Water Bill [Lords]

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Norman Baker: That is a powerful point. I would have developed a more comprehensive argument if I had not wanted to speak to other amendments. My life

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with my colleagues would not be worth living if I had not mentioned watercress.

Mr. Wiggin: I want to return to the subject of plant growers, although not to watercress growers. The habitat directive must be completed. If it is completed earlier than required, that is all well and good. But if it takes longer than that, is there not a danger that we are tied to a date while another directive is being passed which the Bill seems to have ignored?

Norman Baker: It is always a difficulty for the Government to marry up different legislation. For example, the Bill and the water framework directive do not marry up in this case, and there are similar examples in other areas. While world trade negotiations are being held, biodiversity protocols are being drawn up that are not as parallel to those negotiations as they should be. However, it is 4.46 pm, and there are other amendments to be discussed, so I will sit down and let the Minister respond to the points that have been made.

Mr. Morley: I freely acknowledge that the watercress beds can be very important to the environment. The birds in question are actually water pipits, not marsh pipits. I have seen them and can identify them. The watercress industry's environmental importance is one of the strengths of its case. I do not suggest that Members have been doing this, but we do not want inadvertently to give the impression that there are huge environmental problems with the watercress industry. I am not sure that there are, but the Bill contains mechanisms for dealing with any problem caused by any aspect of water abstraction. I make no apology for that, because it is vital that we have the tools for resource management.

I also freely acknowledge that there are issues of investment and of people's businesses, as hon. Members have spelt out. I have every sympathy with them. That is why there are clear appeals mechanisms in the Bill, and why a licence cannot be revoked unless there is a clear case for doing so and that case can stand up to examination. The right to appeal is absolute. Anyone who feels aggrieved by the revocation of their licence can do appeal.

Norman Baker: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 ordered to stand part of the Bill.

Clause 30

Water resources management schemes:

other abstractors

Sue Doughty: I beg to move amendment No. 203, in

    clause 30, page 35, line 6, after 'shall', insert

    'put these arrangements in the public domain and'.

The Chairman: With this it will be convenient to discuss amendment No. 45, in

    clause 30, page 35, line 7, at end insert

    'and these arrangements shall be put in the public domain'.

Sue Doughty: This is a simple, but important, amendment. Requirements are being introduced,

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especially when licences are granted, to make provision for

    ''the construction and installation of any reservoirs, apparatus or other works which the holder of the licence will use for the purposes of or in connection with his abstraction''.

There is also a provision requiring

    ''payments to be made by the Agency to the holder of the licence''

and a requirement for

    ''the reference to and determination by the Secretary of State or the Water Services Regulation Authority of questions arising under the arrangements.''

At the moment, those provisions are not in the public domain. If someone upstream, downstream, or facing someone who has been given a licence with these conditions wants to question something that is affecting their land, property or environment, there is no way for them to understand the basis on which decisions will be taken. There is no reason why these provisions should not be in the public domain. It is important that people can understand what requirements have been placed on the licence holder, which is why we have tabled the amendment.

Mr. Wiggin: I congratulate the hon. Lady on the brilliant wording of her amendment. She will find that mine is the same. The purpose of our amendment is to put the same wording in a different place in the sentence to ensure that the information from the Secretary of State is made available to the public.

Mr. Morley: I have made it clear that I am sympathetic to the idea of information being made available as widely as possible where that is appropriate. As the hon. Lady will understand, it is already necessary for information in agreements made under section 20 of the Water Resources Act 1991, other than commercially sensitive data, to be made available to the public. Where the information relates to the environment, a very broad term, it must be made available under the environmental information regulations. Other information will also be subject to the Freedom of Information Act 2000 when it is fully enforced. That will require a public interest test to be applied.

In reaching a decision on a request for information, a public body has to assess whether the public interest in withholding the information outweighs the public interest in disclosing it. That is perfectly reasonable; in most cases there will be no good reason to withhold information. If the interests are balanced, the presumption is in favour of disclosure. The provision is already in place, and I hope that the hon. Members for Guildford and for Leominster, with their nearly identical amendments, will accept that.

Sue Doughty: Certainly we are grateful for the additional information that the Minister has provided about the transfer of information. It is important that it should be available. Having received that assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 ordered to stand part of the Bill.

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Clause 31

Water resources management schemes:

referral to Secretary of State

Norman Baker: I beg to move amendment No. 204, in

    clause 31, page 35, line 17, leave out from beginning to 'or' and insert 'reasonable terms'.

The Chairman: With this it will be convenient to discuss amendment No. 205, in

    clause 31, page 35, line 20, leave out from 'on' to end of line 21 and insert 'reasonable terms'.

Norman Baker: The clause concerns referrals to the Secretary of State, and one of the triggers is when arrangements appear to the Environment Agency to be reasonable. I am trying to apply a harder test on the agency so that it does not have to determine whether something is reasonable before it is referred, but whether it is reasonable in general. That might mean the same thing, but in terms of subsequent appeals and the way in which it is considered by the Secretary of State, it would be better if it were considered neutrally, rather than in the agency's opinion, which might be at gross variance with that of the other party. I do not insist on the amendment, but that is my reason for having tabled it.

Mr. Morley: The provisions that the amendments seek to change come into effect only when the Environment Agency has already found that it cannot reach agreement with the water undertaker or other abstractor over the terms of a water resources management scheme. In that situation, the matter will be referred to the Secretary of State, which is reasonable. It is appropriate that the agency should reflect on whether it considers its terms to be reasonable before it proceeds with the referral. However, the amendment seeks to change that consideration into an objective test of reasonableness. Sometimes such tests are appropriate—one can justify them—but in this case they would have unwelcome consequences.

If there is an objective test as to whether the terms are reasonable to be considered even before the reference is made to the Secretary of State, the only way in which the matter could be determined would be by an application to the courts. We know that the other party to the proposed agreement objects to its terms, so would not consider them reasonable. That would tend to encourage litigation rather than a reference to the Secretary of State and an appeals procedure. Despite the delay and expense of going to court, all that the court could determine would be whether the terms were sufficiently reasonable to be referred to the Secretary of State for consideration.

The court is not equipped to take policy decisions about water resource planning, and the management is a matter for the Secretary of State—in reality, it is a matter for an inspector, who considers the situation and advises the Secretary of State. The decision of the Secretary of State is subject to the usual safeguards, including judicial review, so the party has not lost anything by allowing the appropriate decision-making procedure to run its course before considering further action. I do not imagine that there will be many cases

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of this kind, as the agency has a good record of reaching agreements. However, I hope that the hon. Gentleman realises that such procedures are the most efficient way of dealing with such a dispute.

Norman Baker: The Minister has persuaded me on this occasion, although I admit that it may not be the greatest achievement. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 ordered to stand part of the Bill.

Clause 32

Enforcement notices, and related procedures and offences

Norman Baker: I beg to move amendment No. 206, in

    clause 32, page 36, line 15, leave out 'significant'.

I wanted to explore with the Minister the meaning of the word ''significant'' in the phrase

    ''significant damage to the environment''.

I am a little concerned that it may be an unreasonably high test for the Environment Agency to meet before enforcement action is taken. I accept that deleting the word might make it a low test that could lead to unjustified enforcement action. I could not think of anything between significant and an absence of significance, but that was the aim of the amendment. I do not want a situation to arise in which damage of a worrying nature is caused that does not trigger enforcement action.

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