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Baroness Miller of Chilthorne Domer: My Lords, I did not say that people did not understand it, I said that those involved in planning, development, control and spatial planning were barely aware of it.

Lord Whitty: My Lords, perhaps I misunderstood. I thought that the noble Baroness said that people could not understand why the Water Framework Directive was not in this Bill. However, those same people have been consulted about the Water Framework Directive over a period of years, at least since March 2001—in some cases earlier than that because the directive was in a draft form.

It would require very special circumstances for us not to use the normal process, especially when we are 99 per cent of the way through it, rather than put in this Bill at this stage a particular form of ability to transpose a part—admittedly an important part—of the Water Framework Directive. I am afraid that I have not heard tonight or in earlier discussions any reason why we should depart from normal practice in that respect. I therefore hope that the noble Baroness will not pursue this matter tonight.

Baroness Byford: My Lords, before the noble Lord sits down, he said that legislation would be brought before Parliament next month. We have no more time in this Session. When we return we start with the Queen's Speech, which will take us to the end of the first week of December. Is the statutory instrument already written or is it not in being? If 99 per cent of it is ready, what is not ready?

We want it in the Bill because this is a major change; it is not a minor change. I suspect that many of the statutory instruments taken through in the normal

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way are of a minor rather than a major nature. That is why, on these Benches, we are trying to push the Minister further than he is obviously willing to go. Perhaps he could comment on my two questions.

Lord Whitty: My Lords, I am unsure of what else I can say. The fact is that we are well through the process of drafting, but it is not quite completed. It is scheduled to be in a form to place before Parliament next month. Everyone who has been consulted expects that to be the way in which we proceed. I do not understand why, either at earlier stages or now, we should propose to shove into the Bill a partial transposition trigger. As everyone recognises, the actual implementation will take time. It is a massive change to the way in which we regulate water. But the whole of it can be done under the European Communities Act in the normal way. The noble Baroness is wrong to say that it applies only to minor pieces of legislation. There are some serious Euro-sceptics on both our Back Benches who complain about it, but huge parts of European regulation are used in that way. It is the way in which Parliament and successive governments have seen fit to transpose European regulation.

Lord Livsey of Talgarth: My Lords, I am sorry to interrupt the Minister when he is in full flow. Is he saying, in code, that there are some legal procedural difficulties with incorporating the EC directive into UK legislation in the way that is proposed in the amendment and that he is prevented from accepting it because of legal advice?

Lord Whitty: My Lords, I am not speaking in code. There is no hidden agenda here. Our way is better than the partial way proposed by the noble Baroness.

Baroness Miller of Chilthorne Domer: My Lords, I thank the noble Baroness, Lady Byford, particularly for her support. I can understand the Minister having difficulty hearing me, but there is a very good reason why the "normal way", as he puts it, of transposing environmental directives—as I said at the beginning of my speech—is not satisfactory. We have the worst record in Europe.

That said, I am surprised that the Minister has not heard the voices from the consultations that came to me and to the noble Baroness, Lady Byford, from the industry, the utility sector and the environment, which said that it was important that the directive was in primary legislation. If there have been three consultations, surely it cannot have escaped the Government's notice that that is what everyone on the outside concerned in any way with water has been saying.

That said—bearing in mind that I cannot continue to speak for much longer because my voice will give out and that there is one further amendment I wish to move today—it is with great regret that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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On Question, Motion agreed to.


3Clause 3, Page 2, leave out lines 39 and 40 and insert—
"(i) transferring water to another source of supply; or
(ii) transferring water to the same source of supply, but at another point, in the course of dewatering activities in connection with mining, quarrying, engineering, building or other operations (whether underground or on the surface),
in either case without intervening use (a "transfer license");"
4Clause 4, page 4, line 7, leave out " "relevant" and insert " "the relevant"
5Clause 5, page 4, line 38, leave out paragraph (a)
6Page 4, line 40, leave out "such notices" and insert "notices of appeal under subsection (4)"
7Page 5, line 28, leave out "otherwise," and insert "in relation to England,"

Lord Whitty: My Lords, I beg to move that this House agrees with the Commons in their Amendments Nos. 3 to 7 In speaking to those amendments, I shall refer also to Amendments Nos. 8 to 35.

All but one of the amendments in this group are technical or drafting changes. I shall be happy to explain any of them if pressed to do so. They deal with issues such as tightening the wording of the Bill and do not introduce issues relating to any change of substance to the Bill when it left this House.

Amendment No. 3, however, amends the definition of a transfer licence to include movements of abstracted water from one part of a source of supply to another part of that source, as well as between sources of supply. The amendment arises from our discussions with the Quarry Products Association. It will ensure, for example, that a transfer licence rather than a full licence can be granted where water abstracted from one end of a quarry is reinjected into the aquifer at the other end and where there is no intervening use of the water. We have discussed this at some length.

The only other amendment not strictly related to technical or drafting issues is Amendment No. 8. This amendment removes the change to Section 29 of the Water Resources Act 1991 that was introduced by an amendment moved on Report in this House. I understand that the intention of that amendment was to ensure that in individual licensing decisions, the Environment Agency must consider how long irrigation has been practised and that applications are fully considered in that light. If that was the intention behind the amendment, we fully agree with it.

I am happy to make it clear to the House that when transitional regulations are made to bring irrigation under licensing control, the agency will be required, as a matter of law, to consider the history of the irrigation in question. Also, there will be a period of up to two years for licence applications to be made. Abstractions for existing operations will continue to be lawful during this period. It is government policy that the Environment Agency should not issue any other licence that might derogate a currently exempt

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abstraction for irrigation operations during the period. I can reassure noble Lords that the transitional regulations will include those provisions.

When considering a licence it will not, therefore, be a case of the Environment Agency putting applications for licences for irrigation to the bottom of the pile. The agency will be able to set aside some of its normal considerations when determining a licence, such as whether the licence will derogate on others' rights. Clause 103(5) provides for this.

These provisions are helpful to irrigators in just the situations which the original Amendment No. 15 tabled on Report in this House was intended to address. It is, in fact, dealt with in other ways.

I would also note that the Environment Agency will be discussing this with groups representing all abstractors being brought into the system; that will include irrigators. It has already issued a briefing note on trickle irrigation to clarify how the new regime will work.

I hope that noble Lords will agree that, with those provisions safeguarding the position of irrigators, the change originally agreed by this House to Section 29 of the Water Resources Act 1991 is not necessary and that the Commons amendment will be agreed.

Moved, That the House do agree with the Commons in their Amendments Nos. 3 to 7.—(Lord Whitty.)

On Question, Motion agreed to.


8Clause 9, page 10, leave out lines 36 to 39

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8.

Moved, That the House do agree with the Commons in their Amendment No. 8.—(Lord Whitty.)

Baroness Byford rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 8, leave out "agree" and insert "disagree".

The noble Baroness said: My Lords, I beg to move Amendment No. 8A as an amendment to Amendment No. 8. These amendments are very confusing and I hope that I am in the right place. The comments made by the noble Lord, Lord Whitty, have been quite helpful, but I should like to go over the ground again. I wish to speak to Amendment No. 8A with Amendment No. 3. I hope that that is in order.

The question of trickle irrigation was debated at length during the passage of the Bill through this House and I still have one or two observations that I should like to make. I should be grateful if the Minister could clarify a few points. We feel that existing users should be given priority over new applications. I have

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read carefully what was said in Standing Committee D by Mr Elliot Morley in response to our amendment on crop rotation. He said:

    "We understand that the intention behind the amendment was to ensure that, when the agency takes individual licensing decisions, it must consider how trickle irrigation has been practised. If that was the intention, we have no problem—it is not an unreasonable position to take".

The Minister has slightly clarified the matter for me and I am grateful for that. He continued:

    "When making transitional regulations that will bring trickle irrigation under licence control, we can include a requirement that the agency should consider the history of the irrigation scheme".—[Official Report, Commons Standing Committee D, 16/9/03; col. 76.]

I am grateful that that issue has been clarified but I am not clear whether in the overall scheme someone who had come in within, say, the last two years would take preference over someone who traditionally had been drawing water for a longer period in the past.

Obviously the Environment Agency will have to consider whether such people are using water efficiently and whether there is good practice. If they are not, that would be an extra reason for the Environment Agency not to renew their licence or, in this case, approve their licence.

We believe that extra consideration should be given to those who have had long practice. For example, it takes some 50 years to establish watercress beds and, although their water requirements are high, they would be very much at jeopardy if the amount of water allocated to them was withdrawn or not approved.

In moving the amendment to the amendment, I am seeking greater clarification on this issue. Why should someone who has had a licence since 2002—or has been in business; they have not needed a licence—take precedence over someone who has been using water without a licence because in the past the law did not require them to have one? Ministers at both ends of the Corridor have stated quite clearly that trickle irrigators did not require licences.

I am trying to clarify how the Environment Agency will go about its business. I accept the base premise that there must be good practice and efficient use of water but, other than that, I am not quite clear as to how people will be judged in the current situation. I seek greater clarification. That is the reason for bringing forward the amendment and I look forward to hearing what the Minister has to say.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 8, leave out "agree" and insert "disagree".—(Baroness Byford.)

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