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Lord Whitty: The bulk of the amendments and the clause to which they refer relate to the disapplication of the Reservoirs Act 1975. That Act applies to reservoirs that hold or are capable of holding 25,000 cubic metres above the natural water level, so it would not apply to reservoirs below the water level and the question of disapplication would not arise. For flood prevention and water management purposes, some of the other provisions of the Act apply to all the other reservoirs, but they do not apply in this respect.
It is also true that some of the reservoirs above the water line may not be capable of carrying the level of water for which they were designed, owing to various changes such as siltation, or may not present a serious safety risk. The current provision means that reservoir panel engineers operate a system that considers the sites on the basis of quantified risk assessment. That would meet the purposes of Amendment No. 178, as reservoirs could be classified according to risk assessment rather than size. However, we are some way off the possibility of doing that across the board at present, so exceptions should be on an ad hoc basis rather than total disapplication. Although we understand some of the arguments behind that amendment, it would not be appropriate in the Bill.
Amendment No. 179 deals with consultation in relation to the part of the Reservoirs Act that relates to national security. In all other respects, any action to constrain the applications of the Act would be subject to consultation, but when we are dealing with an issue of national security, the clause would mean that consultation would necessarily have to take place. We do not have to spell out why we are more concerned about national security in relation to water supplies than we were when the previous legislation was made. In those circumstances, it would be inappropriate to insert a reference to consultation.
I have some sympathy with Amendment No. 179A, tabled by the noble Earl, Lord Peel. He said that we should make it clear that the new section applied only to large, raised reservoirs. That requires some consultation, and I shall take it away for further consideration.
The Duke of Montrose: I declare an interest as someone who owns a reservoir. The Minister referred to the panel of engineers being able to quantify the risk element. Was he saying that the risk should be codified, and that it is not sufficiently codified at the moment to form a basis for considering which reservoirs are risky?
Lord Whitty: Yes, that is what I am saying. The distinction is currently made on the basis of sizeby the cut-off point of 25,000 cubic metreswhereas it would be more logical to make a risk assessment of
The Duke of Montrose: Under the Reservoirs Act, there is a requirement to have an engineers' inspection of reservoirs at regular intervals. In the inspection, the engineer codifies the risk, so presumably that is available under the inspection of each reservoir that currently exists.
Lord Whitty: The assessment of the risk is done in the traditional sense, in that engineers consider whether there is any problem with a particular reservoir. There is no national scale of risk assessment, whereby one could say that anything below a certain level can be excluded from this part of the Bill. We are working on a prototype approach of risk assessment, and we hope to produce something similar to what is envisaged by the noble Duke, the Duke of Montrose, but we are not yet at that stage.
In the Minister's comments on Amendment No. 178, I understand him to be saying, "Yes, that is a good idea, but not just yet". The Minister looks doubtful as to whether he agrees, but I believe that he does. I am still surprised by that response, given that under many circumstances common sense alone would allow it to be said that a reservoir posed a very negligible risk. The noble Lord, Lord Dixon-Smith, described some of those circumstances. That is why I phrased my amendment as I did. A large but very shallow body of water, for the purposes that I outlined in my introduction, is unlikely to pose the sort of risk envisaged by the Reservoirs Act. I shall read his reply with interest and, perhaps, press him a little further on Report on what timescale the Government will need to arrive at a conclusion. In the meantime, I beg leave to withdraw the amendment.
The noble Baroness said: In moving Amendment No. 179B, I shall speak also to Amendment No. 179C. The purpose of the amendments is to get from the Minister some information on exactly the sort of person who, he feels, will have created an offence.
The subsection creates an offence, by now commonplace, the penalty for which is often topped up with a fine or imprisonment for two years or both. The offence is the publication of a reservoir plan or giving an unauthorised person access to it, after the Secretary of State has decided that publication is a national security matter. I accept what the Minister said in response to an earlier amendment, but will he tell us which employee of the water undertaker would be confined? Would it be, for example, the chairman or the chief executive? Who would be affected by this section. If a fine is imposed, it could be imposed on the body concerned, but if the penalty is imprisonment, who is likely to be taken to prison?
There are only 17 water undertakers, of which five are responsible for more than 80 per cent of our water resources management. National security is vital and should be maintained. However, if anyone publishes when they should not, it could be due to human error or deliberate intent. The former does not merit huge fines or imprisonment, while the latter deserves more than two years. I seek clarification of that issue.
Amendment No. 179C is a probing amendment. Where does the certificate mentioned in line 30 originate from? Is it something that already existsfor example in a health and safety risk assessment that the Secretary of State is about to overruleor is it, as the section seems to imply, something produced in order to ensure that the power specified in the certificate cannot be used? The section should have a little more explanation in it, or it will make little sense. Perhaps, we are just getting tired at the end of the Committee stage. As so often with the Bill, the Explanatory Notes are not particularly helpful on the issue. I beg to move.
Lord Whitty: Clause 74(3) makes it an offence for an undertaker to fail to comply with a notice under new Section 12B. That has to do with national security, as the noble Baroness recognised. Constraints on publication or failure to publish could create a national security risk, and failure to comply with a notice under the provision could be a serious offence.
Who commits the offence? The companies and their employees commit the offence, as with other offences under health and safety legislation and so forth. It would be appropriate that an individual could be subject to a fine or, on indictment for a more serious matter, to imprisonment. The company could be subject to a fine. It is important to recognise that that applies only to the circumstances relating to national security, as set out in the clause. We must ensure that we have the powers.
In speaking to Amendment No. 179C, the noble Baroness asked who issued the certificate. The certificate referred to is issued by the Secretary of State. The provision will enable the enforcement authority to check, for example, whether a reservoir should be subject to the requirements of the Act, whether safety recommendations have been put into effect or whether any emergency action is necessary. As part of that process, reference to the certificate may be necessary. I hope that that is sufficient clarification.
With regard to the first amendment, I did say that the provisions related to national security. I accept the Minister's response on that. I also accept that, if a fine were imposed, it would be paid by the company. I did not discover who would be sent to prison. Unless I missed it, the Minister did not answer that question to my satisfaction. The Minister may want to come back to me on it at a later stage, and I would be happy with that. A company can be fined, but how do we decide which individual is the person likely to be sent to prison? It is beyond my comprehension.
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