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Lord Dixon-Smith: I shall not repeat everything that I said about existing use. I support the principle of these amendments.

Lord Whitty: We have discussed this point. Existing use by licensed and unlicensed users must be taken into account. The Environment Agency already has a duty to have regard to all relevant considerations, as subsection (3) indicates. If it does not do so, it could be challenged. Likewise, reasonable demands will have to be taken into account. In that sense, the amendment is unnecessary. It would be odd to pick out a consideration applying to one group of abstractors without dealing with others.

The noble Lord requested a list of the abstractors. An abstractor is anyone who exceeds the threshold. Trickle irrigation has been picked out because previously a special exemption applied to it. But anyone exceeding the threshold will come within the purview of the licensing system. The use of the water, the efficiency of water use, its relevance, the impact on other abstractors and other such aspects must be taken into account. That is but one of the relevant issues that the Environment Agency will have to address, and it will address it. I hope that all Committee members understand that. Pursuing this specific amendment would not be helpful.

7 p.m.

Lord Livsey of Talgarth: I would like to know, and I am sure that current abstractors who are not licensed would like to know, whether they will come within the Bill's ambit. I suspect that they already know. However, I would not like to think that they would wake up one morning and find that they are covered by the controls of this legislation. Perhaps we can return to this issue and consider the whole range of those who will be affected by the Bill. One thing that I have noticed in other legislative processes in which I have been involved is that, however careful we are and however much we nit-pick in regard to certain provisions, people will discover whether they are covered by the legislation only when it is implemented. As we have plenty of time left to consider the provisions, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15, as amended, agreed to.

Clause 16 agreed to.

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Clause 17 [Protected rights]:

The Duke of Montrose moved Amendment No. 50:

    Page 20, leave out lines 10 to 14.

The noble Duke said: This is another probing amendment. It perhaps also demonstrates again a slight inability on my part to make practical sense of some of the wording—which may be plain to other noble Lords. It seems to me that when the environment authority issues a licence, it will also be issuing a right. The mention of a "protected right" seems to bring into play the possibility of two classes of right. Some who have a licence may find themselves without a right if it becomes necessary to empower only those with a protected right.

I am puzzled by one other matter. Why does this clause talk of only exactly 20 cubic metres? How many licensees extract exactly 20 cubic metres, as is suggested by the wording in the provision? Why should they be more entitled to a protected right than is someone extracting, say, 21 cubic metres?

What does new Section 39A mean? Under Section 27A, the Secretary of State has power to vary the small quantity threshold. Is the effect of new Section 39A to ensure that he cannot reduce it? I beg to move.

Lord Whitty: I think that we have already touched on this issue as well. The issue of protected rights relates to those who are protected prior to the previous legislation. We do not want to interfere with that. Nor are we attempting to create new protected rights under this legislation. The approach taken in the Bill is therefore to keep the protected rights as they were under the earlier legislation.

The implication of Amendment No. 50 is that there would be more protected rights if the threshold were increased and, despite previous legislative protection, fewer rights if the threshold were decreased. That does not deal with what is effectively only a residual problem, albeit a significant one, concerning those who had rights prior to 1991, whose rights will continue to be protected under this legislation. Anything that alters that would unravel the previous protection. It would threaten that protection or suggest that there are additional protected rights which are not an extension.

I therefore believe that the amendment is misconceived. It would not help those who currently have protected rights or provide clarity on the future licensing system.

Baroness O'Cathain: What about 19 cubic metres or 19.5 cubic metres? The provision seems to deal with exactly 20 cubic metres—or am I being completely stupid about this?

Lord Whitty: The abstractors are able to take no more than 20 cubic metres without a licence. Their protected rights in the previous legislation are therefore limited to that.

Baroness O'Cathain: The provision refers to abstractions,

    "amounting in aggregate to twenty cubic metres".

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I am simply asking whether that could be 19 cubic metres.

Lord Whitty: To which wording is the noble Baroness referring?

Baroness O'Cathain: Lines 11 and 12 on page 20 refer to a,

    "series of abstractions amounting in aggregate to 20 cubic metres".

Do they always have to hit the total of 20 cubic metres?

Lord Whitty: No. There is a protected right to an abstraction,

    "amounting in aggregate to twenty cubic metres".

In other words, if you exceed an aggregate of 20 cubic metres, you would lose the right. If you are below that, then you are still within the protected right.

The Duke of Montrose: I thank the Minister. I think that it would be much clearer if the Bill stated that the amount was up to 20 cubic metres.

Lord Borrie: As is so often the case, the Explanatory Notes are clearer than the Bill.

The Duke of Montrose: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Byford moved Amendment No. 51:

    Page 20, line 26, leave out "four" and insert "seven"

The noble Baroness said: In moving Amendment No. 51 I shall also speak to Amendment No. 64. Although the two amendments affect different parts of the Bill, both deal with the proposal to reduce the time limit from seven years to four years. There are many concerns about the effect of the time limit, one of which is to do with agriculture. The Minister will know well that the Government are encouraging farming to make a come-back and perhaps to develop in a more sustainable fashion. One of the ways of achieving that is to ensure a longer rotation of crops. As many noble Lords will know, infection can recur from one crop to another. Longer rotation periods and greater crop diversity can decrease re-infection.

A reduction in the time allowed for non-use would affect unsupported sectors in agriculture that habitually do not use an irrigation licence for a seven-year period, for example, in order to meet crop protection standards. If the Bill implemented the reduction in the time period, many businesses would find it no longer commercially viable to continue to produce an irrigated crop. It would not be possible to reduce a crop rotation to only four years because of the risk of crop diseases such as potato cyst nematode and because of the requirements in assured produce contracts and with customers such as producers or supermarkets. At a time when we are trying to encourage and promote UK food production, it would be unfortunate to introduce legislation that disadvantaged such production.

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Potato growers in various parts of the country, including Humberside and Lincolnshire, have supplied us with examples of the potential implications for their businesses. The schedules to the Plant Health (Great Britain) Order 1993 provide for the conditions under which the land can be declared free of potato cyst pest. For seed potatoes, DEFRA guidance which must be adhered to prior to certification states that there should be a rotation period of a full seven years.

Furthermore, the European and Mediterranean plant protection organisations provide a standard that should be used for soil testing for such diseases. That standard confirms that there are cases where land should be left free of that particular crop for at least 10 years to ensure that it is disease free. Additionally, requirements in supermarket contracts with growers stipulate that onions require a six-year rotation period. If memory serves me correctly, the pea industry is subject to a cycle of more than four years. We must take into account both crop rotation and climate change.

I have a few questions for the Minister. Why has four years been chosen rather than seven? Why not five or six? Will this change be made by other EU countries? Have they implemented it? Why are they doing it? If they are not doing it, have the Government considered asking for a derogation for agriculture and horticulture? If not, why not? My comments directly apply also to Amendment No. 66, which will be considered later.

It is hugely important that the Government explain the reason for the proposed change. I look forward to the Minister's reply. I beg to move.

Lord Livsey of Talgarth: I strongly support the noble Baroness, Lady Byford, in this amendment. It is very important that her comments on rotation and disease are taken fully into account. As she said, there is a big difference between four years and seven years in sound rotation practice. Who has DEFRA consulted in deciding the reduction? Has it consulted the organisation LEAF, which has a function in this respect, or others who can offer sound advice? They might think that four years is too short a period for sound crop rotation and good quality production.

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