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Standing Committee D
Tuesday 16 September 2003
(Afternoon)
[Mr. David Amess in the Chair]
Clause 6
Existing impounding works: works notices
Amendment moved [this day]: No. 7, in
clause 6, page 6, line 10, leave out subsection (2).—[Mr. Wiggin.]
2.30 pm
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are discussing amendment No. 8, in
Mr. Bill Wiggin (Leominster): I welcome you back to the Chair, Mr. Amess. These are minor probing amendments, but I thought that it would be helpful if they were included. Going back to the original Water Resources Act 1991, this aspect of the Bill is succinctly covered in the old legislation. It is short, straightforward and pretty clear. By tabling the amendment, I hoped to discover from the Minister what advantage the new wording delivers. I am sure that he has plenty to say on that, but I thought that the amendment would be helpful.
The purpose of amendment No. 8 is to treat the Environment Agency in the same way as it treats other people. That would be constructive. We are dealing with empowerment of the agency. We are giving it quite strong powers that, if used wisely, will help the environment, but we also have a duty to secure some constraints on the agency to ensure that none of the new powers is taken too far. If the Minister could throw some light on that, we would be grateful.
The Minister for the Environment (Mr. Elliot Morley): Amendment No. 7 would remove the definition of a works notice for the purposes of the clause. It would broaden the scope of the agency to include whatever it wanted in such a measure. I do not know whether the intention is to limit the agency's powers to use works notices, but it would not achieve that. The subsection limits what a works notice can include, and although, of course, I do not expect the agency to misuse the power in any way, the definition will provide some protection to the owners or operators of those works. There are no current powers to serve works notices on impounding works that are causing problems. This provision provides the ability to do that.
On amendment No. 8, I refer the hon. Gentleman to page 36 of the Bill, lines 33 to 35. They do precisely what I think he intends by his amendments. The relevant provisions are incorporated into the works notices provisions by subsection (3). I hope that that gives him the answer that he was looking for.
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Mr. Wiggin: I am grateful for the second part of the Minister's answer. That allays my fears on that aspect of the legislation. The first part is covered best by subsection (2)(a), which deals with such works or operations as
''appear to the Environment Agency to be required for the purposes mentioned in subsection (1)(a) or (b)''.
That relates to the protection of the environment. It is a pretty-wide ranging power. It would not be beyond the wit of the Environment Agency to include just about anything within it. The Minister argues that by removing that part of the clause, my amendment would widen the powers, but I suggest that they are already wide and that my proposal would not necessarily do exactly what he says.
I recognise, however, that my simple deletion would possibly not be the best way to achieve the objective. I am happy to withdraw the amendments safe in the knowledge—a nod from the Minister will do—that we are looking at constraining some of the agency's powers so that they are proportionate. That is a tremendous word to use in the circumstances, particularly as the Minister used it earlier when we talked about other wide powers having unforeseen consequences. He said that ''appropriate'', ''cost-effective'' and ''proportionate'' were the criteria to be used, and with that in mind, I am happy to beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Wiggin: I beg to move amendment No. 9, in
clause 6, page 6, leave out lines 21 to 23.
I am once again seeking clarification. The amendment would remove the words:
''including any power to make regulations or give directions, but references in those provisions to the Secretary of State shall be treated as references to the appropriate authority.''
It is not the clearest bit of legislative prose, but I believe that it empowers the Secretary of State to do just about anything that he or she feels is appropriate, which is an enormous widening of powers. I may be mistaken, and I again seek comfort from the Minister that the Bill will not do that. We should be proportionate—that is the word for the afternoon—in the powers that we allow to be adopted in the legislation, and I am concerned that the Bill is more generous than it should be.
Mr. Morley: The power of the Secretary of State is subject to a range of provisos and limits, some of which are set out in the Bill and some of which are the subject of normal parliamentary processes. The hon. Gentleman explained that the amendment is about the Secretary of State's powers. It might appear to remove the Secretary of State's power to make regulations on works notices, but it would not achieve that. The amendment would remove only the ability of the National Assembly to make regulations for Wales, which seems a little hard on Wales.
The regulation-making powers, which are clarified in the lines that the amendment would delete, relate to the form and content of works orders, the consultation to be undertaken locally, compensation to any person on whom a right of entry to undertake the works is
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imposed and arrangements for the appeals. I would have thought that the hon. Gentleman would support such provisions. Far from extending the powers of the Secretary of State, they protect those who may be affected by the use of the works notice. I understand the hon. Gentleman's point, but the Secretary of State is constrained by the lines that he wants to delete.
Mr. Wiggin: I am grateful for that explanation. I did not read the Bill in that way, but on the strength of the hon. Gentleman's comments, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Wiggin: I beg to move amendment No. 11, in
clause 6, page 6, line 33, leave out subsection (7).
If the agency is of the opinion that proceedings for an offence under subsection (4) would afford an ineffectual remedy against a person, subsection (7) gives it the power to appeal to the High Court. Although I recognise that we may be dealing with both individuals and huge companies, I am not sure that that is the best way to empower the agency. It makes it the judge of whether a company can afford to deal with it, which I find difficult to understand. The law should apply equally, and it should not be up to a Government agency to decide which offenders should be punished by which institutions. It is possible that the drafting is misleading, but I suspect that the subsection allows the Environment Agency to offer different punishments to different people. I am uncomfortable with that.
Norman Baker (Lewes): I have two concerns about the subsection, for slightly different reasons. If a person fails to comply with a works notice, subsection (6) provides that the Environment Agency may
''do what that person was required to do and may recover from him any costs or expenses reasonably incurred''
in doing so. That seems entirely appropriate, and is in line with, for example, planning procedures, in which a council can restore a listed building and recoup the money from the owner of the building who has ignored the notice to repair it. There is nothing controversial about that. If subsection (6) contains a remedy, I do not see why subsection (7) is included—it adds nothing to subsection (6).
I agree that the agency should not perhaps make legalistic judgments. I also wonder why we are scrutinising legislation that may lead to an ineffectual remedy. If those who drafted the Bill believe that that might be the case, we should sort it out at this stage, rather than waiting for a problem to occur in future.
I therefore believe there to be three problems with the clause: the duplication of the powers given to the agency in subsection (6) by subsection (7); the question of whether the agency is the right body to make legalistic judgments; and whether we anticipate that the remedies will be ineffectual.
Mr. Morley: I can answer the hon. Gentleman's points. The amendment links to the previous amendment. It would remove from the agency the
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power to seek a civil remedy—an injunction—to deal with an immediate problem. The subsection gives the agency the power to seek an injunction, which can be obtained from the High Court but not from the Crown court.
Immediate action cannot always be achieved by prosecution or the threat of it. It is envisaged that the power to seek an injunction would be used only in rare circumstances, in which an activity is under way that is causing damage, or has the potential to do so. The power is permissive, and will be used by the agency only when it considers that immediate action is necessary. That is likely to be in cases in which a works notice is not achieving its objective of remedying an environmental or water resource problem. If that power were removed, it would undermine the ability of the agency to deal with such a problem, and could lead to continuing environmental damage. That is the intention behind the inclusion of the subsection.
Mr. Wiggin: Although that is a reasonable explanation, it is not relevant because the clause covers existing impounding works. If the works are already occurring, immediate action will not be required, because the situation will have been in existence for some time before the Bill is enacted. I therefore do not accept that the Minister's reply is accurate, because he suggests that such a situation will suddenly appear, when existing impounding works must have been going on for quite a long time.
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