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Lord Whitty: My Lords, the noble Baroness, Lady O'Cathain, raised a number of points which go beyond the terms of the alternative amendments. Clearly, there is a serious situation in the South East. We recognised that in this House and during the course of this Bill. The water resource plans, parts of which are reflected in the Bill, are aimed at ensuring that long-term planning of water supply meets the demand. The restrictions on abstraction, the powers given to water companies, the requirements on them to have drought plans, and their powers of persuasion and ability to impose, for instance, hose-pipe bans all go together to mitigate the potential water shortages in areas such as the South East. Water companies can also require the metering of new developments, which also helps the situation.

I am not trying to belittle the problems in the South East, but there are a number of different measures—

Baroness O'Cathain: My Lords, I am grateful to the Minister for giving way. In the case of new housing developments, water companies can ask for meters to be installed but it is not a statutory requirement. That would help.

Lord Whitty: My Lords, no, but in practice water companies take advantage of the ability, in particular in the South East. New developments could be covered by that. However, we are talking about encouraging water conservation and the argument is about where, and the form in which, the provision should appear in the Bill. I interpreted the noble Baroness as saying that she had no real objection to Amendment No. 82, merely its place in the Bill. We could always argue about that, but the problem with putting it where she should wish it—as an additional amendment to Clause 1—is that Part 1 is described as "Abstraction and impounding" and it deals with restrictions on impounding. On the other hand, as regards some of the more general provisions in Part 3, the duty on conservation would apply more widely.

Ultimately, where we put the provision in the Bill is to some extent a matter of taste because every part of the Bill has the same legal significance. The more important objection to the noble Baroness's amendment is the form in which Clause 1 came out of the House and has been deleted in the Commons amendment. It states that:

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    "The Secretary of State shall have a duty to devise and implement measures to ensure that all entities and persons who use water do so without wasting it".

That is a somewhat wider power than others given to the Secretary of State in the Bill. It could cut across powers which are given to other entities in the Bill. The term "entities" here is not described and the term "persons" could mean that the Secretary of State in some sense has the ability to check the level of water in our baths or the number of showers we take per day. That may be at the extreme end of interpretation, but it is a legitimate and logical interpretation of this clause because there is no limitation on it; nor are any powers, other than those already in the Bill or in existing legislation, given to the Secretary of State to carry out that rather wide-ranging duty.

The other reason for placing the provision in Part 3 of the Bill is that that would apply to all aspects of water legislation. It would apply to parts which amended the Water Industry Act and those which amended the Water Resources Act. Therefore, the key issue is that the new clause, which would place a duty on the Secretary of State to carry a responsibility for water conservation, would apply throughout all the powers which accrue to the Secretary of State in the Bill, but it does not imply that she would have more powers, nor that her powers might override the powers given statutorily, for example, to the Environment Agency and the regulator. Those are prescribed separately in the Bill and in previous legislation.

That is my objection to keeping Clause 1 as it stood when we last saw the Bill. My objection to it being in this place in the Bill is perhaps more marginal. There are obviously advantages to having the duty up front but, in practice, that would limit its application to the areas covered by Part 1, which includes amendment to one piece of legislation but not the other.

Baroness Byford: My Lords, I thank both the noble Baroness, Lady Miller of Chilthorne Domer, and my noble friend Lady O'Cathain. I particularly thank my noble friend Lady O'Cathain because she explained in great detail why she considers this amendment to be important.

I listened with care to what the Minister said but I am afraid that he has not convinced me either way. I believe that I quote him correctly. We shall have to wait until we read Hansard tomorrow before we can be sure, but I think that he implied that the Secretary of State should not have powers to override other people who have responsibilities. I believe that the Secretary of State should be able to do that. Ultimately, someone must be able to do so.

The Minister said that his feelings about where the clause appeared in the Bill were "marginal" but that he was not so concerned about that matter. However, I believe that the Secretary of State should have the power to dictate other aspects of responsibility in the Bill. I am not very happy with the answer that I have been given and I believe I should seek the opinion of the House.

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8.3 p.m.

On Question, Whether the said amendment (No. 1A), as an amendment to the Motion, shall be agreed to?

Their Lordships divided: Contents, 43; Not-Contents, 72.

Division No. 6


Addington, L.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Barker, B.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Byford, B.
Cope of Berkeley, L. [Teller]
Craigavon, V.
Dholakia, L.
Dixon-Smith, L.
Geddes, L.
Glentoran, L.
Hamwee, B.
Hanham, B.
Higgins, L.
Howell of Guildford, L.
Livsey of Talgarth, L.
Luke, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Newby, L.
Noakes, B.
Northesk, E.
Northover, B.
O'Cathain, B.
Onslow, E.
Palmer, L.
Pearson of Rannoch, L.
Phillips of Sudbury, L.
Razzall, L.
Rennard, L.
Roper, L.
Seccombe, B. [Teller]
Selborne, E.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Thomas of Walliswood, B.
Wallace of Saltaire, L.
Williams of Crosby, B.


Acton, L.
Alli, L.
Amos, B. (Lord President)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Burlison, L.
Carter, L.
Chandos, V.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
Davies of Oldham, L. [Teller]
Donoughue, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Gale, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Graham of Edmonton, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hayman, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
King of West Bromwich, L.
Lea of Crondall, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mallalieu, B.
Massey of Darwen, B.
Morgan, L.
Parekh, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rogers of Riverside, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Stone of Blackheath, L.
Temple-Morris, L.
Turnberg, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly. On Question, Motion agreed to.

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8.13 p.m.


2Clause 2, page 1, line 7, leave out Clause 2

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. The government amendment removes Clause 2 from the Bill that left this House. Clause 2 placed a duty on the Secretary of State to make regulations to implement aspects of the Water Framework Directive. That clause as it stood when it left this House did not transpose the directive and in some respects went beyond its requirements. An enabling power to transpose the directive already exists in the European Communities Act 1972. The Government published a third consultation paper, in August, with proposed draft transposing regulations. October marked the end of successive government consultations on transposition, which started in March 2001.

As with most European legislation, it has been the longstanding practice, agreed in the House and used by successive governments, to transpose European legislation using the European Communities Act. The regulations will of course come to Parliament in the normal way.

The Government obviously are already under a legal obligation to implement the directive because it is a piece of European legislation. No specific provision along the lines proposed in Amendment No. 2A is necessary. Indeed, it would duplicate the powers under the European Communities Act.

The Government's proposed regulations to transpose the directive, which were published in August, already contain regulations transposing Articles 5 and 8, to which the noble Baroness's amendment refers. The corresponding draft regulations are already there. No further provision along the lines of subsections (2) and (3) of the amendment is therefore needed in the Bill.

I therefore hope that the noble Baroness, and others who support the amendment, will recognise that it would be counterproductive and duplication to provide this provision under the Bill, and that the normal procedure should apply to the Water Framework Directive as it applies to the vast majority of European legislation and regulation.

Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Whitty.)

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