Water Bill [Lords]

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Mr. Morley: Such action may or may not be required. There may be profit in the activities that are currently taking place that is greater than the impact of the criminal sanctions. The power enables the agency to take immediate action in circumstances in which an activity needs to be stopped because it is causing damage.

Norman Baker: I do not dissent from the objective stated by the Minister. Perhaps I am being rather dim, but can the Minister tell me why the Environment Agency cannot use the powers in subsection (6) to achieve that, without the need for the addition of subsection (7)?

Mr. Morley: The answer to that is that it is a matter of speed. Taking an injunction out under subsection (7) would be a much faster process. The court, rather than the agency, will decide whether an injunction should be granted, depending on the particular circumstances. With regard to the hon. Gentleman's point about the powers of the agencies, the courts therefore represent a safeguard. I would have thought that we would all be keen to see action taken in a situation in which there is a serious risk of immediate damage.

Mr. Wiggin: There are already some fairly draconian measures that can be taken against people who break the law. I learned that the words

''on conviction on indictment, to a fine.''

in subsection 5(b) refer to a fine from the High Court. The Minister already has the power to refer anyone breaking the rules to the High Court, so subsection (7) is again unnecessary.

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Norman Baker: Does the hon. Gentleman agree with me that if the issue is speed, which elicited his last response to me, it could also be covered by subsection (6)? It states:

''If a person on whom a works notice has been served under this section fails to comply with any of its requirements, the Agency may do''

and so on. The phrase ''any of its requirements'' could involve a time scale, which could be as little as 24 hours. I do not understand why that does not cover the point.

2.45 pm

Mr. Wiggin: That is absolutely right. Earlier, we debated subsection (2), and what can be specified in the notice, which could also include a time period. I am grateful to the hon. Gentleman for pointing out the part of the argument to which subsection (6) relates. I stand by my amendment: subsection (7) is not necessary.

Mr. Morley: Again, I will try to explain the situation. The problem is that a conviction or indictment under, I think, subsection (6)—

Mr. Wiggin: Subsection (5)(b).

Mr. Morley: I am not sure about that. Conviction or indictment means going to a Crown court, which takes time. The High Court can accept emergency actions and the agency can go there out of hours, which it cannot do in a Crown court. It might help hon. Members if I lay out the sequence of events that subsection (7) will permit. In the event of a problem with unlicensed impounding, the sequence of action would be to serve first a notice requiring the action to be applied for, and secondly a works notice if urgent action is needed. The problem is that they may be ignored. It is all very well saying that the power exists, but what happens in that case? The next step would be an injunction if the works notice is ignored. Finally, the agency may have to do the work itself in default.

Norman Baker: The Minister helpfully sets out the sequential arrangements, the second of which is serving a works notice. Under subsection (6), if the notice has been served and any person fails to comply with its requirements, the agency may do what it needs to do. Thus according to subsection (6) there is no need to take out an injunction.

Mr. Morley: It is a time issue. The hon. Gentleman says that the agency may do the work, but it has to go through processes to do so, including that of access. From experience of previous such issues, I imagine it would need the court's authority and an injunction to do so. That is my interpretation of the matter.

Mr. Wiggin: This has been a useful debate. The Minister has not yet convinced us that subsection (7) is vital to the Environment Agency. It seems to be the icing on the cake—the extra powers that the agency might like—but it is not convincing to say that it is for alacrity. The proposal deals with existing impounding works, which are already doing tremendous damage to the environment, so I cannot accept that it is a useful power for the future. Any future impounding will be covered by a separate provision, and will be

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automatically in default of a licence, and therefore subject to a completely separate procedure.

We are talking about works that are already going on, about someone who has taken his concrete mixer to the beach or stream and started impounding, today, yesterday or weeks ago. I do not understand why the speed is relevant, and I will therefore find it difficult not to press the amendment. However, I can see that the Minister is seeking guidance, perhaps from minds greater than my own, so I shall remain on my feet until he is ready to dive in and reply.

Mr. Morley: I confirm what I have been saying: it is a final resort to seek powers to go on to someone else's land, as that involves all sorts of restrictions. Notices can be served, but that does not give the agency the power to intervene and, if necessary, rectify. A court injunction may be needed for that.

I repeat that that is an extreme example, but we must ensure that all avenues are covered in a case in which damage is caused and the landowner, for whatever reason, refuses to co-operate. There is a safeguard in place, which is that the case must be made to the High Court before an injunction is served. That kind of fall-back power should be included in the Bill.

Norman Baker: We are now given the new reason of entering land. I do not dismiss that as not being an important legal aspect—it is relevant—but if subsection (6) does not give access to land, what does it do? It seems to be an empty subsection. If it does give access to land, subsection (7) is not necessary, but if it does not, it is unnecessary itself. Both subsections cannot be necessary.

Mr. Wiggin: The Minister has done a sterling job in defending the current drafting. I said earlier that we are keen to make progress, but I do not see how I can withdraw my amendment unless the Minister is prepared to consider the dilemma of subsections (6) and (7) and perhaps reword them on Report.

Mr. Morley: We are getting into heavy-duty legal issues, but if it helps the hon. Gentleman, I will write to him—and send a copy to the hon. Member for Lewes (Norman Baker)—with the detailed reasons for the differences and why subsections (6) and (7) are both important. It is fairly clear that their principal importance is that they are emergency powers, but I will write in greater detail if that will help.

Mr. Wiggin: I am extremely grateful to the Minister, and I hope that the letter that he wrote to me—

Mr. Morley: It has appeared.

Mr. Wiggin: Indeed, it appeared this morning, but only after the morning sitting. However, if the Minister writes, I will be grateful. I am also grateful to the hon. Member for Lewes because we have teased out some real difficulties thrown up by the drafting of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

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Clause 7

Rights of navigation, harbour

and conservancy authorities

Sue Doughty (Guildford): I beg to move amendment No. 178, in

clause 7, page 6, leave out from beginning of line 44 to end of line 19 on page 7.

The Chairman: With this it will be convenient to discuss the following:

Amendment No. 12, in

clause 7, page 6, line 45, leave out 'without intervening use'.

Amendment No. 179, in

clause 7, page 7, leave out lines 32 to 37.

Clause stand part.

Sue Doughty: Much of the Bill relates to river systems, water companies' reservoirs and abstraction from streams and rivers for such purposes as sprinklers and trickle irrigation, and yet a large amount of water is in the navigation system. That concerns us, because if one takes a holistic view of water management, there does not seem to be a good reason to manage rivers but not canals, which also extract water. Water is pumped to the head of a canal and used to manage the waterway. That pumping and the holding of water creates reservoirs.

Consideration has been given over the years to using canals and waterway systems as a national water grid. That has been an unpopular proposal, and there have been several objections to it.

Mr. Simon Thomas (Ceredigion): The hon. Lady may be interested to know that a considerable amount of water is taken from mid-Wales by canals to Birmingham and the west midlands. What she has just suggested already happens in Wales.

Sue Doughty: I thank the hon. Gentleman for that point. It is important to understand what we are doing with water, particularly when moving it from one part of the country to another. That also relates to how we might transport water to the Thames gateway.

Ms Candy Atherton (Falmouth and Camborne): Is the hon. Lady aware that one effect of the amendment would be that, on all 2,500 miles of inland waterways, every lock gate and sluice would have to be licensed? Does she not consider that over-regulation?

Sue Doughty: At this stage we are talking about the reasons why we need some regulation in this matter. If it is possible to exempt locks and lock gates I would be happy to hear about that. There are wider environmental considerations. Moving water from one place to another in the normal course of events probably involves moving like to like—hard water within a hard water area and, when one is looking at holistic river systems, soft water through soft water areas—but if we use navigation systems as a grid, we will increasingly move hard water to soft water areas and soft water to hard water areas. That brings problems. Joints are weakened: in a hard water area they can be calcified, and running soft water through will weaken them and cause bursts and leaks.

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Prepared 16 September 2003