HL Deb 23 May 1989 vol 508 cc237-47

House again in Committee on Amendment No. 369C, as an amendment to Amendment No. 369B.

Lord Stanley of Alderley

After that adjournment I should like to explain this series of amendments, Nos. 369C, 369D and 369E. It was confirmed in the Government's recent consultation paper that where farmers are obliged to restrict their agricultural practices beyond the degree which could be regarded as good agricultural practice they should be compensated.

Although the new clause provides Ministers with powers to make payments to persons affected by the imposition of requirements, prohibitions or restrictions in relation to any agricultural land, the amount of compensation, and indeed the question of whether to pay any compensation at all, is left entirely to the discretion of Ministers.

I believe that as a matter of justice the legislation should provide that where persons have restrictions imposed upon them there should be a guarantee of compensation to them for any loss or damage which they sustain. The amendments would provide a clear right to be compensated where mandatory orders are imposed and also allow for disputes about the amount of compensation to be referred to the Lands Tribunal in the normal way.

I fully understand that the present Government, and probably future governments, might be prepared to give assurances that they will compensate farmers for compulsory restrictions. However, sadly, such assurances are no substitute for safeguards in the legislation.

The Earl of Radnor

I should like to support my noble friend Lord Stanley. I galloped on a little before dinner and said then what I shall say now only briefly. I believe that within the new clause there must be more certainty for farmers, in view of the horrendous situation in which they may find themselves. Compensation cannot be left to a clause as permissive as this. There must be a proper recourse to arbitration through the Lands Tribunal.

I believe that it would be to the Government's benefit. The meaning of the clause has not yet sunk in to the farming community. I believe that it will respond much better to a certainty about where it may stand as regards money compensation, rather than seeing it left in the hands of the relevant Minister. I support the amendment.

Baroness Trumpington

As I said a little time ago, Amendments Nos. 369C, D and E are interrelated and would affect the compensation arrangements for a Nitrate Sensitive Areas Scheme involving compulsory requirements, prohibitions or restrictions.

In the case of compulsory measures, the Government's Amendment No. 369B provides for the payments of such amounts, if any, as may be specified in or determined under the relevant order. Amendments Nos. 369C, D and E would, however, amend this government amendment by requiring the Government to pay compensation automatically for any loss or damage sustained as a result of compulsory measures. I should like to explain why the Government do not support these amendments, while at the same time giving some assurances as to our intentions regarding the payment of compensation.

These amendments go too far because it would not necessarily be right to pay compensation in every single case of loss as a result of restrictions introduced to reduce nitrate leaching. For example, it would be contrary to the polluter pays principle to pay compensation to a farmer for complying with a restriction based on good agricultural practice even though that might impose a cost in some cases; for example, the construction of a silage effluent facility. We could also be in difficulty with the Community's state aid provisions. Similar arguments would apply in the case of general measures based on good agricultural practice; for example, restrictions on the timing of fertiliser applications which might actually benefit some farmers but where small losses might occur in other cases.

The Government have, however, on a number of occasions made clear their general approach to the payment of compensation. As I said in my reply to the noble Lord, Lord Gainford, on 22nd March this year, the Government believe that, where farmers are obliged to restrict their agricultural activities beyond the degree which could be regarded as good agricultural practice, they should be compensated. The Government's more detailed ideas on compensation are set out in paragraphs 17 to 21 of the consultation document issued by my right honourable friend earlier this month in which the views of interested parties are sought on this and other issues. I can assure Members of the Committee that those views will be taken into account before conclusions are reached on this matter.

I should mention that Amendment No. 369E would provide for arbitration by the Lands Tribunal in the case of disputed compensation. The Government accept that it is likely that arbitration provisions will be required in the case of compulsory restrictions with compensation. However, the precise nature of those arbitration arrangements will depend on how the compensation itself is determined and that is a matter for the subordinate legislation which will be made under this Bill rather than for this Bill itself.

The Government considered a simple requirement in the Bill that compensation would be paid for restrictions beyond good agricultural practice but that was not considered feasible because of the lack of a definition of "good practice". This is a complex area, as I have already said, and one in respect of which consultations are currently taking place. Therefore, I ask my noble friend to hold his horses at least until the consultation period is finished, because he too will have the right to put his views.

8.45 p.m.

Lord McIntosh of Haringey

I am not sure whether silence from this Dispatch Box is taken as assent or dissent and I am inhibited from making a full intervention in this discussion because I was not able to be present immediately before the adjournment when the principal amendment was debated.

Without entering into the detail of the debate between the Government Front Bench and their Back Benchers, I should like to make two points only. First, it is quite clear that whatever measures are taken to prevent further leaching of nitrate into the water supply, that process will be far too long term and will be inadequate to deal with the problem of pollution. It will also have to take place by treatment of the water coming off the land. That is the first point. Everybody may be agreed on that but I think it is worth saying.

Secondly, the next Labour Government will not feel in any way committed to continuing any experimental scheme which has been devised by this Government in order to buy off the farmers. I am also not convinced that this scheme produces justice for the farmers or, much more important, that it produces a significant level of reduction in the nitrate pollution on the land. I believe that this is a half-baked and inadequate scheme which does not really deserve the support of the Committee under any circumstances. I am not saying we shall vote against it but, despite my temerity in interfering in this private quarrel, I must say that I believe that what is proposed by the Government is an inadequate remedy for the very real problems which exist.

Baroness Trumpington

Before the noble Lord sits down, I believe that he should be ashamed of himself for what he has just said. However, I am not exactly surprised because I do not suppose that there is much nitrate in his bathwater in Haringey.

Lord Stanley of Alderley

Perhaps I may just say to the noble Lord, Lord McIntosh, that we discussed quite fully the proposition that establishing nitrate sensitive areas was probably not the right answer in many cases and my noble friend on the Front Bench accepted that.

In fact, I am not quarrelling with my Front Bench today for a change. I am with them. This matter has been forced on them, as the noble Lord knows, by the European Community and has been forced on them in a hurry. I believe that the Government are quite correctly trying to steady matters down to see whether we get the right answers because the matter is unbelievably complex.

As regards the remarks of my noble friend on the Front Bench, I like assurances but this case is so radical that we must have it on the face of some Bill or other and I am not sure where it should be inserted. When the consultation paper is completed, there will need to be legislation. Perhaps the noble Baroness can tell me how that will be done and whether we shall have a chance to debate that legislation, because I believe that that will be necessary.

There is one point on which I have to cross swords with my noble friend; that is, the issue that the polluter pays. I am entirely in favour of the principle but let us get it quite clearly into this Committee's head that the Government have accepted in this particular case, for the reasons we debated earlier, that the polluter does not pay. That is why I believe that the noble Baroness must look between now and Report for a better definition of compensation.

If the farmer has made a mistake and pollutes because of his slurry pit or silage tank, then that is fine. He will be caught under the Control of Pollution Act and I am all for that. However, if he has to make a brand new slurry tank or if he has to restrict his operations in any way which will cause him to suffer loss or damage, then the Government must have a share in it. I shall leave this matter for the moment. I hope that I have explained my problems and I shall come back to this matter on Report because this is probably the most substantive of my amendments to her amendment. Meanwhile, I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

[Amendments Nos. 369D and 369E, as amendments to Amendment No. 369B, not moved.]

Lord Stanley of Alderley moved, as an amendment to Amendment No. 369B, Amendment No. 369F: In the proposed subsection (8), line 11, leave out paragraph (e).

The noble Lord said: Nitrate sensitive orders are likely to provide for a procedure whereby farmers can apply to Ministers for consent to carry out activities which they have either agreed voluntarily with the Minister, need his specific permission or, where that permission is required as a result of a mandatory order, they have been imposed on the farmer.

Subsection (8)(e) of the proposed new section would allow for the imposition of charges where an application for consent has been made or has been given or where there has been any act or omission in pursuance of any such consent.

Given that the Government have accepted the principle that farmers should be compensated for compulsory restrictions in NSAs, it seems to me inconsistent then to levy charges for obtaining consents for certain activities. It would be helpful to hear from my noble friend how the Government intend to exercise this power to charge. Will charges be modest and reasonable in relation to individual farmers? I give an example. It would be totally unfair to expect farmers to foot the bill for expensive scientific investigation work to prove that there was a need for an NSA. I beg to move.

Baroness Trumpington

Subsection (8)(e) of the Government's Amendment No. 369B would enable charges to be imposed in relation to applications for, or the granting of, consents for carrying on activities not allowed except by such consents. Amendment No. 369F would delete this provision and therefore not allow such charges to be imposed.

The Government cannot accept this amendment because it will be normal practice elsewhere in the Water Bill for powers to be taken to require applicants to regulatory authorities for concessional advantage to contribute to the cost of such applications. This is in line with the polluter pays principle. The provision reflects an identical one in Clause 108 which applies to water protection zones. There are also a number of precedents for such charges; for example, the issue of planning consents.

I can assure the Committee, however, that the Government's amendment would permit the imposition of charges only where the arrangements are laid down by regulation. Such regulations would be subject to annulment in pursuance of a resolution of either House of Parliament. If, therefore, the Government at some future date make use of the power to impose charges under paragraph (e) there would be the opportunity for detailed consideration of such arrangements in this Chamber.

In the light of these explanations and assurances, I hope that my noble friend will not pursue this amendment.

Lord Stanley of Alderley

The Government have failed to follow through the basic principle that with NSAs, I repeat, the polluter does not pay. If my noble friend can get that back to the Government it would help us all the way through. If she is saying that we pay, it is a different matter, but the Government have not accepted that we pay so in my opinion it is no good saying that, just because the rest of the Bill does not accept this sort of compensation, it follows in this case. We are the exception in so far as, for better or worse—I should like to say better—we are not polluters in this case.

I shall have to return to this matter on Report because I want to know what will be going into the regulations and I am concerned about excessive charges being made for possible research. Meanwhile, unless my noble friend has anything else to say——

Baroness Trumpington

Yes, perhaps I may pop in before my noble friend sits own. I should like to explain further the polluter pays principle. We certainly agree with the general principle that the polluter should pay but today's levels of nitrates are the result of many years of farming activity. Moreover, the same farming activity on similar land can give rise to different rates of nitrate leaching. Simply, it is impossible to identify the polluter and quantify his or her contribution to pollution. Compensation questions do arise of course for substantial restrictions going beyond good agricultural practice. I hope that that clarifies the situation a little more for my noble friend.

Lord Stanley of Alderley

I believe that it clarifies the situation and gives this amendment, and my previous amendment, even more merit. My noble friend is shaking her head. We shall have to come back to this on Report. I raise these as genuine probing amendments and I shall have to read carefully the Minister's remarks. Meanwhile I beg leave to withdraw the amendment.

Amendment to the amendment, by leave, withdrawn.

On Question, Amendment No. 369B agreed to.

Schedule 7 [Procedure for certain Orders]:

[Amendment No. 370 had been withdrawn from the Marshalled List.]

The Earl of Cranbrook moved Amendment No. 370A:

Page 206, line 34, at end insert—

(" . Before applying to the Secretary of State for an order under section 108 of this Act the relevant authority shall consult with the water undertaker and sewerage undertaker concerned.").

The noble Lord said: I rise to move this amendment on behalf of my noble friend Lady Blatch. It would require the NRA to consult the water and sewerage undertakers in relation to a proposal to create a water protection zone. It is related to an amendment moved in another place (No. 598) to which the Minister, Mr. Moynihan, said that he was sympathetic. He recognised that the water undertakers will have a close and special interest in the proposals for protection zones, that the water undertaker' interest will be equal to that of the local authority and that a case can also be made in respect of sewerage undertakers, though not so strong a one. At the time the Minister said that he had not been able to consult the lawyers about the wording of the amendment but that he would consider it further with the wish to accept it. So far, despite those words, no government amendment has been forthcoming, but this is a point in which there is interest by future plc groups.

Amendment No. 370A is somewhat stronger than the amendment proposed and apparently almost accepted in another place. The amendment in the other place required only that notice relating to a water protection zone had to be served on the water and sewerage undertakers. The wording in this amendment has been modified and proposes that there should be consultation by the NRA with the relevant undertakers and that consultation should take place at an early stage.

It is clear that both water and sewerage undertakers have a strong interest in water protection zones. They realise that sensitive water resources which are abstracted by the water undertaker will be protected in such zones. The NRA, for example, will be empowered to regulate agricultural practices such as the use of nitrates or other fertilisers and pesticides. However, the creation of a water protection zone will have a significant impact on the quality of water abstracted by the water undertakers and it is possible that modifications to the operational equipment will be required as a consequence. Therefore, it is important that the water undertakers are made aware of any intentions of the NRA in this area at the earliest possible opportunity.

Sewerage undertakers can also be affected by such an order to create a water protection zone; for instance, the discharge policy for the sewage effluent from a treatment works and sludge disposal operations might be affected. So it is equally important that early notice should be given to the sewerage part of the business and that consultations should take place.

The NRA will be concerned with environmental protection in general. Water undertakers will wish to see the quality of the water which they abstract being maintained. Is it not therefore appropriate to write on the face of the Bill a requirement for the NRA to consult with sewerage and water undertakers in order to achieve both the environmental improvements and the high quality of water supply in the most effective way? The imposition of an order unexpectedly and without prior notice and consultation would make operational compliance difficult. I beg to move.

9 p.m.

Lord Hesketh

The Government have already indicated during the discussion of the Bill in another place that they will give consideration to the general objectives underlying this amendment. We have now done so. Our conclusion is that in the case of sewerage undertakers there is no special interest which would justify their involvement as consultees in respect of protection zones. However, the same is not the case in respect of water undertakers. Their duties in respect of water supplies, and for the ultimate quality of such supplies, mean they are bound to have a particular interest in protection zone proposals, which are likely to be directed in particular at measures for the protection of water resources likely to be abstracted for human supplies.

In the circumstances, the Government will bring forward at Report an amendment to the procedures in Schedule 7 to provide for the involvement of the water undertaker. In most cases of course it is likely that the NRA will have consulted the water undertaker in advance, but we think that the appropriate statutory mechanism is for the NRA to be required to serve a copy of its draft notice on the water undertaker, which may then make representations to the Secretary of State, if it so requires. I hope that my noble friend will feel that this goes a substantial way to meet his aims and that he will therefore feel that there is no need to press his amendment further.

The Earl of Cranbrook

I am grateful to my noble friend for those assurances. In the future many water and sewerage undertakers will be the same plc. But there will still be areas where the sewerage undertaker is not the same organisation as the water supply undertaker. Under such circumstances I can see that there might be difficulties if the information was not available to the sewerage undertaker. I look forward to a government amendment coming forward at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 371 had been withdrawn from the Marshalled List.]

Lord Hesketh moved Amendment No. 371 A:

Page 207, line 31, after ("above") insert ("and to the service of notices of the proposed modification on such local authorities as appear to him to be likely to be interested in it.").

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

Lord McIntosh of Haringey

This amendment has already been spoken to.

Baroness Trumpington

May I apologise to the Committee because I believe I should be speaking to this amendment? I am extremely sorry. Someone must move it.

Lord McIntosh of Haringey

It has already been spoken to.

Baroness Trumpington

Part I, paragraph 1, of the government Amendment No. 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. 371 CA——

Lord Stanley of Alderley

I am sorry, but I am completely lost.

The Deputy Chairman of Committees (Lord Airedale)

The Question before the Committee is that Amendment No. 371A be agreed to.

Lord McIntosh of Haringey

It is my understanding that this amendment had already been spoken to.

Baroness Trumpington

I beg to move.

On Question, amendment agreed to.

Schedule 7, as amended, agreed to.

Clause 109 [Consents under Chapter I and application to the Authority]:

The Earl of Caithness moved Amendment No. 371AB:

Page 117, line 38, after ("Chapter") insert ("or under Part II of the Control of Pollution Act 1974").

The noble Earl said: I could readily understand if this amendment caused the noble Lord, Lord McIntosh of Haringey, some puzzlement. As the Committee will know, Part II of the Control of Pollution Act will continue to operate, as amended, in Scotland, and because of the way the England-Scottish Border runs, there is the possibility of discharges consented to on one side of the Border having polluting effects on the other. To secure that the legislation operates fairly we therefore need to cover the possibility by providing that in certain circumstances a consent given under the Control of Pollution Act north of the Border be a defence against an offence arising to the south. This is the reason for this proposal to insert a reference to the Control of Pollution Act in Clause 109(4)(a) dealing with defences in respect of pollution in other legislation. I beg to move.

Lord McIntosh of Haringey

I should like to have an assurance that this means that the pollution caused by the horses of Northumbrian raiders attacking my ancestral town of Jedburgh and raping its women and children will be covered by this Bill.

The Earl of Caithness

I cannot give the noble Lord a guarantee. The question of raping the women and children is something that I shall have to refer to my right honourable friend the Secretary of State for Health——

Baroness Trumpington

Rape is the "in" crop these days.

The Earl of Caithness

It is also a matter for my right honourable friend the Secretary of State for Scotland. I am sure that the raiders will take full note of what the noble Lord said.

On Question, amendment agreed to.

Lord Addington moved Amendment No. 371B:

Page 117, line 40, at end insert—

("(5) A consent granted by virtue of this section shall specify the substances authorised to be discharged to water under it and the Secretary of State may give directions as to the way in which the Authority shall carry out this duty.").

The noble Lord said: This amendment changes the way in which consents are set. At present consents only specify what may not be discharged and usually do so in the form of a set amount of a number of particular substances. This amendment would reverse that position by requiring the consent to specify what could be discharged under it. To discharge anything that was not authorised would be an offence. Obviously there will be a number of common substances in many discharges. For this purpose the Secretary of State may give directions to the authority about how these will be stated, so that rather than having to set out each and every substance authorised a common format can be developed. I beg to move.

Earl Russell

Lists of dangerous chemicals are like the prerogatives of princes—they do daily grow. A good many substances which are now regarded as potentially dangerous polluters are ones about which we knew nothing whatever 20 or 30 years ago. A number of others are ones we knew existed. We were not aware of the dangers. If we do not agree to this amendment we may be taking considerable and quite unknown risks for the future. I commend it to the Committee.

The Earl of Caithness

Concern has been expressed that a discharger could add to his discharges a new pollutant not covered by the specific terms of the consent. If a discharger does this in a way which materially adds to the noxious quality of the effluent he will be guilty of an offence unless he seeks a review of the consent. It is always possible that a badly worded consent may mean in a particular case that an element of a discharge is not covered and that an additional element may be added. But it will be inappropriate and indeed ineffective to seek by the terms of primary legislation to deal with issues which are for the detailed terms of consent.

The essential position is simple. The discharger must apply for a consent for his discharge, and for the NRA to give a decision upon it will require that the application should involve a full and proper account of what the effluent constitutes. Equally, the consent must relate clearly to the application and to the effluent portrayed in it. If significant elements of the discharge are not disclosed in the application, or if new elements are added to the discharge, the consent will not afford the discharger protection because the discharge in question is no longer the discharge for which the consent was granted. In the circumstances, we do not believe this amendment to be necessary or appropriate. However, the need for careful drafting of consents and a clear link to the terms of the application is a matter to which we shall want the NRA to give the closest attention.

Lord Addington

I am to an extent reassured by what the noble Earl has said, but he will understand that the basic theme behind the amendment is to ensure that nothing can get in. I appreciate that much of this will be dealt with by the NRA making sure that it gives careful consideration to consent. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 109, as amended, agreed to.

Baroness Trumpington moved Amendment No. 371C: Before Schedule 11, insert the following new schedule:

("ORDERS DESIGNATING NITRATE SENSITIVE AREAS