Water Bill [Lords]

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Mr. Morley: That is absolutely right. In some circumstances different groups might approach the agency and demand that it take action on an abstraction, but they would have to be able to demonstrate the case for doing so. We are back to the point that the agency must be able to demonstrate that there is an environmental problem, and it must go through that process of trying to find other ways to deal with the problem. Ultimately, if a licence is withdrawn, the licence holder can go to appeal, where all those points will be examined, and if there is no evidence of a need to withdraw, the licence will not be withdrawn.

Safeguards are in place, but it is a question of evidence; it must be demonstrated that there is a problem. It is fair to say that there have been problems throughout the country. That is why we are introducing the Bill, which gives powers for dealing with those problems. I want to make it clear that dealing with the problem does not necessarily, in all cases, mean revoking the licence.

Norman Baker: The Minister said, in response to an earlier intervention, that an abstraction that was subject to proposed revocation could continue, subject to an appeal being heard. Can he clarify whether that will always be the case, or are there circumstances in which the agency would decide that the abstraction was so damaging to the environment that it would stop it?

Mr. Morley: That would be an extreme case. In the very rare circumstance where severe damage was clearly taking place—particularly on certain sites that have special protection, or where we have international obligations—the agency might seek to stop the abstraction immediately, if there was a case for it to do so. The hon. Gentleman has returned to the point that I made: there must be evidence, and a case for revocation. If there is evidence of extreme damage, the agency can stop the abstraction.

Norman Baker: I do not necessarily disagree with the agency having that power in extreme circumstances, but the Minister will appreciate the potential injustice. If the agency takes action that proves subsequently to be unjustified, someone will have had to stop his or her business activities. Where in the Bill is that power of the agency set out?

Mr. Morley: The powers for an extreme case is not set out in the Bill. The powers already exist because action would take place through an enforcement notice on environmental damage.

The Bill is about resource management. Good water resource management is good for water users in

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the same way that it is good for the environment. We have environmental responsibilities, and I am sure that the hon. Gentleman would not want to weaken the Bill so that there is no range of actions that can be taken in extreme cases of severe damage. There are checks and balances in the Bill and in the procedure that we must follow. The code of practice is dealt with in the agency's document, ''Managing Water Abstraction'', and will be updated in light of the Bill. It will involve local stakeholders through consultation, listening to their views and explaining the reasons for choices. That is right and proper.

Mr. Wiggin: Why, given that all that will take place, could it not form part of the Bill?

Mr. Morley: We have come back to the way in which legislation is established. We consult on the principles—a new process, I think. Then we legislate on them, and then there is separate consultation on the details of the regulations that implement the Bill. That is a fairly normal practice. The guidance in ''Managing Water Abstraction'' exists now. It will have to be updated, and I would like stakeholders to be involved in consultation on that; the agency will see to that. My hon. Friend the Member for Sherwood has a copy of the document.

Norman Baker: Without wanting to labour my point, I accept that there must be circumstances in which the agency can stop something immediately; that must be right in extreme circumstances. To take the power of planning law as an example, which the Minister is quite keen on this morning, let us imagine that a council issues a stop notice to prevent activity from continuing. Subsequently, that stop notice is challenged and the council is seen to have acted improperly or unjustifiably. The person on whom the notice has been served can claim compensation for loss of business or earnings during the period in which the notice was in force. Can the Minister confirm that if, in a parallel situation, the agency stops abstraction in extreme circumstances, and subsequently that action is successfully challenged, the person on whom the notice was served is equally able to claim compensation for the interruption to his business?

11 am

Mr. Morley: I do not claim to be a legal expert, but I imagine that if it was established on appeal that an action by the agency was unreasonable, it would be open to a claim for damages. That legal process applies in every case. I should also make it clear that an enforcement notice can be applied if the abstractor is abstracting outside the terms of its licence. That can be immediate. If it is considered that the damage is being caused within the terms of the licence, the processes outlined in the Bill will apply. I think that I am right in saying that there may not be an immediate shutdown because, as we established earlier, if a notice of revocation is served, that can be appealed, and—

The Chairman: Order. I have been rather lax and we have gone wide of the mark. Enforcement notices come under clause 32. I do not wish to be discourteous to the Minister, but we should stick to the amendments.

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Mr. Morley: You are right, Mr. Amess. I was responding to questions from members of the Committee, but we have gone away from clause 17 and the amendments, and there will be opportunities to discuss all these issues in due course.

There is a risk that referring to specific matters in the way proposed in amendment No. 226 would relegate other important considerations, such as environmental matters, to a lower level when dealing with applications. Again, we return to the balance in the Bill, which I think is right. I do not disagree with the principle behind a code of practice, but that is addressed in the agency's own codes of practice, which it produced through ''Managing Water Abstraction'' and which will involve consultation.

Mr. Wiggin: I am grateful to the Minister. I am somewhat calmed to know that the powers already exist and that the consultation will be so full and complete that the Government will deliver a proper code of conduct to the Environment Agency. However, he has touched a nerve. The agency has a priority to put the environment before the interests, perhaps, of people. I urge him to keep an eye on that, but in the interests of making progress, and because we may revisit the issue on Report, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.

Clause 18

Protection from derogation

Question proposed, That the clause stand part of the Bill.

Mr. Wiggin: I twitched there, Mr. Amess, and leapt to my feet because I am not sure whether this aspect of the Bill will be very helpful. Could the Minister say a little about the advantage of the protection from derogation?

Mr. Morley: The protection from derogation relates to some of the examples that were given. Mineral water companies or any other existing licence holders have certain priorities. That means that they are protected from derogation of abstraction that would affect their existing licence.

Mr. Wiggin: I am most grateful for that reply.

Mr. Lansley: I am slightly surprised that the clause limits the protection from derogation in relation to temporary or transfer licences. I am not quite sure that I understand. Obviously, if those licences are temporary, the requirement for protection will fall away relatively speedily in any case. If a licence has been sought and received from the agency, even if it is temporary and for transfer purposes, why should there not be a protection from derogation in the same way that applied in the past?

Mr. Morley: That is probably where a protected right is a device that operates to protect existing abstractors against later licensed abstractors. The clause identifies where those rights must be considered, for example by the Environment Agency in its determination of an application for an

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abstraction licence—that is a new occasion—or by the Secretary of State for a called-in application on appeal. Such abstractors include those whose licence will no longer be required under our deregulatory process—the time-expired ones that are not being used.

The clause also allows the agency not to have to consider protected rights when it is reissuing a time-limited licence on the same terms as an expiring one. The rights of others will have been taken into account when any such licence was originally granted. I think that that is the point that has been made. Those rights are not being ignored but have already been taken into account. If the clause was removed—I know that hon. Members are not suggesting that—the agency's obligation to respect those rights when granting new licences would be removed. That would be to the detriment of existing abstractors, whose ability to abstract would be prejudiced. Temporary abstraction licences, as laid out in the Bill, will be only for abstraction of 28 days or less, so they are not likely to have a large impact on the rights of existing abstractors.

Abstractions for the purpose of water transfer represent a non-consumptive use of water. Most transfer abstractions will be conducted simply for the purpose of such activities as dewatering in quarries. As such, there is often no significant consequence if there is derogation from such abstractions. The clause recognises that existing licensees have certain rights but there may be some temporary or other circumstances in which a licence can be granted that will not impact on them. That is all that the clause tries to do.

Question put and agreed to.

Clause 18 ordered to stand part of the Bill.

 

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Prepared 18 September 2003