HL Deb 08 May 1989 vol 507 cc469-537

House again in Committee on Clause 8.

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". 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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.

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 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 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.

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 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:

  1. "(a) the conservation and enhancement of the natural beauty and amenity of inland waters and of land associated with such waters;
  2. (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 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.

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 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 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 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 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 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 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.

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.

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 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. 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 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 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 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 moved Amendment No. 129A: After Clause 8, insert the following new clause:

.—(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—
  1. (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
  2. (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—
  1. (a) is situated in a national park or area of outstanding natural beauty or which is a site of special scientific interest; or
  2. (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—
  1. (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
  2. (b) shall remain effective for a period of 6 months.
(4) For the purposes of this section—
  1. (a) the agencies are the Countryside Commission, the Nature Conservancy Council, the Historic Buildings and Monuments Commission and, in the case of Wales, Cadw;
  2. (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 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 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 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 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.

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 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 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 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—

  1. (a) is land in relation to which the matters for the purposes of which section 8 above has effect are of particular importance; and
  2. (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—
  1. (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
  2. (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 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 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 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 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 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. (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 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 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 moved Amendment No. 134: Page 9, line 30, after first ("section") insert—

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 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 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 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 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 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 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 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 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 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 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 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 moved Amendment No. 142: Page 9, line 41, at end insert— ("( ) The relevant bodies shall—

  1. (a) draw up and publish policies and procedures for fulfilling their duties under sections 8 and 9 above and for implementing any Code of Practice as for the time being approved under this section; and
  2. (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 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 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—

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

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.

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 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 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 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 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 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.