HL Deb 18 May 1989 vol 507 cc1348-400

House again in Committee.

Clause 57 [Remedial powers of local authorities in relation to private supplies]:

Lord Renton moved Amendment No. 321ZG: Page 66. line 25. at end insert— ("(6A) In exercising the powers conferred by this section a local authority shall take full account of the rights and obligations of the relevant persons under contracts, agreements or licences entered into by those persons and the availability thereunder of water fit for human consumption.").

The noble Lord said: This amendment will add a new subsection which will become subsection (6A) to Clause 57. The subsection itself is simple and self-explanatory in its terms; but the reasons for it are less so. I hope that the Committee will bear with me for a short while as I attempt to explain the reasons for it. Clause 57 extends the powers that district councils already have under other branches of the law—mainly the housing law—to ensure that domestic premises are provided with wholesome and adequate water supplies. This clause introduces a new principle by allowing district councils to take enforcement action not only against the owner or lessee of the domestic premises concerned which need water, but also against the owner of the land from which the water has to come.

It appears from the terms of Clause 57 that that enforcement action may be taken even though there was a physical impossibility in the owner of the land providing the water or at any rate potable water and, even though it were possible to provide the water, it would be unreasonably costly to require him to do so. The circumstances vary greatly in which premises can be occupied but the water supplied from a source outside those premises and not on the land on which the premises stand. It would be impossible to enumerate all the different circumstances that can arise.

Perhaps I may give some examples from which it may be thought that it would be unfair to require the landowner to guarantee a supply of water which, as I say, may not even be available. Let us consider the case of an agreement between a landowner and the owner of a nearby house which may be on or off the estate. That agreement may do no more than entitle the house owner to make use of a spring or a well on adjacent land and perhaps give him access as necessary to the land to repair any pipes, pumps or other equipment.

That is one possibility. Another example arises in that it is very rare for private agreements to supply water to make any reference to the quality or quantity of the water supplied. It has always been assumed that water would be available and that it would be of potable quality. The introduction of a new law placing an onus on the supplier to ensure that the supply is both wholesome and adequate could pose a serious problem for him. That could be the case unless he is given power to recover from the consumer of the water in the domestic premises any costs incurred in carrying out the necessary work—if it can be done, which is not always possible as I shall go on to explain.

A third example is that even where an agreement specifies that the supplier of water gives no guarantee as to its quality or abundance of supply—I have been given a copy of an actual conveyance in which there is such a clause excluding liability—under Clause 57 it would be possible for the district council to require the supplier to take remedial action at his expense.

My fourth example is that in many cases an agreement to supply water is in the form of a contract of doubtful legality and enforceability as between the parties. It may have worked in the past, but only because the parties have either been unaware of its enforceability or have decided amicably just to overcome its terms. The introduction of powers to place entirely new obligations on the supplier under this clause could present legal difficulties which may be impossible to resolve.

So much for examples, which I am told have actually arisen along the lines of the four which I have given. Let us just consider the physical difficulties which can arise. Perhaps I may say here that I speak from my own experience of the family property which happens not to be in England or Wales but in Scotland. We had a hill with three wells on it. They had never been known to dry up even in a dry summer. Then the land upon which the wells stood was let to the Forestry Commission on a long lease. The conifers were so thirsty that in a dry season—that is, about every season in four—the wells dried up. Of course we tried to be decent and spent huge sums of money on having water brought in in a tanker from about four miles away—it was a round trip of nine miles—to replenish the wells so that the people in a cottage which was let had their water. However, that would not always be possible.

You can have the situation in which you get a series of droughts which simply dry up the water supply, whether or not trees have been planted above the wells. There may be nothing in any agreement between the landowner, the tenant or perhaps even the sub-tenant to cover that situation.

There is another physical problem which can arise. It arises in flatter counties and in Scotland, paradoxically enough. In the Fens the water table has a habit of going up and down like a yo-yo according to the season. You can have a situation in the Fens in which springs will dry up—indeed, you can have that too on the clay land in East Anglia—and so you can find that what had been assumed to be a constant source of supply actually fails.

One could multiply such cases, but I shall add only one more. It is a not unfamiliar one. It concerns development of one kind or another. Even in rural areas the large extension of a village can cause the immediately local supplies to be over-used, so that the natural supply through the wells or springs which were there is no longer adequate bearing in mind the greatly increased consumption through development.

Some Members of the Committee may be able to add to those examples. However, I hope that I have pointed out enough to my noble friend on the Front Bench so that he will realise that it simply would not be fair and reasonable to require the owner of the land to carry out the wish—no doubt a laudable wish—of the local authority, which is accompanied by enforcement provisions under Clause 57.

I understand—and it is understandable—that the Government expect Clause 58 to be used by the landowner concerned to appeal to the Secretary of State against the notice given by the local authority. But, of course, if that was so, it would still leave landowners with the cost of appealing, the delay involved—which may not be good for the domestic user—and with the uncertainty of the appeal. That does not seem to some of us to be a satisfactory solution; that is, to rely simply upon Clause 58 to overcome the sort of circumstances which I have tried to describe.

Therefore we say that Clause 57 should be amended so as to avoid inequity and legal problems which could arise if the statutory notices issued by the local authority conflict either with existing private contracts or with the physical conditions which have arisen as a result of change.

Therefore I very much hope that my noble friend on the Front Bench will agree that—I need not read out the whole amendment because it is there for Members of the Committee to see and it will appear in Hansard—to ask the local authority merely to take full account of the rights and obligations of the people concerned under existing contracts, or future contracts, and to take account of the availability of water fit for human consumption, is not unreasonable. I beg to move.

Lord Middleton

As an owner of a private supply which is piped from springs emerging not from my noble friend's Fens but from the Yorkshire chalk, I know something of the benefits of such a system. I also know something of the problems. I agree wholeheartedly with the duty which Clause 57 lays upon the local authority to supervise the adequacy and the quality of private water supplies. I further agree that there should be remedial powers. However, as my noble friend explained, subsection (3) enables the local authority to charge the cost of remedying a faulty supply, not only to the owner of the premises but also the owner or occupier of the land where the source is situated.

At first sight, this might seem fair. A man buys a house which takes its water from a nearby spring and, for some reason, something goes wrong with the spring. The local authority requires the supply to be put right and the cost is to be borne by the owner of the land from which the spring arises. But, as I know only too well, springs are not always reliable. They do not flow for ever. The owner of the supply, if he had been prudent when he sold the house, may have agreed with the purchaser that there could be no guarantee as to the quantity or quality of water from his spring. As my noble friend has explained, this kind of agreement is quite common in such circumstances.

My noble friend has explained the legal difficulties that might arise when the onus which is placed by Clause 57 on the owner of the source of supply is at variance with any contractual obligations. I can envisage a case where the owner of premises whose private water supply is below standard is being required by the district council to connect up with the nearest mains supply. It would be perfectly possible, as the clause is now written, for the council to charge part or all of the cost of connection to the owner of the private supply, which when it got to the premises was defective in some respect. Yet there may have been an agreement, to which the owner of the premises was a party, specifying that the supply could not be guaranteed.

It must be right for a local authority, when deciding who should bear the cost of remedying a faulty supply, to take account of the contractual rights and obligations of the relevant persons. I agree with my noble friend that such a duty might very well avoid the inevitable costly appeal procedure provided for by Clause 58.

The Earl of Balfour

I wonder whether I may raise one further point on this subject. I hope that under the definition of "relevant persons" in subsection (7) the costs would be evenly divided between the owners and occupiers of all the premises which draw water from that supply. Then at least the costs would be shared. As has already been said, many private persons may own the water supply but we have no guarantee that a spring will continue to flow for ever.

The owners and occupiers of premises where the source is situated, who are referred to in line 30 on page 66, may have very little to do with the supply, partly because water usually has to flow a fair distance downhill before there is sufficient pressure in the pipes to enable it to reach the roof tanks that most of us have on our houses.

In my own case, the source of supply is two miles away from the estate and the owners and occupiers of premises away up there draw their water from other sources which have nothing to do with me. I hope that if the source dries up or becomes polluted not only can the cost be shared but that some sort of grant will be available for us to be able to connect up to a water undertaker's supply, whatever it may be.

Lord Wynford

I should like to express strong support for the words which were used by my noble friends Lord Renton and Lord Middleton in their argument of this case. This is perhaps a more widespread and important problem than some noble Lords realise. There are very great differences between those who have always known mains supply and those who have never known such supply and have always had to rely on private supplies. The one may not be fully aware of what the other has been doing, perhaps over hundreds of years. So I make no excuse for taking a little of the Committee's time to enlarge on this matter.

It is a widespread problem because private supplies have been developed over such a long time. They started at all sorts of different periods and in all sorts of different ways, but with the same object in view. The main was not available, but God's supply in the positioning of springs was available and people drew on those springs. But they all had one similarity. They all had aquifers below their feet. Where there are aquifers there are springs, and it was the springs that the people were using.

Chalkland, limestone, sandstone and green sand—if you put all these areas together all over the United Kingdom you have a very large number of systems. Some of them are very large, some are medium and some are small. I cannot quote acreages and square mileages for the whole, but it is a very large proportion of the total farming interest in the agricultural land of the United Kingdom. According to the Water Authorities Association—this is the only figure that I can quote to noble Lords—80,000 separate such supplies exist, but that means very little without being able to say what is the size of each.

If you go to the top end of the scale, whole groups of farms were run on this system and still are. In some cases, they have been broken up somewhat and the units are therefore smaller. But—and this is important—they did, and do, handle the water needs. First, there are the needs of humans, whether or not they are employed on the constituent farms of a group. Some of them—quite large numbers—are now not in any way deployed on the constituent farms. There are then all the stock in the buildings and out in the fields. Then come the dairy stock. If I may declare an interest, I have a milking herd of 150 cows. In warm weather, those cows will consume eight gallons of water in as many minutes—not all the time, but in large gulps during the day. This gets into big quantities of water.

We then have the water meadow situation, not all of which, unfortunately, is still working. But the fact is that water was used from these springs, channelling down across the farms on a falling contour, gradually dropping over several miles in some cases, watering those water meadows in February, in the cold weather, when the temperature of that water was about two degrees higher than the temperature of the air all the way down. That brought on the early grass, but in those days the water did not have the nitrates about which we now worry. I hope that I have demonstrated that a large variety of schemes have worked for many years. They were run by common sense and forbearance. If hiccups occurred and there were droughts, and so forth, common sense and forbearance were brought to bear. We are now moving into the age of obligations. Everything must be codified by strict law. That may be necessary, but it begins to make difficulties in the areas that I have described.

A priority for capital investment to bring in mains should be worked out in the near future. If there is likely to be trouble, the mains must be brought in. In those areas former agricultural accommodation -houses, rectories, and so forth—are full of people who need an increased water supply. It is outside the strictly agricultural demand. They sometimes forget that they bought a dwelling which the mains do not reach and that consequently the purchase price was that much lower.

I strongly support the amendment. It has great merit. We all look with alarm and despondency at the water authority boreholes which surround people in those areas. They let down into aquifers, and one of these days, at short notice, we shall suddenly find that our springs slacken. If they do, that will be the owner's problem. What price then would there be on common sense and forbearance? That may carry a message for a later amendment.

Fair and reasonable treatment is needed on the face of the Bill. We cannot rely on the appeals system. It is not good enough. The provision must be on the face of the Bill for everyone to read and note.

8.30 p.m.

The Earl of Radnor

I support the amendment for all the reasons which were so well put by my noble friends Lord Renton and Lord Middleton. What sticks in my gullet is that this provision would override agreements that have been entered into. To me that is more important than wells drying up and the unreasonable expense that might be incurred by individuals supplying water privately. I do not like the idea of arrangements properly entered into being, so to speak, blotted out, as they appear to be in the clause. I support the amendment.

Lord Hesketh

The amendment is concerned with the powers of local authorities under Clause 57 to serve notices on owners or recipients of a private water supply requiring them to take certain action to improve the supply to comply with the drinking water quality standards. The amendment would require local authorities to take account of the rights and obligations of those owners and recipients of the supply, and also whether the water was fit for human consumption.

My noble friend Lord Renton has explained intentions behind the amendment with his usual clarity. The points he made are clearly very practical ones which need to be taken into account. My noble friend covered, as did other noble Lords, a broad spectrum. We certainly do not want to precipitate a situation where people are being deprived of a water supply as a result of local authorities using their powers under the clause.

We fully recognise that private supplies have very varied histories and circumstances, and that it is not possible to draft legislation tailor-made for each circumstance. However, the clause has been drafted in a way which covers all those circumstances and allows the local authority to tailor its action under the clause to the circumstances of the particular supply. There will also of course be powers to relax the standards wherever the breach is caused by natural circumstances and there is no public health risk.

Perhaps I may give an example of this flexibility. The example of a supply provided free of charge by an estate owner to properties which have been sold out of the estate is a useful one. The supply might not be complying with microbiological standards, and the best solution would be to install disinfection at the source rather than at each property served by it. The owner of the supply might not be able to recover the costs of this from the people benefiting from the supply, either because of their traditional rights to a free supply or because of the terms of a contract or licence limiting this. In such a case the local authority under the provisions of subsections (3)(c) and (d) could serve a notice on those being supplied requiring them to reimburse the owner of the supply the whole cost of the improvements.

If for any reason anyone served with a notice by a local authority is unhappy with the notice, he has only to write to the local authority objecting to the notice. That has the effect of referring the matter to the Secretary of State for decision. The Secretary of State may hold a local inquiry and has wide powers not to confirm the notice at all, to relax the standards, to confirm the notice with modifications and to direct the local authority to serve a specified notice on anyone not so served already. So there will be ample opportunity for anyone not satisfied with the local authority's proposal to put his case to an independent person.

Having described this appeal procedure, I am sure that local authorities will not wish matters to reach such a pitch. They will wish to use these powers with discretion to avoid creating a situation where there is a risk of water supplies being cut off, or a manifestly unfair result. The department will be writing to local authorities advising them of those provisions, and will draw their attention to matters such as those raised in this debate.

We have spent some time on the subject and I should like to read carefully what noble Lords have said. With that assurance, I hope that my noble friend Lord Renton will consider withdrawing the amendment.

Lord Renton

Yes, I am sure that my noble friends and I are grateful for that assurance. I should like to thank them and the Minister for the consideration that they have given to this rather difficult matter. Before withdrawing the amendment perhaps I may say that I hope he will bear in mind the following three points: first, the point made by my noble friend Lord Radnor that we must be very careful not to interfere with existing agreements to which of course the local authority was not a party and of which it might have been quite ignorant when it made its decision.

The second point is that I appreciate what my noble friend says about the fairly elaborate terms of Clause 57, but I do not think he will find among those terms the specific obligation on the part of the local authority to consider the availability of water provided independently of the owner of the domestic premises. They may not even be premises owned by the person from whose land the water comes.

My third and last point is that in further considering the matter I hope that the noble Lord will bear in mind the overriding point that by adding the amendment or something like it to the Bill he will save a lot of time, trouble and administration. If local authorities are obliged to take account of what is in the amendment, then they are less likely to create a situation in which the owner of the land providing the water has to appeal to the Secretary of State. So there would be a saving of administration if we accept the amendment. I am grateful to my noble friend and look forward to the Government tabling a proposal, perhaps at the Report stage. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

Clauses 58 and 59 agreed to.

Clause 60 [Assessors for the enforcement of water quality]:

Lord McIntosh of Haringey moved Amendment No. 321ZGA: Page 69, leave out lines 12 to 14 and insert— ("(1) The Director shall for the purposes of this section appoint persons to act on his behalf as Drinking Water Quality Assessors in relation to—")

The noble Lord said: In moving Amendment No. 321ZGA I should like to speak also to Amendments Nos. 321ZGB and 321ZJ to 321ZN inclusive. I can cut the debate on these amendments very substantially because I referred to the matters in some detail when discussing Amendment No. 321ZBC. I then argued that the detailed monitoring of water quality should be the responsibility of the Director General of Water Services rather than the Secretary of State. These amendments would work in a similar way because under Amendment No. 321ZGA the Director General of Water Services would appoint persons to act on his behalf as drinking water quality assessors.

In the following amendments, the powers conferred on the Secretary of State under Clause 60 would be transferred to the director. I shall not go over the argument in detail. In reply the Minister referred to the drinking water quality inspectorate which is to be established in the Department of the Environment. I merely propose the amendment in the hope that the Minister will be able to tell us more. It is not clear on the face of the Bill what the staffing will be and what resources will be available to them. In particular—and perhaps this is the most important point—it is not clear how they will be able to act in all the local areas where the assessment of drinking water quality ought to be carried out.

If the Minister can help with more information it would enable me first to withdraw the amendment and secondly to consider what action ought to be taken at a later stage in the passage of the Bill. I beg to move.

8.45 p.m.

Lord Hesketh

As the noble Lord, Lord McIntosh, put it so succinctly, a large part of the argument on this subject was deployed earlier today. The responsibility for making and enforcing the drinking water quality regulations will rest with the Secretary of State. As I pointed out then—I shall not replay the argument I made—one of the grounds on which we feel that this is important, among others, is that of public health. We believe that, because there is no basis for giving the director general responsibility for the technical assessors whose job it will be to assess compliance with the regulations.

We believe that the director general is essentially responsible for economic regulation. To give him this power would constitute a major expansion of his role in the area of quality regulation. This would be a recipe for confusion between the roles of the director general and the the Secretary of State and that is why we urge resistance to the amendment.

Lord McIntosh of Haringey

Even though we are not seeking to replay an earlier discussion, I could have wished that the Minister had responded to my suggestion that he might explain how these assessors—this inspectorate—would actually operate on the ground. Will they be based in Marsham Street and sally forth each morning to Northumberland or Cornwall? Will they be located in the regions where the inspectorial work has to be carried out? Is the Minister able to give us any guidance as to how this extraordinary piece of democratic centralism is to work on the ground?

Lord Hesketh

I hope that with the flexibility which we anticipate for it centralism is the very last thought that would be on the inspectorate's mind. At the moment we are giving the matter our closest consideration. The inspectorate's duties will be onerous. I can assure Members of the Committee that the necessary resources, which I suspect are the key to this, will be made available for it. I think it is fair to say that there is no question of a small team sallying forth in bowler hats from Marsham Street on a daily basis. I suspect that the members of the team will be distributed around the country, although of course reporting back to Marsham Street.

Lord McIntosh of Haringey

It is clear that I shall not get a straight answer from the Government on the matter. I must reserve my right to come back to this important and erroneous provision in the Bill at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 321ZGB not moved.]

Lord Ross of Newport moved Amendment No. 321ZH: Page 69, line 19, at end insert— (1) No person appointed by the Secretary of State under this section shall be employed directly or indirectly by a water undertaker.").

The noble Lord said: We are taking the position of the assessors of the enforcement of water quality a little further under the amendment. We wish to put in a clause which would stop a practice which we fear could turn into an abuse. Perhaps the Minister will be able to reassure us when he replies. The amendment is designed to prevent water undertakers from becoming assessors for other undertakers and, furthermore, to prevent their employees, or those for whom they contract services, also becoming such assessors.

The difficulty in allowing water undertakers to monitor each other's performance is not just in trade secrets or impossible competition, but rather in the, "You scratch my back, I'll scratch yours", type of regime which we know can develop, with everybody playing the game not being too hard on each other. Ideally, assessors should be appointed from independent organisations such as the Water Research Centre, or from the science departments of universities and polytechnics. I hope that some reassurance may come from the Minister on that point. I beg to move.

Lord Hesketh

This amendment would prevent the Secretary of State from appointing as a technical assessor anyone employed directly or indirectly by a water undertaker. The technical assessors to be appointed under Clause 60 will form the new drinking water inspectorate to be established shortly. This inspectorate will be responsible for carrying out a technical audit of the undertaker's records and practices on assessing and safeguarding drinking water quality. They will check to make quite sure that a water undertaker is complying with the various obligations placed on it concerning the quality of its own water supplies. Compliance with the quality standards and action taken when there is a breach of a standard will certainly be investigated. Sampling arrangements and analytical methods will also be checked, as will the information made available to the public. I hope the Committee will agree with me that it would be completely unacceptable to appoint as a technical assessor anyone employed by a water undertaker. I can give an unqualified assurance to the noble Lord, Lord Ross of Newport, that we have no intention of doing so.

It will almost certainly be necessary to appoint full-time inspectors to undertake the investigations proposed. But, there may be some tasks, particularly when this new system for controlling drinking water quality is being set up and established, for which consultants will probably be needed. We will of course choose properly qualified people and this may well involve large consulting firms which carry out many consultancies at the same time, some of them almost certainly for water undertakers. The proposed amendment would prevent us from employing any such consultants. This would severely limit our choice, and quite unnecessarily so. It is common practice for large firms of consultants to have contracts with a number of clients, which in no way prejudices work for any of them. However, I can assure the Committee that no consultant will be engaged on terms which would permit him to undertake work where there was a possible conflict of interest. I hope with those assurances the noble Lord, Lord Ross of Newport, may feel able to withdraw his amendment.

Lord Ross of Newport

I find that a very reassuring response. I do not wish to cast any slight on the ability and professional knowledge of the many water consultancy firms in this country whose work is of a very high standard indeed. I am only too well aware of that fact. I am grateful for that response. It is reassuring, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 321ZJ to 321ZN not moved.]

Clause 60 agreed to.

Clause 61 [Offences of contaminating, wasting and misusing water etc.]:

The Earl of Arran moved Amendment No. 321A: Page 70, line 33, leave out subsection (2).

The noble Earl said: On behalf of my noble friend Lord Caithness I wish to move Amendment No. 321A and also speak to Amendment No, 321B. Part of Clause 61 covers instances where water supplied to one person is supplied to or taken by another person without the undertaker's consent. This particular aspect has caused considerable concern because of the implications it has for people who act in good faith and provide water for a neighbour who has had his supply disconnected for non-payment of charges. As the clause stands, in these circumstances the kindhearted neighbour would be guilty of an offence and liable to a fine. We consider this to be unreasonable. Therefore, Amendments Nos. 321A and 321B have the effect of removing this provision from the clause. I beg to move.

Lord McIntosh of Haringey

The noble Lord, Lord Hesketh, chided me when we referred to this matter earlier on this afternoon. He chided me for not having added my name to this amendment as I had complained about the effect of the subsection as it stood. I accept the rebuke. I must confess that I misread the amendment. As the rubric of the clause refers to contaminated water, I thought the amendment referred to contaminated water and not to the misuse of water. I think this is a good and realistic amendment, and in effect it relieves the abuse to which I referred earlier on. As the noble Earl said, such abuse would be intolerable. I am grateful to the Government for bringing forward this amendment.

On Question, amendment agreed to.

The Earl of Arran moved Amendment No. 321B: Page 71, line 1, leave out ("(2) or").

On Question, amendment agreed to.

Clause 61, as amended, agreed to.

Clause 62 [Regulations for preventing contamination, waste etc. and with respect to water fittings]:

The Earl of Arran moved Amendment No. 321C: Page 71, line 17, leave out second ("that") and insert ("which is in any pipe connected with any such main or other pipe or which").

The noble Earl said. On behalf of my noble friend, I wish to move Amendment No. 321C and speak to Amendment No. 321D. This clause empowers the Secretary of State to make regulations for the prevention of contamination and waste of water. Amendments Nos. 321C and 321D are technical amendments to make it clear that the regulations are able to provide for the prevention of contamination and waste of water in all pipes for which a consumer is responsible, whether they lie outside or inside the consumer's premises. I beg to move.

Lord McIntosh of Haringey

On the face of it these seem very reasonable amendments, and I am sure we shall want to support them. However, I wish to ask the noble Earl whether, with new regulations starting to apply to water mains inside or outside houses, there is any risk of any cost or inconvenience falling upon consumers. This is an extension, and it would be helpful to have an idea of what risks may exist.

The Earl of Arran

I am not absolutely certain as to the answer to the particular question that the noble Lord raises. I believe the noble Lord to be correct on this. However, if I am incorrect I shall of course advise the noble Lord.

On Question, amendment agreed to.

The Earl of Arran moved Amendment No. 321D: Page 71, line 22, after ("been") insert ("or is to be").

On Question, amendment agreed to.

The Earl of Balfour had given notice of his intention to move Amendment No. 322: Page 71, line 36, after first ("or") insert ("quality of").

The noble Earl said: This amendment is not necessary. Therefore, I shall not move it.

[Amendment No. 322 not moved.]

9 p.m.

Lord Graham of Edmonton moved Amendment No. 322ZA: Page 71, line 40, after ("to") insert ("the registration of plumbers").

The noble Lord said: I beg to move Amendment No. 322ZA and at the same time speak to Amendment No. 322ZB. The purpose of these amendments is to seek the sympathy and, I hope, the support of the Government in introducing what I consider to be a quite essential element into water quality, certainly in general but in particular in the domestic sphere.

I remind the Committee that Clause 62 mentions making provision for: such water fittings as may be prescribed".

Clause 62(2)(c) states that provision must be made for: such other requirements as may be prescribed with respect to the installation, arrangement, connection, testing, disconnection, alteration and repair of the fittings and with respect to the materials used in their manufacture". Although this Government have a great fetish for deregulating and, in effect, managing and regulating matters as little as possible, I beg them to consider the importance of qualified plumbers in looking after waterworks, pipes, connections and other matters. Sadly, many people call themselves plumbers when they are not trained as plumbers. They are not qualified to call themselves plumbers. Anyone can call himself a plumber and get on with the job. I shall plumb the depths of this argument before we have finished—that is what you call a plumb line! A great deal of damage is caused by the cowboy operator, to use that immortal phrase. The term applies not only to the building trades but to anyone who passes himself off as qualified and trained in a particular trade. The public can be gullible.

I am asking the Government to accept that it should be laid down in statute that registered plumbers should be the people to carry out the functions referred to in this clause. The Government will have to make a case as to why they are disinclined to lay that down in statute. They may have a very good answer. I hope that it is not that things are going well without registration, because most Members of the Committee must know of some shoddy work, which is likely to have been carried out by unqualified or unregistered plumbers.

I have been advised in this matter by the Institute of Plumbing. Of course the institute has a vested interest, but I believe that it has a very good case. The Institute of Plumbing provides a forum for the registration, training and education of men and women who wish to become proficient in the trade and become qualified plumbers. It has a number of objectives: first, to enable the public to identify plumbers who have given evidence of their competence and who undertake to act responsibly; secondly, to promote the better training of plumbers; thirdly, to maintain a high standard of craftsmanship; fourthly, to raise the efficiency and status of plumbers. I am told that since the institute's register was started some years ago more than 60,000 plumbers have been registered as satisfying its standards. I am not competent to judge the basis of their qualifications, but there are over 11,000 plumbers registered with the institute today.

I remind the Committee of the incidence of back-siphonage, which is a consequence of bad plumbing due often to ignorance or incompetence of installers. I have a copy of a report of the DoE committee on back-siphonage in water installation which quotes statistics indicating that 61 per cent. of 1,300 installations surveyed contravened specific requirements relating to back-siphonage.

I believe that there is a case for examining sympathetically the protection of the consumer and also of the undertakers. Sad to say, apprenticeships, which hitherto have been a feature of our commercial and industrial life, have gone by the board. Small builders—and I am thinking particularly of members of the Federation of Master Builders—pay a very heavy price to ensure that they are qualified to carry out competent building work. I think that I have said sufficient to persuade the Minister that there is a very strong case for considering amending the Bill to ensure that the work which is specified should be carried out is carried out by registered plumbers. If the Minister tells me that this is not the appropriate avenue but that there are other ways of encouraging the public to use qualified and registered plumbers, I shall be very pleased to listen to him. I beg to move.

The Earl of Balfour

Although I accept that one should always use a registered plumber to carry out work inside a house, we are also dealing with undertakers' works outside a building. With regard to work outside a building, such as laying new pipes, new developments in that field and the new materials being used today require different types of engineering and completely different equipment. Therefore, although I am very much in favour of registered plumbers being employed for work inside a house I should be wary of requiring that they be used, particularly so far as concerns the work to be carried out by water undertakers.

I ask my noble friend to distinguish between the two sides of a building. Inside a house, for example, one uses hard-drawn copper which comes in straight lengths, usually with soldered fittings. Outside a house underground copper is soft drawn. It comes in coils and uses completely different types of fittings.

The Earl of Arran

The noble Lord, Lord Graham, suggested that the Government should consider this issue particularly carefully. I can assure the noble Lord that the Government have considered the issue extremely carefully. These amendments seek to introduce a system of statutory registration of plumbers. As the noble Lord knows very well, this issue has been raised on a number of occasions previously.

It is argued that compulsory registration will lead to better protection for the public and that conversely the lack of it could have serious implications for public health and safety. Our position has been that, wherever possible, standards should be developed and maintained through self-regulation rather than through mandatory requirements which tend to restrict trade. We cannot see that privatisation will affect this position. Nor do we think that the overall accident record of the industry indicates that there are overriding health and safety considerations which would support the case for registration. Health and safety standards are maintained through building regulations and water bylaws.

I have to say that we are not persuaded that the arguments now being put forward by the noble Lord, Lord Graham, justify taking a different line on this occasion. I hope that the noble Lord will accept our position and agree not to pursue these amendments.

Lord Graham of Edmonton

I am disappointed with what the Minister has said. As he indicated, the arguments that I have deployed have been rehearsed before. With no disrespect to him, the response is a matter of record too. The Minister's argument rests on two points—an abhorrence of a restriction of trade and a belief in self-regulation. Self-regulation is another phrase for allowing either a body or individuals not to be regulated. There is little evidence that, when one leaves a body to self-regulation, it experiences either the discipline or the penalties and consequences of it. There needs to be a spur to action by the Government.

What action are we asking for here? We are simply asking the Government to say that, when plumbing work needs to be done, it should be done by qualified people. The line that we take—that qualification will come by registration with the Institute of Plumbing—may well be the wrong one, but I am saddened to learn——

Lord Trafford

The noble Lord talks about self-regulation being a bad means of carrying out things and that it is an open sesame to cowboys. However, was he present at Question Time when the lawyers pressed the case for self-regulation of the profession? Perhaps he has heard my own profession also press strongly for self-regulation. I do not believe that self-regulation is necessarily an argument that one should throw out of the window, whether it applies to plumbers, lawyers, doctors or anyone else. The noble Lord is on dangerous ground there.

Lord Graham of Edmonton

I shall need to consult my lawyer first; perhaps I may have to see a doctor too. The last thing that I should want to say——

Lord Trafford

The noble Lord is saying just that. He says that he needs to consult his lawyer before he brings in his plumber in case the latter is not properly registered. Is not the matter becoming a little farcical?

Lord Graham of Edmonton

The noble Lord chooses to make the matter farcical, but the Minister and I are in a majority over his view in that we take this matter very seriously. The Minister has deployed the argument that the route that I have suggested—namely, registration, which would imply some form of discipline within the register—is not acceptable. I do not refer to self-regulation per se.The noble Lord put words in my mouth when he referred to cowboys. I did not say that all bodies that are self-regulated are cowboys, but my experience is that many bodies would prefer to be self-regulated because they fear the discipline and strictures that some form of government imposition might bring.

We have had a good run on this issue. I have raised what I think is a very sensible argument and I am disappointed that the Minister has not been prepared to accept it. However, there will be other opportunities to persuade people, if not the Minister and if not in respect of this Bill. This is a peg upon which I have been waiting to hang this argument. I believe that the argument is appropriate, although it has not been accepted. We shall try at some other time with what I still consider to be a very sensible argument. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 322ZB not moved.]

Clause 62, as amended, agreed to.

Clause 63 [Power to prevent damage and to take steps to prevent contamination, waste etc.]:

The Earl of Arran moved Amendments Nos. 322A to 322C: Page 73, line 23, leave out (", or in any pipe connected with any such main or pipe,"). Page 73, line 27, leave out second ("that") and insert ("which is in any pipe connected with any such main or other pipe or which"). Page 73, line 30, after ("water") insert ("which has been or is to be").

The noble Earl said: Clause 63 provides a water undertaker with powers to act in cases where it has reason to believe that damage or contamination is being caused or water is being wasted, misused or unduly consumed. Amendments Nos. 322A, 322B and 322C are technical amendments to make it clear that the powers are to apply in respect of all pipes for which a consumer is responsible, whether they lie inside or outside the consumer's premises. I beg to move these amendments en bloc.

On Question, amendments agreed to.

Clause 63, as amended, agreed to.

Clause 64 agreed to.

9.15 p.m.

Clause 65 [Standards of wholesomeness]:

Lord Graham of Edmonton moved Amendment No. 322CA: Page 75, line 44, after ("regulations") insert ("and with the approval of the Director").

The noble Lord said: This amendment stands in the name of my noble friend Lord McIntosh of Haringey. Clause 65 deals with standards of wholesomeness. The first part of the clause reads: The Secretary of State may by regulations make provision that water that is supplied to any premises is or is not to be regarded as wholesome for the purposes of this Chapter if it satisfies or, as the case may be, fails to satisfy such requirements as may be prescribed.

Amendment No. 322CA would amend that subsection to read: The Secretary of State may by regulations and with the approval of the Director make provision".

I think that we have already demonstrated the differing opinions in the setting and interpretation of standards and in particular the conflicting views between the Government and the European Commission. An investigation into the track record of enforcement of drinking water standards in this country would show a history of relaxed interpretations, derogations from and disregard of standards, in particular as referred to in the document 80/778/EEC.

As the Bill stands the Secretary of State not only prescribes the standards of water quality by means of regulations but he is also responsible for the appointment of technical assessors and for deciding when it is appropriate to take enforcement action. There is no reason why the sole responsibility to prescribe standards of wholesomeness should lie with the Secretary of State. We consider that it would be more appropriate in the circumstances to separate the responsibilities for making and enforcement of regulations between the Secretary of State and the director general.

Our amendment enables a useful input to be made by the director general and allows his expertise and knowledge of the new regulatory framework to be used to the full. I beg to move.

Lord Hesketh

We have been round this track a number of times today in some ways. This amendment would require the Secretary of State to obtain the approval of the director general before making provision by regulations for standards of wholesomeness.

In the light of our previous discussions about the role of the director general, we believe that the amendment is something of an anomaly. However, it would make the director general rather than the Secretary of State the ultimate arbiter in this country on standards of wholesomeness. I remind the Committee of the arguments that I displayed earlier today; namely, that in view of the major public health and Community law aspects of this measure, we believe that that would not be acceptable. It is for that reason, as I said earlier today, that I urge the Committee to resist this amendment.

Lord Graham of Edmonton

The noble Lord does not disappoint me. He is quite right. This is another bite at the same cherry. We still hold the view that there is no challenge to the ultimate responsibility and superiority of decision-making of the Secretary of State in these matters. We simply believe that the Secretary of State cannot possibly be technically as competent as the director. I hope that the director will be a person who will demonstrate not only that he understands the water industry but that he has a feel for the thousand and one things that are required to make a manager into a good manager. The Secretary of State is primarily a politician and after serving in one department he may very well serve a stint in another and so on. He cannot possibly be as closely in touch with the water industry as is the director.

However, the noble Lord is fair when he says that we have already dealt substantially with the argument here. We think that the attitude of the Government downgrades the importance of the director general and the qualities that he brings to the post and therefore his ability to impress himself on the water industry and the world in general.

We believe that this amendment is certainly merited. However, there is no point in my pressing it further now and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 322CB and 322D not moved.]

Clause 65 agreed to.

Clause 66 agreed to.

Clause 67 [General sewerage functions.]

Lord Addington moved Amendment No. 322E: Page 77, line 15, after ("drained") insert—

The noble Lord said: I wish to speak to this amendment on the Marshalled List. The aim of the amendment is to make sure that there is greater and more thoroughgoing sewage mains connection in rural areas. Section 14 of the Water Act 1973 places a duty on water authorities to provide adequate sewerage services within their areas.

District councils have long been concerned by the fact that water authorities throughout the last two decades have been more and more reluctant to provide schemes of first-time sewerage for communities in rural areas, thus putting them on to the public sewerage system. Water authorities were able to hide from the requisitioning power by means of Section 16 of the same Act which gave local authorities the power to compel the water authorities to place the local communities on bills but at the same time it meant that they had to pay for the actual service.

Due to lack of funding the net result was that very little work was done. The aim of the amendment is to make it a duty of the new water companies to place all communities of over 100 dwellings on the public sewerage system. It also provides a timescale over which this has to be done. In other words, within a year one has to have a timescale for all these communities to be put on to the main sewerage system. There is then a 20-year period in which the work has to be completed. The amendment also provides a scale of funding over the period.

I suggest that this is not a completely unreasonable amendment. There is no real reason why the task could not be completed within a given period. Indeed, in the 20-year period I would hope that the new water companies—if they are more efficient due to the benefits of privatisation—should be able to carry out this work. I can therefore see no reason why the amendment should not be given very serious consideration. I beg to move.

Lord Hesketh

The effect of this amendment is to add to general sewerage duty in Clause 67 a specific duty for sewerage undertakers to provide mains drainage for all communities with more than one hundred inhabitants. Undertakers would be required to draw up plans for each community in consultation with the local authority concerned and to implement each year one-twentieth, by value, of the resulting programme of schemes.

In so far as the amendment is directed to securing suitable and necessary provision of first-time public sewerage to existing properties, this is an objective that we all share. But I hope to be able to persuade the noble Lord, Lord Addington, that the amendment is unnecessary and that the Bill as it stands offers a better approach.

Clause 67 preserves the general sewerage duty which water authorities have at the moment and spells it out in more detail. It places a duty on every sewerage undertaker to provide, improve and extend a system of public sewers so as to ensure that its area is and continues to be effectually drained. In fulfilling this duty undertakers will be expected to plan and to carry out a continuous programme of works to maintain, improve and extend their network of sewers.

This does not mean that mains sewerage has to be provided everywhere. Private sewerage arrangements which operate satisfactorily are an effective means of drainage. As long as they are suitable for a particular locality, they may be considered to provide for that part of an undertaker's area to be effectually drained. Local authorities, with their public health responsibilities, have the power to ensure that owners of private systems maintain them properly. In other localities the circumstances will be such that only mains drainage can provide a satisfactory solution. It is likely therefore that each undertaker's programme of works will include plans for extending its system of public sewers at some stage to localities within its area where there are private arrangements.

We are also preserving in the Bill the present arrangements under which new sewers can be requisitioned. Clause 70 gives local authorities and the owners and occupiers of properties the right to require a sewerage undertaker to provide mains drainage. The requisitioner has to pay annually over a period of 12 years any difference between the charges for the use of the sewer and the cost incurred by the undertaker in providing the sewer. Rural sewerage grant will continue to be available to reduce the cost which would otherwise fall on the requisitioner.

The purpose of the requisitioning arrangements is to offer a means of securing that a particular locality is provided with a public sewer in advance of the time that the undertaker might be expected to extend its system to the locality under its general duty. A local authority has the option of requisitioning if it believes that earlier provision of a public sewer would be of benefit to its area. The owners or occupiers of premises with private sewerage arrangements will also, under the provisions of the Bill, be able to requisition a sewer, either individually or as a group, or to join in requisitioning with the local authority for the area.

The amendment seeks to establish a population criterion for the provision of mains drainage. We believe that this is not practicable. Quite apart from the problem of defining what is meant by a community, any general criterion is bound to be arbitrary in its effect and result in undertakers having to provide first-time sewerage where private arrangements are entirely suitable. Decisions on whether mains drainage is necessary must be taken locality by locality in the light of all the circumstances. Undertakers will, of course, need to liaise with the local authorities in their area in planning their forward programmes of work.

I hope that I have been able to demonstrate that the general duty on sewerage undertakers and the requisitioning arrangements, taken together with the public health responsibilities and powers of local authorities, constitute an effective statutory framework for ensuring that mains drainage is provided where and when it is needed. I trust therefore that the noble Lord, Lord Addington, may see fit to withdraw his amendment.

Lord Ross of Newport

I seek to intervene because although the Minister made a fairly comprehensive reply which seemed to suggest that all the necessary legislation to deal with these problems was in place, I do not believe that it is for one minute. That may be the fault of local authorities. It may be the fault of water authorities. I am not sure who to place the blame on. It may even be the fault of the National Housebuilding Registration Council. I can give an example of an estate developed in the past 10 years in my former constituency where between 200 and 300 people live. A private sewerage system was put in to an approved standard; but because the builders refused to spend £1,000 to have the system tested—which is what the water authority insisted on through the local authority as its agent—those people are still on a private sewer. All kinds of things have happened since because of a collapse of foundation work on which some of these properties have been built. I brought the National Housebuilding Registration Council in because I felt it had some responsibility. Fair enough, it offered to put in £2,000 to be spent on repairs. But to get all those people together to try to have that money contributed is, as I am sure everybody knows, extremely difficult.

It seems to me to be absolutely outrageous that private developers, who make a lot of money out of an estate, can refuse to spend £ 1,000 so that a sewer can be taken over by the authority. I suspect that kind of problem will continue. One of the objectives of this amendment would have been to stop that happening. Although a whole plethora of remedies has been mentioned by the Minister—and I do not expect him to answer my question—it is sickening that it is still happening on new estates at this time. Builders are still making the same mistake. I hope that the Bill will give some strength to local or water authorities to ensure that that cannot happen again, and that developers are obliged to finish a job off properly so that the private sewerage systems that are put in in the first place can be adopted.

Lord Hesketh

I believe that we come to an amendment later on this subject and into which we can go in more detail.

Lord Addington

The noble Lord's answer was full and listed many regulations and bodies which are dealing with the problem. But the great number of them probably points to one of the problems here. There are many bodies and much permissive legislation. There are a great many people trying to deal with the problem. The aim of the amendment was to try to give some cohesion and base to it, to bring all the relevant people together and to give some kind of plan and structure to it.

I do not propose to divide the Committee on this amendment, certainly not at this short a notice. But in withdrawing the amendment, I reserve the right to come back at a later date. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

The Earl of Shannon moved Amendment No. 323: Page 77, line 20, at end insert ("; and

The noble Earl said: Like the previous amendment, this I hope is designed to produce a little more definition into the most wonderful, airy, nebulous Clause 67. I was going to read it to the Committee, but fortunately in his first answer to the previous amendment the Minister did so and we were able to hear how vague it is.

I mentioned my concern over this matter in the Second Reading debate when I drew the attention of this Chamber to the possible problems relating to industrial effluent. The amendment is designed to ensure that the reception and disposal of trade effluent via the sewers is recognised as a fundamental obligation of the sewage undertaker.

One may cast one's mind back. I am not suggesting that any Member of the Committee was present on that occasion. However, in the early days of the railway companies they came before Parliament and applied for Private Bills to enable them to establish their networks. They were given all kinds of privileges. In its wisdom Parliament said, "If you are going to have all these privileges you are going to accept the obligation to be a common carrier. In other words, provided that it will go through the tunnel on the route it does not matter what it is; you, the railway company, must carry it. You cannot say that you do not like carrying cows and that you will only carry coal". They were common carriers. I suggest that that obligation exists for the companies which will take over the sewerage system.

At present the Public Health (Drainage of Trade Premises) Act 1937 confers on industry those rights, subject to certain reasonable conditions. which are similar to those for the discharge of domestic effluents and surface water run-off. The majority of trade effluent dischargers have no other economic route of disposal. If you are running a factory which uses a certain amount of water, perhaps for dyeing textiles, and you are in the middle of a town, you must dispose of the effluent down the sewer; there is nothing else for it. You do not have any other economic route if you cannot do that. Further, I suggest that the burden of proof must remain with the sewerage undertaker. He must prove that he cannot reasonably be expected to receive and treat that particular trade effluent.

There are nearly 30,000 consents at present covering discharge to sewer from industry. The water industry's income from trade effluent charges in 1987–88 was over £100 million. For all industrial dischargers it is imperative that the Bill protects their rights to connect and discharge their effluents to sewer. Obviously that is subject to any appropriate control conditions necessary to protect the sewer, the treatment facility, the workforce and the general environment.

The new water supply plcs should not be allowed to pick and choose what they believe to be the most profitable trade effluent for them to treat. It must be remembered that they will be the new privatised companies. They have the profit motive before them and they may say, "We wish to take this particular trade effluent. We can make more profit out of it. We shall say to the other chaps, 'Sorry, we cannot deal with yours; you go and find somewhere else to put it'.".

That is where the common carrier principle must come in. The companies will be accepting all the assets, such as the sewerage network and treatment plants. I suggest that the obligation rests with those assets. I hardly think that the Department of Trade and Industry would be happy with a takeover bid if the company taking over said, "Yes, we will accept all their assets but, sorry, we are not interested in their liabilities". The same situation arises here. It may be, as I hope, that the Minister will be able to convince the Committee that my fears are groundless and that the obligation on sewerage undertakers will still exist under the Bill; but, please, not by quoting Clause 67(l)(a), because it is to vague too be true. I beg to move.

Lord Hesketh

Amendment No. 323 would add to the general duties of sewerage undertakers set out in subsection (1) of Clause 67 a further duty to make reasonable provision for the reception and disposal of such trade effluents, arising in the area covered by their appointments, as it is appropriate to dispose of through public sewers. This further duty would be without prejudice to the generality of the duties in paragraphs (a) and (b) of subsection (1).

Legislation governing the discharge of trade effluents into public sewers is set out in the Public Health (Drainage of Trade Premises) Act 1937, as amended by later legislation, and supplemented in particular by provisions in the Public Health Act 1961 and the Control of Pollution Act 1974. The framework provided in those Acts is further modified by Clauses 69 and 73 and Schedules 8 and 9 of the Bill.

The cornerstone of these provisions is the prohibition on discharge of trade effluents into public sewers without consent. The refusal of consent or the imposition of conditions of consent have always been matters against which the potential discharger could appeal. In the past such appeals have been decided by the Secretary of State. In future, as a result of the changes made by Schedule 8, appeals would lie to the director general subject to one exception: in the case of trade effluents to which Clause 73 and Schedule 9 apply, requirements as to the authorisation of the discharge of prescribed substances will be determined by the Secretary of State, and not be subject to further appeal.

The existence of specific right of appeal, the need for which has not been challenged, has the effect of establishing that the sewerage undertaker has an obligation to accept a discharge of trade effluent in all reasonable circumstances; otherwise, the undertaker's refusal will simply be overturned on appeal. However, as regards the planning provision of capacity to meet trade effluent demand the general duties in Clause 67 are not, I accept, completely clear. I therefore have some sympathy with the ideas behind the amendment. If the noble Earl is willing to withdraw his amendment I would therefore be willing to undertake to consider whether the relationship could helpfully be clarified.

The Earl of Shannon

I am grateful to the Minister for what he said. I shall have to read again in the Official Report all the various references which he gave because I could not quite pick them up at the rate he so efficiently gave them. However, in view of his undertaking and his kind offer to consider matters, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Stanley of Alderley moved Amendment No. 322A: Page 77, line 20, at end insert ("and

The noble Lord said: The purpose of this amendment is to try to discover what steps the Government intend to take to improve sewage disposal into the sea. Of course, I noted the reply of my noble friend Lord Caithness to a parliamentary Question on 8th May that this Bill will be "of immense benefit". I hope that my noble friend can give me some idea of the Government's thoughts on what "immense benefit" will be brought by this Bill and more importantly, where those thoughts are contained in the Bill. I am not happy with the powers under subsection (1) of this clause as they are not sufficient.

I have the privilege to live in Anglesey. Since the mid-1970s I have had a running battle with Welsh Water over the disgraceful state of some, if not most Anglesey beaches due to the discharge of sewage into the sea. I must say that Welsh Water was particularly unhelpful in the early stages of my battle. Many of the replies I received were worthy of Sir Humphrey in "Yes Minister". I suppose that my noble friend will say, "all the better to be privatised", but that is what I want to know.

Members of the Committee may have noted that since I tabled this amendment, the Department of the Environment has announced that it intends to commission a study as it is thought that the present system of sewage disposal into the sea, based on the Royal Commission environment report of 1984, is out of date, particularly as regards the length and effectiveness of long sea outfalls.

My amendment insists on a long sea outfall to take account of the tide and the amount of detergent contained in the effluent. That would prevent, for example, outfalls into the Menai Strait which Welsh Water assures me is all right because the material is shredded. However, as most Members of the Committee know, the Menai Strait is in no place wider than about half a mile. Perhaps my noble friend can tell me why it is more pleasant or indeed healthy to swim through shredded faeces rather than unshredded faeces. I am sorry to have to say that I have swum through both in Anglesey, and on balance I think I prefer the latter—though perhaps I should add that this has usually been because I have been unwillingly thrown out of a sailing boat.

Depending on my noble friend's answers, I should prefer to see all sea sewage properly treated rather than just shredded. That would remove the sludge, which is the worry. I hope my noble friend will agree, but if he states that it is financially impractical in the near future perhaps the Bill can be amended at a later stage to give the Secretary of State or the NRA rather tighter instructions to improve this disgusting situation and also put a date on it. I beg to move.

Baroness Blatch

I support the analysis as set out by my noble friend Lord Stanley of Alderley. However, I raise a question mark over the solution he gives. We all want to see the problem resolved. I presume that my noble friend is assuming that simply extending pipelines to two kilometres will somehow or other resolve the problems all round and that the pollution will not reach our beaches.

However, I should like to give an example. In some parts of the country the water is shallower at two kilometres from the coast than it is closer to the coast. At Southend I understand the outfall is 1.4 kilometres long. At Southend the sea is deeper at 1.4 kilometres than it is at two kilometres. Therefore, if the amendment had been in force the sea outfall would be longer but would discharge into shallower water. If it is discharged into shallower water the substance, shredded or unshredded, would be less dilute. Having a standard two kilometres outfall raises that technicality. The amendment would also require immediate expenditure to lengthen all outfalls to two kilometres, and such lengthening could have an adverse effect that presumably is not what my noble friend Lord Stanley wishes to see.

Schedule 2, paragraph 2(3), gives examples of the conditions that the NRA may impose on the discharge concerned. Surely it is better for the NRA to consider each application on its merits, to decide on the optimum solution and not accept the minimum length of outfall which this amendment requires. I absolutely agree with the analysis of the problem but the solution must be a technical one and appropriate to the circumstances.

Lord Ross of Newport

As someone who has for many years lived in a seaside area on an island which is a real island, unlike Anglesey, but which has the same problems I support the noble Lord's arguments. However, if we change the outfalls now, God help us all, because our water authority has recently spent a fortune extending the sewer outlets at Ryde and Sandown and on the western end of the Isle of Wight. Large amounts of money have been spent extending the outfalls further into the Solent where there are strong tides.

I was interested to hear the noble Lord refer to the Department of the Environment inquiry into sea outfalls. If that is the case I hope we shall learn more about it from the Minister when he replies. I have been assured over many years that this is the safest way to dispose of sewage, provided it is macerated. Many of my constituents may hardly agree with that, but I await the reply with interest because it is an important subject.

Lord Renton

We ought to have outgrown the era of having sea outfalls for sewage at all. It is a most appalling way of disposing of sewage even if the pipes extend a long way from the land. If we had a proper sewerage scheme for every place that still has a sea outfall that problem would no longer be necessary. But, alas, we do not yet seem to have reached that enlightened state of progress. I hope that we shall do so before many years have passed and certainly before this Government ceases to exist. I hope that that situation will not occur for many years to come. We should carry on with getting rid of these outfalls. There is great help available to all local authorities in establishing sewerage schemes if they wish to do so.

When my noble friend replies to this amendment perhaps he can tell us how many sea outfalls still remain in England and Wales. If we knew the answer to that we would know something of the size of the problem. I hope that this debate will be taken by the Government and local authorities to show that your Lordships' Committee does not take kindly to sea outfall sewerage schemes

9.45 p.m.

Lord Hesketh

What an interesting little amendment! I am sure that it could keep us here for several hours. It has all the potential of developing in every direction towards sea or land. The purpose of this amendment is to ensure that where they are used, sea outfalls shall discharge at a distance of not less that two kilometres from the nearest land, or greater if necessary, in order to take account of the effects of tides, or of detergents in sewage, as my noble friend Lord Stanley of Alderley drew to our attention. The aim of the amendment is to ensure that coastal areas remain unpolluted. The Government fully share this objective with my noble friend Lord Stanley, and consider that the objective would be met by the provisions of the Bill as it stands, and will not be served by adopting the amendment.

The fact is that the amendment would replace the use of criteria designed to maintain the quality of bathing and shellfish waters with an arbitrary limit which has no particular justification. Under Clause 104 of this Bill, any discharge to controlled waters without a consent from the National Rivers Authority will be illegal. Schedule 11 makes provision for the NRA to apply appropriate conditions in respect of applications for consent. I hope that that answers the question of my noble friend Lord Stanley as to where it is in the Bill. This substantially continues the present duties under the Control of Pollution Act, Part II, exercised by Her Majesty's Inspectorate of Pollution in relation to water authorities' discharges. In deciding whether to issue a consent to discharge, the NRA will need to be convinced that the quality objectives of the receiving waters will be met and, in the case of bathing and shellfish waters, that the standards set by relevant EC directives are satisfied. The length of long sea outfalls will be determined in each case on the basis of environmental studies including the effects of wind, tides and currents.

That is why I believe that the point raised by my noble friend Lady Blatch is very relevant. You can quite easily have a long sea outfall that goes for half a kilometre in 800 feet of water with a very stiff tide. There can be another one which goes for five kilometres and still be in only 10 feet of water. We are of course aware that there remains a number of unsatisfactory short outfalls discharging sometimes above the low water mark. But water authorities are now spending £100 million each year to replace these. I believe that the number of outfalls in the United Kingdom can be measured in thousands.

Thus while we have sympathy with the proposer's underlying aims, we believe that the amendment proposed is unnecessary, and should not be accepted. It is for the NRA to satisfy itself that schemes for long sea outfalls put forward by water and sewerage undertakers, meet the needs of the receiving waters and are soundly based. Legislation to impose an arbitrary standard can be no substitute for tailor-made solutions, which are required to deal with these difficult problems and which will be provided by the sewerage undertakers in accordance with the requirements of the NRA or the Secretary of State. It is a difficult matter, but I have tried to demonstrate to my noble friend Lord Stanley that it is unnecessary for him to move this amendment.

Lord Renton

Before my noble friend sits down perhaps he can tell me whether I entirely misheard him. I can hardly believe it, but did my noble friend say that there are still thousands of sea outfalls?

Lord Hesketh

As I am sure my noble friend Lord Renton is aware, many of them are very small indeed; they will just belong to single houses.

Lord Ross of Newport

Perhaps I may confirm that I am quite certain that if there are not thousands there are certainly hundreds of them and they concern more than just a few houses.

Lord Stanley of Alderley

I should like to thank noble Lords for their support. I think that all of us, including my noble friend Lord Hesketh, are on the same side; it is just a question of how we deal with the problem. Perhaps I should say to my noble friend Lady Blatch that it was a probing amendment. I put it down before I read the report in The Times about long sea outfalls, and I fully accept the point. However, in mitigation I must say I put the amendment forward bearing in mind the tides. In Anglesey, the outfalls ought to go out about 25 miles across the Channel because of our tides. However, I take the point in that connection.

So far as concerns the remarks made by the noble Lord, Lord Ross of Newport, after the debate I shall give him a cutting from The Times concerning research into the matter. As regards my noble friend Lord Renton, I must say that we often disagree. However, I could not believe my ears when he went further than I had gone. All I can say to him is that I am too timid to go that far.

I was delighted to hear that my noble friend Lord Hesketh supported the idea in principle. However, I must say that when it comes down to the nitty-gritty I am far from happy. It is really a question of where we start. Will the NRA be able to do what he says the Bill directs it to do? Will the authority, as my noble friend Lord Renton pointed out, really be able to correct thousands of these outfalls? Does it have the money? I shall be most interested to hear on Monday how the Government reply to my noble friend Lord Nugent, who is asking for more money. It is a massive task which we all agree should be tackled. With that, I think I will leave the subject, and accordingly I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 324 had been withdrawn from the Marshalled List.]

Clause 67 agreed to.

Clause 68 [Standards of performance in connection with provision of sewerage services]:

Lord McIntosh of Haringey moved Amendment No. 324A: Page 77, line 33, leave out ("may") and insert ("shall").

The noble Lord said: In moving Amendment No. 324A I should like to speak also to Amendments Nos. 324B and 324E. I should like to start by taking up the words of the noble Lord, Lord Stanley of Alderley. He referred to the massive task facing the sewerage authorities. He talked about the specific case of long sea outfalls. However, I can assure him that the problem is very much more widespread and that the amounts of money concerned are absolutely horrific.

Over many years there have been contraventions of all acceptable standards of sewage disposal. In 1977 there was a national assessment made by the study committee on sewers and water mains which concluded that the amount of investment needed even then could be measured in billions of pounds. The record of the collapse of sewers, of the flooding of houses and other areas with raw sewage and the record of river pollution caused by sewage is an appalling one.

Members of the Committee who have been reading The Times this week will have seen a graphic series of articles by Paul Vallely about the River Avon—the Warwickshire Avon. It is clear from those articles that we have not only very heavy pollution of that river—it was not chosen as being the worst by any means; it was chosen as one which was an average river—but at the same time we have the single largest polluter of that river the water authority itself. In other words, the body responsible for seeking to improve river quality is itself the largest polluter.

The National Rivers Authority, with the abolition of integrated river basin management, is intended to deal with pollution, or is intended at least to provide the framework within which that problem can be dealt with. But it will not succeed unless the resources are made available and unless the powers are made available to the regulatory bodies to secure that the new sewerage undertakings do the work that is necessary to correct many years of neglect.

It will need a huge amount of investment. The problem is that investment in sewers for the new undertakings will not be particularly lucrative. This is not the area where they will exercise their entrepreneurial or managerial talents. This will be, as it always has been, the poor cousin of any other activities that they may have. Therefore, we seek in these three amendments to secure that the Secretary of State takes action to make the regulations which are necessary in order to get the sewerage authorities to do the work that is necessary.

Amendment No. 324A deals with the power of the Secretary of State to make regulations setting out the occasions on which contraventions of sewerage standards under the Bill are to be treated as breaches of the general duty in Clause 87. What we seek to do is to make it a duty instead of a power. Amendment No. 324B refers to the power which the Secretary of State has by regulation to prescribe standards of sewerage performance. Our amendment would make it a duty and not a power.

Amendment No. 324E deals with the situation where the sewerage undertaker fails to meet a prescribed standard and has to compensate the person affected by the failure. That could be, for example, a householder whose property has been flooded by raw sewage. The Secretary of State has discretion under the Bill as drafted to provide for the payment of such amount as may be prescribed in compensation. We are saying that it should be a duty to pay compensation, because only with that duty will there be adequate incentive for the sewerage authorities to avoid, rather than simply compensate for, the damage that results, for example, from flooding by raw sewage.

I have said that sea outfalls are a special case. They deserve the condemnation of the noble Lord, Lord Renton, and the well expressed concern of the noble Lord, Lord Stanley of Alderley. However, in many parts of the country there are sewerage authorities which are simply failing to meet the minimum standards of sewage disposal required in a civilised society. The Secretary of State should have the duty not the power to see that those standards are met following privatisation.

I am familiar with and weary of, as no doubt, the Committee is weary of, the arguments about powers and duties. But the seriousness of the problem with which we are faced and with which the sewerage authorities are faced is so great that on this occasion it would be appropriate for the Government to abandon their general principle against duties for the Secretary of State, and to show their real intention to correct the years of neglect by agreeing to these three amendments. I beg to move.

10 p.m.

Lord Stanley of Alderley

I support the amendment. I have had experience of a water authority which discharged raw sewage on to my fields. I eventually went to court to stop it and all that it did was to put the raw sewage into its own stream. That is totally irresponsible. It backs up the case made by the noble Lord, Lord McIntosh. Water authorities must be stopped from doing that, which is why I feel that the Secretary of State should have such a power.

Lord Hesketh

Amendments Nos. 324A and 324B seek to replace the powers in subsections (1) and (2) of Clause 68 with duties to make regulations. Because we have covered this ground before, I shall make my points briefly. The first power is intended as the back up to powers of the director general under conditions of appointment to monitor the performance of the sewerage undertakers. Should the director be unable through informal means to secure that the overall quality of service achieved is at a level that best reflects customers' interests he may ask the Secretary of State to specify in regulations requirements which, if breached, will amount to breaches of the undertakers' general duty under Clause 67. The Secretary of State, who will be accountable to Parliament through the making of regulations, will be able to consider whether any new obligations which the regulations would impose, and for which customers would have to pay, are appropriate. His discretion to make regulations retains that accountability.

The regulations under subsection (2) are to be made under the same procedure and will prescribe standards in day-to-day relations between the sewerage undertaker and the individual which, if not met, will entitle the persons affected to payments by the undertaker—the guaranteed standards scheme. Draft regulations are currently out for consultation and as the noble Lord, Lord McIntosh, acknowledged on Monday in relation to an identical amendment on Clause 38, it is clear that the Secretary of State will make those regulations. It is nevertheless right that the Secretary of State should have discretion to decide whether further regulations should be made to supplement the scheme.

Amendment No. 324E would require those regulations to prescribe the amounts to be paid where the prescribed standards are breached. The draft regulations as the noble Lord, Lord McIntosh, knows do that. I repeat that in developing the scheme in the future it would be wrong to remove the discretion of the Secretary of State to decide whether any new obligations which fresh regulations would impose should be made. I made the same point on Monday on Clause 38, and for those reasons I ask the noble Lord, Lord McIntosh, to consider withdrawing the amendment.

Lord McIntosh of Haringey

I am puzzled by the Minister's last remark. He suggests that by replacing a power with a duty our amendments would prevent the Secretary of State from making regulations which would create new conditions and new powers. I cannot see how the amendments do that. I shall take the three in turn. First, the Secretary of State shall by regulations provide for contraventions of such requirements as may be prescribed to be treated for the purposes of this Act as breaches of that duty". The Secretary of State has the ability, as the Minister has said, to extend that provision. He is basing it on the director general's activities when acting as regulator. Nothing in my amendment stops the Secretary of State extending the scope of the regulations.

By the second amendment, "The Secretary of State" we say, "shall" and then by regulations prescribe such standards of performance in connection with the provision of sewerage services as, in his opinion, ought to be achieved in individual cases". Saying that the Secretary of State "shall" do it now does not mean that he may not do more in the future. The third example is "such regulations may" and we say "shall" and then provide that… a sewerage undertaker… shall pay such amount as may be prescribed"; in other words, compensation. Again, compensation regulations can be added to within the scope of the subsection, amended as we propose.

Will the Minister tell us why he suggests that our amendments prevent the Secretary of State making improvements to his regulations later? I do not see that point in the text.

To give the Minister an opportunity to reply, perhaps I may make the more fundamental point which lies behind the amendments; that the proposed draft regulations may well be acceptable, as the Minister suggested. I am aware of the draft regulations, their virtues and some of their drawbacks. The point that we are trying to make is that all Secretaries of State, not just this Secretary of State, must have a continuing duty to secure that the regulations exist, that they are adequate and that they meet changing conditions. Anything less than that simply will not satisfy those who are aware of the defects of our sewerage system.

I find it astonishing that the Government collectively—I am not talking about the Minister here tonight—should be so politically naive as to risk electoral unpopularity by failing to take adequate measures to secure that our sewerage system is brought, at a deliberate but not dilatory pace, up to the standards that we require at the end of the 20th century. I am happy to give the Minister an opportunity to explain why he thinks my amendments impose any limitation on the Secretary of State.

Lord Hesketh

I think that there may be an error in that remark. It is important that the noble Lord, Lord McIntosh wishes the Secretary of State to make regulations. I believe that that is quite an important point, because there is a parallel here. I remind the noble Lord that on Monday we made it clear that we foresaw this happening. He wishes to ensure that this is on the face of the Bill, but on Monday we decided that we would agree to differ on the principle of achieving the same aim. That is what I was trying to explain just now, in an inadequate way, for which I apologise.

Lord McIntosh of Haringey

I am grateful for the Minister's confirmation that my amendments do not involve any limitation on the Secretary of State. I believe that my two fundamental points are still valid, indeed the more so from the Minister's retraction of his earlier remarks. The first point is that there must be a continuing duty on all Secretaries of State. That would not be achieved by the "may" formula which is in the Bill at present. The second is that it seems to me that it is political suicide for the Government to neglect the widespread and justified concern that exists over the state of our sewers. They should not neglect an opportunity to put things right which exists and would exist and be strengthened by the acceptance of our amendments.

It is only the time of night and the thinness of the Committee that prevents me putting the matter to a vote now. I can assure the Government that it will take a high priority at a later stage of the Bill and I am convinced that noble Lords on all sides of the Committee will wish to have an opportunity to improve the standards of our sewerage services. They will not be satisfied that the Bill as drafted is adequate for that purpose. Without in any way having withdrawn the arguments for my amendments, I beg leave to withdraw Amendment No. 324A.

Amendment, by leave, withdrawn.

[Amendment No. 324B not moved.]

Lord McIntosh of Haringey moved Amendment No. 324C: Page 77, line 36, leave out ("may") and insert ("shall, before the sale of shares in any undertaker").

The noble Lord said: In moving this amendment I wish to speak also to Amendments No. 324D and 324F. I do not need to go over the ground about the inadequacies of our present sewerage arrangements. That has been adequately dealt with both by the noble Lord, Lord Stanley, and in the discussion on the previous amendment.

The Government accept that there will have to be asset management plans; in other words plans which will reveal the degree to which the assets of the sewerage undertakings—basically the sewers—will have to be managed and improved in the period following privatisation. It would not do much good if they did not agree because under the law—the Financial Services Act—the prospectus which will have to be issued for privatisation will have to include such asset management plans. It is already clear that work on these asset management plans is progressing.

We are saying with these amendments that detailed asset management plans ought to be produced before the sale of shares of any undertakers. It ought not to be left to the Financial Services Act to secure that, but we ought to secure it in this Water Bill. That is why Amendment No. 324C states that the plans have to be produced, before the sale of shares in any undertaker".

Amendment No. 324D states that the plans must be detailed. Clearly plans of a high degree of generality will neither satisfy prospective shareholders nor the customers of the sewerage undertakings. Amendment No. 324F refers to the publication of regulations and the publication of, detailed plans for the management of the assets in the area of each individual undertaker … to secure the proper carrying out of its functions in relation to the standards of performance prescribed under this section". If one takes away the language of legislation one sees that the amendment seeks to ascertain how the sewerage undertakings will invest in order to bring their sewers up to the required standards. By any standards, or by any measurement, there is a huge amount to be done. Within the Thames Water area some 13,000 homes are frequently flooded with raw sewage. In Greater Manchester, the number of sewage incidents reported every year is 36,000. There is no assurance whatsoever in any of this legislation that the necessary investment will be undertaken.

I realise it is difficult in such a complex business as sewerage to establish what the standards of performance ought to be in order to establish what investment is necessary to enable the assets to be used to bring sewerage undertakings up to standard. However, I can suggest a way that may be undertaken. Items which should be included are: flood protection from both foul and surface water; the structural condition of the sewers; river water quality; the safety of the system; the standard of maintenance of the system; and the efficiency of the system. We can envisage how standards ought to be maintained and how target standards could be established. If we consider flooding as a result of storms for example, we could provide that all properties should be protected against foul flooding in storms of a frequency of less than one in 10 years. That refers to the degree of severity of the storms. However, that does not happen at the moment.

Under Welsh Water at the moment, capital can be spent if there is a risk of flooding from storms of a frequency of one in 50 years. However, under Severn Trent capital can be spent if there is a risk of flooding as a result of storms with a frequency of once in one year. This degree of variation between one water undertaking and another is simply unacceptable. There ought to be definitions of levels of service and definitions of targets, so that by 1995, for example, the number of properties failing to meet the standards, and therefore affected by flooding, would be reduced to half of 1 per cent. There should be a trigger whereby, when conditions reach so bad a level, immediate remedial action is taken. There should also be levels of upgrading.

All of those provisions are perfectly proper, normal and standard business decisions. They are decisions that a private business should be taking if it is going to exercise its responsibilities adequately. At the moment adequate assurance has not been given that the Government appreciate the need after privatisation to regulate the sewerage business in the same way as the drinking water business will have to be regulated. There is so much to be done. However, the Government do not appreciate the need for proper business planning in the sewerage area to secure that what needs to be done is done.

This, again, is matter of the utmost seriousness. It may not be a matter which gains the headlines, but for those who are affected by it it is of very great importance. The privatisation proposals and this Bill will be desperately flawed unless something more is done than is proposed here. I beg to move.

10.15 p.m.

Lord Hesketh

Amendment No. 324C would require the regulations under subsection (2) to be made before the sale of shares in any undertaker. Amendment No. 324D would require the same regulations to prescribe detailed standards. Amendment No.324F would insert a new subsection (2A) in Clause 68 requiring the publication of any regulations under subsection (2) to be accompanied by such plans for the management of the undertakers' assets as the Secretary of State considers appropriate in connection with standards of performance prescribed under this clause.

It is important that the Secretary of State should have discretion to add to the guaranteed standards scheme in order that it can be expanded as appropriate. Although we intend that the scheme should be in place before flotation, we wish to retain the Secretary of State's discretion to add to it afterwards. We have yet to be accused that the standards in the guaranteed standards scheme are expressed too generally. Nevertheless, it would be wrong to prescribe for over-regulation in day-to-day commercial practice, which might be the implication of Amendment No. 324D.

Condition K of the model instrument of appointment requires the sewerage undertaker to adopt a system of underground asset management plans which can be independently assessed and reported on to the Director General of Water Services. We do not believe that the task of the director should be to second-guess management. The existence of underground asset management plans will nevertheless provide an important safeguard against neglect of underground asset networks, where time-scales for investment are long and the impact on quality of service is gradual. Elsewhere we believe that the specific safeguards we have provided about the quality of service and quality of environmental performance form the right framework within which it can remain the companies' responsibility to manage their businesses. Regulations under Clause 68 do not need to be accompanied by detailed plans. Indeed, it is the consequences of failure to plan on some specific aspect which might lead to further regulations being made under subsection (2).

For those reasons, we believe that these amendments should be resisted.

Lord McIntosh of Haringey

I am sorry that the Minister seems to be falling into the same trap as he fell into before. He asserts now, as he asserted in connection with the last group of amendments, that the amendments inhibit the Secretary of State from making further regulations or detailed plans later. That is not the case. He should not have repeated the same claim as he made before and had to withdraw.

There is nothing in these amendments which stops the Secretary of State from making or altering such regulations later. We say that the Secretary of State has to make plans before the offer of shares for sale. That is agreed. The law requires it; the prospectus will have to say it. The interests of both the shareholders and the users of sewerage services—all of us—surely require that those plans should be sufficiently detailed for customers of sewerage undertakings to know whether they are at risk and what is being done.

Many people are at risk from defects in our sewerage system. So much has to be done that a degree of open government is an essential part of this legislation. The matter has been neglected for many years because there has not been adequate legislation on the subject. At a time when the transfer of ownership of sewerage undertakings into the private sector is taking place it is inexcusable that the Government should not take the opportunity to seek to reassure the British public, not that things are right—because they are not—but that something effective is going to be done about it.

As with the previous amendment, it is only because of the lateness of the hour and not because I am convinced by the answers given to me or convinced that the matter is not as serious as I believe it to be that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 324D to 324F not moved.]

Lord Graham of Edmonton moved Amendment No. 324G: Page 77, line 41, at end insert— ("(2A) No regulations shall be made under this section unless the Secretary of State has first consulted those associations of local authorities whose members include authorities acting as a sewerage agent. (2B) The Secretary of State shall send a copy of any regulations to each local authority acting as a sewerage agent at the date of passing of this Act").

The noble Lord said: This amendment is tabled in the name of my noble friend Lord McIntosh of Haringey.

Lord Renton

Noble Lords will see that the next amendment on the Marshalled List is also an amendment to add words at the end of line 41 of page 77. I think that, logically speaking, that amendment ought to be considered—although it is not in the order to do so—before the amendment about to be moved by the noble Lord, Lord Graham of Edmonton. I say that for this reason: my amendment deals with an extension of the power to make regulations. His amendment deals with general matters covering all types of regulation and therefore would come naturally at the end of the clause, rather than in a subsection preceding mine. However, I am entirely in the hands of the Committee in this matter.

Lord Graham of Edmonton

If it is the wish of the Committee, I shall proceed as quickly as possible. I understand what the noble Lord has said, but Amendment No. 324G seeks to involve the views of local authorities earlier rather than later in the regulation-making processes.

Local authorities operate the full sewerage function for 92.5 per cent. of the population and a great reservoir of expertise and local knowledge lies in the engineering departments of local authorities. They are responsible for such functions as computer simulation of sewer networks, hydraulic analysis, structural assessments, drainage area planning, detailed design work, specification and contract management. Local authorities are the primary contact for consumers who experience problems with drains and sewers. When foul smells arise, holes appear in the road, streams are full of sewage and houses are flooded, consumers bring their fears, anxieties and complaints to their town hall as they have done for 100 years and as they will do for the next 100 years, regardless of privatisation.

The interests of consumers need to be carefully protected as sewerage services are taken out of public accountability and into private monopoly ownership. The setting of adequate performance standards is a vital part of that protection of consumer interests. But, if the acknowledged experts are not consulted, there can be little public confidence in the resulting performance standards. There will be grave doubts as to whether the controls are adequate. There will be serious concern that present standards will fall and that consumers will receive an inferior level of service.

The Under-Secretary of State has given personal assurances, but those are not sufficient guarantee. In Standing Committee, he assured us that it was his intention to consult on the draft regulations in March and April and that local authorities would be consulted through the usual procedures. Perhaps the noble Lord can tell us whether those consultations have taken place and what stage they have reached.

We believe that it is totally irresponsible if the Minister does not adequately take into account the judgment of those who have the most experience of the sewerage system and the closest contact with the consumer. The whole purpose of standards of performance is to ensure that the consumer receives a satisfactory service. The adequacy of performance standards can be guaranteed only if proper consultation with local authorities becomes a minimum legal requirement and, as such, is written into the Bill. I beg to move.

Lord Hesketh

Amendment No. 324G would require the local authorities in connection with their role as sewerage agents to be consulted before regulations under subsection (2) are made and copies of the regulations to be sent to the sewerage agents. The fact is that the functional responsibilities lie with the undertakers themselves. Furthermore, regulations may relate to matters which are in no way reflected in the role of the sewerage agents or to specific areas in which there may be no agency.

However, as the noble Lord, Lord Graham, has pointed out with reference to my honourable friend the Under-Secretary of State in another place, I should now make absolutely clear that local authority associations are currently being consulted on those draft regulations. It is for that reason that I hope the noble Lord will feel able to withdraw the amendment.

Lord Graham of Edmonton

One cannot have fairer than that. In effect in this instance we are being asked to do what is already being done at the present moment. I shall read carefully what the Minister has said and have consultations outside to see whether this is satisfactory. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Renton moved Amendment No. 324H: Page 77, line 41, at end insert— ( ) Without prejudice to the generality of the power conferred by subsection (2) above, or to any right which any person may have by virtue of any other section of this Act or any other Act to bring proceedings in respect of any such right, the Secretary of State may, by regulation, require a sewerage undertaker to pay such amount as may be prescribed to any person affected by flooding of a prescribed description, from any public sewers provided by that sewerage undertaker under the duties imposed by section 67 above.".

The noble Lord said: This is a probing amendment and the Committee will see that it is a starred amendment which I very rarely agree to table.

However, the National Consumer Council late yesterday afternoon sent me a request to table this amendment. It had to be tabled by 6.30 and I was engaged on other proceedings on the Bill so I had to table it without having the time to consider ways in which it might be improved. I must say that had I had that time, this amendment would have been differently drafted.

The purpose of the amendment is to ensure that when the Secretary of State makes the regulations that he is empowered to make under Clause 65, which are primarily regulations governing standards of performance in connection with the provision of sewerage services, he should be given power—it is not an obligation but only a power—to make regulations requiring the sewerage undertaker who allows or causes foul water from the public sewer to damage somebody's land or house or other interest to pay compensation under those regulations whatever other rights the person concerned might have.

I ask the Committee to bear in mind that under this Bill there are all kinds of ways—in fact there are nine different provisions—for seeking redress under Part II of the Act alone. I shall not enumerate them all, although I have details with me should anyone press me to give them. They are really very numerous. However, strangely enough there is no right of redress granted for the overflow from the public sewer of foul water or sewage. Therefore one feels that this is something which ought to be covered if we are covering all those other matters.

I should disclose that the National Consumer Council have had a meeting with my honourable friend Mr. Michael Howard, QC, MP, who gave the matter careful consideration but concluded that the power should not be given in the form of statutory compensation for foul flooding independent of negligence. He said that it should not be done because of the difficulty of making a provision which is worthwhile to the consumer and yet fair to the undertaker. He said: As you will appreciate, foul flooding often occurs for reasons outside the reasonable control of the undertaker". That may well be so, but he ought to have a very strong obligation to control the matter. That is my first point.

My second point is this. There are other causes within his control. When the cause of the flooding is within his control, and the flooding causes foul water to run over somebody else's property, there should be a liability to compensate irrespective of negligence and irrespective of other opportunities of redress which the person affected may have.

As I say, at this stage this is a probing amendment. It is simply a question of whether power should be given to the Secretary of State to make regulations to require such compensation to be paid. In order to give my noble friend a little more time to consider the matter—as I can see that he is doing at present—perhaps I may just point out that there are quite useful provisions in the Bill—indeed, some of them are in this clause—requiring performance targets and measurement schemes with regard to sewers. They would be a performance indicator. But that does nothing to compensate the individual consumers who are affected when there is failure. It simply serves to measure in percentage terms whether or not the undertaker has met the target. I think we ought to do something about that. I beg to move.

10.30 p.m.

Lord McIntosh of Haringey

This amendment, even though it has been put forward as a probing amendment, relates very clearly to the amendments that I have already moved. The question of whether one can have adequate asset management plans that set adequate targets is crucial to the argument that the noble Lord, Lord Renton, is putting forward.

I have argued that one can. I have argued that it is possible to set standards and targets, and that if those standards and targets are not met the sewerage authority would be at fault and the redress to which the noble Lord refers ought to be made available. It is also relevant to the discussion that has already taken place because this amendment—even though it may be defective in drafting terms—secures that the Secretary of State has this continuing duty to ensure that matters are put right. If there is redress there is an incentive to the undertaker to put things right and to avoid the necessity for neglect. The continuing duty is an essential part of the argument that is taking place over this Bill.

With all the reservations that the noble Lord, Lord Renton, has about his own amendments, I know that his argument is in the right direction. Even if he has to withdraw his amendment now, I hope that together we may reach agreement on a better way to protect the consumer when we return to this Bill at a later stage.

Lord Hesketh

Amendment No. 324H seeks to ensure that the regulations to be prescribed under subsection (2) will include foul flooding and that such inclusion in these regulations would be without prejudice to an individual's right to take action under any other part of this Bill.

It would be quite wrong to include foul flooding in the guaranteed standards scheme. Compensation of £5 would be quite inadequate in relation to the loss or damage sustained in some cases as a result of foul flooding. Furthermore, foul flooding will not necessarily affect people as customers. It could be, and often is, caused by acts of negligence by neighbours; for example, when they block their sewers with unsuitable material, causing backing up and flooding.

I emphasise that quite separate from the guaranteed standards scheme foul flooding will be one of the mandatory service standards, and the director general will be able to act under his parallel powers to specify in regulations standards for improvement, enforceable if necessary.

Liability of the undertakers for foul flooding from sewers is a complicated area of law which has been described by the courts as a rough sea of contradictory authority. In general, if a sewage undertaker were negligent in the operation of its sewers and that caused foul flooding and consequent damage, the persons who suffered damage would be able to bring an action for negligence against the undertaker.

Finally, the industry listens sympathetically to claims consequent upon incidents of foul flooding and operates a scheme of ex-gratia payments. I hope that my noble friend Lord Renton will be prepared to withdraw his amendment.

Lord Renton

I am grateful for that interesting comment on the situation. We shall naturally wish to consider it. I would hope, however, that this rough sea of contradictory decisions by the courts is something which we could smooth out by one simple provision in this statute. It would be a splendid thing if we could.

Lord McIntosh of Haringey

Perhaps it could be achieved by pouring macerated sewage over troubled waters?

Lord Renton

If I may say so, that frivolous comment is a little bit beside the point. However, I am grateful to my noble friend. I shall further consider the matter, as I am sure he will, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 325 and 326 had been withdrawn from the Marshalled List.]

Lord Graham of Edmonton moved Amendment No. 326A: Page 78, line 6, at end insert— ("(cc) make provision for the satisfactory carrying out of rodent baiting").

The noble Lord said: We are seeking here to add to the clause which deals with the standards of performance. In other words, we are trying to lay down duties which ought to be carried out. It is perfectly clear and bald and well-understood. We seek to lay down a duty to make provision for satisfactory rodent baiting. I know that the Committee will understand that this is not only a serious matter, but that it is raised with serious intent.

Local authorities responsible for rodent control programmes are becoming increasingly concerned. The disturbing result of a survey conducted earlier this year by the Association of Metropolitan Authorities revealed significant underfunding by the regional water authorities for the work of sewer baiting.

In the interests of the nation's health and safety it is becoming more and more evident that the provisions of the Water Bill must include standards of performance relating to sewer baiting to combat and control an already significant nuisance from becoming completely out of hand.

Local councils undertake a regular annual programme of rodent control in sewers. This assists in decreasing the rat population in sewers, thereby reducing both health risks to workers and deterioration of pipework caused by rat activity. The adequate control of rats underground ensures a decrease in surface infestations.

A number of disturbing pieces of evidence have been revealed in the survey undertaken by the AMA. In Manchester for example, the number of surface infestations has doubled in the past six years. Wakefield's rodent problem doubled in 1988 compared with the previous year. Newcastle has seen a 50 per cent. increase during the period 1986–88, while the local authorities of Dudley, Wigan, Barnsley and Barnet have experienced about a 30 per cent. increase on the previous year's figure.

There are several reasons for the increased activity, including a reduced sewer baiting programme; the relatively mild weather over the previous two winters; sewer and drain defects which provide convenient exit points for rats; and an increased food supply both in sewers and on the surface, due largely to an increase in takeaway food shops leading to the increasing disposal of unwanted food on city streets.

The Committee and the Minister will be aware of the prevalence of Weil's disease or leptospirosis. It is an organism which is passed through rats' urine. The disease is painful and debilitating in humans. I have been told that over the past 10 years there have been 444 cases of Weil's disease leading to nine deaths. It is generally accepted that across the country there are as many rats as people; a staggering 50 million rats living in our sewers. In Manchester there are roughly 80,000 manholes of which about 35 per cent. are known to be infested by rats. There is sufficent funding to bait only about 12,000 a year. On that basis it could take as long as seven years to bait the entire manhole complex.

The local authorities in Harrow and Waltham Forest comment that Thames Water Authority has reduced its budgets for funding sewer baiting. Indeed, the latter authority accused Thames Water Authority of reducing funding to an all time low. Yorkshire Water Authority has asked Wakefield for cuts in its costs, although in 1988 the local authority had few problems in obtaining finance. The same water authority has queried the cost of sewer baiting in Barnsley. In Newcastle, where approximately 40 per cent. of the city-centre manholes are infested, a request to the Northumbrian Water Authority for increased funds has also been rejected.

I am aware that the Minister will be in possession of the same facts. We are concerned that not only is this a terrible position which may or may not be tackled energetically, but it is an appalling position which ought to be approached head on. We believe it is essential that in order to protect the public the Water Bill has encompassed within it provisions such as rodent control programmes and adequate frequencies of baiting as laid down by MAFF in its guidelines. We believe that they should be part and parcel of specific standards of performance to be expected of all sewerage undertakings.

I know that the Minister understands that this is a serious matter. However, it is a simple matter to lay down the duty without which we believe the position will become even worse. I beg to move.

Lord Hesketh

Amendment No. 326A would impose on sewerage undertakers the duty to carry out rodent control within sewers. It would effectively remove this obligation from local authority environmental health departments which are responsible under Section 2 of the Prevention of Damage by Pests Act 1949 for keeping their areas—including sewers—free from rats and mice. The present water authorities (or local authorities acting as their agents) take steps in line with their general health and safety responsibilities to control rats in their sewers but have no specific duty to do so.

Clause 68 provides for broad standards of performance in the provision of sewerage services. It would be inappropriate to insert a specific duty within a general clause of this nature. Clause 67 already imposes the duty to provide a clean and well maintained sewerage system. The successor companies will be in line with the present water authorities in this respect.

It is undeniable that numbers of rats have increased following two fairly mild winters. When not in your Lordships' House I live in the country and I can assure Members that the increase in the numbers of rats in the country is the same as that in the towns as mentioned by the noble Lord. However, there is no evidence either that poor control within sewers has contributed to this, or that an overall improvement would be brought about by a simple transfer of responsibility from local authorities to sewerage undertakers. Water authorities are already subject to the local authority public health functions, and the private water companies will be in exactly the same position.

The noble Lord, Lord Graham, expressed a worry about costs. The answer is that local authorities will have power to take enforcement action and so ensure that any costs fall upon the company.

The last point which the noble Lord mentioned was Weil's disease. I am informed that one of the problems about the increase in Weil's disease is the fact that the vast increase in aquatic sport is also a contributor.

For the reasons that I have mentioned I hope that the noble Lord, Lord Graham, will be able to withdraw his amendment.

10.45 p.m.

Lord Graham of Edmonton

As regards aquatic sports, I remember reading my brief, and the prevalence of the disease in canoeists was drawn to my attention. Of course, in pursuing their sport they have in the main their mouth, nose and eyes exposed to river water. If that becomes polluted, contaminated, poisoned by urine, they are at greater risk.

The last thing I would do is accuse the Minister of complacency. However, in effect he is saying that there is no need to lay a more stringent duty upon the new undertakers than the range of duties which are already laid down. That is done in the face of the tremendous increase in rats. The Minister said, as I had already said, that it is recognised that that is partly due to the mild winter. He decried my point that it is also partly due to the reduction in resources made available by the water authorities to their agents, the local authorities. How does the Minister square up to the information that the local authorities have given to the Association of Metropolitan Authorities that they asked for the resources but did not receive them? The Minister says that they will have power to do certain things. Does he not understand that having that power and having to go through procedures to obtain the money can be time-consuming and expensive?

I believe that the Minister is sloughing off some responsibility, not for carrying out something but for ensuring that other people do so. He treats the undertakers with a very light hand in respect of functions which are in the interests of the public. I believe that the more the public understand the attitude of the Government in these matters—to make the lightest load possible for the undertakers—the more they will understand that their health is being put even more at risk by that attitude. However, I do not believe that I shall make any further progress this evening and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 326B not moved.]

[Amendments Nos. 327 and 328 had been withdrawn from the Marshalled List.]

Clause 68 agreed to.

Clause 69 agreed to.

Lord Hesketh moved Amendment No. 328ZA: After Clause 69, Insert the following new clause: ("Allocation of cross boundary sewers. —(1) For the purposes of any scheme under Schedule 2 to this Act, so much of any sewer as is vested in a water authority immediately before the transfer date but is—

  1. (a) situated in the area of another water authority; and
  2. (b) maintained for the purpose of draining premises in that area,
shall be deemed to have vested in the other water authority before the coming into force of that scheme. (2) Where any part of a water authority's sewer is deemed by virtue of this section to have vested in another water authority, anything, which—
  1. (a) has been done by or in relation to the first-mentioned authority for any purposes connected with that part of that sewer; and
  2. (b) is in force or effective immediately before the transfer date,
shall have effect for the purposes of any transitional provision contained in this Act as if it had been done by or in relation to that other authority. (3) Where any part of a sewer is vested in any sewerage undertaker by virtue of this section, the terms on which that part of that sewer—
  1. (a) communicates with such parts of that sewer or of any other sewer; or
  2. (b) discharges into any such sewage disposal works,
as immediately before the transfer date were vested in the same water authority as that part of that sewer but, by virtue of this section, are vested in another sewerage undertaker shall be determined, in default of agreement, by the Director. (4) A determination by the Director under this section shall have effect as an agreement between the sewerage undertakers in question but may be varied or revoked by a subsequent determination made by the Director on the application of either of those undertakers, as well as by agreement between the undertakers. (5) In making a determination under this section, the Director shall have regard to the desirability of a sewerage undertaker's recovering the costs resulting from its allowing the sewers of other sewerage undertakers to communicate with its sewers or to discharge into its sewage disposal works and of securing a reasonable return on its capital.").

The noble Lord said: The effect of Amendment No. 328ZA is to insert a new clause after Clause 69. The new clause provides for sewers owned by one water authority but situated in a second water authority's area and draining premises in that area to vest in that second water authority, before any scheme under Schedule 2 which will transfer property to successor bodies takes effect. Thus sewerage undertakers will own the public sewers situated in their areas and draining premises in their areas, even though they cross the boundary into another undertaker's area, where treatment and disposal of sewage from the sewer will take place.

All relevant actions that have taken place with respect to such sewers will be deemed under subsection (2) to have effect as though done in respect of the new owner of the sewers. For example, notices served on the first water authority, the present owner, will be deemed to have been served on the second authority, the new owner.

In case the authorities or their successor companies cannot agree on the terms on which the sewers vested by the Bill should be allowed to drain into the rest of the system, the Director General of Water Services is given power under subsection (3) to determine the terms. Subsection (4) provides for variation of agreements where the director has made a determination. Subsection (5) gives the director guidance on the costs to be recovered under such agreements. Similar guidance is given in other places in the Bill; for example, in Clause 30 concerning agreements about bulk supplies of water given by one water undertaker to another. I beg to move.

On Question, amendment agreed to.

Schedule 8 [Sewerage Functions]:

Lord Ross of Newport moved Amendment No. 328A: Page 209, line 1, at beginning insert— ("(1A) In section 19 of the 1936 Act (power to require sewer or drain to be constructed so as to form part of the general system), before subsection (1) there shall be inserted the following new subsection—

The noble Lord said: I congratulate the noble Lord, Lord Hesketh, on beating my record by speaking at about 300 words a minute on the last amendment. His speed was rather like one of his motorcycles. In this amendment we, like the Government, seek to write a further subsection into the Public Health Act 1936. That piece of legislation must have been a major advance when it went on to the statute book because it survives. It was a forward-looking measure when introduced.

I have to say, however, that the local authorities are extremely disappointed that the Government have chosen not to bring forward as part of the Bill long awaited reforms of law on water and sewerage, particularly in respect of sewer adoption. I apologise to the Minister for jumping the gun with my story earlier. I should have referred to it on this amendment. I shall not repeat it.

The Department of the Environment's own review of water and sewerage law, published as a consultation paper in March 1986, contained many sensible proposals for tidying up the law. It is difficult to understand therefore why the Government have changed their mind and now believe that such reform cannot be carried out. The Government's response has been merely to write to the Law Society asking its members to make clear to clients who are thinking of buying a house that it is important to ascertain the ownership and state of the sewers and to be aware of the financial liabilities involved if the sewers have not been adopted.

Frankly, last year, when everyone was being gazumped almost daily, people ignored that aspect because they were worried about losing a property. No doubt some advice was given but not seriously taken on board. Many people will be suffering as a result.

The Association of District Councils supported a new clause proposed in Standing Committee in the other place by Mr. Christopher Butler. This would have required the water companies to adopt retrospectively all sewers, regardless of size and current state of repair. However, the local authorities were somewhat unhappy with the amendment when they knew that it would be extremely expensive and would not solve the basic problem of ensuring that all sewers were constructed to an adoptable standard in the first place. That was the reason behind my earlier intervention when I referred to a housing estate in my former constituency.

The simple amendment before us is similar to the Department of the Environment's own proposals in its 1986 document. Among other things, that document said: The Government…proposes that drains lying in streets or in land laid out for use as streets, and all new sewers should be required to be constructed to a specified standard and (except for private sewerage systems…) rest automatically in the water authorities on completion".

I beg to move.

Lord Hesketh

The proposal to construct sewers to specified standards with a view to their automatic adoption was discussed in the 1986 consultation paper on the review of water and sewerage law. We looked very closely at this question following the review in the light of the comments received. Our aim was to develop a procedure for the automatic adoption of all newly constructed sewers which gave undertakers the opportunity to resist adoption of sewers which had been inadequately constructed or were unnecessarily expensive to maintain while protecting developers from the imposition of unreasonable standards by the undertakers. Such a procedure would have to provide for both these requirements without subjecting developers to costly delays in starting work on site. After lengthy consideration and further consultation with interested parties we concluded that the proposal could not be implemented in a way that would be fair and would meet the reasonable requirements of both parties.

We are, however, doing what is practicable to facilitate the adoption of new sewers by preserving and extending the present arrangements under Section 18 of the Public Health Act 1936 which provide for a water authority to enter into an agreement with a developer to adopt a sewer on completion. Paragraph 2 of Schedule 8 to the Bill provides for a new right of appeal to the Secretary of State against unreasonable refusal by a sewerage undertaker to enter into a Section 18 adoption agreement or against the imposition of unreasonable conditions. This should help to overcome one of the main drawbacks of the present system as perceived by developers and make them much more willing to enter into agreements with undertakers to secure the adoption of sewers under Section 18.

I recognise and share the concern that has been expressed about the need to ensure that all sewers are constructed to a high standard. I hope Members of the Committee will accept the reasons why we are unable to support a move to make sewerage undertakers the final arbiter on standards. I believe that the right of appeal which we have introduced into the present adoption arrangements is as far as it is practicable to go in the circumstances. This is, however, an important change and I am confident that it will facilitate the greater adoption of new sewers. I therefore urge the noble Lord to withdraw his amendment.

Lord Ross of Newport

I agree that the Government have gone part of the way, but it is a great pity that they did not stick to their original intentions particularly at a time when the property market was boiling over. The truth of the matter is that we should not bend over backwards to developers because they should do the job properly in the first place. The same applies to sewers, water supplies and roads. We are suffering from so many unmade roads in this country which, on frontages, will cost so much to put in order, that it just will not happen. I believe that the same has happened as regards some of the private sewers that have been constructed in recent years. It is sad and in the end it leads to untold problems which generally finish up on MPs' desks. The Government are going some way and I do not intend to press the amendment at this time. It is a pity that they did not stick to their original purposes in 1986. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 328B not moved.]

Lord Hesketh moved Amendment No. 328C: Page 209, line 23, leave out ("For subsection (2) of section 34 of the 1936 Act") and insert ("In section 34 of the 1936 Act (right of owners and occupiers to drain into public sewers)—

  1. (a) in subsection (1), for the words from "or the owner" to "thereby" there shall be substituted the words "in the area of a sewerage undertaker or the owner of any private sewer draining premises in the area of such an undertaker shall be entitled to have his drains or sewer communicate with the public sewers of that undertaker and thereby"; and
  2. (b) for subsection (2)").

On Question, amendment agreed to.

The Earl of Shannon moved Amendment No. 329: Page 210, line 25, leave out sub-paragraph (c) and insert—

The noble Earl said: Again, this is a subject that I mentioned at Second Reading. This amendment addresses industry's main point of concern in this Bill. It is a matter of principle that one private company shall not have the right of criminal prosecution over another. Therefore after privatisation it will no longer be appropriate for breaches of consent conditions to discharge into sewers to be dealt with under the criminal law. That would only apply in cases where other offences are involved, such as protecting workers under the health and safety legislation or protecting the environment under Schedule 9 of this Bill.

I am therefore proposing that as regards all discharges to sewers—namely, those that are not covered by specific legislation addressing the control of dangerous substances—the conditions of discharge should be covered by a commercial contract between the water supply plc and the discharger. Discharges of dangerous substances will continue to be consented to by the appropriate control authority. I intend to advance two good business reasons, among others, for objection to this part of the Bill that places one private company in a position criminally to prosecute another company.

The newly privatised water companies may well wish to diversify their activities into other areas. For example, they may move into the brewing industry. If we were to give them powers to set standards for discharges to sewers and then criminally to prosecute their customers if these standards were breached, that could give the privatised company a distinct and unfair commercial advantage over its competitors. The ability to threaten or prosecute may also give advantage when buying into a market; or it may allow a company to detract from the good image of its competitors. Alternatively, using its own peculiar expertise, the water company may wish to enter the pollution abatement equipment market. It would be far more attractive to a trade effluent discharger to buy from this utility rather than from its competitors because of the added security (which may or may not be the case) of being able to quote that the prosecutor was the company which supplied the equipment which was used and which failed.

There is another and more fundamental objection to this situation. Here I must refer Members of the Committee back to an earlier sitting of this Committee and discussions in relation to a proposed amendment (Amendment No. 4) which was moved by the noble Lord, Lord McIntosh of Haringey. One of the arguments against the control functions of the National Rivers Authority being contracted out to the water service companies was that it would be completely unreasonable to expect an employee within a company to be in a position of instigating a criminal prosecution against another employee in the same company.

In the case of the proposals contained in this Bill which cover trade effluents discharged to sewers, such a situation is even more likely to arise, especially if the water supply plcs seek to diversify into other areas of business. During the Bill's passage the Government have repeatedly emphasised their view on the matter. The Secretary of State for the Environment said on Second Reading in another place that those responsible for treatment and disposal of sewage effluent should not also have the task of regulating pollution and prosecuting their own customers.

The creation of the National Rivers Authority removes that problem so far as concerns direct discharges of industrial effluent. However, direct discharges are very much in the minority. As the Bill stands at present, the privatised water undertakings will still have the power of criminal prosecution over the vast majority of their own industrial customers; that is, those which discharge trade effluent to sewers. As I mentioned previously, this will in total be nearly 30,000 companies.

The Minister may not like the actual wording of the amendment; it may be shown to be defective or to have undesirable side effects. However, the principle that one commercial company should be in a position to threaten or take criminal proceedings against another is not acceptable in any form and must be removed from the Bill. Criminal charges should be brought by authorities, not by companies. I beg to move.

Lord Hesketh

At present discharge of trade effluent without the consent of the water authority, or in breach of the terms of its consent, is an offence. It has been argued that because in future the sewerage undertaker will be a privately owned company it is wrong in principle for the undertaker to be able to determine what shall constitute an offence on the part of another company, and wrong for one company to be able to prosecute another. I recognise the instincts which might lead one towards those conclusions and I will therefore try to explain with some care why we attach importance to the present provision in Schedule 8.

The terms on which trade effluents are accepted or there is refusal by the sewerage undertaker to accept trade effluent are subject to appeal to the director general. The result of those rights of appeal is to remove any arbitrary ability of the undertaker to pick and choose customers, or to impose unreasonable conditions. Essentially, if it is reasonable for the discharge to be made it will be accepted and on reasonable terms.

There can be no excuse for discharging trade effluents without obtaining a consent. It is important to establish whether the sewerage system can cope with such effluents in advance. Where consent has to be refused, or made conditional, or where consent has not been obtained, depending upon the nature of the effluent and the amounts, it is possible that non-complying discharges may potentially cause pollution of watercourses, overloading of sewers, which could cause them in time to collapse, and health or safety risks to employees or the public. These are matters of legitimate public concern, not simply the commercial interests of the undertaker. Consent to discharge trade effluents should always be obtained, and to fail to do so should remain an offence.

The legislation does not specify who should prosecute offences. In the case of discharges of dangerous substances, Her Majesty's Inspectorate of Pollution would be able to prosecute. Similarly, in cases leading to pollution of watercourses, the National Rivers Authority might undertake prosecutions. However, there is no reason why in principle the sewerage undertaker should not prosecute. Department stores may prosecute thieves. Any user of a river, including fishing interests or other companies, might indeed prosecute a sewerage undertaker which breached its own discharge consents. In our view, it would be perverse to prevent the undertaker from being able to make prosecutions. For those reasons I hope that the noble Earl will be able to withdraw his amendment.

The Earl of Shannon

I thank the noble Lord for his response, but I am afraid that I cannot agree. One example he gave was that a shopkeeper may prosecute a thief. Here we are talking about industrial companies prosecuting each other. It just does not make sense. The noble Lord said that the pollution inspectorate could prosecute. That is perfectly correct. It is an authority. The National Rivers Authority could prosecute. That is perfectly correct. But if one company is in the position of being prosecuted by another company criminally, this has very undesirable effects. I gave three examples. It cannot possibly be allowed. Authorities prosecute. Private companies have contractual arrangements between themselves and breach of contract leads to action for damages. But private companies do not undertake criminal prosecutions against another. I am sure that when the Minister considers the matter again, he will concede that there is a serious point here.

Lord Hesketh

I can give an example of three. Associated British Ports, Sealink Ltd. and the Felixstowe Dock and Railway Company can all prosecute.

The Earl of Shannon

Do they prosecute their customers? Do they gain commercial advantage with their customers because they are in a position to prosecute?

Lord Hesketh

The purpose of this power is not to gain commercial advantage; nor do I suspect that the companies that I mentioned do. The noble Earl derides the example of the shop, but I also pointed to the example of a company which owns a fishing interest and which would be entirely entitled to prosecute a sewerage undertaker, if there was a discharge into a river. We are talking about ensuring that the system works. The only way to do that is if the undertaker is able to prosecute in the event that there is a discharge of effluents or anything else which has been done without a licence.

The Earl of Shannon

You already have a director general, a National Rivers Authority and the pollution inspectorate—three very good authorities—which could prosecute. Why then give this ability to indulge in criminal prosecution of a commercial company? It clearly does not make sense. I am sure that the Minister wishes to think it over. Certainly, I will. At this stage, reserving the right to return to the matter, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 330 and 331 had been withdrawn from the Marshalled List.]

The Earl of Shannon moved Amendment No. 332: Page 210, line 50, leave out ("Director") and insert ("Secretary of State").

The noble Earl said: This amendment also relates to a point that I raised on Second Reading. It is designed to ensure that the Secretary of State, rather than the director general, continues to be the person to whom all appeals relating to trade effluent consents are made. Almost invariably, appeals on trade effluent matters will predominantly relate to issues which are in essence of a technical nature and more relevant to the functions of the rivers authority or the pollution inspectorate than to those of the director general. The Secretary of State has in the past always been the arbiter for such appeals and there seems to be little or no justification for a change.

In the unlikely event that the Government do not see and accept the logic of the amendment, I seek an assurance that the director general, when hearing any dispute over trade effluent matters, will be under a clear obligation to consult the appropriate technical bodies, such as the pollution inspectorate, to ensure that all the relevant issues are brought to his attention before he reaches his decision. I beg to move.

Lord Hesketh

One of the main effects of paragraphs 3 to 5 of Schedule 8 upon existing legislation concerning discharge of trade effluents is to give the director general responsibility for determining appeals concerning trade effluent consents in place of the Secretary of State. Paragraph 3 amends the Public Health (Drainage of Trade Premises) Act 1937 in that way.

Subparagraph (3) of paragraph 3 clarified the fact that there is no right of appeal to the director concerning charges in cases where charges are fixed under a charges scheme under Clause 75. The intention of Amendment No. 332 may be to give the responsibility of determining appeals with respect to non-standard charges—that is, those not included in a charges scheme—to the Secretary of State, rather than the director. In order to achieve that, subparagraph (2) would also need amendment.

We are not sympathetic to the presumed intention of the amendment. The director has a duty under Clause 7 to ensure that the interest of customers and potential customers are protected with respect to charges and to ensure that there is no undue discrimination. The director is therefore in the best position to hear appeals on charging issues related to trade effluent consents and because of his wide ranging information-gathering powers will be able to take any appropriate technical advice he considers necessary, which is why I urge resistance to the amendment.

The Earl of Shannon

I thank the Minister for his reply. I hope that the director general will realise that he should have technical advice. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Shannon moved Amendment No. 333: Page 211, line 12, leave out sub-paragraph (5).

The noble Earl said: This is another matter of which I gave notice on Second Reading that I should be moving at this stage. Contracts between a sewerage undertaker and its customers should be regarded as commercially confidential. In some instances, particularly in the chemical and pharmaceutical industries and many other sectors, information about the content of a company's effluent discharge would be of commercial interest to that company's competitors.

The only information which it would be appropriate to place on a public register would be that relating to discharges of dangerous substances (controlled under Schedule 9). It will be the limits set by the pollution inspectorate to control "Red List" discharges and those discharges which go direct to rivers which are of interest to the public.

An arrangement whereby a discharger discharges into the sewer and that input to the sewage works is then treated is a matter of confidence between the discharger and the treatment plant or the sewerage undertaker. The public is not concerned until that discharge, after treatment, goes to the outside world. There is no reason to give a "green" busybody with time on his hands and nothing else to do the opportunity to start indulging in vexatious litigation or anything else on a matter that does not concern him, it being a matter of a discharge through a sewer to a sewage works. It is only after it leaves the sewage works that it is of any interest to the public. I beg to move.

11.15 p.m.

The Deputy Chairman of Committees (Lord Ampthill)

I should remind the Committee that if this amendment is agreed to, I shall not be able to call Amendments Nos. 333A or 333B.

Lord Hesketh

At present trade effluent agreements and variations to consents are publicly available under the Public Health (Drainage of Premises) Act 1937; the Public Health Act 1961; and the Control of Pollution Act 1974. Because trade effluents flow through public sewers under our streets, and the contents after treatment ultimately are discharged into the environment, there is a legitimate public interest in these matters. I have already spoken about the relationship between the undertakers and dischargers under our discussion on Amendment No. 329. The requirement to allow for public inspection of a register of consents and agreements reflects the points I made on that amendment. It is for those reasons that I urge that the amendment be rejected.

The Earl of Shannon

I am very sorry that British industry should be placed in this disadvantageous position. I hope that the Government realise that they are giving away, or are about to give away commercial secrets of British industry on the grounds that if it flows under the streets, somebody might like to know something about it. That is severely damaging to British industry and I hope that the Government realise that. Obviously I shall not get any further, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Newport moved Amendment No. 333A: Page 211, line 28, at end insert—

The noble Lord said: As has already been said, paragraph 3(5) of Schedule 8 seeks to amend the Public Health (Drainage of Trade Premises) Act 1937 to establish a register of discharge of consents under that Act. The register is to be publicly available.

Amendment No. 333A seeks to enlarge that register by requiring that analyses of samples taken of the effluent should be shown in relation to each consent. Trade secrets—and I draw this to the attention of the noble Earl, Lord Shannon—would be protected by the consequential Amendment No. 333B.

Samples of trade effluent are needed to show what is going into a sewage treatment works, as some of what goes in may come out the other side unaltered or only slightly reduced, depending on the adequacy of the works. Information such as this would provide knowledge as to the effectiveness of the works and would allow those affected by pollution from a sewage treatment works to target the real cause of the problem. I beg to move.

Lord Hesketh

Amendment No. 333A provides for the addition to that consolidated list of a requirement to disclose analyses of samples taken of a trade effluent that is the subject of a consent. Amendment No. 333B would provide that where a discharger satisfies the Secretary of State that it would be contrary to the public interest or would prejudice, to an unreasonable degree, some private interest, he may obtain from the Secretary of State a certificate of exemption from disclosing certain items on the public register. A similar provision to this already exists with respect to the NRA's register of consents.

There is a difference between the discharge of trade effluent to a sewer and the discharge by the utilities to rivers, for which there is provision under Clause 113(1)(e) for information on analyses of samples to be made publicly available. The discharge by a company to a sewer would be a matter for contractual agreement between two private companies, and for undertakers to decide what monitoring is necessary. It is the responsibility of the sewerage undertaker to ensure that once treated the utilities' discharges meet the terms of their discharge consents. The legitimate public concern in what is discharged to the environment is reflected in the provision under Clause 113(1)(e) that analyses should be publicly available on a register maintained by the NRA. Monitoring undertakers by the NRA is of course an important part of fulfilling its general duty under Clause 103. The sewerage undertaker will have all the necessary powers to ensure that the terms of the consent are met, and indeed it is very much in his interest to do so. It is not therefore appropriate or necessary in this case to require that analyses of samples of trade effluents be made available to the public. It is for those reasons that we resist the amendments.

Lord Ross of Newport

I think I received a fairly good explanation of how the Government see this working out. I do not intend to press the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 333B not moved.]

[Amendments Nos. 334 to 338 had been withdrawn from the Marshalled List.]

Baroness Blatch moved Amendment No. 338A: Page 213, line 1, at end insert— (".—( 1 ) In section 18( 1 )(b) of the Building Act 1984 (building over sewer etc.) at end insert "or any resource main, water main, discharge works or any other underground works shown on the relative map of water mains'. (2) In section 18(2)(b) of that Act after the word "sewer" insert "or resource main, water main, discharge pipe or any other underground works other than a service pipe vested in the water undertaker". (3) In section 18(4)(a) of that Act after the word "drain" insert "or resource main, water main, discharge pipe or any other underground work other than a service pip" vested in the water undertaker.". (4) In section 18(5) of that Act at end insert "map of water mains" means the map of water mains etc. kept by a water undertaker under section 155 of the Water Act 1989.".").

The noble Baroness said: In deference to the late hour, I shall speak as fast as I am able. I shall speak to Amendment No. 338B first. The Government have already recognised that Section 18 of the Building Act 1984 needs amending by extending the protection given by the present legislation to sewers as regards building above them, and also to protect sewers, and now drains and disposal mains, from buildings which would interfere with the use of a sewer, drain or disposal main or cause the obstruction of the access to any sewer, drain or disposal main.

The government amendments to this Bill are certainly to be welcomed. I shall illustrate the problem addressed by my amendment. In 1987 there was an incident near Norwich when it was discovered that a building was being built within three inches of a trunk sewer. The building was a house. The house was being built at right angles to and within three inches of the sewer. The building was not being built over the sewer, and the district council did not notify the water authority under Section 18 of the Building Act 1984. The proximity of the building works to the sewer was only discovered when the sewer was uncovered during building works. The water authority would not have wanted the builders to demolish the building—but wanted the owner to agree to pay any costs it incurred in future maintenance of that sewer due to the proximity of the buildings.

The house was not being built over the sewer and was not therefore caught by the existing wording of Section 18 of the Building Act 1984. The amendment to Section 18 of the Building Act 1984, in Schedule 8 paragraph 6 of the Bill, extends the protection given by that section to buildings which would interfere with the use of a sewer or obstruct the access to a sewer. It is arguable whether that building within three inches of the sewer would have been caught by either of those amendments.

In the case of this particular building, I am referring to the footings of the building which were deeper than the sewer. The load of the buildings went to the ground below the sewer. However, when the time eventually came for the sewer to be replaced the building was so close that it might have needed to be knocked down. Who would have paid then?

More serious problems arise when the footings of a building near a sewer are above the level of that sewer. In that case, the load of the building will go onto the sewer. That can cause structural problems for both the building and the sewer. The sewer could collapse and cause the building to settle. The sewer could leak. The ground under the building would then wash away and the building would settle. The amendment I am seeking would benefit both the sewerage undertakers and the public.

In the case I have just mentioned, the corner of the building was at right angles to the sewer. That building would not necessarily have interfered with the use of the sewer. Although it would have obstructed access by machine to the sewer, access would have been possible, although very difficult, by hand. By suggesting the insertion of the words "subjecting weight onto" in this schedule, I am trying to extend the categories of proposed buildings near sewers which local authorities should notify to sewerage undertakers.

The Building Act 1984 only comes into effect when plans are deposited in accordance with building regulations. Some buildings do not need building regulation consent. For example, some garages with a floor area not exceeding 30 square metres do not need building regulation consent. Therefore, some further amendment to the legislation to require notification to sewerage undertakers before buildings not needing building regulation consent are constructed is needed.

Amendment No. 338A proposes a change to Section 18 of the Building Act 1984. That section is designed to protect sewers from building overhead. The effect of the amendments I am proposing would be to extend that protection to water mains and other pipes belonging to water undertakers. Why cannot the protection offered by Section 18 extend to water mains as well as sewers? Both sewers and water mains would be seriously affected if any building were to be built overhead. It makes sense to extend protection to both. I beg to move.

The Earl of Arran

At this time of night I hope as briefly as possible to lay the amendment of my noble friend to rest. Amendment No. 338A would amend Section 18 of the 1984 Act to add a further circumstance in which building plans may be rejected by a local authority. There is little evidence of any problem in practice to justify including works shown on water main maps in Section 18 of the 1984 Act.

While there is a clear case for specific protection for access etc. for sewers, there is less for mains, and different regimes are justified. Undertakers will have more positioning flexibility in laying water mains, through which water is usually pumped, than sewers, which operate by gravity. If undertakers are concerned about the likelihood of future building over their water mains they can, and indeed do at present, negotiate an easement with the landowner when the pipe is laid or buy land to protect their longer-term interests.

My noble friend's second amendment seeks to add a further case in which building plans may be rejected by a local authority. It would require local authorities to consider whether drains, sewers or disposal mains would be subject to weight—that is, some form of lateral or oblique loading as a result of proposed development—as well as interference or obstruction.

We do not believe that the amendment is necessary. Development which subjected weight onto the sewer to the extent that it would interfere with the use of the sewer would be covered by the existing proposed amendments to Section 18 of the Building Act 1984. To the extent that the proposed load on the sewer would not cause interference with its use, no action is necessary.

In view of this reply I hope that my noble friend will agree not to press these amendments.

Baroness Blatch

My Lords, in view of the late hour, I shall read with interest what my noble friend has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 338B not moved.]

Schedule 8, as amended, agreed to.

Clause 70 agreed to.

Clause 71 [Financial conditions of sewer requisition.]

[Amendments Nos. 339 and 340 had been withdrawn from the Marshalled List.]

Clause 71 agreed to.

The Earl of Arran

I beg to move that the House do now resume.

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

House resumed. House adjourned at twenty-seven minutes past eleven o'clock.