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Lord Livsey of Talgarth: The purpose of the amendment was to probe. That has been exercised in the arguments which have been deployed. I refer in particular to the comments of the noble Lord, Lord Dixon-Smith, about the differences between trickle and spray irrigation and whether both should be treated the same. I suspect that as trickle irrigation is more efficient it probably has pride of place. None the less, I accept the Minister's argument that the fight for this issue may not be in the correct place. I believe the noble Lord, Lord Dixon-Smith, wishes to say something before I sit down.

Lord Dixon-Smith: It is not really a probing amendment. A better way to deal with efficiency of irrigation, rather than through an exemption in the need to have an abstraction licence, would be through a charging system. I am sure that will be picked up. One could charge a higher rate per cubic metre of

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water used for spray irrigation than for trickle irrigation. That would provide a great incentive to people to change if it is practical for them to do so.

Lord Livsey of Talgarth: I thank the noble Lord for his intervention. Without detaining the Committee further, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Miller of Chilthorne Domer moved Amendment No. 24:

    Page 9, line 17, at end insert—

"or for the purpose of alleviating imminent flooding of domestic or commercial property."

The noble Baroness said: I shall speak also to Amendment No. 25. Amendment No. 24 is under the clause headed "Rights to abstract for drainage purposes, etc". I again question the need for any discouragement of people who, for good reasons, are trying to take water out of a river at times of high flows. I do not believe that spilling water over river banks or spillways is defined as abstraction. I am not sure whether it is the Bill's intention to redefine it as abstraction. If it is not abstraction, it should not need licensing.

In times of heavy precipitation, river managers will wish to open sluices. Usually they are used for warping or irrigation, but in this case they are to be used to remove water from the river and to alleviate flooding in towns and villages downstream. Amendment No. 24 is designed to make sure that that activity is exempt from licensing and that the owners or operators of those sluices are not discouraged from using them, bearing in mind that the Environment Agency does not have any powers to make them apply for a licence or use them.

Amendment No. 25 would add a provision to the list of emergency abstractions that I am amazed is not there already. It would add the danger,

    "of flooding to domestic or commercial property".

The Bill lists dangers to human life and health, quite rightly, as well as,

    "serious damage to works resulting from any such operations",


    "serious damage to the environment".

One important aspect, which receives a great deal of coverage from those whose properties have unfortunately been flooded, is the necessity to have regard to damage to property. Therefore, Amendment No. 25 is designed to make sure that damage to property is also included in the Government's list. I beg to move.

Lord Whitty: It might be helpful if I intervene at this stage. I think that these amendments are based on a misunderstanding. The noble Baroness assumes that the current exemptions are altered by the Bill, whereas it does not do anything to remove those exemptions relating to abstraction for the purposes of protecting land against encroachment by water, by floods or whatever kind of river overflow. The existing exemption under the Water Resources Act 1991 is

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retained. It applies to property on land as well as to land itself. All activities associated with the prevention of flooding are therefore exempted from the need for an abstraction licence. That is provided for already under the Water Resources Act, and does not need to be spelt out in this new legislation. Therefore, I think there is no necessity for these amendments.

Baroness Miller of Chilthorne Domer: I thank the Minister for that reply. It is probably reassuring on the first point. On the second point, why do the Government need to list the emergency situation under new subsection (2A)?

Lord Whitty: Other emergency situations could be lack of supply of water or diversion of water as well as flooding.

Baroness Miller of Chilthorne Domer: I shall return to the amended Bill the Minister kindly gave us and check exactly what he is saying.

Lord Whitty: For the benefit of the noble Baroness, it is Section 29(5) of the Water Resources Act—to which I believe she has a Keeling schedule—which is retained and the revised definition is substituted in Clause 7(6).

Baroness Miller of Chilthorne Domer: I thank the Minister for his clarification. I repeat my wish for a consolidated Bill. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

Lord Whitty moved Amendment No. 26:

    Page 9, line 42, after "not" insert ", or is no longer,"

The noble Lord said: I shall speak also to the associated amendments. These are minor technical changes. I shall go through what each one does. Amendment No. 26 provides that the Environment Agency can serve a notice on an operator that what started off as an emergency abstraction is no longer considered to be one because the circumstances have changed. That will allow the agency to establish control as part of its control over the use of water resources over abstractions that otherwise could go on for ever, having started as an emergency.

As written, the clause would amend the Water Resources Act with a provision that could never arise in practice. Amendment No. 27 restores the current wording in the Act.

Amendment No. 32 changes the number of subsections to bring them into line. Amendment No. 33 brings the definition of flood defences for the purposes of defining minimum river flows in Section 21 of the Water Resources Act into line with that used for flood defence purposes in Section 113 of that Act.

Amendment No. 35 provides that the Secretary of State may delegate to a third party—the planning inspectorate—appeals against a water conservation notice, which brings it into line with other provisions in the Water Resources Act.

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Amendment No. 47 provides that where a variation to a licence is being considered at renewal, the variation element is considered as if the expiring licence were to continue. Amendment No. 63 ensures that a protected right is not given to the new abstractor where a transfer licence falls away by virtue of being apportioned. That is consistent with the policy that abstractions for transfer do not benefit from protected right status. I beg to move.

Baroness Byford: I thank the Minister for explaining his amendments, which we followed happily. On Amendment No. 26 regarding the changed circumstance, are there rules already laid down—forgive me, I did not check this—in current Acts that cut in when an emergency is no longer an emergency or when circumstances change? If not, who will judge the changed circumstances and how?

Lord Whitty: All previous legislation defines when an emergency arises but not when it finishes. There will necessarily need to be some guidance to the Environment Agency on whether it can declare the emergency over and therefore subject to the normal abstraction licensing systems. That guidance does not currently exist, but the situation clearly would arise as a result of the new Act.

Baroness Byford: I thank the Minister for that, but I register a slight concern that again we are allowing the matter to be dealt with in secondary legislation. It will be in guidance, regulations or call-it-what-you-will. It is unfortunate that it is not on the face of the Bill. Perhaps the Minister might consider the issue and return to us at a later stage. It would help the Committee because the provision gives the Environment Agency—not the Secretary of State, if I understand correctly—the power to decide the changed circumstances either way. I am not pressing the Minister now, but I should be grateful if perhaps between now and the next stage we can give the matter some thought.

4.15 p.m.

Baroness Miller of Chilthorne Domer: In his reply to my most recent amendments about the sort of emergency situation that we might face, the Minister said that it might be not just flooding but all sorts of other things, including drought. That led me to focus on the title of Clause 7, "Rights to extract for drainage purposes, etc". What is included in the "et cetera"? What sort of emergency situations fall into the "et cetera" bit of the title?

Lord Whitty: What a good question. Parliamentary counsel should be advised not to put "et cetera" into the title of a clause; "and related matters" would be more appropriate.

The nature of emergencies is clear. They could arise from a lack of water, from an excess of water or because water is seeping through areas through which it is not supposed to go. In this context, we are dealing with emergencies that are, by definition, over. The Environment Agency will need to judge when an

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emergency is over. The noble Baroness, Lady Byford, made that point. I am not sure that detailed guidance is appropriate; emergencies will differ in nature. The way in which the agency decides that an emergency is over may be subject to general guidance. The need to have a means of doing that, as provided by Amendment No. 26, is clear.

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