COMMONS AMENDMENT (Hansard, 11 July 1995)

The Earl of Lindsay
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8. It may be helpful to your Lordships if I speak also to Amendments Nos. 10, 11, 235 to 238 and 310.
During the Committee stage the noble Lord, Lord Carmichael of Kelvingrove, urged us to give SEPA a stronger role in relation to flooding. Amendment No. 8 will give SEPA such a stronger role by conferring upon it a function to assess, as far as it considers appropriate, the risk of flooding in any area of Scotland. It will also require the agency to provide a planning authority with advice on flood risk, on request, based on all information available to it. Placing such a duty on SEPA to provide advice will ensure that sound advice is available to planning authorities.
1481 The amendment, taken together with existing statutory provisions, will ensure that councils can take well-informed decisions on flooding matters which will reflect local concerns and the general public interest.
In Committee the noble Lord also expressed concern about an unnecessary burden which would be placed on SNH under Clause 33 of the Bill. The provision in question would have required SNH to give its reasons for considering that an area of land might be affected by the activities of SEPA. We had originally considered this to be a sensible measure since it would ensure that SEPA would know why SNH thought in the first instance that SEPA's activities might adversely affect an area of land. We still believe that it would be useful for SEPA to have that information but accept that that can be done without it being written on the face of the Bill. Amendments Nos. 10 and 11 therefore remove that duty.
Amendments Nos. 235, 236, 237 and 310 provide for the application of Scottish water and sewerage legislation to the Crown. Crown immunity is being progressively reduced as legislative opportunities arise. The proposals are consistent with our Citizen's Charter initiative and will ensure the same level of statutory protection for consumers of Crown water and sewerage services north and south of the Border.
Amendment No. 238 is a minor drafting amendment to Section 18(1) of the Rivers (Prevention of Pollution) (Scotland) Act 1951 which will ensure that all remaining references to the river purification authorities are converted to references to SEPA.

§ Lord Ewing of Kirkford
My Lords, will the Minister comment on the lack of enforcement powers for SEPA? In speaking to the amendments before your Lordships the Minister made specific reference to the advisory role of SEPA in relation to flood prevention. There can be no doubt that, for example, one of the reasons for the floods in Perth some two years ago was the land use policies of the hydro-electricity companies, which operate at a fairly high level above the city of Perth and its low-lying environs round Bridge of Earn and various other villages. I know that we are too late to amend the provision now, but unless SEPA has enforcement rather than advisory powers, it is my guess—I hope I am wrong—that those flood catastrophes will continue to occur. SEPA is under an obligation only to give advice to local authorities if the local authorities request such advice. In my view it would have been far more progressive to give SEPA the powers to give advice whether or not the local authority sought that advice. After all, the Scottish Environment Protection Agency has been created in order to try to prevent some of the pollution and flooding problems that we have had in the past.
Perhaps I may turn briefly to the question of Crown immunity. I welcome the strengthening of the Bill regarding SEPA's advisory role (although I would have liked to see it with an enforcement role) and Crown immunity. However, there is an interesting passage in 1482 the amendments coming from another place. If the Secretary of State—I assume that to mean the Secretary of State for Scotland—decides that a building is in the national interest, the water and the sewerage Acts would not apply to that building. For the life of me, I cannot think of a building throughout the length and breadth of Scotland that would be so much in the national interest that the provisions of the water and sewerage Acts would be disapplied to it. For goodness sake, I hope that we shall not be told by the Secretary of State that, for example, Barlinnie Prison, Peterhead Prison or Saughton Prison is in the national interest and therefore the provisions of the water and sewerage Acts should be disapplied. That would be an absolute disaster.
Against that background, perhaps the Minister will give an example of the type of building that the Secretary of State could designate as being in the national interest and to which the provisions of the water and sewerage Acts would be disapplied. I would have hoped that the part relating to Crown immunity could be omitted from the amendment. However, so long as that provision is among the powers given to the Secretary of State, then the whole question of Crown immunity still prevails. With that qualification I still welcome the amendments.

The Earl of Balfour
My Lords, before my noble friend replies to the noble Lord, Lord Ewing, perhaps this is a case where a building could be entirely covered by private water and sewerage facilities. It is an issue that I raised during debate on the Bill. Perhaps I may say that I have a vested interest. On my estate there is a private supply to 43 households. In addition, in a number of cases the sewerage could not possibly be maintained or cleaned out by the new water or sewerage authorities in Scotland. I have to deal with that responsibility.

The Earl of Lindsay
My Lords, a number of interesting points have been made by my noble friend Lord Balfour and the noble Lord, Lord Ewing. The first point made by the noble Lord, Lord Ewing, related to SEPA's ability to advise local authorities on flooding. We looked at the matter carefully in drafting the Bill. I make this essential point. We believe that the lead in all planning matters must be unambiguous. Local authorities already have all the powers they need to tackle flooding and to take any precautionary measures against the threat of flooding. Local authorities must retain unambiguously that responsibility to prevent flooding. Similarly, with its undoubted role in planning, we believe that it is much better that an elected council makes the final decision as to where development can or cannot take place, having taken all factors into account.
Underlying the noble Lord's concern is the assumption that SEPA may have assessed a threat of flooding—it can do so without having been so solicited—but then a local authority refuses to request formally that advice. In no way do we see that gulf between SEPA and local authorities. We anticipate the level of communication between the SEPA main hoard and CoSLA, and between the regional SEPA hoards and the regional local authorities, as being quite close. We anticipate local authority figures serving on some of the 1483 regional boards. We know that there will be extensive communication between the planning arm of the local authorities and the SEPA regulatory arm. Therefore, although technically the noble Lord may have defined a situation which concerns him, I think in practice it will not arise.
On the noble Lord's second point, my short and simple answer is this. My right honourable friend the Secretary of State, I believe, cannot suddenly define "national interest" in such a way that it scoops up another basket of structures and parts of the built heritage. It is done largely by precedent. If I have misled him on that point, I shall write to him.