§ 4.15 p.m.
§ The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty)My Lords, I beg to move that the Bill be now further considered on Report. In doing so, with the leave of the House, I draw attention to the Motion on the Order Paper, which we will take al the end of 154 the Report stage, that deals with recommitment of this Bill on one particular subject, namely that of fluoridation.
Moved, That the Bill be further considered on Report.—(Lord Whitty.)
§ On Question, Motion agreed to.
§
Baroness Miller of Chilthorne Domermoved Amendment No. 36:
Before Clause 28, insert the following new clause—
General provisions with respect to water
In section 6(2)(b) of the Environment Act 1995 (c. 25), at end insert "in particular the efficient use of water by all abstractors".
§ The noble Baroness said: My Lords, this group of three amendments, two of ours and one of the Government's, shows how we are struggling to find the most appropriate way of enabling the Environment Agency to have a firm empowerment to require the efficient use of water. The difference between the three amendments is small, but it will perhaps help the House if I explain. The Government may then be interested to consider the best way forward. The Government seem to prefer their wording, "including the efficient use". I am worried that unless we say "in particular the efficient use", we will have watered down the spirit of what we are all trying to achieve.
§ Earlier, in Committee and at Report stage, noble Lords time and again came back to the importance of ensuring that the Environment Agency has this power. For the benefit of those noble Lords who have not been able to attend, I remind the House that the National Water Demand Management Centre points out that world water availability is 6,918 cubic metres per capita in general in the world. In Europe it is 8,547 cubic metres, and in Ethiopia 1,771 cubic metres. In the UK it goes down to 1,219 cubic metres and in the Thames basin just 265 cubic metres. Efficient use of water is essential with household growth and population growth. There is an important need to get this small clause absolutely right in the Bill and enable the Environment Agency to have exactly the right power.
§ The government amendment could lead to some confusion. It talks of "including the efficient use of those resources". It would be better to say "in particular the efficient use of resources", to emphasise that the Environment Agency has an existing duty. "Including" might imply that the duty relating to the efficient use of resources was a new one. My Amendment No. 36 is probably weaker than what the Government have come back with in that it refers to all use of water and not just abstractors' use of water. Of this group, my preferred amendment now is Amendment No. 160A, but I welcome the views of other noble Lords, and of course the Government, on the best way to proceed. I beg to move.
§ Baroness ByfordMy Lords, I support the noble Baroness, Lady Miller of Chilthorne Domer. Throughout our discussions in Committee, we have returned to the crucial factor of wanting to have efficient use and conservation of water throughout the 155 Bill. I shall not repeat what I said then except to encourage those who were unable to take part at Committee stage to support through these amendments a basic principle that we would all wish to see encompassed in the Bill.
§ Lord WhittyMy Lords, I think that we are all agreed on what we want to achieve here. As tabled, Amendment No. 36 might have the effect of narrowing the scope of the existing general duty. It might narrow the scope of the duty to secure proper use of water resources to relate only to abstractors to the exclusion of other users.
On the face of it, Amendments Nos. 160 and 160A are not very different. My interpretation of the difference is almost the opposite of the noble Baroness's. We emphasise that the Environment Agency has always been able to impose efficiency conditions, and has done so. We do not wish to include in the Bill anything to suggest that such decisions were not covered by previous legislation, as we do not believe that to be the case. Therefore, the clarification of inserting the word "including" implies that the provision has always existed, whereas if the words "in particular" are used, the clause is more likely to be interpreted as suggesting a new power.
We are all concerned that we register the matter in the Bill. However, the Government feel that Amendment No. 160 does it better and that past decisions would be less subject to the—admittedly remote—possibility of challenge if the provision were included in our form rather than that proposed in Amendment No. 160A.
§ Baroness Miller of Chilthorne DomerMy Lords, I thank the Minister for his helpful reply. I am concerned that we get the matter right. The success of the first amendment of the noble Baroness, Lady Byford, on Report strengthens the Bill. In the light of that fact, in particular if the Minister is satisfied that the wording that the Government propose is satisfactory, I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§
Baroness O'Cathainmoved Amendment No. 37:
After Clause 30, insert the following new clause—
§ "APPEALS AGAINST ENFORCEMENT ORDERS
§ (1) Section 21 of the WIA (validity of enforcement orders) is amended as follows.
§ (2) At the end of paragraph (a) of subsection (1), there is omitted the word "or".
§ (3) After paragraph (b) of subsection (1), there is added—
- "(c) that the making or confirmation of the order was based on an error of law or fact; or
- (d) that in the circumstances of the case, the making or confirmation of the order was not reasonable."
§
(4) For subsection (2) there is substituted—
(2) On any such application, the High Court may, if satisfied that any of the grounds set out in subsection (1) above are proved—
156
§ The noble Baroness said: My Lords. Amendment No. 37 relates to enforcement orders. Although there is a right of appeal against competition related decisions made by Ofwat, there is no right of appeal against other enforcement decisions made by Ofwat and the Secretary of State. I believe that that needs to be rectified.
§ The amendment creates a right of appeal against enforcement decisions not related to competition that are made by Ofwat and the Secretary of State. That is part of a package of amendments on appeals. They aim to ensure that there are rights of appeal on the merits of the regulator's decisions to an independent person—possibly a member of the court of arbitrators—taking into account that there are already such rights in relation to the granting of abstraction licences and decisions on competition issues.
§ The amendment and other provisions replace our previous "jumbo" appeals amendment that we dealt with in Grand Committee. It was somewhat complex and caused confusion. I hope that this amendment clarifies the situation. Instead, specific amendments are proposed to provisions where regulatory decisions affect existing rights or are punitive. I beg to move.
§ Lord BorrieMy Lords, I support the amendment. As the noble Baroness, Lady O'Cathain, said, it is a substitute, as was another amendment we debated previously. Another amendment is yet to come in relation to the "jumbo" clause, as she put it. This approach is a major improvement.
Under Clause 30, significant powers are vested in the Environment Agency to deal with impounding or abstracting without a licence. Those powers are based on the subjective view of the agency. Clause 30 contains the words,
where it appears to the Agency"——that there is a breach.There is a double subjectivity. Where it appears to the agency that a company has not complied with a condition, an enforcement notice may be served. The condition is that,
it appears that a breach … is causing or likely to cause significant damage".There is a double subjective basis on which the Environment Agency can serve enforcement notices.Non-compliance with an enforcement notice incurs potentially heavy sanctions. They are set out on page 35 of the Bill at proposed Section 25C: on summary conviction there is a fine of up to £20,000; on conviction there is an unlimited fine. One expects that a public authority such as the Environment Agency will act only from the highest motives. But let us suppose that the agency's exercise of a power is questionable. Can it be questioned at all? Under Section 21 of the Water Industry Act 1991, the only possible remedy that I can see for a company aggrieved by an enforcement notice is either unlawfulness or 157 failure of the agency to comply with statutory procedures. However, as the power is expressed in very subjective terms, it is difficult, if not impossible, for any aggrieved company to cross the huge hurdle of demonstrating that the Environment Agency has acted unlawfully.
The amendment would add two grounds: error of law or fact, and unreasonable use of power. The latter can be argued and might restrain any possible excessive use of power by the Environment Agency. We should expect the agency normally to comply with proper procedures and law, to act in the public interest and to behave in an upright way. But some official, sometime, might behave otherwise, and there should be a better remedy or appeal, as the noble Baroness suggested.
§ Baroness ByfordMy name is attached to this amendment. I urge the Government to consider it, as it is very reasonable. My noble friend has gone to much trouble to ensure that it does what she wishes it to do. The noble Lord, Lord Borrie, rightly said that it gives us a chance to see where there is an error of law or fact, and whether the agency is using unreasonable power. I shall not add anything, as the amendment speaks for itself. I am very grateful to the noble Lord, Lord Borrie, for his support. He does not always agree with amendments; therefore, on this occasion I am doubly grateful to him for his support.
§ Baroness Miller of Chilthorne DomerMy Lords, I, too, can be brief, as the noble Lord, Lord Borrie, has said what needs to be expressed. We have tried to amend the Bill at other points to ensure that the agency is accountable in various ways. This amendment also seeks to ensure that.
§ Lord WhittyMy Lords, there has been a slight misapprehension by my noble friend Lord Borrie and those who spoke after him. The amendment, which would insert a new clause after Clause 30, has no impact on the Environment Agency. It deals with appeals against Ofwat—in the regulatory sense under the Water Industry Act—not the powers of the Environment Agency, which appear later in the Bill.
The first part of the amendment is not necessary, and the second part is potentially dangerous. The first part adds nothing to the current provisions. The enforcement authority is already required to consult on the terms of its order. It is then required to give notice of its decision. An undertaker therefore has an opportunity to point out any error of law. If the regulator fails to take note of those representations, there are grounds for legal challenge. A company can question an enforcement order if it feels that it is unreasonable. Again, existing provisions give Ofwat a discretion not to issue an order if the breach is trivial or if the company has given an undertaking to Ofwat to remedy that breach. There are therefore already extensive, transparent safeguards to protect against arbitrary, unreasonable action by the regulator.
It is probably the second part of the amendment to which I object more strongly. It would allow the High 158 Court to vary an enforcement order if a complaint was upheld. That would include parts of the order which had not been the subject of the company's application. That would not be appropriate. The court already has powers to wholly or partly quash an order because it is unlawful; it does not need any additional powers for that. But it would be unusual to ask the court to substitute its own interpretation of what are often very technical issues involved in any alleged contravention, especially if those issues had not been the subject of the application in the first place. Therefore, it is giving too wide powers to the court. The powers that the court needs it already has. With that in mind, I hope that the amendment will not be pursued.
§ Baroness O'CathainMy Lords, whereas I am very grateful to all who took part in the debate on this amendment, I am very disappointed by the Minister's response. The Minister deliberately said that in the first part of the amendment—I take it that he is referring to subsection (3)—the company, the undertaker, or whatever, has grounds for legal challenge. That would be a costly and difficult course for water companies. I think that the appeals mechanism would be better; that is, appealing to an independent person, possibly a member of the court of arbitration. I do not understand why the Government have taken this attitude.
In addition, we are not being dealt with fairly as regards appeals which are not related to competition. Why should Ofwat, being the mouthpiece of the Secretary of State, not be allowed to appeal on issues not related to competition? With the support that I have received from around the House, in this instance I should like to test the opinion of the House.
§ 4.32 p.m.
§ On Question, Whether the said amendment (No. 37) shall be agreed to?
§ Their Lordships divided: Contents, 123; Not-Contents, 120.
160| Division No. 1 | |
| CONTENTS | |
| Addington, L. | Caithness, E. |
| Alderdice, L. | Campbell of Alloway, L. |
| Allenby of Megiddo, V. | Carlisle of Bucklow, L. |
| Ampthill, L. | Carnegy of Lour, B. |
| Arran, E. | Cavendish of Furness, L |
| Ashcroft, L. | Clement-Jones, L. |
| Avebury, L. | Coe, L. |
| Barker, B. | Colwyn, L. |
| Beaumont of Whitley, L. | Denham, L. |
| Biffen, L. | Dixon-Smith, L. |
| Blatch, B. | Elles, B. |
| Bradshaw, L. | Elliott of Morpeth, L. |
| Bridgeman, V. | Elton, L. |
| Bridges, L. | Ferrers, E. |
| Brooke of Sutton Mandeville, L. | Finlay of Llandaff, B. |
| Brougham and Vaux, L. | Gardner of Parkes. B. |
| Burnham, L. | Geddes, L. |
| Buscombe, B. | Glenarthur, L. |
| Byford, B. | Glentoran, L. |
| Goodhart, L. | Park of Monmouth, B. |
| Goschen, V. | Peel, E. |
| Gray of Contin, L. | Perry of Southwark, B. |
| Hamwee, B. | Perry of Walton, L. |
| Hanham, B. | Plumb, L. |
| Harris of Richmond, B. | Rawlings, B. |
| Higgins, L. | Razzall, L. |
| Hodgson of Astley Abbotts, L. | Redesdale, L. |
| Hooson, L. | Renton, L. |
| Howe, E. | Roberts of Conwy, L. |
| Howe of Aberavon, L. | Rodgers of Quarry Bank, L. |
| Howe of Idlicote, B. | Rogan, L. |
| Howell of Guildford, L. | Roll of Ipsden, L. |
| Kirkham, L. | Roper, L. |
| Knight of Collingtree, B. | Russell, E. |
| Laird, L. | Saltoun of Abernethy, Ly. |
| Lindsay, E. | Sandberg, L. |
| Linklater of Butterstone, B. | Sandwich, E. |
| Livsey of Talgarth, L. | Scott of Needham Market, B. |
| Lyell, L. | Seccombe, B. [Teller] |
| McColl of Dulwich, L. | Selborne, E. |
| Mackie of Benshie, L. | Selsdon, L. |
| Maclennan of Rogart, L. | Sharp of Guildford, B. |
| Shaw of Northstead, L. | |
| McNally, L. | Sheppard of Didgemere, L. |
| maddock, B. | Shutt of Greetland, L. |
| Mar, C. | Skelmersdale, L |
| Mar and Kellie, E. | Smith of Clifton, L. |
| Marlesford, L. | Steel of Aikwood, L. |
| Michie of Gallanach, B. | Strange, B. |
| Miller of Chilthorne Domer, B. | Strathclyde, L. |
| Molyneaux of Killead, L. | Swinfen, L. |
| Monro of Langholm, L. | Thomas of Gwydir, L. |
| Montrose, D. | Thomas of Walliswood, B. |
| Mowbray and Stourton, L. | Thomson of Monifieth, L. |
| Murton of Lindisfarne, L. | Tordoff, L. |
| Newby, L. | Trumpington, B. |
| Noakes, B. | Ullswater, V. |
| Northesk, E. | Vivian, L. |
| Northover, B. | Waddington, L. |
| O'Cathain, B.[Teller] | Wakeham, L. |
| Oppenheim-Barnes, B. | Walmsley,.B. |
| Palmer, L. | Williams of Crosby, B. |
| NOT-CONTENTS | |
| Acton, L. | Elder, L. |
| Ahmed, L. | Evans of Parkside, L. |
| Alli, L. | Evans of Temple Guiting, L. |
| Amos, B. | Falconer of Thoroton, L. (Lord Chancellor) |
| Andrews, B. | |
| Ashton of Upholland, B. | Farrington of Ribbleton, B. |
| Barnett, L. | Faulkner of Worcester, L. |
| Bassam of Brighton, L. | Filkin, L. |
| Bernstein of Craigweil, L. | Fyfe of Fairfield, L. |
| Billingham, B. | Gale, B. |
| Blackstone, B. | Gibson of Market Rasen, B. |
| Boston of Faversham, L. | Golding, B. |
| Brennan, L. | Goldsmith, L. |
| Brooke of Alverthorpe, L. | Gordon of Strathblane, L. |
| Brookman, L. | Gould of Potternewton, B. |
| Brooks of Tremorfa, L. | Graham of Edmonton, L. |
| Campbell-Savours, L. | Hardy of Wath, L. |
| Carter, L. | Harrison, L. |
| Clark of Windermere, L. | Haskel, L.[Teller] |
| Clarke of Hampstead, L. | Hayman, B. |
| Clinton-Davis, L. | Hilton of Eggardon, B. [Teller] |
| Cohen of Pimlico, B. | Hogg of Cumbernauld, L. |
| Corbett of Castle Vale, L. | Hollis of Heigham, B. |
| Craig of Radley, L. | Howarth of Breckland, B. |
| Crawley.B. | Howells of St. Davids, B, |
| David, B. | Hughes of Woodside, L. |
| Dixon, L. | Irvine of Lairg, L. |
| Donoughue, L. | Janner of Braunstone, L. |
| Dormand of Easington, L. | Jay of Paddington, B. |
| Dubs, L. | Jeger, B. |
| Jones, L. | Prys-Davies, L. |
| Jordan, L. | Radice, L. |
| Kirkhill, L. | Ramsay of Cartvale, B. |
| Layard, L. | Rea, L. |
| Lea of Crondall, L. | Rendell of Babergh, B. |
| Lipsey, L. | Richard, L. |
| Lockwood, B. | Scotland of Asthal, B. |
| Lofthouse of Pontefract, L. | Sheldon, L. |
| Macdonald of Tradeston, L. | Simon, V. |
| Mclntosh of Haringey, L. | Smith of Gilmorehill, B. |
| Mclntosh of Hudnall, B. | Smith of Leigh, L. |
| MacKenzie of Culkein, L. | Stone of Blackheath, L. |
| Mackenzie of Framwellgate, L. | Strabolgi, L. |
| Marsh, L. | Symons of Vernham Dean, B. |
| Masham of Ilton, B. | Taylor of Blackburn, L. |
| Mason of Barnsley, L. | Temple-Morris, L. |
| Massey of Darwen, B. | Tumberg, L. |
| Merlyn-Rees, L. | Turner of Camden, B. |
| Mishcon, L. | Uddin, B. |
| Mitchell, L. | Varley, L. |
| Morgan, L. | Wamer, L. |
| Morris of Manchester, L. | Warwick of Undercliffe, B. |
| Nicol, B. | Weatherill, L. |
| Orme, L. | Whitaker, B. |
| Ouseley, L. | Whitty, L. |
| Parekh, L. | Wilkins, B. |
| Patel of Blackburn, L. | Williams of Elvel, L. |
| Paul, L. | Williams of Mostyn, L. (Lord President of the Council) |
| Peston, L. | |
| Pitkeathley, B. | Williamson of Horton, L. |
| Plant of Highfield, L. | Woolmer of Leeds, L. |
§ Resolved in the affiematitve, and amendment agreed to accordingly.
§ 4.44 p.m.
§
Baroness Miller of Chilthorne Domermoved Amendment No. 38:
Before Schedule 1, insert the following new schedule—