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Baroness Miller of Chilthorne Domer moved Amendment No. 16:


The noble Baroness said: My Lords, Amendment No. 16 seeks to address some of the confusion that arises in this confused and confusing area of legislation. That confusion was illustrated by the laughter that erupted on all sides of the House when Amendment No. 13 was discussed.

When we addressed the matter in Grand Committee, I sought to exempt from the provisions of the Bill the traditional method of irrigating fields at time of flood known as warping. Subsequent to reading the Minister's reply and having further discussion with various parties on the matter, I decided that the simplest way to deal with it at this stage—although I bear in mind my own feelings and those of the noble Baroness, Lady Byford, on increasing regulation—was to allow the Secretary of State to make further regulations with regard to exemptions.

My amendment seeks to ensure that the Secretary of State will make regulations to increase the number of exemptions when he is requested to do so by statutory bodies concerned with mater management. I refer to such bodies as drainage boards involved with drawing up water level management agreements, flood defence committees and river basin management committees. I refer to the latter in the optimistic hope that a later amendment in my name will be accepted. Under the terms of my amendment any of those bodies could request the Secretary of State to make exemptions that applied to their part of the country. I believe that not all the exemptions that are necessary are covered by the Bill. Perhaps with one or two exceptions—I do not include myself among them—people do not have a firm grasp of all the implications of the matter that we are discussing. I have tried to phrase the amendment fairly widely to provide some latitude for the future. I beg to move.

Earl Russell: My Lords, I am happy to support my noble friend's amendment and I admire the effort she has put into trying to reach a compromise. I should like to make just one point. I speak as a member of the Joint Committee on Statutory Instruments. Will the Minister give an undertaking that any regulations made under the amendment, if it were accepted, would not be proceeded with if the Joint Committee was not convinced that they were intra vires?

Lord Dixon-Smith: My Lords, the principle of the amendment is in a sense unexceptionable in that if

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local knowledge and local information indicate that a situation can be resolved only by regulation, it is right that that should be requested. But we have to realise that any regulation, unless it is tightly defined, will presumably apply nationally. It might be difficult to draft regulations that would apply to only one specific instance. I am not sure whether the amendment is practical in detail. In principle, one would like to see it agreed to, but, from the point of view of drafting regulations that are national in their impact, it may be difficult.

Lord Whitty: My Lords, the noble Baroness has certainly widened the scope with the amendment, but has not left any latitude. The amendment would force the Secretary of State to make regulations when statutory bodies concerned with water management, which are not defined in the amendment, request them. Obviously, any statutory body would be listened to by the Secretary of State and the National Assembly, and any request would be taken seriously. That is understood.

The Government always have to balance a range of considerations and interests to ensure fair treatment to all concerned. In that case, it would not be appropriate to give the bodies effectively the right to instruct the Secretary of State to make regulations removing exemptions. I was even more alarmed when the noble Baroness implied that a lot of the exemptions could be local and specific rather than general. The final decision on such requests must rest with the Secretary of State and the National Assembly, rather than undefined statutory bodies.

I was asked about regulations under the clause. Clearly, they would be published for public consultation and consideration by Parliament in the normal way, including the Joint Committee. If that committee were to indicate that in its opinion they were ultra vires, as the noble Earl suggested, the Government and the House as a whole would have to take that extremely seriously. We would obviously take legal advice as well, as the committee no doubt would have done if it had issued a suggestion in those terms. That would be a very serious inhibition on proceeding with them. I hope that that goes far enough to assure the noble Earl on that point.

Baroness O'Cathain: My Lords, I want to ask the Minister for a point of clarification. Would it be helpful if the Secretary of State made regulations after consultation with statutory bodies? The statutory bodies concerned with water management could have some sort of locus in terms of consultation.

Lord Whitty: My Lords, there would always be such consultation. I think that the noble Baroness is seeking that statutory bodies have a right of initiative. They have that right; they have the right to suggest to the Secretary of State that she make regulations. However, the amendment suggests that statutory bodies shall

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require the Secretary of State to make regulations. That seems a step too far. They already have the right to make such representations.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his view on my amendment, and I note the contributions of the noble Baroness, Lady O'Cathain, and the noble Lord, Lord Dixon-Smith. I still have some fears that the Bill will not be sufficiently sensitive to some issues that I raised in Grand Committee about the management of particular areas but, by defining them locally rather than by the general behaviour of estuarine rivers or geological issues, perhaps the amendment is weakened.

I fear that we shall find some cases in future that the Bill has not anticipated and so will not be dealt with in a satisfactory way. However, I guess that we cannot design a perfect world through the Bill. Given my inability to do so either, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Byford moved Amendment No. 17:


    Page 12, line 11, at end insert—


"( ) The Secretary of State shall make regulations providing for qualifying abstractions for the purpose of trickle irrigation to be classed as an exemption."

The noble Baroness said: My Lords, we tabled the amendment again because, in Grand Committee, the Minister seemed reasonably in favour of the principle but felt that the amendment was in the wrong place. In bringing it back on Report, I am trying to get clarification on that. Many contributions in Committee acknowledged the fact that some trickle irrigators were small users of water, and some were large ones. On that there is no disagreement around the House. Therefore, in some circumstances, some trickle irrigators may need to be viewed in a stronger light than others. The intention of the amendment is to give the Secretary of State the responsibility of bringing forward regulations.

I shall speak from the point of view of the NFU and on behalf of its colleagues involved in trickle irrigation. They seek a firm commitment from the Government and the Environment Agency to enter into early discussions with representatives of the industry as to how trickle irrigators might be brought into an abstraction regime, and to negotiate the nature of any transitional arrangements that will be introduced. Farmers and growers who use trickle irrigation are not opposed to the principle of bringing it within extraction regime licensing, but they have genuine concerns about the implications for their businesses and how the new controls will be implemented.

As I said, many of the businesses are of high value and require the maximum possible time to make the necessary adjustments to accommodate the requirements

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of the new regulatory regime. The Minister has indicated that there will be a two-year period in which negotiations take place. I beg to move.

Baroness Miller of Chilthorne Domer: My Lords, we feel strongly that horticulture is an important class of occupation, and is to be regarded very seriously. That is why we supported Amendment No. 15, which stated that,


    "the Agency shall have regard to the length of time such abstraction has been practised".

Then there were all the issues of food miles raised by the noble Baroness, Lady Byford.

In terms of Amendment No. 17, however, I am slightly nervous about the number of different classes that we could be asked to regard as exemptions. Although I have enormous sympathy with those brought into the regime as trickle irrigators, I suspect that exemptions will begin to create an unfair playing field, not least those who have not held abstraction licences before and are applying for them for the first time. We explored in Grand Committee the scarcity of water throughout England, as exemplified by the map produced by the centre for national water demand.

Although I sympathise with the purpose and spirit of the amendment, we would not want to support any group of users who fell over the threshold that requires a licence to be held in order to be classed as exemptions.


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