HL Deb 13 November 2003 vol 654 cc1702-9

90 After Clause 99, Insert the following new Clause—

"Schemes for the adoption of sewers, lateral drains and sewage disposal works

After section 105 of the WIA there is inserted—

"105A Schemes for the adoption of sewers, lateral drains and sewage disposal works

  1. (1) The Secretary of State may by regulations provide for him to make schemes for the adoption by sewerage undertakers of sewers, lateral drains and sewage disposal works of the descriptions set out in paragraphs (a), (aa) and (b) of section 102(1) above.
  2. (2) The regulations may require sewerage undertakers to prepare draft schemes and to submit them to the Secretary of State.
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  4. (3) Each scheme shall relate to—
    1. (a) the area of a sewerage undertaker, or part or parts of it; or
    2. (b) the areas of more than one sewerage undertaker, or part or parts of them.
  5. (4) It shall be the duty of a sewerage undertaker, in specified circumstances, to exercise its powers under section 102 above with a view to making the declaration referred to in subsection (1) of that section in relation to sewers, lateral drains or sewage disposal works which—
    1. (a) fall within the area to which a scheme relates; and
    2. (b) satisfy specified criteria.
  6. (5) The circumstances and the criteria shall each be—
    1. (a) specified in the regulations; or
    2. (b) determined in accordance with the regulations and specified in the scheme.
  7. (6) In relation to the exercise of those powers pursuant to that duty-
    1. (a) section 102 above shall have effect—
      1. (i) with the omission of subsections (2), (5) and (7);
      2. (ii) as if in subsection (1) the words "sections 103, 105 and 146(3) below" read "section 105B below";
      3. (iii) with the omission of the words "or application" in subsection (3);
      4. (iv) as if for subsection (4)(a) there were substituted—
        • (a) shall give notice of its proposal to the owner or owners of the sewer, lateral drain or works in question unless, after diligent enquiry, he or they cannot be traced;
        • (aa) shall publish notice of its proposal in the prescribed manner; and";
      5. (v) as if in subsection (4)(b) "two months" read "two months or, if longer, the period specified by virtue of section 105B(5) below" and "section 105 below" read "section 105B(4) or (5) below, or "; and
      6. (vi) as if section 98(3) of the Water Act 2003 did not apply;
    2. (b) sections 103 and 105 above shall not apply; and
    3. (c) if the regulations so provide, section 146(3) below shall not apply in circumstances or cases specified in the regulations.
  8. (7) A duty imposed on a sewerage undertaker under subsection (4) above shall be enforceable by the Secretary of State under section 18 above.
  9. (8) A statutory instrument containing regulations under subsection (1) above shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

105B Adoption schemes: appeals

  1. (1) Any person falling within subsection (2) below may appeal to the Authority if he is aggrieved by—
    1. (a) the proposal of a sewerage undertaker to make a declaration under section 102 above in relation to a sewer, lateral drain or sewage disposal works, pursuant to the undertaker's duty to do so under section 105A(4) above (the "relevant duty"); or
    2. (b) the failure of a sewerage undertaker to make such a proposal pursuant to that duty.
  2. (2) The persons referred to are—
    1. (a) an owner of a sewer, lateral drain or sewage disposal works;
    2. (b) any other person affected by the proposal, or the failure, in question.
  3. (3) The grounds upon which a person may appeal are—
    1. (a) in a subsection (l)(a) case, that the relevant duty is not owed in relation to the sewer, lateral drain or sewage disposal works, or that the making of the proposed declaration would be seriously detrimental to him;
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    3. (b) in a subsection (l)(b) case, that the relevant duty is owed in relation to the sewer, lateral drain or sewage disposal works; or
    4. (c)any other prescribed ground.
  4. (4) An appeal under subsection (l)(a) above shall be made within two months after notice of the proposal is—
    1. (a) served on the owner of the sewer, lateral drain or sewage disposal works; or
    2. (b) published in accordance with section 102(4) above as modified by section 105A(6) above,
      • (or, if both occur, within two months after whichever is the later).
  5. (5) An appeal under subsection (l)(b) above shall be made within such period as is specified in the scheme (not being less than two months).
  6. (6) On the hearing of an appeal under subsection (1) above,
    1. (a) the Authority may— (a) in a subsection (l)(a) case, allow or disallow the proposal of the sewerage undertaker; or
    2. (b) in a subsection (l)(b) case, determine that the undertaker was not under the relevant duty in relation to the sewer, lateral drain or sewage disposal works in question,
      • or, in either case, make any declaration that the sewerage undertaker might have made, unless the proposal is disallowed.
  7. (7) If, in a subsection (l)(a) case, the Authority finds that the making of the proposed declaration would be seriously detrimental to the appellant, it shall disregard any duty on the part of the sewerage undertaker to make the proposal for the purpose of determining whether to allow or disallow the proposal.
  8. (8) If, in a subsection (l)(a) case, the Authority disallows the proposal of the sewerage undertaker, the scheme pursuant to which it was made shall have effect as if there were no duty under section 105A(4) above on the sewerage undertaker in relation to the sewer, lateral drain or sewage disposal works in question. (9) Where the Authority makes a declaration under subsection (6) above, it may, if it thinks fit— (a) specify conditions, including conditions as to the payment of compensation by the sewerage undertaker; and (b) direct that its declaration shall not take effect unless any conditions so specified are accepted. (10) A declaration made under subsection (6) above shall have the same effect as if it had been made by the undertaker. (11) The Secretary of State may by regulations make further provision in connection with appeals under this section. (12) The regulations may, in particular, require the Authority to have regard to prescribed matters when determining an appeal under this section.

105C Adoption schemes: supplementary

  1. (1) The Secretary of State may vary any scheme, or revoke it.
  2. (2) Before making regulations or any scheme under section 105A above, and before amending or revoking the regulations or varying or revoking a scheme, the Secretary of State shall consult—
    1. (a) each sewerage undertaker which would be affected;
    2. (b) the Authority;
    3. (c) the Council;
    4. (d) such other persons as the Secretary of State considers appropriate.
  3. (3) The Secretary of State shall publish each scheme he makes, and any such scheme as varied, in the way he considers best for the purpose of bringing it to the attention of those likely to be affected by it.""

Lord Whitty

My Lords, I have already spoken to this amendment. I beg to move that the House do agree with the Commons in their Amendment No. 90.

Moved, That the House do agree with the Commons in their Amendment No. 90.—(Lord Whitty.)

90A Lord Dixon-Smith rose to move, as an amendment to the Motion that the House do agree wit:h the Commons in their Amendment No. 90, leave out "agree" and insert '"disagree".

The noble Lord said: My Lords, my objection to Amendment No. 90 is not so much its content as the procedure that has led to it. I supported the noble Lord, Lord Livsey of Talgarth, on this issue. In summarising the position I shall start at Report stage; I will not bother to take the House back to Grand Committee. I will also not bother with the debate. I shall concentrate only on what the Government said in response. On Report, the Government said: 'The next stage of the work is to look at existing private sewers. We will shortly produce a consultation paper engaging with everyone concerned about solutions for dealing with existing private sewers in England and Wales. I am not sure of the outcome of the consultation. However, it will not be the same sort of protocol to which I referred in Committee".

The noble Lord, Lord Livsey, had proposed a protocol to deal with this problem. The Government went on: Therefore, it is premature, and probably inappropriate, to stipulate a protocol in this part of the Bill. I must therefore resist the noble Lord's amendment".—[Official Report, 24/6/03; col. 266.]

So that is what happened on Report.

On Third Reading, when the noble Lord, Lord Livsey of Talgarth, again returned to the subject, the noble Lord, Lord Whitty, said: My Lords, I recognise the noble Lord's views. It is one of the main options on which we are proposing to consult, but he is doing what he said that he would not do: trying to pre-empt the consultation by inserting the amendment in the Bill. Indeed, there would be a number of consequentials in terms of funding and responsibilities that would have to be faced, were we so to do. I cannot accept his amendment".—[Official Report, 9/7/03; col. 423.]

So far, so good. The consultation document Review of Existing Private Sewers and Drains in England and Wales was then produced. It was published in July, with the consultation date running out on 26th September. That was immaculately in the middle of everyone's major holiday period of the year, when most of the interested parties would probably not be able to consider that kind of an issue. so be it. I do not think that there was anything underhand in that, it was just the unfortunate way it worked out.

Seeking further enlightenment I went to the report of Standing Committee D, which was the Standing Committee in the other place dealing with the Water Bill. It was its eighth sitting. Just before lunch Mr Morley, on behalf of the Government, said this: We are trying to address the situation. We commissioned a study by W.S. Atkins to ascertain the scale of the problem and to give us some options for tackling it. The results of that consultation are being analysed and will probably not be known until the beginning of next year. One problem with the parliamentary question tabled by my hon. Friend the Member for Sherwood is that the results are still coming in, but I can tell him that so far we have received 150 responses from individuals and organisations. He might also like to know that 86 per cent"—

which is the figure the Minister has just given— of respondents are in favour of a change of ownership of private sewers. Of that 86 per cent., 92 per cent, consider that sewerage undertakers are best placed to take on that responsibility".— [Official Report, Commons Standing Committee D, 21/10/03; col. 344.]

So, at the end of the Committee stage there was still nothing. I then turned to the Hansard debate of the Report stage in the other place. After a great deal of debate on the Water Bill, this is what I found MR. DEPUTY SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour, pursuant to Order [5 November]."

And under that: "Remaining government amendments agreed to".—[Official Report, Commons, 10/11/03; col. 131.]

Amendment No. 90 has not been debated in either House. That is not to say that there has not been debate around the subject of private sewers, but this amendment has not been discussed. I think it is not unreasonable to call that an abuse of parliamentary privilege. That is the reason I object to it.

There are many detailed points which other Members may wish to raise. I have read the amendment with some considerable care. It depends on the drafting of regulations. We do not have those regulations. We have no chance of seeing them. There is nothing said about the financial arrangements, which everyone has acknowledged will be a problem. We are talking of up to 300,000 kilometres of private sewers. That is a huge quantum. The Minister has indicated that a vast number of houses have this problem.

This is no way to deal with a problem of this nature. It is for that reason that I have tabled the amendment.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 90. leave out "agree" and insert "disagree".—(Lord Dixon-Smith.)

Lord Livsey of Talgarth

My Lords, I shall speak to Amendments Nos. 90 and 90A. I thank the noble Lord, Lord Dixon-Smith, for his forensic research in discovering what has been going on. We have spent so much time on the issue that we have covered much of this ground. There are many unsatisfactory matters outstanding. To shorten my contribution, I shall ask the Minister three questions. It would be better to include the amendment in the Bill than to have nothing at all. There are many loose ends.

The Minister may have answered my first question, but I shall recap: is the legislation on the adoption of private sewers mandatory or optional for undertakers? Secondly, who is to bear the capital cost of the schemes? The noble Lord, Lord Dixon-Smith, has just referred to that. Thirdly, are any timescales enforced for completing schemes? In the first amendment that I tabled in Committee, I included a timescale of 12 or 15 years—I cannot remember which—for all schemes to be completed.

Perhaps the Minister can answer those three questions, because they are pertinent to our attitude to Amendment No. 90A and Amendment No. 90, which acknowledges that there is a problem and that there are ways of dealing with it. The questions of capital and the enforcement procedures for private sewers to be adopted are important, as hundreds of thousands of people are suffering through inadequate sewers. They are being asked to pay extortionate prices into schemes that they cannot afford.

Baroness O'Cathain

My Lords, I support my noble friend's amendment and wish to say what a great job the noble Lord, Lord Dixon-Smith, has done. The noble Lord, Lord Livsey, referred to his forensic skills. My noble friend and the noble Lord, Lord Livsey, referred briefly to the cost of the schemes. The cost will fall on the water companies, but, as I said at several previous stages, they already contend with the rising cost of household customer debt and debt recovery. The latest figures from Ofwat show that the total outstanding household revenue up to four years old is £781 million, an increase of £115 million since 1998–99. That figure is significant, because 1988–89 is when the prohibition of disconnection for non-payment came into force.

Since then, the cost to water companies recovering debt has increased by 28 per cent to £56 million. Revenue written off on the year to March 2003 was £93 million. Those are just bald figures, about which people ask "So what?". How can water and sewerage companies be expected to carry that additional burden? Has the Minister any estimate of the cost of going through with Amendment No. 90?

There is another cost issue, but I shall not go into it in further detail because it is on the record of previous debates on the Bill. However, other utilities share information about people who do not pay debts; for example, council tax officials can give information to other utilities. The water companies are hit by the Data Protection Act. That effectively prevents the bodies that have the information about where people are and where they have moved to from supplying water companies with that information.

The real issue is that this is the only opportunity that we have to bring this matter to the fore again. The water and sewerage companies are in a serious situation and there is no doubt that in the long term it is a strategic nonsense to allow this to continue.

Lord Whitty

My Lords, I was surprised when the noble Lord, Lord Dixon-Smith, complained about procedure and said that this was an abuse of parliamentary power. After all, we have discussed very similar amendments to this in Committee in this House. The noble Lord, Lord Livsey, proposed a protocol and we are proposing regulations, but they are designed to do the same thing. The noble Lord, Lord Dixon-Smith, supported that. At that time, we had not had the results of the consultation. It was therefore premature then but not premature now that we have the outline results.

As for business in another place, I have never been clear about how much in order it is for us to discuss such details in this House, but a Back-Bench amendment was put forward in Committee in another place and debated at length. The Minister indicated that he would take those arguments on board, and he came forward with this amendment, which was discussed on 10th November. The Minister explained how he had taken up Paddy Tipping's Bill and that this amendment had the same substance as Paddy Tipping's amendment, which tidied up the legal side. All of that was debated at some length on 10th November, so I am not entirely sure what the noble Lord is complaining about. In any case, it is probably out of order for him to do so or for me to comment.

In response to the other questions, we have a broad result of the consultation. Almost everybody out there recognises that there is a problem—85 per cent of people said that something needs to be done. It is too early for us to say precisely what we will do about it, but rather than going for a protocol, which would not be subject to further parliamentary procedure, we have chosen affirmative action. Of course, there are some outstanding questions, which mainly relate to costs and who bears those costs, and whether the measure is mandatory and in what circumstances it would be mandatory. All that would have to be laid down in legislation. Issues about whether a timescale could be applied in certain circumstances would also have to be laid down in regulation.

The point of introducing this amendment now is that it is in recognition of the consultation. The inclinations of the noble Lords, Lord Livesey and Lord Dixon-Smith, were clearly correct. They were reflecting broad public opinion—also reflected in another place—that we need to do something about this problem. This measure gives us a permissive power to do so. If the regulations coming forward do not meet the case, no doubt that could also be discussed in the House.

I cannot yet go into any greater detail about what those regulations will contain, but the fact that we need to be able to make such regulations seems widely accepted. Indeed, it was the purport of the discussion that we had in Grand Committee several months ago, which has now been confirmed by the consultation. I would therefore hope that the noble Lord, despite his misgivings about procedure, would be prepared to accept that this provision is actually doing what we all wanted.

Lord Dixon-Smith

My Lords, I certainly did not claim that there had been no discussion. The fact that I had to quote the Minister himself on two occasions in this House must have indicated that there had been debate. However, there has been no discussion on the amendment before us. That is the problem, because we have not had time to study it. That is my objection to the process. Yes, there was discussion in Committee in another place and I have no complaints about that, but the amendment was passed under the nine o'clock rule as far as I can establish. If I am incorrect I can only apologise. That is how it seemed to me.

However, we are still left with a dilemma. The fact is that this is almost a paving amendment. We have no knowledge in any way, shape or detail of how it would work. There is no financial information that would enable us to judge whether or not it is in the interests of householders connected to existing private sewers. There is nothing but what is before us; that is, a few lines on two or three sheets of paper. That is not sufficient process for me. I should like to test the opinion of the House.

9.51 p.m.

On Question, Whether the said amendment (No. 90A), as an amendment to the Motion, shall be agreed to?

Their Lordships divided: Contents, 14; Not-Contents, 61.

Division No.8
Attlee, E. Howell of Guddford, L.
Brougham and Vaux, L. Montrose, D. [Teller]
Byford, B. Northesk, E.
Carlisle of Bucklow, L. O'Cathain, B.
Cope of Berkeley, L. [ Teller] Palmer, L.
Dixon-Smith, L. Selborne, E.
Geddes, L. Skelmersdale, L.
Acton, L. Hannay of Chiswick, L.
Amos, B. (Lord President) Harris of Richmond, B.
Andrews, B. Hayman, B.
Archer of Sandwell, L. Howells of St. Davids, B.
Ashton of Upholland. B. Hoyle, L.
Bach, L. Hughes of Woodside, L.
Bassam of Brighton, L. Hunt of Chesterton, L.
Bernstein of Craigweil, L. Lea of Crondall, L.
Borrie. L. Macdonald of Tradeston, L.
Bragg, L. McIntosh of Haringey, L.
Brett, L. McIntosh of Hudnall, B.
Brooke of Alverthorpe, L. Massey of Darwen, B.
Brookman. L. Methuen, L.
Burlison L Miller of Chilthorne Domer, B.
Carter, L. Morgan, L.
Chandos, V. Pitkeathley B.
Crawley, V. Ramsay of Cartvale, B.
Davies of Coity. L. Rendell of Babergh, B.
Davies of Oldham. L. [Teller] Rogers of Riverside, L.
Dubs, L. Roper, L.
Sainsbury of Turville, L.
Evans of Parkside, L. Scotland of Asthal, B.
Evans of Temple Guiting, L. Sewel L
Farrington of Ribbleton, B. Simon V
Faulkner of Worcester, L. slynn of Hadley, L.
Gale, B. Stone of Blackheath, L.
Gilbert, L. Turnberg, L.
Golding, B. Wallace of Saliaire, L.
Goldsmith, L. Warwick of Undercliffe, B.
Graham of Edmonton, L. Whitty. L.
Grocott, L. [Teller] Wilkins, B.

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.