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The right reverend Prelate contributed substantially to this debate, as he has on previous occasions. What does he think would be the case for an individual who is being transferred from one employment to another and, when he or she turns to that employment with a religious ethos, suddenly has to face a change in conditions that he or she had not anticipated when he or she first took that employment? If he or she had to face a situation in which sexual orientation was part of the requirement, or if requirements in relation to sexual orientation were something which had to be considered but which he or she had not had to consider at all in first taking the employment, it would be quite unacceptable. My noble friend made it clear that that was not the Government's intention.

We have had a substantial number of assurances from the Government, which I should like time to consider, because this is a very complicated matter. I accept that in certain respects what has been suggested was not really required, because it is covered. I accept what was said in relation to Amendment 101ZA-namely, that it is not necessary to insert "genuine" before "occupational requirement". That point was made by the noble Lord, Lord Lester, and I accept it completely. I thank him for that and for his detailed contribution on this rather complicated question. In the mean time, I beg leave to withdraw the amendment.

Amendment 101ZA withdrawn

Amendments 101A to 101C not moved.

House resumed. Committee to begin again not before 9 pm.



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Flood Risk Regulations 2009

Copy of the Order
2nd Report from the Merits Committee

Motion to Resolve

8.01 pm

Moved By Lord Taylor of Holbeach

Lord Taylor of Holbeach: My Lords, I begin by declaring my interests as a farmer and grower and as a member of a number of organisations with an agricultural background. I am also a vice-president of the Association of Drainage Authorities. Although the latter may be a particular focus of interest, it should not lead noble Lords to assume that I possess a great depth of knowledge of the subject, although it might account for my interest in raising this matter for debate.

The Minister introduced these regulations in a Written Statement on the very day of the Cumbrian floods. Since then, the House's Merits Committee has drawn our attention to aspects that it considers are particular causes of concern. The LGA has written about the funding of local authorities' role vis-à-vis these regulations. For this reason, I seek to move the Motion in my name before the House this evening.

As I said, these regulations were laid before Parliament on the very occasion of the Cumbrian floods. By further chance, last Friday I had the opportunity to visit Cockermouth and Carlisle on a fact-finding visit, which greatly added to my knowledge of the disaster and its aftermath. I acknowledge the kindness of all the people whom I met and talked to, particularly Messrs Robert Jackson, senior and junior, who farm just outside Cockermouth. To stand on their riverside fields, still strewn with debris and kelter from Cockermouth, just half a mile upstream, was an awe-inspiring experience but also a worrying one. Hay bales and uprooted trees one might have expected to see 10 weeks later, but to see wheelie bins by the dozen, furniture, fridges and other electrical goods scattered across the fields was, to my mind, alarming. More dramatic than that were the acres of meadowland and a drilled field of autumn barley strewn with boulders, some as big as footballs, laid out as if on a beach, and in some cases feet deep. It is hard to see how this grade one land is to be reinstated. It seems to me to be as lost as the 40 metres of the same barley field lost to the river. It caused me particular concern that, although the Rural Development Fund money, up to £6,800, might well be adequate for the costs that some farmers face in clearing up, it was totally inadequate for the task facing Mr Jackson and the dozen or so farmers similarly affected.

There was also a confusing lack of direction from the Environment Agency and Natural England about their role. Indeed, I received mixed messages both on the clear-up and future strategy for the Derwent river basin. It was not satisfactory to stand half a mile from a town struggling to re-establish normal life and be given the impression that the Environment Agency

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had no funds for managing the accumulation of gravel in the river or for river margin protection. It was perhaps even more worrying to find Natural England worried about SSSIs, biodiversity and the habitat of crayfish. That indicated to me that a stronger sense of direction was needed. I am tempted to coin a phrase and say, "We can't go on like this". I am pleased to say that the leader of the county council, Mr Jim Buchanan, has agreed that it must be a priority to assist in moving litter from sites such as Mr Jackson's farm. The commission of temporary waste dumps and the waiving of regulations governing movement of waste are fine, but that was of little or no assistance to Mr Jackson given the scale of his task in moving the debris off his land.

It is not all negative. The Carlisle flood abatement scheme was recently completed and 600 homes that might otherwise have been flooded remain dry. On being shown the scheme, I observed that it had brought a pleasant cycle path and footpath along the newly flood-walled and protected River Caldew flowing through the town. However, this green vein, attractive though it is, has a downside in that this river, although canalised, is choked with rubble, mud and self-sewn willows and buddleia in the interests of providing natural habitats. I doubt the wisdom of a river management system that allows such a feature in an urban area. It cannot help water movement and we know that fallen trees and debris caused a great deal of havoc in Cockermouth.

I may have travelled a little from my Motion, but we should consider the application of these regulations. We could, I suppose, consider that these regulations are part of the Government's legislative response to the Pitt report and the summer floods of 2007, but that is not strictly the case. We would, however, be right to consider them as ancillary to the Flood and Water Management Bill, which is at present in another place and which we can confidently expect will arrive in your Lordships' House before too long. Indeed, my first question to the Minister is whether it is right to bring forward a statutory instrument that uses a concept of lead local flood authority and lays out duties for that body before primary legislation has set up the concept. The Flood and Water Management Bill defines "lead local flood authority" in Clause 6(7) on page 4, and defines "risk management authority" in Clause 6(13), also on page 4, as the lead local flood authority. Clause 7 states:

"The Environment Agency must develop, maintain, apply and monitor a strategy".

Under Clause 7(2)(a), the strategy must specify,

All that is in the forthcoming Bill. We know that the EU floods directive 2007/60/EC covers the assessment and management of flood risks. The implications of its provisions are the subject of this statutory instrument. Earlier water environment regulations charged the Environment Agency with providing a management plan for each river basin district.

The new regulations before us introduce the concept of lead authorities and seek to reciprocate their activities, with flood risk assessments, maps and management plans already being undertaken by the Environment Agency. Defra believes that this will not impose an

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additional burden on the local authorities concerned. That is hard to believe but, as Defra has committed to funding any new burdens for local authorities as a result of these regulations, can local authorities be reassured that their responsibility in this area will be fully funded? I suspect that the LGA's concern is that it all depends on what is meant by "new burdens".

My concern extends beyond the financial to the engineering skills available in-house. There could be considerable costs in employment of consultants, or is the Environment Agency instructed to work alongside local authorities in the work involved? The engineering of water management is a particular branch of the engineering profession. It is there that my particular interest as a fenman and as vice-president of the Association of Drainage Authorities comes into play. It must be suggested that had an IDB or river authority been in place on the Derwent or the Cocker, the impacts of the floods may have been lessened, as the management of the river and its ecology would have benefited from such engineering skills. The regulations before us list IDBs in part 6 as authorities from which the Environment Agency and local authority require information, but that is all. They have no statutory consultation role, unless invited, as far as I can see. I might add that neither do the police or the emergency services, but their knowledge would be invaluable in areas that have experienced floods. This is surely an oversight. It is important that such assessments are properly constructed on sound analysis of the evidence, which requires a professional input. It is obvious that there are implications for property values, both private and commercial, in their publication.

I turn to the semantics of hazard and risk. Under Regulations 18 and 19, the Environment Agency and the lead local authorities are required to produce both hazard maps and risk maps. "Risk" is defined under Regulation 3, but of "hazard" there is no sign. Both the Concise Oxford and Chambers dictionaries that I have consulted define "risk" as "hazard" and "hazard" as "risk". Would it not help if the meaning were determined and described so that they were clear and so that the functions of each of these pairs of maps or plans were obvious to us all?

Finally, while I do not doubt that these desk exercises can be used to good effect, they are no substitute for on-the-ground management by individuals dedicated to the proper management of water, the sound engineering of our rivers and the safety of people and property. I beg to move.

The Earl of Selborne: We are all grateful to my noble friend Lord Taylor for giving us an opportunity to consider the Flood Risk Regulations, although a debate before 10 December 2009 would have been more timely, for they have now been transposed into domestic legislation. Normally, I am supportive of EC measures which seek to promote consistent environmental regulation throughout member states. In this case, I fear we have missed an opportunity to scrutinise the EC floods directive and its transposition into domestic law through a vehicle which would have been much better designed than these regulations, that is the Flood and Water Management Bill which is at present going through Parliament.



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The EC directive has the worthy aim, among others, of establishing effective cross-border flood risk management. This is one issue that simply does not arise, as the regulations we are considering apply only to England and Wales-they do not relate to Northern Ireland. What we need is bespoke consideration. As my noble friend just explained, some of the very clear national issues that we have are about flood management appraisal and putting into effect the right proposals.

A proper parliamentary scrutiny of the transposition of this directive in the Flood and Water Management Bill would have been an ideal way to set about it. I am sure Parliament would have made a helpful contribution as to how the regulations could have been fine tuned, as appropriate for our national needs. However, Parliament has effectively been deprived of the opportunity. We have had no opportunity to look at the fine detail, as we would if we had been in Committee on a Bill. The irony is that most of us support the thrust of the directive and see the need-not perhaps for cross-border flood risk management for England and Wales-but certainly for detailed appraisal and management proposals to be prepared, particularly in areas of priority.

8.15 pm

The Minister may point out in replying that, as part of the public consultation on the draft Bill, one chapter addressed the issue of the transposition of the floods directive. The Explanatory Memorandum to these regulations reports that 48 per cent of respondents were broadly in favour of the proposed transposition arrangements, 46 per cent made general comments and 5 per cent were against the proposals. The conclusion that I draw from these figures is that the large majority are, like me, in favour of the general thrust of these regulations, but there is plenty of scope for improvement. Forty-six per cent of people would not have made comments if they did not have ideas as to how the arrangements could be improved.

As my noble friend Lord Taylor just remarked, there are very specific issues on flood management which are all too apparent and need to be addressed. The way the EC floods directive has been transposed into UK law is a missed opportunity. Frankly, Parliament has been treated poorly. I know that the original intention was for the Government to use the Bill to transpose the legislation-they were worried about the cost of infraction proceedings. What has happened is that, for pure convenience in administrative matters, Parliament has been sidetracked. That is a great pity.

Baroness Byford: My Lords, I would like to follow my noble friend Lord Selborne, because he touched on a couple of things which are extremely worrying. I take his point that many of those who responded had queries. I have looked at the observations of the Merits of Statutory Instruments Committee on the Bill. My noble friend Lord Taylor of Holbeach stated in his introduction that he was quite concerned about the extra resources needed. In fact, the Merits Committee points out in paragraph 19 that,



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to be available to,

under this directive. Can the Minister say how many people asked and how many was a significant number? How confident are the Government that they-Defra particularly-will have sufficient funds and resources, in terms both of money and of manpower and skills? All of us are well aware of the dire straits in which the Government find themselves within departments, and Defra is one of those departments that is looking to find cuts in commitments. How confident can the Minister be, if local authorities realise that it will cost them more than was originally understood, and if the Merits Committee are right in saying that the lead role has been underestimated by Defra, that that will be resolved? There is no sense in us today passing measures under which we have no guarantee that those costs will be met.

I go back to the point made by my noble friend that this discussion should have taken place within our debates on the Flood and Water Management Bill. My noble friend is slightly more gentlemanly than me in his approach, but having been Front-Bench spokesman for 10 years on this brief, it irritates me beyond words that we are asked to accept legislation on this issue in the form of statutory instruments. As we know well, we can debate it tonight and we can raise issues with the Minister, but it will not change anything because we cannot change the regulations. Whereas, if proposals were in primary legislation-a Bill-one would have a chance to alter and improve it. I, and I think all of us, support many of the things that this statutory instrument is trying to do.

I have some basic questions on costs and skills, bearing in mind the cost-cutting that will come to Defra and, indeed, local authorities. I return to the very good example raised by my noble friend. We are grateful that he went to Cockermouth and talked to some of the farmers up there. The regulation refers to those with economic interests and the environment. I hope that farming is considered to be an economic business, because if it is not, it jolly well should be, because farming is a business. My noble friend raised the problem of the enormous costs that a particular farmer will incur that will not apply to other farmers in relation to some floods. How do the Government intend to support the local authority to help that farmer to cover those extra costs?

I wish to raise two other issues. One is about the maps that will be created. My reading of the statutory instrument is that they will be available to members of the public. Will they be able to obtain them online? Will there be a cost? How will that work? My final point is that obviously some areas and counties do not have the same risk-management problems as those experienced by other counties on a regular basis. Are they expected to produce reports and plans as full as those required to be produced by an authority with constant risk-management problems? Those are specific issues, but I am anxious because this statutory instrument has raised real issues that need addressing. Our only chance to do so is through the statutory instrument, and I am grateful to my noble friend for raising this matter.



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Lord Teverson: My Lords, I should declare an interest as a member of a unitary authority, Cornwall Council, which will be one of the authorities which has to implement these regulations, which have already been passed.

I was interested in the comments around subsidiarity raised by the noble Earl, Lord Selborne. I, too, read these regulations and two issues sprang out at me. One was whether the directive, if we or the European Union Committee looked at it, would pass the subsidiarity test. Within continental Europe, given the large river basins, including the Rhine and the Danube, cross-border planning is important, and more than two member states are often involved. However, these regulations apply only to England and Wales, and a small part of Scotland, but do not apply to the Northern Ireland/Republic of Ireland border. I wonder whether these regulations are essential to us as a member state in terms of European legislation.

Exactly as the noble Lord, Lord Taylor, said, having looked at a number of these issues that are largely already covered in UK legislation-perhaps not sufficiently-I should be interested to understand from the Government which parts of the directive are not covered sufficiently. They may be perfectly good in relation to what the Government want, but there is insufficient explanation as to which parts of the directive are not covered by existing EU legislation and, therefore, why such an order is necessary. If the Government wish to improve the current legislation, as many of us would wish to, it would be much better-as has already been stated-for that to be included in the Flood and Water Management Bill. I should be particularly interested to understand why the current spatial planning flood-risk assessments do not cover what the directive already requires and why we therefore need, in terms of implementation of European legislation, flood-risk management plans.

Like many other Members of this House, I am also concerned at the cost of this. The £6 million one-off cost may be credible, but the ongoing zero cost is very optimistic. All local authorities are under financial pressure and will continue to be so. They are putting their budgets together at this very moment; although this is of great importance, it will be an additional pressure on local funding which regrettably will have an effect on other services as well.

I could not see anywhere within these regulations, which are now already within the law of the land, when these plans by local authorities have to be submitted. I did not see any timescales and I would be interested to hear those.

This is an important debate and I do not wish to prolong it any further. My only comment is that in my experience of Parliament whenever a Member stands up and says, "My Lords" or "Fellow Members, I will be brief", they are always the longest speaker. It is also the case that when Members stand up and say they know nothing about the subject or are very modest about what they know, they come forward with extremely important, in-depth and relevant speeches. We certainly heard such a speech from the noble Lord, Lord Taylor, this evening.



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Earl Cathcart: My Lords, I understand that these regulations were previously intended to be part of the draft Flood and Water Management Bill, but the Government decided to push them separately without debating them in either House, as has been said. I thoroughly agree with my noble friends Lord Selborne and Lady Byford that it would have been much better to have debated them before December.

My noble friend Lord Taylor has asked why it is right to bring forward these regulations before primary legislation. I agree: it is like putting the cart before the horse. It is very unusual to have secondary legislation coming before primary legislation. One can only assume that the Minister does not expect the flood Bill to make it through all the stages of the parliamentary process to become law. On this side of the House, we have said that we will support the Bill, so what are the Government not telling us? In their endeavours to comply with EU legislation, the Government have brought forward these regulations regardless of whether the flood Bill becomes law or not.

I want to move on, as others have done, to the cost of implementing these regulations. I understand that Defra's impact assessment suggested a one-off cost of £6.66 million. The Minister is no doubt already aware that the Local Government Association believes that the Government have underestimated this, and that the cost will overrun. Can the Minister confirm, as others have asked, that Defra will not only fully fund this cost, but also that of any overrun?

My last point concerns Regulation 7, "Lead local flood authority", and it was raised by my honourable friend Anne McIntosh in another place in Committee on the Flood and Water Management Bill. Regulation 7 states that the lead authority should be the county council, where there is no unitary authority for an area. Obviously, the county council should be the lead authority in many instances-for example for sustainable drainage along the highway-but what about when a planning application is being considered? The district council is clearly the planning authority, so it seems obvious that it should deal with the Sustainable Urban Drainage System, or SUDS. However, under Regulation 7, the county is the lead authority in this area, whereas the district, as I have said, is the most appropriate authority to deal with SUDS. Does the Minister propose to give guidance to councils suggesting with which level of local authority the lead should lie? Otherwise, as things stand, the planning process will be unnecessarily prolonged; I know we are all keen to speed up this process.

It might not seem obvious that SUDS is relevant to these regulations, which deal with flood risk management, maps and plans, but it is. These regulations are now law. They define who is to be the lead authority and so have a direct link with and bearing on the flood Bill.

8.30 pm

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