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Lord Whitty: My Lords, there is not a huge amount of contention between the noble Baroness and myself. The problem with keeping in the amendment which was carried here and is proposed to be deleted by the Commons is that it would appear to allow the Environment Agency to make a policy decision as to whether the current exempt irrigators would be subject to licensing. The noble Baroness is speaking in terms of preference but the wording seems to suggest that they

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would not be subject to the provisions of licensing at all—that they would be granted a licence— whereas the Act provides that they should be subject to licensing and, therefore, to the same conditions as any other licence.

I was trying to reassure the noble Baroness that the Environment Agency is bound to take into account the history and the length of time that irrigators have been using the abstraction in making that decision. That is not systematic preference. It will deal with matters on a case by case basis and take fully into account the amount of time that people have been using the abstraction. Therefore, in that sense, someone who has been using it for a long time in a sensible way would have some degree of preference over someone who had been taking it for a short period of time in an excessive way. So it is not absolute preference, but it reflects the history for those irrigators who have been operating an efficient irrigation system for some time. Keeping in the original amendment implies absolute preference in the sense that they would be exempt from the conditions of licensing entirely.

Baroness Byford: My Lords, I thank the Minister for that response. Am I to understand that the Environment Agency will not make policy decisions anyway? I am not quite clear about that.

Lord Whitty: My Lords, the implication of the wording of the original Lords amendment was that the Environment Agency was free to make a policy decision on whether irrigators should be in or out. In fact, the rest of the Bill has already made that policy decision. Irrigators are subject to the same licensing conditions as anyone else, but in making that assessment the agency has to take account of the history of the irrigator and others who have come in to the system of licensing for the first time. The Environment Agency will not make the policy decision—the legislation has done that. In the assessment, the history of the irrigator will be fully taken into account.

Baroness Byford: My Lords, I thank the Minister for that explanation. As he said, we are not poles apart. I sometimes wish that when that is the case, the Government would accept some of our amendments, but not tonight, I think. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.

COMMONS AMENDMENTS

9Clause 12, Page 14, line 26, leave out "be taken to continue" and insert "continue to be taken"
10Clause 17, Page 19, line 38, at end insert "or a transfer licence"
11Page 19, line 40, leave out "full licence" and insert "licence of the same type"
12Clause 19, Page 21, line 13, leave out "is taken to continue" and insert "continues to be taken"
13Page 21, line 16, leave out "(subject to subsection (11) of that section)"

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14page 21, line 18, leave out "is taken to continue" and insert "continues to be taken"
15Page 21, line 21, leave out "is taken to continue" and insert "continues to be taken"


16Page 21, line 29, leave out "that quantity or, if lower,"
17Page 21, leave out lines 31 to 37 and insert— "(3) The maximum quantity is the lower of the following—


(a) twenty cubic metres;
(b) if, by virtue of an order under section 27A(1) above, section 27(1) above has, or has ever had, effect in relation to the source of supply and point of abstraction in question as if it referred to a quantity lower than twenty cubic metres, that lower quantity (or, if more than one, the lowest of them)."
18Page 22, line 8, leave out "other provision mentioned in" and insert "provision mentioned in paragraph (a), (c), (d), (e) or (f) of"
19Page 22, line 19, leave out "be taken to continue" and insert "continue to be taken"
20Page 22, line 22, leave out "be taken to continue" and insert "continue to be taken"
21Page 22, line 35, after "or", insert "abstractions"
22Page 22, line 38, leave out "subsection (8)" and insert "subsections (8) and (9)"
23Clause 21, page 24, line 4, leave out "(4)" and insert "(4A)"
24Page 24, line 24, at end insert— "(4A) In subsection (7), for "or by different means" there is substituted ", by different means or for different purposes"."


25Clause 25, page 28, line 32, after "licence", insert "other than a temporary licence"
26Page 29, line 8, leave out "it is proposed he be permitted" and insert "he proposes"
27Page 29, line 11, leave out "it is proposed he be permitted" and insert "he proposes"
28Page 29, line 12, leave out from "which" to "abstract" in line 13 and insert "those persons referred to in paragraph (a) above who would require a new licence granted under subsection (5) below would"
29Page 29, line 17, leave out "those persons would be permitted to" and insert "that the persons referred to in paragraph (a) above would"
30Page 30, line 23, leave out "of four years" and insert "mentioned in subsection (11A) below"
"that the persons referred to in paragraph (a) above would"

31Page 30, line 27, at end insert— "(11A) The period referred to in subsection (11)(a) above is—


(a) four years; or
(b) if the abstractions authorised under the old licence were abstractions planned to be carried out at intervals of more than four years, or abstractions for emergency purposes only, such longer period as the Agency may determine on the application of the person in question."
32Page 30, line 29, leave out from "treated" to end of line 32 and insert—
"(a) as if it had been granted at the time the old licence was granted; and
(b) as if it and any other new licence granted by virtue of the relevant apportionment notice had been granted in place of the old licence."
33Clause 26, page 32, line 2, leave out second "loss or damage"
34Page 32, line 3, after "and", insert "is loss or damage"
35Clause 29, page 34, line 4, after "WRA", insert "(which provide for the Secretary of State to direct the Environment Agency to revoke or vary a licence in certain circumstances)"

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Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 9 to 35. I have spoken to these amendments with Amendment No. 3.

Moved, That the House do agree with the Commons in their Amendments Nos. 9 to 35.—(Lord Whitty.)

On Question, Motion agreed to.

COMMONS AMENDMENT

36Clause 33, page 37, line 41, leave out Clause 33

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 36. I shall refer also to Amendments Nos. 37 and 49.

When we debated Clause 33, there was a bit of confusion about what it applied to at that point in the Bill. The objective of inserting Clause 33, which noble Lords opposite supported, was that it would apply to the Environment Agency. There was confusion about whether it applied to Ofwat or the Environment Agency. The part of the Bill to which it relates deals with the powers of Ofwat and not a right of appeal against decisions by the agency.

I believe that in practice this change does not alter the current provision in relation to Ofwat because the company can already appeal to Ofwat if it makes an order that is not within its powers. I think, therefore, the insertion at the earlier stage was due to a misunderstanding that this part of the Bill related to the Environment Agency where different arguments apply. As it stands, the clause was not necessary because there already is an appeal system in relation to Ofwat.

Moved, That the House do agree with the Commons in their Amendment No. 36.—(Lord Whitty.)


36ABaroness Byford rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 36, leave out "agree" and insert "disagree".

The noble Baroness said: I thank the Minister for accepting that there was slight confusion in Committee. I accept that the clause before us relates to Ofwat and not the Environment Agency. The Minister was kind enough to write to me, saying:


    "Clause 33 amends the Water Industry Act 1991 to include additional provision for appeals against enforcement orders proposed by the regulator. I should emphasise that those enforcement orders are the function of Ofwat, not the Environment Agency".

I am happy to accept that. He continued:


    "The Act already contains considerable safeguards so that the regulator must consult the company and then consider any representations or objections. This procedure will ensure that errors are avoided".

I must say that I asked myself, "Why is he so confident?" I fear that errors still occur even with the best will in the world. He continued:


    "The purpose of enforcement orders is to protect consumers or the environment against company shortcomings".

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I accept all that the noble Lord wrote in his letter. However, unless I have misread it, it still leaves the regulator as judge and jury. We are concerned, because that is not an ideal situation. When we debated the matter earlier, we received support from my noble friend Lady O'Cathain, and the noble Lord, Lord Borrie, when the noble Baroness, Lady Miller, and I spoke to it. So I raise the issue again. The noble Lord, Lord Borrie, said:


    "But let us suppose that the agency's exercise of a power is questionable. Can it be questioned at all? Under Section 21 of the Water Industry Act 1991, the only possible remedy that I can see for a company aggrieved by an enforcement notice is either unlawfulness or failure of the agency to comply with statutory procedures. However, as the power is expressed in very subjective terms, it is difficult, if not impossible, for any aggrieved company to cross the huge hurdle of demonstrating that the Environment Agency has acted unlawfully.


    "The amendment would add two grounds: error of law or fact, and unreasonable use of power".—[Official Report, 24/6/03; cols. 156-7.]

When we continued to debate the matter, it was suggested that judicial review was the only option open to the company. That is unsatisfactory, which is why I move this amendment to the Motion moved by the Minister.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 36, leave out "agree" and insert "disagree".—(Baroness Byford.)


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