House of Commons - The Draft Flood and Water Management Bill - Environment, Food and Rural Affairs Committee

The Draft Flood and Water Management Bill - Environment, Food and Rural Affairs Committee Contents

2 Overview of the Bill

5. The draft Bill and associated consultation document are both divided into 'flood' and 'water' sections. The Separtment is consulting both on the policy behind the clauses already drafted and policy proposals discussed in the consultation document but not set out in draft clauses.

Implementation of the Pitt Review's recommendations

6. The majority of the draft Bill's provisions relate to flood and coastal erosion management and associated issues. The principal impetus for new flood legislation was the summer 2007 floods and their aftermath. Between May and July 2007, two periods of extreme rainfall resulted in widespread flooding in parts of England and Wales. Approximately 49,000 households and nearly 7,000 businesses were flooded. Major infrastructure such as transport links, schools, power and water supplies were disrupted.[11] Several reports into the floods have been published, including those by Ofwat, Gloucestershire County Council and Hull City Council.[12] In August 2007, the Government asked Sir Michael Pitt to conduct an independent review of the flooding. Sir Michael's final report, containing 92 recommendations, was published in June 2008. In December 2008, the Government published its response to the Pitt Review, in which it accepted all 92 recommendations.[13] We published our report into the summer floods in May 2008.[14]

7. In February 2009, we held an evidence session with Sir Michael Pitt to discuss the Government's response to his review and the implementation of his recommendations. Sir Michael was "extremely pleased" that all of his recommendations had been accepted.[15] The most significant legislative change he wished to see was clarification of the roles of the Environment Agency and local authorities.[16] He noted that "a great deal can be achieved under existing arrangements", and that much that would become statutory duties under the legislation had already been instigated voluntarily. For example, Hull City Council told us that they were "getting on with" coordinating local action, citing their multi-agency flood forum and strategic drainage partnership which was already "trying to inform future investment planning".[17] Nevertheless, Sir Michael emphasised that his Review could "not be fully implemented until such time as that legislation is approved and gets Royal Assent".[18]

8. Defra provided us with a diagram illustrating some of the complexity of the current flood and water legislation and how the Bill relates to it.[19] One of Sir Michael's main recommendations was that "forthcoming flooding legislation should be a single unifying Act".[20] The Government's response supported that recommendation but noted that consolidating the existing legislation, much of which is spread across four main Acts "may not be possible".[21] The consultation document notes that although the draft provisions do not include consolidation provisions, Defra "intend carrying on work with a view to identifying the changes that are necessary to create a single unifying Act" with a view to the final Bill providing further consolidation provisions.[22]

9. The draft Bill addresses 16 of the Pitt review's recommendations that require legislation but falls short of providing a Bill which also consolidates our principal water Acts. We recommend that Defra continue working to produce the comprehensive legislation that the Government has agreed is highly desirable, even if this delays the Bill until the next Parliament.

Water management and climate change predictions

10. The consultation document and draft Bill's 'water' sections cover a range of topics including regulation of the water industry and sustainable water management. The consultation document invites views on significant water resource management policy proposals not included in the draft clauses such as the time limiting of abstraction licences. The Government set out its sustainable water policy in Future Water. That document noted the growing problem of water scarcity, particularly in south east England, which in 2004 suffered one of the most serious droughts in the last 100 years.[23]

11. On 18 June 2009, after we concluded our oral evidence, the Government published the climate change predictions for the UK up to the end of the century, modelling different scenarios depending on how far greenhouse gas emissions continue to rise.[24] These highlight the extent of changes, likely even under central estimates, in temperature and rainfall levels. Defra anticipates that all areas of the UK will get warmer, more so in the summer than in the winter, with, for example, increases of up to 4 degrees celsius in the south east by 2080. Summer precipitation is expected to decrease, for example by up to 23% in the south west, while winter rainfall will tend to increase across the UK, by up to 16% in the north west of England by 2080.[25] Furthermore there is an increased likelihood of more frequent extreme weather events, the intensity of which will challenge the ability of infrastructure and services to cope.[26] The Climate Change Act 2008 places requirements on Ministers and a range of bodies to develop long term adaptive strategies and these scenarios highlight the scale of the challenge for managing both surplus water in some seasons and water scarcity in others.

12. The Bill has been drafted against the background that climate change will have an effect on both the availability of water and likelihood of more extreme weather events. We recommend that Defra work with the Environment Agency and the relevant bodies to ensure that the Bill's provisions properly reflect the recently updated climate change scenarios.

Potential further clauses on flood and water measures

13. The consultation document invites views on several additional policy areas that are not covered by the draft clauses but which could be included in the Bill when it is introduced into Parliament. Although the document invites views on specific questions the policies being consulted on are at various stages of development. Some, such as hydromorphology powers, are at an early stage of development.[27] Some, such as the implementation of the Cave and Walker reviews into competition in the water industry and household water and sewerage charges respectively, are not developed at all.[28] Nevertheless, the Minister for the Natural and Marine Environment, Wildlife and Rural Affairs, Huw Irranca-Davies, confirmed that some aspects of the Cave or Walker reviews could "feed into what we are doing legislatively".[29] Some of the proposals are half completed, such as the reform of Internal Drainage Boards (some additional powers are included in the Bill but further changes are being consulted on). Some of the policy proposals, such as on the time limiting of abstraction licences, are awaiting the conclusion of consultations. Defra described the consultation document as:

…structured in such a way that it makes a clear distinction between policy on which we have drafted clauses, and areas where wider consultation is needed as the policy is not so developed, or where policy will be determined later in the light of other consultations (time limiting abstraction licences) or reviews (Cave and Walker).[30]

14. The published draft Bill is weighty, with 265 clauses (and no schedules at present). Once further clauses are added to reflect views expressed during the consultation the Bill may run to more than 300 clauses. The draft legislative programme published on 29 June 2009 confirmed the Government's intention to introduce the Bill in the final Session of the current Parliament.[31] There are unlikely to be more than a dozen sitting weeks for the legislation to be passed by both Houses of Parliament before the dissolution ahead of the next General Election.[32]Furthermore there are 10 other Bills competing for Parliamentary time.[33] This raises questions about the feasibility of a lengthy Bill completing all of its Parliamentary stages in time to pass into statute within the current Parliament.

15. In February 2009, Sir Michael Pitt told us that—while his preferred option was for a comprehensive bill, consolidating floods legislation—he would rather have a slimmed-down Bill than no Bill at all.[34] We asked several of our witnesses what, if it became necessary, would they wish to see in a slimmed-down bill. Naturally, different stakeholders have different views on what is the "core" of the legislation, and many also point out that much of what will be required statutorily under the Bill has already been voluntarily set in train. The Rt Hon Lord Smith of Finsbury, Chairman of the Environment Agency, said that the Agency's priorities would be the specification of powers and duties for the Agency, local authorities and water companies on surface water flooding; and "clarity as to who is responsible for what and how it all works together".[35] Lord Smith also confirmed that the Environment Agency would much prefer a complete and comprehensive Bill rather than taking a piecemeal approach.[36] Mr Richard Aylard, Director, Thames Water, giving evidence alongside representatives of Yorkshire Water and Severn Trent Water, put sustainable drainage, including removing the automatic right of connection, misconnections and regulations about water restrictions as his company's main priorities for legislation.[37] Mr Aylard added that provisions relating to bad debt and removing the special merger provisions for the water industry should be in the legislation.[38] Equally, the majority of organisations' written evidence listed their priorities for the Bill.[39] There is an engaged and knowledgeable public which has high expectations that legislation will be introduced to solve the problems which led to the flooding of 2007 having such significant impacts.

16. The Department's pick and mix approach over what ultimately might be in the Bill means that the process of pre-legislative scrutiny is inevitably undermined. We recommend that if the Government proceed to develop a truly comprehensive piece of water legislation that the Committee be given a further opportunity to scrutinise those parts of the Bill which are still very much work in progress.

17. With the Queen's speech now scheduled for 18 November, a comprehensive flood and water management Bill is unlikely to be enacted before the next general election, due to the lack of Parliamentary time. Despite many flood and water issues being inter-related and requiring coordinated action, Defra may have no alternative but to consider introducing a slimmed-down bill that covers only the most important issues. If Defra pursues a slimmed-down bill it will lose this once in a Parliament opportunity to comprehensively and thoroughly address current water and flooding issues. We recommend the Government adhere to Sir Michael Pitt's recommendation for a proper consolidating Bill. However, if Defra finds it has no alternative but to introduce a slimmed-down bill, it should consult stakeholders as soon as possible on which provisions should be included.

18. The inevitable uncertainty caused by a 'work in progress' draft Bill could have an impact on Ofwat's final price review 2009 price determinations. We recommend that at the earliest opportunity (even during the remaining part of the Summer recess) Defra make clear its intentions. If it opts for a slimmed down Bill we recommend that rapid consultation with the Environment Agency and the industry about what must be in and what could be left out of the legislation. Our view remains that such an approach inevitably means that the 'left out' sections may have to wait years for a further legislative opportunity to the detriment of properly addressing Sir Michael Pitt's recommendations.

Territorial extent

19. The consultation document describes the territorial extent of the legislation.[40] The Welsh Assembly Government was involved in the draft Bill's development.[41] Defra explained that the draft Bill is drafted "to implement new policy in England only, while maintaining the status quo in relation to Wales, pending Welsh Ministers' policy decisions".[42] Those decisions will be informed by a consultation on the provisions relating to Wales and policy areas where there is potential divergence between England and Wales.[43] The draft Bill does not extend to Scotland, which has recently enacted its own flooding legislation,[44] with the exception of a minor provision abolishing the Scottish Fisheries Committee.[45]

20. The adoption of a river catchment based planning approach means that close cooperation will have to be achieved between legislative bodies both north and south of the boarder and in Wales. We recommend that, in light of the fact that each legislature has a different approach to water matters, Defra urgently assess how harmonisation of the measures can be achieved. Given the Welsh Assembly's involvement in developing this draft Bill we believe that there is merit in the Welsh Affairs select committee examining their position on this matter at the earliest opportunity.

11 Sir Michael Pitt, Learning Lessons from the 2007 floods, June 2008, p 3. This report is subsequently referred to as "The Pitt Review". Back

12 For a summary of the other main reports produced on the summer 2007 floods see 2007 Summer Floods-Reports and Action, Standard Note SN/SC/4608, House of Commons Library, February 2008. Back

13 Department for Environment, Food and Rural Affairs, The Government's Response to Sir Michael Pitt's Review of the Summer 2007 Floods, December 2008. Back

14 Environment, Food and Rural Affairs Committee, Fifth Report of Session 2007-08, Flooding, HC 49-I Back

15 HC 245-i, Q 6 Back

16 HC 245-I, Q 7 Back

17 Q 229 Back

18 HC 245-I, Q 8 Back

19 The diagram is reproduced at Annex A Back

20 The Pitt Review, recommendation 28, p 139. Back

21 Defra, The Government response to Sir Michael Pitt's Review of the summer 2007 floods, December 2008, p 62. Back

22 Defra, Government response to the Pitt Review, pp 92-93. Back