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The Earl of Lindsay: I am glad that we have been able to get 18th century horseshoe tiles into the debate. Much of the debate has been about the less attractive forms of pollution, so it is good to cast our minds back in that way.

The first amendments in the group relate to SEPA's function in relation to drainage works. Amendment No. 152ZA, which has been tabled by my noble friend Lord Balfour and the noble Earl, Lord Kintore, seeks to prescribe on the face of the Bill types of drainage works for which consultation with SEPA is not required. Conversely, Amendment No. 154B would remove the Secretary of State's power to make regulations exempting those proposing to carry out specified types of drainage works from the consultation arrangements.

I do not believe that all drainage works are significant enough to warrant the imposition of these new arrangements. I therefore have great sympathy with the intention behind Amendment No. 152ZA. I am, however, afraid that the imprecise nature of the terms used in the amendment would jeopardise the successful implementation of the consultation arrangements.

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The Government's intention behind Clause 24 is to place on a statutory footing the consultation which is currently required as a condition of the payment of grant for drainage works from the Forestry Commission and the Scottish Office, and to extend the consultation requirement to other significant drainage works. I say to my noble friend Lord Balfour that Forestry Commission grants cover planting, and therefore specific conditions relating to drainage and other relevant matters are linked to the grants made.

The noble Lord, Lord Carmichael, the noble Earl, Lord Kintore, the noble Lord, Lord Beaumont of Whitley, and my noble friend Lord Elton are all seeking some pattern and rationale behind the exemptions that are likely to be made. "Why, and on what basis?", was asked. We envisage that the regulations will prescribe those minor drainage works where the risk of pollution is so low as to make the need to consult unwarranted, such as tile drains, and repairs to existing drains. In view of the need to prescribe clearly the types of works to be exempted, it seems appropriate for the Government to include the detailed provisions required in regulations rather than in the Bill itself. I can tell the noble Earl, Lord Kintore, that draft regulations will be brought forward in good time for consultation before the obligations in Clause 24 come into force. I can however assure the Committee that the Secretary of State will consult widely among interested groups over the detail of such regulations and exemptions.

Amendments Nos. 152A and 152B seek to change the locus of SEPA's interest away from the preventing of pollution to controlled waters to the effect of such works and the prevention of any environmental damage. The amendments would unduly broaden the agency's interest beyond that of its functions, and could result in it becoming embroiled in matters such as land use planning.

I can assure the noble Lord, Lord Carmichael, that the definition of "controlled waters", which seems to be the concern behind Amendment No. 153, is wide enough to cover the entire aquatic environment that might be affected by drainage works. I hope that gives him some comfort.

The term "pollution" can be seen very much in the context of harm and is a well understood term in legislation. Relying additionally on the term "damage", however, as suggested in these amendments might cause problems, given that it might be interpreted in too wide a sense. For example, any works which might affect a river course, for instance by widening it, could be argued to be damaging it in the sense that it is being altered.

There is no material difference between the provisions in Clause 24, "to take account" of SEPA views, and the amendment requiring "due regard". The amendment would not strengthen the amount of attention or weight to be applied to the agency's comments. There is therefore no reason for changing the existing provision.

Amendment No. 154A would however require SEPA "recommendations" to be followed. I do not believe that individuals should be compelled to accept, lock, stock and barrel, the views of SEPA, in respect of drainage, no matter how authoritative. It is for those carrying out such works to accept the final responsibility for their actions. If they were merely "following recommendations", that responsibility would pass inevitably to SEPA.

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Finally, Amendment No. 215 contains proposals for forestry works to take account of their effect on the environment, including the aquatic environment. The Forestry Commission already approves proposals only if they follow the forests and water guidelines. Those guidelines have been drawn up in consultation with water and fisheries interests, including the Scottish river purification authorities. In addition, the Forestry Commission has been directed by Ministers to consult statutory bodies before approving forestry proposals.

I am quite sure that those arrangements are sufficient to ensure that the river purification authority's views are taken into account before it approves any significant proposals. The river purification authorities' responsibilities would be assumed by SEPA and the commission's consultation arrangements would therefore be extended directly to the new agency.

I do not believe that there is a need for an inflexible statutory duty. The arrangements for taking account of the effects of forestry proposals on water have worked well and the Government will wish them to continue after the new agency has been set up.

I trust that I have been able to reassure the Committee that the land drainage arrangements provide the necessary safeguards against pollution. On that basis I would ask my noble friend to consider withdrawing the amendment.

5.45 p.m.

The Earl of Balfour: In view of the serious anxieties of landowners about the provisions of Clause 24, it would be a tremendous help if my noble friend would be kind enough to ask the Secretary of State, under Clause 24(2), to produce draft regulations as to how it will affect landowners and foresters. We should be in a much better position to know how much we shall be affected. There are some amazing cundies in stone varying from four inches square to those which are large enough for us to walk down easily, and which were built years and years ago. The problem is that when they give trouble, they give real trouble. I beg leave to withdraw the amendment.

Lord Elton: Before my noble friend does that, I did not hear what my noble friend the Minister said about Amendment No. 152A and the effect of such works. As I understood it, it is not a matter of pollution but of the loading of the river system. Perhaps my noble friend will write to me about that if he does not wish to reply now.

The Earl of Lindsay: Yes.

Amendment, by leave, withdrawn.

[Amendments Nos. 152A to 154B not moved.]

Clause 24 agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 155:


After Clause 24, insert the following new clause:

("Abstraction of water: control order

.—(1) The Secretary of State may make an order (referred to in this Part of this Act as a "control order") for the purpose of controlling, restricting or prohibiting any abstraction of water.

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(2) The Secretary of State may make a control order only on the application of SEPA, acting in pursuance of their duties under this Act.
(3) A control order shall apply to all inland waters or ground waters within an area specified in the order (referred to in this Part of the Act as a "control area").
(4) The power to make a control order shall be exercisable by statutory instrument.
(5) A person who abstracts water in an area to which a control order applies, or causes or permits any other person to abstract such water shall, subject to subsection (6) below, be guilty of an offence under this section.
(6) A person shall not be guilty of an offence under subsection (5) above if he abstracts such water under and in accordance with a valid licence under this Part of this Act.
(7) SEPA may grant a licence for the abstraction of water in an area to which a control order applies in favour of and on application by a person who is, or will be when the licence comes into force, the occupier of the land within a control area.
(8) Licences as granted in subsection (7) above shall be set in pursuance of SEPA's duties under section 7 of this Act.").

The noble Lord said: It may be for the convenience of the Committee to take also Amendments Nos. 156, 157, 158 and 158B. The purpose of Amendment No. 158B is to accord comprehensive abstraction control to SEPA. Water abstraction has a significant effect upon the cleanliness of rivers, inland tidal waters and the conservation of water resources. That matter is dealt with more fully in Clause 32.

For example, water abstraction affects directly the dilution ability of the water. If the river flow is allowed to get too low, it is unable to dilute sewage effluent and therefore the river purification board cannot guarantee water quality. Abstraction can also have a damaging effect upon the aquatic environment, at times leaving rivers dry and lifeless. The shoreline can be reduced to bare mineral substrates without vegetation.

RPBs licensing powers are limited currently to the promotion of irrigation control orders under the Natural Heritage (Scotland) Act which we dealt with in this place a few years ago. That control order mechanism is wholly unsatisfactory and inadequate. First, it is reactive in nature. Abstraction cannot be controlled until the damage has been caused. Furthermore, the Scottish Office has made it clear that designation of extensive control areas in anticipation of problems will not be allowed.

Secondly, it is time consuming. Experience has shown that it can take two years or longer to obtain a control order. Perhaps the Minister will be as surprised as I was to learn about that. Thirdly, it is limited to irrigation. SEPA must be able to control all types of abstraction. Due to those factors, and despite indications that the problem is far more widespread, only one control area has been established in Scotland. It is easy to foresee that a financially constrained SEPA will not allocate resources to this labour-intensive and unrewarding process unless it is forced to do so in a crisis.

Previously, the Scottish Office argued that Scotland has sufficient water and therefore does not require overall abstraction controls. It is true that Scotland has a lot of water but there are periods of considerable difficulty, in particular in the south west. However, the Government have concluded that selective abstraction

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controls should be produced following discussions with the EC on groundwater protection. Obviously, that will take several years, leaving SEPA without the powers necessary to perform its duties under Clause 33. Will the Minister say why SEPA has not been given the abstraction controls necessary for the proper performance of its duty?

Subsection (1) of the proposed new clause, set out in Amendment No. 155, provides:


    "The Secretary of State may make an order (referred to in this Part of this Act as a 'control order') for the purpose of controlling, restricting or prohibiting any abstraction of water".

The notes that I have been given on the new clauses are rather long-winded and I am sure that the Minister has already seen copies. Therefore, I shall briefly outline the intention of the new clauses. Subsection (2) provides that:


    "The Secretary of State may make a control order only on the application of SEPA, acting in pursuance of their duties under this Act".

Subsection (3) provides that:


    "A control order shall apply to all inland waters or ground waters within an area specified in an order (referred to in this Part of the Act as a 'control area')".

Subsection (4) provides that:


    "The power to make a control order shall be exercisable by statutory instrument".

Subsection (5) provides that:


    "A person who abstracts water in an area to which a control area applies, or causes or permits any other person to abstract such water shall, subject to subsection (6) below, be guilty of an offence under this section".

Subsection (6) provides that:


    "A person shall not be guilty of an offence under subsection (5) above if he abstracts such water under and in accordance with a valid licence under this Part of this Act".

Subsection (7) provides that:


    "SEPA may grant a licence for the abstraction of water in an area to which a control order applies in favour of and on application by a person who is, or will be when the licence comes into force, the occupier of the land within a control area".

Finally, subsection (8) provides that:


    "Licences as granted in subsection (7) above shall be set in pursuance of SEPA's duties under section 7 of this Act".

That gives SEPA the power to license the abstraction of water in areas which have been identified as control areas. Is that not a way around the problem of the authority having too much power? Perhaps a fair amount of trouble would be saved if there were control areas over which it had discretion. I beg to move.


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