PART II ORDERS CONTAINING MANDATORY PROVISIONS ETC.

HL Deb 23 May 1989 vol 508 cc247-362

Publication of proposal for order containing mandatory provisions

3.—(1) This paragraph applies where the relevant Minister proposes to make an order under section (nitrate sensitive areas) of this Act which—

1. (a) makes or modifies any such provision as is authorised by subsection (4)(a) of that section; and
2. (b) in doing so, contains provision which is not of one of the following descriptions, that is to say—

1. (i) provision reproducing existing provisions without modification and in relation to substantially the same area; and
2. (ii) provision modifying any existing provisions so as to make them less onerous.

(2) The relevant Minister shall, before making any such order as is mentioned in sub-paragraph (1) above—

1. (a) publish a notice with respect to the proposed order, at least once in each of two successive weeks, in one or more newspapers circulating in the locality in relation to which the proposed order will have effect;
2. (b) not later than the date on which that notice is first published, serve a copy of the notice on the Authority and on every local authority whose area includes the whole or any part of that locality; and
3. (c) publish a notice in the London Gazette which—

1. (i) names every local authority on whom a notice is required to be served under this paragraph;
2. (ii) specifies a place where a copy of the proposed order and of any relevant map or plan may be inspected; and
3. (iii) gives the name of every newspaper in which the notice required by virtue of paragraph (a) above was published and the date of an issue containing the notice.

(3) The notice required by virtue of sub-paragraph (2)(a) above to be published with respect to any proposed order shall—

1. (a) state the general effect of the proposed order;
2. (b) specify a place where a copy of the proposed order and of any relevant map or plan may be inspected by any person free of charge at all reasonable times during the period of twenty-eight days beginning with the date of the first publication of the notice; and
3. (c) state that any person may, within that period, by notice to the Secretary of State or, as the case may be, to the Secretary of State or the Minister, object to the making of the order.

Supply of copies of proposed orders

4. The Secretary of State and, in a case where he is proposing to join in making the order, the Minister shall, at the request of any person and on payment by that person of such charge (if any) as the Secretary of State or the Minister may reasonably require, furnish that person with a copy of any proposed order of which notice has been published under paragraph 3 above.

Modifications of proposals

5.—(1) Where notices with respect to any proposed order have been published and served in accordance with paragraph 3 above and that period of twenty-eight days mentioned in sub-paragraph (3)(b) of that paragraph has expired, the relevant Minister may make the order either in the proposed terms or, subject to sub-paragraph (2) below (but without any further compliance with paragraph 3 above), in those terms as modified in such manner as he thinks fit, or may decide not to make any order. (2) The relevant Minister shall not make such a modification of a proposed order of which notice has been so published and served as he considers is likely adversely to affect any persons unless he has given such notices as he considers appropriate for enabling those persons to object to the modification. (3) Subject to sub-paragraph (2) above and to the service of notices of proposed modification on such local authorities as appear to him to be likely to be interested in it, the modifications that may be made by the relevant Minister include any modification of the area designated by the proposed order as a nitrate sensitive area. (4) For the purposes of this Schedule it shall be immaterial, in a case in which a modification such as is mentioned in sub-paragraph (3) above incorporates land in England in an area which (but for the modification) would have been wholly in Wales, that any requirements of paragraph 3 above in relation to the proposed order have been complied with by the Secretary of State, rather than by the Secretary of State and the Minister.

Consideration of objections etc.

6. Without prejudice to section 116 of this Act, where notices with respect to any proposed order have been published and served in accordance with paragraph 3 above, the Secretary of State or, as the case may be, the Secretary of State and the Minister may, if he or they consider it appropriate to do so, hold a local inquiry before deciding whether or not to make the proposed order or to make it with modifications.

Consent of Treasury for payment provisions

7. The consent of the Treasury shall be required for the making of any order under section (nitrate sensitive areas) the making of which does not require the consent of the Treasury by virtue of paragraph 1 above but which contains any such provision as is authorised by subsection (4)(b) of that section.").

The noble Baroness said: I beg to move.

Lord Stanley of Alderley moved, as an amendment to Amendment No. 371C, Amendment No. 371 CA:

In the proposed paragraph 1, leave out sub-paragraph (3).

The noble Lord said: I think that we are now on the straight and narrow and back on nitrate sensitive areas. This amendment points out that under the terms of the new schedule Ministers may not make NSA orders except with the consent of the Treasury and on application made to the National Rivers Authority. In making an application for an order the NRA must be of the opinion that, pollution is or is likely to be caused by the entry of nitrate into controlled waters as a result of … the use of particular land … for agricultural purposes"; and, secondly, that the provisions presently in force are not in the NRA's opinion sufficient for preventing or controlling such entry of nitrate into the waters. We discussed other methods earlier.

The application must identify the relevant waters and the relevant agricultural land. However, by virtue of paragraph 1(3) this procedure would not come into operation until six months have elapsed after the transfer date when water authorities transfer their functions to the NRA and the new water companies; in other words, until six months after the transfer date, Ministers as opposed to the NRA make NSA orders without the need—this is the point of my amendment—for carefully considered applications by the NRA. Although this may be defended as merely a transitional provision, in practice I cannot see any good reason for having it with the shadow NRA in the background. Therefore the amendment seeks to remove this transitional period. I beg to move.

Baroness Trumpington

I shall now give my noble friend the pleasure of hearing the first paragraph again. Part I, Clause 1 of the Government's Amendment 371C provides that nitrate sensitive areas can be designated only on application by the National Rivers Authority. Paragraph 1(3) does, however, contain a transitional provision whereby an application by the authority shall not be required in the case of any order made within six months of the transfer date, that is within six months of the establishment of the authority at the beginning of September 1989. My noble friend's Amendment No. 371CA would, however, delete this transitional provision.

I must resist this amendment. The Government are anxious, following consultations with those involved, to press ahead quickly with the establishment of pilot nitrate sensitive areas within which voluntary restrictions will be tested. Wherever practicable, we intend proceeding following application by the National Rivers Authority in relation to particular areas, and the general intention is to work closely with the authority at stages of concern to them in the setting up of protection zones. During the first six months of the establishment of the authority, however, it may be necessary to establish pilot nitrate sensitive areas without formal application by the authority, which will only recently have been set up.

I hope that my noble friend will not pursue this amendment, given the need to avoid the risk of unnecessary delay in setting up pilot protection zones, and my assurance that only voluntary restrictions will in any case apply within them.

Lord Stanley of Alderley

I think that this is the first amendment upon which I can meet my noble friend a quarter of the way. I do not feel so strongly about this matter; it is a transitional one. However, I shall just repeat the question asked by my noble friend Lord Middleton: "What is the hurry?" If we have the NRA there already, I should have thought that it would be better to let it do the job, rather than shoot from the hip—which seems to me to be happening here—and let the Minister do it. However, I shall leave that aspect for the moment and, in the meantime, I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

9.15 p.m.

Lord Stanley of Alderley moved as an amendment to Amendment No. 371C, Amendment No. 371CB:

In the proposed paragraph 2(1)(a), line 1, leave out first ("is") and insert ("has been").

The noble Lord said: This is really a technical amendment on grammar and I am not sure whether I should be the person who moves it. I believe that a wording which states that pollution "has been" caused by the entry of nitrate into controlled waters is more appropriate than the present phrase that pollution "is" caused by the entry of nitrate into controlled waters. I must point out that my amendment would leave in the words, "is likely to be caused", thus allowing the NRA to take action if it thinks or believes that the nitrate level is creeping downwards into the aquifers. However, my amendent would still allow the NSA to have a nitrate zone if nitrate pollution was already there.

It is a small point. However, if my noble friend and her advisers were to put a cold rag around their heads, I think that they would see that my proposal makes rather more sense; although, if she puts another cold rag on her head, she may see that it is not quite so sympathetic to the farmer as is her amendment. I beg to move.

Baroness Trumpington

I honestly do not think that this amendment to the Government's proposal would be correct. The effect of the Government's proposal as contained in the proposed new schedule in Amendment No. 371C is to enable designation of a nitrate sensitive area either where pollution is at that time being caused by the entry of nitrate into controlled waters, or where such pollution is likely at some future date.

The effect of Amendment No. 371CB would be to enable an area to be designated where nitrate pollution had occurred some years ago, even where there was no longer such pollution or the likelihood of it. That cannot be right, and I hope that the amendment will not be pursued.

Lord Stanley of Alderley

I do not intend to waste the Committee's time on this matter. I still believe that I am right. If my noble kinsman Lord Russell were here, he might have a better idea than I do. I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

Lord Stanley of Alderley moved, as an amendment to Amendment No. 371C, Amendment No. 371CC:

In the proposed paragraph 2, at end insert— ("(4) not later than one week from the date on which an application under this paragraph is made, the Authority shall publish a notice with respect to the application at least once in each of two successive weeks in one or more newspapers circulating in the locality in relation to which the application applies.").

The noble Lord said: The schedule at present provides no means by which anyone could hear that the NRA had applied to the Minister for an NSA order. The Committee realises that it is the NRA that applies to the Minister for an NSA. It is only fair that people in the area affected by the order should be made aware that the NRA has made the application. It would be impossible for NRA officials to wander around sampling water on farms without everyone knowing that they were there.

The amendment therefore ensures that the NRA would have to publish a notice in the local newspaper advertising that it is applying to the Minister for an NSA. Anyone who lives in the country, and understands it, will realise that that will suppress a great deal of mumbling and grumbling. I beg to move.

Baroness Trumpington

We have no intention of being secretive, merely practical. When the authority applies for an area to be designated, it is not known at that time whether the application will be accepted unamended by the Government, accepted with amendments notably to the area in question, or not accepted. Even in the case of acceptance, the agricultural measures to apply would not be known at that time. Automatic publicity at this time therefore would seem to be unnecessary. It would give rise to unnecessary concern and to questions about the possibility and nature of restrictions which could not at that time be answered.

However, I appreciate that there might be a need for an early public announcement in the event both of an application by the authority and a decision by government to proceed with details of agricultural survey of an area in advance of the possible preparation of an order designating it as a nitrate sensitive area. In that event, although there would not be a legal commitment, I can give an assurance that the Government's intentions would be to announce the fact that a particular area had been proposed by the authority as a candidate NSA and that the Government were seriously considering this, including undertaking a detailed agricultural survey.

If it were decided to proceed with a designation, the proposed order, if it contained new compulsory measures, would of course have in any case to be publicised widely and there would be the opportunity for objections at that stage.

When I first heard my noble friend's amendment I felt that it had a tempting ring to it, but having listened and looked into the whole situation extremely carefully I believe that the amendment would cause greater trouble and not less. In the circumstances, I hope that my noble friend will not press the amendment.

Lord Hylton

While the noble Lord, Lord Stanley, is making up his mind what to do with the amendment, perhaps I may say that these issues are likely to cause a certain number of farmers to change their whole farming system in a marked and deep-rooted way. They will therefore require the maximum length of time in which to prepare for the changes. That may be allowed for when the definitive order eventually emerges, but I do not know whether that will be the case. It would be helpful if the Minister could give us reassurance on that point.

Baroness Trumpington

I do not know whether the noble Lord has seen the consultation document which we have put out. Perhaps he would like to reserve judgment until he has seen that, after which of course he could put forward his views. We are only too well aware of the effect that this serious situation will have on farmers' lives, but it is inavoidable. This is a very complicated issue which we are doing our best to solve properly.

Lord Stanley of Alderley

I am very grateful to my noble friend for coming, I think, halfway towards my views. I fully take the point of the noble Lord, Lord Hylton, which I have been trying to convey to the Committee, that if NSAs are made they will revolutionise farming to a drastic extent. It could mean that the public would have to pay more, which might help me as a farmer, but I do not think that that is particularly kind or right thing to do. I am just saying that these are drastic measures, as the noble Lord, Lord Hylton, indicated, and that farmers and the public will need time to adapt to them.

I am most grateful to my noble friend. I take her point. Obviously she has looked at the matter carefully and seen that there is a middle way. We do not want to upset people too soon. On the other hand, we want to give them as much time as possible before such an order comes into being. I beg leave to withdraw the amendment.

Amendment to the amendment by leave, withdrawn.

Lord Stanley of Alderley moved, as an amendment to Amendment No. 371C, Amendment No. 371D:

In the proposed paragraph 3(2), at end insert— ("(d) not later than the date on which the notice required by virtue of sub-paragraph (2)(a) above was first published serve on every owner, lessee and occupier (except tenants for a month or any period less than a month) of any land comprised in the order a copy of that notice.").

The noble Lord said: As the schedule stands, Ministers have to advertise proposed NSA orders in local newspapers and the London Gazette. However, there is no obligation to notify individual owners and occupiers of land, even though the order might contain compulsory restrictions on agricultural activities which would have very serious implications for their livelihood, as many Members of this Committee have pointed out.

There are numerous precedents for the notification of proposals to individual owners and occupiers; for example, proposals for new sites of special scientific interest and compulsory purchase orders. This amendment would ensure that everyone in the proposed NSA areas would know of the proposals and would therefore be in a position to take steps to protect their rights, if need be. I beg to move.

Lord Middleton

I do not see why individual owners and occupiers who are going to be affected by an order should not be told. I see no practical reason why they should not be written to. If that Nature Conservancy Council can do it where nature reserves and SSIs are concerned, it could be done in this case. The name and address of every occupier of a holding is known. As my noble friend has said, those people whose livelihoods may be severely affected ought to be told, if only as a matter of administrative good manners.

The Earl of Radnor

I should like very strongly to support individual notification, for all the reasons that both my noble friends have given. It is generally acknowledged that this proposal is going to be very difficult for farmers. I should have thought that it was very much in the Government's interests to notify people individually, to do everything straight down the line and as properly as possible. I give the amendment every support.

9.30 p.m.

Baroness Trumpington

The amendment that we are now studying would require us to notify every owner, lessee and occupier of any proposal for compulsory agricultural measures in a nitrate sensitive area. This would be in addition to the present requirement set out in the new schedule for notice to be given through publication in a number of local newspapers circulating in the locality and in the London Gazette. In addition, a copy would be served on every local authority. The notice will explain the general effect of the proposal and specify where a copy of the proposed order—which would set out the area and measures—may be inspected. These provisions would give ample notice of any proposal for compulsory measures. And, of course, depending upon any representations, we may hold a public inquiry.

With the greatest respect, I do not think my noble friend Lord Middleton was comparing like with like, because, on a completely practical note, I do not think we would necessarily know all the interests which my noble friend would have us notify. We simply do not have comprehensive data on every landowner, lessee, occupier and so on. To attempt to locate them could well be a very substantial task, with no guarantee of success.

However, I ask noble Lords to be assured that compulsory measures would not be likely to arrive like a bolt from the blue. There will be every opportunity for those with an interest to have access to information. Let us not forget that we intend such measures only if and after voluntary measures had been tried and failed in an NSA. We shall keep people informed of the progress and effects of any voluntary scheme. It would not be in our interests to operate the scheme any other way. After all, we need the farmers' co-operation.

To sum up, this amendment is unnecessary and would be administratively onerous, to say the least, if not impossible, to fulfil. But I have no hesitation in giving noble Lords an assurance that those with an interest will be made aware of any proposals. I therefore hope that my noble friend will not press the amendment.

Lord Stanley of Alderley

I am deeply disappointed by my noble friend's remarks. I can hardly agree with a word. If I really wanted to annoy the Front Bench, I would say to my noble friend Lord Caithness that the reply must have come straight out of a computer in Marsham Street. I am sure that I shall get into trouble over that. It shows a complete misunderstanding of the whole problem. The Committee has accepted that this is something radical that could happen to a farmer—much more radical than a site of special scientific interest—yet you do not even bother to go and tell him personally! What a Government! What an organisation! I am sorry, but I am not pleased with my noble friend.

I should explain to my noble friend that if the NCC, who have only about two men and a boy, can notify every single owner and occupier in the Berwyn Hills, which comprise 55,000 acres in Wales—and Welsh farmers are not always very easy to find and they always speak the opposite language to that which you speak—this department could surely do it here. I shall come back to this on Report. I am deeply disappointed and I hope that my noble friend will see the point of my argument. Unless my noble friend wishes to say anything, I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

Lord Stanley of Alderley moved, as an amendment to Amendment No. 371C, Amendment No. 371DA:

In the proposed paragraph 3(3)(b), line 3, leave out ("twenty-eight") and insert ("forty-two").

The noble Lord said: In moving this amendment I should also like to speak to Amendment No. 371DD. Under the terms of the schedule, the relevant Minister may not proceed to make an order until 28 days have elapsed from notices of the order being first published. However, I believe that is an unduly short period for objections, given that most people want to find out more about the implications of orders before deciding to object; and also given the vagaries of the post—a letter often takes a week to get to me from here—and the fact that many people may be away for a time or doing something else. Therefore these amendments seek to extend the period for objections from four weeks to six weeks. Before my noble friend replies, I repeat my continuing point that this is a very serious matter. We need time to think about it. I beg to move.

The Earl of Radnor

I wish to add a few words of support. I think that, in all the circumstances, 28 days is too short a period. This amendment is very much on a level with the previous amendment. The Government should consider doing everything they possibly can to keep the farmer informed, give him time to think and consult his advisers. One cannot help feeling that as some of the nitrates took about 50 years to come down through the chalk aquifers, it is a little unreasonable for the Government to be in quite such a hurry. I give the amendment my greatest support.

Baroness Trumpington

The key point here is that an interested person is simply being asked whether or not he wishes to make an objection to the making of the proposed order. He is not being asked to make out a detailed case for an objection. In these circumstances, the period allowed of 28 days is appropriate and sufficient and follows other similar precedents—for example, proposed Schedule 7—relating to the establishment of water protection zones pursuant to Clause 108.I therefore hope that these two amendments will be withdrawn. However, I wish to look at this matter again with absolutely no commitment.

Lord Stanley of Alderley

I am most grateful to my noble friend for that remark. While she is considering this matter, perhaps she will bear in mind that water protection zones are a different matter from this provision. I am sorry to keep repeating myself, but these are serious matters for the farmer and indeed for the country. I wish to mention another instance against my noble friend which concerns Ministry of Transport line orders for new motorways and trunk roads. In the Highways Act 1980, under Schedule 1, paragraph 1, one is allowed a three-month objection period. New roads do not affect farmers' lives half as much as the Government's proposal may affect them. I do not use that example with any desire to be unpleasant to my noble friend, but perhaps she will bear that in mind when she is considering the provision. However, I am most grateful for what she has offered me.

Baroness Trumpington

I must say that my noble friend keeps repeating how important this matter is, as if we did not realise how important it is. This enormous Bill reflects the importance of the whole situation. We realise how our provisions will affect farmers. I too have repeated myself quite enough on this subject.

Lord Stanley of Alderley

I am more than aware that my noble friend is aware of the importance of this matter. What I am not so sure of is whether the public and the farmers are aware of its importance. One of the reasons I am moving these probing amendments is to drive the importance of this matter home to people outside this Chamber. I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

Lord Stanley of Alderley moved, as an amendment to Amendment No. 371C, Amendment No. 371DB:

In the proposed paragraph 4, line 1, leave out from beginning to ("shall") in line 2 and insert ("The relevant Minister").

The noble Lord said: In moving this amendment, I wish to speak also to Amendment No. 371DC. These amendments are technical and, I hope, helpful. There seems no reason why the Secretary of State and the Minister should be referred to separately as regards the modest purpose of supplying copies of the proposed orders. However, I am not asking for a similar provision as regards making a decision. These amendments bring paragraph 4 of the schedule into line with the definitions of the relevant Minister for the purpose of NSA orders contained in subsection (9) of the new section. I believe my provision cuts down on bureaucracy and paper. I beg to move.

Baroness Trumpington

I always dread a noble Lord talking about a technical amendment because it means that a technical answer is required. The amendment is unnecessary and would raise technical difficulties. However, I must take this opportunity to explain ministerial responsibility for the making of orders as set out in paragraph 9 of the draft clause. The relevant Minister for the purposes of making orders will be the Secretary of State for Wales if the area concerned is wholly in Wales. It will be the Minister of Agriculture and the Secretary of State for the Environment in the case of an area wholly in England, and all three aforementioned Ministers in the case of an area partly in Wales and partly in England. The Government's proposal in paragraph 4 of the schedule is for any of the Ministers joining in making the draft order to be able to provide, on request, a copy of the proposed order.

The effect of my noble friend's Amendments Nos. 371 DB and 371DC would not be to change this position, but a legal doubt would be introduced since the relevant Minister is not defined in paragraph 8 for the purposes of providing copies of the draft order to persons requesting them, I hope that that complicated answer will satisfy my noble friend.

Lord Stanley of Alderley

I shall not waste the Committee's time on the matter. I am not sure that I am happy, but I think that it would be far better for me to speak to my noble friend between now and Report stage. It is only a technical point. I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

[Amendments Nos. 371DC and 371 DD, as amendments to Amendment No. 371C, not moved.]

Lord Stanley of Alderley moved, as an amendment to Amendment No. 371C, Amendment No. 371DE:

In the proposed paragraph 6, line 4, leave out ("if he or they consider it appropriate to do so") and insert ("and shall where any objections in writing have been received to the making of an order containing mandatory provisions from an owner, lessee or occupier (except tenants for a month or any period less than a month) of any land comprised in the order and which have not been withdrawn").

The noble Lord said: As the schedule stands, Ministers may hold a local inquiry before deciding whether or not to make their proposed orders or to make them with modifications. In other words, even where there is a proposed NSA covering thousands of acres of land affecting substantial numbers of farmers, all of whom might have registered strong objections, there will nonetheless be no obligation on the Minister to call a public inquiry into objections.

I am sorry to keep repeating myself because I know that my noble friend knows this, but these orders may have serious implications for the livelihoods of many farmers. I believe that it is not unreasonable that they should be given some assurance that their objections will be heard by a semi-independent person in the form of a public inquiry inspector. I am not concerned about a proper public inquiry, but I feel that those who are involved should be allowed this.

This option would give farmers far more confidence than merely making objections direct to government departments, where they could be processed by the Minister's own advisers, who report directly to him and have no independence whatsoever. I am sure that they do in practice, but in theory they do not.

This amendment therefore ensures that where orders contain mandatory provisions, if written objections have been made and have not been withdrawn, Ministers will be obliged to hold a local inquiry. I beg to move.

Baroness Trumpington

In the case of one or more objections to a proposed order designating a nitrate sensitive area, the government Amendment 371C would enable the Secretary of State and the Minister to hold a public inquiry before deciding whether or not to make the proposed order, although it would not compel them to do so. My noble friend's Amendment No. 371DE would, however, automatically require such a public inquiry.

An inquiry into the principle of designating the nitrate sensitive area may not always, however, be necessary. For example, the designation order will be subject to negative resolution and will therefore be open to debate in the House. But the overriding reason is that, after the first few cases, some designation proposals may not raise new issues of policy or principles needing examination in public. The Government are, however, willing to give an assurance that every case will be considered on its merits, although our normal policy will be to hold public inquiries whenever a proposal raises new issues of policy not previously examined in public. The Government are, however, willing to give an assurance that every case will be considered on its merits, although our normal policy will be to hold public inquiries whenever a proposal raises new issues of policy not previously examined in public. It is therefore likely that the first few uses of the powers to designate NSAs with compulsory provisions will be subject to inquiry, as well as cases thereafter that raise policy issues.

I hope that the Committee will accept that that is a fair and reasonable proposal, one that will protect special local interests while ensuring that we achieve a streamlined and effective procedure. Once again, I ask my noble friend to withdraw his amendment.

Lord Stanley of Alderley

The trouble is that it is a question of assurances. Of course, I take an assurance from my noble friend that she would carry out that proposal, but we are writing in the provision possibly for a large number of years. There might perhaps be a Secretary of State or Minister who would not carry the confidence that my noble friend does. I shall therefore have to think about the matter. I take what my noble friend says and I understand the problem. There might be a middle way here—not a full public inquiry, but some form of inquiry. I am sure that we could think about the matter between now and Report stage and perhaps find a proper form of words.

This is the last of my amendments to the government amendment and I should like to thank the Committee for being so patient with me. I should also like to thank my noble friend for answering our queries so well. I reiterate that I am certainly not against the regulation of NSAs. I am sure, sadly, that it will be necessary, but we must try to get it right. I am sorry to have tabled so many amendments, but the country saw the proposals for the first time only about a week ago and I have had to ask a great many questions. I am sure that we can nail most of them between now and Report stage. I thank all noble Lords who have taken part in the debate. I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

On Question, Amendment No. 371C agreed to.

9.45 p.m.

Schedule 11 [Consents to certain Discharges]:

The Earl of Caithness moved Amendment No. 372:

Page 222, line 23, leave out ("104") and insert ("105(1)(a)").

The noble Earl said: In moving this amendment, I shall also speak to Amendments Nos. 373 to 375A.

These are for the most part technical amendments to Schedule 11 which deals with the procedure for the granting of consents for effluent discharges. Amendments Nos. 372, 374, 375 and 375A are intended to secure the proper link between the Bill clauses and the schedule. They simply revise certain references in the schedule to the body of the Bill.

Amendment No. 373 is rather more than a technicality. There are at present on water authority registers large numbers of discharge consents which have not been used for some considerable time. We do not think they should be allowed to stay there. They pre-empt carrying capacity of the river which might otherwise be allowed to other dischargers, and, if brought back into operation, unbeknown to the authority, after a considerable time, they could complicate the authority's proper management and quality control of the rivers.

We believe that, if a discharger does not use his consent for 12 months, it should be open to the authority to revoke it, so long, of course, as it is outside the initial two-year protected period during which no variation or revocation of a consent by the NRA is permissible. A further consideration is that dischargers could avoid legal liability for charges if they claimed that a discharge consent was not used during a 12 month period. They would be unlikely to make a false claim if they knew it put their consent at risk. I beg to move.

On Question, amendment agreed to.

Lord Addington moved Amendment No. 372A:

Page 223, line 5, at end insert—

("( ) The provisions of sub-paragraph (4) above shall not apply to an application for a consent to discharge effluent which is subject to an existing consent which specifies more stringent conditions.").

The noble Lord said: The rationale of this amendment is that there should be no relaxation of a consent on an existing discharge although we feel that it is quite right and proper that there should be new consent conditions applied for all new discharges.

The rationale of Amendment No. 372B, which follows this amendment, is that it should be the Secretary of State who reviews those consents that he sets, as they will involve many very difficult red list substances. It will be the Secretary of State, through the expertise of Her Majesty's inspectors of pollutants, who will have to deal with these problems and set the terms under which the consent will operate. Such expertise will not be readily available to the authority. I beg to move.

Earl Russell

This Committee tonight seems to have cast itself in the part of Elizabeth Bennett, because a dreadful choice is indeed before it. It seems that we have to choose between food and water. I cannot imagine any choice much more fundamental than that.

We on these Benches have listened, perhaps with a little more sympathy than has the noble Lord, Lord McIntosh, to the concerns of the farmers but in the end these Benches give priority to the cleanliness and purity of water. It is the more indispensable of the two substances. Of the two amendments tabled by these Benches, Amendment No. 372A concerns the use which could be made of sub-paragraph (4) on page 223. As I understand it, that is a case of de minimis non curat lex, which is a maxim that in its proper place has good uses. However, we have an uncomfortable feeling that there have been too many "minimi" allowed into the water recently. We think that too much advantage has been taken of that attitude. We believe that there is a considerable need for a rather more stringent view and that, where a particular consent has demanded a more stringent condition, that should not be overridden by the doctrine of de minimis, which may not in fact apply in the case.

Amendment No. 372B concerns the conditions of consents. I take the point made a moment ago by the noble Earl, Lord Caithness, that if the discharge is changed it may in effect become a different consent that is involved. However, the noble Earl reminds me of the case of Sir John Suckling's silk stockings, which had been darned so many times that none of the original material was left. The question then arose as to whether they were the same silk stockings. It is a question on which philosophers have much exercised themselves.

I do not want to have such a situation arising with perhaps a small change in the mixture which goes into a discharge which may have quite considerable effects before anybody is aware of them. Once again we on these Benches come back to the point that the safety of the water must be paramount. That is why we wish to bring forward these amendments.

The Earl of Caithness

These two amendments refer to two significant features of the arrangements in Schedule 11 for the making of applications and granting of consents for effluent discharges.

Let me deal first with Amendment No. 372A, which would require that the power to waive the requirement to advertise application for discharge consents, unless the discharge in question is held to have no appreciable effect on the receiving water, shall not apply to an application which seeks to vary an existing consent.

We should leave some discretion in this matter. In the first case, what is the justification for distinguishing applications to increase a discharge from applications to make a new one? There really is no relevant logical distinction. The river is not going to make any distinction as to whether some increase in pollution arises from a wholly new or an amended consent.

The only relevant consideration is whether the effect on the receiving water is likely to be appreciable. We have at present clear rules for judging that in the annex to the relevant current circular. The NRA will be able to review and amend these critera as it judges appropriate.

I suggest to the Committee that it would be a total waste of time and money, and of no possible public benefit, to require advertising in cases where the NRA concluded that the revision of the consent had no appreciable effect upon the river.

I recognise, however, that this proposal may be inspired by the reviews currently being undertaken by Her Majesty's Inspectorate of Pollution in respect of sewage treatment works which are part of the major £1 billion improvement programme to non-complaint works scheduled for completion by March 1992. The Goverment have concluded that in view of the public interest in this programme all the applications received under it should in fact be advertised. However, that is absolutely no reason to deny the NRA any discretion in the future as to whether it is appropriate to advertise an application for either a temporary or permanent variation of an existing consent.

I turn now to Amendment No. 372B, which refers to consents given in request of applications which have been "called in". What it proposes is that the Secretary of State should be required to review such consents from time to time thereafter.

I put it to the Committee that the amendment is misconceived for the following procedural and indeed practical reasons. First, as to procedure, where the Secretary of State has called in an application, he will direct the NRA as to the terms of the consent to be given. But the consent is the NRA's consent. These consents will therefore be regularly reviewed under the obligation of the NRA to review all consents it gives. It would be absurd to have both the Secretary of State and the NRA regularly reviewing such consents. Secondly, in practical terms, there is no reason for the Secretary of State's continued involvement in a case he has called in. The issues arising on a review may well be totally different from that which at an earlier time led the Secretary of State to call in the application.

If the Secretary of State were unhappy with the way the NRA carried out its review of a particular consent—if, for instance, it had used its power to overturn his earlier decision—he has full power under paragraph 6(3)(c) of Schedule 11 to direct the authority to vary or revoke the consent.

Lord Addington

I should like to read what the noble Earl has said at some considerable length before deciding whether to bring these amendments back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 372B not moved].

The Earl of Caithness moved Amendment No. 373:

Page 226, line 45, at end insert— ("( ) If on a review under sub-paragraph (1) above it appears to the Authority that no discharge has been made in pursuance of the consent to which the review relates at any time during the preceding twelve months, the Authority may revoke the consent by a notice served on the owner or occupier of the land from which discharges would be made in pursuance of the consent.").

The noble Earl said: I beg to move.

The Earl of Cranbrook

Before we agree to this group of amendments, I should like to draw my noble friend's attention to certain problems that could arise when we consider that in future the plc and the NRA will be totally separate organisations within the plc operation.

I speak with experience of Anglian Water. There are in existence discharge consents that relate to intermittent discharges. Some of these are, for instance, the kind of discharge that is made only in an emergency. It appears that the amendment will give the NRA power to revoke consents when they are used only intermittently even though that may be the purpose of some of them.

I have reservations about my noble friend's amendment. Perhaps I may give some examples. In the Anglian Water region the outlets from which intermittent discharges are made fall into the following categories: first, emergency outflows from pumping stations; secondly, storm outflows; and, thirdly, some discharges from water treatment works which are made under exceptional circumstances. In the future we may also require consents for washing out mains. That is an interesting procedure which was demonstrated last week to the consumer consultative committee in Norwich. It happens perhaps once every five years but is nonetheless an extremely important form of activity within the successful operations of a water supply undertaking. It is essential for maintenance of a water supply that meets the requirements of the EC, for instance, for colour. There are about 1,800 storm and emergency overflows in Anglian Water's region so that there could be problems if the amendment were to imply that the NRA could withdraw its consents from such overflows.

I wondered whether it would be possible for my noble friend to consider that, instead of referring just to the preceding 12 months, a longer period could be considered, of perhaps two or three years, or some other means for ensuring that these essential but necessarily intermittent discharge consents are not caught in a net.

10 p.m.

The Earl of Caithness

My noble friend raises an interesting problem, but I wonder whether I could draw his attention to the duty that the NRA will have to which it needs to have regard under Clause 7(5), particularly the duties of the water and sewerage operation. I am sure that we can rely on the NRA to be sensible about the type of storm overflows, for example, or the intermittent use of such discharges because they serve a necessary purpose. It would probably be unusual for it to consider that such a use should be turned down. We were trying to catch the dischargers of other materials into the water who were sitting on a discharge consent that would not be used intermittently. This is a subject which I shall want to look into between now and another stage, but I think that we can leave the problem which my noble friend has raised to the good sense of the NRA.

The Deputy Chairman of Committees (Lord Airedale)

A debate having arisen, I think that I had better put a single Question in regard to Amendment No. 373.

On Question, amendment agreed to.

The Earl of Caithness moved Amendments Nos. 374, 375 and 375A:

Page 229, line 4, leave out from ("section") to end of line 5 and insert ("105(1)(a) or (5)(a) or 106 of this Act;").

Page 229, line 8, leave out ("104, 105(5)(a)") and insert ("105(1)(a) or (5)(a)").

Page 229, line 43, leave out ("need to ensure") and insert ("desirability of ensuring").

On Question, amendments agreed to.

Schedule 11, as amended, agreed to.

Clause 110 [By-laws for preventing pollution of controlled waters]:

The Earl of Radnor moved Amendment No. 376:

Page 118, line 10, leave out ("sink").

The noble Earl said: This clause enables the authority to make by-laws, among which is one dealing with sanitary appliances on vessels in controlled waters. Then further down, the same clause defines what are not sanitary appliances: In this section 'sanitary appliance', in relation to a vessel, means any appliance … not being a sink, bath or shower bath". My only intention is to remove "sink" and put it in a class with the sanitary appliances. One hopes that it is in a different class from baths and shower baths, and it is a little closer to the lavatory perhaps. One thing is certain, one can force all sorts of rubbish down a sink. The noble Earl, Lord Cranbrook, is worried about coastal waters, as I am. Since this is only an enabling clause, I thought it would be best to get rid of "sink" altogether and make vessels look after sinks if they are required to do so. I beg to move.

The Earl of Cranbrook

I agree that there is merit in the amendment and that it is much more likely that polluting matter would be passed through a sink than a bath or shower outlet.

The Earl of Arran

As presently drafted, Clause 110 only allows the NRA to make such by-laws in respect of lavatories, as my noble friend has just said. Sinks and baths are excluded through the working of subsection (3). The amendment should be rejected. By-laws in respect of sinks and baths would serve no purpose, for it will always be an offence under Clause 104 to discharge polluting matter such as soapy water from a sink or bath into a river or other controlled waters. The by-law-making power must be restricted to lavatories because it is only in respect of lavatories that such by-laws can play a role.

As Members of the Committee will recall from our discussion earlier this evening on Clause 105(3), discharges of sewage from vessels do not constitute offences under Clause 104. Hence the need for the power to make by-laws prohibiting such discharges. As there is no provision equivalent to Clause 105(3) in respect of discharges from sinks and baths, there is accordingly no provision for by-laws prohibiting such discharges. In the circumstances, I believe that the objectives of my noble friend are already met.

Noble Lords

Hear, hear.

The Earl of Radnor

I am a little disappointed with that reply. I have looked back hurriedly at Clause 104. It provides: nothing in this subsection shall authorise the giving of such a notice in respect of discharges from a vessel". It appears from that clause that vessels get away with it. I am not immensely impressed by that remark although I have not had time to reread the whole of Clause 104. However, my impression is that vessels are exonerated and allowed to get away with their discharges.

I am doubly disappointed because this is only an enabling clause and perhaps not of vast importance. I am disappointed that the power will not exist to give more force to the NRA in these sadly neglected coastal waters. However, it is not of that much moment to stop me begging leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 376ZA:

Page 118, line 12, at end insert—

("(4) Bylaws made under this section shall not extend to any reservoir owned by a water undertaker.").

The noble Baroness said: Clause 110 will give the NRA power to make by-laws for preventing pollution of controlled waters. The basic intention behind the clause is to be welcomed. However, controlled waters is defined in Clause 100 of the Bill and that definition includes a water undertaker's reservoir. It appears to be inappropriate that the NRA should have the power to make by-laws which would apply to reservoirs belonging to a water undertaker.

In the by-law-making procedure in Schedule 23 to the Bill there is not even a provision for a notice relating to the proposed by-law to be served on a water undertaker. The amendment proposes that no such by-laws should extend to a reservoir owned by a water undertaker. A water undertaker will have even stronger reasons than the NRA for preventing pollution in its reservoirs. But it seems inappropriate that by-laws made by the NRA extend to a water undertaker's reservoirs. An alternative approach would be for the NRA to be required to consult with and obtain the agreement of a water undertaker before making any such by-law which related to a water undertaker reservoir.

In addition—and I have not tabled this as a separate amendment—should not the NRA consult water undertakers before making by-laws under this clause? A water undertaker would probably wish to see by-laws under the clause made in respect of any waters from which it abstracted water for water supply purposes. It is another example of the provisions in this part of the Bill where clarifications of the borderline of the responsibilities between the NRA and a water undertaker need clarifying.

As regards the point made by my noble friend Lord Cranbrook earlier today—it seems a long time ago—about the need for amendment to the definition of "inland waters" in the various parts of the Bill, Amendment No. 376ZA is required. Inland waters as defined includes a water undertaker's reservoir. I beg to move.

Lord Gibson-Watt

I hesitate to disagree with my noble friend about this matter because no doubt she has studied this part of the Bill in greater depth than I have. However, as someone who lives by a river within spitting distance of a large reservoir, I understood her to suggest that the NRA should not have the same powers over the reservoir as it should over the river. I do not go along with that argument.

Lord Hesketh

Clause 112 gives the NRA the power to make by-laws to regulate certain polluting activities; for instance, washing or cleaning of vessels or other matter and the use of vessels with sanitary appliances, on any controlled waters. This amendment seeks to exempt reservoirs owned by the water undertakers from this control.

It is most unlikely that the NRA would see a need to exercise this power in respect of such waters. But we believe that, as a matter of principle, it should have the power. It has the responsibility for the protection of all controlled waters from pollution. It seems wrong in principle that certain controlled waters should be excluded from these powers merely on account of who the body is that owns the water in question. I accept that the undertakers will be able to make their own by-laws under different powers, but then private owners of controlled waters can also regulate what is done on them.

As a point of principle we do not therefore accept that the scope of the NRA's by-law making powers should be restricted in the way proposed. But I hope the proposers will be comforted by two assurances: first, it is most unlikely the power will be used often, if at all, in the circumstances identified; secondly, such by-laws would need the confirmation of the Secretary of State. They would be unlikely to receive such confirmation if they could be shown to be unnecessary or unreasonable.

Baroness Blatch

I thank my noble friend for that reply. I am not entirely clear on the two assurances he has given but I should like to study them in detail. As the hour is late, I shall not press my amendment. However, I wish to reserve my right to return to this matter at a later stage. In the meantime, I beg leave to withdraw the amendment.

The Earl of Cranbrook

While welcoming the power which the NRA has to make by-laws of this nature, I feel that it is rough justice and that the owner of the reservoir, if a plc, should at least receive the same sort of notice as does a local authority.

Amendment, by leave, withdrawn.

Clause 110 agreed to.

Clause 111 [Anti-pollution works and operations]:

Lord Ezra moved Amendment No. 376A:

Page 118, line 46, after "waters" insert ("provided that where works are carried out to put a mine back into operation this subsection shall not apply.").

The noble Lord said: Perhaps I may say that I have some difficulty in moving this amendment because I had to compare my past commitment to the mining industry with my present commitment to the environment, and the environment won. I am suggesting here that when a mine is put back into operation, any effect created by the discharge of the polluted waters should be the responsibility of those who bring the mine back into operation. I feel that this is probably a fair amendment and I beg to move.

Lord Hesketh

The control of discharges from abandoned mines is a matter of great legal and technical difficulty. Not only is it often very difficult to identify the cause of the discharge; it is frequently uncertain where any legal liability may rest. For these reasons it has not seemed appropriate to allow the NRA to recover the costs of operations it may undertake to remedy or prevent such discharge from persons, most probably the landowners at the discharge point, who have not caused the discharge to occur but simply permitted it in the sense of not themselves taking steps to stop it.

This amendment asks us to remove from this exemption the case where the mineworkings are being brought back into operation. We agree that the exemption should not cover these cases. However, the clause as drafted does not in fact exempt them. On the ordinary meaning of the words, when works are begun to bring a mine back into operation it must cease to be abandoned. At that point the exemption therefore ceases also.

In the light of this explanation, and since the objective is already achieved by the Bill, I hope the noble Lord, Lord Ezra, will not feel it necessary to press this amendment.

Lord Ezra

I quite agree and, in the light of that explanation, I shall withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 111 agreed to.

10.15 p.m.

Clause 112 [Codes of good agricultural practice]:

Lord Stanley of Alderley moved Amendment No. 376B:

Page 119, line 3, after ("Ministers") insert ("or by the Authority").

The noble Lord said: Under Clause 112 the Minister may give practical advice to farmers. I propose that so, too, should the National Rivers Authority. It may be that this power is contained somewhere else in the Bill, but I cannot find it. Possibly the Minister will say that this can be done by ADAS. If so, I shall have to take issue with him, as to give advice on farm pollution, and in particular to foresee possible problems, is a specialised job.

That was certainly the case with the South-West Water Authority, which helped to improve conditions in a situation that was not good and, indeed, extremely difficult to solve. It was found that ADAS was not equipped to carry out this work and it fell to the water authority to give the necessary advice.

I also make a plea that prosecutions should not be instituted by the authority if it is called in to advise, unless of course the farmer refuses to take that advice. Unless that is the case, farmers will be reluctant to call in pollution officers. Indeed, I think I would be somewhat fearful to do so myself. Certainly that has always been the principle with ADAS and the safety inspectors. I suggest that it is similar to the advice that all citizens can obtain free from police crime prevention officers.

Giving advice—and it should be free—is an essential part of cleaning up our pollution. I am sure that prevention must be better than cure. Apart from giving advice, I believe that it would be beneficial if the NRA could be empowered to draw up, with the industry, codes of practice. I beg to move.

Lord Monk Bretton

I should like to add a few words in support of this amendment. It is probably not an enormously significant amendment but it should not be lost sight of.

I happened to go to a big demonstration on the disposal of farm effluents that is from time to time run at the Royal Show, on the Royal Show ground—known this year as Muck '89. The weather was most appalling and the demonstration was carried out under the greatest difficulty. However, I was very much impressed by the part run by Severn-Trent Water Authority—it was the best and most organised part. We need to ensure that that work goes on because the advice is tremendously valuable. It will need to be funded and I hope that my noble friend the Minister will keep a close eye on just that.

Baroness Trumpington

The present wording of Clause 112(1) already allows Ministers to approve by order a code of practice prepared by the NRA. Clause 112(1) refers to "another person" making a code. Schedule 1 to the Interpretation Act 1978 defines a person as, includes a body of persons corporate". Page 2 of the Water Bill states that the NRA is a "body corporate". To summarise, this amendment is unnecessary and would raise a legal doubt where none presently exists.

Lord Stanley of Alderley

I believe that was a very satisfactory answer. Unless my noble friend says something different, as I understand it the National Rivers Authority will be able to give this advice. She did not say whether it will be free or whether on the first visit prosecutions, I will not say will be forbidden, but will be looked on kindly as something not to do. I do not know whether she feels inclined to volunteer that information. I do not believe she does. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 112 agreed to.

Clause 113 [Registers for the purposes of Chapter 1]:

Lord Ezra moved Amendment No. 376C:

Page 119, line 42, after ("Chapter") insert—

("( ) information as to samples that have been taken in pursuance of section 114;").

The noble Lord said: I move this amendment which stands in the name of my noble friend Lord Lloyd of Kilgerran and which should be taken in conjunction with Amendment No. 376D. The purpose of these amendments is to allow evidence to be obtained for the bringing of prosecutions against polluters. While an individual has the power to prosecute he has no power to enter onto land and take samples. Thus in most cases the ability to bring a private prosecution is made redundant. The amendments require that if a routine sample reveals a possible breach of a consent condition; namely, by discharging effluent with more than the permitted amount of a substance in it, that sample must be entered on the pollution register.

The new subsection (4) is to provide for the situation where a certificate has been issued by the Secretary of State to protect trade secrets. In such a case it may be that just the fact of a breach and the subsequent taking of samples under subsection (2) should be entered on the register. I beg to move.

Lord Moran

I give my strong support to these amendments. At Second Reading I supported what the noble Lord, Lord Mason of Barnsley, said about sampling and the private rights of prosecution. I believe that he was speaking then largely on behalf of the Anglers' Co-operative Association which has played a notable part over the years in supporting riparian owners to use their common law rights to have unpolluted water passing by. Long before most of the rest of us were really concerned with pollution, the ACA was fighting very successfully to prevent the pollution of a number of our rivers. Its firm view is that if the Government are endorsing the principle of private prosecutions, which I believe they are, they must give the general public the opportunity to have available proper evidence on which to base such prosecutions. That means that there must be formal samples on the public register. Without such samples prosecutions cannot be brought.

The wording of Clause 143 makes it clear that evidence cannot be brought of an offence under the Bill unless the sample is taken formally. So unless a regime of formal sampling is undertaken, such prosecutions are likely to fail. I believe that would be disastrous. I believe that the position is fully covered by the amendments proposed by the noble Lord and I hope very much that the Government will accept them.

Lord Hylton

I do not know whether this is the right moment to raise the question of sampling errors. If only one sample is taken it appears that there is a grave possibility of error. I noticed that in Amendment No. 376D subsection (2) refers to "the next five occasions". I should have thought that that gave scope for averaging and getting true readings which appear to be very necessary. A great deal of alarmism and false alarms may be occasioned if proceedings are started simply on the basis of a single sample. Whether the Government Front Bench or the mover of the amendments can throw any light on these matters I do not know, but at some stage I believe that we shall have to pay attention to this point.

The Earl of Balfour

Does not Clause 144 cover the giving of three samples?

Lord McIntosh of Haringey

It seems that Clause 144 imposes a new, rather strict, regime of what is called tripartite sampling, which would tend to make it more difficult for groups like the Anglers Co-operative Association to bring prosecutions. After all, the more simple sampling on the basis of results kept on the public registers which are based on samples taken by the water authorities at their own sewage treatment works, but which have not been through the tripartite process, have been accepted as the basis of prosecution. If we are to accept the more rigid proposals made in these clauses we would make it more difficult for those who would wish to bring prosecutions against the water companies. I support the amendment, and I also support Amendment No. 393A which the noble Lord, Lord Norrie, has put down on virtually the same point.

Lord Hesketh

Amendments Nos. 376C and 376D concern Clause 113. The clause is the successor to Section 41 of the Control of Pollution Act 1974 under which the water authorities have kept public registers containing details of river quality sampling, effluent discharge consents and the samples taken of effluent discharges. Perhaps I may deal first with Amendment No. 376C. Its effect is to specify that among the information included on public registers should be information produced as a result of samples taken under Clause 144.

Clause 144 provides a special procedure for the NRA to take what have been called formal or tripartite samples; that is, samples subject to certain special procedures which are necessary for their admissibility in court proceedings. These procedures, which are paralleled in many other areas where sample evidence is to be relied on in criminal proceedings, include the division of the sample into three parts, the use of sealed containers and the passing of one part of the sample to the discharger and the retention of a third part for independent competitive analysis if required. These procedures are important. They help to ensure fairness and probity and assist a court in assessing evidence before it.

The purpose of the amendment is to secure that such samples are included in the public register. They already will be. They are already included in Clause 113(1)(e)(i) as samples taken by the NRA for the purpose of this chapter. That category includes both these formal samples and routine samples taken by the NRA for ordinary monitoring purposes. The concern of the proposers is a proper one. The sample results recorded on public registers will be admissible in criminal prosecutions for pollution brought not only by the NRA but also those which may be brought by third parties; but only for as far as the samples were taken on the formal tripartite basis. In these circumstances, it is therefore important that anyone consulting the public register should be able to identify which samples were taken on a tripartite basis.

We are providing for this in the regulations which we shall in due course be laying before Parliament under Clause 113. These will require the NRA clearly to distinguish on the register which samples were taken on a tripartite basis and which were not. I believe that this fully achieves the objectives of the proposers. We are not only preserving the right of private prosecution but we are ensuring that there is through the public register access to evidence to support such prosecutions when appropriate. We are making it incumbent on the NRA to indicate clearly what that evidence is. I suggest therefore that this amendment is unnecessary.

I turn now to Amendment No. 376D whose central purpose is to set down on the face of the Bill the circumstances in which the NRA is to take formal tripartite samples of effluents; that is, samples which follow the procedures set out in Clause 144 which make them admissible as evidence in court. The amendment proposes that the NRA be required to take such samples on the next five occasions after a sample has appeared to breach the conditions of an effluent discharge consent.

The Government have some sympathy for the purposes of this amendment. It will be essential for the NRA to take sufficient formal samples to enable it to discharge its responsibility for the effective enforcement of the pollution control legislation.

Moreover, given that we are to maintain—as the Government believe we should—a right for third parties to bring prosecutions for pollution offences, it is important that enough formal samples should be taken to provide a firm basis for exercise of that right. This is necessary because third parties—such as angling clubs, parish councils and indeed private individuals—will find it difficult to collect reliable samples because, unlike the NRA, they will not of course have a right of access to a discharger's land for this purpose. Adequate tripartite sampling is particularly important in cases where the consent is expressed in terms of a percentile compliance level over a series of samples.

If the NRA is to discharge its statutory functions it will be incumbent upon it to take formal samples in appropriate circumstances. That will be essential if it is to do its job of enforcing the legislation. The NRAAC recognises this. Moreover, if the NRA were in the future ever to reduce its formal sampling to inappropriate levels, the Secretary of State could use his direction power to override it.

I suggest that that is the appropriate position. What we believe would not be satisfactory would be to do as this amendment requires and take away from the NRA all flexibility as to when formal samples are appropriate. It should be left to judge the circumstances of particular cases. Tripartite samples are more costly to take. The NRA should not be required by the legislation to take a series of five such samples in circumstances when it does not consider it appropriate: for instance, if it believes that a particular infringement was the chance result of a freak occurrence; or if it concludes that an infringement is so marginal as not to be significant; or if it is satisfied that a discharger is taking all possible steps to bring a discharge back into compliance.

We really should not put the NRA in a straitjacket here. If we do so the NRA will waste resources and we shall also undermine the authority's role. The judgment as to when the results from the monitoring of a discharge indicate a level of performance which justifies the extra expense and effort of tripartite sampling is, fundamentally, one for the NRA to take. Given the duties we are placing on the authority, and the strong leadership which it will have, I believe we can safely leave it to exercise its judgment on this particular facet.

On the basis of what I have said, I hope that the noble Lord, Lord Ezra, will feel able to withdraw the amendment.

Lord Ezra

I am indebted to the noble Lord for the very full reply which we have received. I am also very pleased that he expressed sympathy with the purpose of the amendment. As I understand his explanation, he said that the powers of the NRA are sufficiently flexible to take account of what is proposed here, and that individuals will be fully protected where questions of prosecution may arise.

In the light of those explanations, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 113 agreed to.

[Amendment No. 376D not moved.]

Clauses 114 to 119 agreed to.

Clause 120 [Interpretation of Chapter 1]:

The Earl of Radnor moved Amendment No. 377:

Page 122, line 20, at end insert—

(" "vessel" includes all ships of any description but does not include floating cages for the retention of cultured fish.").

The noble Earl said: This amendment deals with fish farming and cage farming of salmon. I must declare a strong interest in this respect, as I am an inland fish farmer and therefore in direct competition with the salmon farmers who have their cages off our coasts.

In Clause 120 it is made quite clear that trade effluent includes effluent from agriculture and from fish farms. On the face of it, that sounds straightforward. However, we must go back to Clause 104 once more, where vessels, contrary to what my noble friend Lord Arran said, are taken clean out of any description with regard to pollution. I can therefore see a situation arising in the courts where a cage farm, which after all is a floating structure out at sea, might in effect say, "I am a vessel and therefore you cannot touch me". It might be said that there is no true effluent because the water merely swirls in and out. Vessels are not caught by Clause 104. Fish farming appears to be adequately dealt with under Clause 120, but a fish farm might claim to be a vessel and there might be a problem, which is why I tabled the amendment. I beg to move.

The Earl of Arran

I can, I believe, offer my noble friend reassurance on the grounds that the amendment is not necessary.

First, while matters of construction are ultimately for the courts, it is not our intention that floating fish cages should be construed as vessels, nor do we believe it likely. "Vessel" does not include everything that floats, and it has been held specifically not to include rafts, light, shallow rowing boats or landing stages or pontoons. In any case, if any poisonous, noxious or polluting matter were to emanate from such a cage and cause pollution, it would still be the subject of an offence under Clause 102(1)(a).

Our conclusion is that those who farm fish by floating fish cages are not free from proper regulation, nor are they in any more advantageous position than those who farm fish in other ways. However, I have to confess that those are questions of some complexity. We believe the position to be secure but if, in the light of continuing consideration, we conclude that there is any problem, we will ask the leave of this place to make an appropriate technical amendment on Report or Third Reading.

With those assurances, I hope that my noble friend will not press the amendment.

The Earl of Radnor

I do not intend to press the amendment. I am more or less reassured by my noble friend's remarks and by the fact that a fish cage may be regarded as a pontoon or something of that type and not as a vessel. I note that he acknowledges that the question is tricky. I shall be interested to see whether any alteration is made. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 120 agreed to.

Clause 121 [General functions in relation to water resources]:

Lord Renton moved Amendment No. 377ZA:

Page 122, line 44, after ("water") insert ("and land").

The noble Lord said: Amendments Nos. 377ZB, 377B and 377C are grouped with this amendment. The four amendments depend upon one another. My noble friend Lord Onslow is associated with them. Their combined effect would be to ensure that under Clauses 121 and 122 the NRA would have a duty to conserve and secure the proper use, not only of water resources but of the land resources of water undertakers, and to further conservation and enhancement of natural beauty and the conservation of flora, fauna, geological or physiographical features of special interest.

Nonetheless, I must declare that this is a probing amendment. Its purpose is to find out from the Government why there is a difference between what is the duty of the NRA under Clauses 121 and 122, to which we have now come, and the duty placed upon them under Clause 8(4).

It may be that my noble friend on the Front Bench will say that, as the two clauses have to be read together, we do not need to spell it out so much as is suggested in the amendment in Clauses 121 and 122, which are in the chapter headed simply "Water Resources". We have to bear in mind that in Clause 8(4) there is a reference to: the conservation and enhancement of the natural beauty and amenity of inland waters and of land associated with such waters".

Under the interpretation of statutes, when different expressions are used in a statute they are expected to have different meanings and consequences. Therefore, we have to be careful that in legislating differently in Clauses 121 and 122 we are not, perhaps artificially, making a distinction which we do not intend.

I do not think I need elaborate this very much, except just to mention that the matter is of some practical importance because, as I pointed out earlier when we were discussing Clause 7, the water undertakings, assuming that they inherit all the lands occupied by the water authorities, will have between them about half a million acres. I wrongly described them then as being the largest public and private landowners in the country. That was wrong. I had stupidly forgotten about the Forestry Commission, which has 3 million acres. However, half a million acres is quite a lot, and there should be a clear responsibility with regard to the conservation and protection of the environment within those half a million acres.

I do not think I need elaborate this, but it is a matter of sufficient importance for us to try to get it right. I beg to move.

The Earl of Onslow

I put my name to this amendment and I do not think I need add a great deal to what my noble friend has said. I am not a lawyer but it strikes me that there should not be different wordings in Clause 121:

1. "(a) of conserving, redistributing or otherwise augmenting water resources in England and Wales; and
2. (b) of securing the proper use of water resources in England and Wales",

whereas Clause 8(4)(a) says: the conservation and enhancement of the natural beauty and amenity of inland waters and of land associated with such waters". I should have thought that those two clauses should say exactly the same thing. I am not totally convinced that Clause 121 is even necessary, Clause 8 being there and saying what it does. If there are two clauses of an Act saying slightly different things which are supposed to mean the same thing, I should have thought that all that will happen is that Messrs. Sue, Grabbit and Runne will get even richer than they are at the moment.

10.45 p.m.

Lord Norrie

Before the Minister stands up, I should like to say that I fully support these amendments tabled by my noble friends. There can surely be no logical justification for excluding conservation duties from the remit of the NRA's powers, since the present water authorities already have strict conservation duties. Regulation of the conservation duties should be passed to the NRA in line with the other regulatory functions regarding water quality and resources.

My noble friend the Minister has already said that he will bring forward amendments to give added protection regarding the disposal and sale of sites of special conservation and amenity value; for example, areas of outstanding natural beauty and national parks. But as I have been trying to point out, this does not deal with the wider issue.

It must be remembered that not all land of conservation value is necessarily designated as such—in fact, far from it. Such designations cover only about one-third of water authority land holdings, about 150,000 acres, leaving two-thirds, about 300,000 acres, stripped of the protection currently afforded by the Wildlife and Countryside Act 1981.

It cannot be argued that these duties will continue unchanged in the Bill as it now stands, since the conservation duties of the water companies will be subject to the Clause 7 duties of providing reasonable returns on investment, creating far weaker protection than currently prevails. Nor can I accept the argument that conservation is the sole responsibility of the Nature Conservancy Council. That ignores the limited remit of the NCC in addition to the evidence that the status of sites of special scientific interest is far from being a panacea in terms of protection.

I regret that there are numerous examples of where development has been allowed to go ahead and has damaged the conservation value of the site. The Wisley Commons complex, adjacent to the Royal Horticultural Society gardens, is one such example, bisected by the A3(T) and M25 motorways, causing severe fragmentation and isolation of woodland units.

I can give the Committee several examples as regards the Thames Water Authority of land without designation which is nevertheless of conservation interest. To take the Barn Elms reservoir which is currently an SSSI, it may well be denotified because of declining wildfowl interest; in other words, it is no longer considered as being of national importance. This is a good example of how finely balanced the division is between designation and non-designation. A site that is protected by SSSI designation one day, may no longer be the next if it is denotified.

Furthermore, if development has already damaged an SSSI, its ability to "defend" its status is severely reduced and it is therefore liable to be denotified. This is an example of a site that may well have no designation protection in the near future and may therefore be at risk because of the limited protection afforded by the Bill. Even though no longer of national importance, it is a site which is still of considerable local value and its loss would certainly represent a severe depletion of the natural countryside resource.

The Hornsey reservoir, near Alexandra Park, while recognised as being important nationally for uncommon caddis and dragon flies, has no statutory designation. It is therefore an example of important conservation land owned by a water authority that lacks any protection other than the strategic responsibilities of the water authorities for conservation under the Wildlife and Countryside Act 1981. The overriding responsibility of the water companies to produce reasonable returns on investment represents considerable weakening of the current protection.

I will give noble Lords just two more examples. The Kempton Park/Staines Hill East and West reservoirs are important for breeding birds of the reed bed and marshes, for passage birds and for wintering wildfowl. They are currently under consideration for SSSI notification, but are typical of important sites which, at a particular point in time, have no statutory designation and are therefore vulnerable to development or disposal of land.

Finally, the Stoke Newington reservoirs, which have been mentioned so many times, have no statutory designation but are recognised as being of local conservation interest. They will be therefore vulnerable to loss of protection afforded by the current water authorities' responsibilities.

Unless the NRA is given the strategic responsibility for conservation that the water authorities currently have, much of the land transferred to the water companies will have less protection than now. It is a logical consequence of the separation of powers between the NRA and the plcs that the NRA should be given strategic conservation duties. That is the express purpose of these amendments. I very much hope that my noble friend will consider them carefully.

Baroness Blatch

Before my noble friend the Minister replies, I should say that Clause 121(1 )(b) places a duty on the NRA to make proper use of water resources. It appears that this amendment refers to the proper use of land resources. It also appears to place a general duty on the NRA to secure the proper use of land not in its ownership. I would welcome some comment on that when the Minister replies.

Lord Hylton

Clause 121 seems to be a very important one. It refers to: redistributing … water resources in England and Wales". I take it that could involve the transfer, pumping or moving by some means or other of water from one river system and catchment area into another. That is a very delicate matter which I believe has given rise to quite considerable problems in other countries. It may sometimes be a case of robbing Peter to pay Paul.

As was mentioned by the noble Baroness, Lady Blatch, the clause continues by mentioning: securing the proper use of water resources". I believe that phrase is left pretty well hanging in the air without any further explanation or criteria by which it is to be determined. I should have thought there may be as many opinions about proper use of water resources as there are persons applying their minds to the question. It would be very helpful if the noble Earl could throw some further light on the real meaning of these phrases. I apologise for not having given him previous notice of this question. If the Minister cannot reply to that point now on this amendment, perhaps he can say something on the clause stand part debate.

The Earl of Caithness

I am grateful to my noble friend Lord Renton for explaining the intention behind the amendments, as I must confess when I read them they seemed to have two alternative meanings. Now I am clear that the intention behind them is to make it clear, in the context of conservation, that the phrase "water resources" is to be taken as including associated land. However, I remind my noble friend—he does not need reminding, because he mentioned this fact—that that duty is placed on the NRA by Clause 8(4). I draw that clause to the attention of the Committee. It makes it very clear that it is a duty on the NRA to promote conservation with respect both to inland waters, and to the land associated with them. I was therefore quite surprised by what my noble friend Lord Norrie said, because he appeared completely to have ignored this important duty which was the subject of considerable discussion at an earlier stage in our Committee proceedings.

Similarly, as regards the other amendments which my noble friend has put before the Committee, I think his concern will be satisfied by the Clause 8(4) duty. I think it imposes precisely the right kind of conservation duty with respect to inland waterways, and that with respect the amendment of my noble friend gets the balance wrong by giving such duties equal weight with the main water resource functions of the NRA. Conservation must be an adjunct to the primary functions of the NRA, albeit a very important one. It is therefore essential to include, as Clause 8(4) does, the words, to such extent as it considers desirable", rather than to make the promotion of conservation an absolute duty.

My noble friend Lord Onslow wondered why the wording in Clause 121 was different to that of Clause 8(4). Clause 121 is concerned with the NRA's water resources function for which the wording in the Bill is appropriate, whereas Clause 8(4) is concerned with the general conservation duties of the NRA. That explains why there is different wording.

Lord Renton

I could offer another explanation of all this. It is an explanation also why this Bill is nearly 400 pages long. I think that if he were to inquire, although he would never be able to reveal the result of his inquiries, my noble friend would find that the part of the Bill in which Clauses 121 and 122 are contained were the subject of instructions from different officials in his department from those who advised on Clause 8, and that almost certainly different parliamentary counsel were involved in carrying out the instructions of those officials. Therefore we are in the ridiculous position of having pages and pages of clauses in this Bill, many of which overlap to a greater or lesser extent.

There really must be some better system of government than to land us with this sort of thing. There is nobody keener than I am on the principles of this Bill, but I must confess that the way in which the detail has been compiled frightens me.

However, I am grateful to my noble friend for the explanation that he gave, such as he understands it. With those perhaps not adequately generous remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Onslow moved Amendment No. 377B:

Page 122, line 45, at end insert ("and

1. (c) of furthering the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest.").

The noble Earl said: Perhaps I may raise a small point in connection with Amendment No. 377ZB. It arises out of the reply by my noble friend to the previous amendment. Can he consider again the advice of the two sources of parliamentary counsel? I suspect that my noble friend Lord Renton is 100 per cent. right in that point; it is a subject he knows a great deal about. It is unclear to the general public why the two clauses should say different things. There is no reason why, even if they refer to general conservation duties or water resources duties, the sections covering those duties should not read the same. It would be much clearer from everyone's point of view. I beg to move.

Lord Renton

I am grateful to my noble friend Lord Onslow for raising that point. I think that I should point out that this is the only reference, so far as I know, in the Bill or in the amendments, to the: conservation of flora, fauna and geological or physiographical features", whereas in the Electricity Bill, which is much shorter although long enough, we do have these matters specifically mentioned. There is no such mention in this Bill, and I think that it would be relevant in connection either with Clause 8 or with Clause 121.

The Earl of Caithness

My noble friend Lord Onslow said that he was 100 per cent. certain that my noble friend Lord Renton was right when he said that different parliamentary counsel had dealt with different parts of the Bill. I very nearly took a bet with my noble friend but he was engaged in something else at the time and I could not attract his attention. He would have lost that bet. There was one parliamentary counsel involved throughout.

I am very happy to draw to the attention of our advisers the points that my noble friends have made in respect of these clauses.

The Earl of Onslow

All I wish to do is to thank my noble friend very much and say that I shall buy him a drink afterwards for being wrong—but not if he stays all night. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11 p.m.

The Earl of Shannon moved Amendment No. 377A:

Page 122, line 45, at end insert:

("( ) In discharging its obligations under this section the Authority shall as soon as practicable and thereafter at intervals of not more than five years—

1. (a) carry out a survey of water resources and of existing demands on the part of water undertakers and other persons and prepare a report setting out the results of the survey;
2. (b) prepare estimates of the future demand on the part of water undertakers and other persons, for supply of water from those resources during the period of twenty years from the date on which the survey is completed;
3. (c) formulate proposals as to action which might be taken to remedy any deficiency in resources which may reasonably be expected; and
4. (d) provide a copy of the report of the results of the survey and any proposals as to action which might be taken to—
1. (i) the Secretary of State;
2. (ii) all water undertakers in England and Wales; and
3. (iii) any other person who specifically requests a copy.").

The noble Earl said: Notwithstanding that we may be invited to assume that prudent planning will be indulged in by the undertakers by virtue of Clause 37, or by the authority by virtue of Clause 121 and the subsequent clause, Clause 122, this amendment seeks to ensure that water resource planning is undertaken effectively and is seen to be so undertaken.

In previous legislation, such as the Water Resources Act 1963, that important function of planning future water resources was clearly spelt out. In this Bill, while the overall responsibility for water resources is placed with the National Rivers Authority, it lacks definition and is uncertain in respect of that important function. It is essential in the interests of industry and the public alike that that vital water resource planning should be undertaken by a public body which can take a long-term view unbiased by private interests.

This amendment seeks to charge the National Rivers Authority with a clear responsibility for carrying out at regular intervals a survey of water resources and existing demands, the preparation of estimates of future demand and the formulation of proposals to remedy expected deficiencies. Furthermore, the water undertakers should be required to assist the authority by providing their own demand forecasts, the data and assumptions on which they are based and their plans to remedy any expected deficiencies. Finally, they are to submit the results of this—their homework—to show that they have done it.

All that is clearly spelt out beyond peradventure and not reliant on assumption or presumption from vague generalities in other clauses. I beg to move.

The Earl of Caithness

This amendment would place the NRA under a duty to engage in a five-yearly cycle of activities consisting of surveying water resources and demands on them, forecasting future demands, and, crucially, proposing what action should be taken to meet any foreseen shortfall in resources. I emphasise that point. The last element is the central element because it would clearly put the NRA in the driving seat in respect of matters where subsection (2) of Clause 121 quite deliberately leaves the major responsibility with the water companies.

It is of course true that subsection (1) imposes on the NRA a general duty of oversight of water resources and their proper use, but by virtue of subsection (2) the prime water supply role will rest firmly with the plcs. The NRA will have a vital role to play in ensuring that abstraction licences are consistent with the proper use of inland waters, including the need to ensure that river levels are acceptable, whether or not formal minimum acceptable flows are set. But it will be the task of the plcs, overseen by the Director General of Water Services, to ensure that their forward planning of investment is sufficient to ensure the continued carrying out of their duty to supply water.

The director will monitor the performance of the water undertakers under a condition in their appointments. It is intended that that monitoring will include information on the availability of water resources. If he is not convinced that the plans of the water authorities are adequate, he will have ample powers to ensure that appropriate steps are taken to remedy the situation. He will, for example, be able to require the undertakers to set targets to improve the reliability of their water resources or to apply to the Secretary of State to impose requirements under Clause 38(1) which could be enforced under Clause 20 as a breach of the undertakers' general water supply duty in Clause 37.

I have to admit that the director general's role is not immediately apparent from the Bill itself. That is for the very good reason that it is in the conditions of appointment that the companies' duty to supply forward estimates is contained. In other words, the essential objective which the noble Earl, Lord Shannon, seeks to achieve in this amendment is, I believe, already effectively met by a different route.

The Earl of Shannon

I thank the noble Earl for his response. It appears that the provisions that I was hoping to achieve are in fact deeply covered beneath a bushel elsewhere in the Bill—very deeply covered. But I thank him for the assurance that they are there, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 377B not moved.]

On Question, Whether Clause 121 shall stand part of the Bill?

Lord Hylton

Perhaps I may repeat my invitation to the Minister to comment on the wording of Clause 121, particularly those parts of it which I mentioned on the earlier amendment.

The Earl of Caithness

I had hoped that what I said to the noble Earl, Lord Shannon, covered the answers that the noble Lord, Lord Hylton, wanted. When speaking on that amendment I meant to draw to the noble Lord's notice exactly what I was saying because I thought that it covered the very point which concerned him. If it does not I shall be happy to discuss it with the noble Lord between now and another stage to make sure that he is happy.

Clause 121 agreed to.

Clause 122 [Water resources management schemes]:

Lord Renton moved Amendment No. 377C:

Page 123, line 13, at end insert ("and

1. (c) any land which belongs to, or is under the control of, water undertakers for the purposes of, or in connection with, the carrying out of their functions.").

The noble Lord said: There is no need for me to speak to this amendment but I think that my noble friend may wish me to move it because he may have something to say about it. I beg to move.

The Earl of Caithness

I am grateful to my noble friend for moving this amendment, which was linked and grouped with Amendment No. 377ZA.

With the Committee's permission, perhaps I may take the opportunity to make one further comment on Amendment No. 377ZB which my noble friend was concerned about because of the physiographical features of special interest which, he said, he could not find in the Bill. I thought they were in the Bill, although I could not contradict my noble friend at the time. I have now found them. It is Clause 8(1)(a). I think the wording is almost identical with that in my noble friend's amendment except that what we say in the Bill starts towards the end of subsection 1(a): as to further the conservation", whereas my noble friend says: of furthering the conservation". So it ties in with the point that he raised and I hope that it will satisfy him as it is the same wording as in the Electricity Bill.

Lord Renton

For my part I am grateful to my noble friend. In a Bill of nearly 400 pages we can both be excused for not noting every phrase that is in it. But now he has put it right in the record and my anxiety is relieved. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 378 had been withdrawn from the Marshalled List.]

Clause 122 agreed to.

Clause 123 [Minimum acceptable river flows]:

[Amendment No. 379 not moved.]

Lord Moran moved Amendment No. 3 79A:

Page 124, line 2, after ("State") insert ("either in consequence of representations made to him or otherwise").

The noble Lord said: I shall say a few words in a moment about the general problem of abstraction and minimum acceptable flows when I move Amendment No. 385. This amendment has a very simple aim, which is to allow the public, if it is worried about the flow in a particular river, to ask the Secretary of State to direct the National Rivers Authority to review the minimum acceptable flow of that river.

There is nothing in the Bill which says that minimum acceptable flows are to be established, and if people are worried about a river I think that they ought to have some opportunity of putting their concerns to the Government. That is the object of this amendment. I beg to move.

Lord Gibson-Watt

This is an important amendment. I should like to support it. The question of minimum acceptable flow is a very important matter to the general public, and in particular to the riparian owners. It affects in particular an area where there is compensation water let out by a reservoir on an agreed statutory provision. Perhaps my noble friend could later given me an assurance that the plcs, when they take over the water, will have the same responsibility for the compensation water that the present water authorities have.

As the noble Lord, Lord Moran, says, this amendment gives the opportunity for somebody to write direct to the Secretary of State when he is worried about the level of the river. That is the point. I hope that my noble friend will be able to accept the amendment.

Baroness David

I should like to support the amendment. I have my name to other amendments dealing with acceptable flow. Moreover, perhaps I should nail my colours to the mast now. It is the first amendment to deal with that issue. There is a precedent in the water legislation of 1963. I hope that the Minister will accept this amendment.

The Earl of Caithness

I can well understand the concern of Members on all sides of the Committee on Amendment No. 379A. However, I am happy to assure them that the clause as drafted already achieves what the noble Lord, Lord Moran, seeks to achieve in the amendment. It is implicit in the provision that the Secretary of State may act in this respect either on his own initiative or in response to representations that he receives. I can assure the Committee that my right honourable friend's door will always be open to those who wish to suggest a minimal acceptable flow for any particular inland water.

Lord Moran

I am very grateful for that assurance. In the light of what the noble Earl has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 380 to 382 not moved.]

Lord Moran moved Amendment No. 3 82A:

Page 124, line 40, at end insert ("and shall do so for every river for which a water quality objective is established.").

The noble Lord said: I shall speak briefly to this amendment. The aim is to ensure that a minimum flow is set and enforced for all water for which a water quality objective is established. Water quality objectives and minimum flows ought clearly to be linked. If levels are set for one, it seems to me that a corresponding level should be set for the other.

The maintenance of thriving fisheries and the ecology of the waters in which they are situated are dependent on adequate flows and water quality. This amendment seeks to ensure that the National Rivers Authority has the necessary power to make use of it. I beg to move.

11.15 p.m.

The Earl of Caithness

First, with the permission of the Committee, perhaps I may add to what I have said on the previous amendment of the noble Lord, Lord Moran. It was a point raised by my noble friend Lord Gibson-Watt and I should have answered him then. I can give my noble friend the assurance that he seeks.

On Amendment No. 382A, it is intended that water quality objectives will be set for all significant rivers in England and Wales. While clearly the flow of water in those rivers will be important in dilution terms and will play a part in achieving quality objectives, these are not the only considerations and it does not necessarily follow that minimum acceptable flows should be determined for all such rivers. The purpose of minimum acceptable river flows is rather different. It is to provide a formal means for public health to be safeguarded, for the requirements of all lawful uses made of the water to be met, and for the needs of land drainage, navigation and fisheries to be protected. I know that the noble Lord, Lord Moran, will be particularly pleased about the last part of the sentence.

The Bill does not attempt to specify specific circumstances in which it would be appropriate for a minimum acceptable flow to be determined. Rather it gives the NRA the degree of flexibility it needs to concentrate on those stretches where there are real problems and generally decide what its priorities for action should be. However, in determining flows the NRA is required to have regard to any water quality objectives set. The Secretary of State will additionally have a new power to instigate the setting of minimum acceptable flow in individual instances where he feels it appropriate, perhaps following representations from the noble Lord, Lord Moran, himself.

I believe the approach to determining minimum acceptable flows adopted in the Bill is the right one. It provides the NRA with the discretion it needs in deciding priorities while ensuring water quality objectives are taken into account.

Lord Moran

I should like to study in Hansard what the noble Earl has just said. I am grateful to him for what he said and glad that water quality objectives will be established for all significant rivers. The position is obviously more complicated about minimum flows and I wish to study the Minister's remarks, take them away and see whether I need to say any more at a subsequent stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 383 and 384 not moved.]

Lord Moran moved Amendment No. 385:

Page 125, line 9, at end insert—

("(8) In pursuance of the provisions of subsections (1) and (2) above the Authority may, and shall, if so directed by the Secretary of State—

1. (a) withdraw an abstraction licence in respect of which no abstraction has been made in the previous 5 years;
2. (b) vary an abstraction licence by reducing the licensed quantity to an amount not exceeding the maximum amount abstracted during the previous 5 years;
3. (c) revoke an existing abstraction licence;
4. (d) in granting a new abstraction licence, impose conditions as to the level of charge which must be paid by the abstractor having regard to the likely cost to the Authority of maintaining a minimum acceptable flow in any watercourse affected by the abstraction;
5. (e) introduce a scheme of differential charging for abstractions whereby higher charges may be made for abstractions within river basins for which a minimum acceptable flow has been determined.").

The noble Lord said: This is the main amendment among those I am moving, dealing with over-abstraction from rivers and with minimum acceptable flows. The Nature Conservancy Council said some time ago: Over-abstraction from rivers and groundwater is affecting wildlife habitats, such as chalk streams and fens. We have recommended that all abstractions are brought under the control of the National Rivers Authority and reviewed periodically.

I know that on my own river, the Wye, which is now at the dead low summer level, there has been no substantial rain to speak of since March. But 12 to 14 per cent. of the flow is being taken out of the river now at Redbrook. Many rivers are in a much worse state. The Nature Conservancy Council has pointed out that the majority of abstractions creating environmental problems have licences of right issued before the 1963 Water Resources Act. That means that they cannot be altered, except at the request of the abstractor. As a result, a large number of rivers are suffering from low flows and fens and marshes are drying out.

The NCC has produced a number of examples and I shall not go into them all now, but will give just one example, of the river Misbourne in Buckinghamshire. It is one of six rivers suffering from over-abstraction and was the subject of a report by Halcrow to Thames Water in April 1988. The NCC says: The abstraction of groundwater by Thames Water and Rickmansworth Water Company has had a deleterious effect on this river, which is largely dependent on spring flows from the chalk. The perennial head has moved downstream by about five kilometres to Little Missenden, leaving the lakes at Great Missenden Abbey Park dry most of the time. Flows in the perennial stretch down to Chalfont St. Giles are much reduced.

That can be repeated for very many rivers in this country. The water authorities have told the NCC that they cannot take action on licences of right.

The Royal Society for Nature Conservation is also worried about the situation and recognises the threat that over-abstraction and resultant low flows represent to sensitive river and wetland habitats. It has examples of the damage caused from several of its associated wildlife trusts.

The essence of the problem is that Clause 123 replaces Section 19 of the Water Resources Act. That Act placed an obligation on river authorities and in turn on water authorities to consider whether inland waters should be subject to minimum acceptable flow determinations and to submit to the Secretary of State proposals for prescribing minimum acceptable flows for those waters considered suitable for such treatment.

That was 26 years ago. How many submissions were made to the Secretary of State? There was none in 26 years. Perhaps that is not surprising because the main abstractions that were causing the damage were being made by the water authorities. For that reason I believe that it is most important to include a provision in this part of the Bill which makes the arrangement much more effective. Further, the NRA should be required to prescribe minimum flows in all significant watercourses. Of course that cannot apply to all because some are winterbournes which dry up naturally.

It is important that all abstractions should be reviewed. I hope I have covered that suggestion in Amendment No. 386A, which I shall move subsequently. It is also important that licences which are not used should be withdrawn. One of the problems has been that many existing licences are underused. For example, in the Northumbrian Water Authority area only 9 per cent. have been taken up. The largest number is in Severn Trent area, with 62 per cent. In the Thames area it is only 25 per cent. So a large number have not been taken up.

Perhaps the NRA could start by modifying existing licences in order to reduce the permitted quantity to a figure no higher than the amount abstracted under that licence during the preceding five years. It is difficult to put such a policy into an amendment but that which I now move is an effort to do so.

I was in correspondence about the matter with Mr. Moynihan earlier this year. He wrote to me on 30th January stating: As far as over-abstraction is concerned, we recognise that there is concern about reduced flows, which is sometimes attributed to over-abstraction, particularly from ground waters in chalk areas … As you will know, the Water and Sewerage Law Review recommended that all large-scale continuous abstractions should be brought within the system and that the current categories of exemption should be removed. This rationalisation will allow the NRA to improve the management of resources and help to prevent future over-abstraction".

I was very encouraged by that comment and I should like to ask the Minister whether that will occur. Mr. Moynihan continued: In dealing with applications for abstraction licences the NRA will have regard to the requirements of existing abstractors and the need to maintain minimum acceptable flows… These considerations include the current flow, the general environmental duties in Clause 7 as well as river quality objectives".

I am sorry to have taken so long in dealing with the amendment but it is a very complicated and important matter. I beg to move.

Lord Middleton

On Second Reading I referred to the particular concern of the Nature Conservancy Council about which the noble Lord, Lord Moran, has just reminded us. The situation is that there are numerous stretches of river in various parts of the country where the flow is considerably less than is needed to maintain a healthy river with a reasonable fish population. I prefer this amendment to Amendment No. 386 and also to that in the name of the noble Lord, Lord Moran, Amendment No. 386A, because I do not believe that it is necessary to review all licences but only those in special areas, where there are flow problems.

I recognise that as regards paragraphs (a), (b) and (c) of this amendment, water authorities now have and the NRA will have the power to revoke or vary abstraction licences under Section 43 of the Water Resources Act 1963. However, the power is not specifically linked to the problem of minimum acceptable flows as this amendment is. I hope that we may have an assurance from the Minister that the NRA will be encouraged or, indeed, forced to use the power where necessary in that context.

Paragraphs (d) and (e) of the amendment seek to ensure that where licences are not withheld or withdrawn, those abstractors who significantly affect river flows will be discouraged from abstracting more than is absolutely necessary by having to pay much more for water from those sources than for water from other sources. The charges to be paid by abstractors will be determined by a scheme made by the NRA under the provisions of Clause 125, but it is not clear whether such a scheme would allow for the additional or differential charging referred to in this amendment.

I believe that such measures would help to solve the low flow problems. The Minister may be able to assure us that those powers contained in the amendment exist or, if not, that the Government will consider amending the Bill.

The Earl of Radnor

I appreciate the thrust of this amendment but most of it would fill the fish farming fraternity—and again I declare an interest—with grave forebodings. I hope that if anything like this is accepted, it will be rather more detailed than it is now and will cover the rather different form of abstraction which those people practise; namely, the taking of water out of the river and then very hurriedly, putting it back again. I believe that the amendment seeks to deal with sucking great quantities of water out of substrata or taking huge quantities out of the river and not returning them instantly. I believe that the fish farming fraternity is a different case and I do not believe that it is adequately catered for in this amendment.

Lord Gibson-Watt

Perhaps I may add one point to the very powerful speeches made on this point. For some time the water authorities had discretionary powers to set minimum acceptable flows for inland waters. As the noble Lord, Lord Moran, said, in some cases they failed to come up to expectations. The NRA will be given those discretionary powers under Clause 123. However, in my view the NRA will be very short of money and the temptation to sell too great an allocation of abstraction licences will be very great indeed. That is a point which I hope my noble friend will consider. I believe it is essential that an amendment of this kind should be accepted by the Government.

Baroness Blatch

As I understand it, the Water Resources Act 1963 at present gives power to water authorities, and in the future that will be the NRA, to revoke licences. Whereas I understand the comments made by the noble Lord, Lord Moran, that that power has not been used effectively in the past, it could have something to do with the rationale behind the Bill.

The Bill is about making independent the authority to take those powers. In the past, the water authorities have passed judgment on their own misdemeanours. Therefore, I believe that the powers are there and one hopes to see them work rather better under the new arrangements. Of course, the 1963 Act contained powers to compensate the licence holder for any expenditure incurred. As I understand the amendment—and I need to have these points clarified, if possible—the NRA has the power to revoke the abstraction licence which is causing the deficiency but does not have the power to make compensation, which it would have had. Therefore, there is a particular problem.

There is also an operational problem for the water companies, in that they could be left without adequate water resources. There is a more serious problem of long-term planning for the water companies. I notice that the term "5 years" is referred to in the amendment, but planning the water business is much more long term. Indeed, to take the example of Rutland Water, the lead time for planning is 20 years upwards. There is therefore a problem on long-term planning. Step licences might be an answer, with the flexibility of allowing long-term planning and some compensation where licences are revoked; but why not allow this Bill to go forward as drafted to see it work and see the NRA exercise its new power, which I believe may well be exercised rather differently from the power now held by the water authorities?

11.30 p.m.

Baroness David

The noble Lord, Lord Moran, mentioned that the Royal Society for Nature Conservation had received examples from several of its associated wildlife trusts of occurrences of low flows leading to the increased concentration of pollutants in recipient waters. It has given me examples from the River Torridge in Devon, where apparently the RSNC visited over 3,500 farms in the south-west region and found 235 illegal discharges. Therefore, low flows create a problem and something in the nature of this amendment to stipulate acceptable minimal flows is important in regard to pollution generally. Therefore, I support the amendment.

Lord Middleton

My noble friend Lady Blatch referred to compensation. As I understand it, Section 46 of the Water Resources Act 1963 provides that where a licence is revoked or varied the licence holder will be entitled to compensation for abortive expenditure on equipment or for any losses or damage due to variation or revocation.

My understanding is that this compensation will be payable by the NRA—if I am wrong I am sure my noble friend the Minister will correct me—and presumably recoverable through charges made to other abstracters.

The Earl of Caithness

This amendment is aimed at securing acceptable levels of river flows and in principle I am sure that not for one moment would any of us quarrel with that objective. What it actually achieves, however, is rather different and I should like to examine each of its parts in turn.

Paragraph (a) would empower the NRA, if so directed by the Secretary of State, to withdraw a water abstraction licence if no use of it had been made for five years. The noble Lord, Lord Moran, said that it is not a power for the water authorities at present and that point of view was firmly disagreed with by my noble friend Lady Blatch, and I have to say that I agree with her on that point. She is right and the noble Lord is on this occasion mistaken.

The powers of both the NRA and the Secretary of State to withdraw a water abstraction licence or, indeed, any licence exist already via the relevant Section 43 of the Water Resources Act 1963. Exactly the same is true as regards paragraph (b), which will deal with variations licences which are not used to their full extent. My noble friend Lord Middleton also suggested that the power existed but that there was the right of compensation. I confirm that his interpretation of the Bill is right and that it will be the NRA which will be responsible in future. If paragraph (c) were accepted we would of course not need paragraph (a) as it is merely one example of the general revocation power contained in (c), but as that is already catered for those three paragraphs are not necessary.

Turning to paragraph (d), I submit to the Committee that it is again entirely unnecessary for the NRA to be given specific power to say to a new abstractor that he will be charged something towards any costs incurred in maintaining a minimum acceptable flow, since all abstractors will be charged with their fair share of any such costs as a result of Clause 125. I need hardly say that there is no case for charging new abstractors at different rates from existing abstractors. I hope the Committee will agree that that would be demonstrably unfair.

Finally, I have to say that the logic of paragraph (e) still rather escapes me. The fact that a minimum acceptable flow has been set for a river may or may not entail particularly high costs for the NRA. If it does have that effect then there may well be a case for higher charges in that part of the catchment; but if it does not, there will surely be no logic whatever in a differential charge. Whatever the case may be in any particular situation, however, the NRA will have powers to do whatever is right and proper via the wide charging powers which Clause 125 confers on it. The inclusion in that clause of a prohibition on undue preference or undue discrimination will clearly not prevent entirely justifiable weighting of charges in areas where the NRA's costs are high.

The noble Lord, Lord Moran, asked for a reassurance on the commitment given by my honourable friend Mr. Moynihan that all abstractions over 20 cubic metres a day would be included in the Bill. I can give reassurance to the noble Lord and I direct him in particular to paragraph 6 of Schedule 12 to the Act where he will find that his concerns are fully met.

Lord Moran

Before the noble Earl sits down, perhaps I may ask him what the position is as regards licences of right issued before 1963, about which I am not entirely clear.

The Earl of Caithness

I do not quite understand what the noble Lord is seeking. When I read exactly what he said in the Official Report I shall write to him on that point.

Lord Moran

I am most grateful to the noble Earl. I should also like to read the Official Report in order to study exactly what he said. I believe that I am broadly reassured, but I should like to be certain about that after I read what was said. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 123 agreed to.

Lord Norrie moved Amendment No. 386:

After Clause 123, insert the following new clause:

("Licences to abstract water. .

. Where— (a) a licence to abstract water is held under the Water Resources Act 1963; or (b) a licence of right to abstract water is held under that Act, the Authority shall, within five years of the passing of this Act and every five years thereafter, review all such licences and if it, the Nature Conservancy Council, the Countryside Commission, the Regional Rivers Advisory Committee or the Regional Fisheries Advisory Committee is of the opinion that it is appropriate to do so, the Authority may vary the conditions or revoke or otherwise suspend such licences in order to ensure the flow, level or volume of any inland water or any water contained in underground strata for the purposes of protecting fisheries, flora, fauna or natural beauty.").

The noble Lord said: The aim of this amendment is to set in progress a review of water abstraction licences for the purposes of maintaining minimum acceptable water levels or flows of water table levels. Licences to abstract water from surface and underground waters are granted under the Water Resources Act 1963. Where water was abstracted by an individual or body prior to the passage of that Act, they were granted a licence of right under the 1963 Act. The maximum volume that can be extracted under the licence of right was determined at a time when our knowledge of water resources was not as complete as it is now. In many cases the volume has been set at a limit that is greater than can be sustained by the natural recharge of underground sources.

Holders of licences of right include water authorities, statutory water companies and industry. Increasing urbanisation and the expansion of industry has led, especially in the South and East of England, to a large increase in water demand. Larger volumes have been abstracted to satisfy the demand for water up to the limit set by the licence of right. In cases where the total volume licensed for abstraction has been improperly determined, this has led to the lowering of the water table, low flows in rivers and, in some cases, the river drying up completely. Clearly, a dry river cannot support fish or other wildlife such as otters, kingfishers and herons. Reduced flow in the river can give rise to high concentration of pollutants with consequent damage to the life in the river.

Abstraction of underground water can cause a lowering of the water table which in turn causes springs to dry up and chalk streams to disappear. Lowering of the water table through over-abstraction affects not only the rivers but also ponds, lakes and marshes along the valley. Wet meadows which occurred along many river valleys have dried up and the snipe, redshank and yellow wagtails which bred on them have disappeared. Nature reserves belonging to the Royal Society for the Protection of Birds at Fowlmere in Hertfordshire, Strumpshaw Fen in Norfolk and Dungeness in Kent, which were purchased specifically to protect the birdlife, have all been affected by over-abstraction for drinking water. Marshes have dried up and expensive boreholes dug and pumps installed to maintain the water levels in the face of over-abstraction by water authorities and private companies.

At Strumpshaw Fen, for example, the Anglian Water Authority itself installed the borehole. There is, unfortunately, no guarantee that the private water companies will always necessarily take the same view about their duties. We must surely not allow voluntary conservation organisations to foot the bill for installing expensive boreholes made necessary just because licences have not been properly reviewed.

I should like to draw attention to the problems of over-abstraction in the upper Thames area, with which I am familiar, where the level of the River Kennet in January 1989 was flowing at between 50 per cent. and 75 per cent. below the norm. From a river keeper's point of view, if levels drop dramatically, flow decreases; the water table level drops; silting occurs; there is de-oxygenisation; pollution from road salts and fertilisers are not diluted sufficiently; toxic levels build up in the rivers; nitrate levels and weed growth increase; water temperatures rise, which again causes oxygen levels to drop and carbon dioxide levels to increase. The result is that fish, birds, insects and plants suffer, decline and disappear. I should also point out that the more the Kennet canal is used—in other words, the more its lock gates are opened—the more the level of the river, which runs parallel to it, will drop.

Similarly, abstraction of ground water by Thames Water at Compton was started in 1965 to supply drinking water to Didcot. This has resulted in a reduction of the average flow in the River Pang at Hampstead Norreys—the present upstream limit of flow—from 4 to 0.5 megalitres a day—a dramatic decline. Compton pumping station is about five kilometres north-west of Hampstead Norreys. In the valley above, known as the Winterbournes, springs and flooded washlands have all been lost since 1965 as a result of this over-abstraction. I am afraid that I could give many more examples of the effects of over-abstraction. They all point to the need for suitable measures in the Bill to prevent it happening again.

The National Rivers Authority will be given in Clause 123 discretionary powers to set minimum acceptable flows for inland waters. Those could be used to protect rivers. Similar discretionary powers are currently held by the water authorities under the Water Resources Act 1963, but they have failed to use them to protect rivers. Such powers do not prevent the lowering of the water table through groundwater abstraction which has affected and destroyed numerous small ponds, marshes and fens.

This amendment is supported by, among others, the National Anglers Council. It is not surprising that, in common with conservationists, anglers are particularly concerned about the effects of over-abstraction. A timetable review of all abstraction licences is necessary if the NRA is to manage water resources and protect fisheries, fauna, flora and natural beauty in an effective manner. This amendment will begin this urgently needed review. I beg to move.

Baroness David

My name is attached to the amendment and I should like to add my support to it. I shall give examples from the area of the country where I live, East Anglia. I should also like to refer to the Redgrave and Lopham Fens in Suffolk. The Fens are a nature reserve of the Suffolk Wildlife Trust and they are an SSSI, notified by the NCC. The Fens are currently being considered for designation by the Government as a wetland of international importance under the Ramsar Convention. But, unfortunately, 20 of the 330 acres have already dried out because of abstraction of groundwater by the East Anglia Water Company.

The borehole was originally operated by Hartismere RDC in the early 1950s. Pumping has increased and rare plants—such as the fen orchid (Liparis loeselii)—have disappeared completely. I think that it is important to remember the flora as well as the fauna and the fish when we are considering the question of minimal flows in water abstraction.

I could give other examples in this respect—we have many of them—but I realise that the time is late, so I shall just add my support for the amendment. I think that this is an important problem which I hope the Government will take seriously.

11.45 p.m.

Lord Moran

I should like to express my support for this amendment. I mentioned the problems concerning the River Kennet on Second Reading and I think that they are quite serious. In my view this amendment is a good deal better than the amendment tabled in my name (Amendment No. 386A) which has in fact been grouped with it. I think that this amendment is to be preferred.

The amendment tabled in my name was designed to arrange that all licences, including licences of right, should be subject to review not more often than once every five years. Many licences have been in existence since 1965 without review. Once a licence has been issued that amount of water has to be made available in the watercourse, or the acquifer, at all times irrespective of whether it is used. It is my contention, as I have already pointed out, that many licences are not used. I believe that licences of right take up too high a proportion of the available resource.

However, I think that such points are fully covered in the amendment proposed by the noble Lord, Lord Norrie, and I hope very much, therefore, that it will be accepted.

The Earl of Arran

This amendment, if passed, would impose upon the NRA the enormous administrative burden of reviewing every five years all the several tens of thousands of existing abstraction licences and, moreover, involving two other outside bodies as well as two of its own advisory committees in each such review.

I must put it to the Committee that if, as we believe we all want, the NRA is to be an efficient and cost-effective body, this would be a very good way of achieving precisely the opposite. It would instantly become a bloated bureaucracy constantly at odds with either abstractors who perceived a threat to their vital access to water, or with the Nature Conservancy Council and Countryside Commission, or more likely both sides.

And to what avail? The Bill already provides the NRA with the powers which both this and, certainly amendment No. 386A, seem to assume it will not possess; namely, the right to review any licence, including a licence of right, at any time. I refer to Section 43 of the Water Resources Act 1963. The proper exercise of that power involves the precise consideration of where, exactly, it is necessary to amend or revoke a licence; shall we say the sniper's bullet rather than the machine gun?

We are of course well aware that the existing water authorities have not been over-keen to use their powers in this repsect. That is perhaps not entirely surprising if only because of the inevitable objections to withdrawal of a licence on which much may depend, and of the need to pay compensation for any loss incurred. But the fact that water authorities are themselves major abstractors must also have been an inhibiting factor, and one which will not apply to an NRA independent of all abstractors. For that reason, I ask my noble friend not to press the amendment.

Lord Norrie

I have listened with considerable care and interest to the views of my noble friend the Minister who will, I think, have noticed the concern expressed from all sides of the Chamber on this issue. Whatever the Government may feel about the rigours of a timetable for reviewing abstraction licences, they must recognise the seriousness of the problem of over-abstraction and the effect on the environment. The Government's own statutory advisers (the NRC) have gone on record as expressing their particular concern, that the provisions on the control of water extraction currently contained in the Bill are insufficient to enable the NRA to deal with serious environmental damage to rivers and wetlands". I do not question the intentions of the Government and the NRA which are, I am sure, to deal with this problem, but I question whether the Bill will allow them to do the job.

I regard this as a matter of great concern. I shall be returning to it at the next possible opportunity. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ezra moved Amendment No. 386ZA: After Clause 123, insert the following new clause:

("Restoration of water

1. (1) Where it appears to a local authority that the flow in any natural inland water in their area has diminished to such an extent that the amenity of their area is thereby impaired, they may require the Authority to submit a draft statement under section 19( 1)(a) of the Water Resources Act 1963 (minimum acceptable flows) to determine the minimum flow necessary to restore the amenity of that water.
2. (2) On receipt of a requirement under subsection (1) above it shall be the duty of the Authority to make such a draft statement forthwith and to include in it any proposals under section 43 of the Water Resources Act 1963 (variation and revocation of abstraction licences) as may be necessary to give effect to the statment when it is approved.
3. (3) The Secretary of State may by regulation provide for the joint submission and approval by him of a statement and proposals made under subsection (2) above.
4. (4) In considering a draft statement and proposals made to him under this section the Secretary of State shall have regard to all the matters set out in subsection (5) of section 19 of the Water Resources Act 1963 but, where he is satisfied that adequate supplies of water are available to existing licence holders he shall, in making his decision, give greater weight to the interests of amenity than to the economic interests of those holders.").

The noble Lord said: The amendment also deals with the problem of over-abstraction with which we have been concerned for some time. The previous amendments, in particular Amendment No. 386, have been opposed by the Government on the grounds that they would impose too much of a bureaucratic burden on the NRA. It is proposed that that burden be much reduced. Reference has been made to the Water Resources Act 1963, in particular to Sections 19 and 43, which are specifically mentioned.

It is proposed that where over-abstraction may have taken place, the local authority of the area concerned should draw the attention of the NRA to that fact so that remedial action can be taken. That is a way of dealing with the problem of over-abstraction by reference to existing legislation and in a way which would minimise the bureaucratic impact. I therefore hope that that approach to the problem of over-abstraction will gain some support from the Government. I beg to move.

Earl Russell

It is too long since I did chemistry for me to remember whether water can be a catalyst, but it appears that the Water Bill can be. It has focused environmental concern in a remarkable way. We have been listening to an example of that for the past half an hour or so. One does not often hear, as we have heard today, the general outpouring of concern from every quarter of the Chamber.

When that phenomenon happens it is something to which governments would be wise to pay attention. We have had several amendments shot down for technical reasons. If the Government are not satisfied with the drafting, it would be a good idea if they gave their minds over to thinking what they would offer instead. An appearance here of no concession would be extremely unfortunate.

Baroness Blatch

It would seem that all the amendments we have had of late are concerned about, and addressing, the point of over-abstraction. It might help to require the NRA to produce for consultation plans for all river basins, in addition to minimum and acceptable flows. That could also include classification of rivers according to character and use, and classification under Clause 101, which relates to quality of water. Some similar classification as to quantity, character and use of water may be needed, and some method of assessing the requirements of its various users. That could be followed by publication of a river management policy for each catchment area, and form the basis for controlling abstractions and preserving adequate residual flows below abstraction points.

The Earl of Arran

The first three subsections of this amendment attempt to give local authorities a particular locus in the determination of river flows, and I suspect the noble Lord proposing it will assume that it is for that reason alone that I oppose it. That is not true. Although we do, indeed, oppose it, it is because it is unnecessary. Local authorities, like all other parties with an interest in water and the environment, already have access to the Secretary of State via the simple expedient of writing him a letter. If they can convince him of the prima facie need for directing the NRA to prepare a draft statement of minimum acceptable flow, he already has the power under Clause 123 of the Bill so to direct. If he is not convinced, there is little point in the procedure suggested here of forcing the NRA to prepare a statement only for the Secretary of State to reject it.

But it is not only on these pragmatic grounds that we oppose this amendment. We see no case in principle for giving local authorities a special place in trying to make the NRA accede to their demands. We are setting it up as an independent body able to assess objectively, and with equal weight, all representations made to it.

Nor of course do we for one minute accept the attempt in subsection (4) to make the Secretary of State or the NRA ignore the economic interests of abstractors. It is perhaps difficult to foresee the practical outcome of the proposed requirement always to give greater weight to amenity than to the cost to abstractors of obtaining water, but whatever the outcome it could hardly be a balanced one. With that explanation, I hope that the noble Lord will see fit not to press his amendment.

Lord Ezra

I must say that I feel some disquiet about that answer. It seems to me that the noble Earl has not taken sufficient account of the concern expressed on all sides of the Committee about over-abstraction. The objection to Amendment No. 366 was that it would place too large a burden on the NRA. Amendment No. 386ZA, which would diminish that burden and share it with local authorities, is equally objected to. Before deciding what to do on this amendment, I should like to invite the noble Earl to consider whether the Government would take those three amendments away and come back with something which might reassure us on all sides of the Committee that they take seriously this question of over-abstraction.

The Earl of Arran

Of course we take seriously the subject of abstraction, but we regard this as not a proper way to deal with it. As regards the requirement that the noble Lord puts forward that we might think again, I believe that we have made it sufficiently clear that we regard this amendment as not proper, and therefore there is nothing more that we can say upon it.

Lord Ezra

In spite of the late hour, I very much regret that in the light of the discussions that we have had on these three amendments, I cannot consider myself to be satisfied with the response of the Government. Therefore I beg to move.

11.58 p.m.

On Question, Whether the said amendment (No. 386ZA) shall be agreed to?

Their Lordships divided: Contents, 15; Not-Contents, 45.

DIVISION NO. 2
CONTENTS
Addington, L.	Monson, L.
Airedale, L	Moran, L. [Teller]
Ampthill, L	Norrie, L
David, B	Ponsonby of Shulbrede, L
Ezra, L. [Teller]	Russell, E
Graham of Edmonton, L	Shannon, E
Greenway, L	Tordoff, L
McIntosh of Haringey, L

NOT-CONTENTS
Arran, E.	Kimball, L.
Balfour, E	Lindsey and Abingdon, E
Belstead, L	Long, V
Blatch, B	Mackay of Clashfern, L
Brabazon of Tara, L	Middleton, L
Brougham and Vaux, L	Monk Bretton, L
Caithness, E	Oxfuird, V
Clinton, L	Pender, L
Craigmyle, L	Radnor, E
Davidson, V. [Teller.]	Renton, L
Denham, L. [Teller.]	Sanderson of Bowden, L
Dundee, E	Skelmersdale, L
Elliott of Morpeth, L	Stanley of Alderley, L
Ferrers, E	Strange, B
Gibson-Watt, L	Strathclyde, L
Gisborough, L	Thomas of Gwydir, L
Goold, L	Torrington, V
Henley, L	Trafford, L
Hesketh, L	Trumpington, B
Hives, L	Willoughby de Broke, L
Hooper, B	Wise, L
Johnston of Rockport, L	Wynford, L
Joseph, L

Resolved in the negative, and amendment disagreed to accordingly.

12.6 a.m.

Clause 124 agreed to.

Schedule 12 [Amendments of the Water Resources Act 1963]:

[Amendment No. 386A not moved.]

Lord Stanley of Alderley moved Amendment No. 386AB:

Page 231, line 12, leave out ("twenty") and insert ("forty").

The noble Lord said: With the permission of the Committee, in moving Amendment No. 386AB I should also like to speak to the three following amendments.

I hope that my noble friend will agree that it is only sensible to increase the permitted amount of abstraction without licence from 20 cubic metres to 40 cubic metres in order to reduce bureaucracy. Many herds drink more than 20 cubic metres of water and I feel sure that the NRA will not want to have the bother of administering abstraction licences for a large number of dairy herds. I beg to move.

The Earl of Caithness

I compliment my noble friend on his brevity and ingenuity. I am afraid that I shall have to take a little longer to reply to him.

The Water Resources Act 1963 provides for all abstractions of water from rivers to be licensed, with certain exceptions. Those exceptions include water abstracted for agricultural purposes, other than for spray irrigation, and for domestic purposes. Schedule 12 to the Bill provides for the exemptions to be limited to abstractions of 20 cubic metres or less a day.

The provisions in Schedule 12 limiting the exemptions from licensing were drawn up in the light of proposals in, and responses to, the 1986 Water and Sewerage Law Review consultation paper. In their responses a few conservation and fisheries groups argued for lower or nil exemptions from licensing, while naturally the farming interests sought to increase them. However, the 20 cubic metres a day threshold was regarded as reasonable and welcomed by the great majority of consultees. It exempts from licensing small abstractions because the impact on the resource is likely to be insignificant while ensuring proper and effective control of all larger abstractions.

To double the exempted level of abstractions to 40 cubic metres a day would correspondingly increase the risk from the cumulative effect of a number of small abstractions. Depending on the size of the resource, over-abstraction could be a danger, with consequent environmental problems. We have heard quite a lot about that subject in the past half hour. The risk of inadvertent derogation from protected rights would increase, as would the chance of adversely affecting third party interests.

I put it to the Committee that the 20 cubic metres a day threshold represents a reasonable balance.

Lord Monk Bretton

Nevertheless, it will be a nuisance. A dairy herd of 120 cows, with its followers, will just be able to manage on the allowance where the farm is not on the main.

However, any herd which is larger will not be able to manage. That will immediately create bureaucracy of a considerable degree. I believe that the same problem will arise in connection with filling spare tanks. I had thought that it was the intention in the Bill to avoid bureaucracy involving that type of small abstraction, so I hope that my noble friend the Minister will, if possible, have a further look at those figures.

The Earl of Caithness

I hear the pleas of my noble friend Lord Monk Bretton. I suggest to him, however, that we are talking about abstractions for various purposes. Many of the items with which he is concerned—the dairy herd or spray tanks—could be filled up from the main supply at the farm.

Lord Stanley of Alderley

The point is that we are talking about non-mains. I do not want to enter into a bargaining position with my noble friend, but I think that I shall perhaps write to him between now and Report stage to see whether he will consider a slight increase. My noble friend Lord Monk Bretton has a point. On a large, or even a normal herd, 20 is running very tight. Perhaps, a slight increase might be welcome. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 386AC to 386AE not moved.]

Baroness Blatch moved Amendment No. 386AF:

Page 233, line 8, at end insert—

Section 42 of the 1963 Act

. In subsection (2) of section 42 of the 1963 Act (revocation or variation on application of holder of licence) after the word "periods" there shall be inserted the words "and all other minor variations which in the opinion of the Authority are not likely to affect other licensed abstractors,".).

The noble Baroness said: This amendment stands in the names of my noble friend Lord Cranbrook and myself. Under the law as it stands at the moment—Section 42(2) of the 1963 Act—any variation to an existing licence, however trivial, other than a reduction in quantity, is subject to the full advertising procedure. I believe that that system leads to unnecessary bureaucracy. Advertising should be required only for increased quantities other than significant changes at the NRA's discretion. As present, a farmer has to advertise his wish to irrigate different fields. That causes an extra workload for the NRA and unnecessary expense for licence holders with no corresponding benefit. That would equate with the position under COPA where the NRA can dispense with the advertising requirements when the discharge will have no appreciable effect on the waters. I beg to move.

The Earl of Caithness

I have some sympathy with what my noble friend Lady Blatch has just said. There may well be occasions when the variations to licences applied for are such that they will have no adverse effect at all on the flow of water or on other abstractions. However, the difficulty that I see with the amendment is that it gives no guidance on the size of increase or other change in a licensed abstraction that could be considered to be a minor variation. I recognise that that will very much depend on the nature of the source in question. However, I am concerned that such an open-ended provision could lead to disputes between the authority and licensed abstractors, or others such as conservation or fisheries interests who were not initially aware of the variation because of a decision by the NRA—acting in all good faith with the information it has available—not to advertise an application. Although in isolation the variations may be considered minor there is a danger—as I am sure my noble friend will realise—that the cumulative effect of a number of such variations could be significant.

Although I have some sympathy with what my noble friend has said, I find that on this occasion I am unable to support her as regards this amendment.

Baroness Blatch

I thank my noble friend for his sympathy and good measure in that comment. I do not intend to press the amendment at this late hour. I shall read what my noble friend has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 12 agreed to.

Clause 125 [Charges in respect of the carrying out of functions under the 1963 Act]:

The Earl of Caithness moved Amendment No. 386AG:

Page 126, line 6, after ("withdrawn") insert— ("(aa) to have regard to the desirability of ensuring that the amounts recovered by the Authority by way of charges fixed by or under schemes under this section are the amounts which, taking one year with another, are required by the Authority for recovering such amounts as the Secretary of State may consider it appropriate to attribute to the expenses incurred by the Authority in carrying out the functions of the Authority which are its water resources functions, within the meaning of the Water Resources Act 1963;").

The noble Earl said: In moving this amendment, I shall speak also to Amendment No. 386BA.

These amendments have been brought forward not to make any substantive new provision, but to put beyond doubt what are the costs that the NRA can legitimately pass on to its abstractors. If any Member wishes, I shall go into further details, but it is a fairly technical amendment. I beg to move.

On Question, amendment agreed to.

12.15 a.m.

The Earl of Shannon moved Amendment No. 386B: Page 126, line 6, after ("withdrawn") insert— ("( ) the need to ensure that the amount recovered the Authority by way of charges fixed by or under schemes under this section does not exceed, taking one year with another, such amount as appears to the Secretary of State to be reasonably attributable to the expenses incurred by the Authority in carrying out its functions under Part IV of the Water Resources Act 1963;"). The noble Earl said: This amendment is intended to establish that the water abstraction charges which are to be levied by the National Rivers Authority are based firmly on the costs incurred by the authority in carrying out its functions under Part V of the Water Resources Act 1963, and above all that they are reasonable.

The Government have made it very clear that part of the NRA's income is to come from charges to abstraction licence holders. I understand that to date there has been no consultation and little or no indication, with the possible exception of Clause 125(4), that there will be any on what is a very complex subject.

In 1987 industry directly abstracted 35 per cent. of the water, taken from both surface and ground water, for which they paid some £29 million, the water authorities abstracting the remainder. At present there are many inconsistencies in the schemes applied by the water authorities, and since asset reallocation will alter the basic water resource accounts, changes must be expected.

It is in the interests of all the industrial abstractors (which, I remind the Committee, in future will include the privatised utilities) that a fair and equitable system is created. I beg to move.

The Earl of Radnor

I should like briefly to support this amendment, for two reasons. I think that it is important to keep industry competitive. Joined with that reason, I think that it would be wrong if the NRA funded itself in this way. My own amendment will soon be before the Committee, so I shall speak no further on this one. However, for those two reasons I think that note should be taken of this amendment.

The Earl of Caithness

Part IV of the Water Resources Act 1963 relates only to the impoundment and abstraction licensing system, which will be transferred to the NRA, but does not cover its wider water resource duties, notably the costs it will incur in paying the water plcs for the right to control the waters contained in their river-regulating reservoirs. There will be two to three dozen such agreements and they will be the largest single cost incurred by the NRA in ensuring continued supplies of water to abstractors. It would be entirely wrong for the NRA to be precluded from passing on these and other relevant charges to those who benefit from them; namely, those who abstract water.

Amendments Nos. 386AG and 386BA, one of which we have just agreed to, set out fully and clearly the extent of costs which are properly met by abstractors. I hope therefore that the noble Earl will not wish to pursue the matter further.

The Earl of Shannon

I thank the noble Earl for his response. I take it from him that the charges will be reasonable and directly related to the costs incurred by the National Rivers Authority. Is that correct?

The Earl of Caithness

As I understand it, that is the situation. I also hope that that answer helps my noble friend Lord Radnor.

The Earl of Shannon

In view of that explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Caithness moved Amendment No. 386BA:

Page 126, line 9, at end insert— ("( ) For the purposes of subsection (5)(aa) above the Secretary of State shall take into account any directions given under paragraph 15 of Schedule 1 to this Act in determining the amounts which he considers it appropriate to attribute to the expenses incurred by the Authority in carrying out its water resources functions; and those amounts may include amounts in respect of the depreciation of, and the provision of a return on, such of the Authority's assets as are held by it for purposes connected with the carrying out of those functions.").

On Question, amendment agreed to.

The Earl of Radnor moved Amendment No. 386C:

Page 126, line 26, at end insert— ("(9) Notwithstanding subsections (1) and (2) above, charges for the abstraction of water for the purpose of fish-farming shall be limited to the administrative cost to the Authority of such abstraction").

The noble Earl said: My noble friend Lord Caithness has most adequately answered my question in his reply to the noble Earl, Lord Shannon. The noble Earl asked the direct question whether abstraction would be related to the cost of administering that. That is the question that I ask in this amendment. I think I should go away contented.

There are one or two matters that I wish to raise. It would be an added advantage to fish farmers if this were the case, because it would standardise matters. At the moment they are charged in different ways all over the country. The variations are absolutely wild. I should like to make the point that the abstraction practised by fish farmers is of the milder kind. For the most part they merely take water out of the river and put it straight back, in precisely the same quantity, although, one has to admit, not precisely the same quality. I beg to move.

The Earl of Caithness

I am grateful to my noble friend for moving this amendment. It enables me to say a word or two more specifically with regard to fish farmers. Clearly any charging scheme must not involve such heavy burdens as to drive fish farmers straight out of business. But neither must it artificially protect them from paying costs from which they derive real benefits. There will be ample time for full consultation to take place on this issue since the NRA will almost certainly not be in a position to institute a charging scheme for this new group of licence holders until next April. Meanwhile, I am sure that fish farmers have no need to be alarmed.

Let me repeat to my noble friend—I am sure he will pass this on—that any representations they make will be listened to carefully.

The Earl of Radnor

I am most grateful to my noble friend. I am happy to withdraw the amendment in view of the fact that my noble friend has answered the question as I wished it answered. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 125, as amended, agreed to.

Clause 126 [Provision of information about water flow etc.]:

Lord Addington moved Amendment No. 386D:

Page 126, line 47, at end insert— ("(2A) Within one year of the transfer date every water undertaker shall prepare an estimate of the existing and future water supply requirements for its area and formulate proposals for meeting those requirements and shall submit those estimates and proposals to the Authority in such form and in such manner as the Authority may require, and the Authority may require water undertakers to review their estimates and proposals at such period it thinks reasonable.").

The noble Lord said: Under Section 24 of the Water Resources Act 1973 water authorities had to prepare plans and estimates in the same manner as set out in subsection (2A). This amendment would restore a duty on undertakers to plan for future supply and make requirements on them for any future development. It also allows public access to these plans and estimates. In particular, this information might be extremely useful to businessmen planning any new factory, or developers any new housing. I beg to move.

The Earl of Arran

These amendments would put the NRA in a position of vetting the water plcs future plans for meeting demands for water, while Amendment No. 386G would subject those loans to the direct scrutiny of the Secretary of State for Wales.

The first three amendments in particular cut right across the provisions which the Bill makes for the director general's relationship with the new water companies. The NRA's role is to deal with those aspects of water management which are not to be privatised; in other words, mainly river flows, river and sea water quality, flood defence and so on. Clause 121, in imposing water resource duties on it, makes it quite clear that these duties are without prejudice to the water plcs own duty to ensure adequate water supplies for their customers.

The Bill already makes it quite clear that the director general will ensure that these duties are fulfilled. It will be his job to enforce compliance with the undertaker's licence conditions, and it is intended that measures of availability of water reserves will be one of the items included in his routine monitoring of their compliance. It would be both impractical and illogical therefore to ask the NRA to duplicate this work.

It seems to me equally illogical in Amendment No. 386G to single out Wales for special attention in this context. The Secretary of State's ability under Clause 32 to obtain any information which he may reasonably require from the undertakers regarding the carrying out of their statutory functions already extends to the whole of England and Wales. Quite apart from that, particular proposals for the development of water resources can hardly have anything but the highest public profile, probably including full-scale planning inquiries, at which the pros and cons of the proposal and its alternatives will be fully aired. If the proposal is unacceptable in planning terms it will not be allowed to proceed. If it is acceptable it quite rightly will be allowed to proceed. This seems to us to constitute an entirely adequate system of controls and to make the amendment unnecessary. It is for that reason that I ask the noble Lord not to press the amendment.

Lord Addington

The noble Lord gave me a very full and complicated answer and I should like the opportunity to study what he has said. Bearing that in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 386E, 386F and 386G not moved.]

Clause 126 agreed to.

Clause 127 [General drought orders]:

Baroness Blatch moved Amendment No. 386H:

Page 127, line 39, at end insert— ("( ) It shall be the duty of the Authority whenever circumstances arise in which it is likely to make an application to the Secretary of State under this Section to liaise with the water undertakers and sewerage undertakers likely to be affected by such application with a view to ensuring that any such application has regard to the statutory duties of those water undertakers and sewerage undertakers under Part II of this Act.").

The noble Baroness said: As regards Amendment No. 386H, Clause 127 gives either the NRA or any water undertaker power to apply to the Secretary of State for a drought order. Any order applied for by the NRA in particular will have severe implications for a water and sewerage undertaker. Schedule 13 provides for service of notices and makes provision for the giving of objections to and the consideration of objections by the Secretary of State. If this amendment were to be accepted, a water undertaker or sewerage undertaker would be less likely to object to any application for a drought order by the NRA.

The amendment would place a duty on the NRA, whenever a shortage of water occurred and it appeared likely to the NRA that it would need to apply for a drought order, to liaise with water undertakers and sewerage undertakers which would be affected by the order.

The idea behind such liaison would be that any application for a drought order by the NRA should have the least possible effect on the statutory obligations of the water and sewerage undertakers. By liaising in advance I should have expected that many of the objections which the water and sewerage undertakers would otherwise have been likely to make could be forestalled. A particular point is that the NRA should liaise with water undertakers and sewerage undertakers before applying for a drought order.

As regards Amendment No. 386J, a drought order made on application of the NRA under Clause 127 may contain provision authorising the NRA to suspend, vary or attach conditions to a discharge consent. This provision applies to discharge consents granted to all dischargers. Sewerage undertakers should be treated differently from other dischargers, factories etc. It is possible for most factories to close down during a drought and thus stop discharging. There is provision in Schedule 13, paragraph 6(5) for the NRA to pay compensation to people affected by the variation etc. of discharge consents. Sewerage undertakers cannot stop the input to their sewage works and therefore need somewhere to discharge the effluent.

This amendment would require the NRA to agree to and consent to an appropriate alternative means of disposing of that effluent for the duration of the drought order. The amendment is particularly important as, without it the sewerage undertaker would be liable to prosecution under Clause 104 of the Bill for discharging sewage effluent in breach of the conditions attached to the discharge consent. In normal non-drought times, the sewerage undertaker could have been complying with the conditions of its discharge consent.

By an order under Clause 127, the NRA could, for example, vastly reduce the quantity of effluent a sewerage undertaker was authorised to discharge under a discharge consent, or vastly increase the quality conditions attached to the discharge consent. A sewerage undertaker may well be unable to comply with the much more strenuous discharge consent conditions.

Therefore a sewerage undertaker should not be committing a criminal offence merely because it is unable—that is, technically unable—to comply with the revised discharge consent. A drought order may authorise the NRA to alter conditions attached to a discharge consent relating to sewage effluent. Sewerage undertakers are in a different position from other dischargers in that they cannot stop the input to their sewage works. A sewerage undertaker must have somewhere to discharge the effluent from its sewage works. This amendment requires an alternative means of disposal to be agreed before the variation of the discharge consent takes effect. I beg to move.

12.30 a.m.

The Earl of Arran

I need hardly say that I could not agree more with the spirit of these amendments which my noble friend Lady Blatch has moved. It would of course be wholly unacceptable for the NRA to go about seeking orders to suspend abstraction from particular sources of supply or to stop discharge to a particular outfall without being quite clear what the effects would be on the ability of the undertakers to fulfil their vital duties. But I do not agree that these amendments are necessary to prevent this kind of situation arising.

This is because there are already two major safeguards built into the Bill. First, Clause 7(5) requires the NRA to have particular regard to the undertakers' statutory duties in exercising any of its powers. It would be clearly in breach of that duty if it did not even consult with the undertakers when acting under the drought powers in ways which would adversely affect them. Secondly, it is the Secretary of State who must actually make a drought order. Since all applications must be notified to each affected undertaker, by virtue of Schedule 13, there is no doubt that they would be in a position immediately to complain to the Secretary of State if their interest had been disregarded.

I hope that with those arguments and reasons I have persuaded my noble friend not to press the amendment.

Baroness Blatch

If that is an assurance that consultation will take place as the Bill stands and that a criminal offence is not committed if, for technical reasons, a company is unable to comply with the order, I am entirely happy with the reply. However, I shall read what the Minister has said, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 386J not moved.]

Clause 127 agreed to.

Clause 128 agreed to.

Schedule 13 agreed to.

Clauses 129, 130 and 131 agreed to.

Clause 132 [Flood defence functions of the Authority]:

Lord Addington moved Amendment No. 387:

Page 135, line 16, leave out from ("defence,") to ("and") in line 19.

The noble Lord said: The Bill requires the NRA to discharge its land drainage and flood defence functions through regional committees, in much the same way as do the water authorities at present. As currently drafted, Clause 123 gives the NRA the power to give directions to the regional flood defence committees where works are planned for flood defence purposes and are likely to have a material effect on the NRA's other river management activities.

The clause appears to be too narrowly drawn. The NRA should have greater powers to direct the RFDCs than those contained in the clause. The concerns are basically two-fold. First, the existing water authority regional land drainage committees have nearly always contained a majority representation from the agricultural community. There are several instances where worrying disagreements have occurred between the interests of the agricultural community and those of wildlife, especially in terms of habitation. That is particularly apparent as regards wetland and marshland areas, which are very important for certain types of bird life. For example, the Wessex Authority's RLDC proposed a drainage scheme for the Brue Basin in the Somerset Levels and Moors which included the Tealham and Tadham SSSI which is of importance for wintering and breeding wildfowl and waders.

Among others, the RSPB believes that the NRA should have powers to prevent the RFDC from promoting specific drainage schemes where the NRA considers that the scheme is against the interest of the general public and/or environmental interest.

Secondly, there is a need to ensure that there is co-ordination in respect of sea defence works. A scheme carried out by one NRA region may well have an effect on another. For example, there is the problem of the movement of sand and shingle through a process known as long shore drift. Measures to build up sea defences in one area by controlling erosion may encourage the accretion of sediment and may cut off the supply of sediment to locations further along the shore, consequently promoting erosion elsewhere. Naturalist groups, again including the RSPB, believe that the NRA should have the power to make sure that any disputes which occur between regional branches of its organisation should be monitored and co-ordinated so that the general benefits to all are seen. In order to ensure that general public interest is protected at all times, it is essential that the NRA is given the power to intervene and direct flood defence committees along the coastline. I beg to move.

Baroness Trumpington

The effect of this amendment would be to enable the NRA to give specific or general directions on the carrying out of its flood defence functions. I must tell the Committee that that would be entirely inconsistent with the provisions of Clause 132(3) whereby the authority is required to discharge its functions under the Land Drainage Act 1976 through flood defence committees.

The Bill reflects the present arrangements whereby water authorities may only direct their land drainage committees on flood defence matters concerning the authority's wider management of water. The arrangement works satisfactorily and there is no need to change it. While it is right that we should be vigilant on environmental issues, I assure the Committee that they are considered with great care, and I hope that Members will agree that it is unnecessary to disturb the balance of responsibility provided for in Clause 132. I hope that the noble Lord will be willing to withdraw his amendment in the light of that explanation.

Lord Addington

I thank the noble Baroness for that reply. I am still not 100 per cent. certain about this matter. However, in view of what she said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 387A not moved.]

Clause 132 agreed to.

Schedule 14 [Amendments of the Land Drainage Act 1976]:

Lord McIntosh of Haringey moved Amendment No. 387B:

Page 245, line 23, at end insert— ("( ) After subsection (6) there shall be inserted the following subsection— "(6A) Nothing in this section shall confer any power on a drainage authority to obstruct or otherwise interfere with any highway." ").

The noble Lord said: I should also like to speak to Amendments Nos. 394CB to 394CM. Schedule 14 refers in particular to changes to the 1976 Land Drainage Act and in the case of this amendment to Section 17 of that Act.

The problem with Section 17 of the Land Drainage Act, as has been experienced over a period of years, is that it is defective because it does not provide adequate protection for highways, which is a rather curious word but it really means from this point of view footpaths and bridleways, when drainage works are carried out. What tends to happen in a number of cases is that drainage ditches are widened and the result is that, for example, footbridges may be destroyed and not replaced, or damage may be done to bridleways which is not put right.

On the whole, when drainage work is done which affects vehicular highways, that tends to be put right because the position is more obvious, but it is the footpaths and bridleways which are at risk. Therefore, the amendment seeks to improve the position as it stood in the Land Drainage Act 1976 and to bring it into line with modern needs. The Government may well say that it is a criminal offence to damage the highway, but that has not proved to be an adequate protection and we do not believe that the NRA will be able to enforce it on that basis.

Amendments Nos. 394CB to CM, which are related to it, refer to Schedule 19, which covers compulsory works powers. We are concerned here with the diversion and extinguishment of public rights of way. The legislative background to this is in two Acts: first, the Highways Act 1980 and, secondly, the Wildlife and Countryside Act 1981.

At present the schedule favours the private water supply plcs, whereas we believe that it should provide for better protection. Referring to Amendments Nos. 394CC, CL and CN, by introducing the words "public right of way" we want to add "byways" to "footpaths and bridleways". The technical definition of "byways" is that these are unmade up roads which are in theory open to vehicles but which in fact are used largely for pedestrians. They are an important part of access to the countryside and have been for many years. This addition of byways is a feature of the Wildlife and Countryside Act 1981.

Amendment No. 394CD states that when there is a notice to extinguish a public right of way a plan should be made available, as in the Highways Act 1980. Amendment No. 394CF specifies that in Schedule 6 any proposal should specify the effect of an order on a public right of way. Amendment No. 394CG is concerned with consultations. Amendment No. 394CH refers to making a plan available for inspection. Amendment No. 394CJ requires that the public should have the right to buy a copy of any proposals and Amendment No. 394CK states that the public should be told when the Minister actually makes an order after a proposal has been put forward.

All these amendments are designed to maintain and improve the law relating to public rights of way for walkers and to make sure that the activities of the privatised water and sewerage undertakings do not damage them. They are proposed improvements in particular to the Land Drainage Act 1976, but they follow closely provisions in the Highways Act 1980 and the Wildlife and Countryside Act 1981 and I commend them to the Committee. I beg to move.

The Earl of Arran

I begin with Amendment No. 387B. The NRA's powers to undertake work in, on or under the highway are regulated by the street works code under the Public Utilities and Street Works Act 1950. In this respect the NRA. is therefore on the same footing as other public utilities whereby they are required by the code to notify all street works in advance and to settle plans for their works with the highway authority.

The Government are aware that there are deficiencies in the operation of these arrangements. We have recognised that there is a need for reform of the law relating to public utility street works and have undertaken to bring forward legislation in line with the recommendations of the Home Report at a suitable opportunity. Outline proposals were recently issued by the Department of Transport. It would therefore be premature to introduce amendments at this time, particular amendments of this somewhat heavy-handed nature which would prevent the NRA from satisfactorily carrying out its flood defence activities. I therefore ask the noble Lord, Lord McIntosh, to withdraw this amendment and I will ensure that the points he raised are brought to the attention of the Department of Transport for consideration under its consultation exercise.

Turning to the second group of amendments spoken to by the noble Lord, Lord McIntosh, we share his concern regarding public rights of way. We hope to demonstrate that these amendments are unnecessary and that they would create unjustifiable levels of bureaucracy and are in certain cases inappropriate. It is not necessary to provide expressly for the creation of new footpaths or bridleways. If what the noble Lord has in mind is a new section of a path created as a result of re-routing as a consequence of works, then that section would properly be considered a diversion.

Schedule 19 already provides for applications to be advertised in local newspapers and the London Gazette and for anyone to ask to be kept informed of all applications for orders under Clause 150. As to advertising the order a second time once it has been made, we can see no benefit in this. There is no opportunity for objections to be lodged once an order has been made under Clause 150 and all objectors to the original application are automatically notified of the outcome.

Orders made under current legislation on which this schedule is based are infrequent and we believe that the schedule as it stands—which refers to bridleways and footpaths in keeping with the Countryside Act 1968—fully safeguards public rights of way. While the authority and water undertakers are not obliged to submit plans and maps with their draft orders under paragraph l(2)(c) most water authorities currently do so, and we see no reason why this should change. Nor are we persuaded that it would be proper to require details of rights of way affected to be specified on draft orders, or to extend the list of consultees. The authority and water undertakers will be required to indicate the exact position of the works to be carried out, usually in the form of Ordnance Survey co-ordinates, in the draft order which is also published in local newspapers and the London Gazette. Anyone concerned would be able to check an Ordnance Survey map: these show all bridleways and footpaths.

We feel that these amendments would place an unfair burden on the authority and water undertakers. We are confident that the procedural provisions in the schedule as drafted will sufficiently protect the rights of way. It is for that reason that I ask the noble Lord, Lord McIntosh, not to press this amendment.

12.45 a.m.

Lord McIntosh of Haringey

The latter part of the noble Earl's reply relating to the Amendments Nos. 394CB to 394CM is disappointing. I do not believe that he has appreciated how inadequate are the existing procedures. I do not believe that he has appreciated either how valuable for this purpose are the precedent of the Highways Act 1980 and the Wildlife and Countryside Act 1981. When I return to Amendment No. 387BI find that there is a curious alliance. The amendments that I have just spoken to were prepared by the Ramblers' Association. In his reply the noble Earl has referred to the Public Utilities Street Works Act 1950 and the Home Report, which was a review of that Act, besides the consultation document issued by the Department of Transport on 5th May of this year.

I now find that the Ramblers' Association and the Automobile Association, who have briefed me on Amendments Nos. 399AB and AC, are in step on this matter. I suspect that is an unusual position for them to be in, though I do not believe that they will be displeased at the idea. It is clear that action is in hand on the matter, and that would be sufficient reason for me to withdraw the amendment. The inadequacy of the Public Utilities Street Works Act 1950 is now evident. I shall refer to specific elements of that inadequacy when I come to speak to Amendment No. 399AB. In the meantime, while I am not satisfied with the answer, I believe that I shall have to take advice on it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 14 agreed to.

Clause 133 agreed to.

Schedule 15 agreed to.

Clauses 134 to 136 agreed to.

Clause 137 [Functions of Authority in relation to fisheries]:

The Earl of Radnor moved Amendment No. 388:

Page 141, line 8, after ("below") insert (", and who are not Committee members of the Authority,").

The noble Earl said: This amendment is very similar to one that I brought before the Committee at an earlier stage, which in tum was similar to an amendment of the noble Lord, Lord McIntosh of Haringey. It merely endeavoured to keep the advisory committee at arm's length, as he put it, from the main NRA committee. This is precisely the same type of amendment, except that in this instance we are dealing with a fisheries advisory committee. All the same arguments apply. I believe that it finds favour with my noble friend on the Front Bench. I beg to move.

Lord McIntosh of Haringey

Before the Minister replies, it would be churlish of me not to express my support for the amendment, which is so similar to one that I have already moved.

Lord Norrie

My two amendments are grouped with the noble Earl's amendment. Amendments Nos. 389 and 390 have been grouped together, so I shall deal first with Amendment No. 389.

The aim of this amendment is to provide for the regional fisheries advisory committees to be given authority to manage the fisheries in their area. Regional fisheries committees were originally executive fishery boards established by the Salmon and Freshwater Fisheries Act 1923. They became advisory when fishery boards were phased out and river boards brought in with the River Boards Act 1948. Since then they have been restricted to an advisory role.

In practical terms these committees set licence charges for sport and commercial fishermen, regulate fishing under national legislation and consult widely on by-laws which they may promote with the approval of the regional water authority. In Anglian Water the fisheries function is financially self-supporting and has been for 10 years. Income exceeds expenditure so there is no call on the environmental service charge which is normally used to offset deficits on recreation, navigation and fisheries where necessary. Both Thames and Severn-Trent fisheries functions are also virtually self- sufficient financially. The diversion of fisheries contributions as income to NRA instead of going to local authorities as rates will supplement NRA fisheries' income in the future. There is, therefore, already a good case for regional fisheries advisory committees to be given more responsibilities because the fisheries function nationally will almost certainly pay for itself in time.

It may well be that the NRA has the power to implement what this first amendment calls for when it is established, but the continued use of the word "advisory" in the RFAC title is restrictive and, I believe, now unnecessary. Anglers believe that RFACs, as committees, are now very much more responsible than they were. My amendment would encourage them to look forward to bearing more responsibility under the NRA.

I am particularly anxious to stress that my amendment is not intended to commit the NRA to any specific delegation of powers, but it would leave the door open for it to allocate responsibility, under the NRA's overall direction, if necessary. The setting of fisheries budgets and recommendation of fisheries improvements could be two major functions which the NRA could allocate to the regional fisheries committees, provided that NRA had final approval. This would follow the precedent of the existing regional land drainage committees, which have executive powers—principally because they raise money through a local precept. But their finances have to be approved by their water authority. Similarly, there is no reason why the NRA should lose its ultimate responsibility for fisheries, or why ministerial accountability should be compromised. There is also no reason why the delegation of certain powers to the committees should necessarily cut across other water interests. The NRA would continue to give final approval to the committee's proposals and would be in a position to balance the various interests concerned.

The aim of Amendment No. 390 is to ensure that the Minister of Agriculture, Fisheries and Food is consulted about the appointment of chairmen to the fisheries committees. I have tabled it because I share with fisheries interests in England and Wales, including commercial fishermen, the concern that the Water Bill reduces fisheries status overall, while appearing to offer an improved system. I believe that the difference between what happens now and what will happen when the Bill becomes law is considerable. Such matters deserve further consideration.

MAFF is legally responsible for the inland fisheries resource. The law requires that where this responsibility is delegated—as now to the water authorities—someone appointed by MAFF to represent fisheries interests shall sit on each regional water authority board. There are therefore 10 such representatives at present. If those representatives come into conflict with the policies of the authority, they have the opportunity to appeal to their appointing MAFF Minister. Under the new proposals the NRA assumes the delegated fisheries responsibility, but only one person will be appointed by MAFF to represent fisheries interests for the whole of the country at the National Rivers Authority.

Beneath that person there will not be any independent individuals representing fisheries interests on regional boards. The Water Bill stipulates that each RFAC chairman shall be appointed by the NRA and not my MAFF, or even in consultation. At one stroke, the national fisheries representation has been reduced from 10 to one.

The practical problems of this arrangement are that if the local RFAC chairman comes into conflict with the NRA over fisheries matters he has no Minister to whom to appeal. All committee chairmen within the NRA are to be appointed by the NRA except the flood defence chairman, who will be appointed by MAFF. Additionally, his own local flood defence committee chairmen will be appointed by MAFF to whom they can appeal should that be necessary.

With fisheries income from rod and line anglers now approaching £5 million annually and the prospect of fisheries contributions bringing in much more money, it seems iniquitous that 1:he NRA will control all regional fisheries chairmen and have only one fisheries member on the NRA Board.

The National Anglers' Council feels very strongly that the local fisheries chairmen should be appointed if not by the MAFF Minister alone at least by joint consultation so that a named Minister is also accountable and may be available for appeal should this be necessary. There is precedent in the Bill because chairmen of customer service committees are to be appointed by the director general after consultation with the Secretary of State.

Lord Gibson-Watt

Perhaps I may add a brief word to the discussion on the issue. All that Amendment No. 389 is trying to do is put some teeth into the regional fisheries advisory committees. Under the present system there has been a great deal of dissatisfaction with the role that fishermen have been allowed to play. It is the largest sport in the world, far bigger than football.

However, the fact remains that all the amendment seeks to do is to impose a duty upon the authority, to delegate to them such powers and duties as it may from time to time think fit". Moreover, it would only concern fishery matters. I think that it would be possible for the Government to relent on this aspect, because I must say that some of us are pretty dissatisfied with the way things are going in this respect.

Lord Moran

I should just like to make one small but important point as regards Amendment No. 389, tabled in the name of the noble Lord, Lord Norrie. On Second Reading I said that all the angling organisations thought anglers ought to be given more say in such matters. I agree very much with what the noble Lord, Lord Gibson-Watt, has just said in this respect.

However, I said on that occasion that I saw the difficulties about making the regional fishery committees fully executive but that I understood that their chairmen would sit on the small regional management boards which would take decisions. After that debate, which took place on 17th April, I saw the consultation paper which was put out by the NRA Advisory Committee. I found, greatly to my surprise, that the small regional management boards would not be involved in taking decisions. I found that they were going to be advisory boards.

Even if the regional fishery advisory committees are advisory, small management boards, which would consist, as I understand it, of a member for the NRA from London responsible for the region, plus the general manager and the chairmen of the three committees in each region, should be able to manage that region, subject of course to the overall policies of the NRA. There will be a man from the NRA in London to ensure that that is properly slotted in. I have put that view to the chairman of the NRA Advisory Committee. I believe the point to be important. If that is done we shall have gone a long way towards what the noble Lord, Lord Norrie, has urged.

1 a.m.

Baroness Trumpington

I shall deal first with the amendment tabled by my noble friend Lord Radnor. When the Committee considered Clause 2 my noble friend Lord Radnor tabled an amendment which would similarly preclude NRA board members from serving on the regional rivers advisory committees. He withdrew that amendment but both he and the Government agreed to reflect further on the points that were made.

The arguments which apply to the membership of the regional rivers advisory committees apply equally to the fisheries advisory committees and also, though their role is somewhat different, to the regional flood defence committees. We have indeed reflected further on this point and have decided that NRA board members should not be permitted to serve on any of these three types of committee. We therefore intend to bring forward government amendments, for consideration on Report, which will have this effect.

I would express my gratitude to my noble friend and also the noble Lord, Lord McIntosh, who I understand was involved, for raising this very valid point. I am afraid that I cannot accept his particular amendment to Clause 137 since I am advised that it contains a drafting defect. Nevertheless, with the assurance I have just given I hope that my noble friend will agree to withdraw it.

Perhaps I may deal, I fear at rather more length, with Amendment No. 389. My noble friend has argued that the powers to delegate fisheries to the regional fisheries advisory committee would be entirely permissive. There is room for argument as to whether that is true. The wording in the Bill, to which this amendment would be added, could well place the NRA under an obligation to delegate.

However, that point apart, I would have considerable difficulty in accepting ihe principle that functions should be delegated to the committees, now or at a later date. I know that my noble friend Lord Crickhowell shares our concerns.

The RFACs have always been advisory in nature. There has been no suggestion that that advisory nature has been ineffective in the protection of fisheries interests in the water authorities. Indeed, I believe the RFACs are widely regarded as having made a highly significant contribution to the conservation and management of fisheries by the water authorities.

The question to be addressed is this: how would things change for the better by delegating to the committees some of the NRA's functions? I am afraid that the case for that has not been made out. Indeed, I am quite unclear about what kinds of responsibility might actually be delegated and how the committees could effectively discharge those responsibilities. Moreover, I fear that that may result in a degree of undermining of the NRA, at regional and national levels, as a new, cohesive and effective national body.

I also have to say that the independence of RFACs would be compromised if the amendment were accepted. They could find themselves having to undertake duties which conflicted with their advisory role. Quite apart from that constitutional problem, it seems to me that fisheries interests themselves might not be best served by encouraging the degree of separateness implied by specific and executive powers. The great thing about fisheries interests in the water authorities—and this will be much more so in the NRA—is the central role they have occupied in recreational and environmental matters.

Fisheries cannot be divorced from water chemistry and quality; or land drainage and flood protection; or matters of access and river basin usage. My worry is that this amendment could tend to diminish that role and the freedom of fisheries interests at all levels to act as an influence for the good of its own cause. We want the NRA to pull together a coherent national strategy for the maintenance, improvement and development of salmon, trout, eel and freshwater fisheries. But this effort could be undermined if executive powers went to some regions, at certain times, for particular functions. This would also deny the NRA the possibility of flexibility in its planning or in its responses to problems. The NRA may wish to switch resources; or pool experience and knowledge; or give lead responsibility to certain of its regions to develop centres of excellence. This would be impeded by hiving off responsibilities to regional fisheries committees.

I said earlier that the RFACs have played, and will continue to play, a very important and active role in the management of fisheries. The NRA will have a statutory duty to consult the RFAC on the way in which it carries out its fisheries responsibilities. The committees will be consulted about the setting of fishing licence duties and about the fisheries contributions which should be levied on fishery owners. It will thus have a major say in the collection and spending of revenue within the region, by its persuasive and expert advice on what the priorities should be. It will be fully involved in the development of all other NRA policy relevant to fisheries. However, we believe that the final decision, for both operational and management reasons, should rest with the NRA itself. After all, it is the authority which has the corporate statutory duty to maintain, improve and develop fisheries and which would be answerable to Ministers in default.

My noble friend can tell by the length at which I have spoken at this time of night how seriously we take his amendment. I can assure all noble Lords who have spoken that this really is something to which the Government have given very careful consideration. I hope that in the light of what I have said my noble friend will agree to withdraw the amendment.

Finally, I have to turn to Amendment No. 390. As the Government have made clear all along, there has been pressure for Ministers to appoint the chairmen of the regional fisheries advisory committees, and this is not acceptable. The NRA will be an important, autonomous national body which should be able to appoint its own advisory committees.

My noble friend's Amendment No. 390 does not go as far as this. It provides for the NRA to appoint the committee chairmen, but in consultation with the appropriate Minister. However, I am glad to assure him that that is unnecessary. My noble friend Lord Crickhowell has assured us that the NRA will consult Ministers before appointing the chairmen of RFACs, and I am happy to make this clear to the Committee.

So I really do not see that we need to make any change to the Bill, when evidently there will be a close identity of interests between the fisheries, the Ministers and the NRA is seeing that the right chairmen of RFACs are appointed.

Lord Moran

Before the noble Baroness sits down, may I ask her whether she could very kindly consider the point I made about the small regional management boards and perhaps write to me in due course about that?

Baroness Trumpington

Gladly.

The Earl of Radnor

So far as my Amendment No. 388 is concerned, I should like to thank my noble friend for appreciating the thought behind what, apparently, is bad drafting. On the basis, as she explained, of taking the amendment away and bringing it back in a correct form, I am very happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Norrie had given notice of his intention to move Amendment No. 389:

Page 141, line 10, at end insert ("and to delegate to them such powers and duties as it may from time to time think fit").

The noble Lord said: I also should like to thank the Minister very much for her very lengthy reply. At this late hour I shall not move this amendment or Amendment No. 390 when we come to it.

[Amendment No. 389 not moved.]

The Earl of Radnor moved Amendment No. 389A:

Page 141, line 10, at end insert— ("(1A) Notwithstanding subsection (1)(a) above, it shall not be a duty of the Authority to operate fish-farms as part of its duties under this section.").

The noble Earl said: This is a fairly straightforward amendment. Under Clause 137, the NRA has a duty to: maintain, improve and develop salmon fisheries".

The amendment seeks to stop the NRA entering the fish farming field in pursuing the above objects. I again declare my interest as a fish farmer. The amendment is worded badly. A better version would be; "Notwithstanding subsection (1)(a) above, the Authority shall not operate fish farms as part of its duties". My existing amendment is slightly dyslexic.

I believe that the NRA should not operate fish farms, first of all, because the fish fanning industry needs encouragement. There are plenty of stocking fish farms throughout the country from which the NRA could obtain stock if it wished. Secondly, I think it would look very bad if the NRA entered into competition with fish farmers. Those farmers would be very suspicious that the competition was not fair. I am not quite clear how the NRA is to be funded; I do not think anyone is. However, if it entered fish farming, I am sure that it would be thought of as creating unfair competition. For those two reasons I think it would be a bad idea for the NRA to enter fish farming. This amendment precludes that.

I believe that I am right in saying that, although the Forestry Commission grows plants, it does not sell them outside its nurseries. That is not a precise precedent, but I think I have said enough to put my meaning across. For the NRA to enter fish farming would be an undesirable way of going about improving and looking after fisheries. I beg to move.

Lord Addington

I wish to speak to Amendment No. 389B which is grouped with the amendment of the noble Earl, Lord Radnor. This amendment seeks basically to clarify the duty to improve fishing. The word "improved" is not defined and may be confined to restoring water quality after a pollution incident, for example, or other minor operations. What is needed in many cases, however, is work on water courses which have been incapable of supporting fish life for many years.

Further, the duty to improve fisheries, although coupled with the duty to develop them may be confined to areas where there are already fisheries that need to be improved or developed. Again this should be clarified. I wish to support the amendment of the noble Earl, Lord Radnor, on rather different grounds, in that I believe that merely creating fish farms would not be a sufficient contribution to the improvement of fisheries. We should be concentrating on the habitat for fish in the wild, and not merely creating more farms to produce fish. We need to encourage fish in rivers.

Baroness Trumpington

Amendment No. 389A would amount to a declaration that, notwithstanding the NRA's duty towards maintaining, improving and developing fisheries, it shall not be a duty of the authority to operate fish farms. I am sure that it is the case that the authority is under no obligation to operate fish farms and this amendment is therefore unnecessary. I hope my noble friend will be reassured on this point and will withdraw the amendment.

Amendment No. 389B is quite unnecessary. The activities which the amendment would provide for are full square within the NRA's responsibilities within the Bill for fisheries and environmental matters. Moreover, I would draw attention to Clause 141(1), which says that: The Authority shall have power to do anything which, in the opinion of the Authority is calculated to facilitate, or is conducive or incidental to, the carrying out of the Authority's functions". I hope that amendment will also be withdrawn.

The Earl of Radnor

I shall certainly withdraw my amendment. However, I wish to go away and read Hansard to see whether I quite understand what my noble friend has said and consider whether I shall take the matter further. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos. 389B and 390 not moved.]

Clause 137 agreed to.

Schedule 16 [Transfer of Fisheries Functions to the Authority]:

1.15 a.m.

Lord Moran moved Amendment No. 390ZA:

Page 259, line 9, at end insert—

("( ) In section 6(3) (definition of "unauthorised fixed engine'), after paragraph (c) there shall be inserted the following new sub-paragraph— "( ) A fixed engine owned and operated by the National Rivers Authority for the purpose of scientific assessment of the status of migratory fish populations or the development of such populations, provided that such fixed engines shall not be brought into operation unless the Authority has consulted fishing interests on the water in question and provided also that such fixed engines shall not be operated for more than 5 years without review of the effects of such operation and annual report of results be made to fishing interests.".").

The noble Lord said: This amendment concerns fixed engines to be operated by the NRA for scientific purposes. I am told that the current procedure is time-consuming and somewhat tedious. The NRA may not operate a fixed engine which is unauthorised within the terms of Section 6 of the Salmon and Freshwater Fisheries Act and, as there is no general provision for exempting scientific or management procedures from the requirement of the Act, it must seek an order under paragraph 1 of Schedule 3 for authorisation.

The amendment seeks to free the NRA from what appears to be an unnecessary part of the bureaucracy while maintaining the Act's protection of fisheries' interests. I beg to move.

Baroness Trumpington

This amendment would change the proposed arrangements for authorising fixed engines placed or used by the NRA. We propose that, instead of the present requirements for ministerial orders to authorise their use, the NRA should be able to use fixed engines providing they do so with ministerial consent or authorisation.

This more streamlined procedure is appropriate given the NRA's duty towards maintaining, improving and developing our salmon, trout, eel and freshwater fisheries which makes it inherently unlikely to use an engine in such a way as to cut across that duty. Nevertheless, as an additional safeguard, ministerial consent or authorisation will be required.

The noble Lord's amendment would provide only for the authorisation of fixed engines used in connection with migratory fish. It makes no provision for fixed engines which might need to be used in connection with other fish species.

The amendment would also do away with ministerial consent. The NRA could use the engines provided it has consulted with fishery interests. It says nothing about how extensive those consultations will be, nor would it prevent the NRA from using the engines regardless of the outcome of that consultation. The noble Lord clearly wishes to build in additional safeguards, which we do not believe to be necessary—but his amendment has completely the opposite effect.

Finally, the amendment proposes a five-year review. The NRA will be a responsible organisation. It will not carry out research work for any longer than is strictly necessary, nor conduct such work without any regard for its effects on the rivers concerned. There seems no need to build in this bureaucratic requirement.

I hope that those comments have been helpful to the noble Lord and that he now agrees that his amendment would not be an improvement.

Lord Moran

I am very grateful to the Minister for her reply. We both seem to be seeking streamlining of the procedure but seem to be at odds on the way that is to be achieved. I should like to take further advice on the matter, but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Moran moved Amendment No. 390ZB:

Page 259, line 9, at end insert—

("(11) In section 14 (gratings)—

1. (a) in subsections (1) and (2) after each occurrence of the word "mill" there shall be inserted the words "fishery or fish farm";
2. (b) in subsection (3) for the word "Minister" there shall be substituted the words "National Rivers Authority"; and
3. (c) for subsection (7) there shall be substituted the following paragraph—

"The requirements of this section shall be met by all existing water or canal undertakings or the occupier of the mill, fishery or fish farm by a date no later than three years from the date of commencement of the provisions of the Water Act 1989.".".

The noble Lord said: This amendment concerns gratings to be inserted on inlets from rivers to fish farms. The purpose is to ensure, first that all fish farms on migratory fish rivers do not adversely affect upward migrating adults or downward migrating juveniles by diverting them, whether deliberately or accidentally, into fish farms or other fisheries; secondly, to empower the NRA to monitor the application of this section of the Bill ensuring that any such gratings are capable of properly performing their function; and thirdly, to ensure the placement of gratings on all affected water courses within a time period of reasonable length to allow owners and occupiers to comply with the regulation and the NRA to approve the designs.

I understand that there have been some problems in various parts of the country with this matter. I do not believe that the cost of installing gratings where they do not already exist would be a significant one for most fish farms. I think that a great many fish farmers have gratings in any case, either to keep out fish which they do not want coming into their fish farms or to keep out items like leaves coming down the rivers. I believe that this would be a helpful amendment and I hope that the Government may be prepared to accept it. I beg to move.

Baroness Trumpington

I have taken careful note of the points made by the noble Lord, Lord Moran. I should perhaps explain that a similar proposal was put to the Ministry last autumn, but after careful consideration we decided that there was not sufficient justification to require all existing fish farmers to install and monitor gratings at the abstraction points to their farms. Indeed, this has not been an issue that has featured to any degree in the ongoing dialogue between my department and the water authorities on fishery matters.

Nevertheless, I appreciate the concern held in some quarters. I should point out that, with the extension of abstraction licensing to all fish farms, the NRA will be able to insist on the installation of gratings as a condition of licence for new enterprises and where an existing farm's abstraction is no longer covered by a licence of right. That proposal should at least preserve the status quo. But I do not think that it would be right to go further and insist that all existing farms without gratings should have them. I must disagree with the noble Lord, Lord Moran, on that point. The costs involved—both of installation and of maintenance—could be substantial for some farmers and would represent an extra financial burden at a time when the industry is already faced with new charges for abstraction licensing and discharge consents.

Against the background that I have set out, we do not think that the proposed amendment would be appropriate, but we would be prepared to review the matter should future monitoring by the NRA point to widespread problems. I hope that this is an encouragement to the noble Lord, Lord Moran.

Lord Moran

I am grateful to the Minister for her reply, although a little disappointed by it. However, in view of her assurance that the Government are prepared to review the problem in the fullness of time, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Lord Moran moved Amendment No. 390ZC:

Page 260, line 31, leave out paragraphs (a) and (b) and insert— ("insert the following paragraph— "6. The Authority may levy, collect and vary duties on licences in accordance with a scheme of charges made for this purpose, which has been approved by the Secretary of State." ").

The noble Lord said: This amendment is designed to try to simplify the present rather cumbersome procedure about varying fishing licence duties. I understand that the NRA would like to be able to recover licence duties by means of a charges scheme approved by the Secretary of State. Once it has been approved, the advantage would be that it would avoid the present and often time-consuming procedure of obtaining the Secretary of State's approval to increases where objections are made. The idea is that, once the scheme has been approved by the Secretary of State, subsequent increases could then be made by the NRA without any further involvement on the part of the Secretary of State. That arrangement would also be consistent with the method by which most of the other charges raised by the NRA are to be paid.

I should also like to mention one other point relating to fishing licences; namely, that I have heard that there may be a possibility of VAT being levied on fishing licences. At present, the water authorities are exempt. I think that that proposal would cause great dismay among fishermen, both rod fishermen and netsmen. It might also cause sales resistance to higher licence duties and therefore a fall in income for the NRA at an important time. It might also encourage further illegal fishing by non-licence holders. So I very much hope that the Minister will be able to assure the Committee that there is no proposal to levy VAT on fishing licences. I beg to move.

Baroness Trumpington

Perhaps I may first take the last point of the noble Lord, Lord Moran, concerning VAT and fishing licence duties. The treatment of all the activities of the National Rivers Authority for VAT purposes is currently the subject of active negotiations between Customs and Excise, the Department of the Environment and the other government departments concerned, including my own. It is thus too early to give the noble Lord the assurance that he seeks on the possible application of VAT to fishing licence duties. Perhaps I may write to him as soon as the position is a little clearer.

With regard to the noble Lord's amendment, I have to tell him that it is defective. As I understand it, the apparent intention is to substitute the scale of charges arrangement for the existing procedures, but in fact his amendment leaves them in place.

Lord Moran

I am grateful for what the Minister has said about the VAT question and I look forward to hearing from her about that in due course. I am sorry to hear that my amendment is defective. It was designed to be helpful to the NRA and to try to simplify procedures which I am told are cumbersome and vexatious. I very much hope, therefore, that the Government will consider this point between now and Report stage and perhaps will be able to bring in their own amendment to cover this point and help the NRA.

Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Moran moved Amendment No. 390A:

Page 261, leave out lines 1 to 9.

The noble Lord said: I apologise for moving amendment after amendment at this stage of the proceedings. This amendment is concerned with the problem of special parliamentary procedure. It has its origin in the debate on the Unstarred Question that I asked on 20th January 1988 about salmon conservation. I mentioned the intention at that time of the Northumbrian Water authority, with the support of the Ministry of Agriculture, Fisheries and Food, to license a number of T-nets to catch salmon at the mouth of the River Wear.

I argued that this was a mistake and that these were interceptory nets and as such condemned by all reputable scientific opinion. There was a public inquiry which heard objections to the proposal to license those nets and a number of organisations presented memorials against the order. On the ground that the memorials had not been presented by persons affected by the order (and included was a memorial from the Wear Valley District Council), the MAFF rejected them and pressed on with the proposal. However, the Wear Valley District Council applied to the High Court for a judicial review and at that review it was judged that the Minister had been wrong not to have allowed the memorial, which had been properly presented under the Salmon and Freshwater Fisheries Act 1975, to go before Parliament.

At that stage, rather than take the matter back to Parliament under the special parliamentary procedure, the Government decided to defer a decision until a departmental review under the Salmon Act 1986 about the whole question of the nets of eastern England and Scotland had reported. In the meantime, Schedule 16 to the Bill removes the sections of the Salmon and Freshwater Fisheries Act 1975, which provide for a parliamentary procedure, substituting an annulment procedure, which is a much lesser safeguard.

This is a matter of concern to the Salmon and Trout Association which is representing all the angling associations on the Wear that are concerned in this matter. It is also a subject of very considerable concern to the Wear Valley District Council. They feel that this constitutional safeguard—which they successfully invoked in this case against something that they felt was wrong—will be done away with under the Bill and that it will be replaced only by negative procedure, which will be much less effective at protecting the rights of individuals against government departments.

This is a serious matter. I realise that judicial review in itself is a very time consuming and complicated procedure. I would be quite happy if the Government could introduce some similarly effective safeguard to protect the rights of clubs and individuals. Otherwise I think that it would be a great pity to remove this safeguard for the individual. That is the purpose of my amendment. I beg to move.

1.30 a.m.

Lord McIntosh of Haringey

I should like very briefly to add my support to this amendment, which has my name to it. It is the same as an amendment moved in Committee in another place by my honourable friend, Dr Cunningham. There was an attempt to move it at Report stage, but the guillotine motion defeated it. My honourable friend feels strongly, as I do, that the licensing of commercial netsmen who use T-nets—which have a damaging effect on the stocks of migratory fish in the River Wear—is a thoroughly undesirable thing which ought not to be allowed under licence by the water authority and ought not be continued by the National Rivers Authority.

Baroness Trumpington

I have to say straight away that I cannot accept this amendment. We propose in the Water Bill to make a number of sensible updating changes to the Salmon and Freshwater Fisheries Act 1975. When the Minister makes an order under Section 28 of the Act, that order may currently be subject to special parliamentary procedure if a person affected by the order presents a memorial to the Minister. The special parliamentary procedure is an outmoded and costly one and we propose replacing it with the more modern negative resolution procedure.

The possibility of special parliamentary procedure acts as a distinct deterrent in making these orders. The orders can be used to levy contributions from riparian owners towards the NRA's expenditure. During the passage of last year's Local Government Finance Bill, the noble Lord, Lord Moran, tabled an amendment, which was accepted in principle by the Government, which will help with the making of these charging orders. The 1988 Act removes any risk of fishery owners having to pay both rates to their local authority and contributions to the NRA under a Section 28 order.

I pay tribute to the ingenuity of the noble Lord, Lord Moran, in bringing forward that amendment. But I am afraid that this present amendment would work entirely counter to the aim of facilitating Section 28 orders—a concern which the Government and, I am sure, the noble Lord, Lord Moran, would share. The retention of the special parliamentary procedure will do nothing to encourage their making. Indeed, all concerned will be saddled, as the noble Lord, Lord Moran indicated, with a pretty bureaucratic, cumbersome and ultimately uncertain route for securing all the beneficial purposes of a Section 28 order.

I should like to stress that there will be powerful safeguards. First, we are in no doubt that any proposals for Section 28 orders will be thoroughly and openly discussed by the RFACs and raised with the NRA at regional and national levels.

Next, orders can only be made upon application by the NRA. Ministers are not the initiators, and that is entirely right. The NRA must advertise the proposed order. Ministers have the discretion to hold a public inquiry on the order. Then and only then will Ministers be in a position to make an order. Having gone through these steps, we believe it right that the negative resolution procedure rather than the anachronistic special parliamentary procedure is the proper course to follow. Perhaps I have spoken longer than I should have, but the noble Lord looks for safeguards and I wanted to assure him about them. I hope that I have done that.

Lord Moran

I am very grateful to the Minister for that very full reply. I am afraid that we are rather talking about two separate matters. I have been concerned, as the noble Lord, Lord McIntosh was, about the problem of the T-nets and the feeling of a great many angling interests that they were wrong and that what the Minister was trying to do was a mistake. The procedure which exists at the moment was successfully invoked to stop that. However, the Minister has been talking about the problem of fishery rates, which is quite a separate matter. On that I am entirely with her. The last thing I want to do is to make any difficulties about it. I wish to think about this further and to study her reply. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 16 agreed to.

Clauses 138 and 139 agreed to.

Clause 140 [Overseas activities of the Authority]:

Baroness Blatch moved Amendment No. 390AB:

Page 143, line 1, leave out ("Subject to subsection (2) below").

The noble Baroness said: I should like to speak to Amendments Nos. 390AB, 390AC, 390AD, 390AE and 390DA. I regard these amendments as very important. They make provisions for the NRA, when established, to be allowed the greatest possible freedom to manage its affairs on a day-to-day basis, with appropriate systems of accountability to the Secretary of State.

As the House will appreciate, it is intended that the NRA should be given the status of a non-departmental public body. For the reasons which I shall go into shortly, I do not consider that this is in fact appropriate and I very much hope that the Government will reconsider the issue.

The House will know that the NRA is an organisation which will have direct responsibility for protecting life and limb as well as property. A specific example of this is to be found in the field of land drainage, particularly sea defence work. The whole country will recall the devastation, including many hundreds of deaths, caused by the 1953 east coast floods. It is for that and for other reasons that we very much welcome the amendment moved by the Government in another place to enable the NRA to have long-term borrowing powers.

It is therefore vital that the NRA should be able to recruit and retain the high calibre staff required to carry out such duties. It is not only important that the NRA should not be constrained by central government in its day-to-day management, but it is equally important that the new body is not perceived by the outside world as being a mere adjunct of the DoE and/or the Treasury. As at present drafted, the Bill would most certainly give that impression and I accordingly commend this group of amendments to the whole Committee. Otherwise the NRA would not be able to sell its expertise abroad without the consent of the DoE and/or the Treasury as set out in Clause 140(2) and (4). The Secretary of State will be able to give even specific directions to the NRA as to the way in which it carries out its functions, as set out in Clause 142.

Furthermore, the NRA will not be able to increase the number of staff which it requires without the approval of the Secretary of State, as set out in Schedule 1 paragraph 3(1) and (3)(b). Even if it is operating within its overall budget it must still go to the Secretary of State. The NRA will require DoE and/or Treasury approval to pay pensions to its employees, as set out in Schedule 1 paragraph 3(3).

While readily accepting that there must be some forms of control over public bodies—for example, its total overall budget—I submit that, for the reasons to which I have already referred, it would be quite inappropriate to assign to the NRA the status of a non-departmental public body. Incidentally, I gather that the NRA would be some 10 times larger than the normal NDPB; for example, the Nature Conservancy Council.

I have given only one or two examples but there are many others. I hope that in the interests of effective management, which is what the Government want, they will heed these amendments. I beg to move.

Lord Hesketh

Clause 140 deals with the overseas activities of the authority. These amendments seek to free the NRA from Secretary of State approval of the financial arrangements under which it enters into agreements to provide advice or assistance overseas.

Although I understand my noble friend's desire to give the NRA as free a hand in its operations as possible, I have to say that it remains a public body substantially financed from public funds. The existence in Clause 140 of the provision for Secretary of State and Treasury approval is therefore necessary to prevent the NRA from providing such services at an uneconomically low cost—which would constitute unfair competition—or entering into contracts which involve excessive risk to public funds.

That seems entirely right and proper. I should also like to point out, however, that this clause is in itself permissive. Without it the NRA would have no clear powers to enter into overseas contracts at all.

Baroness Blatch

My particular interest is effective management in public authorities. That has been my abiding interest for a long time. I believe that, as in local government, freedom to manage within a framework is important.

While accepting the Government's role in setting the overall budget and the framework within which this body must work, I still believe that reasonable operational independence of government is important. I shall withdraw the amendment, but possibly bring it back at another stage having read my noble friend's reply.

Amendment, by leave, withdrawn.

[Amendments Nos. 390AC to 390AE not moved.]

Clause 140 agreed to.

Clause 141 [General powers of the Authority]:

[Amendments Nos. 390B to 390D not moved.]

Clause 141 agreed to.

Clause 142 [Ministerial directions to the Authority]:

[Amendment No. 390DA not moved.]

The Earl of Caithness moved Amendment No. 390E:

Page 143, line 46, after ("Part") insert ("(other than its functions in connection with the making of applications for orders under section (nitrate sensitive areas) above)").

On Question, amendment agreed to.

[Amendment No. 391 not moved.]

The Earl of Caithness moved Amendment No. 391 A: Page 144, line 1, leave out ("otherwise with respect to the carrying on of its") and insert ("with respect to the making of applications for orders under section (nitrate sensitive areas) above or with respect to anything not falling within paragraph (a) or (b) above which is connected with the carrying on of the Authority's").

On Question, amendment agreed to.

1.45 a.m.

Lord Hesketh moved Amendment No. 392: Page 144, line 13, at end insert— ("( ) The power to give a direction under this section shall be exercisable, except in an emergency, only after consultation with the Authority.").

The noble Lord said: These two amendments essentially put it beyond doubt that the Secretary of State, before exercising the very wide powers of direction which Clause 142 confers on him, will consult the NRA beforehand, unless circumstances make that impossible by reason of emergency; and that any such directions will be made public.

Although, as I say, we would intend that both of these things would be done anyhow, we accept that it is desirable that these requirements should be put beyond doubt on the face of the Bill. I beg to move.

On Question, amendment agreed to.

Clause 142, as amended, agreed to.

Clause 143 [Powers of entry etc.]:

Lord Moran moved Amendment No. 392ZA:

Page 144, line 19, after ("enter") insert ("on to any land or").

The noble Lord said: This amendment refers to powers of entry for the NRA, and with it I should also like to speak to my Amendment No. 432A. Amendment No. 392ZA is concerned with the word "premises" being imprecise when the power of entry needs to be exercised on or over land. There needs to be no doubt, in the view of the NRA, that those powers are exercisable in relation to land as well as premises, otherwise farm land would not be included in "premises".

As regards Amendment No. 432A, Clause 172 deals with the production of authority before exercising powers of entry. My only concern here is that the duty is not subject to any request for production and it is therefore considered reasonable that these provisions are amended to provide for that.

The problem arises sometimes when there is no person to whom an NRA employee exercising a power of entry can produce evidence of his designation or authority. As the Bill stands, evidence of authority must be produced before the power is exercised, which means that the NRA employee would have to find someone to whom he could produce his authority before he could proceed. That is a real problem in relation to, for example, unmanned works and sites. Therefore, this amendment provides that such evidence need only be produced if a request is made to do so. This reflects the current position under Section 91(1) of the Control of Pollution Act and Section 111 of the Water Resources Act 1963. I beg to move.

Lord Hesketh

As regards Amendment No. 392ZA, I am sure that the noble Lord, Lord Moran, will be glad to hear that "premises" is a sufficiently wide term to embrace land in any circumstances. What he wants is already achieved. Nor should we make the amendment for clarity's sake, since if we did it would cast doubt on whether other references in the Bill to premises did in fact cover land, and it is obviously important that in all cases it should.

As regards Amendment No. 423A, Members of the Committee will, I am sure, be familiar with stories of unsuspecting householders, often the elderly being duped and robbed by unscrupulous conmen masquerading as officers of water authorities or other public utilities. We have sought to build into the Bill practical safeguards to protect consumers. Following concern expressed in the other place, we have introduced Clause 173 which makes it a criminal offence for anyone to seek to gain entry to premises by impersonating an officer of a water or sewerage undertaker or the NRA. Likewise we regard the provision requiring identification to be produced automatically before entry is obtained as an important safeguard and one we would not want to lose. I hope that the noble Lord, Lord Moran, will not pursue these two amendments.

Lord Moran

I am most grateful to the Minister for his reply. I am delighted to hear that "premises" does cover land. I should like to take further advice on the other point because I am not clear from his reply whether the problem of unmanned sites has been adequately covered. Subject to that reservation, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Lord Hesketh moved Amendment No. 392A:

Page 144, line 49, at end insert—

("( ) The powers which by virtue of subsection (1) above are conferred in relation to any premises for the purpose of enabling the Secretary of State, the Minister or the Authority to determine—

1. (a) whether any provision made by or under Chapter I of this Part is being or has been contravened; or
2. (b) whether or in what manner to exercise or perform any power or duty conferred or imposed on him or it by or under that Chapter,

shall include power, in order to obtain the information on which that determination may be made, to carry out experimental borings or other works on those premises and to install and keep monitoring and other apparatus there.").

The noble Lord said: Chapter I of Part III in the Bill is concerned with the control of pollution. It will be necessary in carrying out the duties specified in the chapter to make measurements both to check the levels of pollutants to decide whether action is necessary, and also to ensure that control measures are effective. Clause 143 already provides powers of entry to make such measurements. In certain other cases, it may also be necessary to install and maintain continuous monitoring equipment, in addition to making individual measurements. This amendment provides a power to install such equipment. Such equipment can provide important information on levels of pollutants that cannot be collected in other ways. This information may be an important element in decisions on measures that may be needed, or in enforcement. In some circumstances a continuous monitor may be essential to successful enforcement. Such equipment is generally small and its presence hopefully should not disturb the normal management of the land. I beg to move.

On Question, amendment agreed to.

Clause 143, as amended, agreed to.

Clause 144 [Admissibility of analyses of samples]:

Lord Moran moved Amendment No. 392B:

Page 145, line 17, at end insert—

("( ) In the event that the owner of the land or the owner or master of the vessel is not reasonably ascertainable, or that he refuses to receive the part of the sample it shall be sufficient for the person who took the sample to leave that part of it at the premises or land in question.").

The noble Lord said: This amendment simply concerns the procedure for dealing with formal samples, which I understand may be difficult to achieve when there is no one available to accept service of a part of the sample. It is simply the problem that the amendment seeks to address. I beg to move.

The Earl of Radnor

Perhaps it would be convenient if I spoke to my Amendment No. 393 as it is grouped with Amendment No 392B. Clause 144 lays down excellent rules on how to sample water and, as we discussed earlier, how to pass it out between the parties concerned, so that the whole matter is done properly and safely.

Unfortunately, in subsection (2) the whole matter seems to be destroyed because the subsection then states:

If it is not reasonably practicable for a person taking a sample to comply with the requirements of subsection (1) above on taking the sample, those requirements shall be treated has having been complied with". The analysis of water is a delicate matter and I do not think that you can merely pretend that you have complied with those complicated strictures; so my amendment would delete that subsection (2) as being improper and unfair. It would certainly be liable to expose to grave suspicion the person whose water is being sampled. I am not a chemist and I cannot say what difficulties a delay might cause with the noxious things that may or may not be in the water, but I cannot see that this is proper in any way whatever.

If the person who analyses the water finds something awful emergency action will have to be taken. We are talking about the liability to prosecution of the person whose water is being sampled. If the owner cannot be found it may be necessary, in fairness, to forgo the pleasure of prosecuting for the other reasons I have given.

The Earl of Caithness

Amendments Nos. 392B and 393 offer the Committee dramatically opposite alternatives to the provision in the clause that where the NRA has failed to deliver any part: of the sample to the occupier of the land at the time it is taken and divided it shall be sufficient if he has done so as soon as is reasonably practical thereafter.

The amendment in the name of my noble friend Lord Radnor would delete this provision with the effect that if the owner of the premises absented himself and was not available to take delivery of the sample, no prosecution could ensue. This is surely unacceptable. It could give the discharger who is committing an offence a ready means of avoiding prosecution. We want of course to be fair to the discharger. But we must also avoid undermining the purpose and effect of the legislation which I suggest this amendment would do.

I have rather more sympathy with the proposal from the noble Lord, Lord Moran, that it be sufficient, if the owner of the premises is not available, that the sample simply be left on his premises. But on balance I do not think that should be accepted either. By definition these samples may be dangerous and polluting substances and I do not think a public authority should be permitted simply to leave them unattended. More important, it is essential to the validity of the procedures that there should be assurance that the sample has not been tampered with.

I put it to the Committee that this amendment would undermine that particular concern.

On balance I suggest that what we have in this Bill is the better way. A requirement that the procedures be observed as soon as reasonably practicable is both fair to the discharger and allows the legislation to be effectively enforced. That is the balance we need to strike and I suggest that of the options before the Committee the Bill as presently drafted best achieves it.

Lord Moran

In the light of what the Minister has said I see that there is a dilemma. I am content with what he suggests. I beg leave to withdraw the amendment.

The Earl of Radnor

I am not quite so happy about my amendment as the noble Lord, Lord Moran, is about his. I shall reserve my position for a later stage of the Bill when I have read Hansard. Under subsection (2) one of the points I made was that the sample could be tampered with. There is no doubt that it could. I must also make the point that sampling is a precise matter, but it is not always done too well at the moment. Perhaps I may give an example: we have sampling points where water has to be sampled. I can assure my noble friend that many times the sampling point shifts to the most convenient bridge over which the sampler can lean. Sampling is open to abuse and I believe that such abuse should not be allowed to creep in at the expense of the kind of efficiency that my noble friend would like. I am quite happy not to move my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 393 and 393A not moved.]

Clause 144 agreed to.

Clause 145 agreed to.

Clause 146 [Annual report of the Authority]:

The Earl of Caithness moved Amendment No. 394:

Page 146, line 10, at end insert—

("( ) Every such report shall set out any directions under section 142 above which have been given to the Authority during the year to which the report relates.").

On Question, amendment agree to.

Lord Hesketh moved Amendment No. 394ZA:

Page 146, line 12, at end insert ("and shall arrange for copies of every such report to be published in such manner as he considers appropriate").

The noble Lord said: This amendment is concerned with the annual report which the NRA is required to prepare and send to the Secretary of State and the Minister at the end of each financial year. The amendment would enable the Secretary of State to arrange for copies of each annual report to be published in such manner as he considers appropriate. It is clearly important that the NRA is properly accountable to Parliament and the public through Ministers. It is therefore right that the NRA's annual report should be available to the general public. Indeed this has always been our intention. What this amendment provides, however, is a guarantee that the NRA's annual report will be published either by the NRA itself or in some other appropriate way. I therefore recommend it to the Committee. I beg to move.

2 a.m.

Lord McIntosh of Haringey

I would like to welcome this amendment, but in order to welcome it fully I should like some indication from the Government that they think it right in accordance with my Amendment No. 394AZA that the annual report, which is to be published in such a way as the amendment proposes, should contain a statement on levels of compliance with the effectiveness of the duties contained in Clause 8.

Lord Hesketh

We believe that the amendment of the noble Lord, Lord McIntosh, is unnecessary. Clause 8 gives the NRA important functions going beyond that imposed on the companies. We would expect the annual report to cover all the authority's important functions. I find it inconceivable that it would omit these. But for the avoidance of doubt we will endeavour to make stronger reference to the mattter in the code of practice covering the performance of Clauses 8 and 9 duties. I believe that this is the right way to do it rather than singling out this particular function on the face of the Bill. With that assurance, I hope that the noble Lord will feel he has achieved his purpose.

Lord McIntosh of Haringey

I am not entirely satisfied but I am grateful for that step in the right direction.

On Question, amendment agreed to.

[Amendment No. 394AZA not moved.]

Clause 146, as amended, agreed to.

Clause 147 [Compulsory purchase etc.]:

Lord Stanley of Alderley moved Amendment No. 394BZA:

Page 146, line 27, at end insert— ("( ) The Secretary of State or the Minister shall not authorise the use of powers under this section to acquire land for incidental commercial development.").

The noble Lord said: I shall leave the main discussion on the series of compensation amendments to my noble friend Lord Middleton, but, in supporting him and those amendments, I have tabled this amendment for inclusion in the Bill

On 7th March my right honourable friend Mr. Nicholas Ridley replied by Written Answer to a question from Mr. Tony Baldry. He stated that: it is the Government's view that compulsory powers should not be available to acquire land for incidental commercial development".—[Official Report, Commons, 7/3/89; col. 460.]

I hope that my noble friend accepts this. If not, when he replies to this series of amendments, will he give me a definition of what is an "incidental commercial development"? I beg to move.

The Earl of Caithness

My noble friend quite rightly referred to the statement of my right honourable friend the Secretary of State in another place. At around the same time the department issued a consultation paper proposing a variety of improvements in the land compensation provision. I know that this is an area of great concern to my noble friend and has been so for some years. We look forward to receiving his submission on the consultation paper in the fullness of time. I hope that he will not wait too long before submitting it.

My noble friend asked a specific question about incidental commercial development. The difficulty here is that it is impossible to give my noble friend a precise definition because it is so much a matter of fact in each case. If the purpose of the acquisition is not one that is envisaged by the relevant statute, there is no power for the land to be compulsorily acquired. A water company, for example, would not have powers compulsorily to acquire land adjacent to a reservoir for a hotel or indeed for a car park unless it could show that it was needed for the discharge of its statutory functions. That is the key point.

However, there may be occasions when the land is needed for a purpose which is envisaged by the statute but it is also possible to undertake other developments on that land. An example would be a hotel on land required for the gathering grounds of a reservoir. In those cases the justification for the compulsory acquisition lies in the functional legislation. The land is needed for gathering grounds and that remains justification for the compulsory purchase. The hotel would have to be the subject of a separate planning application.

Lord Stanley of Alderley

I was most interested in my nobel friend's reply. However, I must say that I am no wiser as to what is "incidental commercial development". I was especially interested in his example of the water authority. I now must give him an example, which I find most strange. It is near a farm in Oxford.

I understand that the Blue Boar Catering Company—I think that is what it is called—is using compulsory powers to obtain land at existing use value for its restaurant and service station next to the M.40 motorway. Surely that must be commercial development?

The other point which I think I ought to mention to my noble friend is this. In a debate the other day, moved by my noble friend Lord Kinnoull, the noble Lord, Lord Brabazon, stated that there was no commercial development in the Channel Tunnel development. I cannot understand that comment either. I wonder whether my noble friend can expand on why those two cases, especially the Blue Boar development, are not considered to be incidental commercial developments. On the other hand, perhaps he would prefer to wait until later, when he is replying to my noble friend.

The Earl of Caithness

I have before me a copy of the Hansard report relating to the debate of my noble friend Lord Kinnoull. I must say that when I read the report I was most surprised to see that my noble friend did not take part in it; I thought that the debate was tailor-made for him. He made reference to a comment made by my noble friend Lord Brabazon of Tara. I wonder whether he could assist me to find that comment by quoting the relevant column number?

While my noble friend is searching for that information, perhaps I may answer his other point, which related to a service station on a farm near where he used to farm in Oxfordshire. I think that it would be unwise for me to comment too much on this issue because this is one of the situations where my right honourable friend the Secretary of State acts in a quasi-judicial role and therefore it would be wrong for me to comment. But, I wonder whether my noble friend is entirely correct to say that the proposal to which he alluded is one where compulsory powers are being used. I think that I am right in saying that this is a purely private development with no government involvement and one in which no compulsory purchase issues arise.

Lord Stanley of Alderley

I thank my noble friend for both those replies. He has caught me out in both respects. In fact I would take my hat off to him, if I had a hat on at quarter past two in the morning. However, I shall check up on the Blue Boar development to make quite certain of the situation. Perhaps I may write to my noble friend on the matter between now and Report stage because it seems to me to be a very strange area. Moreover, I am still lost over this incidental commercial development issue. Having said that, I beg leave to withdraw the amendment.

The Earl of Radnor

If it is any help, there was a debate on the Channel Tunnel in which I spoke. In fact, I divided the House because land was being obtained at existing use value and being passed over on a rental basis to a profit-making concern. In reply a noble friend on the Front Bench said that service stations were an example. They were compulsorily purchased, and of course they did make money afterwards. It underlines the iniquity of the whole system.

The Earl of Caithness

I should like to take up the point just made by my noble friend Lord Radnor. He talked about some motorway service areas. Of course, where those are proposed by the Department of Transport, the department can acquire the land under compulsory purchase powers. The specific example to which my noble friend Lord Stanley of Alderley referred is, I think, different from that. It is not one where the Department of Transport is acquiring land under compulsory purchase powers; it is a non-governmental scheme.

Amendment, by leave, withdrawn.

Lord Middleton moved Amendment No. 394A:

Page 146, line 27, at end insert—

("( ) The Secretary of State or the Minister shall not exercise the power under subsection (1) above in relation to a water or sewerage undertaker unless he is satisfied—

1. (a) that the acquisition of the land or rights over land in question is essential to enable the undertaker to meet its statutory obligations to carry out its water and sewerage functions;
2. (b) that there is no alternative way in which the undertaker could meet those obligations; and
331
3. (c) that the owner of the land or rights over land in question is unwilling or unable to enter into an agreement to sell the land or the rights voluntarily.".

The noble Lord said: Clause 147 gives to the NRA and to water and sewerage undertakers the powers, with the consent of the Secretary of State, to acquire land or rights over land compulsorily. Similar powers are at present held by the water authorities and by most other bodies in the public sector. That the NRA should be given those powers is understandable in principle because it too will be a publicly funded body acting in the public interest; but private water companies will be operating in the private sector and for the profit of their shareholders.

I firmly believe that compulsory powers given to the plcs should be limited and closely controlled. In the Bill, those powers are too wide and the three amendments in my name (this amendment and Amendments Nos. 394B and 394C) are designed to ensure that the plcs act fairly over land acquisition. If the plcs are to have the privilege of compulsory powers, two principles should apply. First, except in cases of real emergency, they should be required to negotiate both the acquisition of land and entry onto land. Secondly, as they are operating in the commercial field in respect of their activities, they should be required to pay the full market value for any land they may acquire.

I intend to speak separately on compensation when I move Amendment No. 394B. I shall deal with compulsory entry onto land under Amendment No. 394C. Amendment No. 394A tightens up the constraints on the Secretary of State in the granting of the power of compulsory acquisition. Because plcs will have statutory obligations under water legislation, I fully accept that they should not be entirely dependent upon the willingness of a private landowner to sell them land which they may require to fulfil those obligations; but the Secretary of State must be satisfied that the compulsory acquisition is essential to enable the undertaker to carry out its water or sewerage function. He must be satisfied that there is no other way in which the undertaker can fulfil its function.

Finally, the undertaker must not be able merely to walk over the owner of the land without attempting to negotiate. The Secretary of State must be satisfied that the owner has refused to enter into agreement to sell voluntarily. The amendment acknowledges that the Bill provides that compulsory acquisition must be authorised by the Secretary of State and that he will only do so to enable the authority or the water or sewerage undertakers to carry out their statutory obligations. They should resort to compulsory purchase procedures only where agreement cannot be obtained. The amendment gives the owner a chance to negotiate when acquisition of his land is essential and when there is no other way in which the undertaker can do its job. I beg to move.

Baroness Blatch

There is some concern about paragraph (b) of the amendment on the part of water authorities. Some might say that there would be, wouldn't there? I believe that they have good reason. The paragraph provides that there is no alternative way in which the undertaker could meet its obligations. The words "reasonably practicable" or some equivalent should be inserted before "alternative". For example, a water undertaker could need to build a water pumping station at a particular route in relation to a line of water mains. The owner of the land on which the pumping station is to be situated could refuse to sell the land, and lengthy re-routeing of existing works as well as the replanning of new works could be required to enable the water undertaker to meet its obligations under the Bill. But that could result in some existing works becoming unnecessary as a result of the re-routeing and the unnecessary construction of new works. Also there could be two alternative routes along both of which there were owners who were unwilling to sell. Therefore in respect of either route you could not say there was no alternative way. Paragraph (b) of this amendment would lead to an impasse where the water or sewerage undertaker could not obtain a compulsory purchase order in respect of either piece of land.

To answer the fear that undertakers could use their compulsory purchase powers to buy large quantities of land which they would subsequently sell at vast profit, it is worth pointing out that by Clause 147 of the Bill as drafted the compulsory purchase powers apply only in connection with the carrying out of functions. In addition, Clause 147(7) of the Bill contains provision for obtaining the consent of the Secretary of State before disposing of land which has been compulsorily acquired.

2.15 a.m.

Lord Monson

I strongly support the series of amendments in the name of the noble Lord, Lord Middleton, and his noble friends, as indeed I did the preceding amendment in the name of the noble Lord, Lord Stanley. Nobody likes compulsory purchase but over the decades people have become reluctantly reconciled to it provided that it is the country as a whole or, at least a substantial part of the country as a whole, which benefits. But it is a very different matter when one has compulsorily to make sacrifices for the benefit of shareholders in private companies.

It has to be said that the pass has to some extent been sold on this one by virtue of the acceptance by the Conservatives after some considerable initial resistance of Labour's 1967 Leasehold Reform Act. The Committee may remember that leasehold reform was originally designed, commendably enough, to help poor people, chiefly poor people in South Wales. However, the main beneficiaries turned out to be rich people living in Chelsea, Bayswater, Hampstead, Dulwich and so on, who benefited often at the expense of charities.

I suspect that the same thing may happen again here if we are not careful. And it is not just large landowners who may suffer, but small landowners as well and possibly even people who own a single house with a large garden. After all, a man may wish to leave some land to his son or his daughter in the expectation, or at least in the hope, that at some time in the distant future—perhaps 20, 25 or 30 years hence—it may acquire some development potential. If it is compulsorily purchased now, the price will almost certainly not reflect the distant possibility, as I understand it. That is why the proposals as they stand are so unfair and unwelcome.

The Earl of Caithness

My noble friend Lord Middleton has raised an important point which I should like to deal with fully if the Committee will bear with me. Clause 147 provides that the NRA and water and sewerage undertakers may be authorised by the Secretary of State or the Minister of Agriculture, Fisheries and Food to purchase compulsorily land anywhere in England and Wales for the purposes of or in connection with their functions. They may also be authorised to acquire interests in or rights over land by the creation of new interests and rights. Water and sewerage undertakers will only be able to acquire compulsorily land for the purposes of their statutory water supply and sewerage functions. The power will not be available for any other purpose.

The purpose of Amendment No. 394A is to require that the Secretary of State or Minister shall not authorise water and sewerage undertakers to acquire land or rights over land compulsorily unless he is satisfied: first, that the land is essential to enable the undertaker to meet its statutory obligations; secondly, that there is no alternative way in which the undertaker could meet those obligations; and, thirdly, that the owner is unwilling or unable to sell the land by agreement. The Secretary of State will be required to act reasonably in exercising his powers, and to give due weight to all relevant considerations. The present procedures which are followed by the Secretary of State in considering applications for the compulsory acquisition of land, or rights over land from water authorities, already provide for much of what my noble friend seeks to achieve by his amendment.

These procedures will continue to apply after the privatisation of the water industry. The Secretary of State will require a statement of reasons from undertakers seeking to acquire compulsorily any land or rights over land. This would need to explain why the land concerned is essential for the purpose for which it is required, and why its acquisition by compulsory purchase is necessary. In cases where the application is opposed, the application would go to inquiry where the inspector would take all the considerations included in this amendment into account. The Secretary of State would also take full account of the statement of reasons and the inspector's findings and recommendations before deciding whether to authorise a water and sewerage undertaker to acquire any land or right over land.

Moreover, it would be inappropriate to limit the considerations the Secretary of State is to take into account in the way suggested. It would effectively restrict the ability of the inspector and the Secretary of State to judge each case on its merits. This is the principle that applies in all cases of compulsory purchase, including compulsory purchases by those organisations that have retained powers of compulsory purchase following privatisation.

I explained in my earlier remarks that part of the amendment is undesirable. The third criteria that the Secretary of State would be required to be satisfied about before authorising the use of compulsory powers would be that the owner of the land is unwilling or unable to enter into an agreement to sell the land or rights voluntarily. This would open the undertakers to ransom demands wherever they needed to acquire land for purposes such as reservoirs and gathering grounds and sewage treatment plants. It is often the case that there is no suitable alternative to the land which is the subject of a CPO. Landowners will know this, and although they may be willing to sell by agreement may well seek to extract a ransom price for their land, for which consumers will have to pay. This is clearly unacceptable.

The noble Lord, Lord Monson, said that compulsory purchase was all right, but only just, if the country benefits. However, it may have escaped his attention, that when we are dealing with water and sewage we are dealing with matters of public health. In my former role, some years ago now, as a land agent I acted for, on behalf of and against water companies and water authorities. I remember using powers under the Public Health Act 1936.

Another point to bear in mind is that much of the work of these undertakers results in using the best flow by gravity means. It is a quite different situation from that occurring with gas, where the gas is pumped. In the case of a flow to a sewage works, it is very much cheaper for the customers if that can be operated by means of gravity flow. That takes me back to the point I have just made that: often suitable alternative land is not available because those kinds of considerations have to be borne in mind. A pumping main is a very expensive operation.

I understand the concerns of my noble friend Lord Middleton. As a former Back-Bencher with him during the passage of the Wildlife and Countryside Act I shared some of those concerns. On that occasion and other occasions I spoke with my noble friend from the Back-Benches. I have looked into this matter very carefully. I hope that with the explanation I have given I have been able to give my noble friend some reassurance.

Lord Middleton

I am most grateful for the great trouble which my noble friend the Minister has taken in his reply. However, I am disappointed. The precautions I recommended are of a very modest nature and do no more than provide the most elementary safeguards against arbitrary land acquisition by commercial companies. I must confess I am slightly surprised that my noble friend has resisted them.

On the question of negotiation, I do not agree with my noble friend. I believe that far from being subject to demands for ransom the acquiring bodies would find things much easier if a proper negotiating procedure was common. I believe that the wheels would turn better. I shall give examples shortly when I move another amendment.

I should like to study carefully what my noble friend has said and consider it before another stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Middleton moved Amendment No. 394B:

Page 146, line 45, after second ("undertaker") insert ("with section 4 modified so that rule (3) of section 5 and section 6 of the Land Compensation Act 1961 shall not apply to an acquisition by a water undertaker or a sewerage undertaker and the principle known as the "Pointe Gourde Principle" shall not apply to the assessment of compensation or the purchase price payable by a water undertaker or sewerage undertaker").

The noble Lord said: I do not intend to go into the intricate details of Sections 5 and 6 of the Land Compensation Act 1961 nor into the Pointe Gourde Quarrying and Transport Company case, because I am certain that all Members of the Committee will be thoroughly familiar with it.

I believe that it is accepted that the rules governing compensation paid to the owner of property which is taken from him forcibly are not satisfactory. Indeed, as my noble friend Lord Stanley has reminded us, the Government have recently issued a consultation paper on the subject. I can understand that the Government are concerned about the long delays affecting major schemes, such as the routeing and building of motorways, with all the difficulties arising from acquiring land and fixing compensation. I can also understand the strong criticism that is being voiced of the compulsory purchase powers now being given to privatised companies.

Some of that criticism was heard on 10th May when my noble friend Lord Kinnoull initiated a debate on compensation in connection with the acquisition of land for the Channel Tunnel link. The arguments put forward in that debate are very relevant to the question of what compulsory powers should be given in this Bill to the private water companies.

At this hour the Committee will not think it appropriate to rehearse the arguments at length. However I should say that my noble friend Lord Brabazon took great trouble in that debate to state the Government's view, and we must be grateful to him for putting it so clearly.

Very briefly, the rule is that when land is acquired under compulsory powers the price that is paid to the owner is the existing use value ignoring any additional value attributable to the use for which it is acquired. It is that principle of valuation for compensation which is to be applied under the Bill when land is acquired by the new plcs.

As we have discussed, the Bill limits the powers of the plcs to acquire land compulsorily to cases where they are fulfilling their statutory water and sewerage functions. As we have been told, compulsory powers shall not be available to acquire land for what is called incidental commercial development.

The special difficulty when private water companies are taking land from private individuals is that they will be operating in the private sector for the profit of their shareholders. All the functions, including the statutory functions of plcs, are to be carried out as commercial enterprises. It seems to me that to divide incidental commercial development from all other forms of development is an artificial distinction. Everything they do will be commercial.

My noble friend Lord Kinnoull, in his debate, asked how one distinguishes what is an incidental commercial development from what is part and parcel of a scheme. One can envisage a small farmer with hill land, in Wales perhaps, operating on the margin of profitability and probably below it. A water company requires his land for, say, a reservoir. He will be dispossessed and paid the going rate for hill land. Being in Wales it will probably be in a designated area, which would exclude any potential value for forestry, for example. The existing use value will be very low indeed.

The water company then discovers all kinds of commercial opportunities—fishing, water sports, recreational and holiday accommodation—which it will exploit. Indeed, under the Bill it will have a duty to do so because it must work for profit. It will have obtained land at a discount, certainly not to the benefit of the farmer or to the benefit of the public purse but to the benefit of the company's shareholders. Those who will lose land without being paid its proper value will often be people of little means. People like my Welsh farmer will not feel that justice is being done when they are forced to give subsidy to the profits of a huge and rich plc.

From the reply of my noble friend Lord Brabazon of Tara on 10th May and from the reply of my noble friend Lord Sanderson of Bowden to an Electricity Bill amendment on 16th May, it seems clear that the Government are firmly against departing from the present rule. But I ask them to consider once again the strength of feeling regarding companies that operate in the private sector being required to pay the full market value for any land, without disregarding the scheme under which it is acquired. They should deal with private owners like any other private purchasers.

This rather obscurely worded amendment requires that the price at which land changes hands when it is compulsorily acquired by a water plc should be the full market value at which it will be sold by a willing seller to a willing buyer, taking into account the purpose for which the buyer wants to purchase it. I beg to move.

2.30 a.m.

Lord Monk Bretton

I should like to say a word or two in support of this amendment. I start by saying that I happen to have certain agricultural contacts with Brittany. Over time, I have been impressed by the progress that it has made with its road building and how it manages to get the whole thing done more quickly from the time of decision to the time of execution and so forth. I have wondered from time to time how owners and occupiers of property fared. I have always gathered over there that, first, the owners and occupiers did not make a fortune out of it but that it was not a disaster either. All affected got some improvement out of it. They got a little more land, they at least got a better layout and those who were displaced were satisfactorily reinstated elsewhere. I do not know the full details, but the great and important point is that it seems to work. It seems to achieve something like reinstatement plus a bonus.

I think that it is worth mentioning that French procedures in this respect are probably prompted by the wide distribution of property owning in that country. It seems to me that our rules were perhaps based on the view that property belonged to a rich few some years back. That may once have been politically justified, but I wonder whether it is not now outdated. At any rate, I think that we could learn some lessons from what has gone on in France. I also feel that it is right to continue to raise those points because we have trouble with our compensation system. I believe that, when we wear our taxpayers' hats, we feel more generous and sympathetic now towards the property owner whose property is being compulsorily purchased, thinking, "Well, there but for the grace of God go I".

I should like to welcome particularly the consultation paper of 7th March. The important points that lead from that are: when are we likely to see any legislation? Will it be in time for the Bills that are being presented, which each time involve compulsory purchase? That of course is the reason we tend to keep trying to include amendments about compensation in these Bills.

This proposal would take us back to the situation in 1919. Market value would be the rule and what the private company would have to pay, negotiating at arm's length. If we introduce this provision I think that it would provide something much more adequate for consequential loss and for the victims of compulsory purchase, which would be very welcome.

For that reason I make no apology for putting my name to this amendment. It would dispose of rule (3) in Section 5 of the 1961 Act. I do not suppose that Her Majesty's Government will like it very much, but I believe that this is a good course to pursue.

I gather also that neither have the Government wished to concede the principle of reinstatement. I fancy that they will probably want to proceed some way towards the concept of reinstatement by keeping intact rule (3) of Section 5 of the 1961 Act, but with what I would call further built-on remedies. Perhaps that is better than nothing, but it is my belief that reinstatement plus reasonable extra reward is the least that is required today. The essential course would be to concede just that by some means or other, and soon.

The Earl of Radnor

I should like to say a few words in support of the amendment of my noble friend Lord Middleton. His solution is a perfectly reasonable one. I am certain that it is time that these rules were changed now that privatisation is taking place in areas dealing with land. I think that it is quite ridiculous to go on in our old ways. His formula seems perfectly adequate. There are others. I hope that if his amendment is not accepted he will see fit to carry it forward to a later stage in the passage of the Bill.

The Earl of Caithness

This important general issue has been before this Chamber on three occasions during recent months. It was discussed during the debate on the Channel Tunnel, during the debate of my noble friend Lord Kinnoull on land compensation on 10th May, and more recently during the Committee stage of the Electricity Bill. I think that it is such an important issue of concern that if the Committee will bear with me I shall take this opportunity to restate the Government's views.

The Government have responded to the concern expressed by several noble Lords about the operation of the present compensation code. The code was reviewed following an undertaking given by my noble friend the Leader of the House during the debates on the Channel Tunnel Bill; and my right honourable friend the Secretary of State for the Environment made a statement in another place, setting out the Government's considered views, on 7th March. As I have already said, the department has also issued a consultation paper proposing a variety of improvements in land compensation provision.

I suggest that there are really two aspects to this issue. One is the question of the scope of the compulsory purchase powers which will be available to undertakers. The other is the question of the compensation payable where land is taken compulsorily. The two aspects are closely connected.

Clause 147 makes clear that the use of compulsory powers will be subject to ministerial authorisation and that they will be available solely for the purpose of the NRA and water and sewerage undertakers' statutory functions. The powers will not be available to the companies for any of their entrepreneurial activities.

In support of the proposed amendment it has been argued that the private companies will be able to buy land cheaply for commercial purposes using compulsory power and that the benefit of its development would accrue to shareholders rather than to the general public. Such statements, I believe, ignore the fact that compulsory power will be available to companies only—and I stress "only"—for the purposes of their statutory functions, not for incidental commercial operations.

The Earl of Radnor

Surely, as my noble friend Lord Middleton said, you cannot divide the two. The plc is a profit making concern, and that is that.

The Earl of Caithness

I believe that one can divide the commercial operations, as I explained to my noble friend Lord Stanley of Alderley. However, my noble friend's fears should be further allayed because, I reiterate, each acquisition will be subject to confirmation by a Minister. The merit of each will be examined with the same rigour as is currently applied to all compulsory orders. If the companies wish to acquire land for incidental commercial projects they will need to compete in the open market on the same basis as other private concerns. So we are talking here only about the limited types of acquisition for which compulsory powers will be available.

Turning now to the issue of compensation, the basic principle of compensation in the current code is that the landowner should receive the full market value of what is being taken from him. Setting aside the effect of the project for which the land is being acquired produces just that effect. Over the years, that principle has been shown to be fair to landowners and acquiring authorities alike and now forms part of the common law—the Pointe Gourde principle—and of the statutes referred to in Amendment No. 394B.

It is suggested that, as a landowner's compensation would not reflect the value of the specific project for which the land is being acquired, he would, in effect, be paying a subsidy to the company. But this view overlooks the point that we are taking here about a peculiar category of development—development by statutory undertakers to provide public services—which is not analogous to ordinary commercial development. The concept of the "market value" of land for such purposes has no clear meaning: it is not even clear that it would be greater than or less than its value for alternative uses. The landowner would have no prospect of selling his land on the open market at a price that reflected such development. I would therefore ask the question: where is the subsidy?

The proposed amendment would create two compensation codes, one for acquisition by public bodies, the other for privately owned ones. In the Government's view, there is no justification for this. The important principle of equity would be lost; compensation would become a haphazard affair and the process of acquisition made more confusing and costly.

But this is not to say that the Government believe the current compensation code to be beyond improvement. The consultation paper issued by my department, which I have already mentioned, is evidence of our concern. It is clear from some of the responses that improvements in the code are desirable and feasible; in particular there may be a case for recognising the effects of compulsory purchase by way of additional allowances—a point which my noble friend Lord Monk Bretton, with his experience in France, found to be quite effective. Indeed the Royal Institution of Chartered Surveyors have proposed a sliding scale of such allowances relating to the value of the land for this very purpose. We shall study these and other suggestions very carefully and bring forward firm proposals once that process is complete.

No doubt there will be further opportunities to discuss the issue of development value compensation. I note that the CLA and the NFU have returned to the charge in the submissions on the consultation paper. But it is of course a very wide-ranging issue, going much further than the present Bill, and it would be seriously anomalous to write a different basis of compensation into these provisions.

From what has been said this evening not only do I expect a full submission from my noble friend Lord Stanley of Alderley, but I am sure my noble friends Lord Middleton, Lord Monk Bretton and Lord Radnor will also respond to our consultations on this matter. In view of what we are doing and the concerns that we have shown, I hope to try to improve the situation, if that is desirable and feasible. In the meantime, I hope that my noble friend will withdraw his amendment.

Lord McIntosh of Haringey

Before the noble Lords respond to that invitation, the Government are engaged in a full consultation process on compensation which runs much wider than the implications of the Bill. I think that it is astonishing, while the consultation process is going on, that noble Lords should think it proper to intervene on compensation regarding a small part of the issues involved, and to take up the time of the Committee at this length with something on which noble Lords will have plenty of opportunity to submit evidence to the Government. It is really only marginal to the consideration of the Bill. I know that my own concern is for the progress and improvement of the Water Bill, but I think that to some extent noble Lords are taking advantage of the Committee in this respect.

2.45 a.m.

The Earl of Caithness

The noble Lord, Lord McIntosh, raises a valid point in that he confirms what I said, that we are now discussing a very much greater and wider ranging issue than that relating to the present Bill. However, I believe that, having spent seven and three-quarter days in Committee, to take 20 minutes to try to give a full answer is perhaps not excessive.

Lord Middleton

Again I am grateful for my noble friend's very full reply. I am sorry that this should take up the Committee's time, but as my noble friend has said, it is a very important point and it is not my fault that this is happening at quarter to three in the morning.

Until I heard the last part of what my noble friend, the Minister said, I was rather disappointed by his reply. I felt that the Government's attitude might be compared with that of the Emperor Constantine when he decided to delay marching his legions from Gaul into Italy. Edward Gibbon described him as restrained by considerations of prudence rather than by principles of justice.

While stating the Government's position on what the amendment tries to achieve, my noble friend the Minister held out some encouragement. He said that the Government would look at a proposal put forward, I think he said by the RICS, about payment of some kind of additional allowance. As my noble friend Lord Monk Bretton said, something of this kind is practised in France. It might go some way towards oiling the wheels and solving the immense delays and difficulties for large projects.

I am also aware of the practical difficulties inherent in making a valuation for some of the purposes for which the water plcs may require land. But I do not believe that they are insuperable. For those reasons and in the hope that between now and the Report stage the Government may come a little further towards my view that the principles of justice in this matter are not being upheld by the Bill, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 394ZB not moved.]

The Earl of Caithness moved Amendment No. 394BA:

Page 147, line 40, leave out ("for the purposes of a water or sewerage undertaking").

The noble Earl said: Clause 147 provides that that NRA, water and sewerage undertakers may be authorised by the Secretary of State, or the Minister of Agriculture, Fisheries and Food, to purchase compulsorily land for the purpose of their functions. Subsecion (7) prevents the disposal of compulsorily acquired land without ministerial consent. This is a technical amendment to clarify the situation concerning the land to which disposal consent in subsection (7) is to apply. I beg to move.

On Question, amendment agreed to.

Clause 147, as amended, agreed to.

Schedule 17 [Modification of Compensation Provisions etc. in relation to the Creation of New Rights]:

[Amendment No. 394BB not moved]:

Schedule 17 agreed to.

Clause 148 agreed to.

Schedule 18 [Powers with respect to the Laying and Maintenance of Pipes etc.]:

Lord Middleton moved Amendment No. 394C:

Page 267, line 16, leave out from ("only") to ("and") in line 18 and insert—

("(i) in an emergency or when a pipeline is being laid in order to comply with a requisition under this Act, only after reasonable notice has been given to the owner and occupier of the land; (ii) in all other circumstances, only after the consent of the owner and occupier has been given, which consent shall not be unreasonably withheld; any question whether such consent is or is not unreasonably withheld shall be referred to and determined by the Secretary of State;").

The noble Lord said: The Water Act 1945 provided that pipe laying on privately owned land could be undertaken only with the consent of the owner and occupier. If that consent was unreasonably withheld the undertaker could ask the Secretary of State to intervene. That provision worked perfectly well until it was amended by the Statutory Instrument Order 1974. That gave to water authorities the power to lay pipes on any land after giving reasonable notice. That power is transferred in the Bill by paragraph 4 of Schedule 18.

The exercise of that power has caused more dissatisfaction and ill will among the owners and occupiers of land than have any other of the statutory powers given to water authorities. I fully recognise that when work needs to be done as a matter of urgency, or where public health is at risk, compulsory powers of entry should be available. If we do not amend Schedule 18 while allowing for emergencies just the same problems will arise as have arisen since the 1974 order. They have arisen because the staff of the water authorities have known perfectly well that they have statutory power of entry without any requirement to consult or negotiate. In practice, not only have they failed to consult but their contractors have not been properly supervised in too many cases and have caused damage in too many instances. The delays in settling compensation have become notorious.

The behaviour of the water authorities in relation to those whose land they have entered is in strong contrast with that of British Gas and the oil companies. In respect of those bodies there are proper procedures to undergo before they can acquire any rights or land that they need. There are no rights of entry to construct oil or gas pipelines without authorisation. In practice they negotiate entry and terms. In the absence of agreement there are compulsory purchase procedures with rights of objection and a hearing.

By offering reasonable terms and safeguards, British Gas was able to distribute North Sea gas through thousands of miles of pipelines through private land, with dispatch and virtually no recourse to public order. I do not see any reason why water companies should not be required to behave in the same way, and this amendment would ensure that they did. It is not right that the absolute powers of entry of the water authorities should be handed over to the water companies, except in exceptional cases of emergency. I fear that to leave the Bill as it stands will lead to friction and injustice. By treatying with owners and occupiers, water companies will find, as have British Gas and the oil companies, that they will not be held up or held to ransom I beg to move.

The Earl of Arran

Water authorities are currently able to lay water mains and sewers after serving reasonable notice on the owners and occupiers of the land through which the pipes are to run. They are not required to obtain consent. We have decided to retain these powes for public health and operational reasons as satisfactory water supply and sewerage arrangements are essential to public health. As my noble friend has pointed out, and as I know, they would be the only public utilities with this power. The water industry can, however, properly be regarded as operating in a different context from other utilities. Undertakers need to be able to replace defective private water supplies with public ones and complete major sewerage schemes (including those required to comply with EC standards for bathing water) quickly and without the delays that would be involved in seeking the consent of every landowner involved and where consent was not forthcoming referring the matter to the Secretary of State.

I am aware, however, of the scope these powers may offer for arbitrary behaviour on the part of the undertakers. It is because of this that we have decided that the powers should be subject to a statutory code of practice to be submitted by the private companies to the Secretary of State for approval. These will contain similar provisions to those in the model code which the department has produced in consultation with the water industry and landowning interests. Copies of the model code are available in the Library. Unlike the voluntary codes which already exist in some water authorities, these codes will be mandatory and the powers will be subject to the oversight of the director general.

There is also provision in Clause 156 of the Bill for the director general to direct an undertaker to make a payment to a complainant if he is satisfied that an undertaker has failed to consult the owner or occupier before or during pipe laying or by acting unreasonably has caused them to suffer loss or damage or to be inconvenienced.

The effect of this amendment would be to place a severe constraint on the ability of the authority and undertakers to carry out the works which are required of them and which in many cases are essential to public health. I hope with those assurances my noble friend will agree to withdraw his amendment.

Lord Middleton

I believe that the water companies would find it a great deal easier to get their work done under the suggestions that I made. However, I shall study very carefully what my noble friend said and I shall perhaps return to this matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 394CA:

Page 267, line 20, at end insert— ("(5) Any notice served under this paragraph may be registered as a local land charge under Local Land Charges Act 1975.").

The noble Baroness said: Water and sewerage undertakers will have a power to lay mains and sewers following service of a notice on the landowners and occupiers. In the past a problem has arisen when property changes hands and those notices are not handed down from one owner to another. In the case of properties in built-up areas, the problem is perhaps less serious. However, in open countryside new owners may have no reason to believe that there is a main or sewer under their land.

This amendment would enable water and sewerage undertakers to register notices as to main or sewer laying as a local land charge and thus new owners of the land would be aware of the mains and sewers under them.

I have deliberately stated "may" and not "shall" as the water and sewerage undertakers should have a discretion as to whether the main or sewer is in and area where it would be appropriate to register the land charge; that is, in open countryside, perhaps yes, but in built up areas, perhaps no. It is important that landowners know whether there is a main or sewer under their land as damage is often caused to water mains or sewers when landowners carry out works—for example, laying field drains—without realising that a main or sewer is under their land.

This amendment is important for the protection of pipes and other apparatus of water and sewerage undertakers. It is also important for the protection of the landowners themselves. For example, someone may buy a piece of land with the intention of building or for some other purpose. He would obviously want to know at the time that he bought it that there was a main or sewer under that land. At present if the land has changed hands several times since the main or sewer was laid and the potential purchaser does not go to the trouble of inspecting maps of mains and sewers, he may not be aware that the main or sewer was in existence. If this amendment was accepted, searches carried out before the property was bought would reveal the existence of the main or sewer.

I hope that the Minister will see the need for this amendment and will accept it. If the amendment is not acceptable, I invite my noble friend to recognise that a problem exists and I ask him to consider whether there is another means of tackling the problem. I have suggested another way to tackle part of the problem in amendments to Clause 161 but they look at the problem from the point of view of protecting water and sewerage undertakers.

By those amendments, a landowner would be deemed to be negligent if he carried out work which affected a water main or sewer without first having inspected the maps of mains and sewers held by water and sewerage undertakers. Those amendments look at the problem further along the line. This attempts to nip it in the bud by providing a means of making a landowner aware of mains and sewers under land before he even buys the land. Those are two suggested solutions to a major problem on which I look forward to hearing the comments of my noble friend the Minister. I beg to move.

3 a.m.

The Earl of Arran

This amendment would place an unnecessary burden on local authorities and it could also make legal searches even more time consuming and costly. The effect would be that notices served under Schedule 18 to inspect, maintain, adjust, repair or alter pipes, as well as those concerned with laying pipes, would all require to be registered.

We appreciate that the intention behind the amendment is to ensure that the future owners of the land are aware of any pipes that cross the land. However, this can be achieved by following the provisions of the model code of practice for pipelaying, copies of which have been placed in the Library. This provides for undertakers to permanently mark the line of a pipeline at field boundaries.

Concern over future building taking place over sewers or pipes is met by the relevant provisions of the Building Act 1984, as amended by Schedule 8 to the Bill. Local authorities are required to consult sewerage undertakers when plans deposited for the purpose of complying with building regulations involve building over a sewer or drain shown on the sewer map. This procedure ensures that the undertaker's interests will be more than adequately protected. If an undertaker is concerned to ensure that no activity takes place over the line of a pipeline without its agreement, it is open to the undertaker to negotiate easements with the landowner concerned. These provide undertakers with a legal interest in the land concerned which is incorporated into title deeds and passed on when the land changes hands.

I believe that the amendment is unnecessary and therefore I ask my noble friend not to press it.

Baroness Blatch

I thank the Minister for that reply. On the suggestion that undertakers should enter into an easement with the landowner on each and every case, it needs to be noted that mains and sewers last for many years and it is not possible to envisage the future use of land when they are laid. Moreover, to negotiate an easement in all cases would defeat the object of having power to lay mains and sewers following the serving of notices.

I am concerned about the passing down of this information so that damage cannot be done in future years, but in view of the late hour I shall not press the amendment and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Schedule 18 agreed to.

Clauses 149 and 150 agreed to.

Schedule 19 [Orders conferring Compulsory Works Powers]:

[Amendments Nos. 394CB to 394CM not moved.]

Schedule 19 agreed to.

Clause 151 [Power to carry out surveys and to search for water]:

The Earl of Arran moved Amendments Nos. 394D and 394E:

Page 151, line 21, after ("water") insert—

("( ) to install and keep monitoring or other apparatus on the premises for the purpose of obtaining the information on which any such determination as is mentioned in subsection (2) above may be made;").

Page 151, line 24, leave out ("mentioned in subsection (2) above") and insert ("so mentioned").

The noble Earl said: On behalf of my noble friend I move these amendments together. The purpose of the amendments is to provide that the authority and the water undertakers are able to, install and keep monitoring or other apparatus on the premises".

This will enable them to obtain the information they require in order to determine whether to acquire the land or to apply for a compulsory works order. The apparatus involved will generally be for drilling and pumping purposes, together with associated pipework. I beg to move.

On Question, amendments agreed to.

Clause 151, as amended, agreed to.

Clause 152 agreed to.

Clause 153 [Byelaws with respect to waterways etc. in which the Authority or undertakers have an interest]:

Lord Greenway moved Amendment No. 395:

Page 152, line 38, leave out subsection (2)

The noble Lord said: I beg to move this amendment and at the same time perhaps I may also speak to Amendments Nos. 396 to 399. Clause 153 reflects the powers available to water authorities under the Countryside Act 1968 and perspectively Section 48 of the Control of Pollution Act 1974. However, subsection (2) is something quite new and on which the boating interests were not consulted. They are not very happy about it. My Amendment No. 395 seeks to delete the subsection altogether or, failing that, Amendment No. 397 proposes to exclude coastal waters from its application. Subsection (2) would enable the NRA to make by-laws in relation to any inland waters that are not otherwise controlled.

The definition of inland waters in the Bill includes, any channel, creek, bay, estuary or arm of the sea".

Thus the NRA would be given unprecedented by-law and registration powers to control navigation in tidal waters.

There seems no basis for such wide-ranging powers particularly given that tidal waters do not contribute to water supply. In relation to estuaries and creeks at least the proposal would seem to be unintentional for with the exception of Rye harbour which is controlled by Southern Water, the NRA will have no immediate experience of or interest in regulating boating or sailing in coastal waters. It would also necessarily involve the diversion of the NRA's limited funds and resources.

If there is a need for any powers in relation to tidal waters—and I understand it is desired to control canoeists on the River Wye—it nevertheless appears to me appropriate strictly to limit the definition of inland waters to exclude coastal waters in particular. The creation of this new power in a body that I submit is ill-suited to its exercise, is in sharp contrast to the meticulous care that is exercised by the DoT Ports Division in its supervision of harbour and conservancy authority constitutions.

In addition, for the NRA to be given by-law and registration powers for tidal waters either duplicates or is inconsistent with a number of existing measures, such as the Merchant Shipping Act 1988 which removes the requirement for compulsory registration for pleasure yachts. The boating interests and particularly the Inland Waterways' Association also question the case for the wide-ranging powers proposed in subsection (2) which would allow the NRA to make by-laws in relation to waterways that are not otherwise controlled.

Except in three of the 10 water authority areas, the NRA will inherit no navigation functions and the desirability of making by-laws in the absence of any presence on the waterway in question seems doubtful. Furthermore, the boating interests are concerned that it is likely seriously to prejudice the establishment of local management by voluntary navigation trusts and similar bodies that are best fitted by reason of their motivation, to direct local involvement and expertise in assuming this role.

If such powers are to be made available, the boating interests suggest that it is better for such voluntary navigation trusts and similar bodies to have the facility to make the by-laws. My Amendments Nos. 396 and 398 are directed to that purpose. I suggest that a local group that has an interest in maintaining a waterway in a condition that allows it to be enjoyed by everyone is best fitted to exercise powers of regulation. Such groups are invariably comprised of a committee of responsible individuals who are only too well aware of the need not only to maintain the locks and weirs, where they exist, but also to ensure that those who use and enjoy the river or canal leave it in a condition that enables other to do the same.

I cite one particular example that is generally acknowledged by riparian owners, anglers and canoeists to be very successful. That is the Upper Avon Navigation Trust which is a charitable trust appointed as the navigation authority for the upper Avon under the terms of the Upper Avon Navigation Act 1972. I will not go into details on that at this late hour. Suffice it to say that there are other groups that would like to follow the example of Upper Avon and who would be encouraged in their efforts if the Government were to accept these amendments even though it would still be necessary for them to obtain specific authority and planning permission in order to provide locks, weirs and mooring sites where these do not exist.

Finally, Amendment No. 399 aims to secure that by-laws can be made not simply to restrain the exercise of rights of navigation but also in the interests of preserving them. This is not only important in itself but also has the benefit of changing the emphasis of the clause to encompass specifically the interests of navigation. I beg to move.

The Earl of Caithness

Amendment No. 395 would remove altogether the NRA's power to make by-laws with respect to certain inland waters, and, as the noble Lord said when he moved the amendment, would render the other amendments redundant. I am afraid that there really can be no question of accepting it. The NRA's power in subsection (2) of this clause stems from the very real need to bring order to stretches of river where there is conflict, particularly between anglers and canoeists. We come back to the question of balance, something which I have raised on numerous occasions at Second Reading and in Committee. Here we have another example of where balance is even more necessary because the boating interests feel under threat. However, there are other interests to be taken into account.

Amendment No. 397 has the more modest objective of limiting the by-law-making powers to rivers and other truly inland waters, and keeping it away from coastal waters. Here, I have some sympathy with the noble Lord, Lord Greenway, in so far as I would certainly not envisage any need for any but the most occasional use of the power other than with respect to rivers. But it seems to me that the same conflicts which exist now on some rivers could in the future arise in estuaries, for instance. Who can say? I do not believe that it would be prudent to jettison the power to intervene in such circumstances, especially since by definition there might be no other means of regulating conflict.

Turning to Amendment No. 398, I have to say that there really can be no question of a by-law-making power being delegated to third parties in the way suggested. Although there are no doubt some bodies which are sufficiently worthy and capable as to be entrusted with this function, I must respectively remind the noble Lord that even the Secretary of State cannot make by-laws without a specific power being conferred on him by statute, and that when he is given such powers they are never able to be delegated. Similarly in this instance: the power to make by-laws is, after all, an important public function, giving rise to offences and penalties. It is not right, in general, for it to be delegated, and I suggest that there is nothing about this specific situation which would make it right here, nor, in practice, do I feel that it would actually serve any useful purpose. For if the NRA were to be sufficiently close to any particular case so as to be sure that it was content to delegate the by-law power, it would almost certainly be the case that it had already acquired a very clear picture of what ought to be done, and I doubt whether by then there would be any advantage in nominating another person or body to take the task forward.

As to Amendment No. 399, the by-law-making power extends in subsection (3)(c) to securing that persons resorting to water behave so as to avoid undue interference with others, and to that extent would enable the prevention of some kinds of obstruction to navigation. If, however, someone places a chain across a river, or places some other object in it so as to prevent navigation, he will be doing something equivalent to obstructing a public right of way. That would be illegal quite apart from any illegality created by by-laws. The appropriate procedure in such cases would be civil action by affected parties rather than action via by-laws.

Although I fully accept the spirit of the amendment, I hope that, with the reasons I have given, the noble Lord will see that there is another side to the argument and will not seek to press it.

Lord Greenway

I am grateful to the Minister for his full reply. I am naturally disappointed that he cannot see fit to accept any of the amendments. In regard to the coastal waters question, it is rather the thin edge of the wedge to confer by-law powers in the face of one problem. To say that they will never be used is, with respect, a hoary old chestnut. However, I shall read with care what the noble Earl has said and, in the meantime, I beg to leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 396 and 397 not moved].

3.15 p.m.

Lord Moran moved Amendment No. 397A:

Page 152, line 39, leave out ("in relation to which there is a public right of navigation").

The noble Lord said: I was greatly encouraged by the remarks just made by the noble Earl, Lord Caithness, about balance. I say that because that is what I am seeking to achieve in the three amendments to which I should now like to speak; namely, Amendments Nos. 397A, 398A and 399ZA. All of them concern navigation. The question of balance is crucial.

On Second Reading I quoted what Mr. Ridley said about the NRA needing freedom to hold the ring between the many and sometimes competing interests which want to enjoy our lakes, rivers and estuaries. I have spoken on one or two occasions in this Chamber on this issue. My concern all along has been to ensure that some authority—clearly it must be the NRA in respect of inland waters—should have powers to control all forms of recreation.

Anglers are already, quite rightly, tightly controlled, but canoeists (who have already been mentioned) are not controlled at all. Moreover, unlike the anglers who have to pay substantially for their sport, the canoeists are heavily subsidised through the Sports Council by the taxpayer.

The object of these amendments is to ensure that there is no doubt that the NRA has powers to control boating, as well as angling, in all inland waters. They would extend the power of the NRA to make by-laws for keeping good order on waters and land associated with waters. As presently worded, the NRA's by-law-making powers are confined to waters which are subject to a public right of navigation and any land associated with such waters. That creates difficulties.

On some rivers public rights are claimed where the riparian owners and owners of the fishing rights are convinced that they do not exist. On others there is uncertainty as to the status of the river. It is not for the NRA to pronounce on the existence of rights; it is for the courts to decide.

The first amendment removes the words limiting the by-law-making power to public navigations. The second extends the by-law-making power to cover the registration and marking of boats. That is obviously essential to make it possible to enforce by-laws for the control of boats.

The third amendment adds words to the definition of "boat" to make it clear that any craft is included. Such devices as jet-skis and hovercraft are already included by way of the definition of "vessel" contained in Clause 182(1).

I was encouraged by what the noble Earl, Lord Caithness, said on the third day in Committee. On 8th May (at col. 436 of Hansard) while talking about the NRA he said: It should … be able to help manage effective recreational uses of rivers where there is no navigation authority or give support to local voluntary bodies to do this … there must be a body which, irrespective of its other regulatory functions, is able to take a clear overall view of the development of recreation on rivers where this is needed. Again, it should not be expected that the NRA will make dramatic use of these powers in the short term".

I was happy to read those words, but it is the case that the NRA is a creature of statute and it will only be able to do what the statute enables it to do. My amendments are designed to enable it to have wider by-law-making powers for the control of boating. By-laws are invalid if they go beyond the scope of a power given in the Bill. I doubt whether the NRA can control the recreational use of waters other than by by-laws. It can of course do so on its own waters (the ones that it owns or controls directly) but there is little scope otherwise for it to control boating.

Clause 10 provides for a code of practice, but that falls to the jurisdiction of the Secretary of State. It is a real problem. It is not merely a question of canoes. For example, at the moment on the Wye, the river that I know best, a barge, 136 feet long and weighing 230 tonnes, has been brought in. It is now creating a serious nuisance. It is stuck in the mud in the lower reaches of the river. It has been stuck three times. It is intended to move it up to Hereford for it to be used as a restaurant.

It is necessary for a body such as the NRA to have powers to control all forms of boating, including that sort of thing. I hope that the Government will agree that the provision is common sense and that it is not sensible to have the NRA able to exercise powers of regulation on one section of a river and not on another. I hope that they will agree with the amendments. I beg to move.

Lord Greenway

My noble friend Lord Moran will not be surprised if I resist this set of amendments. I have some sympathy with him with regard to the canoeing problem on the Wye. The barge is an isolated incident. Presumably, once it arrives at Hereford that will be the end of matter.

We cannot tar everyone with the same brush and extend by-law powers nation-wide. It is just not on to make the registration by-laws applicable to private waterways. My noble friend mentioned balance. The amendments begin to shift the balance in the other direction, which is why I am unhappy with them.

Lord Moran

With the Committee's permission, perhaps I may add that it is not merely a problem with canoes on the Wye. There is a problem there, but there is a problem on many other rivers. I shall not bother the Committee by giving their names, but it is a general problem. It is not confined to the Wye.

The Earl of Caithness

Amendment No. 397A would, I think it is fair to say, turn what we intended to be a useful but modest provision for bringing order to rivers such as the Wye and a few others into one which would almost justify changing the Bill's title to the Water and Navigation Bill. To give the NRA such powers would cut right across the powers of all other existing navigation authorities, including the British Waterways Board and many harbour authorities. Even if it were judged right at some future time to make such a provision it would have to be linked with a review of the whole of navigation law in England and Wales and be accompanied by a mass of other legislation. I therefore really cannot see how this amendment could possibly be accepted in the context of this Bill.

As to Amendment No. 398A, the NRA will of course have the power to require registration and the display of registration numbers if it sees fit; but I suggest that there can surely be no case for requiring every canoe, inflatable dinghy, coracle, jet-ski, or whatever, to be registered. There would be no sense or obvious purpose in such a requirement even if there were a case for the universal registration of, say, larger powered vessels. I suggest with all respect that those are matters much better left to the discretion of the NRA.

I have considerable sympathy, however, with Amendment No. 399ZA. There is clearly a need to be sure that all of the vast variety of leisure devices which can be used on or in water can be covered by the by-laws which this clause envisages. However, I think that the clause is adequate as it stands. The present definition—"boats and vessels of any description"—is already very wide indeed. But quite apart from that I would refer the noble Lord to subsection (4)(a), which allows the NRA to regulate, sailing, boating, bathing and fishing and other forms of recreation". It is important to stress that. It is hard to think of what could slip through a net cast as wide as that, and I am therefore not convinced that the amendment would add substantially to the scope of the clause.

The noble Lord raised an important point which I should like to answer. We do not deny that the NRA will have to establish that there is a right of way through the courts. It would not be able to decide the matter for itself; nor, as I hope the Committee agrees, should it. As I said on the previous amendment, it is a matter of balance. The noble Lord, Lord Greenway, thought that the amendments of the noble Lord, Lord Moran, went too far. Doubtless the noble Lord, Lord Moran, will not be satisfied with my reply. It only serves to convince me, having spoken to the amendments of the noble Lord, Lord Greenway, that the Bill has got it about right.

Lord Moran

I am very grateful to the Minister for his reply. His prediction about my reaction is, I am afraid, correct, because I think it means that the NRA will be able to control boating on the Wye below Glazebury Bridge, but not above it, which seems to me to be a somewhat absurd situation. I shall have to consider this is due course and see where we go from here.

As these are the last amendments that I shall be moving, I should just like to say how grateful I am to the Government Front Bench for the patience and courtesy with which they have answered all the points I have raised, both last night and this morning. I am very grateful. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 398 to 399ZA not moved.]

Clause 153 agreed to.

Clause 154 agreed to.

Schedule 20 [Mineral Rights]:

The Earl of Arran moved Amendment No. 399A:

Page 282, line 9, leave out "for the purposes of a water or sewerage undertaking").

The noble Earl said: On behalf of my noble friend Lord Caithness, I should like to move Amendment No. 399A. This is a technical amendment to clarify the definition of land acquired by a relevant body by virtue of powers of compulsory purchase. Any further explanation is most readily assured upon demand. Meantime, I beg to move.

Lord McIntosh of Haringey

I welcome the formula which the noble Earl has found to introduce this amendment. I commend it to him and his colleagues for the remainder of the Committee's business.

On Question, amendment agreed to.

Schedule 20, as amended, agreed to.

Clause 155 [Protection of certain undertakings]:

Lord McIntosh of Haringey moved Amendment No. 399AB:

Page 154, line 47, after ("them") insert ["or, in the case of paragraph (c) of this subsection, except with the consent of the highway authority,").

The noble Lord said: In moving No. 399AB, I should like to speak also to Amendment No. 399AC. In the debate on Amendment No. 387B, the Ministers in replying have dealt to some extent already with the issues with which we are concerned. These amendments are about the inadequacies of the Public Utilities Street Works Act 1950, which, as Ministers said in response to the previous amendment, is already under review, first through the Home Report, which is supposed to review the whole Bill and, in particular, its Recommendation 35; and, secondly, through what I understand to be a consultation document issued by the Department of Transport on 5th May.

So we are conscious that this matter is in play, as they say in the City, at the moment. The inadequacies of the Public Utilities Street Works Act 1950 centre, from the point of view of these amendments, on the inadequate notice which is available to highway authorities of works to be carried out by utilities, and in particular in this case by the water and sewerage undertakers. The present provision under the Act provides that seven days' notice of major works is to be given, and three days' of minor works. There is always provision for emergency works, and that would have to continue.

However, the Home Report recommends that there should be a code of practice stating that a longer period of notice should be given to the highway authority and the police in order to minimise disruption of traffic, particularly in situations, as referred to in Amendment No. 399AC, of important or sensitive traffic routes.

We are conscious of the need for effective powers for the water and sewerage undertakings, but at the same time the needs of traffic are of considerable importance, and a great deal of time and money is lost if there is unnecessary disruption. I hope that these amendments will find approval with the Government and the Committee. I beg to move.

3.30 a.m.

The Earl of Caithness

Any work in the nature of pipelaying or the breaking open of a street carried out under the Bill will be subject to the provisions of the Public Utilities Street Works Act 1950. I recognise that utilities' work in the highways can cause inconvenience. It was because of concern about the arrangements governing utilities' street works and their costs to the community that the Department of Transport commissioned the Home Report on the review of the Public Utilities Street Works Act. The noble Lord, Lord McIntosh of Haringey, referred to that point.

The great majority of the report's recommendations have been accepted, including its principal recommendation that full responsibility for reinstatement of the excavations in the highway should be placed on the utilities themselves. This should help reduce the time taken to complete the work by enabling the utilities to carry out an immediate permanent reinstatement in most cases. Related recommendations have also been accepted, including better co-ordination of streetworks through the establishment of a computerised streetworks register and notification system, improvements in traffic management and improved information for road users. The necessary legislation will be introduced at a suitable opportunity.

Lord McIntosh of Haringey

I suppose that the words "suitable opportunity" are not as encouraging as "at an early opportunity" or the other phrases which Ministers use to say that there is no place yet in the legislative programme to introduce a provision. However, the Minister's other words are reasonably encouraging and we have certainly had the confirmation that the Government accept Recommendation 35 of the Home Report. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 399AC not moved.]

Clause 155 Agreed to.

The Earl of Caithness moved Amendment No. 399B:

After Clause 155, insert the following new clause:

"Duty to move pipes etc. in certain cases

1. .—(1) Where any relevant pipe or other apparatus is for the time being kept installed by a water undertaker or sewerage undertaker on, under or over any land, any person with an interest in that land or in adjacent land may by notice to the undertaker require the undertaker to alter or remove that pipe or apparatus on the ground that the alteration or removal of that pipe or apparatus is necessary to enable that person to carry out a proposed improvement of the land in which he has an interest.
2. (2) Where a notice is served on a water undertaker or sewerage undertaker under subsection (1) above, it shall be the duty of the undertaker to comply with the requirement contained in the notice except to the extent that that requirement is unreasonable.
3. (3) Where a water undertaker or sewerage undertaker carries out any works under this section by virtue of a notice having been served by any person under subsection (1) above, the undertaker shall be entitled to recover any expenses reasonably incurred in carrying out those works from that person.
4. (4) The duty of a water undertaker or sewerage undertaker unde this section shall be enforceable under section 20 above by the Director.
5. (5) In this section—
• "improvement", in relation to any land, includes any development or change of use but does not include an improvement with respect to the supply of water or the provision of sewerage services to any premises; and
• levant pipe" has the same meaning as in Schedule 18 to this Act.").

The noble Earl said: This new clause places a new but entirely reasonable obligation on an undertaker and enables it to recover its costs in complying. It is modelled on a similar provision in the Telecommunications Act 1984.1 commend it to the Committee. I beg to move.

Baroness Blatch moved, as an amendment to Amendment No. 399B, Amendment No. 399C:

In the proposed subsection (2), line 4, after first ("that") insert ("(a)").

The noble Baroness said: These two amendments, Nos. 399C and 399D, are small amendments to my noble friend's amendment. I am concerned that Amendment No. 399B looks at the problem almost entirely from the point of view of the landowner. In many cases it may not be possible to alter or remove pipes without its having an adverse effect on the water or sewerage undertaker's functions. My suggested amendment would ensure that the water or sewerage undertaker was not under a duty to move the pipes if it would prejudice the carrying out of its statutory functions or there is no reasonably practicable alternative position in which to place those pipes. It seems totally unreasonable that a water or sewerage undertaker should be placed under a duty to remove pipes without having regard to those factors. Therefore I hope that the Government will accept the proposed amendments to Amendment No. 399B. I beg to move.

The Earl of Caithness

The new clause will require a water and sewerage undertaker to comply with a request to alter or to move its pipes to the extent that it is reasonable—and I stress "reasonable"—to do so. We fully accept that there will be circumstances when it will be unreasonable for undertakers to move pipes. This may well include situations such as those my noble friend suggests where the undertaker's ability to carry out its functions would be prejudiced or there is no reasonable practicable alternative. It is for this reason that we have included in the clause a role for the director general.

If an undertaker considers that it would be unreasonable to move a pipe he is able to refuse to do so. The person requesting the pipe to be moved can take up with the director general the undertaker's refusal to do so. The director general would take all the relevant circumstances of the particular case into account in determining the question.

I hope that what I have said reassures my noble friend. We were aware that concerns such as she has raised could be valid unless we made the provision for the director general to take a role if necessary. That is provided for in our amendment, which has been agreed.

Baroness Blatch

I thank my noble friend. Those assurances are reasonably clear to me. Therefore I beg leave to withdraw my amendment.

Amendment to the amendment, by leave, withdrawn.

[Amendment No. 399D not moved.]

On Question, Amendment No. 399B agreed to.

Clause 156 [Complaints with respect to the exercise of works powers on private land]:

[Amendment No. 400 had been withdrawn from the Marshalled List.]

The Earl of Arran moved Amendment No. 401:

Page 155, line 37, after ("by") insert ("or by virtue of").

The noble Earl said: In moving Amendment No. 401 I should also like to speak to Amendments Nos. 413 and 414. These are technical amendments to make explicit that the provisions of Clause 156 apply to all aspects of undertakers' powers to lay pipes on private land. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 402 to 412 had been withdrawn from the Marshalled List.]

The Earl of Arran moved Amendment No. 413:

Page 156, line 41, leave out ("the exercise of its powers under") and insert ("its exercise of any powers conferred by or by virtue of").

On Question, amendment agreed to.

The Earl of Arran moved Amendment No. 414:

Page 157, line 1, leave out ("under") and insert ("conferred by or by virtue of").

On Question, amendment agreed to.

Amendments Nos. 415 to 418 had been withdrawn from the Marshalled List.]

Clause 156, as amended, agreed to.

Clause 157 [Saving for planning controls:]

Lord Addington moved amendment No. 418A:

Page 157, line 46, at end insert—

("(2) A water undertaker shall require planning permission for any development in, on or under a water course for the improvement of that watercourse for the purpose of any of its functions.".").

The noble said: The aim of this amendment is to protect the natural habitats created by rivers when improvement is proposed by requiring that planning permission be obtained.

Under Class E of Part XVII of Schedule 2 of the general development order of 1988 a water authority does not require planning permission for a development in, on or under any watercourse required in connection with any improvement of that watercourse.

Effectively, an improvement is often merely the straightening of a watercourse which will mean that the river will run faster. That will mean that the natural habitat of certain types of flora and fauna, which are designed to live in slow-moving waters with greater amounts of aquatic plant and animal life, will be removed. I suggest that some form of planning permission should be required as the potential damage to that part of our environment is considerable. I beg to move.

The Earl of Caithness

Water authorities and statutory water companies benefit from the general permission under the second schedule to the Town and Country Planning General Development Order 1988. That order enables them to carry out certain development, including development in, on or under a watercourse, for the purpose of their functions—I stress that point—without the need to obtain planning permission in each individual case. Development permitted under that provision is considered to be the minimum necessary to enable the water authorities and water companies to comply with the need to ensure the satisfactory provision and efficient operation of their water supply service.

After privatisation, water undertakers will be required to meet similar water supply duties. To require them to seek planning permission for each development that they propose to carry out on a watercourse for the purposes of their statutory water supply functions will place an unnecessary barrier to the efficient carrying out of their functions. It is therefore proposed that water undertakers should continue to benefit like public gas suppliers from the provisions of the general development order. In view of what I have said—that the matter is related to the functions—I hope that the noble Lord, Lord Addington, will be reassured.

Lord Addington

I thank the noble Earl for that reply. Once again, I must admit to a slight feeling of worry because I was specifically concerned about wildlife, especially aquatic wildlife. However, I accept that the noble Earl does not in any way wish to duck the responsibility. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 157 agreed to.

Clause 158 agreed to.

Clause 159 [Maps of water mains etc.]:

[Amendment No. 419 had been withdrawn from the Marshalled List.]

Clause 159 agreed to.

Clause 160 [Sewer maps]:

Lord McIntosh of Haringey moved Amendment No. 419A:

Page 159, line 45, at end insert—

("(d) of every drain, sewer or disposal main which is not vested in the undertaker and about which the undertaker has information").

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 419B. Both amendments are very modest little amendments concerned with the problem of house owners who find themselves in the position of having unadopted sewers on their property. The Government recognise that this is a problem because, in 1986, they issued a consultation paper on sewerage law which recognised the difficulty that people often do not know whether their sewers have been adopted or whether there are unadopted sewers on their property. The problem is that, if there is any damage, they are responsible for it and it may be difficult to insure against any such damage if they have not declared it in advance.

It is also a problem when property changes hands because solicitors, who look out for problems about the purchase, may not know either. We are not putting any extra obligations on the undertakers in these amendments. We are simply saying that, if they know about the unadopted sewers, they should be required to say so and to make the information available. I beg to move.

Lord Hesketh

The responsibility for mapping sewers currently rests with local authorities. The maps are not as comprehensive as they might be and sewerage undertakers are therefore being given 10 years to investigate and record as far as practicable the extent of the public sewerage system. As these records become more comprehensive it will become more straightforward to identify whether or not a sewer is a public sewer and the responsibility of the sewerage undertaker.

I have considerable sympathy with the motive behind the amendment, which is to make it as straightforward as possible for prospective housebuyers to determine whether the sewers serving the property that they intend to buy are public sewers, and therefore the responsibility of the sewerage undertaker, or private and therefore the responsibility of the houseowner. It would however be inappropriate to place a duty on an undertaker to record any information that it has about drains and sewers for which it has not responsibility.

Once the undertakers have completed the mapping requirements placed on them under Clause 160, it will be reasonably safe to assume that if a sewer is not shown on the maps it is not a public sewer and it will be open to an individual wishing to find out more information about a sewer not shown on the map to ask the undertaker whether it has any information. No doubt the undertakers will be pleased to provide any information that they have.

I hope that the noble Lord, Lord McIntosh, will feel able to withdraw these amendments.

Lord McIntosh of Haringey

I shall give that reply due consideration. I thank the noble Lord for it and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 419B not moved.]

[Amendments Nos. 420 and 421 had been withdrawn from the Marshalled List.]

[Amendment No. 421AZA not moved.]

Clause 160 agreed to.

3.45 a.m.

Clause 161 [Offence of interference with works, etc.]:

Baroness Blatch moved Amendment No. 421ZA:

Page 161, line 23, after ("recklessly") insert ("or negligently").

The noble Baroness said: My name is appended to this amendment also. Water mains are often damaged by people carrying out work such as putting in land drains, etc., above them. People carrying out such work are often unaware of the existence of the water mains under that land. This amendment suggests one solution to the problem. I have suggested another solution in the proposed amendment to Schedule 18: namely, Amendment No. 394CA.

These amendments would provide for any person who damaged a water main without first having inspected maps or water mains held by a water undertaker to be deemed negligent. The water undertaker whose main was damaged would then be able to recover damages from the person causing the damage under Clause 161(5). This amendment would give much needed protection to water mains. If damage was caused to a water main, this amendment would enable the water undertaker to recover damages from the person causing the damage.

More importantly, the purpose of the amendment is not solely to enable the water undeitaker to recover damages but is an attempt to prevent the damage taking place in the first place. The prevention of unnecessary damage and the avoidance of unnecessary repair work is the main intention behind the amendment. It also probes into why it is not an offence to interfere with sewers.

Clause 159 provides for the keeping of maps of water mains. Clause 161 makes it an offence intentionally, recklessly or negligently to interfere with a water undertaker's apparatus. There are often disputes as to whether or not a person is negligent. This amendment provides that a person is deemed to be negligent if he has not checked the map of water mains before carrying out work. I beg to move.

Lord Hesketh

We considered these offences very carefully when we drafted the Bill. While I appreciate my noble friend's concern, we do not consider that a person who negligently interferes with pipes or apparatus of the NRA or water undertakers but who causes no damage should be guilty of an offence.

We believe that Amendment No. 421ZB is appropriate. It is unreasonable to place a statutory requirement of this kind on landowners before they are able to undertake work on their land. Undertakers concerned to limit the activities carried out on land lying over a pipe are able to designate a sterilised strip of land at the time the pipe is laid. Compensation for any restriction on land use would be paid to the landowner. The undertaker is able to provide a further degree of protection by following the guidelines contained in the model code of practice for pipelaying and permanently marking the line of the pipeline at field boundaries.

Subsection (1)(b) provides for any person who negligently interferes with a pipe and causes damage to be guilty of an offence and liable to a fine. It will therefore be in the interests of landowners proposing to undertake work on land in which pipes are laid to take all reasonable steps to determine the location of any pipes that are liable to be affected by the work. We believe that these amendments are unreasonable and I hope that my noble friend Lady Blatch will see fit to withdraw them.

Baroness Blatch

My noble friend will forgive me if I say that I had difficulty in following his remarks.

I think that he spoke almost faster than I presented the amendment, which I beg leave to withdraw.

Amendment, by leave, withdrawn.

[Amendment No. 421ZB not moved.]

Clause 161 agreed to.

Clause 162 agreed to.

Schedule 21 [Water Quality in Scotland]:

The Earl of Caithness moved Amendment No. 421ZC:

Page 285, leave out lines 36 and 37 and insert—

("(4) If he is satisfied that a water authority has failed in any of the duties referred to in subsection (1) above, the Secretary of State shall make an order under subsection (2) of section 11 unless he is satisfied—").

The noble Earl said: On behalf of my noble friend I beg to move Amendment No. 421ZC and speak to Amendments Nos. 421ZD, 421ZE, 421C, 421D and 421E.

These are relatively minor amendments necessary either to maintain a common line with England or Wales or to reflect an essential aspect of Scottish practice. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendments Nos. 421ZD and 421ZE:

Page 285, line 40, leave out ("agreed to take and are taking") and insert ("given, and are complying with, an undertaking to take").

Page 286, line 9, leave out ("undertaker") and insert ("water authority").

On Question, amendments agreed to.

[Amendments Nos. 421A and 421B had been withdrawn from the Marshalled List.]

The Earl of Caithness moved Amendments Nos. 421C to 421E:

Page 291, line 19, leave out ("without reasonable excuse").

Page 291, line 23, at end insert ("; and it shall be a defence for a person charged with an offence under this subsection to show that he had a reasonable excuse.").

Page 292, line 14, at end insert— (" "micro-organism" includes any microscopic biological entity which is capable of replication;").

On Question, amendments agreed to.

Schedule 21, as amended, agreed to.

Clause 163 agreed to.

Schedule 22 [Control of Pollution in Scotland]:

[Amendment No. 422 had been withdrawn from the Marshalled List.]

The Earl of Caithness moved Amendment No.422ZA:

Page 296, line 46, leave out ("the public") and insert ("life or health").

The noble Earl said: On behalf of my noble friend, I beg to move Amendment No. 422ZA and at the same time speak to Amendments Nos. 422D, 422E, 422H, 422J, 422K and 422L. These are straightforward amendments. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No.422A:

Page 298, line 28, at end insert— ("(8A) In subsection (4) of this section, the reference to the entry of poisonous, noxious or polluting matter into controlled waters shall not include a reference to the entry of nitrate into controlled waters as a result of, or of anything done in connection with, the use of any land for agricultural purposes.").

The noble Earl said: On behalf of my noble friend, I beg to move Amendment No. 422A and at the same time speak to Amendments Nos. 422C, 422M and 435L.

These amendments relate to provisions for nitrate sensitive area schemes and are very similar to what we have already discussed and agreed for England and Wales. The position in Scotland is somewhat different in as much as nitrate leaching from agricultural sources does not represent such a problem for drinking water. However, we judge that it would be unwise not to make use of this opportunity and it is better to take advantage of the Bill to secure the enabling powers for control measures even though these might be used more sparingly than in England and Wales.

I would reassure those interested that there will be consultation on the details of the scheme with interests in Scotland, again in parallel to what is happening in England and Wales. As with the powers for England and Wales, the amendments include provisions for voluntary agreements for the procedures for the making of orders introducing compulsory restrictions for a public inquiry to be held if there are objections to proposals. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 422B:

Page 298, line 49, after ("purpose") insert ("and to take such precautions and other steps for that purpose").

The noble Earl said: On behalf of my noble friend Lord Sanderson, I beg to move Amendment No. 422B and speak to Amendments Nos. 422F, 422G and 447D. These are technical amendments. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendments Nos. 422C to 422M:

Page 299, line 20, at end insert— ("Nitrate sensitive areas. 31B.—(1) Where the Secretary of State considers that it is appropriate to do so with a view to achieving the following purpose, that is to say, preventing or controlling the entry of nitrate into controlled waters as a result of, or of anything done in connection with, the use of any land for agricultural purposes, he may by order designate that land, together with any other land to which he considers it appropriate to apply the designation, as a nitrate sensitive area. (2) Where any area has been designated as a nitrate sensitive area by an order under this section and the Secretary of State considers that it is appropriate to do so with a view to achieving the purpose mentioned in subsection (1) above, he may, subject to such restrictions (if any) as may be set out in the order, enter into an agreement under which, in consideration of payments to be made by him—

1. (a) the absolute owner (within the meaning of section 93 of the Agricultural Holdings (Scotland) Act 1949) of any agricultural land in that area; or
361
2. (b) where any such owner has given his written consent to the agreement being entered into by any person having another interest in that land, that the person,

accepts such obligations with respect to the management of that land or otherwise as may be imposed by the agreement. (3) An agreement such as is mentioned in subsection (2) above between the Secretary of State and a person having an interest in any land shall bind all persons deriving title from or under that person to the extent that the agreement is expressed to bind that land in relation to those persons. (4) Where it appears to the Secretary of State in relation to any area which is, or is to be, designated by an order under this section as a nitrate sensitive area that it is appropriate for provision for the imposition of requirements, prohibitions or restrictions to be contained in an order under this section (as well as for him to be able to enter into such agreements as are mentioned in subsection (2) above), he may, by a subsequent order under this section or, as the case may be, by the order designating that area—

1. (a) with a view to achieving the purpose mentioned in subsection (1) above, require, prohibit or restrict the carrying on or in relation to any agricultural land in that area of such activities as may be specified or described in the order; and
2. (b) provide for such amounts (if any) as may be specified in or determined under the order to be paid by the Secretary of State, to such persons an may be so specified or determined, in respect of the obligations imposed in relation to that area on those persons by virtue of paragraph (a) above.

(5) Without prejudice to the generality of subsection (4) above, provision contained in an order under this section by virtue of that subsection may—

1. (a) confer power upon the Secretary of State to determine for the purposes of the order the circumstances in which the carrying on of any activities is required, prohibited or restricted and to determine the activities to which any such requirement, prohibition or restriction applies;
2. (b) provide for any requirement to carry on any activity not to apply in cases where the Secrtary of State has consented to a failure to carry on that activity and any conditions on which the consent has been given are complied with;
3. (c) apply a prohibition or restriction in respect of any activities to cases where the activities are carried on without the consent of the Secretary of State or in contravention of any conditions subject to which any such consent is given;
4. (d) provide that a contravention of a requirement, prohibition or restriction contained in the order or in a condition of a consent given in relation to or for the purposes of any such requirement, prohibition or restriction shall be an offence the maximum penalties for which shall not exceed the maximum penalties specified in subsection (7) of section 31 above;
5. (e) provide for amounts paid in pursuance of any provision contained in the order to be repaid at such times and in such circumstances and with such interest as may be specified in or determined under the order;
6. (f) provide (subject to any regulations under subsection (7) below) for anything falling to be determined under the order by any person to be determined in accordance with such procedure and by reference to such matters and to the opinion of such persons as may be specified in the order.

(6) The Secretary of State shall not make an order under this section except in accordance with any applicable provisions of Schedule 1A to this Act. (7) The Secretary of State may, for the purposes of any orders under this section which require his consent to the carrying on of any activities or to any failure to carry on any activity, by regulations make provision with respect to—

1. (a) applications for any such consent;
2. (b) the conditions of any such consent;
3. (c) the revocation or variation of any such consent;
4. (d) the reference to arbitration of disputes about determinations on any such application;
5. (e) the imposition of charges where such an application has been made, such a consent has been given or there has been any act or omission in pursuance of any such consent; and
6. (f) the registration of any such application or consent.