HL Deb 12 June 2003 vol 649 cc343-78
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty)

My Lords, I beg to move that the Report be now received. In moving this Motion, perhaps I may, with the leave of the House, clarify a rather unusual position that we have entered into on one particular aspect of the Bill. It relates to the issue of fluoridation.

There has been some discussion as to whether the matter should be included in the Bill. I can announce today that it is the Government's intention to bring forward in this House an amendment relating to fluoridation. We shall seek to have the Bill recommitted for the sole purpose of considering the proposed amendment. It is provisionally proposed that that business would be tabled for 9th July, and that the Report of that re-commitment, and Third Reading, would also be taken on the same day—all of that business being in the Chamber. The amendment will be fairly straightforward. I hope that the House will agree that, in the circumstances, since the amendment does not have a bearing on any other part of the Bill, that is the best way to proceed. I beg to move.

Moved, That the Report be now received.—(Lord Whitty.)

Baroness Byford

My Lords, I should like to record my thanks to the Minister. Fluoridation is a highly controversial issue, whether one is in favour of it or against it. This decision has given the House an opportunity to have a full debate on a matter on which many noble Lords will want to express their view. I am grateful to the Minister and to the Government for agreeing to take the amendment on the Floor of the House and not in Grand Committee. It is only appropriate that that is where it should be taken.

On Question, Motion agreed to.

Report received.

Baroness Byford

moved Amendment No. 1: Before Clause 1, insert the following new clause—


The Secretary of State shall have a duty to devise and implement measures to ensure that all entities and persons who use water do so without wasting it. The noble Baroness said: My Lords, this amendment is a re-worded version of our Amendment No. 3 which was debated at length in Committee. It reflects a number of contributions made in that debate.

We believe that it is essential to ensure that people have a duty to conserve water. At various stages of the Bill we have referred to efficiency and conservation. Both are important, but they are separate issues.

When the amendment was originally proposed, it was generally welcomed: however, there was a clear inference that it could be improved if we looked at it again—so that is what we have done. In Committee, the Minister indicated concern that a general duty laid on the Secretary of State would confuse the powers and duties already given to the water companies, Ofwat and the Environment Agency. I disagree.

We considered this last point carefully, and concluded that it is a fragile argument. Nonetheless, by expanding the range of the duty laid on the Secretary of State to include devising and implementing measures, we feel that we have overcome the objection. Moreover, the amendment as now worded makes it clear that all users of water are affected, be they private individuals, companies, or public bodies.

During debate on the matter there has been more than one comparison with other entities. I recall in particular the noble Baroness, Lady Young of Old Scone, referring (at cols. GC65 -GC66 of the Official Report of 27th March 2003) to sewage treatment, the integrated pollution prevention and control regime as it affects factories and the nuclear power industry. I feel that the water industry as it is placed today is little different from those.

The effects of climate change are a matter for informed comment and serious conjecture. In the past two to three weeks, at least one "expert" has been given air time on Radio 4 to dispute that what is happening now is caused by man's actions or has not happened in the past.

The Water Bill has to contain provisions to meet what may or may not be a rapidly worsening situation. We believe that conservation should be a watchword for life in the West in the 21st century. A month or so ago, "Thought for the Day" revealed that people in this country cast more light on their back garden decking than was used to power the Eddystone lighthouse.

I do not have the figures, but I am sure that the amount of water used to wash cars must have increased out of sight compared with the previous century, when cars had just come into being. The national preoccupation with regular baths and showers may be highly praiseworthy, but it does not lead to a frame of mind where water conservation is paramount. The proliferation of nurseries and the sale of plants and seeds in a wide range of shops makes it fairly certain that more and more water is going to garden use.

Industry and agriculture have put in place many measures to conserve water. While they have been thus occupied, other users—particularly domestic customers—have been merrily exercising our "right", as we consider it, to a growing if indeterminate share of a national resource which most regard as unending.

The Daily Telegraph gardening supplement of 17th May produced a league table of English counties ranked according to their horticultural worth. It was compiled from a number of essential elements, one of which was rainfall. Cumbria scored 10 out of 10; Cornwall 9; Lancashire 8; Devon 7; and Somerset 6. However, all the remaining 33 counties were awarded 5 or fewer, and Essex, Norfolk, Cambridgeshire, Lincolnshire, Suffolk, Warwickshire, Bedfordshire, Northamptonshire and Nottinghamshire all rated merely a single point.

The Government have stated their intention to encourage the building of some 400,000 new homes. They are also consulting on massive airport construction. They have pointed to new hospitals and prisons, all of which will use vast quantities of water. The Secretary of State must have a duty to ensure that every person in every role and position that they occupy has a duty to conserve water. What better place to express that duty than at the start of this important Water Bill 2003? I beg to move.

11.15 a.m.

Baroness Miller of Chilthorne Domer

My Lords, we on these Benches support the amendment. We believe that it is right to put this commitment at the front of the Water Bill. The Water Efficiency Awards 2003, mentioned last week in your Lordships' House, showed again the enormous effect that small efforts on the part of individuals and creative innovation on the part of industry can have.

In Committee, we discussed such measures as the labelling of water appliances, and these Benches brought forward an amendment on the subject. The change of lifestyle referred to by the noble Baroness, Lady Byford, is a long-term issue, but it is correct to encourage the work to start now, with the Secretary of State having a duty to ensure that it continues and results in water being conserved in the longer term. Later in the Bill, our Amendment No. 155, addresses the duty of other government departments to do their bit for water conservation. However, it is appropriate to have this new clause as the starting point for the Bill.

Baroness O'Cathain

My Lords, I support my noble friend Lady Byford in this amendment. It is important that the matter should be stated clearly before we get into the nitty gritty of the Bill. I wish to flag up another issue to which I shall return on Report: we do not value water in anything like the way we should. For example, we think that water comes out of the sky, is in the rivers and the sea, and should be free. Perhaps there is a charge because it must be treated and flow through pipes, but we do not realise what a scarce resource it is. We must use every instrument at our disposal to try to ensure that we do not waste water. It is not just for the chattering classes to think about resources, annual rainfall and methods of getting water through the system to homes, offices and factories. Rather, we should impress on everyone that water is a valuable commodity.

The current method of charging for water, another issue I shall raise, means that most people assume that water charges are another tax rather like council tax. Generally speaking, water charges are based on the value of the property. There is therefore no incentive to use more, or worse still, to use less—no incentive at all. Unless all governments grasp the nettle, do what is done in every other major developed country and bring home the fact that water is a very scarce resource which must be paid for according to use, we shall get nowhere.

Lord Whitty

My Lords, we discussed similar amendments in Committee when I said that I sympathised with the objective and would consider whether an amendment was necessary. I endorse the overall sentiments expressed so far. However, the new clause is widely drafted and refers to a duty to develop. and implement measures to ensure that all entities and persons who use water do so without wasting it. That means everyone throughout the water cycle. It is the responsibility of the Secretary of State to ensure that none of us wastes water. It would be difficult to provide that general duty on the Secretary of State without giving the means to implement it, and I suspect that some of the means would be subject to civil liberty considerations. Public authorities are a different issue, and later on we shall consider an amendment in the name of the noble Baroness, Lady Miller, that partly relates to that. Measures, are already in place, or are provided for elsewhere in the Bill, to further water conservation in that respect. For example, Clause 76 introduces a new duty on water undertakers to further water conservation which will expand on their existing duties to maintain an efficient water supply system and to promote the efficient use of water by their consumers.

I understand that the Water Industry Act 1991 already has various relevant provisions, including sanctions against the waste, misuse and undue consumption of the water supplied by undertakers. The Water Supply (Water Fittings) Regulations 1999 also place controls on certain water fittings and appliances for that purpose.

We considered carefully in Committee amendments to impose a duty on the Environment Agency to ensure that all abstractors use water efficiently. As a consequence, we are bringing forward a government amendment which will extend Section 6 of the Environment Act 1995 to make it clear that the agency has a duty to secure the efficient use of water resources. Therefore, existing legislation and this Bill already provide sufficient requirements with regard to the role of public agencies. This amendment goes somewhat further without necessarily supplying the means to achieve it. I believe that it goes a step too far, albeit that I agree with the sentiments expressed by the noble Baroness, Lady O'Cathain, in relation to the general approach to water in this country and in other developed countries.

Baroness Byford

My Lords, I am disappointed by the Minister's response. Can he tell the House how much water is used by individuals compared with public bodies and businesses? I suspect that the bulk of water is used by individuals. If that is so, that adds huge weight to my amendment. If the Minister is saying that my amendment is not worded correctly, I have two options left to me: to divide the House, which I am not frightened to do, or to ask the Minister whether he would return with a simple amendment at Third Reading that will reflect the desire of the House to put a duty on individuals to conserve water, in which case I would not divide the House. I am left with that dilemma as I am not satisfied with the Minister's response. Does he wish to come back on that point before I decide what to do?

Baroness Farrington of Ribbleton

My Lords, perhaps I should remind the House that, at Report stage, questions to the Minister must be raised while he is on his feet. I am sure that my noble friend will write to the noble Baroness on the point that she raises.

Baroness Byford

My Lords, I am grateful for that response. I should have jumped in and asked that question of the Minister before he sat down. I am not satisfied so I shall test the opinion of the House.

11.22 a.m.

On Question, Whether the said amendment (No. 1) shall he agreed to?

Their Lordships divided: Contents, 89; Not-Contents, 76.

Division No. 1
Addington, L. Elles, B.
Anelay of St Johns, B. Elliott of Morpeth, L.
Astor of Hever, L. Elton, L.
Blaker, L. Emerton, B.
Blatch, B. Falkland, V.
Bowness, L. Flather, B.
Buscombe, B. Fookes, B.
Byford, B. Gardner of Parkes, B.
Campbell of Alloway, L. Geddes, L.
Carnegy of Lour, B. Glentoran, L.
Cockfield, L. Gray of Contin, L.
Cope of Berkeley, L. [Teller] Hanningfield, L.
Craigavon, V. Harris of Richmond, B.
Crathorne, L. Henley, L.
Crickhowell, L. Higgins, L.
Cumberlege, B. Hooson, L.
Denham, L. Howe of Aberavon, L.
Dholakia, L. Howe of Idlicote, B.
Dixon-Smith, L. Jopling, L.
Dundee, E. Knight of Collingtree, B
Eccles of Moulton, B. Lang of Monkton, L.
Livsey of Talgarth, L. Rodgers of Quarry Bank, L.
Lyell, L. Rogan, L.
Mackie of Benshie, L. Roper, L.
MacLaurin of Knebworth, L. Sandwich, E.
McNally, L. Seccombe, B. [Teller]
Maddock, B. Selborne, E.
Masham of Ilton, B. Sharp of Guildford, B.
Mayhew of Twysden, L. Sharpies, B.
Miller of Chilthorne Domer, B. Shutt of Greetland, L.
Monro of Langholm, L. Skelmersdale, L.
Moynihan, L. Soulsby of Swaffham Prior, L.
Noakes,B. Strange, B.
Northover, B. Strathclyde, L.
O'Cathain, B. Sutherland of Houndwood, L.
Oppenheim-Barnes, B. Tordoff, L.
Palmer, L. Ullswater, V.
Park of Monmouth, B. Vivian, L.
Peel, E. Wade of Chorlton, L.
Perry of Walton, L. Walpole, L.
Pilkington of Oxenford, L. Weatherill, L.
Rawlinson of Ewell, L. Wigoder, L.
Rees, L. Wilcox, B.
Roberts of Conwy, L. Windlesham, L.
Acton, L. Hilton of Eggardon, B.
Allen by of Megiddo, V. Hogg of Cumbernauld, L.
Alli, L. Hollis of Heigham, B.
Andrews, B. Howells of St. Davids, B.
Archer of Sandwell, L. Howie of Troon, L.
Ash ton of Upholland, B. Hughes of Woodside, L.
Bach, L. Hunt of Kings Heath, L.
Blackstone, B. Jones, L.
Borrie, L. Judd, L.
Boston of Faversham, L. Lea of Crondall, L.
Brooke of Alverthorpe, L. Lofthouse of Pontefract, L.
Brookman, L. McIntosh of Haringey, L. [Teller]
Burlison, L.
Carter, L. Mackenzie of Framwellgate, L
Christopher, L. Marsh, L.
Clark of Windermere, L. Morgan, L.
Clarke of Hampstead, L. Murray of Epping Forest, L.
Clinton-Davis, L. Nicol, B.
Corbett of Castle Vale, L. Orme, L.
Craig of Radley, L. Patel of Blackburn, L.
Crawley, B. Pendry, L.
David, B. Sainsbury of Turville, L.
Davies of Coity, L. Sawyer, L.
Davies of Oldham, L. Sewel, L.
Dixon, L. Sheldon, L.
Dubs, L. Simon, V.
Elder, L. Stone of Blackheath, L.
Evans of Parkside, L. Symons of Vernham Dean, B.
Evans of Temple Guiting, L. Taylor of Blackburn, L.
Farrington of Ribbleton, B. Temple-Morris, L.
Faulkner of Worcester, L. Thornton, B.
Filkin, L. Turner of Camden, B.
Fitt, L. Whitaker, B.
Golding, B. Whitty, L.
Gordon of Strathblane, L. Williams of Elvel, L.
Gould of Potternewton, B. Williams of Mostyn, L. (Lord Privy Seal)
Grocott, L. [Teller]
Hardy of Wath, L. Williamson of Horton, L.
Harrison, L. Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

11.32 a.m.

Baroness Miller of Chilthorne Domer

moved Amendment No. 2: Before Clause I, insert the following new clause—


  1. (1) The Secretary of State shall by regulations ensure the timely establishment of a working framework that furthers the establishment of practices required by Directive 2000/60/EC of the European Parliament and of the Council (hereafter referred to as the "Water Framework Directive").
  2. (2) The regulations under subsection ( 1 ) shall in particular—
    1. (a) prevent further deterioration of and protect and enhance the status of the aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on the aquatic ecosystems;
    2. (b) promote sustainable water use based on a long term protection of available water resources;
    3. (c) enhance the protection and improvement of the aquatic environment through, inter alia, specific measures and targets for the progressive reduction of discharges, emissions and losses of the priority hazardous substances;
    4. (d) ensure that for surface water the highest ecological and chemical status possible is achieved, given impacts that could not reasonably be avoided due to the nature of human activity or pollution;
    5. (e) for groundwater, ensure the least possible changes to good groundwater status, given impacts that could not reasonably be avoided due to the nature of human activity or pollution;
    6. (f) contribute to mitigating the effects of floods and droughts, in particular by measures to be developed as appropriate to each river basin according to policies developed by each river basin management committee (as defined in section 64).
  3. (3) The Secretary of State or the National Assembly for Wales, as appropriate, shall set targets for the achievement of the measures set out in subsection (2), the first set of targets to be introduced in December 2004, to be reviewed every six years thereafter."

The noble Baroness said: My Lords, the amendment introduces the Water Framework Directive principles on to the face of the Bill. Unless the Government accept something along these lines, in 2003 we shall have a piece of legislation containing over 200 pages, and in this House alone we shall have spent 10 days on it, that will not even once mention the Water Framework Directive which represents the biggest positive change in our approach to water. The Water Framework Directive offers major opportunities, as the Environment Agency said, to improve the whole water environment and promote the sustainable use of water for the benefit of people and wildlife".

The aims of the directive are something to which we subscribe fully. It will realign the management of water in the widest sense and its proper implementation will bring tremendous environmental and social benefits. But it will also bring huge changes in the way in which farmers manage their land, industry manages its processes, planning authorities manage the demands of development and communities in general manage their activities.

Implemented properly, it will bring cost benefits of the kind explained in Committee by the noble Lord, Lord Haskel, and it will be an economic good. It will move the status of all kinds of water bodies—rivers, lakes, estuaries—from unknown or dubious quality in biological terms to excellent. It will be a great force for environmental good.

I believe that if it is implemented piecemeal, without clear targets and under resourced, it will not bring those benefits and those on the sharp end of implementation—industry, farmers and so on—instead of being part of the process of planning for the changes, will just be the subject of enforcement penalties and bad feeling. The framework directive has to be transposed into national law by 22nd December this year, a matter of weeks from when this Bill is expected by the Government to receive Royal Assent.

The first river basin management plans must be in place by 2009. That might seem a long way away, but six years is a short timescale to define, with public agreement, what methods of working there should be and to what boundaries and who needs to do what to their policies. One need only look at how long the well-understood process of local plans takes. This will be a whole new way of working.

In Committee, the Minister said: We have a perfectly adequate way of transposing that—as we normally do".—[Official Report, 27/3/03; col. GC46.] He went on to say that we did not need to transpose matters by primarily legislation; that we almost always transpose them by secondary legislation.

The Waste and Emissions Trading Bill, which passed through your Lordships' House earlier this year, is a very good example of primary legislation transposing a directive and doing some other things. So we can have mixed legislation of that kind as the Government have just passed some through the House. That objection to my amendment does not stand.

However, I took great account of what the Minister went on to say in Committee. She said that my amendment was not satisfactory in attempting to transpose the Water Framework Directive directly and that, as a purpose clause, it was not useful. My amendment now puts the Water Framework Directive on the face of the Bill. It simply lays out some main principles on which it asks the Secretary of State to set some targets and then to monitor progress every six years.

I recognise that much more needs to be done to the transposition. I refer noble Lords to the Select Committee's report on the Water Framework Directive. It said that there was a palpable lack of urgency, and perhaps even a sense of complacency. The Government conveniently published their response to the Select Committee's report yesterday. Noble Lords will see that that response is not strong enough to allow us to think that this amendment does not need to be seriously considered.

Perhaps the Minister feels that good progress has been made since the Select Committee's report, but the amendment invites the Government to ensure that progress really is made and monitored. I beg to move.

Lord Dixon-Smith

My Lords, we face a fortunate coincidence and then an unfortunate lack of action. The fortunate coincidence is that, almost uniquely in my experience, we have a European directive before us for implementation, as the noble Baroness said, by 22nd December of this year, at the same time as we are considering primary legislation in the same field and, in some ways and to some degree, with the same intentions as the directive.

Of course, it is customary for convenience—because this kind of coincidence does not normally occur—to deal with the consequences of European directives through secondary legislation. That is not the proper precedent that we should be following. I have always held the view that the proper way to deal with these matters is through primary legislation: it has a better parliamentary scrutiny; we are more sure of what we are doing; and I should like to think that the ability to look at the consequences of European legislation through the primary legislative process is vastly superior to the secondary legislative process.

We use the secondary legislative process simply as a matter of convenience because usually there is not room in the primary legislative programme. Governments arrange that programme and that is how the issue has been treated in the past. We have this coincidence and, from my point of view, we are dealing with the matter in the less beneficial way. I support the amendment on that basis. We should be doing much more than we are to incorporate this European directive into primary legislation. When push becomes shove—and if we have to do something about this and the Government are not going to concede—we may have to think about which Lobby to go through, but I do not think that it will take much thought.

Earl Peel

My Lords, I support the amendment. I have always had difficulty getting my mind around the complicated inter-relationships between primary and secondary legislation, and European directives and primary legislation. This is no exception. In Committee, I spoke extensively about my own experiences on the River Ure in North Yorkshire where we have been attempting to put together a river basin management plan through the good offices of the Environment Agency. For several reasons, we have failed to achieve that. On reading the amendment, I see that many of its objectives are ones to which we tried to adhere in North Yorkshire and failed. For that very simple reason, I support the amendment.

Lord Whitty

My Lords, the issue of whether anything is transposed to primary legislation or secondary legislation frequently arises. The noble Lord, Lord Dixon-Smith, and the noble Earl might always have held a different view, but, by and large, successive governments and Parliaments since 1972, regardless of the then government's view of the EU in general, have abided by the use of secondary legislation, except in very particular circumstances.

As the noble Baroness, Lady Miller, says, it is possible to have mixed transposition, but only where the two issues are complementary. This Bill deals with issues different from those covered by the Water Framework Directive. That argument would be stronger had the Government not done anything about the transposition, as she and the noble Lord imply. The Select Committee to which the noble Baroness refers did not say that; nor did it say that we should use primary legislation. The committee observed that the important point was the effectiveness of the transposition of the directive into national law, not the means by which it was achieved.

We have already started consultation on the transposition of the directive, which raises several issues not covered by the Bill, some of which have not been discussed, despite the wide-ranging debate on the Bill in Grand Committee.

Lord Livsey of Talgarth

My Lords, I thank the Minister for giving way. I have been waiting to hear his response on some issues. Is the Minister saying that, because the Water Framework Directive is EU legislation, by the process of this House it cannot appear on the face of the Bill in primary legislation? Why did the Government not introduce the Bill after the transposition of the directive? That would be much more logical.

Baroness O'Cathain

My Lords, before the Minister has a chance to reply, I wish to make some points. First, I thank the noble Baroness, Lady Miller of Chilthorne Domer, for telling us about the Government's response to the Water Framework Directive. I am afraid that I did not know about it until I heard her make the point in the House. Having gone straight to the Printed Paper Office to get the document, I quickly glanced through it. Recommendation 21 of the Select Committee asks about primary legislation. The Government respond: The Government believes that secondary legislation is a suitable and well established method for implementing EC legislation". But the Select Committee's recommendation is very strong: But until the administrative arrangements which will enable the Environment Agency to function as the competent authority have been properly explored, Defra cannot be certain that primary legislation is not required". We are now caught between two problems. The amendment, which we debated in Grand Committee, will probably be chucked out again by the Government. But these words add a good deal of merit to the arguments presented by the noble Baroness, both in Grand Committee and today.

Baroness Farrington of Ribbleton

My Lords, at the risk of being criticised once more for being a stickler for the rules, when the Minister is replying on Report it is possible to intervene only with a question to the Minister. With great respect, that was a statement, not a question. It is very difficult for me, because as Whips we are aware that there is criticism across the House on all sides that Committee stage procedure is creeping into Report stage. I am doing my best. I am conscious that there are those who will criticise me from both sides.

11.45 a.m.

Lord Whitty

My Lords, to return to the central issue, in response to the noble Lord, Lord Livsey, it is not an absolute that one cannot transpose through primary legislation. But it is normal for us to transpose through secondary legislation unless we are dealing with a completely congruent set of primary legislation. The Bill is not primarily about the same areas that the Water Framework Directive deals with. It is about the governance, competition, consumer organisations and structure of the water industry. It is not about the quality of water supply in the same way; it is about regulation and the various powers of regulation. There is an overlap but not congruence.

There would be stronger arguments for extending the scope of the Bill to include the whole Water Framework Directive if we had been dilatory in consulting and starting the transposition process. We have not. We have already had two stages of consultation. There will be a third one in the autumn, and we intend to complete the transposition by the end of the year. Therefore, it is not a valid argument to say that the Government are not getting on with transposition. We are, and, in so doing, we are taking into account the responses to the various consultations. Simply to bang the provisions into a Bill that deals largely with related but not congruent matters would not be a sensible procedure for the House. I therefore ask the noble Baroness not to proceed with the amendment.

Baroness Miller of Chilthorne Domer

My Lords, I thank the Minister for his reply. Having re-read my amendment in the light of his words, I believe that it introduces the idea that there must be timely establishment of the working framework. All it asks the Secretary of State to do is to ensure that the transposition is timely. It is hard to see why the Bill is the wrong place for it when it introduces some primary legislation—on abstraction and so on—that is necessary because of the directive. As the Minister reminded us in Committee, it was necessary because the directive would require it.

I am grateful to the noble Baroness, Lady O'Cathain, for pointing out the Government's response to recommendation 21 of the Select Committee report. I, too, had underlined that paragraph, in particular, and the fact that the Government should publish a legislative impact study on the requirements of the directive.

Often, good European legislation is unfortunately turned into bad national practice because it is too late or under-resourced. It is time to ensure that that cannot be the case with something as important as the Water Framework Directive. For that reason, I wish to test the opinion of the House.

11.48 a.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 94; Not-Contents, 89.

Division No. 2
Addington, L. Mackie of Benshie, L.
Allenby of Megiddo, V. MacLaurin of Knebworth. L.
Anelay of St Johns, B. McNally, L.
Astor, V. Maddock, B.
Astor of Hever, L. Marlesford, L.
Biffen, L. Masham of Ilton, B.
Blaker, L. Mayhew of Twysden, L.
Blatch, B. Miller of Chilthorne Domer, B [Teller]
Bowness, L.
Bradshaw, L. Molyneaux of Killead, L.
Buscombe, B. Monro of Langholm, L.
Byford, B. Moynihan, L.
Caithness, E. Noakes, B.
Campbell of Alloway, L. Northover, B.
Carnegy of Lour, B. O'Cathain, B.
Cope of Berkeley, L. Oppenheim-Barnes, B.
Craigavon, V Palmer, L.
Crathorne T Patten, L.
Cuckney, L. Peel, E.
Cumberlege, B Perry of Walton, L.
Denham. L Peyton of Yeovil, L.
Dholaki, L Pilkington of Oxenford, L.
Rawlinson of Ewell, L.
Dixon-Smith, L. Redesdale, L.
Dundee, E. Rennard, L.
Eccles of Moulton, B. Roberts of Conwy, L.
Elles, D.
Elliott of Morpeth, L Rodgers of Quarry Bank, L.
Rogan, L.
Elton, L. Roper, L.
Falkland, V. Saltoun of Abernethy, Ly.
Flather, B. Scott of Needham Market, B.
Fookes, B. Seccombe, B.
Gardner of Parkes, B. Selborne, E.
Geddes, L. Sharp of Guildford, B.
Glentoran, L. Shutt of Greetland, L.
Hanningfield, L. Skelmersdale, L.
Harris of Richmond, B. Strange, B.
Henley, L. Sutherland of Houndwood, L.
Higgins, L. Thomas of Gresford, L.
Hooson, L. Tordoff, L.
Howe of Aberavon, L. Trumpington, B.
Kimball, L. Vivian, L.
Knight of Collingtree, B. Wade of Chorlton, L.
Liverpool, E. Walmsley, B.
Livsey of Talgarth, L. [Teller] Walpole, L.
Luke, L. Wigoder, L.
Lyell, L. Wilcox, B.
McFarlane of Llandaff, B. Windlesham, L.
Acton, L. Clarke of Hampstead, L.
Alli, L. Clinton-Davis, L.
Andrews, B. Cohen of Pimlico, B.
Archer of Sandwell, L. Corbett of Castle Vale, L.
Ashton of Upholland, B. Craig of Radley, L.
Bassam of Brighton, L. Crawley, B.
Bernstein of Craigweil, L. David, B.
Blackstone, B. Davies of Coity, L.
Borrie, L. Davies of Oldham, L.
Boston of Faversham, L. Dixon, L.
Brooke of Alverthorpe, L. Dubs, L.
Brookman, L. Elder, L,
Burlison, L. Evans of Parkside, L.
Carter, L. Evans of Temple Guiting, L
Chorley, L. Farrington of Ribbleton, B.
Christopher, L. Faulkner of Worcester, L.
Clark of Windermere, L. Filkin, L.
Gale, B. Merlyn-Rees, L.
Gavron, L. Morgan, L.
Golding, B. Murray of Epping Forest, L.
Goldsmith, L. Nicol, B.
Gordon of Strathblane, L. Orme, L.
Gould of Potternewton, B. Parekh, L.
Grocott, L.[Teller] Patel of Blackburn, L.
Hardy of Wath, L. Pendry, L.
Harris of Haringey, L. Rogers of Riverside, L.
Harrison, L. Sainsbury of Turville, L.
Haskel, L. Sawyer, L.
Hogg of Cumbernauld, L. Sewel, L.
Hollis of Heigham, B. Sheldon, L.
Howells of St. Davids, B, Simon, V.
Howie of Troon, L. Stone of Blackheath, L.
Hoyle, L. Strabolgi, L.
Hughes of Woodside, L Symons of Vernham Dean, B
Hunt of kings Health, L Taylor of Blackburn, L.
Temple-Morris, L.
Jones, L. Thornton, B.
Judd, L. Turner of Camden, B.
Lea of Crondall, L. Weatherill, L.
Lofthouse of Pontefract, L. Whitaker, B.
Macdonald of Tradeston, L. Whitty, L.
McIntosh of Haringey, L. [Teller] Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Mackenzie of Framwellgate, L.
Marsh, L. Williamson of Horton, L.
Massey of Darwen, B. Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

11.57 a.m.

Clause 1 [Licences to abstract water]:

Lord Dixon-Smith

moved Amendment No. 3: Page 2, line 8, at end insert "continuous

The noble Lord said: My Lords, I should think that the Minister will be relieved to descend to a much more mundane and detailed matter. In Committee, he explained: The temporary licences are intended to be used to cover one-off abstractions of a duration of fewer than 28 consecutive days where large volumes of water are needed for short periods".—[Official Report, 27/3/03; col. GC6 1.] He then gave examples of what he called "episodic events". We have considered the matter. A full licence does not imply use on consecutive days, nor does a transfer licence. It is wrong to use the same form of words for a temporary licence if the intention is that it should be for consecutive days. Inserting the word "continuous" to describe the period of 28 days would make the position absolutely clear. Otherwise, there is an element of doubt in the Bill's wording. This is a small amendment, but we think it significant. I beg to move.

Lord Whitty

My Lords, I was inclined to agree with the noble Lord, Lord Dixon-Smith, but I was strongly advised against it. In so far as the amendment would provide clarity in this context, it would provide "un-clarity" elsewhere. I am reliably informed that it is well established in law that the phrase, a period of less than means a continuous period. If we inserted "continuous" here, there would be doubt as to whether every other reference in legislation to "a period" continued to have that established meaning.

As usual, I take the advice of my learned friends seriously, and, with some regret, I must oppose the noble Lord's amendment.

Lord Dixon-Smith

My Lords, I am grateful to the Minister for his tacit agreement with the principles that we are enunciating, even if he says that, for other, practical reasons, the amendment would be unwise. I do not want to be responsible for throwing the British legal and legislative system into chaos, so I accept the explanation and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Livsey of Talgarth

moved Amendment No. 4: After Clause 1, insert the following new clause—


The Secretary of State in England and the First Minister in Wales shall have the power to refer planning applications for the creation of large reservoirs to a public inquiry. The noble Lord said: My Lords, in moving the amendment, I thank the Minister for several contributions that he made during the discussion of a similar amendment in Committee. Having taken account of that, I have tabled a simplified version of an amendment that we tabled in Committee.

The amendment relates to impounding to create large reservoirs and takes account of the impact that that will have on the social fabric of rural communities in the area of the reservoir and on the rural environment. Often, large reservoirs in the West and the North take up scarce flatland that, in fact, sustains the adjoining uplands. Often, it is the only flatland in the area. It is an important issue in Wales and the North of England, in particular, where such flatland is very precious.

The planning process is at the heart of the amendment. In Committee, the Minister was able to allay my fears to a large extent. Applications will go through a proper planning process, using the planning powers of local authorities and national parks, where they are the planning authority. The Minister also said that it would be possible to make appeals to the Secretary of State in England and the First Minister in Wales. As it happens, the Secretary of State and the First Minister often announce the result of appeals made to them, usually through an inspector that they have appointed. I thank the Minister for stressing those points.

The amendment takes account of all that, but it would insert a power—I would like it to be a duty—for the Secretary of State in England and the First Minister of the Assembly in Wales to refer planning applications to a public inquiry. That is the one point on which I need some satisfaction from the Minister. The ability to refer planning applications to a public inquiry is important. If there is an enormous reservoir that causes great destruction, there must be participation by the public, who should be able to make representations in a public consultation. That is particularly important for local representation.

There has been a series of tragic events, not only in Wales but in parts of England, with reservoirs being foisted on local communities. That does not happen these days, but I want to make sure that it will not happen, and we should have a public inquiry to ensure that. The public inquiry should include not only local representation but expert representation. There should, for example, be consideration of environmental impact assessments and the social impact of the loss of communities. In Wales, there is the question of the loss of the Welsh language, a loss that cannot be made good. There is the impact on farming, on the environment and on the communities themselves. If the Bill provides for a public inquiry, it will provide the necessary safeguards for public and local interests. The public will know that an independent inspector can reach an objective decision on such great disruption to communities and to the environment.

In Wales, the creation of large reservoirs has become a political cause célèbre. I know that it is not entirely legal to quote in the Welsh language in this place, but I must say that the phrase "Cofiwch Dryweryn"—"Remember Tryweryn"—is plastered over walls throughout central and north Wales as a rallying call against the oppressors. If we could have a public inquiry, there would be no oppressors. Justice will be seen to be done, not to be something that occurs behind closed doors. I beg to move.

Lord Dixon-Smith

My Lords, when public participation was introduced into planning, the grounds for doing so were that it would satisfy the public's concern about major planning decisions—even small planning decisions—because everyone would have an input into the decision-making process. Of course, the consequence was that the public proposed a multitude of solutions. In the end, there can be only one decision. My gentle experience was that, on the whole, the public was, as a result of the process, more dissatisfied than satisfied.

We are dealing here with major, highly controversial planning changes, in the form of large reservoirs. We do not know what a "large reservoir" is. There is a definition of "small reservoir" floating around in the Bill—25,000 cubic metres—but there is no definition of a large reservoir. That should be determined. Whatever happens, the creation of a large reservoir will, inevitably, be controversial. For those directly affected, it is almost bound to be an intolerable imposition. That is the reality.

A public inquiry would permit all the issues to be thoroughly explored. It would bring everything out into the open, so that the public can, if necessary, assess the overall background. There can still be only one decision. I have a shrewd idea—it cannot be a certainty—that no water undertaking will put forward an application for such a major reservoir without having a strong case, driven by necessity, for so doing. It is inevitable that, in the end, one party or the other—the local community or the water utility—will be dissatisfied with the answer. Another dreadful reality in this circumstance is that relatively few sites are available for the construction of large reservoirs. Regrettably, communities can move and in the past they have done so.

Having said all that, I support the principle of the amendment, but I am fairly confident that I know the planning system well enough to believe that something of this nature could not be installed without a public inquiry. I have no doubt that the Minister will make that clear in his response.

Baroness Miller of Chilthorne Domer

My Lords, my noble friend Lord Livsey described what happened when large reservoirs were created in Wales. Since then, there has been the introduction of the Aarhus Convention in the European Union, which is supposed to ensure that the public have a much greater say and more rights in terms of input into decisions of this kind. It would be very helpful if the Minister could make some reference to that in his reply.

Lord Whitty

My Lords, I do not want to delve too much into the painful aspects of Welsh history or the merits or otherwise of public participation in planning decisions. The noble Lord, Lord Dixon-Smith, is right. I appreciate that this amendment has been changed somewhat, but it is unnecessary. In all those circumstances, there would be a public inquiry because planning permission for a new large reservoir would have to be sought from the local planning authority, as per normal. Indeed, there would probably be a compulsory purchase dimension as well. It is impossible to conceive of such a proposition that would be uncontroversial. Therefore, there would almost certainly be a public inquiry. Indeed, if the proposed reservoir were of regional or national significance, as it probably would be, the "call-in" powers would be used were there not to be a public inquiry.

The Aarhus Convention, to which the noble Baroness, Lady Miller, referred, relates to public participation in decision making, which, in the UK context, would mean public inquiry. Although it is not directly applicable yet, proposals are still in preparation to give effect to those principles. That also points to having a public inquiry. Therefore, in all circumstances, for a large reservoir—I agree that there is a definitional issue, but the noble Lord's amendment does not help us with that—it is inconceivable that there would not be a public inquiry. The amendment is therefore unnecessary.

Lord Livsey of Talgarth

My Lords, I thank the Minister for that reply. He has clarified the situation to a considerable extent. I am grateful for his comments, which are now on the public record. In particular, the issue of compulsory purchase is a running sore in terms of whole villages being flooded—indeed, the local church or chapel, halls, farms and so forth—and we cannot take it lightly. A public inquiry brings about transparency, fairness and a considerable element of justice in that people are able to make representations. As regards the Aarhus Convention, I thank my noble friend Lady Miller for making that particular point. I thank, too, the noble Lord, Lord Dixon-Smith, for his thoughtful speech on this issue.

However, I should like to point out to him that, yes, people complain, but it is not a normal complaint when a whole language can disappear from a valley when only about 19 per cent of the Welsh population speak Welsh. Indeed, the language can die out as a result of a reservoir being established in a Welsh-speaking community. Therefore, there are very important issues here which are not of the normal type in terms of social responsibility.

I thank everyone who has spoken to this amendment and the Minister for his reply. It has given us a considerable measure of transparency as to what will happen in future. As this will be backed up by European legislation, I should not expect to see again what happened 30 and more years ago in Wales. I am reassured and therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Restrictions on impounding]:

Lord Dixon-Smith

moved Amendment No. 5: Page 2, line 42, at end insert— ( ) A general consent to impound water in January, February or March will be notified, catchment area by catchment area, by the Environment Agency on those days to which it applies.

The noble Lord said: My Lords, in moving Amendment No. 5, I shall speak also to Amendment No. 6. In Committee, the Government's response to the amendment, as it was then worded, was to support the intention of facilitating the storage of floodwaters without unnecessary bureaucracy. The amendments, as now worded, would exempt small reservoirs filled only in the early part of the year at times and in places notified by the Environment Agency as having sufficient water flow to allow the impoundment. We consider that this will get around the problem of abstraction taking place during a winter drought. At the same time it will reduce both the workload and the cost to the agency, landowners and farmers. We hope that the Government might look more favourably at this improved amendment.

The concept of being able to store relatively small quantities of water freely and easily could have a very significant environmental benefit in country areas. I have built a small reservoir myself, and I am reminded that I should have declared an interest at the beginning of the proceedings as the holder of an abstraction licence. These small reservoirs enhance the environment considerably. They are very good for wildlife and they often create small wetland areas. There are trees, shrubs and wild fowl, which otherwise would not be there.

The more we can do to encourage small reservoirs, the better. The more we can free the administrative machine so that it can deal with the major issues which really are important and not have to deal with these smaller reservoirs, the better. I was going to say that they are "as nature intended", but of course a reservoir by definition cannot be that. It is an artificial creation. But the more natural it is, the more we should seek to free it from regulatory procedures. I beg to move.

Baroness Miller of Chilthorne Domer

My Lords, I support all that the noble Lord, Lord Dixon-Smith, said. In speaking to our Amendments Nos. 7 and 8, grouped with Amendment No. 5, we have tried to give the Government yet more latitude to accept something along these lines by not specifying which months may be the wettest. We have left it to the Environment Agency to decide. In Committee, I mentioned January, February and March, but in subsequent discussions and on looking at the figures, I could see that in some years perhaps November and December might be more applicable.

As the noble Lord, Lord Dixon-Smith, so eloquently said, the spirit of these amendments is to achieve two objectives; namely, the environmental good of creating small ponds and wildlife areas and allowing the farmer to use the top of that water for irrigating his crops. It would be for him to determine the balance between the use for irrigation and the wildlife areas.

I understand that if a farmer digs a hole in the ground that just fills up naturally, that will not be subject to a licence. If he makes an impoundment across a stream, that will be subject to a licence. There is still confusion as to when run-off water from the ground that appears in the form of a stream in winter is a stream, and when it is merely heavy water flooding over fields. Were there not this confusion, we would not need these amendments.

I understand why the Government and the Environment Agency might resist making impoundment across a stream something not subject to a licence. However, unless they are willing to accept the amendments, I believe that the Government need to reflect further because, as the noble Lord, Lord Dixon-Smith, pointed out, the situation is still not encouraging the end result we all wish to see.

Lord Whitty

My Lords, I understand what the noble Lord is trying to do with these amendments, but there are quite serious practical problems here. Amendment No. 5 aims to provide for a general consent to impound winter floodwater, subject to certain conditions. Its operation is linked to impounding works that can store water only during defined months, as provided for in Amendment No. 6. Amendments Nos. 7 and 8 offer some flexibility over the definition of those months. However, in either situation it is doubtful whether a general consent could be satisfactorily tailored to meet the specific environmental needs and resource management of each site or watercourse. There is also the important practical problem that water captured during flood conditions then has to be stored, in-river, until needed.

It is important to reiterate that the existing controls and the proposals in the Bill apply only to works to impound water that are constructed across a natural watercourse. The noble Baroness made that point. Excavations on land designed to collect and store winter rainwater and which do not impound a natural watercourse or intercept water contained in underground streams are not subject to impounding licence controls. The natural filling of such excavations during floods is not subject to any controls and the agency is already able to issue abstraction licences which allow water to be abstracted from rivers at times of high flows to fill those same excavations. So the system already provides a fair amount of flexibility.

Activities to impound water on-stream, irrespective of whether they are also subject to the drainage consent process under the Reservoirs Act 1975, could have major implications for the overall management of water resources. If these activities were deregulated or subject only to a "general consent", as the amendments would provide for during the designated months, they could well have serious consequences for the ecology of the watercourse and possibly the passage of fish. It would also impair the ability of the Environment Agency to ensure adequate flows of water downstream of the impounding works for the health of the watercourse or for any other lawful users of that water at the times in question.

Much of this relates to the predictability of the English weather. If we were to rely on the definition of the months referred to in some of the amendments, then clearly it would have been difficult to implement such a proposal this year in that it was much wetter in May than it was in February and March. The same would apply to any set of months. The following months could be subject to drought. We can have a winter drought, a spring flood and then a spring drought. If the changes which have taken place over the previous four months were repeated, it would impair the ability of the Environment Agency to operate the system over the subsequent months.

While I understand why the amendment has been put forward, I do not think that it is appropriate. Of course the charging structure provides ways for the agency to encourage the winter storage of water for subsequent summer use in that charges for winter-only abstractions are only one-tenth those of summer-only abstractions. That provides an incentive, but to give an absolute exclusion, as would be the case under these amendments, does not seem sensible given the British weather.

Baroness Miller of Chilthorne Domer

My Lords, before the Minister sits down, can he say whether he is satisfied with the definitions set out in the present law between "surface water", taking the form of heavy waterflows producing a runnel down a field and therefore looking like a small stream, and what is meant by a "watercourse", which may dry out for nine months of the year?

Lord Whitty

My Lords, so far as the legislation can specify the variety of topography and rainfall described by the noble Baroness, I think I am satisfied that there is a difference between a watercourse that is full only intermittently and surface water resulting from a particularly heavy downpour, which forms the basis of the distinction. If legislation were to attempt to devise a more precise definition than that, we would find ourselves in more difficulty than is the case under the common-sense interpretation already in place in the legislation.

Lord Dixon-Smith

My Lords, I am grateful to the noble Baroness for her support and to the Minister for his explanation. As a matter of observation, I can say that in my dealings on this matter, a fairly satisfactory and flexible approach has been taken to the whole question.

I appreciate entirely that one small bank put across a stream in a narrow valley impounding a certain amount of water might not pose a problem, but if a series of neighbours down the valley were to do the same it could be that no water would arrive at the bottom, which might well cause problems. I accept that there are potential difficulties in the absolute laissez-faire approach we are expounding, but the principle of trying to free from regulation as much as we can is correct. It was for that reason that we tabled the amendment.

We shall study the Minister's explanation with some care, but at this stage and at this point in the day I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 6. 7 and 8 not moved.]

Clause 3 [Existing impounding works]:

Baroness Byford

moved Amendment No. 9: Page 4, line 39, leave out "otherwise" and insert "in relation to England

The noble Baroness said: My Lords, this subject was debated in Committee on an amendment proposed by my noble friend the Duke of Montrose. It is hoped that my noble friend will be able to be with us later in the Report stage.

In Committee, the noble Baroness, Lady Farrington, felt that at one stage she was getting into deep water and said she would come back on the issue. She stated that she would await enlightenment on cross-border river basins. Perhaps the Minister is able to expand on the matter this time around.

Our major concern is that the wording could be used to enforce a different interpretation from "England" without such interpretation having to be debated in this House. If there is no such intention, then the wording appears at the least clumsy and perhaps out of line with normal usage. For instance, Section 91(1) of the Countryside and Rights of Way Act 2000 refers to, the Secretary of State (as respects England)", but not as respects otherwise. If there is a hidden meaning behind the proposed wording, then the Government's intention should be made clear. It is unusual to see in one Act different words which mean the same thing, while this Bill contains the wording I have already mentioned. That is why we seek to leave out the word "otherwise" and insert instead, "in relation to England". I beg to move.

Lord Whitty

My Lords, I am in a slightly strange position with regard to this amendment. We looked at the concerns expressed by the noble Duke and other noble Lords in the last debate and felt that they were not valid. Indeed, I believe that the noble Baroness wrote to her noble friend and, I hope, to other noble Lords to explain that the intention was clear. However, while considering the totality of territorial definitions, we have found that we may need to table our own amendments on other issues, including, for example, the fact that the Scilly Isles have been left out of the current legislation as well as one or two other minor points. Therefore, while I do not accept the justification for the amendment, I think that part of it needs to be looked at again, but not the wording mentioned by the noble Duke in Grand Committee, which has been referred to again today.

We should like to take the amendment away and come back on the points I have just mentioned rather than those proposed by the noble Baroness.

12.30 p.m.

Baroness Byford

My Lords, that shows how useful these amendments are. I am grateful to the Minister for his comments. Given his undertaking to consider the issue of the right phraseology—presumably throughout the Bill—we are happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Rights to abstract small quantities]

Baroness Byford

moved Amendment No. 10: Page 7, leave out line 38 and insert— (i) domestic use on the holding; The noble Baroness said: My Lords, in moving Amendment No. 10, I shall speak also to Amendment No. 11.

In the discussions in Grand Committee on a small group of amendments concerning this subject, we gave the example of the historic situation where water abstracted by a farmer had been used to the general benefit of everyone on a holding. The Minister chose to interpret our concern as being solely with the protection of existing rights. That was not our intention. He assured us that the protection is already there, through the Water Resources Act 1991, for rights which existed prior to the 1963 Act. My interpretation of his interpretation is that he believed our concern was too narrow.

The amendments relate to new abstraction rights. Many farms still comprise a farmhouse and one or two agricultural dwellings. Indeed, in some cases, such housing is not used for agricultural dwellings. Agricultural workers still grow their own garden produce and there is no reason to believe that a situation may not arise where such a worker would welcome a share in the water abstracted from a nearby river or stream. Farm buildings are also converted and let to tenants, who may or may not be agricultural workers and who may wish to have a garden and therefore use more water. As we understand the terms of the Bill and the Minister's response in Grand Committee, such usage would be prohibited.

In Grand Committee the Minister said that, any abstraction of up to 20 cubic metres per day for domestic purposes, regardless of whether the occupier uses the water, will be exempt".—[Official Report, 27/3/03; col. GC88.] In fact the Bill states that the exemption applies if the abstraction is carried out by or on behalf of an occupier and, it is abstracted for use on that holding for either or both of the following purposes—

  1. (i) the domestic purposes of the occupier's household;
  2. (ii) agricultural purposes other than spray irrigation".
My question is a minor one. I am sure the Minister will tell me that this comes under "domestic purposes", but presumably gardening or any other such activity by a member of a family, a tenant or anyone occupying such buildings on an occupied holding would he considered as agricultural purposes. It is only a small point and I am sure that the Minister will be able to clarify it.

Lord Livsey of Talgarth

My Lords, a further point needs to be made. Nowadays, many farm buildings are being converted into temporary accommodation—for example, for holiday purposes—as part of the diversification activities of farmers on holdings. Very often the supply of water for such accommodation comes from the same source. What will happen in that situation? The conversions diversify the income flow of farms. As we know, incomes from pure farming are, at the present time, very low indeed and it is important that farmers diversify to ensure that their net income is sufficiently viable to allow them and their families to remain on the holding in the future.

Baroness Farrington of Ribbleton

My Lords, we recognise that the amendments are similar in effect to the amendments discussed in Grand Committee. As I said then, they will not affect the way in which the new exemption for small abstractions applies to supplying domestic properties on an abstractor's land.

I should like to clarify the issue of tied cottages on an abstractor's land. Such cottages fall within the meaning of "household" for the purposes of the clause. They will already remain within the exemption. The new exemption will allow any abstraction up to 20 cubic metres. The limitation to occupier's household applies only to the issue of protected rights. Premises which are let will be covered within the limit.

All that the amendments would achieve is simply to extend the scope of the protected right associated with such an abstraction. It would extend it from domestic use for the occupier's household only, within the broader definition, to any domestic use on the entire holding of the abstractor. If the intention is to ensure that water abstracted under the exemption for small abstractions can be supplied to any domestic property on the abstractor's land, I have already reassured the noble Baroness that this is provided for in the new exemption. I hope that the noble Baroness will therefore feel able to withdraw her amendment.

During our consideration of the amendments we have identified a need to bring forward further amendments at Third Reading to ensure that the system of protected rights can adequately deal with changes to the threshold for abstraction licensing.

As to the meaning of the terms "gardening" and "horticulture", I believe that they are subsumed within "agriculture" except for those areas where they patently form a part of "domestic". Obviously there is a cross-over point somewhere along the spectrum but I find it easier not to define it in legal terms. It is a common-sense cross-over point.

Baroness Byford

My Lords, having had a late night last night, we are into common sense. I thank the Minister for that explanation. It has helped to clarify one or two of the points we raised. Interestingly, it has stimulated more thought and we shall come back with further amendments at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

Baroness Byford

moved Amendment No. 12: Page 8, line 2, after "work" insert "provided that such work will not impinge upon pre-existing licensed abstraction producing potable water

The noble Baroness said: My Lords, I return to an important issue that was raised in Grand Committee. The amendment has been brought forward again in order to seek clarification from the Minister. In Grand Committee he stated: I will need to consider the issue raised by the water bottlers because in certain circumstances they have a specific concern. We may be able to deal with that in a different way".—[Official Report, 27/3/03; col. GC89.]

For the benefit of noble Lords who did not attend the Grand Committee, perhaps I may raise one or two issues. During the Grand Committee debate there was a query whether the 12-year limit had been specified in writing by the Environment Agency. This time limit and its bureaucratic rationale was set out in detail by the Environment Agency in its policy document, Managing Water Abstraction, which was published in April 2001, and was confirmed again in the written guidance for stakeholders published in March this year. It is the Environment Agency's strength of attachment to the period of 12 years which causes so much concern.

During the debate the Minister made some helpful statements about taking investment needs into account. We hope that in the pursuit of these amendments this can be clearly established as a principle. In the Environment Agency's guidance to stakeholders there is no reference to the payback on investment as a criterion for granting longer-term licences and this clearly needs rectification.

In Grand Committee I referred to the depreciation accounting practices of the water utilities and it might be helpful to highlight some of the financial commitments there.

The first feature is that investment is needed for business expansion, not only in bottling equipment but in new bottling halls, warehouses and connected infrastructure. The payback on such investment, which normally requires bank loans, is usually calculated at 12 years. Obviously, we will be speaking on investment at greater length later. We sought recognition from the Minister that environmental damage could be caused by drilling connected with exempted abstractions. The Minister was opposed to amending the Bill, but our advice from Environment Agency officials is that a legislative requirement to assess the impact of exempt abstractions is essential. I understand that the Government wrote to the Environment Agency on this issue but have not had clarification.

Perhaps I can share with the House the technical point that natural mineral waters must be, to quote from the contribution of the British Soft Drinks Association, free from pollution at source and have a consistent mineral content".

I hope that the Minister can deal with this point in a slightly more sympathetic way than was the case in Committee. I beg to move.

Baroness Miller of Chilthorne Domer

My Lords, I appreciate the noble Baroness explaining the purpose of the amendment at some length. We have said that as many abstractors as possible should come within the regime and be subject to the same level playing field. So, for the sake of consistency, and although we are interested in the Minister's reply, we do not support the proposal. We realise that there is a great market for and interest in bottled mineral water, but the Bill is also aimed at improving the quality and demand for ordinary drinking water from taps—a very important aim.

Baroness O'Cathain

My Lords, we are considering the Water Bill in the context of the United Kingdom—well, mainly of England. When it comes to potable water, there is a trend—which we cannot stop, much as I decry it—for people to drink bottled water when the water coming out of the tap is, as the noble Baroness, Lady Miller, says, more than adequate. Indeed, many of the tests have proved that there are fewer bacteria in the water coming out of the taps than in bottled waters. As we import an enormous amount of drinking water, I should have thought that, in the overall context of the balance of payments, if nothing else, it would be a good idea to examine the issue.

Baroness Farrington of Ribbleton

My Lords, I would like to write to the noble Baroness, Lady O'Cathain, on the importation of water. I know that there are some across the Channel and elsewhere who would be deeply offended. There are those of us who view the practice of buying water in bottles when we have already paid for it in the tap as a rather odd aberration—except in Wales, where Brecon water is obviously better than anything else.

On time-limiting of licences, the agency can grant licences longer than 12 years; its guidance sets out criteria for doing so. It may be considered if the applicant provides a business case satisfying certain tests, one being that the lifetime of the infrastructure inseparably associated with the authorisation will extend over the desired period of validity. I hope that that is helpful.

The clause that is the subject of the amendment seeks to extend the existing right of some abstractors of small quantities of groundwater to construct boreholes without a licence to all such abstractions. It is therefore a deregulatory measure. However, Amendment No. 12 seeks to introduce selective control of those boreholes that would have an adverse effect on a neighbouring source and introduce additional regulation contrary to the objective of further deregulating small abstractions that have no impact on the overall management of water resources—a point underlined by the noble Baroness, Lady Miller of Chilthorne Domer.

The amendment seeks to prevent damage to adjacent potable supplies by controlling the construction of some wells or boreholes where the abstraction of water is to be exempted. However, it does so based on a selective test of adverse effect, which means that developers cannot know at the outset whether what they intend is exempt from control. They would not know in advance whether they might face criminal sanctions. We believe this is not workable. We recognise the concern raised, but we consider that the proposal is not justified to cater for the very few such problems that may arise and that there are sufficient safeguards available to protect water sources.

I understand from our discussions in Grand Committee that a case was referred to by the noble Baroness in which a potable water supply might have been jeopardised by the construction of a borehole for a small abstraction. This case is one of the exceptions, and I believe it was resolved satisfactorily through the planning process.

There are codes of good practice; the Environment Agency has one on its Internet site. There is also a British Standard on the subject. The well-drilling industry should take note of such codes to help ensure that incidental damage does not occur.

I hope I have covered the points. If the noble Baroness, Lady Byford, would like me to reply in more detail on a particular case, I may be able to do so.

12.45 p.m.

Baroness Byford

My Lords, I am grateful to the Minister for her good explanation. I am still somewhat concerned about the fact that this matter will not appear on the face of the Bill. On so many of the issues we discussed in Committee and will discuss again, it is suggested that provision is made for them—or it is implied. I have become very sceptical about Bills. I tell people that they want to worry if something is not on the face of the Bill and also if it is. There is often a gap left in-between when it comes to interpretation by whoever is responsible for interpreting it. However, I am grateful to the noble Baroness.

As for there being only a few people affected, all small businesses start small and, with luck, grow into bigger businesses. If the idea is good, there are more businesses, and I would like to make sure they are all UK businesses, not importing water from overseas. The Minister referred to a particular case which I understand was dealt with satisfactorily.

Perhaps I should push my local bottled water: Buxton is not far away, but much nearer to home is Swithland in Leicestershire, which the noble Baroness knows very well. I hear what she says and hope that her words come true when they are interpreted. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Rights to abstract for drainage purposes, etc]:

Baroness Byford

moved Amendment No. 13: Page 9, leave out lines 13 and 14. The noble Baroness said: My Lords, the Bill says on page 9: The restriction on abstraction shall not apply … within the district of an internal -drainage board if … the water abstracted is transferred to another area of inland water— and, the sole or main purpose of the transfer is to augment that other area". On page 10, the Bill states that land drainage does not include, transferring water from one source of supply to another … solely or mainly in order to augment the latter". That may be interpreted as an exemption granted to a body—namely, an internal drainage board—for an activity that is then ruled out of order. Having read it and considered it again, we feel that that is a contradiction, for which I would be very grateful for a ministerial explanation. I beg to move.

Lord Whitty

My Lords, the exemption allows movement of water by an internal drainage board within its own district outside the licensing control. That is because it is for use within that district, which can be competently managed by the internal drainage board in that district. I am not sure what other use the boards would be making of the water than to augment the level of water that they had available. For whatever purpose they wanted to augment the level of water, they would need the exemption from what would otherwise be licensing for the purposes of raising the level within their own district. The provisions proscribe use for something outside that district.

The noble Baroness may have in mind whether one could use the exemption from licensing for flood control purposes or protection of land that would otherwise be encroached on by water. The answer is, "Yes", but it would require an abstraction further upstream, which would raise or alter the level further downstream.

The restriction is restriction within the area, to a quantum of water, and it is difficult to see how the amendment, by deleting that restriction, would make much difference in practice. One could argue either way, but the restriction is to within an area, and to delete the whole of those two lines would make that less clear.

Baroness Byford

My Lords, it just seemed very strange that on one page, one set of rules applies, and on the next page a different set applies. The matter is not worth pursuing at this stage, but perhaps between now and Third Reading the lawyers might consider it, as I may have made a mistake, or there may be some misunderstanding with which I have not got to grips. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Byford

moved Amendment No. 14: Page 9, line 36, at end insert— () In the case of any emergency abstraction the Agency, upon receiving notice of the abstraction in question, shall investigate the current position under each of the headings listed in subsection (2A)(a), (b) and (c) above; and only if the danger no longer exists under any of those headings and if there is no perceived threat in the immediate future, may the Agency conclude that the emergency does not exist.

The noble Baroness said: My Lords, the amendment arises from a debate surrounding a series of government amendments. It became clear that legislation defines the start of an emergency but not the end of it. The Minister seemed to admit that there is not even guidance on the subject; that is why we are returning to it. The amendment would put into the Bill an instruction to the agency that would make it clear when the agency might declare when an emergency did not exist. For the purposes of the Bill, that might be taken to be both when the emergency was over and when a particular situation did not amount to an emergency. I beg to move.

Lord Whitty

My Lords, the amendment proposes an express duty on the Environment Agency to investigate notice of an emergency drainage abstraction. It would normally be the abstractor rather than the agency that drew attention to that situation. The proposed amendment would require investigation of all cases, whether or not the agency was content that the abstractor had rightly called it an emergency situation and the agency was co-operating with the abstractor in dealing with the emergency situation. The amendment would confine emergency situations to the types of threat set out in the clause. But the agency is already bound to interpret emergencies in that way, and it would have to give reasons if it disagreed with an abstractor.

The amendment aims to set down the criteria that would determine the grant of a licence for irrigation in the temporary transitional period. It is intended that transitional arrangements for all abstractions coming under licence control as a result of the removal of exemptions under the Bill will be covered regulations made under Clause 95. The regulations will be published in the normal way, before the commencement of the Clause 7.

Some of the concerns that lie behind the amendment may be covered by the regulations. However, to stipulate as the amendment does is rather taking a sledgehammer to crack a nut, in that most emergency situations will be dealt with by co-operation between the Environment Agency and the abstractor. Any limitation to that will be covered by regulations yet to be published. There will be not only guidance but regulations.

Baroness Byford

My Lords, I am grateful to the Minister for that explanation. The discussions that we have just had included mention of the fact that regulations will be introduced to cover our concerns. I have to say again, as I have said on many occasions in Committee, that I am never enormously happy that so many things are done by regulation. We have already had that discussion. It is a small but important point. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Byford

moved Amendment No. 15: Page 10, line 8, at end insert— ( ) In deciding to extend abstraction licensing to irrigation by virtue of subsection (5) above, the Agency shall have regard to the length of time such abstraction has been practised and the purposes to which it has been put."

The noble Baroness said: My Lords, we believe that the amendment is very important. When the subject was debated in Committee, many contributions were made and concerns were expressed by all speakers that the needs of those who use trickle irrigation are not met by the Bill. Trickle irrigation may be used by small enterprises, but there are many examples of businesses with a turnover and wage bills in excess of a million pounds. There is a strong fear that, because they have not had to have a licence in the past, their needs may be put to the bottom of the queue in any consideration of abstraction licences in the area where water is scarce.

It is quite possible that a trickle irrigator may contribute more to the economy of the river basin than all the licensed abstractors put together. It is equally possible that a trickle irrigator may have been employing that method for longer than some licensed abstractors in the area. It is necessary that their proper concerns are catered for in the Bill and, at the very least, that those who were involved in trickle irrigation in the past must be consulted at the start of the discussions, when they are required to comply with the legislation. I beg to move.

Earl Peel

My Lords, I would very much like to support my noble friend's amendment. Those who have been involved in trickle irrigation are now feeling—it is no exaggeration to say—some degree of vulnerability, as they find themselves being brought into the abstraction licensing system for the first time. As my noble friend said, many of those operators—horticulturists, principally—have been involved in trickle irrigation for a long time. Indeed, some of the investments have been of a very substantial and long-term nature. So I think it absolutely right and proper that the Environment Agency should have a concern for the impact of the new controls on those businesses.

There is another point which I raised in Committee and should like to raise again. It is essential to take into account not only that trickle irrigation businesses often have considerable economic importance in the areas in which they operate and are therefore important for jobs, but that restrictions placed on their operations could well lead to increased imports from abroad. I have no doubt that the Environment Agency will wish to consider the impact that those imports might have on pollution and all the various additional costs and difficulties that go with it. So it is essential, as my noble friend said, for the Environment Agency to look very carefully at the impact that these abstraction licences will have on trickle irrigation.

To my knowledge—the Minister may be able to correct me on this—the Environment Agency has not yet given any commitments to those involved in trickle irrigation and very little discussion has taken place. I therefore think that Amendment No. 15 is very reasonable; in fact I am not so sure that it could not have gone a stage or two further. I very much hope that the Government will accept it.

1 p.m.

Lord Livsey of Talgarth

My Lords, this is indeed a fairly innocuous amendment. It merely states that, the Agency shall have regard to the length of time such abstraction has been practised and the purposes to which it has been put". That seems a very reasonable proposal, should abstraction licensing be extended to such irrigation. Clearly it is necessary to have regard to the matters dealt with in this amendment.

Lord Whitty

My Lords, I am slightly confused about where we are on this. The noble Baroness, Lady Byford, moved Amendment No. 15, and the noble Lord, Lord Livsey, referred to the terms of Amendment No. 15, but some of the more general remarks about trickle irrigation seem to relate more to subsequent amendments which we have yet to reach. This part of the clause deals with transitional arrangements. The Environment Agency has made it clear that there will be a period of two years for licence applications to be made and that abstractions by existing operators, including trickle irrigation, will continue to be lawful during that period. Likewise, the Environment Agency would not be expected to issue licences to other people which would affect that traditional use of the water. Therefore, there would be a continuation of the period until the formal licence came into play.

The question of a more general exemption for trickle irrigation comes later, in Amendment No. 17, I think. During that period when people are making applications, the continued viability of their businesses would be discussed. However, as trickle irrigators are above the threshold quantum of abstractors, they should be treated on a level playing field along with everyone else. I shall return to that argument later. However, the sudden withdrawal of access to trickle irrigation, which is covered by the area to which Amendment No. 15 applies, would be covered by that two-year transitional period. I think that we will be returning to the wider arguments.

Baroness Byford

My Lords, I did not think that there was any confusion. However, just in case there was, I was speaking to Amendment No. 15, which amends page 10, line 8 and provides that the agency, shall have regard to the length of time such abstraction has been practised and the purposes to which it has been put". I hope that that is the amendment to which the noble Lord responded.

I thank my noble friend Lord Peel for his contribution. Trickle irrigation is very important to horticulture and is a growing part of the community. I am delighted about that. If climate change continues, we will be able to produce many different types of vegetable and other crops. My noble friend referred to the pollution caused by transporting imported food, which I call food miles. There is a huge number of such miles.

I am also grateful to the noble Lord, Lord Livsey, for his comments. However, I am not at all satisfied with the Minister's response. That is why I queried whether he was responding to the right amendment. I should therefore like to test the opinion of the House.

1.6 p.m.

On Question, Whether the said amendment (No. 15) shall be agreed to?

Their Lordships divided: Contents, 91; Not-Contents, 89.

Division No. 3
Addington, L. Cope of Berkeley, L.
Alton of Liverpool, L. Craigavon, V.
Anelay of St Johns, B. Crathorne, L.
Arran, E. Cumberlege, B.
Astor, V. Dahrendorf, L.
Astor of Hever, L. Dholakia, L.
Beaumont of Whitley, L. Dixon-Smith, L.
Blaker, L. Elis-Thomas, L.
Blatch, B. Elliott of Morpeth, L.
Bowness, L. Elton, L.
Bradshaw, L. Ezra, L.
Buscombe, B. Feldman, L.
Byford, B. Fookes, B.
Campbell of Alloway, L. Gardner of Parkes, B.
Carnegy of Lour, B. Glentoran, L.
Hanningfield, L. Perry of Walton, L.
Henley, L. Pilkington of Oxenford, L.
Higgins, L. Plummer of St. Marylebone, L.
Hooson, L. Rawlings, B.
Howe, E. Rawlinson of Ewell, L.
Kimball, L. Reay, L.
Knight of Collingtree, B. Redesdale, L.
Lane of Horsell, L. Rees, L.
Livsey of Talgarth, L. Renton, L.
Ludford, B. Rodgers of Quarry Bank, L.
Luke, L. Rogan, L.
Lyell, L. Roper, L.
McColl of Dulwich, L. Russell, E.
Mackie of Benshie, L. Saltoun of Abernethy, Ly.
McNally, L. Sandwich, E.
Maddock, B Scott of Needham Market, B.
Marlesford, L. Seccombe, B. [Teller]
Masham of Ilton, B. Selborne, E.
Sharp of Guildford, B.
Mayhew of Twysden, L. Shutt of Greetland, L.
Miller of Chilthorne Domer, B. Skelmersdale, L. [Teller]
Monro of Langholm, L. Strathclyde, L.
Montrose, D. Thomas of Walliswood, B.
Noakes, B. Tordoff, L.
Northover, B. Trefgarne, L.
Oakeshott of Seagrove Bay, L. Trumpington, B.
O'Cathain, B. Vivian, L.
Oppenheim-Barnes, B. Wade of Chorlton, L.
Park of Monmouth, B. Walmsley, B.
Peel, E. Walpole, L.
Perry of Southwark, B. Wilcox, B.
Acton, L. Harris of Haringey, L.
Ahmed, L. Harrison, L.
Alli, L. Haskel, L.
Andrews, B. Hilton of Eggardon, B.
Archer of Sandwell, L. Hogg of Cumbernauld, L.
Ashton of Upholland, B. Hollick, L.
Bach, L. Hollis of Heigham, B.
Bassam of Brighton, L. Howells of St. Davids, B.
Berkeley, L. Howie of Troon, L.
Bernstein of Craigweil, L. Hoyle, L.
Blackstone, B. Hughes of Woodside, L.
Borrie, L. Hunt of Kings Heath, L.
Brooke of Alverthorpe, L. Irvine of Lairg, L. (Lord Chancellor)
Brookman, L.
Burlison, L. Jay of Paddington, B.
Carter, L. Jones, L.
Christopher, L. Lea of Crondall, L.
Clarke of Hampstead, L. Lofthouse of Pontefract, L.
Cohen of Pimlico, B. Macdonald of Tradeston, L.
Corbett of Castle Vale, L. Mclntosh of Haringey, L. [Teller]
Crawley, B.
David, B. MacKenzie of Culkein, L.
Davies of Coity, L. Mackenzie of Framwellgate, L.
Davies of Oldham, L. Massey of Darwen, B.
Desai, L. Merlyn-Rees, L.
Dixon, L. Nicol, B.
Dubs, L. Parekh, L.
Elder, L. Patel of Blackburn, L.
Evans of Parkside, L. Pendry, L.
Evans of Temple Guiting, L. Pitkeathley, B.
Farrington of Ribbleton, B. Plant of Highfield, L.
Faulkner of Worcester, L. Radice, L.
Filkin, L. Rea, L.
Gale, B. Rogers of Riverside, L.
Gavron, L. Sewel, L.
Gibson of Market Rasen, B. Sheldon, L.
Golding, B. Simon, V.
Goldsmith, L. Stone of Blackheath, L.
Gordon of Strathblane, L. Strabolgi, L.
Goudie, B. Symons of Vernham Dean, B.
Gould of Potternewton, B. Taylor of Blackburn, L.
Grocott, L. [Teller] Temple-Morris, L.
Turner of Camden, B. Williams of Mostyn, L. (Lord Privy Seal)
Whitaker, B.
Whitty, L. Williamson of Horton, L.
Wilkins, B. Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

1.15 p.m.

Clause 9 [Power to provide for .further exemptions]:

Baroness Miller of Chilthorne Domer

moved Amendment No. 16: Page 12, line 4, after "State" insert "shall make regulations when requested to by such statutory bodies as are concerned with water management or

The noble Baroness said: My Lords, Amendment No. 16 seeks to address some of the confusion that arises in this confused and confusing area of legislation. That confusion was illustrated by the laughter that erupted on all sides of the House when Amendment No. 13 was discussed.

When we addressed the matter in Grand Committee, I sought to exempt from the provisions of the Bill the traditional method of irrigating fields at time of flood known as warping. Subsequent to reading the Minister's reply and having further discussion with various parties on the matter, I decided that the simplest way to deal with it at this stage—although I bear in mind my own feelings and those of the noble Baroness, Lady Byford, on increasing regulation—was to allow the Secretary of State to make further regulations with regard to exemptions.

My amendment seeks to ensure that the Secretary of State will make regulations to increase the number of exemptions when he is requested to do so by statutory bodies concerned with mater management. I refer to such bodies as drainage boards involved with drawing up water level management agreements, flood defence committees and river basin management committees. I refer to the latter in the optimistic hope that a later amendment in my name will be accepted. Under the terms of my amendment any of those bodies could request the Secretary of State to make exemptions that applied to their part of the country. I believe that not all the exemptions that are necessary are covered by the Bill. Perhaps with one or two exceptions—I do not include myself among them—people do not have a firm grasp of all the implications of the matter that we are discussing. I have tried to phrase the amendment fairly widely to provide some latitude for the future. I beg to move.

Earl Russell

My Lords, I am happy to support my noble friend's amendment and I admire the effort she has put into trying to reach a compromise. I should like to make just one point. I speak as a member of the Joint Committee on Statutory Instruments. Will the Minister give an undertaking that any regulations made under the amendment, if it were accepted, would not be proceeded with if the Joint Committee was not convinced that they were intra vires?

Lord Dixon-Smith

My Lords, the principle of the amendment is in a sense unexceptionable in that if local knowledge and local information indicate that a situation can be resolved only by regulation, it is right that that should be requested. But we have to realise that any regulation, unless it is tightly defined, will presumably apply nationally. It might be difficult to draft regulations that would apply to only one specific instance. I am not sure whether the amendment is practical in detail. In principle, one would like to see it agreed to, but, from the point of view of drafting regulations that are national in their impact, it may be difficult.

Lord Whitty

My Lords, the noble Baroness has certainly widened the scope with the amendment, but has not left any latitude. The amendment would force the Secretary of State to make regulations when statutory bodies concerned with water management, which are not defined in the amendment, request them. Obviously, any statutory body would be listened to by the Secretary of State and the National Assembly, and any request would be taken seriously. That is understood.

The Government always have to balance a range of considerations and interests to ensure fair treatment to all concerned. In that case, it would not be appropriate to give the bodies effectively the right to instruct the Secretary of State to make regulations removing exemptions. I was even more alarmed when the noble Baroness implied that a lot of the exemptions could be local and specific rather than general. The final decision on such requests must rest with the Secretary of State and the National Assembly, rather than undefined statutory bodies.

I was asked about regulations under the clause. Clearly, they would be published for public consultation and consideration by Parliament in the normal way. including the Joint Committee. If that committee were to indicate that in its opinion they were ultra vires, as the noble Earl suggested, the Government and the House as a whole would have to take that extremely seriously. We would obviously take legal advice as well, as the committee no doubt would have done if it had issued a suggestion in those terms. That would be a very serious inhibition on proceeding with them. I hope that that goes far enough to assure the noble Earl on that point.

Baroness O'Cathain

My Lords, I want to ask the Minister for a point of clarification. Would it be helpful if the Secretary of State made regulations after consultation with statutory bodies? The statutory bodies concerned with water management could have some sort of locus in terms of consultation.

Lord Whitty

My Lords, there would always be such consultation. I think that the noble Baroness is seeking that statutory bodies have a right of initiative. They have that right; they have the right to suggest to the Secretary of State that she make regulations. However, the amendment suggests that statutory bodies shall require the Secretary of State to make regulations. That seems a step too far. They already have the right to make such representations.

Baroness Miller of Chilthorne Domer

My Lords, I thank the Minister for his view on my amendment, and I note the contributions of the noble Baroness, Lady O'Cathain, and the noble Lord, Lord Dixon-Smith. I still have some fears that the Bill will not be sufficiently sensitive to some issues that I raised in Grand Committee about the management of particular areas but, by defining them locally rather than by the general behaviour of estuarine rivers or geological issues, perhaps the amendment is weakened.

I fear that we shall find some cases in future that the Bill has not anticipated and so will not be dealt with in a satisfactory way. However, I guess that we cannot design a perfect world through the Bill. Given my inability to do so either, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Byford

moved Amendment No. 17: Page 12, line 11, at end insert— ( ) The Secretary of State shall make regulations providing for qualifying abstractions for the purpose of trickle irrigation to be classed as an exemption.

The noble Baroness said: My Lords, we tabled the amendment again because, in Grand Committee, the Minister seemed reasonably in favour of the principle but felt that the amendment was in the wrong place. In bringing it back on Report, I am trying to get clarification on that. Many contributions in Committee acknowledged the fact that some trickle irrigators were small users of water, and some were large ones. On that there is no disagreement around the House. Therefore, in some circumstances, some trickle irrigators may need to he viewed in a stronger light than others. The intention of the amendment is to give the Secretary of State the responsibility of bringing forward regulations.

I shall speak from the point of view of the NFU and on behalf of its colleagues involved in trickle irrigation. They seek a firm commitment from the Government and the Environment Agency to enter into early discussions with representatives of the industry as to how trickle irrigators might be brought into an abstraction regime, and to negotiate the nature of any transitional arrangements that will be introduced. Farmers and growers who use trickle irrigation are not opposed to the principle of bringing it within extraction regime licensing, but they have genuine concerns about the implications for their businesses and how the new controls will be implemented.

As I said, many of the businesses are of high value and require the maximum possible time to make the necessary adjustments to accommodate the requirements of the new regulatory regime. The Minister has indicated that there will be a two-year period in which negotiations take place. I beg to move.

Baroness Miller of Chilthorne Domer

My Lords, we feel strongly that horticulture is an important class of occupation, and is to be regarded very seriously. That is why we supported Amendment No. 15, which stated that, the Agency shall have regard to the length of time such abstraction has been practised". Then there were all the issues of food miles raised by the noble Baroness, Lady Byford.

In terms of Amendment No. 17, however, I am slightly nervous about the number of different classes that we could be asked to regard as exemptions. Although I have enormous sympathy with those brought into the regime as trickle irrigators, I suspect that exemptions will begin to create an unfair playing field, not least those who have not held abstraction licences before and are applying for them for the first time. We explored in Grand Committee the scarcity of water throughout England, as exemplified by the map produced by the centre for national water demand.

Although I sympathise with the purpose and spirit of the amendment, we would not want to support any group of users who fell over the threshold that requires a licence to be held in order to be classed as exemptions.

Lord Whitty

My Lords, in a sense, the noble Baroness, Lady Miller, has referred to my exact point. This amendment seeks to exempt a whole class of users, irrespective of the amount of water they use. One recognises the fact that we are bringing trickle irrigators into the scheme for the first time, but they are quite substantial users of water; indeed, some more so than others. Although in many cases trickle irrigation may be seen as quite an efficient use of water, that is not always the case. Recent reports tend to show that trickle is not always the most efficient system, especially if the system is not maintained—or, frankly, if it is left on by default—which, regrettably, does happen—because, unlike spray irrigation, you cannot see the water.

I am not in favour of exempting whole classes of water users from what, in some respects, is quite a high threshold. Indeed, I am not sure that it is in any sense in the interests of horticulture. The maintenance of maximum availability and the efficient use of water for the horticulture industry, especially in the drier south and east of the country, are important considerations. One trickle irrigator could well abstract excess water and damage another trickle irrigator. Under the old exemption, cases arose where, for example, one trickle irrigator abstracted too much water from the system and that had an effect on another enterprise further downstream. In one case of which I am aware, such abstraction led to the bankruptcy of the other enterprise.

I do not believe that there is a good justification for complete exemption of trickle irrigators. Indeed, if we were to exempt them in the intensive horticulture areas, one horticultural enterprise could seriously damage another. Therefore, I do not regard this provision as being an attack on the horticulture sector; it is a protection for them.

Baroness Byford

My Lords, I thank the Minister for his comments. I am also grateful to the noble Baroness, Lady Miller, for expressing her concerns in this regard in advance of this stage of the Bill. I take on board the fact that there are irrigators who use the system wisely, and others that do not use it so wisely. I understand the Minister's argument. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton

My Lords, I believe this to be a convenient moment for an adjournment of the proceedings. I beg to move that the Report stage be adjourned until after Starred Questions.

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

Baroness Farrington of Ribbleton

My Lords, I beg to move that the House do now adjourn during pleasure.

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

[The Sitting was suspended from 1.31 to 2 p.m. for Judicial Business and to 3 p.m. for Public Business.]

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