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Lord Dixon-Smith: My Lords, we face a fortunate coincidence and then an unfortunate lack of action.

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The fortunate coincidence is that, almost uniquely in my experience, we have a European directive before us for implementation, as the noble Baroness said, by 22nd December of this year, at the same time as we are considering primary legislation in the same field and, in some ways and to some degree, with the same intentions as the directive.

Of course, it is customary for convenience—because this kind of coincidence does not normally occur—to deal with the consequences of European directives through secondary legislation. That is not the proper precedent that we should be following. I have always held the view that the proper way to deal with these matters is through primary legislation: it has a better parliamentary scrutiny; we are more sure of what we are doing; and I should like to think that the ability to look at the consequences of European legislation through the primary legislative process is vastly superior to the secondary legislative process.

We use the secondary legislative process simply as a matter of convenience because usually there is not room in the primary legislative programme. Governments arrange that programme and that is how the issue has been treated in the past. We have this coincidence and, from my point of view, we are dealing with the matter in the less beneficial way. I support the amendment on that basis. We should be doing much more than we are to incorporate this European directive into primary legislation. When push becomes shove—and if we have to do something about this and the Government are not going to concede—we may have to think about which Lobby to go through, but I do not think that it will take much thought.

Earl Peel: My Lords, I support the amendment. I have always had difficulty getting my mind around the complicated inter-relationships between primary and secondary legislation, and European directives and primary legislation. This is no exception. In Committee, I spoke extensively about my own experiences on the River Ure in North Yorkshire where we have been attempting to put together a river basin management plan through the good offices of the Environment Agency. For several reasons, we have failed to achieve that. On reading the amendment, I see that many of its objectives are ones to which we tried to adhere in North Yorkshire and failed. For that very simple reason, I support the amendment.

Lord Whitty: My Lords, the issue of whether anything is transposed to primary legislation or secondary legislation frequently arises. The noble Lord, Lord Dixon-Smith, and the noble Earl might always have held a different view, but, by and large, successive governments and Parliaments since 1972, regardless of the then government's view of the EU in general, have abided by the use of secondary legislation, except in very particular circumstances.

As the noble Baroness, Lady Miller, says, it is possible to have mixed transposition, but only where the two issues are complementary. This Bill deals with issues different from those covered by the Water Framework Directive. That argument would be

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stronger had the Government not done anything about the transposition, as she and the noble Lord imply. The Select Committee to which the noble Baroness refers did not say that; nor did it say that we should use primary legislation. The committee observed that the important point was the effectiveness of the transposition of the directive into national law, not the means by which it was achieved.

We have already started consultation on the transposition of the directive, which raises several issues not covered by the Bill, some of which have not been discussed, despite the wide-ranging debate on the Bill in Grand Committee.

Lord Livsey of Talgarth: My Lords, I thank the Minister for giving way. I have been waiting to hear his response on some issues. Is the Minister saying that, because the Water Framework Directive is EU legislation, by the process of this House it cannot appear on the face of the Bill in primary legislation? Why did the Government not introduce the Bill after the transposition of the directive? That would be much more logical.

Baroness O'Cathain: My Lords, before the Minister has a chance to reply, I wish to make some points. First, I thank the noble Baroness, Lady Miller of Chilthorne Domer, for telling us about the Government's response to the Water Framework Directive. I am afraid that I did not know about it until I heard her make the point in the House. Having gone straight to the Printed Paper Office to get the document, I quickly glanced through it. Recommendation 21 of the Select Committee asks about primary legislation. The Government respond:

    "The Government believes that secondary legislation is a suitable and well established method for implementing EC legislation".

But the Select Committee's recommendation is very strong:

    "But until the administrative arrangements which will enable the Environment Agency to function as the competent authority have been properly explored, Defra cannot be certain that primary legislation is not required".

We are now caught between two problems. The amendment, which we debated in Grand Committee, will probably be chucked out again by the Government. But these words add a good deal of merit to the arguments presented by the noble Baroness, both in Grand Committee and today.

Baroness Farrington of Ribbleton: My Lords, at the risk of being criticised once more for being a stickler for the rules, when the Minister is replying on Report it is possible to intervene only with a question to the Minister. With great respect, that was a statement, not a question. It is very difficult for me, because as Whips we are aware that there is criticism across the House on all sides that Committee stage procedure is creeping into Report stage. I am doing my best. I am conscious that there are those who will criticise me from both sides.

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11.45 a.m.

Lord Whitty: My Lords, to return to the central issue, in response to the noble Lord, Lord Livsey, it is not an absolute that one cannot transpose through primary legislation. But it is normal for us to transpose through secondary legislation unless we are dealing with a completely congruent set of primary legislation. The Bill is not primarily about the same areas that the Water Framework Directive deals with. It is about the governance, competition, consumer organisations and structure of the water industry. It is not about the quality of water supply in the same way; it is about regulation and the various powers of regulation. There is an overlap but not congruence.

There would be stronger arguments for extending the scope of the Bill to include the whole Water Framework Directive if we had been dilatory in consulting and starting the transposition process. We have not. We have already had two stages of consultation. There will be a third one in the autumn, and we intend to complete the transposition by the end of the year. Therefore, it is not a valid argument to say that the Government are not getting on with transposition. We are, and, in so doing, we are taking into account the responses to the various consultations. Simply to bang the provisions into a Bill that deals largely with related but not congruent matters would not be a sensible procedure for the House. I therefore ask the noble Baroness not to proceed with the amendment.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his reply. Having re-read my amendment in the light of his words, I believe that it introduces the idea that there must be timely establishment of the working framework. All it asks the Secretary of State to do is to ensure that the transposition is timely. It is hard to see why the Bill is the wrong place for it when it introduces some primary legislation—on abstraction and so on—that is necessary because of the directive. As the Minister reminded us in Committee, it was necessary because the directive would require it.

I am grateful to the noble Baroness, Lady O'Cathain, for pointing out the Government's response to recommendation 21 of the Select Committee report. I, too, had underlined that paragraph, in particular, and the fact that the Government should publish a legislative impact study on the requirements of the directive.

Often, good European legislation is unfortunately turned into bad national practice because it is too late or under-resourced. It is time to ensure that that cannot be the case with something as important as the Water Framework Directive. For that reason, I wish to test the opinion of the House.

11.48 a.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

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Their Lordships divided: Contents, 94; Not-Contents, 89.

Division No. 2


Addington, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Biffen, L.
Blaker, L.
Blatch, B.
Bowness, L.
Bradshaw, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carnegy of Lour, B.
Cope of Berkeley, L.
Craigavon, V.
Crathorne, L.
Cuckney, L.
Cumberlege, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Eccles of Moulton, B.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Flather, B.
Fookes, B.
Gardner of Parkes, B.
Geddes, L.
Glentoran, L.
Hanningfield, L.
Harris of Richmond, B.
Henley, L.
Higgins, L.
Hooson, L.
Howe of Aberavon, L.
Kimball, L.
Knight of Collingtree, B.
Liverpool, E.
Livsey of Talgarth, L. [Teller]
Luke, L.
Lyell, L.
McFarlane of Llandaff, B.
Mackie of Benshie, L.
MacLaurin of Knebworth, L.
McNally, L.
Maddock, B.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B. [Teller]
Molyneaux of Killead, L.
Monro of Langholm, L.
Moynihan, L.
Noakes, B.
Northover, B.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer, L.
Patten, L.
Peel, E.
Perry of Walton, L.
Peyton of Yeovil, L.
Pilkington of Oxenford, L.
Rawlinson of Ewell, L.
Redesdale, L.
Rennard, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Sharp of Guildford, B.
Shutt of Greetland, L.
Skelmersdale, L.
Strange, B.
Sutherland of Houndwood, L.
Thomas of Gresford, L.
Tordoff, L.
Trumpington, B.
Vivian, L.
Wade of Chorlton, L.
Walmsley, B.
Walpole, L.
Wigoder, L.
Wilcox, B.
Windlesham, L.


Acton, L.
Alli, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Boston of Faversham, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Carter, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dixon, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gavron, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grocott, L. [Teller]
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Judd, L.
Lea of Crondall, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
Mackenzie of Framwellgate, L.
Marsh, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Morgan, L.
Murray of Epping Forest, L.
Nicol, B.
Orme, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Rogers of Riverside, L.
Sainsbury of Turville, L.
Sawyer, L.
Sewel, L.
Sheldon, L.
Simon, V.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Turner of Camden, B.
Weatherill, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Williamson of Horton, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

12 Jun 2003 : Column 355

11.57 a.m.

Clause 1 [Licences to abstract water]:

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