the case of the disposal of non-functional land must go beyond mere consultation or good intentions. It must lead to the option to purchase by a competent body.
It is worth reiterating the point made by the noble Lord, Lord Gibson, that there are many similarities with the in lieu provisions of the Inheritance Act which in our experience at the trust have worked quite well on most occasions. However both the amendment and the in lieu procedures operate on the basis of existing use valuation by the district valuer. That seems to me to be a sensible, fair and equitable basis for land in a national park or AONB, that is to say that there should not be a development profit. If there is, it means that the character of the land will be changed.
The arrangements proposed in the amendment are not Draconian. They are quite narrowly drawn so that they do not suffer from the sort of objections from which similar amendments that we have discussed earlier today have suffered. They include necessary checks and balances by introducing the concept of an independent determination, and they reduce uncertainty. They enable land of outstanding landscape quality to be preserved for the nation. We in the trust are not in the business of empire building. We already have quite enough to do managing and funding our estate without seeking more responsibilities unless they concern land under threat.
We do not criticise or seek to knock the new plcs. It is simply that their objectives are, quite properly, commercial objectives while our objectives are those of national conservation. It is sensible to put in place arrangements to reconcile those possible conflicts. That is what the amendment seeks to do and I hope that the Government will recognise the logic of the argument.
Baroness Blatch: Given that the sites of special scientific interest are already protected under Section 128 of the Wildlife and Countryside Act 1981, is it necessary to include them in subsection 2(a) of this amendment?
Baroness Nicol: In supporting the amendment, I shall try not to repeat so much that has been said which I endorse. However, I should like to say that I believe that an important part of the amendment is subsection 2(b). That subsection gives an opportunity for the Secretary of State, in consultation with the appropriate agencies, to give protection to land which falls outside the popular designations. That provision is badly needed in the Bill. It would allow proper consideration to be given to continuing sympathetic management once the
508
duties of the Water Bill no longer apply and it would give conservation bodies an opportunity to consider acquisition where appropriate.
As has been said, Ministers are inclined to tell us to rely on the planning system to protect existing access or conservation interests, but planning controls are under constant threat. I understand that yet another White Paper on local plans is circulating at this moment. One must question what the outcome of that exercise will be. In any case, as the noble Lord, Lord Gibson, said, there are certain operations which are or could be damaging in conservation terms, such as forestry and certain recreational activities which do not require planning permission in any case.
I believe that the provisions of the amendment would go a long way to relieving a great deal of public anxiety about the future of some of the most precious parts, not just of national parks, but of our landscape generally, which remains at the moment singularly unprotected. I hope that the Minister will be sympathetic in that respect.
Lord Winstanley: As noble Lords may have noticed, I have in general participated in the proceedings on the Bill from afar rather than in the Chamber. By that, I mean that I have read the proceedings with the greatest of care. I have read over and over again the highly predictable and totally negative replies of the Government to amendment after amendment, but I honestly believed that, on this amendment, so ably moved by the noble Lord, Lord Gibson, we might perhaps receive a somewhat different reply from those that we have received in respect of other amendments. The argument is utterly compelling. The amendment is reasonably and carefully worded. I cannot see that it presents any possible disadvantages.
As the noble Earl well knows, very many of the land holdings of the water authorities are in designated areas of the countryside—in national parks, in areas of outstanding natural beauty and in other areas which are administered in part by the Nature Conservancy Council.
The noble Lord, Lord Gibson, knows that I live up in the Lake District National Park. The noble Baroness, Lady Blatch, suggested that sites of special scientific interest were wholly protected by the planning laws, but they are not. Time and time again when a development in the Lake District is refused by the Lake District special planning board the refusal is overturned by the Minister on appeal. I do not rest much confidence in that system.
We should remember that often these land holdings in unusual and sensitive areas of countryside are in areas where land is owned by the water authority almost adjacent to land owned by the National Trust. That certainly happens in the Lake District where side by side they are landlords. If and when surplus land owned at present by the North West Water Authority becomes available in the Lake District National Park, one would like to see the National Trust have an opportunity to acquire it and to add it to its existing land holdings in that national park which it administers so carefully and so well in the national interest.

509
I hope that we shall hear a different reply. I have already expressed in your Lordships' House my surprise that the Government should decide to try to steamroller two great professions, the law and the doctors, at one and the same time. I did not honestly believe that the Government would also wish to take on the National Trust, along with the Countryside Commission, the Nature Conservancy Council and other conservation and countryside bodies, who are wholly united on this amendment. These are, on the whole, representative of people for whom the Government and the noble Earl's department have a great respect and with whom he and his department work closely. I hope that we shall receive a much more sympathetic and perhaps less predictable reply to this amendment than we have had to so many others.
Lord Ross of Newport: The Committee should appreciate that our planning authorities are under enormous pressure at this time. Many of the planning officers I know—and I have been practising in the business for some time—would quite like to retire early. They have lost large numbers of their staff to the private sector because the money available has been far more than the local authorities have been able to provide. Trying to fill some of those jobs has been very difficult, certainly in my part of the world.
There is pressure to give quick decisions; there is far too much political interference. The whole system has been breaking down. Therefore, to depend purely on the planning aspect of protecting land just is not on. I have great respect for the chief planning officers in most parts of the country. I think they would agree with me when I say that they are disillusioned and that they have been under tremendous pressure. There is great pressure upon them to give decisions, and often their recommendations are disavowed by the sitting members. It is a sad fact, but that is the case.
Secondly, there must be hundreds of cases now of SSSIs being overturned on planning permissions. It is a great thing in the voluntary bodies that planning consents override SSSIs. It is a sad fact of life.
The Earl of Caithness: I do not often take strong issue with the noble Lord, Lord Winstanley, but I really was very upset by what he said. The noble Lord obviously has not taken an active part in your Lordships' Committee. I think he has misunderstood what has been appearing in the Official Report. We have gone out of our way on many more than one occasion to try to be helpful and to take away amendments for further consideration. To say that we have been totally negative in respect of amendment after amendment is a travesty of justice when one considers what has happened to the Bill in three days of Committee.
In the light of what I said on the first day of the Committee last week—perhaps the noble Lord ought to read my remarks—and today, I hope the Committee will understand that I am not today in a position to offer a final view on the amendment before us. Let me begin, however, by offering it a general, if qualified, welcome. It addresses an issue we are at one in wishing to resolve—the need to
510
secure long-term protection for sites in water industry ownership which are of exceptional environmental value and which have features which our general legislation might not be able fully to protect in the event of a disposal by a successor body. And it does so in a positive and constructive manner. But the Committee will understand that I shall wish to consider the amendment carefully with the other options that have been put forward.
It would however be right of me at this stage to note certain reservations. First, the inclusion of SSSIs within the terms of the amendment Will, I believe, raise difficulties, as my noble friend Lady Blatch has already noted. It is not clear to us that this would be justified or appropriate given the provisions of the Wildlife and Countryside Acts which already make provision for safeguarding such areas where required.
Secondly, I have a doubt about the basis of valuation. An open market valuation is more normal in measures of this kind. I am surprised that the movers of the amendment feel that the procedure would not have to allow for the rights, under Crichel Down, of previous owners, where the valuation basis is different. A different valuation basis need not, I believe, jeopardise the proposals, but could avoid consequential difficulties.
Thirdly, I shall want to consider particularly carefully the first limb of the proposal in respect of surplus land where there is not already a sale proposed. The suggestion may be a helpful one but we need to consider its implications.
I do not enter these reservations in any unconstructive or negative spirit. Nor are they central to the purposes of the amendment. In taking the proposal away for further consideration, I emphasise that while there are features which we feel may go a little too far in certain directions we also feel there may be other mechanisms which could be brought into play to add further to the overall effectiveness and flexibility of the measure.
We must clearly weigh this approach alongside others which have been proposed and others which we are considering. But I assure the movers of the amendment that we shall do this in the positive spirit in which the amendment has been put forward and with, I believe, no disagreement among us as to the end which should be secured.
I take slight issue with the noble Lord, Lord Chorley. I cannot agree that the only people qualified to look after land are competent bodies. There are many private owners in this country who own and manage some of the most beautiful and attractive land in the country. If the noble Lord takes his thoughts to their ultimate conclusion, those private landowners must forfeit their land forthwith to the competent bodies that the noble Lord wishes. I am sure that that would not be in the interests of maintaining the beautiful countryside that we were lucky enough to inherit and which we shall ensure passes on to our grandchildren.
If the noble Lord, Lord Gibson, and the noble Viscount, Lord Bridgeman, are content for me to take the amendment away for further consideration, I shall undertake that we will come back with a firm

511
proposal in time for them to consider it fully before Report stage. If they should then feel that we have not done full justice to the issue and the occasion, there will be an opportunity for them to put this amendment back to the House for a decision.
10.45 p.m.
Lord Gibson: I am very much encouraged by the Minister's reply. In the circumstances, perhaps I may be allowed to express my gratitude for the support that the amendment has received. On the basis that we have plenty of time to consider this—an assurance that the Minister has already given—so that if we feel it does not go far enough to meet our concerns we can come back to the question, as I know the Minister intends, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Environmental duties with respect to sites of special interest]:
The Deputy Chairman of Committees (Baroness Cox): Perhaps I may point out that if Amendment No. 130 is agreed to I cannot call Amendment No. 131.
Lord Hesketh Lord Hesketh moved Amendment No. 130:
Page 9, line 16, leave out subsection (2) and insert—
("(1A) Where a National Park authority or the Broads Authority is of the opinion that any area of land in a National Park or in the Broads—

(a) is land in relation to which the matters for the purposes of which section 8 above has effect are of particular importance; and

(b) may at any time be affected by schemes, works, operations or activities of a relevant body or by an authorisation given by the Authority,

the National Park authority or Broads Authority shall notify the fact that the land is such land, and the reasons why those matters are of particular importance in relation to the land, to every relevant body whose works, operations or activities may affect the land or, as the case may be, to the Authority.
(2) Where a relevant body has received a notification under subsection (1) or (1A) above with respect to any land, that body shall consult the notifying body before carrying out, or (in the case of the Authority) carrying out or authorising, any works, operations or activities which appear to that relevant body to be likely—

(a) to destroy or damage any of the flora, fauna, or geological or physiographical features by reason of which the land is of special interest; or

(b) significantly to prejudice anything the importance of which is one of the reasons why the matters mentioned in subsection (1A) above are of particular importance in relation to that land.").

The noble Lord said: The three amendments in this group are technical amendments. I beg to move.
The Earl of Cranbrook: I ought to
mention that I am a member of the Broads Authority and that I sit on the environment committee of that authority. I should like to draw to the attention of my noble friend two points which have come up and are of general concern in the Broads Authority, although I am not speaking on behalf of the Broads Authority.
First, I assume that under subsection (1A), at line 2, "in the Broads" means within the bounds of the
512
Broads Authority itself as defined. But that throws us back on Clause 8, where there is this curious phrase that I might have mentioned earlier of land "associated with such waters". One of the anxieties in the environment committee of the Broads Authority is that things can happen on waters which drain into the broads which are right outside the bounds of the authority. Some thought may be needed on behalf of the Government to define more clearly land associated with waters, in particular when the land—the catchment area of waters—is outside the authority which is affected. This is a point of issue to which I should like to draw my noble friend's attention.
Lord McIntosh of Haringey: I could scarcely believe my ears when I heard the noble Lord say that these are technical amendments. They are three large amendments—one is significant in quantity—and they raise issues of considerable importance. I am sorry that they are raised at ten to eleven at night, but even so I do not think we can allow the Government to get away with passing over them just like that.
Clause 9 deals with sites of special scientific interest—not in the SSSI sense, but in a more general sense—which may be notified by the Nature Conservancy Council as being of special concern. It purports to give some further protection to these sites in terms of the duties under Clause 8. The amendments seek to add the national parks authorities and the Broads Authority to the Nature Conservancy Council in relation to those protections.
The first question which must be asked is why any of these amendments should be in Clause 9 rather than in Clause 8, because the duties with which the protection is supposed to be concerned are in Clause 8. Clause 9 is significantly weaker in a number of respects, to which I have to draw the Committee's attention.
The first respect in which the amendment is weaker than it should be is that it invites the national parks authorities and the Broads Authority to designate certain sites as being of particular importance. What is meant by "of particular importance"? Does that mean that in terms of protection we now have a three-tier system: a system whereby there are sites of particular importance in national park areas; sites not of importance but still in national park areas; and sites outside the national park areas? The latter two types of land do not have the protection supposed to be afforded by the legislation. Such a three-tier system was attempted by the Sandford Committee in 1974 and was rejected because all those concerned felt that it was unsatisfactory and the protection which it purported to give was not good enough.
The second weakness of the amendment and Clause 9 is that all that is required is a notification procedure. Indeed, there is not even a prior notification procedure, unless the scheme of a water undertaking is likely to destroy or damage or prejudice the importance of the flora and fauna, and so on, at risk. There is no definition of what is meant by "destroy" or "damage". There is no definition of

513
what is meant by "significantly to prejudice". There is no real protection in the words at all. Even if there were, that is overriden by subsection (3), which deals with what happens in an emergency. In an emergency the plc goes ahead and does the damage and notifies afterwards. Again, that is hardly an effective protection.
These are poor amendments to a very poor clause. If there is any significance in these sites the duties ought to be transferred to Clause 8 rather than be inserted into Clause 9. I believe it is deeply unsatisfactory that they should be introduced at all and particularly unfortunate that they should be introduced in this cavalier way by being described as technical amendments.
Baroness Nicol: I reinforce what my noble friend has said. I hope that the Minister has been provided with a somewhat longer brief than the one he used to introduce the amendments because I believe he will need it. I should like to reinforce the remarks of my noble friend in relation to the dangers of creating three-tier landscapes. I cannot see what relationship the amendment, as a technical amendment, bears to the Bill as it stands. We need a great deal more explanation of how national parks and the Broads Authority are fitted in almost as an afterthought. There is the question of what happens to land within the national parks, which is divided into two grades, and to land outside the national parks, which is presumably degraded completely and can therefore be "up for grabs" as and when required.
According to the amendment, all that is required is that:
"a relevant body … shall consult the notifying body before carrying out, or (in the case of the Authority) carrying out or authorising, any works",
and so forth. There are then the details of what presumably was meant to be avoided. But there is nothing of how to do that in the amendment. According to that all the body has to do is notify the authority—and then what? Can we be told what sanction is to be applied if its proposals are not satisfactory?
The way in which the amendment has been presented is not acceptable. I hope that the Minister will be able to give a better winding up speech than he did on opening.
Lord Hesketh: I never like to be thought
of as taking advantage of your Lordships. I thought that as the time was nearly five minutes to eleven it was convenient to be brief. I did so only for the convenience of the Committee.
One of the matters to which in recent months we have sought to give particular attention is the relationship, after enactment of the Bill, between the successor bodies and the national park authorities. My right honourable friend the Secretary of State was in Thirlmere at Easter and my honourable friend the Minister of State on Dartmoor more recently.
In debate in another place it was pressed upon us that over the years, partly because of the particular character of water industry functions, partly because of the special duties which have for some years
514
attached to their performance, the water industry has become the best ally of the national parks in the pursuit of many common objectives.
We believe that the duties in Clause 8 and the terms of the code of practice will do much to ensure that this relationship continues, as the Government intend that it shall. But we accept that we ought to do what we can to ensure that there is an effective procedural framework in place for consultation and co-operation.
In another place we therefore agreed to consider what we could do to this end, and in particular we took away a proposal put forward with the support of the council for the national parks. The outcome the Committee sees before it. It closely follows the terms of the amendment put forward in another place and I s
commend it to the Committee's consideration.
The essence of the amendment is to provide that the park authorities may notify to the relevant bodies areas of the parks which they regard as of particular importance in relation to the general environmental duties in Clause 8 and the reasons why they so regard them. The relevant bodies will then be under a statutory obligation to consult the park authorities when any of their decisions or operations are likely significantly to affect those areas.
There are a number of comments I should perhaps add. First, I am bound to say that the terms of the amendment, at least in subsection (2)(b), are not the most translucent. The link there with Clause 8 is difficult in drafting terms— —
Lord McIntosh of Haringey: Will the Minister explain what he means by the word "translucent"? I believe that it means seeing light through but nothing in particular; not giving a clear image. Is that what the Minister means?
Lord Hesketh: I believe that "translucent" means "clear", so when I say that the terms are not the most clear— —
Lord McIntosh of Haringey: The word "transparent" means "clear".
Lord Hesketh: The link there with Clause 8 is difficult in drafting terms but it is important because it jointly secures the effect we desire—that all the purposes of Clause 8 come within the scope of the procedure proposed.
Secondly, the test as to when operations will have significant effects and therefore require consultation is a subjective one to be judged by the relevant bodies. We think this is inescapable, not least because an objective test would leave the plcs unfairly at risk if unforeseen damaging outcomes did occur. That cannot be right. There is protection for the public interest, however, in that, were the utilities to take an unreasonably narrow approach, the Secretary of State could always incorporate guidelines in the code of practice, which covers Clause 9 as well as Clause 8.
Finally I must say a word about the views expressed by the noble Lord, Lord McIntosh, that

515
this amendment is to be deplored because it creates a possible two- or even three-tier system which will be damaging to those areas not notified. But, if we were unable to accord a sensible order of priority to certain areas and to have special measures for them where should we be? On that logic we should not have national parks at all. We believe that that argument is destructive. In any case, the answer is that the initiative lies with the national parks authorities themselves. They can notify as many or as few areas as they consider they can properly justify.
The noble Lord, Lord McIntosh, felt that these amendments should have gone into Clause 8 rather than Clause 9. However, I should remind the Committee that Clause 9 deals with special local arrangements, which is what we are discussing here, while Clause 8 deals with general duties.
The noble Baroness, Lady Nicol, asked who suggested that the Broads should be incorporated. That occurred after consultation with the Countryside Commission.
I commend the measure to the Committee as being positive rather than destructive. It will help to ensure continuing close collaboration between the national parks and the water industry to ensure that they remain allies in the future as they have been in the past. In preparing this, we have taken full account of the proposals of the Council for National Parks and other bodies most concerned.
11 p.m.
Baroness Nicol: It was not my intention to question the position of the Broads. I am sorry if I was misunderstood. I am well aware of the relationship of the Broads Authority to the national parks and I would not have questioned that.
Lord McIntosh of Haringey: Before the matter is put, I shall not detain the Committee now but in view of the fact that we have had this debate back to front, with the Minister only explaining what the amendments mean after the debate has taken place, it is only fair to say that we may wish to come back to this at a later stage.
Baroness Blatch: Perhaps the Committee will permit me to ask a question at this late stage. If this amendment means that the national park authorities and the Broads Authority would be allowed to give notification in respect of all land in their area, is that what is intended or even desirable?
Lord Hesketh: I believe it means that they can "prioritise".
On Question, amendment agreed to.
[Amendment No. 131 not moved.]
Lord Ross of Newport Lord Ross of Newport moved Amendment No. 132:
Page 9, line 25, at end insert—
("(3) Any dispute between the Nature Conservancy Council and the Authority or other relevant body as to whether any such works, operations or activities should be carried out on that land or as to the manner in which they should be executed shall be determined in the prescribed manner by the Secretary of State.
516
(4) Any person who, knowing that any works, operations or activities are or are likely to be the subject of a determination by the Secretary of State under subsection (3) above, without reasonable excuse carries out such works, operations or activities before the Secretary of State has issued his determination shall be guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum or on indictment to a fine.").
The noble Lord said: This amendment sets up an arbitration procedure involving the Secretary of State in disputes concerning sites of special scientific interest as between the Nature Conservancy Council and the NRA. The context is the provisions of Clause 9 which provide that where the Nature Conservancy Council considers an area of land to be of special scientific interest, it shall notify the fact to the NRA. Thereafter, the NRA or a water plc, where it intends to carry out works on the land which appears to that body to be likely to destroy or damage flora or fauna, shall consult the Nature Conservancy Council. In other words, the decision as to whether to consult is for the body carrying out the work. We referred to that briefly in a previous amendment.
The provisions of the clause have been criticised as including too weak a protection in respect of such sites that may well be identified by the Nature Conservancy Council but then receive almost no protection, given the discretion that may be exercised by the NRA or by a plc. Amendment No. 132 seeks to deal with the situation where there is no agreement as to whether works should be carried out. The most likely scenario is where the NCC has identified a site and comes to hear of proposed works of which it has not been notified by the NRA or by the water company. The amendment provides for the Secretary of State to determine the outcome.
It further provides that anyone who, knowing of any reference to arbitration or the possibility of it by the Secretary of State, carries out work or activities before the determination is guilty of an offence. This is intended to deal with the situation where either an arbitration is pending or even where works are proceeding and the NCC has lodged an appeal for arbitration. The effect of this amendment would be to freeze the work at that stage, pending the decision of the Secretary of State.
I suggest to the Committee that this amendment is important in view of the weakness of Clause 9. That weakness is compounded in subsection (3), which allows emergency work to be undertaken without prior notification, provided the Nature Conservancy Council is notified as soon as practicable afterwards. Sites of special scientific interest are of proven importance in the conservation and development of flora, fauna and other natural features and the Bill seems at best grudging in its level of protection for them. I beg to move.
Lord Hesketh: Clause 9 provides a special procedure, tailored to the circumstances of the water industry, whereby the Nature Conservancy Council can notify SSSIs to the relevant water bodies and be consulted on any action by those bodies which seems likely to damage or destroy relevant features of the site. The point to note is that the SSSI procedure already provides means of dealing, through management agreements, with any disputes. This

517
procedure would cut across those arrangements in a manner which we do not feel could be justified. It is for those reasons that we wish to resist the amendment.
Lord Ross of Newport: I listened intently to the Minister but I do not think I received a real answer. I think that the Minister was saying that he believes the present arrangements are satisfactory. On the face of it, that is not what I read into the Bill or other people outside this Committee read into it. However, the hour is late and I withdraw the amendment, but I give notice that I shall certainly raise it again.
Amendment, by leave, withdrawn.
The Earl of Caithness The Earl of Caithness moved Amendment No. 133:
Page 9, line 28, after ("Council") insert (", the National Park authority in question or, as the case may be, the Broads Authority").
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 134:
Page 9, line 30, after first ("section") insert—

(" "the Broads" has the same meaning as in the Norfolk and Suffolk Broads Act 1988;

"National Park authority" means a National Park Committee or a joint or special planning board for a National Park; and").

On Question, amendment agreed to.
Clause 9, as amended, agreed to.
[Amendment No. 135 not moved.]
Clause 10 [Codes of practice with respect to environmental and recreational duties]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 135A:
Page 9, line 32, leave out ("may") and insert ("shall").
The noble Lord said: In moving Amendment No. 135A I speak also to Amendments Nos. 135B, 136, 137, 138 and 140. I understand that it is for the convenience of the Committee that I speak also to Amendments Nos. 136A and 139.
Lord Renton: Amendment No. 136A in my name and that of my noble friend Lord Onslow is nonsense. I do not know how it got on to the Marshalled List but I hope that the Committee will ignore it altogether.
Lord McIntosh of Haringey: In that case I shall certainly not speak to Amendment No. 136A. However, I am delighted to have the noble Lord's support for Amendment No. 136. I believe there was a little to-ing and fro-ing on these amendments and Amendment No. 136B appears to have disappeared altogether overnight.
We are now dealing with Clause 10 and the code of practice to which reference has been made on a number of occasions; in particular, in the consideration of Clause 8. We have been arguing throughout our proceedings that the code of practice
518
is inadequate in the authority that it needs in order to fulfil the objectives we believe it ought to have.
Amendment No. 135A is straightforward. It simply says that the Secretary of State "shall" approve a code or codes of practice on environment and recreation. Since a draft code of practice has already been published and it seems hardly likely that the Government are not going to proceed with codes of practice, it seems a simple matter of tidying up to say that we should recognise the fact that draft codes of practice are in existence and that, presumably as a result of them, some form of code of practice will emerge and that therefore the Bill should say "shall" rather than "may".
Amendment No. 135B is significant in relation to the scope of the codes of practice in that it brings into the scope of the codes the National Rivers Authority as well as the water and sewerage undertakers that are named in the clause. It is very important to do this because, as the clause stands, the only obligation on the National Rivers Authority is to act as it considers desirable. If a code of practice is to make any sense, inevitably it is going to deal with the relationship between the water undertakers and the National Rivers Authority. It seems quite absurd for a code to be in any way binding on one side but not on the other and not to apply other than when it is considered desirable. Therefore we strongly urge that the code of practice should apply to the National Rivers Authority as well as to the water and the sewerage undertakers.
I turn to the issue of the water and the sewerage undertakers as they are named in the clause. Amendment No. 136, which is in the name of my noble friend Lady Birk, the noble Earl, Lord Onslow, the noble Lord, Lord Renton, and myself, replaces the water undertakers and the sewerage undertakers by the relevant bodies. That seems to us not to be an enormous difference and in fact I do not know what the difference is in practice. It is to bring the wording into line with that of Clause 8. At the end we have Amendment No. 146 which defines the relevant bodies as having the same meaning as in Clause 8. Amendments Nos. 138 and 139 have the same effect and it is a matter of tidying up.
Amendments Nos. 137 and 140 are perhaps more significant in that they bring within the code of practice,
"any other owners, occupiers or lessees of any land which was subject to a scheme under Schedule 2 to this Act".
In other words they are broadening the coverage of the code of practice to all of the people who ought to be affected by an environmental and recreational code. Unless these amendments or amendments very like them are agreed, we are simply not going to have the effective coverage of environmental and recreational protection which the Government have consistently claimed to be a feature of the Bill.
It is not enough to set up a National Rivers Authority and to blazon it all over the country as a major step towards the protection of the environment, conservation and recreation unless at the same time such protection as there is to be afforded by a code of practice—I am not saying here that it is enough—applies also to the National Rivers

519
Authority. It is not enough to say that it applies to the water and sewerage undertakers unless it also applies to,
"any other owners, occupiers or lessees of any land which was subject to a scheme under Schedule 2 to this Act".
Because the code of practice is not in the Bill, it is not directly open to us to debate it in Committee, though I am strongly tempted to put it into the Bill at a later stage as a schedule so that we can consider the detail. I believe that we should do that.
The defects in the coverage of the code of practice are overwhelming and unless we can achieve some progress on that, the detail of the code of practice itself is only of secondary importance. I believe that these amendments give reality to the claims that have been made by the Government on environmental protection. They go some way to putting into practice the claims made in innumerable speeches over recent months. Having made these claims, I hope that the Government will be able to agree to the amendments which give effect to them. I beg to move.
11.15 p.m.
Lord Renton: It will not surprise the Committee to know that, having looked at the Marshalled List, I am partially in favour of the case put forward by the noble Lord, Lord McIntosh of Haringey. The position is this. During our lengthy discussions on Clause 8 the Government made it clear that they were going to rely upon codes of practice for dealing with a number of the matters of detail which were raised. If I may say so in passing, I think the Government were justified in using that method of dealing with those matters. But when we come to Clause 10, which deals with codes of practice, we find that they are to be made only for the water undertakers and the sewerage undertakers. They are not to be made for the authority—the NRA—or for any internal drainage board.
My noble friend Lord Onslow and I felt it was necessary to find out why codes of practice are not being laid down for the National Rivers Authority, bearing in mind all that we have been told about the guidance that will be given by codes of practice and given, as I understand it, on matters for which the National Rivers Authority has not necessarily sole responsibility but some responsibility. Therefore it seemed to us that amendments on the lines of Amendments Nos. 136 and 139 as a minimum were needed. But having looked at the other amendments on the Marshalled List, and bearing in mind that we have been given undertakings that there are to be codes of practice, I see no reason why the Bill should not say "shall" instead of "may". So Amendment No. 135A, I should have thought, might be acceptable. Amendment No. 135B, in the circumstances with which we are faced, seems also to be reasonable. I have dealt with Amendment No. 136.
I find, however, a great difficulty about Amendment No. 137. At the same time I should mention Amendment No. 140. The effect of those two amendments would be that the Secretary of State could make codes of practice for non-statutory
520
bodies. That is not a thing that is normally done by codes of practice.
Amendment No. 137 inserts the words,
"and any other owners, occupiers or lessees of any land which was subject to a scheme under Schedule 2".
Amendment No. 140 refers to,
"owners, occupiers and lessees".
It is not for the Government to be making codes of practice for the guidance of people right outside the statutory scheme. Therefore I could not possibly agree to Amendments Nos. 137 and 140.
It is sensible, as we want to tidy this up, that we should at least consider Amendment No. 146. However, I do not think it is necessary because the definition of "relevant bodies", which is what we are concerned with, already appears in Clause 8, which is in the same part of the Bill, and deals with the same matters as Clause 10 deals with. Therefore, though it is worth putting it on the Marshalled List, I do not think technically it is necessary.
Baroness Blatch: I support what has just been said by my noble friend Lord Renton but I should like to share another concern with the Committee. Clause 10(1) states:
"The Secretary of State may by order made by statutory instrument approve any code of practice issued (whether by the Secretary of State or another person)".
In Amendment No. 135A the suggestion is that the word "may" should be replaced by the word "shall". That seems to me acceptable if the Secretary of State is setting the code of practice, but I am not sure that the code should be mandatory if being set by another person.
The Earl of Caithness: The effect of Amendment No. 135A would be to require the Secretary of State to approve any code or codes of practice rather than simply that he shall have power to do so. The effect of the remaining amendments would be to extend the bodies to which the code of practice will apply beyond the water and sewerage undertakers. Amendment No. 135B would extend the application of the code to the NRA and the remaining group of amendments would extend the code to the NRA and internal drainage boards, the other relevant bodies under Clause 8; and to the owners, lessees or occupiers of any land which is subject to a scheme under Schedule 2.
Although the code of practice has figured strongly in our debates already, these are the first amendments to deal specifically with it. By way of introduction, I should set out for the Committee the essential elements of our policy. The first point is that there should be absolutely no doubt as to the Secretary of State's intention that the performance of the central duties in Clauses 8 and 9 should be subject to guidance in a code of practice approved by him. Such a code is the right tool since, as we shall argue on a later amendment, regulations would be bureaucratic and rigid in circumstances where diversity and the need for flexibility are paramount. Such a code is a necessary tool because it is right that the Secretary of State who has strong powers to require compliance with the Clause 8 duties should

521
give guidance as to what in his view is necessary to meet them.
Let there be no doubt then of the Government's intention that there should be a code. To this end we have already published a draft text. It is a draft in two senses, besides the obvious one that no such text can have standing before a Bill is enacted.
It is a draft first in that there is scope for further development, as shown by the fact that my noble friends and I have taken away certain amendments which relate to the code for further consideration. The substance of the code has been extensively discussed with the Countryside Commission and the NCC, and I am most grateful for all the work they have done towards it. We have also had major suggestions and contributions from the Sports Council and the Central Council of Physical Recreation. It would be invidious of me to extend the list, but we have listened to the main organisations. None of them, will agree with every word. Of course not. But I doubt if any of them will deny it is a helpful step forward in trying to codify what good practice in conservation, access and recreation represents for the water industry.
We have therefore listened; and we will go on listening. While I believe the bulk of what can and should be said in this area is there, inevitably some points may have been overlooked, or need clarification or elaboration. If so, then there is time for the points to be further considered, and we shall of course be happy to do so.
But it is a draft also in one other respect. In it we have drawn together all the considerations relevant to all the different functions of water bodies. We thought Parliament would want to see the overall picture and be able to discern a coherent approach. But different bodies will have different functions; and any code will apply to them using different powers. After enactment therefore the single code of practice is likely to emerge as several different documents tailored to the different relevant bodies and the powers under which it is applied. I assure the Committee, however, that any such process of disaggregation will not involve any dilution in content or effect.
Against this essential background we can consider the amendments relating to the clause, and I turn now to those immediately before us. Dealing first with Amendment No. 135A, were it accepted as it stands it would of course mean that the Secretary of State has to approve any such code by whomsoever drawn up and with whatever content. That would of course be ridiculous and is not, I am sure, the proposers' intention. The intention is, I assume, simply that there shall be a code and that the Secretary of State shall approve a code of some kind.
There are two arguments against this. First, in the light of the Secretary of State's actual intentions of which I spoke earlier I suggest that such an amendment is unnecessary. Secondly, perhaps I may put it to the noble Lord, Lord McIntosh of Haringey, and to my noble friend Lord Renton that changing "may" to "shall" causes difficulty because we want to preserve the position where there may be several codes to allow for supplementary ones to cover the
522
circumstances of particular regions or functions. To have to say the Secretary of State may approve any number of codes but shall approve at least one is messy and unhelpful. Thus, given our clear intentions, reflected in the draft code already published, I suggest that the amendment is unnecessary; and, given the other considerations that I have set out, I suggest that it is undesirable.
I turn now to the remaining amendments in the group which would apply the code to other bodies. Dealing first with the NRA, it is important that the authority, as well as the undertakers, should follow the guidance in the code with respect to its environmental duties under Clauses 8 and 9. That is our intention, and the NRA Advisory Committee is keen that the authority should follow the best advice on these matters. However, what the amendments fail to recognise is that the Secretary of State already has powers to direct the NRA to comply with the code in the performance of its duties, in the unlikely event that that was ever necessary or appropriate.
In the case of internal drainage boards, the position is somewhat similar. They will be supervised by the NRA, which my right honourable friend the Minister for Agriculture, Fisheries and Food will direct on its drainage functions. In addition, he can veto or impose conditions on improvement works undertaken by internal drainage boards under the Land Drainage Improvement Works (Assessment of Environmental Effects) (Statutory Instrument 1988 No. 1217). The powers are sufficient to ensure that the guidelines in the code are given effect to by the boards.
The final category of body to which it is; proposed that the code should apply is owners, occupiers or lessees of any land subject to a scheme under Schedule 2. The reasons why that is not appropriate, go back to our discussion earlier today. The fact is that the duties in Clauses 8 and 9 to which the code is to apply are, essentially, about the performance of the water industry's function. That is what the code deals with. That is what creates the need for it. The simple fact is that the code will not be relevant to successors in title because they will not have these functions, a point we have spent much time discussing today.
For the reasons that I have given, the amendments in this case are unnecessary or inappropriate. Nevertheless, I hope that some reassurance can be drawn from what I have said.
Lord Harmar-Nicholls: My noble friend is right to resist the amendment. To have "shall" instead of "may" brings in an unnecessary rigidity which might boomerang. My noble friend has explained that there is likely to be more than one code, so we are not dealing with something that is easily identifiable as a separate point. Clause 10 provides that the Secretary of State may:
"by statutory instrument approve any code of practice",
so the clause anticipates more than one code.
The point made by my noble friend Lady Blatch emphasised the good sense of what my noble friend the Minister is trying to explain to us. It is not just

523
the Secretary of State who may be the author of the code; the clause provides for any other person. To have a fixed "shall approve" is much too wide and anonymous. In those circumstances "may" seems to be right. For the sake of the people who will have to operate the matter in the future, I hope that my noble friend will stand firm.
Lord Renton: I appreciate some of the points that my noble friend has made, but I do not follow him entirely. He has not answered an important point made by my noble friend Lady Blatch, who wondered why it was that the codes of practice could be issued by a person other than the Secretary of State. I think that we should be told that.
Also, my noble friend said that there was no need for the code of practice to give guidance to the NRA because elsewhere in the Bill he can give directions to the NRA. I am not disputing that that is so, but I have been trying to refresh my memory, and I have been trying to find where that happens. I should be very grateful if my noble friend could tell us where the Secretary of State is given either the power or the duty to give such directions. Perhaps I may say that I am sure that he is absolutely right about the discretionary nature of this, and the noble Lord, Lord McIntosh, might agree that Amendment No. 135A was not necessary. Before we leave the matter I think it would be helpful if we could have clarification from my noble friend on the two points I mentioned.
I wish to add this. My noble friend says that the NRA does not need to have a code of practice. I am not sure whether this is relevant; perhaps it is not. Under Clause 8(7) we find that:
" 'relevant body' means the Authority, a water undertaker, a sewerage undertaker or an internal drainage board".
I find it hard to believe that when we have codes of conduct for some of those bodies it might not be helpful at any rate for the power to be there to give help in the code of conduct to each of them.
11.30 p.m.
The Earl of Caithness: Perhaps I may help my noble friend on the first point he asked about which I think was directions to the NRA or other bodies. I refer him to Clause 142, which doubtless we shall reach in the fullness of time and which says:
"Directions of a general or specific character may be given to the Authority";
that is the NRA.
The second point to which my noble friend referred was the point which my noble friend Lady Blatch raised earlier and I apologise to her for not covering it when I answered originally. If my noble friends read Clause 10(1) carefully, I am sure that they will agree with me that the code can only be approved by the Secretary of State but could be prepared by other persons. Perhaps I may give my noble friends the example of the NRA which might want to prepare its own more detailed code for the Secretary of State's approval. That is why the words are as stated.
Lord McIntosh of Haringey: At this hour of the night I think it is necessary that we strip these amendments down to the bare essentials. I agree with noble Lords who said that Amendment No. 135A is unnecessary. I think it would be wrong to impose on the Secretary of State the duty to approve a code drawn up by somebody else. I agree with the Minister that it could be desirable for a code of practice to be drawn up by somebody else other than the Secretary of State. I also accept, although I do not agree with it, that we have a major difference between us about other owners, occupiers and lessees. Although we do not agree, it is not a matter that I propose to pursue tonight.
However, I am profoundly unconvinced by the argument that the National Rivers Authority should be excluded from the code of practice. I am not satisfied with the answer that the Secretary of State has the power to impose general duties under Clause 142. I am encouraged by the support of the noble Lord, Lord Renton, in this, both in relation to my Amendment No. 135B and to Amendments Nos. 136 and 139 which specifically refer back to Clause 8(7), which includes the authority among the relevant bodies.
It seems to me that if we have a code of practice which applies to the water and sewerage undertakers, it will apply to them significantly in their relationships with the National Rivers Authority. The same code of practice ought to apply to the authority as to the undertakers. We might move towards that with the general directions under Clause 142, but that is not a satisfactory answer. As I have the support of the noble Lord, Lord Renton, on this, I wonder whether the Minister, rather than challenging me to seek the opinion of the Committee, will feel able to think about it again before the next stage.
Lord Renton: Before my noble friend replies, I should say that this is quite a complicated and difficult matter. We have had a very useful and open minded debate about it. I should have thought the best thing is to study Hansard very carefully before we go any further. If, meanwhile, my noble friend cares to give any further thought to the matter, that indeed could also be helpful.
Lord Harmar-Nicholls: Did I understand the noble Lord to say that in his view Amendment No. 142 did not give the power to the Secretary of State? Perhaps I misunderstood the noble Lord.
Lord McIntosh of Haringey: We are talking about Clause 142, not Amendment No. 142. Clause 142 gives the Secretary of State the power to give general directions. But that is not the same as having a code of practice which applies both to the National Rivers Authority and to the water undertakings.
Lord Harmar-Nicholls: I accept the Secretary of State has the power to give general directions, and the authority concerned must comply with that.
Lord Renton: We should bear in mind that general directions do not include detailed guidance. Statutes

525
often give power to give general directions, but they have to be general.
Viscount Caldecote: My noble friend the Minister has put great emphasis on the importance of the code of practice. Will he not take this away and consider it? Surely it is much better to have the provision as stated in Amendment No. 135B, rather than leave it to the general powers of the Secretary of State under Clause 142. I hope my noble friend will think again.
The Earl of Caithness: Of course I shall read with care what has been said. I think that my noble friend Lord Renton was right to say that we should all take a deep breath and read the Official Report in the cold light of day. I must admit I had great difficulty in following the argument of the noble Lord, Lord McIntosh of Haringey, as regards not liking the powers under Clause 142, when it came to the code of practice. But perhaps that matter may be clearer to me tomorrow morning or whenever I receive the Official Report.
Lord McIntosh of Haringey: We are making progress only an inch at a time. I do not think that is good enough. The Minister has now been criticised on this specific point by his noble friends Lord Renton and Lord Caldecote. Both the noble Viscount and the noble Lord asked him to do more than say he would read what has been said. Will he acknowledge that there is concern on both sides of the Chamber about this matter? And will he undertake to think about it between now and the next stage of the Bill? I am not saying he has to reach any particular conclusion. But will he please undertake to think about the matter?
The Earl of Caithness: Of course I undertake to think about it. The noble Lord knows that I undertake to think about all the amendments we consider, and particularly ones where concern is expressed on all sides of the Chamber. On this particular amendment it is true that two of my noble friends have expressed concern besides the noble Lord. I said that I found it difficult to follow the argument of the noble Lord, and that applies equally to the concern of my noble friends. However, I shall of course look at this matter again.
Lord McIntosh of Haringey: I suppose that that is the further inch I was looking for. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 135B to 140 not moved.]
Lord Greenway Lord Greenway moved Amendment No. 141:
Page 9, line 41, at end insert—
("( ) Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Lord said: This amendment is designed to secure that the code of practice is subject to parliamentary scrutiny rather than being solely at the discretion of the department. Clause 10, as drafted, does not provide for the code to be subject
526
to either affirmative or negative resolution. Amendments to this effect were tabled in another place but were resisted by the Government on the grounds that such procedures were much too time-consuming. Such procedures do, however, apply in the majority of cases of codes issued under legislative authority, and invariably where important issues of concern to the public are at stake.
The guidance on codes of practice in legislation issued by the Attorney-General in 1988 states:
"Departments should ensure that there is appropriate provision for Parliamentary procedure when the nature and importance of the subject matter of a Code warrants it".
The code is intended to constitute a framework within which the new plcs are expected to carry out their statutory environmental and recreational duties. The Government's decision not to allow the code to be scrutinised by either House may therefore be seen as indicative of an unwillingness to give the code the status which it deserves.
I know that the boating interests regard the code as of vital significance. They also feel strongly that it should be subject to the negative resolution procedure to avoid the possibility of the department interpreting the legislation as it sees fit and in a manner other than Parliament intended. I beg to move.
Lord Ross of Newport: As Amendment No. 147 is linked with Amendment No. 141, perhaps I may speak to that amendment. I go along with everything which the noble Lord, Lord Greenway, has just said but I hope that he will agree that Amendment No. 147 is preferable because it makes clear that the code should be subject to affirmative resolution. I think that the code which has been greatly discussed in Committee tonight is accepted—but perhaps not by the Minister—as leaving much to be desired. We want to be able to have a say in the matter. Given the continued disquiet, it would seem sensible for this Chamber to reserve to itself the opportunity to review the code when the final draft is produced.
Although provision could be made under the negative resolution procedure there would, as most of us know, be no guarantee of a debate. On an issue as important as this, on which the Government have sought to rely in showing the extent of the Bill's environmental protection, it must be worthwhile to accept at this stage that a proper debate and vote would give the code the authority it clearly requires.
Viscount Caldecote: I should like to support the noble Lord, Lord Greenway, on this amendment. The Government are in danger of appearing schizophrenic in respect of the code of practice. On the one hand they say that it is very important indeed, while on the other hand in response to every proposal to strengthen the code of practice and its implementation they say that it is not very important and it is better to save time.
I do not mind which of these two amendments we pass, but if the argument against them is that they are too time-consuming, that seems to indicate that the Government do not attach a great deal of importance to the code of practice. I hope that they will think very carefully about accepting one or other

527
of the amendments, but I do not think that it matters very much which of them is accepted.
Lord Harmar-Nicholls: I should like to reinforce my noble friend's argument. That is an amendment which could and indeed should be accepted. If in reserving the power to Parliament, extra time is taken up, that is the price that has to be paid. That is Parliament's job. That runs through the whole process of applying statutes, whether through the law courts or anywhere else. In order to confirm that real importance is attached to the code of practice, this amendment could be accepted. To do so would be in the spirit of what my noble friend has already said.
The Earl of Caithness: The noble Lord, Lord McIntosh of Haringey, is peculiarly silent.
Lord McIntosh of Haringey: I agree with everything that has been said from the noble Earl's Back-Benches. I hope that he will follow my example.
The Earl of Caithness: The only difference between these two amendments is that the noble Lord, Lord Greenway, seeks a negative resolution and the noble Lord, Lord Ross of Newport, seeks an affirmative resolution of both Houses of Parliament. I have listened with great care to what has been said and I understand the concern of your Lordships. However, there are a number of points that I should like to put before the Committee. I shall of course use the argument that some noble Lords anticipated that I would use about the question of time. We want to have a code in place for the undertakers without any delay, but I strongly take issue with my noble friend Lord Caldecote and say that that does not mean that we do not attach importance to it. We attach great importance to the code.
There is another point. In the nature of such codes, the Secretary of State is likely to want from time to time to revise, elaborate or qualify his advice and guidance to the undertakers. If any amendment were accepted, parliamentary procedure would be needed for any minor amendment. The arrangement would therefore lose some flexibility.
The key point is that the focus is not so much on the advice of the code, but on the duties themselves which Parliament will have fully debated. The practical advice in the code represents good practice developed over some years and on which there is a wide degree of general acceptance. But it is the duties themselves which are critical, to which noble Lords have given so much time and which will be debated again.
There is one other point that I am sure my noble friend Lord Renton will agree with from his experience; namely, that in most cases of guidance of this kind there is ordinarily no requirement for the affirmative resolution procedure of the kind proposed. It would be a break with common practice. I am not necessarily against that. I undertake to look again at what has been said by noble Lords tonight, but I thought it only right to draw the Committee's attention to my concerns.
11.45 p.m.
Lord Greenway: I was becoming a little worried until the last few words of the Minister when he let himself off the hook by saying that he would perhaps look again at the matter. It is obviously a matter that one or two of us feel quite strongly about and I am grateful for the support that I have received from Members on the Back Benches and from the noble Lord, Lord Ross of Newport. I do not intend to trade arguments with him as this late hour of the night as to whether negative or affirmative resolutions are better. On the undertaking given by the Minister that he will see whether he can find some way of incorporating our wishes in this matter, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 142:
Page 9, line 41, at end insert—
("( ) The relevant bodies shall—

(a) draw up and publish policies and procedures for fulfilling their duties under sections 8 and 9 above and for implementing any Code of Practice as for the time being approved under this section; and

(b) publish annually a report describing the measures taken during the previous year to fulfil their duties under sections 8 and 9 of this Act.

( ) It shall be the duty of the Secretary of State to review the performance of the relevant bodies in fulfilling their duties under sections 8 and 9 of this Act at intervals not greater than five years.").
The noble Lord said: The purpose of the amendment is simple. It is one of accountability and monitoring. We do not see anywhere in the Bill a mechanism to ensure that the water bodies' performance of their conservation duties can be publicly monitored. The amendment requires them to state their policies and procedures. It is perfectly sensible for them to tell us exactly what they intend to do in conformity with the Act.
We should also have an annual yardstick whereby we can determine whether they have fulfilled those duties. The Minister may well say that it is not for us or the public to do so and that there is some other mechanism. I should be grateful if he would explain the position. I beg to move.
Lord Hesketh: Amendment No. 142 would require that the bodies to which the code is to apply should draw up policies and procedures for fulfilling their duties in Clauses 8 and 9 and for implementing the code of practice, and publish annually a report describing measures taken in consequence. It would also require the Secretary of State to review performance at least once every five years.
I am grateful to the proposers of the amendment for drawing our attention to an important consideration. As we say in the code of practice, it is important that the bodies should report regularly and publicly on their performance in these areas. The question is whether the particular statutory arrangements proposed here are appropriate.
We have, first of all, one specific reservation. While it may be appropriate to require reporting on performance of the duties, it is not similarly

529
appropriate in relation to the practices recommended in the code. The code gives a wide range of detailed advice and guidance and it is inherently difficult to report on performance of advice and guidance because of its essential character. This, therefore, is one element on which we dissent from the proposal.
More generally, I do doubt whether statutory reporting, prescribed in legislation, is appropriate. The duties in Clauses 8 and 9 inform and condition every aspect of the performance of the undertakers' functions, and it is inherently difficult to report on these features independently of any annual report on the performance of the functions themselves. The conclusion to which we are therefore drawn is that a statutory requirement is unduly rigid and inappropriate.
Furthermore, the amendment raises the question why, if there is to be a separate statutory reporting requirement in respect of these duties, there is not one also in respect of all the other statutory duties imposed on the companies in the Bill. But while for these reasons we doubt that an amendment of this kind is the right course to follow, we recognise that this is a matter which is at present inadequately covered in the draft code. We shall be looking again at that and we shall want to consider whether there are features of this amendment which we could suitably incorporate in the revision of the code.
To that extent we will be happy to take on board the underlying point of this amendment. But I am bound to say that we believe that guidance in the code is the right mechanism to employ. We believe the bodies concerned should be allowed greater flexibility as to the form, scope and timing of any reporting. This is an area where there is scope for experiment and diversity. The guidance in the code can be more flexible and this makes it in our view the more appropriate mechanism by which to pursue the objectives of this amendment.
We recognise the importance of the points which the proposers make, and we will endeavour so far as is reasonably practicable, through the code, to meet them. But for the reasons I have given we do not believe that adopting this amendment as it stands would be the right way to proceed. We recognise that this is a fine balance of judgment, and I hope that on reflection the noble Lords will feel that what we have proposed will meet their essential objectives and that they have no need to press their amendment.
Lord Graham of Edmonton: I am grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: The next amendments have been printed in the wrong order. May I therefore call Amendment No. 143 first.
Lord Norrie Lord Norrie moved Amendment No. 143:
Page 9, line 42, leave out subsection (2) and insert—
("(2) A water undertaker or sewerage undertaker which contravenes the code of practice shall be guilty of an offence and shall be liable—
530

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine,

and the Secretary of State shall take into account whether there has been or is likely to be any such contravention in determining when and how he should exercise his powers under the following provisions of this Act in relation to any water undertaker or sewerage undertaker.").
The noble Lord said: I certainly welcome the code of practice on conservation, access and recreation. The code lays down in some detail guidelines to the private water companies as to how they should manage their land and water holdings to benefit the environment, permit access and recreation and resolve conflicts between the many interests concerned. But it worries me that such a comprehensive code should in effect be only voluntary. Although the code is to be approved by the Secretary of State—a fact which has allowed it to be described (in my view somewhat improperly) as "statutory"—the terms of Clause 10 quite explicitly state that a contravention of the code should not give rise to any criminal or civil liability.
How then is the code to be enforced? The clause also provides that the Secretary of Stale shall take account of any contravention of the code when considering how to exercise his powers under the Act. In practice this means that the Secretary of State has the option of using enforcement procedure under Clause 20 of the Bill. This is a complicated, legalistic procedure and its conditions are set out over five pages of the Bill. Its ultimate sanction is that the Secretary of State can remove the licence from a water or a sewerage undertaker. I find it extremely hard to believe that the Secretary of State would be persuaded to use such a power to ensure that, for instance, a bird-watching or angling club's access to the shores of a reservoir should be preserved.
In another place the Minister for Sport claimed that, were the Secretary of State to choose not to take account of the code that he had approved, or came to a decision that a reasonable Secretary of State could not have come to, his own actions or inactions would be subject to judicial review. I confess to being somewhat mystified by that claim. The Secretary of State's decision could, not would, be subject to judicial review if somebody were prepared to seek it. Is the Minister seriously suggesting that an angling or bird-watching club would go to such extreme lengths should a water undertaker breach some detail of the code of practice? I realise that judicial review is possible but in practice it will not happen. And so to claim, as the Minister for Sport has done, that this is an effectiye sanction is not credible.
My amendment aims to provide a realistic route for enforcement of the code of practice. It is supported by conservation and recreation organisations alike, which are equally concerned that the code is, in effect, voluntary. It will be possible for a sewerage or water undertaker to be prosecuted in a magistrates' court or, if necessary, a higher court for a breach of the code of practice. Although the level of fine imposed is unlikely to be a major deterrent in preventing a breach, enforcement through the courts could bring the incident to public

531
attention and deter an undertaker from such a course of action in the future.
The Government have claimed that, to make the code of practice directly enforceable, it would have to be translated into regulations which would leave it bureaucratic and inflexible. It is claimed that much of the good practice guidelines which have been welcomed by the environmental and recreational groups would have to be dropped. I have difficulty in accepting that argument. Ultimately the code is only useful if it can be realistically enforced. If the price of that enforcement is truly that it becomes bureaucratic, then so be it. I see no reason why the good practice guidelines should not be retained while other parts of the code are translated into regulations.
One element of the code of practice is causing particular concern. The organisations representing angling believe that the code does not protect existing use of water authority land for recreation. For instance, page 27 of the draft code states that,
"there is a presumption that, subject to suitable terms and conditions, public use of full sporting and recreational facilities, once established, should be maintained by the grant or renewal of leases or licences".
The problem is that the facilities already established do not fall within the meaning of this provision. However, the code recognises in a later provision that,
"existing users of sport and recreational facilities on undertakers' land or water should be consulted prior to the introduction on those lands or waters of any new sporting or recreational activity".
This is welcome. However, consultation does not ensure the continuation of existing arrangements, nor does it offer any further protection for existing users. I can well understand that anglers, who have traditionally been among the most prolific users of water authorities' recreational facilities, should be concerned that their sport might be denied in favour of another. Perhaps the Minister will give us his assurance that the final version of the code will recognise the rights of existing users.
The recreation and conservation duties in Clause 8 rely on this code of practice to give them meaning. If the duties are to be effective, it follows that the code must be enforceable by sensible means. I beg to move.
Lord Renton: I am sure that we have all been very interested in the speech of my noble friend Lord Norrie. It is an advantage for us to consider, in connection with this amendment, what effect codes of practice will have.
Although there have been a number of codes of practice over the years, there has been no consistent attitude on the part of Parliament towards codes of practice. But none of them has so far given rise to criminal sanctions in the way that my noble friend proposes. Indeed, to me it is unthinkable that the Secretary of State or another person—as my noble friend Lady Blatch pointed out earlier—drafting a code of practice should have the power to make criminal law and to subject contraventions to all the sanctions of the criminal law. That surely is not what codes of practice are for.
532
With codes of practice in the Water Bill—let us not consider the general doctrine, theory or practice of codes—the intention is to give guidance to people who will in effect be performing a public service but doing so differently from the way in which it has been performed in the past, and who will be raising capital for the benefit of the public in performing that service. They will be required to observe all kinds of obligations with regard to conservation, recreation and so on. For us to go into vast detail in either primary or secondary legislation as to all the possibilities that can arise when they are performing these functions would make it not only a Bill of 387 pages, as we have, but perhaps more like 500 pages.
By having the codes of practice, whatever their exact status, the Secretary of State will be able to give guidance—and guidance of a kind that is needed. But criminal sanctions, no. There will be occasions under the law as it is at the moment when criminal sanctions will apply in matters which have a bearing on this; for example, under the Prevention of Pollution Act, the Malicious Damage Act and so on. However, I would not expect my noble friend on the Front Bench to say that a code of practice in these circumstances could give rise to criminal sanctions.
12 midnight
Lord McIntosh of Haringey: With Amendment No. 143 are grouped Amendments Nos. 143A, 148A, 148B, 201A and 202A in my name. I listened with interest to Members of the Committee who have spoken and with particular interest to the noble Lord, Lord Renton. I agree with him that criminal sanctions, in the sense of fines in the courts, would be quite inappropriate for a code of practice. I had hoped however that he would agree with me that to make compliance with the code of practice a condition of appointment of the water and sewerage undertakers is a quite different matter. It does not involve any of the issues of principle about primary and secondary legislation which the noble Lord, Lord Renton, raises, but provides the minimum enforceability which there ought to be for a code of practice.
If one goes to all the trouble of having a code of practice agreed by all and sundry and having the Secretary of State approve it, after it has been the basis of argument throughout the passage of the Bill and before, surely the least that could happen is that it should be a condition of the appointment of the undertakers that they should comply with the code. Otherwise, what sanctions are there? I hope that the noble Lord, Lord Renton, and the Government will feel, if they do not want to go along with the noble Lord, Lord Norrie, that they can agree to my Amendment No. 143A and the consequentials.
The Earl of Caithness: All the amendments in this group concern liability for compliance with the code of practice. Amendment No. 143, in the name of my noble friend, would make contraventions civil and criminal offences. Amendments Nos. 143A, 148A and 148B would make compliance a condition of appointment of the companies. Amendments Nos. 201A and 202A would make the code an enforceable statutory requirement in its own right.

533
By way of background, I should first explain the position in the Bill as drafted and the thinking that lies behind it. We must start, therefore, with the intrinsic nature of codes of practice. They give guidance as to how duties should be performed. Their purpose is to clarify. They provide assistance. But the fundamental point is that it has to remain the governing duties themselves to which liability attaches.
There are many reasons for this rule. Any Member of the Committee who has read the code will recognise some of them. The matters covered there do not lend themselves to absolute or precise prescription. They are guidelines which the Secretary of State would normally expect to see followed. They identify factors he would expect to see taken into account in particular decisions. That is the usual arrangement with codes of practice and it is inescapable.
But I submit that the Committee would be making a serious mistake if it concluded for that reason that the code was ineffective. The provision says that the Secretary of State shall take account of any breach in deciding when and how to use his proper powers under the Act. Here of course the key ones are his enforcement powers under Clause 20. And in this regard I ask Members to note the words of Clause 10 carefully: not "may" take it into account but "shall". On this basis, the fact is that the code is of substantial weight and effect—as much as can reasonably be given to any such document.
Finally, if the Committee were to want the code to be directly enforceable, it would have to be translated into regulations. But in doing this a significant proportion of the guidelines would have to be dropped. That in the Government's view would be a considerable loss. If the choice is between a narrow set of regulations which are directly enforceable or a far broader, more practical code which is indirectly enforceable, we believe that the latter holds out the greater prospects of producing the progress we want to see.
I know that my noble friend Lord Norrie cannot accept that that is true, but I must tell him that the code is not sufficiently precise to be the subject of regulations. For, as my noble friend Lord Renton pointed out so well, such a code as we propose is totally inappropriate for criminal or civil sanctions.
Lord Norrie: I am grateful for the wise comments of my noble friends Lord Renton and the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 143A not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 143B
Page 10, line 5, after ("make") insert ("or modify").
The noble Lord said: We have now reached the ninth page of a 387-page Bill. In relation to Clause 10(3) we have a mixed bag of amendments. There are three of mine, one from the noble Lord, Lord Greenway, and one from the Government. They all have the intention of improving the consultation which shall be made before an order is made under
534
the subsection; in other words, an order relating to the code of conduct.
Amendment No. 143B appears to be of such common sense that even at this late hour I hope the Government will accept it. It is in no way in conflict with the intentions of the Bill. It provides that the Secretary of State shall not make or modify an order. Secretaries of State do modify orders and it would be appropriate for them to consult about modification as well as about the making of an order. Sometimes modifications of orders, particularly after the first, will be as significant as the original order. We believe that it is necessary to extend the consultation for that purpose.
My second amendment is No. 145A dealing with an inexplicable omission. The Historic Buildings and Monuments Commission for England is included in the subsection so Cadw—the Historic Buildings and Monuments Commission for Wales, partly run by the Welsh Office and the Welsh Tourist Authority—surely ought also to be included, because the Bill covers Wales. Incidentally, if the amendment is agreed to—although it is entirely proper use of legislation—I believe it will be the first time that a Welsh word has been included in legislation of this kind.
Amendment No. 145B refers to the need to consult with local authorities' county councils, which I always thought were local authorities but I am told that technically they are not for this purpose, and the National Park Authority is whose area in whole or in part the code of practice is to apply. That does not mean that all local authorities or national park authorities must be consulted. However, when there is a specific order about a specific case in a specific part of the country it seems perverse to consult the Countryside Commission, the Nature Conservancy Council and so forth but not the local authority in the area, which has such extensive powers. I also support Amendment No. 144 on the Central Council of Physical Recreation and Government Amendment No. 145 on the inclusion of the Sports Council. I beg to move.
Lord Greenway: My amendment relates to the need to consult the Central Council of Physical Recreation. On Second Reading I outlined the reasons why the boating interests were unhappy with the code of practice. At this late stage I shall not enumerate the reasons once again. I am sure that the Minister is now conversant with them. However, very little is said in the code about recreation and the draft is addressed almost entirely to important environmental considerations.
In addition, there is a failure to address the need for consultation with recreational interests. The boating interests have asked that in addition to the Countryside Commission and the Nature Conservancy Council, the Central Council of Physical Recreation and, indeed, the Sports Council as proposed by the Minister's amendment should be consulted under subsection (3) on the preparation of the code. That was hitherto resisted by the Government on the basis that the CCPR and the Sports Council are not statutory bodies, that the Countryside Commission is there to cover recreation

535
as well as conservation interests and that the subsection allows the Secretary of State to consult other bodies at will. However, there is no bar to allowing non-statutory bodies to be named in legislation.
The boating interests remain concerned to see a specific provision made for consultation with recreational interests for the following reasons. First, the CCPR and the Sports Council and voluntary recreational bodies were not consulted on the draft code before it was published, that draft being largely, as I understand it, the work of the Countryside Commission and Nature Conservancy Council.
Secondly, it is desirable for sport and recreation bodies as well as conservation bodies to be named expressly in the clause. Thirdly, while the statutory duties of the Countryside Commission embrace furthering recreation in all forms, in practice, whether by inclination or as a matter of expediency, the emphasis of the Countryside Commission is on informal recreation—for example, walking and bird watching—as opposed to sports such as boating, which, as a result, are not assured of any full or sympathetic consideration.
The boating interests also have in mind that the Countryside Commission has specifically requested that the Bill be altered to make recreational duties secondary to conservation considerations. I do not in any way wish to denigrate the work of the Countryside Commission, for which I know the boating interests have great admiration. However, their experience leads them to believe that it is not well suited to act as a channel for the expression of the interests of sport or, indeed, sport orientated recreation and should not be relied upon in this context to do so.
The Earl of Arran: To use the words of the noble Lord, Lord McIntosh of Haringey, I shall do my best to be as bare and essential in this amendment as possible. The effect sought in Amendment No. 143B is to require that the consultation requirements— —
Lord McIntosh of Haringey: I did not say that I was being bare. I said that I was reducing the arguments to a bare minimum. That is rather different.
The Earl of Arran: In that case, the words are my own. Perhaps I may start with the first amendment of the noble Lord, Lord McIntosh of Haringey. The effect sought in Amendment No. 143B is to require that the consultation requirements set out in Clause 10(3) shall have effect in respect of the modification of any code of practice as well as in respect of the initial approval of such a code. The amendment is, however, unnecessary since the consultation obligations apply to any order, whether that order is to approve, modify or withdraw approval of a code.
The four associated amendments seek to widen the scope of the consultation which the Secretary of State shall undertake in making or modifying any order under Clause 10. Let me outline our general position here. Consultation in this area is of course desirable, and we have already shown our
536
recognition of this. But it is wholly undesirable to string out the list of consultees indefinitely in Bill provisions.
It is clearly essential that the Secretary of State consult the main bodies which Parliament has established with responsibilities in the relevant area. On conservation, it is right the NCC should have a key role. On landscape, countryside and recreation, the involvement of the Countryside Commission is equally essential. Both are specifically covered. In respect of historic buildings, it is the Historic Buildings and Monuments Commission. On sport, we believe it should be the Sports Council, and that is a point to which I shall return shortly.
But that is where a general requirement for consultation should stop. Local authorities and county councils do not have lead responsibilities of the same kind in this area. National park authorities, the Council for the National Parks and other bodies connected with the parks have of course close contacts with the Countryside Commission and are covered in that way.
Nothing in what I have said underestimates the role of local authorities or individual park authorities. But their interests are likely to be narrower and more occasional. It would be wrong therefore to specify them in the legislation. They are there as such other persons as the Secretary of State considers it appropriate to consult. That is the best arrangement.
As for Cadw, the point is simply that it is not an independent body but part of the Welsh Office responsible to the Secretary of State. How can we place in the Bill an obligation for the Secretary of State to consult the Secretary of State! But of course Cadw's views will be known and will be taken into account.
Next we are asked to consider including the Central Council of Physical Recreation. The CCPR plays a valuable role as the organisation of governing bodies of sport and recreation. But there are two principal reasons why we believe it would not be appropriate to include it as a statutory consultee—because it is a voluntary body and because it has close links with the Sports Council, which we believe is the more appropriate statutory consultee and through which it can put forward its views. Having said that, we have in fact already consulted the CCPR on our draft code and I have no doubt that we shall do so on other relevant occasions.
Finally, I come to the Sports Council. In Committee in another place my honourable friend the Minister of State for Water said that he intended very fully to consult the Sports Council on orders under Clause 10. However, having had regard to the key role of the council on sporting matters we would very much wish to insert reference to the Sports Council on the face of the Bill with the comparable bodies already there. Amendment No. 145 would achieve that.
For all the reasons I stated earlier, I hope that noble Lords will not press the amendments. The effect would be to string out indefinitely statutory consultation obligations which are already full and sufficient by any reasonable standards.
Lord McIntosh of Haringey: From what I have heard, the intention of Amendment No. 145B is not necessary if modifying an order is to make an order. That is not my understanding, but if that is the case I shall gladly not move Amendment No. 145B.
I am of course disappointed with the noble Earl's reaction to my other amendments. I am particularly disappointed at what he said about Cadw because he is wrong. It is not part of the Welsh Office. It is constitutionally a hybrid. Only 50 per cent. of Cadw is under the Welsh Office and the other 50 per cent. comes under the Welsh Tourist Authority. Cadw was not consulted when the conservation guidelines for drainage authorities were first drawn up. It only learnt about them from a third party. If the noble Earl thinks about this matter again he will realise that he is not putting Wales and England on an equal footing. On reflection he will feel—I do not challenge him to rise to his feet again—when he reads Hansard that he ought to reconsider his objection to the inclusion of Cadw in the list. For the reasons I have given I shall not press the matter now.
Lord Greenway: As far as I am concerned one barrel is better than none. If the Government agree to write the Sports Council into the Bill that at least goes halfway towards meeting what the boating interests required before the Bill went to the House of Commons. Therefore, with that provision in mind, I shall be happy not to move my Amendment No. 144.
Lord McIntosh of Haringey: I beg leave to withdraw Amendment No. 143B.
Amendment, by leave, withdrawn.
[Amendment No. 144 not moved.]
The Earl of Arran The Earl of Arran moved Amendment No. 145:
Page 10, line 8, after ("England") insert (", the Sports Council").
On Question, amendment agreed to.
[Amendments Nos. 145A to 147 not moved.]
Clause 10, as amended, agreed to.
The Earl of Arran: I beg leave to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-one minutes past midnight.