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17 Mar 2010 : Column GC229

Grand Committee

Wednesday, 17 March 2010

Flood and Water Management Bill

Committee (1st Day)

3.45 pm

The Deputy Chairman of Committees (Lord Brougham and Vaux): If there is a Division in the Chamber while the Committee is sitting, we will adjourn as soon as the Division bells ring and resume after 10 minutes.

Title postponed.

Clauses 1 and 2 agreed.

Clause 3 : "Risk management"

Amendment 1

Moved by Lord Cameron of Dillington

1: Clause 3, page 3, line 8, at end insert-

"( ) entering into voluntary financial arrangements with landowners to keep specified fields ready to receive and hold back water in time of flood and to pay additional compensation for crop loss and soil damage when such flooding occurs"

Lord Cameron of Dillington: For the purpose of the whole Committee stage of the Bill, I declare my interests as a farmer, landowner and as a member of the CLA and NFU.

Clause 3(3) contains a long list of arrangements that can be made in connection with flood risk or coastal erosion risk management. I realise that the list is not, as the Explanatory Notes say, exhaustive or limiting. As I said at Second Reading, I was surprised that there was no mention of the one recourse against flooding that serves to hold back the water of a catchment as opposed to merely accelerating it around the sensitive areas. Clause 3(3)(b) mentions,

but that does not really cover it. We are not necessarily talking about natural processes. Perhaps I can explain.

I am proposing a series of voluntary arrangements or agreements entered into willingly by two separate parties. The local authority enters into a contract with the landowner or farmer who is paid to prepare a field, fields or water meadows for flood relief. There are many examples of what it could be; the local authority might want to dig a two-foot bank around a group of fields or the edge of a field, or the farmer merely puts a 9-inch ploughed strip around the field. It could also involve sluices or a pump where the water can be pumped away from the river or into an area that can hold the water, not necessarily adjacent to it. The farmer is then paid an annual retainer for holding his land in readiness for such an eventuality. When flooding occurs or is likely to occur, the farmer, at a signal, or the local authority, floods the relevant area of land. The farmer gets extra compensation for the loss of his crop, including a profit, as well as for any soil damage that might occur. It will not always be

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appropriate. Sometimes concrete is the only solution. As I said at Second Reading, in a big river, hard defences and the inevitable acceleration of water downstream can only cause extra problems for those at the bottom end of a catchment.

Therefore, any decent local flood risk management strategy should consider such soft defence mechanisms wherever possible. It seems to me that, in an admittedly non-exhaustive list, which contains 10 possible options, to have no mention at all of modern soft flood defence mechanisms is remiss. As the one form of defence that is truly sustainable and helps to relieve a whole catchment, as opposed to putting in a quick fix for some localised built-up area, such soft flood defence mechanisms are worthy of consideration. I beg to move.

Lord Greaves: My Lords, I have Amendment 2 in this group, which would add to the end of Clause 3(3),

The noble Lord, Lord Cameron, referred to the list not being exhaustive or limiting. It is clear that it is not because of the way in which it is phrased, but it is a very strange clause. I support the noble Lord's amendment, which seems entirely sensible.

Clause 3(3) is a very odd bit of the Bill. It starts off by stating:

"The following are examples of things that might be done in the course of flood or coastal erosion risk management".

It gives an exemplification of the powers that the risk management authorities will have. I have never seen anything like it in a Bill before. When putting forward these things, the Government veer between two different points of view. Sometimes, they set out clear powers-sometimes, they are duties-for authorities, showing what they are able to do. In other cases, they will not provide such a list-we are always being told that the Government do not like lists. Very often, the Government will put forward some very general powers for a body that they are setting up; opposition parties will put forward all kinds of additional things that they think should be in a Bill; and the Government will say, "No, that's a list. We don't like lists". They do not like lists because there is a real danger that they will at some point be regarded as being exclusive. Even if the wording is very vague, such as a list of examples of things that might be done-which hardly confers a power; it is just an exemplification-people will say, "No, that isn't in the list and therefore the Government really didn't mean it to happen". When matters reach the courts, as they sometimes do, the court may well take the view that things set out in the legislation were clearly intended and other things were not.

My amendment, first, draws attention to the unusual wording of the subsection; that is:

"The following are examples of things that might be done".

It is extraordinary wording to have in primary legislation. It is almost as if one is writing an article about the legislation halfway through it.

Secondly, the amendment makes it absolutely clear that while the actions listed in the subsection are no doubt worthy and desirable, there may nevertheless be lots of other things which could be done. The fact that the list, unusually, is in the Bill does not mean that other things cannot be done.

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Lord Taylor of Holbeach: My Lords, it occurs to me how appropriate it is that we are here discussing flood and water management in, of all places, the Moses Room. I start by declaring my interests. They are fairly extensive, I regret to say, in this case, but the House asks us to declare them in Committee. I am a landowner, farmer and grower, working in a family farming business-it is just three metres above mean sea level, so drainage is very important to it. We are members of the National Farmers' Union and the Horticultural Trades Association, both of which have made submissions on the Bill. I am a member of a number of other bodies connected with farming and horticulture which have a general interest in the Bill. More directly, however, I am vice-president of the Association of Drainage Authorities, which represents the engineers and administrators of bodies engaged in flood and water management. Specifically, my nephew is one of my co-directors in the family business and is an elected member of the South Holland Internal Drainage Board, which is in turn part of a consortium of drainage authorities in eastern England called the Water Management Alliance. We are also, as a family business, members of the Holbeach Marsh Irrigation Co-operative, which plans to manage the water supply to some of the country's most productive agricultural land.

I thank the noble Lord, Lord Cameron, for opening our scrutiny of the Flood and Water Management Bill with this first amendment, which goes straight to the question of what happens when flooding occurs. As has been said numerous times, the Bill is, on the whole, a good one and rightly has widespread support. The Pitt recommendations for dealing with flooding cannot be implemented soon enough and we look forward to getting the legislation in place.

Plainly, we hope to minimise the disruption caused by flooding because we know that from time to time-indeed, perhaps increasingly frequently-floods will occur. It is therefore very sensible of the noble Lord to raise the question of what arrangements are put in place in the event that a flood does happen. Clause 3 gives a very helpful list of suggestions of what risk management might include. There are 10 suggestions in Clause 3(3), which one imagines were put in by the Government as a guide as to what the Environment Agency and local authorities should be considering when they develop their risk management strategies. The Bill is reasonably carefully worded to make it clear that these are examples, which of course may not be suitable in every circumstance.

The noble Lord has added his amendment to that list, so that those responsible for framing the strategies might also consider coming to an agreement with landowners to make preparations for land to hold flood water when needed. The suggestion is a good one. Plainly, when a flood occurs, water will go somewhere. Why not then plan ahead so that identified fields can be kept in preparation? The better prepared we are for flooding when it happens, the better we ought to be able to ameliorate its consequences. There are washlands in the Fens which serve exactly that purpose, and the owners and occupiers of that land are well aware of the use to which it might be put at a time of crisis.

I am interested in the noble Lord's proposal that the arrangements, which would be voluntary, must

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recognise the financial impact on landowners. In the recent Cumbrian floods the devastation wrought was widespread, and it will take a long time, if ever, to get back to normal. I spoke to one farmer whose land was inundated and was afterwards left strewn with what officials described somewhat euphemistically as "gravel" but which you or I might classify as boulders and which logistically will be very difficult, if not impossible, to remove. The economic consequences for that farm and for the area in general will be long-lasting. If an arrangement can be made so that use is made of flooded fields as a sort of holding area for flood water so that the landowner sees a benefit, that might help to ease the situation.

I note that the noble Lord's proposals are voluntary so far as concerns remuneration. I suspect that that is the right approach and that it would allow flexibility in different situations. This flexibility is the key to risk management, given that it would be absurd to try to micromanage it in legislation. The list of examples is useful for reference but should not become a binding or definitive checklist. The noble Lord, Lord Greaves, is right, too, to point out with his Amendment 2 that the list is not exclusive but that it can and should be augmented with approaches that suit local circumstances. I cannot help but sympathise with him about the inconsistency of the Government's position on this list in particular and their position in general on lists in primary legislation when either he or I seek to introduce them.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Davies of Oldham): My Lords, I am grateful to the noble Lords who have spoken and for the constructive beginning that we have made. I assure the noble Lord, Lord Taylor, that it is entirely appropriate that we are in the Moses Room; there is no division between us on this amendment. Just as Moses was the unifier of his people, I hope that I can unite the Committee on this group of amendments.

With Amendment 1, the noble Lord, Lord Cameron, is seeking to provide for financial arrangements to be entered into with landowners to keep certain fields available for flooding with compensation payable for losses suffered. I assure him that we have absolutely no argument to make against this concept. I want him to withdraw the amendment because I assure him that it is unnecessary. The practice is already permitted as a method of managing flood risk under the broader range of works powers in Schedule 2-which is important in relation to these issues-combined with the incidental powers of these authorities to enter into agreements, and powers to give grants under Clause 16 or existing statutory powers.

4 pm

The flood risk management authorities also have the powers, under the Environment Act 1995 and the Land Drainage Act 1991, to acquire land and interests in land which will allow them to take precisely the action to which the amendment of the noble Lord, Lord Cameron, refers. If I thought that the amendment was necessary because the legislation does not provide for meeting exactly the point that is indicated by the

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noble Lord, Lord Cameron, I would take a different view. However, it is unnecessary because the powers are there.

That is also the case with the amendment of the noble Lord, Lord Greaves. I understand that he described government Bills as the famous Morton's fork. They are either too detailed, in which case it is necessary to add to the list an objection to prescription, or they are too loose and, therefore, he wants them defined more accurately. I can never make the noble Lord, Lord Greaves, entirely happy with any approach to legislation that we produce, but I hope I can make him happy at least with regard to this amendment. We do not need the words "not ... an exclusive list" because that is exactly how the legislation is constructed. The first sentence of Clause 3 makes it quite clear that this is not an exclusive list. It is a list which clearly identifies key areas. Noble Lords should appreciate the obvious fact that the Bill provides for a change in the approach to flood and coastal erosion risk management. The list in Clause 3(3) provides for a better understanding of the sort of approaches that might be used. It is not meant to be exclusive.

We are creating legislation that we trust will stand the test of time, as I have indicated in the well attested case of the noble Lord, Lord Cameron. We need to ensure that we have the powers for that. I can assure the noble Lord of that. I hope the noble Lord, Lord Greaves, will therefore forgive us on this occasion for having produced a description of the kind of powers that are necessary. It is not drafted as an exclusive list and, therefore, does not need the noble Lord's amendment to make clear what is already in the clause. With those assurances, I hope the noble Lord, Lord Cameron, will feel able to withdraw his amendment.

Lord Greaves: I thank the Minister for stating clearly that it is not an exclusive list. Perhaps he will be quoted sometime in the future when somebody claims that it is. If that is the case, I will have achieved what I wanted to achieve today.

I thank the Minister for his kind remarks about the fact that I always look at legislation critically. The Minister talked about Moses. When I started teaching, some of my pupils called me Moses, at a time when my hair was much more luxuriant than it is now, on top, at the back and under my chin-a bit more like that of the gentleman in the picture. If I had been around when Moses brought down the tables of law to the Israelites, I would have wanted to move some amendments to those tables.

Finally, I forgot to declare my interest at the beginning of this new stage, as I often do. I declare an interest as a member of a local authority, which, if this legislation goes through, will become a risk management authority.

Baroness Byford: I ask the noble Lord for some clarification. I declare my family's farming interests. We are not directly involved in any aspect with regard to this Bill, but the interest should be declared. The Minister said that there are already existing powers in existing Acts, which I am happy to accept. Are those powers voluntary or compulsory? Could one local authority take a different view from another? Clearly, it would seem unfair if different sets of rules apply in different circumstances.

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Lord Davies of Oldham: My Lords, we produced the list because those are the most likely areas of activity. However, as I have indicated, we already have legislation in place which also covers these activities. We have great experience in this area and this constructive Bill takes us a considerable stage forward. That is why it has been welcomed on all sides.

The powers to which the noble Baroness referred are permissive powers for the authorities. I do not think that she would want them any other way. They are about local decision-taking and local discussions with local interests-that is the way in which the noble Lord, Lord Cameron, identified the necessity-and it would be the responsibility of the locally based authority to reach a decision. For obvious reasons, we would shy away from imposing this position upon the local authorities. The noble Baroness may feel more secure with the compulsory aspects-the noble Lord, Lord Cameron, would be quite fertile in giving illustrations of how these might work in a particular local authority-but they would have to be considered at a local level. That is why we have made it discretionary in those terms.

Baroness Knight of Collingtree: My Lords, perhaps I might briefly seek enlightenment. I have tried carefully, through reading the whole of the Second Reading debate and these amendments, to understand the position. However, I have a query in my mind and I should like to be absolutely clear about the precise situation. The noble Lord, Lord Greaves, mentioned that this function would be the responsibility of the local authority. However, in connection with the amendments we are discussing, the make-up of the risk management bodies is still not clear to me. Is it the case that the responsibility for sorting out this function will be on the shoulders of the local authority? Will an extra local council committee be set up to deal with it?

Aligned to that, in many parts of the Bill which refer to the precise activities with which these committees will have to deal, "coastal erosion" is lumped together with "flood management". However, there are many parts of this country which have no coastline and are hundreds of miles away from the problem of coastal erosion. Later in the Bill there are references to "or" coastal management but here it refers to "and" coastal management. I do not want these committees to be loaded with coastal erosion difficulties when their areas will not have those problems. Can the Minister be clear about this: will they be totally local authority people or will others join them? Will their remits cover only matters which are quite clearly in their area, and will they not have to bother with other matters which are not?

Lord Davies of Oldham: Without going through the Bill clause by clause and itemising the words I cannot reply in full to the noble Baroness. However, we have a plethora of amendments which identify the relative powers and where the boundaries are drawn. We will certainly clarify these issues during our debates in Committee. I know that the noble Baroness has the closest possible historical and current associations with the city of Birmingham, but we are not including it within the framework of a coastal authority. However,

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as the noble Lord, Lord Taylor, said, a local authority will be involved in the coastal risk position, although the Environment Agency has greater responsibilities than it may have.

I have a brief description that may help the noble Baroness, but I am shying away from going through every clause that identifies the relationship. However, the Bill provides for lead local authorities-counties or unitary authorities-to be responsible for the surface run-off, groundwater and minor water courses. Responsibility for coastal erosion remains with the maritime districts-not Birmingham, as far as I know. I know that Birmingham stretches on water as far as Elan Valley, which is fairly deep into Wales, but it does not stretch to the coast. The Environment Agency retains its responsibility for that crucial aspect: coastal erosion. That is the best I can do for the time being, but we will clarify these issues. The noble Lord, Lord Taylor, and other noble Lords will make sure that we do that in our deliberations.

Lord Cameron of Dillington: My Lords, I thank the Minister for his reply to my amendment. I realise that what I am proposing is possible in the current circumstances and after the Bill has gone through. However, I believe that if a clause gives examples of things that might be done in the course of flood risk management, some reference to soft flood defence mechanisms would be beneficial. All too often, engineers revert to their old training, work in a framework in which they feel comfortable and in which they understand the risks involved and go for the concrete solution. I realise the proposition I put forward is only an example of soft defence mechanisms, but some mention of them would be beneficial. I hope that the Government will give some thought to the views put forward in this debate. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2 not moved.

Clause 3 agreed.

Clause 4 : "Flood risk management function"

Amendment 3

Moved by Lord Davies of Oldham

3: Clause 4, page 3, line 20, after "function" insert ", under an enactment,"

Lord Davies of Oldham: My Lords, I shall speak also to Amendment 5, which is also a government amendment. I shall then restrain myself from commenting on the amendments tabled by the noble Lords opposite before they have the chance to deploy their case. I shall address myself to those points when we reach the concluding remarks.

Amendments 3 and 5 are in response to the Delegated Powers and Regulatory Reform Committee report. I emphasise again how grateful we are to that committee for the enormous work it does and the guidance it offers us when we are considering Bills at this stage. The committee recommended that the order-making powers in Clause 4(2)(f) and Clause 5(2)(c), which enable the Secretary of State and Welsh Ministers to

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add new risk management functions, should be confined to adding statutory functions only. As currently drafted, the power could, for instance, allow the addition of administrative functions. This would mean that Parliament and the National Assembly for Wales would have the opportunity to consider the appropriateness of a function in the course of the parliamentary procedure relating to the legislation creating those functions. This recommendation accords with the way that we intend to exercise this power, which is why we are entirely happy to accept it. The amendments we propose confine the power to add new risk management functions to statutory functions of risk management authorities. I shall listen to the arguments noble Lords make in advocating their amendments. I beg to move.

4.15 pm

The Duke of Montrose: My Lords, on behalf of my noble friend Lord Taylor of Holbeach, I shall speak to Amendments 4 and 6 in this group. I should declare an interest as a landowner, although not as one affected by this legislation. The first two clauses of this Bill spend time defining flood, erosion and risk in the most all-embracing terms that one can imagine-specifically, in terms of,

We now move on to "risk management" and risk management functions. As far as I am aware, this is the first legislation to have the question of risk and safety brought into it and the first, in that regard, to deal with coastal erosion and flooding in general. As the Minister will be aware, it is not exactly the first in the case of dams and reservoirs. I declare an interest as the owner of a reservoir, which has been subject to the current inspection regime.

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