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Viscount Ullswater: We have had such harmony until this moment. I know that there is a long history underlying the proposal in Amendment No. 378ZC. I also appreciate that my noble friend takes the view that enforcement actions by the NRA have been constrained by the law as it currently stands. However, we cannot accept the proposal which my noble friend has put forward for a legislative solution to the problems that the NRA has experienced. In the interests of brevity I shall mention only two major concerns in respect of the proposal.

First, we are not convinced that a legislative route is the correct one. In essence, the perceived difficulties stem from the nature of the consents that have been granted. I understand, however, that other regulatory bodies have developed consenting procedures which operate satisfactorily in these respects without the need for a legislative provision of the kind proposed. These bodies are, of course, now coming together in the agency. I am also concerned about the retrospective

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nature of the provision which would affect a substantial number of discharges. These concerns are all the more important given the very great variation in consents that have been granted by the NRA so that the effect of the change on a discharger would be dependent to a considerable extent on the wording which happened to be used in a particular consent perhaps granted many years before.

A legislative approach would also impose the change in respect of all existing consents without any of the safeguards that attend the usual process of modification, including the right of appeal. Perhaps in the interests of brevity I shall mention only one major concern in respect of the proposal.

Amendment No. 378B would introduce yet another element—the power to serve a prevention notice on a discharger if the agency considered that the continuation of the discharge, albeit under and in accordance with an existing consent, would carry an imminent risk of serious pollution—into the regulatory framework governing discharges to water. A prevention notice as envisaged in the amendment would be a fairly draconian measure modelled on the current powers of HMIP—and the future powers of the agency—to issue prohibition notices under Section 14 of the Environmental Protection Act 1990 in respect of prescribed processes. I do not think that adoption of this additional, and very strong, power is justified.

I say that for two main reasons. First, the provisions of the Environmental Protection Act 1990 already extend to risks of serious pollution from discharges to water, as well as air and land, from prescribed processes. It is already open to HMIP, and it will be open to the agency, to issue a prohibition notice under that Act to prevent a pollution incident. But these powers, which operate even where the process is operating in accordance with the conditions of its authorisation, are justified by the potentially dangerous nature of the processes and the substances involved. I am not convinced that this procedure should be extended to all discharge consents in respect of water.

Secondly, and this follows on from my previous comment, under the provisions of the Bill the agency will inherit the already extensive powers to control discharges to water currently operated by the NRA, including the power to prohibit certain discharges to water. We are adding to those powers through the enforcement notice procedure and we are considering extending the powers available to the agency to serve a notice on a polluter or a potential polluter, requiring the discharger to carry out anti-pollution works rather than the agency performing the works and then attempting to recoup the costs. I know that my remarks will not please my noble friend, but I hope that with what I have said he will feel content to withdraw the amendment.

Lord Crickhowell: My noble friend will be glad to hear that I am partially pleased because I have prompted him to put on the record the most hopeful aspect of the advice that his department has been giving the agency, particularly about a proposal to insert a new Section 161A to the Water Resources Act 1991. That is helpful and it may take us some way forward.

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As regards my first amendment and my noble friend's response, while I understand what he said and his reluctance to go down the legislative route, there is a problem. I have identified one possible way of solving that problem. Before the Bill becomes law we need a public explanation from government of what their alternative way would be for solving the problem if it is not to be done by legislation.

I have to tell my noble friend that there are literally many thousands of discharge consents in existence going back many, many years. If we do not have a legislative change it will probably be necessary to rewrite a very high percentage of them. Furthermore, knowing what happens then, there would almost certainly be appeals against the revisions. Over the past five-and-a-half years the department has not found itself able to deal with any of the very large number of appeals that have been issued against revised discharge consents.

Luckily, I shall not have any responsibility for the situation because it will be the job of the new agency. I shall have retired contentedly to an easier life. The new agency will be faced with a nightmare situation of ineffective consents, the Government refusing to find a solution to the problem and the condition of our rivers deteriorating. I understand why my noble friend is not accepting my amendment tonight and indeed I never thought for one moment that he would. I hoped that I might not even have to amend it because we might have some useful discussions. I beg him to note that this is a very serious problem and the Government will have to find a solution to it.

Viscount Ullswater: Before my noble friend withdraws his amendment, which I hope he will do, as regards his very detailed comments on the discharge consents I would very much like to look carefully at the points he made.

Lord Crickhowell: I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

[Amendments Nos. 378A, 378AA, 378B, 378BA and 379 not moved.]

The Earl of Lindsay moved Amendment No. 380:


Page 218, line 25, leave out ("Section 126(6) (which") and insert ("Sections 126(6) and 129(4) of that Act (each of which").

The noble Earl said: I spoke to this amendment with Amendment No. 352AA. I beg to move.

On Question, amendment agreed to.

[Amendment No. 380A not moved.]

[Amendment No. 380B had been withdrawn from the Marshalled List.]

[Amendment No. 380C not moved.]

The Earl of Lindsay moved Amendment No. 381:


Page 227, leave out lines 26 to 31.

The noble Earl said: I also spoke to this amendment with Amendment No. 352AA. I beg to move.

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On Question, amendment agreed to.

[Amendments Nos. 381ZA to 381A not moved.]

The Earl of Lindsay moved Amendments Nos. 382 and 383:


Page 231, line 22, leave out ("(3) or (4)") and insert ("(2) or (3)").
Page 231, line 27, leave out ("(3) or (4)") and insert ("(2) or (3)").

The noble Earl said: I spoke to these two amendments with Amendment No. 352AA. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendments Nos. 384 to 386:


Page 232, line 45, after ("authorities)") insert ("as it applies to Scotland").
Page 233, line 9, after ("Act") insert ("as it applies to Scotland").
Page 233, line 12, after ("Act") insert ("as it applies to Scotland").

The noble Earl said: This is a small group of amendments. Amendments Nos. 384, 385, 386 and 394, to which I should also like to speak, are clarifying amendments. Amendment No. 403 is a technical amendment. Amendment No. 395 is in line with our proposals to amend the period allowed for representations about proposals to issue a waste management licence. I beg to move.

On Question, amendments agreed to.

[Amendment No. 386A not moved.]

The Earl of Lindsay moved Amendment No. 387:


Page 233, line 40, leave out ("England or Wales, the Environment") and insert ("any part of Great Britain, the appropriate").

The noble Earl said: I spoke to this amendment with Amendment No. 222A on 31st January. I beg to move.

On Question, amendment agreed to.

10 p.m.

The Earl of Lindsay moved Amendments Nos. 388 to 393:


Page 233, line 46, leave out ("the Environment") and insert ("that").
Page 234, line 13, leave out ("England or Wales") and insert ("any part of Great Britain").
Page 234, line 27, after ("Wales") insert ("or Scotland").
Page 234, line 32, leave out ("England or Wales, the Environment") and insert ("any part of Great Britain, the appropriate").
Page 234, line 38, leave out ("the Environment") and insert ("that").
Page 236, line 16, leave out ("Environment Agency") and insert ("Agency to which it is given").

The noble Earl said: Again, I spoke to these amendments on 31st January when I dealt with Amendment No. 222A. I beg to move.

On Question, amendments agreed to.


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