§ House again in Committee.
§ Clause 5 [Overseas activities of water authorities and statutory water companies]:
Lord Lloyd of Kilgerran moved Amendment No. 22:
Page 4, line 34, leave out from ("assistance") to ("skill") in line 35 and insert ("in respect of matters relating to manpower training and operation within their").
§ The noble Lord said: With Amendment No. 22 I shall try to encourage your Lordships and particularly the Government to consider—indeed, even after dinner to face—the stark commercial realities of international trade in very large overseas schemes and 165 projects relating to water supply, drainage and sewerage—
§ Lord Skelmersdale
At the risk of putting the noble Lord, Lord Lloyd of Kilgerran, totally off his stride, would it be convenient to the Committee to take the subsequent two amendments with this amendment?
§ Lord Lloyd of Kilgerran
I am much obliged to the noble Lord for clarifying that situation; but at the present time I would rather address myself to this one amendment first of all. If they are muddled up I shall lose the impact that I wish to make in relation to the amendment.
The amendment is intended to safeguard the huge overseas business built up over the years with such outstanding success by our United Kingdom consultants and contractors. It is an amendment which is directed towards avoiding the potentially serious damage to that overseas trade of the United Kingdom at present dealing with projects costing thousands of millions of pounds each year.
This great overseas United Kingdom industry and the high reputation of United Kingdom consultants are likely to be put at risk if the present terms of Clause 5 are allowed to stand as they are. Indeed, quite simply Clause 5 in its present form could result in a loss of international reputation of United Kingdom consultants in this field and lead to huge losses in the overseas income to the United Kingdom, seriously affecting our balance of payments.
Clause 5(1) has been put in by the Government, if I may say so somewhat naïvely, so as to enable water authorities and water companies to give advice, and to encourage them to give advice or assistance, to overseas customers in respect of any matter in which, so the clause states,
they have skill or experience".It is necessary to consider the scope, skill, and experience of the water authorities and companies. It has always been recognised worldwide that the public sector—that is, the water authorities and the water companies—has a unique experience and expertise in the field of the operation of works, their management and manpower training. That is unchallenged. However, the experience of water companies and authorities does not so far extend to overseas activities, except in a minimal way. I shall be supporting that statement by drawing your Lordships' attention to what was said in another place in this connection.
Perhaps it may not be inappropriate to say that I have had the honour of being a member of the Select Committee on Science and Technology which studied, under the chairmanship of the noble Lord, Lord Sherfield, the distribution of water and sewerage schemes in this country. We found in visiting these places that, as the Minister in the other place indicated, their expertise in overseas activities was minimal and almost negligible compared with that of the private consultants.
It is accepted that the private sector consultant firms have established a worldwide reputation for the United Kingdom industry in the specialised field of engineering studies, design feasibility studies and contract supervision associated with these big schemes 166 for water supply and sewerage. As I have said, water authorities do not at present have a great deal of experience in these matters overseas.
May I give examples of the extent of this huge business? I am advised, particularly by Professor Isaacs, the distinguished engineer who acted as the specialist adviser to the House of Lords Select Committee to which I have just referred, that in 1981–82, United Kingdom consultants brought in fees of the order of £500 million in that year. United Kingdom consultants over a period of five years were responsible for capital work of £10,000 million. These works have an average life of about five years, so that overseas business involved something of the order of £2,000 million per year linked up with the tremendous reputation which British consultants now have.
I have in my hand the volume for 1982 issued by the Association of Consulting Engineers about its overseas work. I turn, if I may for a moment, to the section dealing with water supply and I look at one page. There I see the estimated costs in sterling with which the United Kingdom consultants and contractors have been concerned. If I run down the list the figures show £16 million, £25 million, £28 million and £70 million. I turn to the next page and there it refers to projects costing £16 million, £10 million, £12 million, and so on. On the next page it refers to projects costing £450 million, £250 million and £350 million. This is a huge business and the reputation of the United Kingdom consultants is worldwide and of a very high order.
May I draw your Lordships' attention to what was said in the other place on 9th December. The Minister, Giles Shaw, stated:The present activities of the water authorities are really of very small cash value".He then went on to cite specific projects and referred to the largest one:None of those activities is greater in value than £100,000". Thus the right honourable gentleman and the Committee can see that most of the activities that have been undertaken are of a relatively small amount in value and they provide important contacts largely of a managerial or advisory nature in the various territories. The other activities being conducted by the international advisory service are of a much greater value. This involves providing training or management expertise in various countries overseas, the majority of them being in the third world and they have been involved in a range of projects to the value of some £2,200 million".I hope I have those figures right. But it is a vast order of about £2.000 million per annum, and that was verified by the Minister in the other place.
This vast amount of business is undertaken by United Kingdom consultants in a highly competitive and sensitive international area. There is real anxiety among consultants that Clause 5, as it stands, may result in serious damage and loss of business to British industry. It is quite simple to see why that loss of reputation might take place. What I am saying now is in no way to denigrate the British public sector in their activities. They are the experts in relation to training and the operation of their works, but if they have not got this experience in overseas trade damage is obviously likely to be done to the reputation of present United Kingdom consultants in the business.
I should mention that Clause 5(2) contains, so it says, certain safeguards in allowing water companies and water authorities to deal with overseas business in 167 this general way. This clause says that the power to do this business overseas shall only be done—with the consent in writing of the Secretary of State".It goes on to say that the approval of the Treasury is needed. Your Lordships can imagine how difficult it would be to get the Treasury to accept responsibility for projects of the order of these hundreds of millions of pounds to which I have referred.
We have heard that the Minister proposes to issue some guidelines, and indeed he has issued them and I have seen some of them; but they are wholly inadequate, and if they are to be introduced they should be introduced into the text of the Bill in order that proper safeguards may be obtained. Of course, private industry and the United Kingdom consultants are always anxious to co-operate wherever possible with the public sector. I pause here, because I notice that the Government Front Bench is at present vacated. I feel that this is such an important matter that I am pleased to see it now does claim the attention of at least one member of the Government Front Bench. Of course, private industry is most anxious to co-operate wherever possible with the public sector and it is recognised that foreign Governments may wish to deal with British Governments directly; but I understand that government-to-government projects in this field do arise, though only on a small scale, and that in most of those cases the private sector is usually brought into discussions.
On another important aspect of overseas business in which water authorities and water companies have no experience, consulting engineers have to be particularly well qualified to prepare documentation of performance contracts, to analyse and compare tenders and to supervise their execution. British consultants have been involved in a large range of contract types. They are being exposed over the year to a variety of environments and the different levels of technology which are appropriate. Skills and long experience, therefore, are essential in a competitive technological and contractual environment of overseas business of this kind, where water and sewage developments can be so vital to a foreign community.
I apologise for making such a long speech, but I hope the Government realise the importance of these matters and will perhaps agree that in respect of overseas business at the present time Clause 5 goes too far. I well recognise that where public money has been expended for the purposes of research it is not in the public interest that all that expertise which has been developed at public expense should be locked up in Government departments. Subject to the usual safeguards, the Ministry of Defence, for instance, have a great amount of expertise which they disclose to the industry. Therefore in principle it is a good thing, where public money is being expended on extensive research, that such research and such experience should be made available wherever possible to the public. As the noble Lord, Lord Sherfield, said during the first day of this Committee stage, very little research in relation to overseas business is being done by the water authorities or the water companies; so in regard to the water companies we are not in the position that within them is locked up vast experience 168 in relation to overseas activities of the kind with which the consultants are concerned.
I emphasise again that so far as manpower training is concerned, and the operation of works, the public sector has this great expertise and it is not matched by that in the private sector. Therefore, I beg to move that there should be inserted in Clause 5 the limitation that, in their assistance and advice to overseas customers, the water companies and water authorities should at present be limited to matters relating to manpower training and operation within their experience and skill. I beg to move.
§ 8.46 p.m.
§ Lord Howie of Troon
As someone who has spent 20 years of his life in consulting engineering before degenerating into being a publisher of a civil engineering magazine, I am basking in the warm praise which the noble Lord, Lord Lloyd of Kilgerran, has bestowed on my profession—every bit of it absolutely deserved. British consulting engineers are quite clearly, beyond peradventure, the best in the world and the noble Lord has indicated just why we should regard them as such.
There was, however, one thing he did not say. When he spoke of the immense contribution which consulting engineers have made to our overseas earnings, he did not actually say that it was made by a relatively small number of firms and by a relatively small number of people—perhaps about 150. It is a very small group and the per capita overseas earnings among consulting engineers must be very nearly as high as in any other group in the country. I think that the praise which the noble Lord, Lord Lloyd, bestowed on consulting engineers is very well earned, and I am delighted to thank him for it on the strength of the 20 years or so that I spent in that profession.
I noticed at one point that the strength of his argument was so vigorous that the Front Bench opposite was entirely vacated. I was not quite sure what that meant in terms of the conventions or rules of order of this Chamber, but I did wonder for a moment whether it would have been appropriate for us on this side to cross the Floor and, by a coup, seize power! But we were not quick enough and the Minister in charge returned to his post in time to prevent such an eventuality. However, I think it was a chance not only for us but for the country as a whole that was missed.
Nonetheless, I believe that the noble Lord, Lord Lloyd, has actually claimed too much in his amendment here. I support very strongly the sentiments which lie behind the amendment and I think I support entirely what I believe to be his ultimate intention; but I have to say that the British Consultants' Bureau already has in its membership something like 15 or 20 nationalised industries functioning as quasi-consultants. They include obvious people such as the British Airports Authority, the Civil Aviation Authority, British Rail and numerous others, all of whom apply the civil engineering expertise which they have in their organisations as quasi, not-quite-nationalised consultants. They do so within the rules and with, at least, the partial blessing of their fellow members of the British Consultants' Bureau.
169 I see no reason why water authorities should not be in exactly the same position as these others who already exist. My reason for saying that is that the engineering side of all these organisations, no matter how narrow their specialisation appears to be in the water industry, is manned by people who were educated and trained in the total range of civil engineering. They can turn their hand to just about anything that comes their way. That is the real key and that is the real worry. I do not think it would be right if the water authorities', or other national authorities', engineering departments turned their minds or their hands to anything that came their way. However, I think it is right that the maximum use of that engineering expertise and resource should be made in the national interest, and it already is in the 15 or 20 cases which I have mentioned.
Where the noble Lord, Lord Lloyd, got it right was when he talked about the guidelines. It is important that the private consulting profession should feel that they are not open to unfair competition from a nationalised consultant, and that guidelines should be drawn to protect them. That has already been done in the case of the other nationalised industries which I have mentioned, and there is no reason at all why it should not be done in this case, too.
I very strongly agreed with the noble Lord, Lord Lloyd, when he said that the guidelines should be in the text of the Bill. Generally speaking, they are not in the text of the other legislation which guides the fortunes of the other nationalised consultants, if I may call them that, though that is not quite what they are. They are guidelines which are separate from the legislation. I should always like to have guidelines of that sort in legislation. I must admit that I was very tempted to put down a set of guidelines in Clause 5. That would have taken 30 or 40 pages of the Marshalled List so I did not do so, but I might be inclined to do so at Report stage.
This is a case where both the Government are right in the intention of their legislation, and the noble Lord, Lord Lloyd, is right in what he interprets their legislation to mean. The key to the whole thing is in the guidelines. We will reach very speedy agreement here, if the Government will undertake to look at the amendment of the noble Lord, Lord Lloyd, and consider whether or not the guidelines themselves can be incorporated at a later stage as a schedule to the Bill. That would clear everybody's mind and would reach, very speedily, the maximum agreement on both sides of the House. Not only that, it would reach agreement with the consulting engineering profession which, as the noble Lord, Lord Lloyd, has rightly said, is one of our major export earners.
§ Lord Sandford
I wonder whether I may just intervene very briefly, before my noble friend replies. We have been discussing the assistance and advice which the water authorities can give overseas by way of large scale commercial contracts. But I mentioned on Second Reading that there is considerable scope for them to give assistance overseas to much smaller scale projects by way of a charitable and voluntary effort. That is an issue which I wanted to raise when we discussed Clause 5; but, in view of the lateness of the hour and the considerable amount of work that we still 170 have to do, I prefer to give notice that it is a matter which I should like to raise when we get to this clause at Report stage.
§ Lord Skelmersdale
As the noble Lord, Lord Lloyd of Kilgerran, has said, the question raised by Amendment No. 22 was fully debated in Standing Committee on the Bill in another place on an amendment which, he did not say, was identical in phraseology to the one moved by the noble Lord today. He referred to the Official Report of the Committee stage. In responding to the debate on that occasion, my honourable friend the Parliamentary Under-Secretary of State pointed out the very substantial opportunities which are opening up for British exporters in the water field, and emphasised the importance which we, as a Government, attach to a combined approach by the private sector and the public sector.
Water authorities and water companies have operational, management and technical expertise which is in demand in developing countries. Meeting this demand can draw in British firms, which can also use this expertise to strengthen and complement their bids for overseas business. The aim is to win a larger share of the export market. The noble Lords, Lord Lloyd of Kilgerran, and Lord Howie of Troon, have both said how large the business is already. The Government are fully cognisant of this fact, but accept, too, that the scope for expansion is still very large indeed.
The noble Lord, Lord Howie of Troon, referred to a relatively small number of firms. Incidentally, there is a rather grey area in this respect between the public and the private sectors. I was interested to see, when I was in Costa Rica the other day, that the Common-wealth Development Corporation was one of them, in that it was financing and operating water work, through a consulting engineer, for the capital there. We of course accept—
§ Lord Howie of Troon
Surely, it is not a grey area at all. Those in private consulting know where they are, and those in the public sector know where they are. Sometimes they work in harmony and that is delightful, but there is nothing grey about it.
§ Lord Skelmersdale
What I was trying to point out was that, although in certain respects, the Common-wealth Development Corporation is well within the public sector, and of course comes within the remit of the public sector borrowing requirement, the activity in which it is engaged in Costa Rica has a very private face.
We accept that the phrase in the Bill, to which the noble Lord, Lord Lloyd, has taken obvious exception, and which will enable the provision ofadvice or assistance, including training facilities, as respects any matter in which they have skill or experiencemight be considered to mean that water authorities could become competitors of the private sector, and we recognise that this is a worry. That is why we have made it clear to the water authorities that the private sector must remain the overall leader in this field, although there should be a partnership; as indeed there is at the moment. Clause 5 will as we have heard, 171 require the consent in writing of the Secretary of State before the water authorities or companies will be able to avail themselves of their new powers.
The debate has centred on the guidelines, which were published the week before last. These have been produced to give clear advice as to the basis on which that consent will first be given and secondly operated. They include a commitment to protect the private sector from unfair competition. This will ensure that the Government's intentions are respected, without writing unnecessary restrictions into legislation; restrictions which might very well prevent water authorities from offering help which consultants would like them to offer.
In short, we recognise the concern which has been expressed by noble Lords and the consultants themselves. We agree that the water authorities and the companies should not become competitors of the private sector; and, indeed, they have no intention of so doing. We see co-operation between public and private sectors as the key in all this, and we have ensured that this is to be the approach through the guidelines on the way in which the Secretary of State will grant consents that we have issued. For those members of the Committee who do not have them, copies of the guidelines are available in the Library.
The noble Lord, Lord Howie of Troon, referred to the general point of putting guidelines into legislation. I agree that on the face of it this might be considered to be a very desirable objective, although other nationalised industry guidelines, where appropriate, were not put into primary legislation, for one very good reason: that once they are put into primary legislation they are fixed; it is impossible to change them without changing the primary legislation. In a situation which is developing as we go along, as I hope this very close relationship betweeen the private and the public sector is and will be, it would be a mistake to have fixed guidelines. It would be sensible to have them in such a form that they can be amended.
§ 9.2 p.m.
§ Lord Howie of Troon
I am not at all convinced by the concluding remarks of the noble Lord, although I am grateful for them, because he dealt precisely with what I said. I am a little alarmed by the fact that in the case of a good deal of legislation—employment legislation is a very good example—we have legislation and codes of practice which are not binding. The same applies in this case. The legislation is binding and the guidelines are not, although the guidelines are useful and agreeable. I wonder whether it would be terrible if we had to amend legislation from time to time. If we were amending legislation in the way the noble Lord the Minister seems to have in mind—that is changing the guidelines when they were incorporated in legislation—we should be dealing with one-clause Bills. They would take up about a minute of the time of this House. Even if we were hard-pressed, we could surely spare a minute for Bills of that kind. It would be neither impossible nor difficult. Indeed, the result would be much more important. It would give reassurance to those people who are affected. Surely that is one of the reasonable purposes for which 172 legislation is passed. The guidelines are valuable, but if the guidelines were in the legislation they would be even more valuable. That must be desirable. If to change them from time to time—I cannot believe that it would happen very often—were a burden, it would be a burden which would be placed upon us, not upon somebody else, and once in a while it would not do us a great deal of harm to have to do a little extra work.
I am not at all sure about my noble friend's intentions with regard to the amendment. I wish to say that I support very fully what my noble friend Lord Lloyd of Kilgerran has said. This is a matter which concerns me, as it concerns noble Lords in all parties who spoke at Second Reading on Clause 5 and who have spoken on it at other times. Having listened to the reply of the noble Lord, my difficulty is that I find that the second half of his speech is in direct conflict with the first half. The first half seemed to be totally without sympathy for the arguments advanced by my noble friend, but when the noble Lord reached the second half of his answer he sounded very much more amenable and understanding. I shall want to look very carefully at his speech to find out whether I can see on which side of the fence he comes down.
The noble Lord concluded his remarks by referring to the guidelines. I have not studied the matter with the care my noble friend has devoted to it. However, I looked through the reports of the proceedings in another place and saw that the matter arose there at Report. The Minister who replied to the debate made much of the question of the guidelines being an answer to the point which had been raised. It seemed to me that the Minister accepted the force of the argument behind the amendment but felt that the situation was probably best met by the guidelines. It appeared to me that a moment ago the noble Lord repeated that view and asked, "Why write that into the legislation? Surely it is better just to have guidelines, bearing in mind that they relate to the circumstances in which the Minister will give or will withhold consent". This is rather different from the purely advisory guidelines to which the noble Lord, Lord Howie of Troon, referred.
I am not sure how much comfort I derived from listening to the noble Lord's justification for urging us to rely upon the guidelines. He said that the difference with guidelines as against writing this into the legislation is that we can change them whenever we feel like it. The Government prefer guidelines because they are not fixed; therefore if they are not suitable we can alter them. I should feel happier about the guidelines if they were not subject to alteration behind the scenes, as it were, without warning and without further debate.
I make these few remarks in order to give my noble friend time to think about what he is going to do and to express the hope that whatever he does do will enable us to return in a practical and productive sense to this point at another stage of the Bill.
§ Lord Skelmersdale
I rather think that the noble Lord, Lord Winstanley, is in danger of putting the cart before the horse, because he has reversed the argument I was trying to make. This was not that one should be suspicious of the guidelines because they are not 173 embodied in legislation but rather the opposite: that if they were embodied in legislation one would find it extremely difficult to alter them. Were there general agreement, I am not suggesting that my right honourable friend the Secretary of State would do a one-man alteration at the flick of a pen to guidelines which had become well established. This is not the intention and to my knowledge has never occurred with any set of non-statutory guidelines.
The noble Lord, Lord Howie of Troon, said that it would be very easy to find the odd minute here or there in one House or the other to amend statutory legislation by means of a one-clause Bill. After slightly over two years in this job I am beginning to understand that it is not so easy as the noble Lord would have us believe. There are all sorts of constraints on the legislative timetable. Three Cabinet committees are sitting permanently on various aspects of legislation, to say nothing of other discussions which go on all the time. It may well be that the consensus of opinion is that that one minute—which, incidentally, we have noticed this evening can very quickly turn into a hundred—is prevented by what is generally regarded as more important legislation. So, with the greatest respect, I am afraid that particular piece of the argument of the noble Lord, Lord Howie, does not hold water.
Similar guidelines were issued in relation to the British Airports Authority when legislation on that body was recently being enacted. As I have said, the difficulty of putting them into the legislation is the inflexibility of that course. As the noble Lord himself said, the guidelines would have taken 20 or 30 pages of the Marshalled List. In fact these are somewhat shorter, so they would not have taken quite that much. It is axiomatic that they would have taken that amount of space in the final Act, assuming that it gets the Royal Assent. It would, therefore, be difficult at best, impossible at worst, to introduce new limits, if that were necessary. In spite of the confusion of the noble Lord, Lord Winstanley, over what I actually said and the marrying of my three different points together, I can assure him that I have taken this point very firmly on board and the guidelines do reflect it.
§ Lord Howie of Troon
Having spent several years in the Whips Office in another place, I do not really think the noble Lord, Lord Skelmersdale, should teach his grandmother how to suck eggs, as it were.
§ Lord Skelmersdale
If the noble Lord will give way, I said I was beginning to understand. I did not say I had anything like the experience of the noble Lord, Lord Howie of Troon.
§ Lord Howie of Troon
So I noticed, and I really think that will not do. If the Government wish to find a minute here or there, they certainly can. The noble Lord is quite right; a minute on the Order Paper sometimes turns into ten or twenty. But we do sit something like eight months out of the year, and out of the other four months they could find the half-hour needed for this. That is not really the point. The point lay in my reference to the reassurance to a particularly useful body of people, big earners of overseas incomes, almost the biggest per capita there are—they might 174 well be the biggest, I am not quite sure. For that kind of reassurance we as legislators can spare the odd half-hour or half-day, even if it means, as has sometimes happened in my recollection, that the House sits as late as 12th August.
§ Lord Lloyd of Kilgerran
Like my noble friend Lord Winstanley, I was somewhat confused by the initial speech made by the noble Lord, Lord Skelmersdale, in reply to my opening speech. Perhaps I may ask the noble Lord a couple of questions in order to try to clarify the position. I am very grateful to him for the care he has taken in replying. He did refer to a combined approach between the public sector and the private sector, and he referred to what the Minister in the other place said—that they did not want to have competition between the public and private sectors but there were opportunities for them to combine together in relation to overseas business.
Do I understand that the Minister is really saying that there should be a specific requirement that the water authorities and the water companies, when operating outside the fields of manpower training and operations in which they have very special skills and expertise, should undertake the other aspects of overseas work jointly with the private sector; in other words, that there should be no schemes or projects undertaken by the water companies and water authorities, outside manpower training and operations work in which they have these special skills, without the support of the consultants? I am not sure I quite understand what the noble Lord is saying, but I believe that was the tenor of his speech.
With regard to guidelines, the consulting engineers in this big business industry are mistrustful of guidelines in any form and would infinitely prefer to have the safeguards included in the legislation itself. I am not going to press this matter any further in relation to guidelines, particularly having regard to what the noble Lord, Lord Howie of Troon, has said, but I should like to have an answer from the noble Lord, Lord Skelmersdale, about this specific requirement, as I understood him to say, that bodies in the public sector should always combine with the private sector, with private consultants, when dealing with business outside manpower training and operations in which the public sector has such skills.
§ Lord Skelmersdale
If we look at the guidelines and indeed Clause 5 of the Bill—which I have temporarily mislaid, but I think I remember it correctly—the Secretary of State has to give his consent before the public sector is allowed to do anything in connection with Clause 5. What my honourable friend said the other day in another place, and what I am saying now, is that, in cases of danger of competition between the public and private sectors, this is something he would have very much in mind, and he would see the public sector as being an adjunct to and not a competitor of the private sector. I hope that answers the noble Lord's question.
§ Lord Lloyd of Kilgerran
The noble Lord mentioned the guidelines associated with the overseas activities of the British Airports Authority. There, as the noble Lord knows, the authority is instructed to arrange its 175 overseas business so as to gain an improvement in the total facilities which consultants, contractors and suppliers in the private and public sectors together are able to offer for overseas project work. In the particular guidelines to which the noble Lord referred, it is laid down—and I am reading from those guidelines—that,There shall be the two private and public sectors working together in relation to a particular project".Is that the kind of guideline which he thinks should be included?
§ Lord Skelmersdale
That is the sort of thing which will be going through the Secretary of State's mind. What I will have to take advice on, if I may write to the noble Lord, is whether it ought to be specifically written down.
§ Lord Howie of Troon
I wonder whether the noble Lord will write to me as well. I am a terrible reader.
§ Lord Lloyd of Kilgerran
In view of the late hour I do not think I should press this matter further. I understand from what the noble Lord said that the guidelines are still in draft form and that nothing has yet been finalised. May I ask whether that is the position?
§ Lord Skelmersdale
No, I did not say anything of the sort. What I said was that I was not sure whether the points raised by the noble Lord would be more appropriate to be in the mind of the Secretary of State or in the guidelines, and that I will take advice, which is very different.
§ Lord Howie of Troon
Is there any way in which we can get them out of the mind of the Secretary of State and into the guidelines?
§ Lord Lloyd of Kilgerran
I think that the noble Lord and myself are at cross purposes. I was asking whether the guidelines have been finalised, whether the Government will consider representations in relation to them, or whether the Secretary of State has finalised the guidelines?
§ Lord Skelmersdale
Yes, until this evening we did consider the guidelines as final, but after today's short debate I will, of course, consider whether they are totally final.
§ Lord Lloyd of Kilgerran
I am much obliged to the noble Lord. In view of that assurance that the matters raised during this short debate will be considered, all that remains for me is to thank those who have supported me in regard to this important matter. I will reconsider what the noble Lord has said and also the guidelines, which I have not yet fully studied, and reserve the right to come back on Report. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.176
§ 9.18 p.m.
Lord Skelmersdale moved Amendment No. 23:
Page 4, line 36, at end insert ("; and for the purposes of this section, statutory water companies shall have the same powers as water authorities have by virtue of paragraph 2(1) of Schedule 3 to the Water Act 1973.").
§ The noble Lord said: In another place it was put to us that the statutory water companies had no powers to form subsidiary companies and that without such powers there was a risk to their customers of their being involved in overseas work.
§ When this matter came up the Government spokesman, my honourable friend the Parliamentary Under-Secretary of State, commented that it was not clear to us that the water companies in fact lacked the powers in question. We have, however, looked further into this matter and are now satisfied that the point which was being put to us is valid; namely, that the water companies do not have powers to create subsidiary companies.
In our view it is important that they should have these powers in order to minimise the risks to their customers. The purpose of the amendment, therefore, is to provide those powers in respect of export activities only. The effect of it is that the water companies in relation to their overseas activities shall have the power, and I quote:
to do anything (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which in the opinion of the company is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions".
This confers on the companies in relation to export work precisely the same powers as the water authorities now have. It embraces the power to form subsidiaries. I beg to move.
§ On Question, amendment agreed to.
§ Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No. 24:
Page 4, line 44, at end insert—
("( ) In the exercise of the powers conferred by subsection (1) above a water authority or statutory water company shall—
§ The noble Lord said: This amendment concerns three aspects of the powers which should be introduced into the Bill in order to limit the activities of the water authority. In view of what the Minister has said about the issue of guidelines, I do not think that I would wish to press this amendment at the present 177 stage or to talk about it at any great length. Therefore I do not propose to move this amendment at this stage.
§ [Amendment No. 24 not moved.]
§ On Question, Whether Clause 5, as amended, shall stand part of the Bill?
§ Baroness Fisher of Rednal
On Clause Stand Part I will not keep the House very much longer, but I have listened with great interest to what the noble Lord has been saying. At Report stage will he outline to the Committee the activity which is expected from the International Advisory Company Limited, which was made mention of in the other House during the course of Committee B? The main arm of the National Water Council, which had been doing all this work under the guise of the International Advisory Service, has now been formed into the International Advisory Company Limited. I just ask the noble Lord whether on Report he can perhaps bear that in mind.
§ Lord Skelmersdale
Most certainly. I am not quite sure whether it is an appropriate subject for Report, because of course an amendment would need to be moved to do it, but I shall certainly find out about this and at the very least write to the noble Baroness. Perhaps it may be appropriate to put it in Hansard in one form or another, but perhaps we can liaise afterwards on that one.
§ Clause 5, as amended, agreed to.
§ Clause 6 [Arrangements for carrying out sewerage functions]:
§ Baroness White moved Amendment No. 25:
§ Page 5, line 9, leave out from ("functions") to end of line 13 and insert—
- ("(a) in subsection (1), for "Subject to subsection (6) below, it shall be the duty of a water authority and every relevant authority whose area is wholly or partly situated in the water authority's area to endeavour to" there is substituted "A water authority and every relevant authority whose area is wholly or partly situated in the water authority's area may";
- (b) in subsection (2), line 1, for "shall" there is substituted "may";
- (c) for subsections (4) to (7) there is substituted:
- "(7A) The parties to any arrangements in force by virtue of subsection (1) above may vary or end the arrangements but in default of agreement the relevant authority may apply to the Secretary of State for a direction that arrangements in force shall continue.
- (7B) On any application under the preceding subsection the Secretary of State may direct that arrangements in force shall continue, subject to any variation specified in the direction, and such direction shall be binding on the parties until revoked by the Secretary of State by a further direction.
- (7C) In considering whether to give a direction under subsection (7B) the Secretary of State shall").
§ The noble Baroness said: I now move the amendment standing in the name of the noble Lord, Lord Sherfield, and myself. I do so because the noble Lord, Lord Sherfield, as I explained at an earlier stage, is abroad. We very much regret that he is not able to put the case to your Lordships with the authority which he can command on this particular subject of agency.
§ This is a very important part of the Bill because it affects the relationships between the water authorities 178 and local authorities in this question of sewerage. I would hope that nobody speaks in this debate tonight who has not read and fully digested at least Chapter 14 of the report by the Monopolies and Mergers Commission on the sewerage functions of the Anglian Water Authority and the North-West Water Authority. There is no doubt at all that it is in that chapter that one has set out in, I think, very effective detail the intricacies of this particular relationship which was established in the principal Act of 1973. As it rightly says, the central question is whether the arrangements under the existing Section 15 of the principal Act provide a satisfactory framework for achieving efficiency. Your Lordships will recall that the arrangement at present pertaining is that the water authorities are under a duty to endeavour to make an arrangement with the councils partly within their area, for the carrying out of the repair and maintenance of existing sewers, the monitoring and maintenance of pumping stations and the capital investment in both sewers and pumping stations which may be required. As the Monopolies Commission says, the so-called agency prescribed by Section 15 is an odd one—I use their phrase. It is odd because the principal has no choice about whom he employs as agent and sees great difficulty in dismissing him if his performance turns out badly.
§ I should perhaps explain that the Select Committee on Science and Technology, which has recently reported on the water industry, including this aspect of sewerage, did not feel that it was suitable or desirable for it to go into the totality of the intricacies of this relationship because the Monopolies and Mergers Commission had done, we thought, a very thorough and basically very satisfactory job. I will come on in a moment to the particular issues with which the Select Committee on Science and Technology was concerned within its own remit. But it would be only fair, in the light of the succeeding amendments which are on the Marshalled List, for one to refer a little further to the Monopolies and Mergers Commission's much more comprehensive investigation into the matter.
§ Having said on the one hand that the relationship was an odd one and clearly in many respects not satisfactory to the water authorities, on the other hand the Monopolies and Merger Commission also were at pains to point out that any terminations of this relationship in particular instances could bring considerable disadvantages and hardships to the local authorities. They make a very well balanced case coming down quite firmly on the view that the savings which are available—particularly technologically and organisationally—should the water authorities take over the responsibilities directly themselves, might be achieved without the general abolition of Section 15 arrangements. They also point out very fairly that while there can be technological and, therefore, ultimately financial advantages in a much more centralised organisation under the water authorities, nevertheless there are undoubtedly likely to be significant residual costs and difficulties of deployment of manpower and resources for local authorities. That is all very fairly and fully set out.
§ But the Monopolies and Mergers Commission were also perfectly clearly aware of the facts which were 179 brought constantly to the attention of the Select Committee indicating that there is a very uneasy relationship and that this stems largely from the historical fact that before the Act of 1973, it was the local authorities which themselves undertook these particular sewerage functions. It has proved extremely difficult for many local authorities, although by no means all, to accommodate themselves to the idea that they are not in fact principals in this area but that they are agents and therefore must accept that it is the responsibility of the water authorities to propose both a strategic plan for dealing with sewerage problems and also to further, as rapidly as may be, the pursuit of technical innovations which might be of general advantage.
§ They put it quite clearly in their report that the councils must recognise that the water authorities have the right to supervise their activities as closely as is necessary to achieve cost-effectiveness and qualitative standards. Moreover, the councils must accept that they are acting as agent and must work to achieve the objectives set them within the cost, technical and design parameters laid down by the water authorities.
§ Chapter 14 then proceeds to point out that there are in fact doubts as to the precise powers which a water authority can legally exercise under the model arrangements—that was presumably a previous term for "guidelines"—which were established following the passing of the 1973 Act. The report comments that these doubts as to the legal position and powers of the water authorities are an important obstacle to the efficient operation of Section 15. Their resolution ought not to be left to a dialogue between the councils and the water authorities or to the test of court proceedings.
§ It then goes on to list various situations in which the water authorities are in doubt as to their precise position. It mentions other areas of uncertainty which I think we would not perhaps wish to go into tonight, beyond pointing out that there are very serious doubts as to the precise legal relationships between them. Finally, they say that they were in no doubt that, not merely on recurrent work but on the selection and control of capital works, the water authorities did not have a satisfactory position; they indicated that the two authorities which they had been especially commissioned to investigate—the Anglian Water Authority and the North-West Water Authority—said that they found it impossible to carry out their responsibilities in capital operations under the existing Section 15 arrangements.
§ For example, the North-West Water Authority said that it cannot rely on the districts to identify projects to establish the correct priorities, and it believed that it should be given direct control of capital programmes and the furthering of their progress. The Anglian Water Authority was perhaps not quite so emphatic, but I must say that on the Select Committee we had other evidence which reinforced the opinions recorded here of these two major water authorities.
§ At paragraph 14.19 the Monopolies Commission says that these arguments of the water authorities are serious and substantial. They conclude that model arrangements do not unambiguously give the water 180 authorities the authority they need to establish regional strategy or capital programme, and that the model arrangements should be varied. I recognise that model arrangements are not by statute; nevertheless, they are the conditions under which these agency arrangements have hitherto been working. The Monopolies Commission says that the preferred solution of the two authorities—and I should have thought, from the evidence that we received, that it was the preferred solution of if not all, then certainly the majority of the water authorities—that all agencies be terminated is unnecessary. With this the Select Committee concurred.
§ The commission also said that the existence of the residual cost argument must not be used as a general argument against change, and it says finally that, apart from various amendments to the model arrangements, it was likely that amendment to Section 15 itself would be necessary.
§ I have gone into this at some length because I think it is very important in this question that we should have the background. There are 10 water authorities in England and Wales. There are more than 350 agency authorities, which are well and skilfully organised and led. Therefore, it is important that we should be quite clear that there are very considerable and substantial difficulties in the existing situation. Of course, the Select Committee itself was primarily concerned with the extent to which the present agency arrangements are impediments to improving the scientific and technological basis of our arrangements for sewerage. As the noble Lord, Lord Sherfield, himself said on Second Reading, the conclusion to which we came in our endeavour to establish whether the agencies affected the water industry's technical capacity, was that the agencies were undoubtedly a "hindrance". That I think was a carefully chosen word.
§ We took evidence not only from water authorities themselves in addition to those that were so fully examined by the Monopolies Commission, but from other sources, including, for example, the hydraulic research station. As we say in terms, their evidence to us was that in their experience agent authorities are much more reluctant than water authorities to use modern methods—computer based programmes and flow analysis—which have now become possible because of modern communication systems. It is disturbing to find that they should suspect that many local authority agents are using what they called outdated tools in analysing the hydraulic performance of their sewerage system, and were not in a position to take advantage of new methods of analysis of flow, and so on, which are of course bringing about a revolution in the administration of this particular kind of function as they are in so many other directions.
The Severn-Trent Water Authority—and it is after all one of the largest in the country—said in its evidence at paragraph 442:
There is some resistance by district councils to the introduction of new technology because of staffing implications and because some of these developments represent a loss of autonomy. The argument usually proffered is one of local response and immediacy, but the underlying reason is thought to be a feeling of loss of power of control.
This is understandable if one looks at the historical background.
§ However, the fact remains that if one is going to take advantage of modern technology one can do it effectively in many situations only on a scale which is larger than that at least of the smaller authorities. One cannot possibly employ some of the modern methods which are now available without extending the field of operations, for example, to a division of a water authority which would normally embrace a number of the smaller authorities. This would not necessarily apply to a metropolitan authority, but in the rural areas particularly one is not likely to find smaller authorities which can be employed effectively in this way.
§ For the reasons on which I have just touched, while the Select Committee agreed with the Monopolies Commission that one did not want to bring the whole agency concept to an end, we felt that the water authorities were being put under constraints which they found certainly irksome. This is why in the amendments on the Marshalled List which, had he been here, the noble Lord, Lord Sherfield, would have moved, it is proposed that instead of maintaining the words in the existing Act which impose a duty, it would be a permissive function of the water authority to come to an arrangement with the councils within its area.
§ I am not certain where we stand on discussing the related subsequent Amendment No. 27 in the name of the Minister, the noble Lord, Lord Bellwin, or Amendment No. 28 in the name of my noble friend Lady Fisher. I understand that the Government are not proposing to press their own amendment this evening, which puts one in a slightly ambivalent position. I have made, so far as I am able, the position of our Select Committee clear, but I am not sure how far it would be appropriate to continue to discuss the attitude as expressed in the present Government amendment, with which I think the Select Committee would have been sympathetic, or the somewhat different stance taken by my noble friend. I do not know whether the Minister wishes to intervene at this point to explain his intentions?
§ Lord Bellwin
That might be helpful. I had intended to speak to this amendment and to Amendment Nos. 27, 27A, 28, 46, 47 and 48. I understand that the usual channels have discussed the matter so, with the leave of the Committee, I will deal with those also.
I listened to the noble Baroness very carefully and perhaps I might take this opportunity to set out the Government's position on the various proposals for amending Clause 6. The 1973 Act provided for sewerage arrangements between water authorities and local authorities, recognising that there were links between sewerage and local authorities' other functions and that there were benefits in local knowledge. However, there has been unease, as the noble Baroness fairly said, from time to time since then over whether the arrangements were such as to result in an efficient service.
In March of last year we asked the Monopolies and Mergers Commission—again, as she rightly pointed out—to investigate the efficiency of the two authorities concerned, Anglian and North West. The commission concluded that sewerage arrangements should, 182 generally, continue, but that in order to improve efficency, changes should be made to give water authorities better control. They noted with concern the attitude of some district councils who resented what they saw as interference from water authorities.
We consulted the water authorities, local authorities and others about the proposed amendments to Section 15 arising from the MMC report and there was a large and varied response. We also noted carefully the conclusions of the Select Committee on Science and Technology, who commented on sewerage agencies in their recent report on the water industry.
The Government's guiding principle is that the sewerage functions required by the Public Health Acts should be carried out as effectively and efficiently as possible. We also believe that water authorities should retain overall responsibility for sewerage, in line with the principle underlying the 1973 Act, which gave them unified management of the whole water cycle. We accept the MMC's conclusion that local authorities should, generally, continue to carry out sewerage on behalf of water authorities under the Section 15 arrangements.
Within this framework we need to consider carefully how to strike the right balance so that water authorities will be able to control the activities of their agents and secure the efficient operation of sewerage without losing the benefits of local involvement.
We have tabled an amendment which would remove the duty on water authorities to endeavour to enter into arrangements, would change the procedures for ending or varying arrangements and would make other changes. This is similar in effect to Amendment No. 25 standing in the name of the noble Lord, Lord Sherfield, which of course reflects the report of the Select Committee which was chaired by Lord Sherfield.
The Government are concerned about the continuing unease among local authorities regarding the effects of the amendments. We have never envisaged any general termination of sewerage agencies. We want them to continue unless there are good reasons why, in specific cases, they should end. But we also need to ensure that the wording of the statute is consistent with our aim of improving efficiency.
The question of the right of appeal for local authorities who seek to establish new arrngements, in cases where they do not exist already, is also a matter of concern. We consider that perhaps such an amendment should be incorporated into an amendment such as the one that we have tabled to remove the existing duties on water authorities to seek to enter into arrangements. This is another point that we want to look at again, and that is why this evening I shall not be moving my amendment.
We feel that we ought to consider these detailed points more carefully, not least in the light of what the noble Baroness said. I was so pleased that she went to the trouble of putting the matter in such detail, and we shall note it carefully. We believe that we should also consider the points more carefully not least in the light of further representations made, so that we can try to make sure that we are striking the right balance. In the thousands of amendments with which we deal we are 183 told that we ought to consider the representations more carefully, and we always try to do so. There are times when perhaps we ought to give even extra consideration, and so we shall certainly return to this matter at Report stage. That is an undertaking that I give. The noble Baroness, as well as the noble Baroness, Lady Fisher of Rednal, my noble friend Lord Sandford, and others, have expressed concern. I hope that, in the light of the assurance that I have given about returning to the matter at Report stage, it will be agreed not to proceed with the amendment. We intend to return to the matter at Report stage, once we have been able to give it additional consideration.
§ 9.47 p.m.
§ Baroness Fisher of Rednal
I have listened very attentively to what the Minister has said. As he rightly said, this is an important issue. It was discussed at very great length in committee in another place, and there was all-party support for the need to consider very seriously the Section 15 agency arrangements. I should like to thank the Minister for the amendment that he has placed on the Marshalled List, but not yet moved. That is in line with an agreement in the other place that there would be an amendment when the Bill came to your Lordships for consideration. So we thank the Minister for going that far, and we look forward to the Report stage, bearing in mind the undertaking that he has just given to us.
I want to spell out one or two points which I think it is important for your Lordships' Committee to understand. My noble friend Lady White went into great detail with regard to this matter. I, too, have read Chapter 14 of the report very diligently. It covers a great number of points. What the noble Lord has said accorded with what was said during the Committee stage in the other place. It was stated that many of the observations in the Monopolies and Mergers Commission's report were accepted, and it was not envisaged that many local authorities or water authorities would move away from the arrangements.
I accept what the noble Baroness, Lady White, said. Obviously, she read the various sections of the report that suited the case that she was putting forward, and I do not blame her for doing that. But parts of the report are very much in favour of the district councils and other local authorities, and that point was I believe made clear when the Minister spoke in the other House on Third Reading. I shall not delay your Lordships' Committee for very long, but Chapter 14, paragraph 7, of the report states:We must consider particularly the effect on DCs of the residual costs which they may have to absorb"—and the noble Baroness made that particular point—
if part of their manpower and equipment is not taken over by the RWAs. In addition, there are the possible increases in costs to DCs of discharging their own responsibilities for drainage, council-owned private sewers and public health, which may arise because economical scheduling of gangs becomes more difficult when their work level is reduced".It is important for us to recognise that many of the large local authorities—those that are in the AMA—have large housing estates, with council-owned sewers. In those instances the councils' own arrangements apply. Therefore, it would not become 184 part of Section 15 even if there was a change of agency. I think I am correct in that point of view.
Another point that was brought out by the Monopolies Commission was that it is important that sewer repair and maintenance are linked with highways and local planning. The two things very often can go together. There are always the grievances from the general public who say: "Who dug that hole? It was filled in last week and it has been dug again this week". If the local authorities are in charge, there can be greater co-ordination regarding highways and local planning.
Obviously the maintenance of the sewers fits in quite naturally with their existing responsibilities under the Health Act 1936 to which the noble Lord the Minister drew attention. Perhaps I may say that the Monopolies Commission drew attention to how emergency services can very quickly be brought into action by local agencies. The local authorities normally have standby personnel—a phrase mentioned during our debate on the water dispute. Standby duties are part of emergency arrangements and they are part of emergencies that might happen with sewerage. Therefore, the local authority in that capacity can quickly respond to emergencies.
Therefore, I think one has to ask oneself this question. If the agency arrangements are terminated, who is going to undertake the work? That is the question that has to be posed and that is what the Government have to face up to. Will it be the direct labour of the water authority? Is that what is envisaged? Or will it be some private enterprise group that moves in and undertakes the work in the local authorities? I think the answer to that is a very important one; because district councils (as the noble Lord the Minister has said) are responsible for public health in their area and a variety of allied duties under the Public Health Act revolve around maintaining sewers and all the problems that could arise in connection with public health if they are not maintained correctly. The public have to be secure in the knowledge that any change in procedure will not give cause for concern. That is why I posed the question of who will take over if the agency is not kept by the local authority.
If we come particularly to the amendment in my name, I know that the amendment is only proposing a revision to Section 15 as it was originally drawn in the 1973 Act. But also we are trying to recognise the needs of the water authority, as they have become more identified and as they have been established since 1973. In acknowledging that, we are acknowledging that district councils also have a right to be treated fairly. To this end it is essential that future agency arrangements should rest on a secure basis without the unsettling factor of a constant threat of permanent termination by application of the water authority to the Secretary of State. There has been a lot of unease in local authorities since this report was made because there is this feeling that at any stage they might be told, "Your agencies are going to be terminated". That cannot make for good working arrangements between the water authorities and the local authorities.
We have in our amendment in subsection (6) a provision which seeks to give to a council time to 185 correct any serious default which may be alleged against it by the water authority concerned. If there is a serious default or a criticism of a local authority, the water authority should give time for the local authority to correct that fault before an appeal to the Minister to end the agency. But if the local authority does not measure up well, that is up to it. It then runs the chance of losing its agency when it makes its appeal to the Minister. I think perhaps that notification and time to rectify a fault must be given to it.
That is why we feel our amendment merits support. I know there is an implication that we still include "duty to endeavour". But it is a duty to endeavour to seek, to try to enter. The duty is to endeavour to have an arrangement. Quite obviously, it might mean that the endeavour does not come off. We are asking that the duty should be there to try to get the agency arrangement through the local authority, but, if for some reason that endeavour does not pay off, we fall back on an option, as the noble Lord has in his amendment.
The association has a fear, on the part of the larger metropolitan authorities in particular, that if water authorities have this amendment of ours it will give an opportunity for local authorities to look in terms of their own manpower. There is a great unease that if they lose their agencies their loss of manpower will be quite substantial, because they will lose the flexibility of using the men on sewers to work on something else for the water authorities. Not only will they lose the manpower that gives them flexibility, but they may also find themselves in difficulties in attracting and holding in the local authorities the engineers whom we were talking about at great length earlier. It is important for professional and career-minded engineers operating in local authorities to have a variety of interests. Therefore, sewers become one of their interests, amongst others. There are problems for local authorities of which I know the noble Lord is fully aware. We ask him to consider these problems when he returns with a further amendment.
My final and important point comes out in the Monopolies and Mergers Commission's report. It states:We must therefore be careful not to recommend changes which may turn out to be ill-advised in a few years when there is available improved knowledge of the sewerage system, as a result of the work we have described".One of the proposals of the report is that we should not be hasty at this stage after such a short period of time, less than 10 years, in considering changing the system. I am grateful to the noble Lord for the observations he has made. I shall not be pressing the amendment 186 because I feel sure that he is trying his very best, as he says, to get the thing completely right. In that spirit, I accept all he has said.
§ Lord Sandford
I was sorely tempted to stir up the squabble which I thought was developing between the two noble Baronesses opposite, but I will resist that temptation and say that the acceptance by the Government of the idea of a power rather than a duty which results from the studies of our Select Committee and the report of the Monopolies and Mergers Commission is the correct stance to adopt. It only required the modification which my noble friend on the Front Bench indicated that he would add to the amendment he originally tabled to produce the accord which I ventured to suggest at Second Reading could be reached if we all applied our minds to this matter. Therefore I am very grateful for what my noble friend has said and I look forward to the amendment.
§ Baroness White
I think this has been a useful discussion even though it has led at the moment to no statutory conclusions. I was most grateful to the Minister for explaining clearly the position of the Government and their endeavours to square the circle or solve the insoluble. I am also grateful to my noble friend for her very clear exposition of the main points of the amendment standing in her name.
I do not think any good purpose will be served by pursuing the arguments further this evening, but perhaps I may just suggest to my noble friend that the one thing which really disturbs me in her own amendment is in subsection (6), in which it is suggested that a water authority should wish to terminate an agreement which might be a partial agreement—because it is extremely important to note that the Monopolies and Mergers Commission suggest that there are ways of terminating part of an agreement and not the entire agreement, for example, to take advantage of technological change. She suggests that it is always a question of serious default, but I would beg her to believe that it is not necessarily that at all. It is a situation in which you may need to have a change in the arrangements because of telemetry, for example, which permits remote recording and monitoring of local data in a way which is just inappropriate if you have a large number of separate authorities with agency arrangements. However, I will not pursue that at the moment and I think the sensible thing is to ask leave to withdraw Amendment No. 25.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos, 26, 27 and 28 not moved.]
§ Clause 6 agreed to.187
§ 10.4 p.m.
Lord Sandys moved Amendment No. 29:
After Clause 6, insert the following new clause:
§ ("Civil liability of statutory water undertakers for escapes of sewage.
§ .—(1) Where an escape of sewage, however caused, from a sewer of statutory water undertakers causes loss or damage, the undertakers shall be liable, except as otherwise provided in this section, for the loss or damage.
§ (2) Statutory water undertakers shall not incur any liability under subsection (1) above if the escape was due wholly to the fault of the person who suffered the loss or damage or of any servant, agent or contractor of his.
§ (3) Statutory water undertakers shall not incur any liability under subsection (1) above in respect of any loss or damage suffered by any excepted undertakers for which they would not be liable apart from that subsection.
§ (4) The Law Reform (Contributory Negligence) Act 1945, the Fatal Accidents Act 1976 and the Limitation Act 1980 shall apply in relation to any loss or damage for which statutory water undertakers are liable under this section, but which is not due to their fault, as if it were due to their fault.
§ (5) Nothing in subsection (1) above affects any entitlement which statutory water undertakers may have to recover contribution under the Civil Liability (Contribution) Act 1978; and for the purposes of that Act, any loss for which statutory water undertakers are liable under that subsection shall be treated as if it were damage.
§ (6) Where statutory water undertakers are liable, under any enactment or agreement passed or made before the coming into force of this section, to make a payment in respect of any loss or damage, they shall not incur liability under subsection (1) above in respect of the same loss or damage.
§ (7) For the purposes of this section—
- (a) "damage" includes the death of, or injury to, any person (including any disease and any impairment of physical or mental condition);
- (b) "excepted undertakers" means—
- (i) statutory undertakers within the meaning of section 290(1) of the Town and Country Planning Act 1971;
- (ii) any highway authority within the meaning of the Highways Act 1980;
- (iii) any bridge authority, bridge managers, street authority or street managers within the meaning of section 39(1) of the Public Utilities Street Works Act 1950; and
- (iv) any person on whom a right to compensation under section 26 of the said Act of 1950 is conferred;
- (c) "fault" has the same meaning as in the Law Reform (Contributory Negligence) Act 1945; and
- (d) "statutory water undertakers" has the meaning assigned to it by section 11(6) of the Water Act 1973.
§ (8) This section shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint.").
§ The noble Lord said: We have left Clause 6 and we now come on to the matter of civil liability of statutory water authorities for escape of sewage. A new clause of this length and complexity should have some reliable antecedents and I hope that I can assure your Lordships that this is the case because we are looking at a part of a statute which is in fact an adaptation of Section 6 of the Water Act 1981.
§ During the passage of this recent piece of legislation, civil liability of statutory water undertakers for escapes of water from water mains was accepted as a suitable amendment, and tonight I hope that my noble friend will consider favourably the equivalent civil liability of statutory water undertakers for escapes of sewage, which would rectify what we considered to be a glaring anomaly.188
§ Here I should declare an interest both as a householder and as a landowner and pass on to the history of civil liability in this field. In this regard, a certain case has astonishingly great importance. This dates back to the case of Green v.Chelsea Waterworks of 1894, in which it was held that an action does not lie in respect of the flooding of land by water escaping from water pipes when the body exercising its statutory powers did so without negligence. Thus, unhappily, there was a requirement for the plaintiff to prove negligence.
§ The situation was reversed in Section 6 of the Water Act 1981, which shifts the burden of proof from the shoulders of the plaintiff to rest upon the much broader shoulders of the undertakers. The comparison between water mains and sewers is a close one, and I think my noble friend will acknowledge from the discussions which have taken place on this subject that this is, happily, the case. The amendment seeks to do the same for sewers, and to shift the burden of proof from the plaintiff to the undertakers.
The extent of the problem of burst sewers is considerable, and it will be valuable if I draw your Lordships' attention to a Written Answer given by the Under-Secretary of State for the Environment, Mr. Giles Shaw, on 10th March, 1982, when he said:
investigations by the Water Research Centre indicate that the number of excavations to carry out repairs to collapsed sewers is of the order of 2,000 per year in England and Wales."—[Official Report, Commons; col. 454.]
I know that many of your Lordships are very well aware of that in parts of the country where you live. My noble friend will also be aware that this matter was discussed at a meeting which was held at the department on 22nd July, 1981, and was carefully considered by his honourable friend Mr. Shaw, who took the chair on that occasion. Without further ado, I beg to move.
§ Lord Skelmersdale
Although a vaguely similar provision for damage from water escapes is in the Water Act 1981, as my noble friend Lord Sandys has said, the Government are not able to accept this amendment. I specifically use the word "vaguely", because there is some similarity here so far as the issue of principle goes, but we do not believe that the two cases have any similarity as regards the practicalities of the matter.
The first and fundamental point is that water authorities and companies have absolute control over what is put into their water mains. They have to maintain the pressures and they add the necessary substances to purify the supply. That is not the case with sewers. The water authorities are of course receiving agents so far as sewage is concerned. They do not control, except in relation to such matters as industrial discharge, what is placed in their sewers and, in particular, they do not control quantities and flows.
They are, moreover, at a particular disadvantage in this respect, since there is a virtually unrestricted statutory right, conferred by Section 34 of the Public Health Act 1936 on:the owner or occupier of any premises, or the owner of any private sewer …to have his drains or sewer made to communicate with the public sewers …and thereby to discharge foul water and surface water from those premises or that private sewer.189 In a word, a water authority can do very little to prevent additional connections to their sewers, even where these will overload the system, as my noble friend remarked they sometimes do.
Section 17 of the 1936 Act and Section 15 of the Water Act 1973 together enable local authorities to adopt sewers without reference to the water authority. Indeed, this point was made by the noble Baroness, Lady Fisher, on the last amendment. This, too, presents an additional problem for water authorities, giving them less control than in many respects they would wish over their own sewerage network. The sewerage system is not designed to cope with every eventuality. In particular, if it was designed to discharge all the surface water which there might be in freak storm conditions, we would need massive sewers compared with those which we have at present.
Of course, the existing sewers cope with normal rainfall or even exceptionally heavy rainfall without too much trouble, but to prevent flooding altogether would be enormously expensive. My noble friend's amendment would conceivably give rise to liability in the event of freak weather which is entirely outside the control of water authorities. The amendment would not cover escapes of sewage from the numerous private sewers which exist. My noble friend referred to his own position as both a householder and a landowner. I should be interested to know whether the sewers are his own or whether they belong either to the local authority or to the water authority.
The demand for this amendment has always been expressed in relation to water supply: that is, the amendment now incorporated in Section 6 of the 1981 Act, to which my noble friend referred. We are not aware that failure to extend it to escapes of sewage has given rise in practical terms to major loss. My noble friend drew the Committee's attention to the meeting in July 1981, chaired by my honourable friend the Parliamentary Under-Secretary, with Mr. Ted Graham, an Opposition environment spokesman in another place, and representatives of the water industry, the local authority associations, the Country Landowners' Association and the National Farmers' Union at which all these matters were discussed.
It was recognised that there was very little evidence that individuals were disadvantaged in significant respects by the absence of this provision. It was agreed that the various parties would collect information on cases, but I must point out to the Committee that no information has been submitted to my department since that time. Futhermore, we are still in the first year of operation of Section 6 of the 1981 Act. Until we have some idea of the cost which this has imposed upon the water industry, it would be most imprudent to extend the principles into the area of sewers, even if that were thought desirable.
For all these reasons, I do not feel that the amendment is reasonable in the circumstances. I hope my noble friend will agree with me.
§ Lord Sandys
I am grateful to my noble friend for going in such detail into a matter of both law and costs. The questions he raised with regard to freak weather conditions are materially important. He referred to private sewers. It will be of interest to my noble friend 190 to know that it has been estimated that over 90 per cent. of properties in this country are connected to the public sewer. A number of rural areas are not so fortunate. I happen to be included in the very small percentage of those not connected. This is a matter for further consideration. While I should be only too willing to beg the leave of the Committee to withdraw the amendment at this stage, may I reserve my position for a later stage of the Bill? In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 10.14 p.m.
Lord Winstanley moved Amendment No. 30:
After Clause 6, insert the following new clause:
§ ("Ownership of sewers.
§ . Where, prior to 1st April 1974, a local authority adopted a private street under the provisions of the Highways Act 1959, or any enactment consolidated in that Act, that adoption shall, unless the contrary intention on the part of the local authority appears, be deemed to have vested in that local authority any sewers serving that street.").
§ The noble Lord said: In moving Amendment No. 30, I think I am right in assuming that this new clause has not been overtaken by the events announced in the reply of the noble Lord, Lord Bellwin, to Amendment No. 25, which was moved by the noble Baroness, Lady White. The noble Lord, Lord Bellwin, said that matters had been discussed through the usual channels. I hope it will be understood that when sewers are being discussed noble Lords on these Benches would not believe it very logical to object to not being regarded as part of the usual channels. However, the fact that we were not informed of that development was, I am sure, purely an oversight.
§ Lord Skelmersdale
This amendment stands very definitely on its own. It was never proposed, either 10 days ago or again today, with the revamp of ideas from both Opposition and the Government, that the noble Lord's amendment should be included in any block grouping.
I had deduced that this amendment should not be included in any grouping, but where there are discussions through the usual channels I should like to hope that usually this Bench will be regarded as part of them. In normal circumstances, I am sure that it would. The amendment seeks to deal with what I generally believe to be a nationwide problem. As a Lancastrian, I should confess that information regarding this problem has come to me from Yorkshire where I understand the problem has caused particular trouble. Having said that, I think perhaps I may safely assume that the noble Lord, Lord Bellwin, will know all about the particular problem, and may very well plan to deal with it in some way, perhaps by accepting my amendment or in some other way of his own.
The reasons for this amendment are best explained by an example. The Deanhouse Estate in the village of Netherthong in the Kirklees Metropolitan District Council area of Yorkshire was built in the years 1971 to 1972. The highways were adopted under the 1959 191 Highways Act by the former Holmfirth Urban District Council, and the councillors who were a party to that resolution say that they were under the firm belief that by adopting the highways under this procedure they were at the same time adopting the sewers. The chief executive of the Kirklees Metropolitan District Council confirms this belief. He says:I am informed that it was common practice in former authorities prior to reorganisation to use the powers contained in the Highways Act 1959 to adopt the highway in the belief that in doing so they were also adopting the sewers beneath the highway".It now appears that nearly all the former urban district councils which constitute the Kirklees Metropolitan District Council followed the same procedure as that in Holmfirth.
However, the Yorkshire Water Authority does not accept this practice as either legally or morally binding. Instead, the Yorkshire Water Authority insists that before it will accept such sewers as public sewers evidence must be brought forward in the shape of either (a) a record or a minute of the sewers separate adoption under the 1936 Public Health Act, or, alternatively, (b) evidence on the sewer map maintained by the local authority showing the sewers concerned as public sewers even though they may only have been adopted under the 1959 Highways Act.
Neither of those alternatives seems to offer much comfort to the householders concerned. In regard to the first one, a record or a minute of the sewers separate adoption under the 1936 Act, I am told that in some areas officials and councillors of former urban district councils are convinced that a separate minuted adoption of sewers took place under the 1936 Public Health Act, but they tell me that the records have been lost in the transition from urban district council to metropolitan and non-metropolitan district council status. Therefore, all those minutes having been lost, there is no relief for the householders by that route. With regard to the other alternative, evidence on the sewer map, I am told that in the early 1970s, during the housebuilding boom and the changeover in local government, many of the maps were more or less neglected. Indeed, the sewer map for the Deanhouse Estate area, maintained by the Yorkshire Water Authority offices and not by the local authority offices, still shows a hospital standing on the site of the estate. So there is not much help via that route either.
Although the water authority has adopted this legal stance in all cases, in practice it has only applied this rigid approach in those cases where the sewers have been found to be defective. In those cases the residents are told that the expense of repairing the sewers is their own, and that the water authority will not consider adoption until such time as these repairs, often very expensive repairs, have been carried out to the satisfaction of the water authority. This has caused immense problems and financial hardship to the residents on the various estates affected, and I am told there are many such estates. It lowers house prices; people have difficulty in selling their houses at all, and when they do sell they are often forced to leave substantial sums of money in the hands of their solicitors as a bond in case the residents are proved to be liable for the repair of the estate's sewers.
192 Land searches done on houses on that particular estate have given the answer, "Yes" to questions asking whether the land is drained to a public sewer. More recently the answer has been "Yes, so far as can be determined". Residents on the estates affected all pay full water and sewage rates. At present such disputes can only be resolved by appeal to the Secretary of State under Section 17 of the Public Health Act 1936. That course of action, in fact, has been successful in places like Richmond, in Yorkshire. But it is an expensive business and necessitates a public inquiry for each separate case. That, surely, is a very unsatisfactory way of handling these matters.
Perhaps I should finally make it clear that this amendment is designed only for those pre-1974 local authorities which had a unitary responsibility for both sewage and highways. Some authorities had responsibility for only one or the other. Also, it is to apply where sewers and highways were constructed over the same period. I am quite sure that this problem has already come to the notice of the noble Lord, Lord Bellwin, particularly as it has been a problem that has caused so much aggravation in Yorkshire, However, I understand that it is a general problem and I hope that the noble Lord will have found a solution to it. I beg to move.
§ Lord Skelmersdale
The noble Lord, Lord Winstanley, seems to be making a habit this evening of shooting my foxes before I even see them. However, we shall see how we get on with this one.
I obviously sympathise with the noble Lord's reasons for proposing this new clause to the Committee, but I am afraid I cannot accept it for the following reasons. Reorganisation of the water industry in 1974 transferred sewerage and sewage disposal responsibilities to the new water authorities. However, prior to that, local authorities were frequently both the sewerage and highway authority, as well as having responsibility, incidentally, for building control, housing and planning. It was quite common for the separate statutory agreements concerning the adoption by the authority of private roads and sewers to be combined in one document. Provided they were clearly drafted, no confusion should have arisen. However, I am aware that this was not always the case and, for one reason or another, the intentions of the predecessor local authority have been lost sight of.
I understand from what the noble Lord, Lord Winstanley, said that one of the purposes of this clause is to remedy any such problem by requiring the private sewers lying beneath highways to be adopted by the public authority and so be maintained at public expense. I am also aware that there are variations on this proposition, to which I shall come later.
Legislation already exists, and has done since as long ago as 1936, to enable private sewers and sewage works to be adopted into the public system. One avenue is by agreement at the time of construction between the water authority and the development—Section 18 of the Public Health Act 1936 refers here—and the other by request from an owner of any sewer; that is, under Section 17. There is a right of appeal to the Secretary of State if the water authority refuses the request.
193 The noble Lord, Lord Winstanley, said that he is not terribly happy with this avenue. Nonetheless, it exists in law, has been used and has proved to be effective in by far the majority of cases. Although this latter option does not guarantee adoption in every case, it is an avenue always available to the owner of any post-1936 sewer or sewage disposal works to be exercised at any time, including where the intention of the predecessor authority has been lost sight of.
An important feature is that this latter option obliges water authorities, and the Secretary of State on appeal, to have regard to specific considerations which indirectly protect the public purse; namely, the method of construction of the sewer, its state of repair and its adaptability to the public system.
May I say at this point how interested I was by the noble Lord's reference to Kirklees. There is, as he knows, an appeal case currently before the Secretary of State relating to this particular area. I would ask the noble Lord to accept that I am precluded, because of my right honourable friend's quasi—judicial position in this, from saying anything on that particular case.
Having said that, to return to the more general points in the amendment, I appreciate that house-owners may unexpectedly find that they have a private sewer liability that they may not have known about, usually when something goes wrong. I sympathise with that. However, I do not think, as I was trying to explain earlier, that that problem can be attributed to the legislation. I am bound to say, therefore, that the proposed clause takes no account of the considerations arising on adoption, nor of the open-ended public expenditure implications that would arise, particularly if water authorities were obliged to adopt defective systems, and nor of the views of some owners, albeit perhaps a minority, who may not want adoption of their particular sewers.
Nevertheless, I am aware of the various criticisms made of existing legislation and the suggestions made for its improvement—that all sewers should be constructed to adoption standards, that adoption should be mandatory and that sewers beyond the curtilage of private property should be publicly owned. All those points deserve consideration, but in the context, as I hope the noble Lord will agree, of a comprehensive study so that all the implications can be considered properly. I can assure the Committee that we shall undertake that as soon as there is an opportunity to do so. In the meantime, perhaps the noble Lord may agree with me that it would perhaps not be right in the circumstances to pursue this particular amendment.
I am most grateful to the noble Lord for the care and the detail with which he has replied to this particular amendment. I shall read his reply with very great care and I hope that he will also read what I have said with similar care at a later stage. But I am bound to say that I cannot accept that his answer is wholly satisfactory, in so far as it appeared to suggest that the existing remedy—namely, an appeal to the Secretary of State under Section 17 of the Public Health Act 1936—was an altogether satisfactory 194 safety net for that particular solution, especially when I bear in mind that that method is very expensive and necessitates a public inquiry on each separate case.
I cannot believe that the noble Lord the Minister really thinks that it would be helpful to anybody to have a multiplicity of appeals to the Secretary of State, followed by multiplying public inquiries, which have, as the noble Lord acknowledged, turned out in favour of the appellant on a number of occasions. I fully accept that he cannot comment on the case in Kirklees to which he referred or indeed on any other case that may be pending. But it is a fact that cases that have gone to a public inquiry have in the end ended in favour of the complainant. I should have thought that we ought perhaps to find a more suitable method of dealing with the situation. I accept that the method which has been contained in the new clause which I moved may very well not be the right method. There may be other ways of doing it. On the understanding which I seem to get from the noble Lord that this whole matter is being looked at in general terms, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 10.28 p.m.
Lord Sandys moved Amendment No. 30A:
After Clause 6, insert the following new clause:
§ Power to lay mains.
§ (". Section 19 (power to lay mains) of Schedule 3 to the Water Act 1945 shall apply as if the substitution made for paragraph (b) of subsection (1) by Article 7 of the Local Authorities etc (Miscellaneous Provisions) Order 1977 had not been made.")
§ The noble Lord said: With your Lordships' permission, I should like to speak to Amendment No. 38B at the same time as Amendment No. 30A. I think that it will be in the interests of the House if I condense my remarks as much as possible at this late hour, but perhaps I should say that the present law is that public sewers may be laid across private land by virtue of Section 15 of the Public Health Act 1936 and water mains may be laid under paragraph 19 of Schedule 3 to the Water Act 1945, as amended by the Local Authorities (Miscellaneous Provisions) Order 1977. These sections enable a water main or a sewer undertaking to enter land after giving "reasonable notice" in writing to owners or occupiers. There is no right of appeal or opportunity to object or to make representations on these proposals.
§ These powers are quite unlike any others. They seem abnormal when compared with what one would normally expect to find in English Law. For example, under the Pipelines Act 1962 (which does not of course apply to water mains or sewers), interested parties can make objections to pipeline schemes and an inquiry can be held.
§ As to compulsory purchase, the standard procedure is that an inquiry must be held if an owner wants one. The latitude given to water and sewage authorities is illustrated by the Court of Appeal case of Hatton v. Esher Urban District Council in 1973—the reference is 1973 2 AER 1123—where the local authority wished to construct a large pipeline across an area to alleviate flooding. The scheme involved the demolition of a bungalow, and the householder applied to the court claiming that the authority did not have so farreaching 195 a power as to be entitled to demolish a dwelling without having the right to object. The Court of Appeal rejected that argument; the authority was obliged simply to give reasonable notice and to pay compensation, even though a person's home was to be demolished.
§ That case is really startling. There are other examples which I will cut because of the eye of my noble friend the Chief Whip. But one of the extraordinary features of the situation is the way in which the power to lay waterpipes has been amended. I hope that your Lordships will observe what has happened because it is very interesting. Paragraph 19 of Schedule 3 to the Water Act 1945, as originally enacted, required that water undertakers should obtain the consent of every owner and occupier through whose land the pipe would run. If consent was withheld, the matter would be referred to the Minister for determination.
§ However, that paragraph was amended in 1977 by the Labour Government by subordinate legislation. A miscellaneous provisions order, dealing with a curious assortment of subjects from Mortlake Crematorium to Biggleswade Market, made a fundamental shift in the procedures for laying mains by removing the requirement to obtain the owner's consent. The order was laid on 3rd March 1977 and came into operation on 1st April. So the change slipped through practically unnoticed before anyone realised what had happened. I presume, although I may be wrong, that the change was made in order to equate the powers for water mains with those for sewers under the Public Health Act; and, coming as it did after the Hutton case to which I referred, it enabled water authorities to capitalise on the submissive decision of the Court of Appeal.
§ I think we can say that these powers which are enshrined in the present legislation are both harsh and far-reaching. I feel that the amendments which I have proposed to your Lordships may indeed bring the situation in regard to both more into line with what is current public feeling on the subject. I beg to move.
§ Lord Skelmersdale
I am very grateful, as I know my noble friend the Chief Whip is, to my noble friend Lord Sandys for speaking to both of his amendments together. My noble friend has referred to the historical background of this matter, and I therefore need not repeat it. However, I would add one very important point in case there should be any doubt on the matter. The water authorities and their predecessors have always been obliged to compensate people for any damage they may have sustained in the course of their sewer or main-laying activities.
On the face of things, the powers to which my noble friend referred are wide ones. For more than 100 years it has been found useful not to allow the water authorities' main-laying and sewerage programme to be jeopardised by the refusal of landowners to allow mains and sewers to be built, and we can at the moment see no reason for changing the position.
Let me say very gently to my noble friend that I do not think, in spite of what he said this evening, that he has produced any evidence of the abuse of these 196 powers and we in Government are certainly not aware of any major problems. What is more, to a large extent water authorities prefer to reach agreement with landowners, at least for their water main-laying programmes, and to enter into deeds of easement. I am quite sure that this is a sensible approach; but it is important that the water authorities and water companies have their statutory powers in reserve for use if necessary. In the unlikely event of abuse of these powers, they would be subject to the jurisdiction of the courts or the Ombudsman, depending on the particular circumstances.
It is true that under my noble friend's amendment there would still be a right of appeal to the Secretary of State if consent were unreasonably withheld. But it is of no great help where a programme has to be implemented quickly—for instance, where there is a massive renovation programme on hand, or new development is to be serviced, or where an extensive rationalisation of a water main system is being undertaken, as from time to time happens. It is important not to hold up these programmes.
Finally, my noble friend's amendment on water mains would lead to precisely the problem that the 1977 order, to which he has referred, was intended to overcome. There would be a patchwork of different powers. In the old local authority areas, there would be no need to obtain landowners' consent, nor would there be in a number of areas where private legislation or amendments to Section 19 of the third schedule to the Water Act 1945 have been incorporated in water undertakers' enactments. This House has criticised precisely this patchwork effect in water legislation in its comments on private legislation in the past, and I suggest that it is hardly appropriate for us to be adding to this problem at this stage.
In short, while I understand my noble friend's intention, I do not think that his amendments begin to achieve what he has in mind. As I said at the beginning, even if I did, I am afraid that I cannot accept that they are right in principle, and I hope he will be able to see his way to withdrawing them.
§ Lord Sandys
I feel that perhaps my noble friend's last statement, that they were not right in principle was the most sweeping. There is here a principle of equity which goes beyond the matter of administrative convenience, and I understand what my noble friend has alluded to in regard to patchwork ownerships in a housing redevelopment area. Nevertheless, there are situations in which it is a question of much greater consideration than perhaps he is aware of at the moment, whereby it would be beneficial and in the public interest both to advise and inform owners prior to the arrival of contractors on the site.
At this stage I do not wish to press the amendment. Nevertheless, I should like to urge the question of the scale of the operation upon my noble friend. Prior to 1973 the scale of these undertakings was not anything like so great as it is today. Very often at the present time the scale of the operation may take hundreds of acres of farm land in order to accomplish a very major sewerage works or a pipe-laying operation of considerable complexity. I think that this matter is worthy of further consideration. I would wish to 197 reserve my position; but, in the meantime I beg leave to withdraw the amendment.
§ Amendment, by leave withdrawn.
§ [Amendment No. 30B not moved.]
§ Clause 7 [Arrangements by water authorities for representation of consumers' interests]:
§ 10.39 p.m.
§ Lord Sandford moved Amendment No. 31:
Page 5, line 26, at end insert—
("( ) Arrangements under subsection (1) above shall require each water authority to establish committees, called Consumer Consultative Committees.
( ) The number of committees to be established shall be determined by each water authority after consultation with each relevant local authority whose area is wholly or partly in the area of the water authority.
( ) The water authority shall secure, as respects each Consumer Consultative Committee, that—
( ) In this section, "relevant local authority" means, in relation to a Consumer Consultative Committee, the council of a London Borough or of a county or district as defined in relation to England in section 270(1) of the Local Government Act 1972 or of a county or district mentioned in section 20(3) of that Act (which relates to Wales) or the Common Council of the City of London of which the area or part of it is in each case included in the area of the Consumer Consultative Committee.
( ) Each water authority shall supply to a Consumer Consultative Committee such information and documents relating to its functions as such Committee may reasonably request.")
§ The noble Lord said: I beg to move Amendment No. 31. However, before deploying the case for it, I should like to question whether it is sensible to proceed with the Bill further at this particular moment. In coming to this clause, we come to the matter on which the main criticism of the whole House was concentrated at Second Reading This is the point on which all our misgivings from all over the House were focused—namely, at the lack of accountablility which would be available and applied to the newly-constituted regional water authorities. The fact of the matter is that after six hours of debate on this Bill we are less than half way through the amendments on the Marshalled List. We have dealt with 18 out of the 38 amendments. Here we are coming to one of the most important parts of the Bill. I have a fairly long speech, and I dare say that other Members of the Committee have, too. I do not know whether it would be appropriate for me to just sit down while the Chief Whip or the Leader respond to what I have just said?
§ Lord Denham
It is always agreed through the usual channels exactly how much time should be convenient for the Committee to take on a Bill such as this. If at an earlier stage I start agitating and suggesting that 198 your Lordships are taking too long, I get criticism and people say, "Why don't you leave it and then everything will come all right?" But I have not been agitating today. Your Lordships have been taking quite a lot of time on these amendments. It is up to your Lordships how long you want to take. We finish the Bill today, and if my noble friend wishes to deploy his points I hope he will now do so.
§ Lord Sandford
It is certainly not the Chief Whip's fault that we took over an hour and a half on a single amendment earlier today; but nor is it my fault. I feel that we have now reached an important part of the Bill and we shall have to spend some time on it. This is an amendment which bears the name of myself, the noble Baroness, Lady Fisher, who is leading for the Opposition, and my noble friend Lord Ridley. When my noble friend and I table amendments it is sometimes assumed that we are speaking respectively with the interests of the ACC and the ADC in mind. In this particular case I have to say that my noble friend Lord Ridley wants me to start by dissociating the Association of County Councils from the whole conception of consumer consultative committees because he thinks they will be totally ineffective. I share that view to the extent that as at present constituted they will be totally ineffective, and I think that in Parliament we have a duty to do what we can to remedy that situation rather than abandon it.
The present amendment is merely a probing one designed to elicit from my noble friend on the Front Bench his explanation and justification for what the Government are currently proposing in this field. In the light of our Second Reading debate, in the light of consultations since then, in the light of growing public concern about this Bill which has been expressed since then—and in that period we have seen the water strike—I can see that this amendment is only illustrative, and nowhere near strong enough or emphatic enough and does not put enough detail on the face of the Bill.
However, there is time for Her Majesty's Government to respond to the mood of the Committee, the concern of the public, and the evident need to provide in the Bill for the provision of really effective watchdogs over Lady Fisher's watercress. These are watchdogs that can be more effective than any similar consultative committees associated with any of the nationalised industries that we have seen so far. They must be able to raise standards in terms of giving value for money; to raise standards all over the industry to the level of the best; to encourage the highest possible day-to-day efficiency; and to secure the effective pursuit of long-term strategies. The committees will also need to ensure the proper pursuit of complaints. They will need to expose maladministration, and to be able to promote proper scrutiny of public expenditure throughout the industry. They will not need to handle all this work themselves; the best practice in operational performance will, when it is achieved, deserve publicity, and that can be disseminated by the press, though perhaps not as effectively in the new authorities as it could have been in the old. Value for money achievements can be established by reference by the CCCs either to the Audit Commission or to the Comptroller and Auditor-General, and the pursuit of 199 long-term and broad strategy is a matter that can be referred by the CCCs—for an accolade or criticism, whichever is deserved—to one or other of the specialised Select Committees of either House of Parliament. Maladministration, as we have now heard, can, as I say, be referred by the CCCs to the ombudsman.
In such ways, the CCCs can and should be able to make use of a number of agencies already expert in various fields of scrutiny and investigation. So they need not do all this themselves; they can do it in alliance with other appropriate agencies. It seems to me that Parliament must see to it that that is provided for in the statute.
All experience in this field—as we constantly hear from the noble Baroness, Lady Burton of Coventry, in respect of the British Airports Authority and the Civil Aviation Authority—is quite conclusive that it cannot and must not be left to a public sector industry itself or to its sponsoring department, and certainly not to a partnership between the two.
Nevertheless, I am sure the Committee would be interested to hear from my noble friend Lord Bellwin his justification of what is proposed so far in the Bill and his plans, in response to the considerable concern expressed in all parts of the House on Second Reading, for offering us something more acceptable at the next stage. If he can do that in a short debate now, we shall then know what more your Lordships' House will have to do over the next weeks, between now and the end of the Easter Recess, when I understand the Report stage of the Bill will be taken. I beg to move.
§ Baroness Fisher of Rednal
I rise briefly to support the comprehensive remarks of the noble Lord, Lord Sandford. As he rightly said, this is a probing amendment. On Second Reading, noble Lords in all parts of the House voiced the desire that the consumer consultative councils should be not just watchdogs but watchdogs which were capable of biting. That is what we need to be assured of by the Minister: how far will the consultations take us in achieving real consumer consultative councils? Perhaps our proceedings on the Bill have taken rather longer than might otherwise have been the case because whenever something comes up for discussion we are told, "The draft guidelines are being considered" or "People are being consulted on that", and so on. The Bill's passage would have been speedier if the guidelines and consultations had been completed before this stage. Indeed, we should not need probing amendments such as this if the Bill explained what the CCCs will comprise and what their duties will be.
§ Lord Beaumont of Whitley
My noble friend Lord Winstanley regrets that he cannot be here to support the amendment; he has been called away. I wish briefly to support the amendment because it brings us back to an extremely important area which I raised earlier in the Bill. If consumers are to have access to the affairs of the various authorities—which we have been maintaining they must have—it is extremely important that the arrangements that are made are efficient, above board, and written onto the face of the Bill. That is why I think that the amendment is important in itself. I very much regret that the whole idea of the authorities is such that there cannot be 200 consumer representation on them. But, if that is so, there certainly ought to be consumer consultative committees.
So far as I am concerned, the most important part of the amendment is what I presume would be subsection (5), which states:Each water authority shall supply to a Consumer Consultative Committee such information and documents relating to its functions as such Committee may reasonably request".The right to have access to documents and information is absolutely essential, if the consumer consultative committees are not to be mere wastepaper baskets for the complaints of the public, unable to do anything about them.
§ 10.52 p.m.
§ Lord Stanley of Alderley
My amendment follows Amendment No. 31 and is very much on the same lines. Therefore with the permission of your Lordships' Committee, and in order to save time, I should like to speak to it at this stage. My concern in my amendment is that members of consumer committees as proposed in the Bill, though nominated from organisations outside the water authority, can be vetoed by the water authority. I hope, and indeed, judging from what I have heard so far, I believe, that your Lordships will agree that such a state of affairs is not a good principle.
Although I accept that in practice the water authority will probably not exercise the power, for obvious reasons—not least that of making its own watchdog into a pet poodle dog—it would be better if the water authority did not have a power of veto. My amendment would make sure that the water authority does not have the power to reject members properly proposed by local authorities and other bodies for membership of consumer committees, though, as is customary, it would allow a veto by the Secretary of State. I hope that your Lordships' Committee will agree with my amendment, which would help to ensure that consumers committees are at least sheepdogs, if not Alsatians, rather than the lap-dogs which at the moment they appear to be under the Bill.
§ The Earl of Shannon
Like the noble Lord, Lord Stanley of Alderley, I, too, seek the leave of your Lordships' Committee to speak to my own amendment, No. 33. It would probably be for the convenience of the Committee if I make a few comments on my amendment, and then all the contributions can be answered together, since they are very much on the same subject. My amendment is essentially a probing amendment in order to find answers to two particular questions. First, the Bill still contains references to the consumer committees, and I was wondering whether the noble Lord, Lord Skelmersdale, would now be prepared to enlarge on what he said during the Second Reading debate. I should like to quote part of what he said, as reported at column 1074 of the Official Report:What we feel is needed at the regional level is that there should be established in all water authority areas sport and recreation committees to provide a link between the water authorities and the recreational conservation bodies. These will be regional committees, not part of the consumer cunsultative committees".There is no mention of such committees in the Bill; there is no amendment down about them, and I was 201 wondering whether the noble Lord would be prepared to enlarge on that statement which he made.
In my amendment I have included one particular class of recreational user, the reason being that I was interested to know exactly how the Secretary of State is to view recommendations for appointment to these committees of representatives of recreational users. Many waterways are navigations. They have been navigations traditionally; in fact some are even called navigations. It may be that on one of these there is only a small quantity, say, 100 navigators, but there are probably 500 people who like to sit along the banks dangling bent pins with worms on them. Equally there may be another 500 people who like walking their dogs. It could be claimed that the navigators have absolutely no right to be represented because they are totally outnumbered by the others. Is there any form of wording that is likely to be used in the guidelines (which as yet we have to see) showing that mere numbers of people do not on small committees occupy all the seats to the exclusion of others who are equally well entitled to be there?
§ Lord Skelmersdale
Perhaps I might presage what I have to say by saying that no one has been casting what my five-year-old son calls "nasturtions" on the length of speeches of noble Lords. The first point I must make in all this is that Clause 7 imposes a clear duty on the water authorities to prepare a report on arrangements to represent the interests of consumers. Once that report is approved by the Secretary of State, it will be the duty of the water authority to implement the arrangements. It is quite clear that this imposes an obligation that arrangements are to be established and must be arrangements to represent the interests of consumers; or the water authority will be in breach of its statutory duty.
I accept that from Second Reading onwards, and also in discussion in another place, there has been a lot of concern over exactly how the Government envisage that these consumer committees will be set up and how they will operate once they have been set up. The short answer to this and to the noble Earl, Lord Shannon, is that on 22nd November last the Government published draft guidelines on the basis of the arrangements and the scope of the committees' activities.
Subsequent discussion in another place, and on Second Reading here, has led us to believe that there must still be considerably more discussion before these guidelines are finalised. I take note in these discussions of everything that has been said this evening on the point and on earlier stages. The Government position on these guidelines is far from final. I hope the Committee will be able to accept this. Even now, we have made various changes to the guidelines and given various commitments. I am not sure whether, in view of the lateness of the hour, the Committee would like me to go through them but I am perfectly prepared to do so.
§ Baroness Fisher of Rednal
Were those the guidelines that were made available to Members, some of which were placed in the Library?
§ Lord Skelmersdale
No. This is very complicated. There are three different sets of guidelines attached to this Bill. I am talking about those published on 22nd November last while the Bill was in another place. I have them in my hand at the moment. They have been available since that time. If any members of the Committee have not got them, it would perhaps be wise not to speak much more until they have had time to consider them. I do not know what the Committee feels on that score.
While the noble Baroness is cogitating on that, may I turn to my noble friend Lord Stanley of Alderley and the noble Earl, Lord Shannon, on the subject of the recreation and conservation committees? We have accepted the arguments which have been put to us by many organisations involved in this area, notably the Inland Waterways Association, but many others, including, as the noble Lord, Lord Melchett, will know, the conservation bodies. But it is wrong simply to graft the representation of recreational conservation and amenity interests on to the divisional level consumer consultative committees which are to be established under Clause 7. We therefore envisage these as being totally separate entities with their own specific responsibilities and their own particular access to the water authorities.
We have amended Clause 7 in another place to make clear that, in making proposals to represent the interest of customers, water authorities should include those who are likely to use water, or land associated with water, for the purposes of recreation.
If the noble Earl, Lord Shannon, will turn to subsection (9) on page 6 of the Bill he will see the definition of the word "consumers", which includes,persons who use or are likely to use, for the purposes of recreation, any water or land associated with water in respect of which the water authority in question are under the duty imposed by section 20 above".In other words, navigators would be just as much consumers as would the fishermen with the bent hook, the conservationists, the boating fraternity, the water skiers. They are all consumers, so I assure the noble Lord that they are covered by his amendment which subsequently becomes unnecessary.
There is one other general point that I should like to make at this stage. That is that we are now clear that the chairmanship of both sets of committees should not be at the discretion of the water authorities themselves, but the committees should appoint their own chairmen. This has been something which I know has caused concern and I hope the Committee will agree with this view of the Government.
As I say, I can go into this matter at very great length. I am entirely in the hands of the Committee. I should like to know its wishes.
§ Lord Melchett
I have one question. The noble Lord said "both sets of committees". Was he referring to the consultative committees and the regional consultative committees involving conservation and recreation interests?
§ Lord Melchett
It would be better if I pursue this because it will save time on the next amendment. Would that allow the committees to choose a member of the authority to chair them, or not?
§ Lord Skelmersdale
It has not, as I understand it, yet been decided whether automatically a member of the water authority would be on the committees at all. But I understand that it would be totally within their power to co-opt a member of the water authorities to sit with them. It would then be up to the committees themselves to decide whether that water authority member—whether he was co-opted or not—should be chairman. I do not think it is desirable in all cases that the water authority appointee or member, however he gets there, should necessarily become chairman of the committee.
§ Baroness White
May I ask the Minister a small practical point? he referred to three sets of guidelines and he used the word "published". Does he mean that in the normal sense of the word—in other words, we can get it from the Printed Paper Office—or does he mean that copies have been laid in the Library? If copies have been laid in the Library all that one can obtain, as I have already found, is an awkward photostat which is bulky and heavy and is nothing like as convenient as the kind of document which ought to be available in the Printed Paper Office.
§ Lord Skelmersdale
I take the noble Baroness's point. To the best of my knowledge and belief copies are available, or were available, in the Printed Paper Office. If not, I shall most certainly make it my business to make sure that they are available there from now on.
§ Lord Sandford
It does put us in rather an awkward position because this, of all the clauses, is the one to which Parliament should be paying the most attention, but I hesitate to invite my noble friend to read what looks like a fairly formidable speech. I wonder if I might suggest to him that it might meet the case if he caused the lengthy remarks, which he says he has at his disposal, to be published in the Official Report. Then we should at least be able to see tomorrow what he would have said, and so will all the people who are interested in this but are not present with us at the moment. It may be that he can add to that in the Official Report either the guidelines or a summary of them, which we really need in order to have a substantive and effective discussion of all these points. That is the first suggestion I should like to make.
The other thing is that I think there will be a general welcome for the concept he has now expressed, that the consumer consultative committees should be separate entities—that is to say, we are not going to see an extension of the arrangement prevailing in Wales at the moment, where the consumer committees are an integral part of the water authority, which I think most noble Lords would agree is totally unsatisfactory. It is also an advance that the chairman is to be appointed by the committee itself. These are all things we shall want to see spelt out in the Bill. We do not want these matters left to the publication in guidelines which are not yet complete.
204 The Bill as drafted at the moment requires reports to be submitted to the Secretary of State after the passage of the Bill, which he will then be free to approve or modify. By that time the whole arrangement will be beyond the control of Parliament, and that will not do either. So there is a lot of work still to be done on this clause. I think it would help us in the consideration that we have got to give to this between now and the Report stage if the noble Lord would refrain from giving us a long speech now but cause what he would have said to be published in the Official Report.
§ Lord Skelmersdale
I am advised that it would be quite improper, not to say out of order, in your Lordships' Committee to have included in the Official Report remarks that I might have made. However, obviously I understand the concern expressed by my noble friend Lord Sandford, and I can undertake to write to each and every member of the Committee, if that would be its wish.
§ Lord Melchett
Another alternative which the noble Lord, Lord Sandford, might care to consider before the Committee rises is the possibility of a Question for Written Answer being asked that would get it into the Official Report in a manner which I am sure would cause no problems for the authorities.
§ Lord Sandford
In the light of that response, with some reluctance, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Stanley of Alderley moved Amendment No. 32:
Page 6, line 14, at end insert ("; and
(c) to appoint to any consumer body specified by the arrangements such representatives of the interests of consumers in the area as may be nominated by local authorities or other bodies in accordance with the arrangements, unless the Secretary of State directs otherwise.")
§ The noble Lord said: May I just ask my noble friend whether he will also write to me specifically on this amendment? Secondly, may I confirm that what he said about the recreation committees, if I may call them that, is that they may have a right to ask for a member who is on the board to serve on their committee? Those are the only two points that I wish to raise. I beg to move.
§ Amendment, by leave, withdrawn.
The Earl of Shannon had give notice of his intention to move Amendment No. 33:
Page 6, line 30, at end insert ("navigators and all")
§ The noble Earl said: In view of the answers given by the Minister to me previously, I do not wish to move this amendment.
§ [Amendment No. 33 not moved]
§ Clause 7 agreed to.205
§ 11.9 p.m.
Baroness Fisher of Rednal moved Amendment No. 34:
After Clause 7, insert the following new clause:
§ "Conservation sport and recreation
§ ( .—(1) Each water authority shall establish a committee whose task it shall be to advise the authority and which shall consist of representative sport and recreation interests in the area covered by the authority.
§ (2) In the annual report required by paragraph 40 of Schedule 3 to the principal Act, each water authority shall include an account of—
- (a) its activities in the fields of conservation, sport and recreation; and
- (b) the manner in which it has fulfilled its obligations under section 48 of the Wildlife and Countryside Act 1981.)".
§ The noble Baroness said: This is another probing amendment and it is unfortunate that we have to have perhaps some of the more important matters that have been raised during the Committee stage rushed through at the very last minute. There are difficulties, because the Committee is concerned about what will happen with the abolition of the Water Council. The Minister referred on Second Reading to regional committees for recreation and conservation, and the noble Lord, Lord Skelmersdale, also mentioned the setting-up of regional committees to provide a link between water authorities and the recreational and conservation bodies.
§ By tabling this amendment, we wish the Minister to tell the Committee how he envisages that these committees will function, to whom they will be accountable and who will compose them. I am fully aware that the consultation procedures have not yet finished, but I am concerned about the fact that recreation has been included in the consumer consultative bodies. This is a little strange, because most of the recreational bodies prefer the thought that the regional committees will be set up for recreation and conservation, as the Minister said on Second Reading. It does not appear that that will happen.
§ As I said, this is a probing amendment, and perhaps the Minister will be able to help us regarding the setup, especially of those bodies which were under the aegis of the Water Space Amenity Commission. We understand, from reading the reports of the other place, that it is accepted that the work of that commission will continue in some way or other. But there is a whole range of activities, such as liaison committees and joint committees covering conservation, sport and recreation, which are broken down into working groups on angling, sailing, water ski-ing and nature trails. So it is important for us to know what will happen to all the various bodies which were co-ordinated under the previous organisation. Therefore, in the discussion of this amendment we should like to find out what will be coming forward to satisfy conservationists and recreationalists.
§ I know that the amendment, as tabled, is not satisfactory to the conservationists. They do not wish to be linked with the recreationalists and sports people. Perhaps they are not good bedfellows, so that may cause a difficulty. But I put down the amendment for the simple reason that we wish to inquire what will happen. Are we to have separate regional committees for conservation, for sport and for recreation? I should 206 have thought that the needs of the recreationalists were now, automatically, almost damned, by the very fact that they will be on the consumer consultative committees, where they feel that their interests will be very much overlooked.
§ The noble Lord the Minister shakes his head. But the opinion that I have received from sporting bodies is that the majority of the people who will be sitting on the consumer consultative committees—and we do not vet know how they will be composed, so I am only surmising—will be those who are more interested in getting the cheapest possible water supply or a pure water supply, and they will have the point of view of the householder, the industrialist or commerce. Surely, too, there will be local authority representatives in great numbers, who will also be concerned about a pure water supply.
§ The people who are interested in recreation feel that, more often than not, they will be fighting a very difficult case. They believe that their interests will be regarded as less important than the very much wider issues that will be discussed on these committees. Therefore the fear is that minority views will not be completely discussed by the consumer consultative councils. My noble friend Lord Melchett will explain why he feels that conservation should not be part of sport and recreation. I leave that matter to him. There is a range of activities which the National Water Council and the National Water Space Amenity Commission have conducted up to now. By means of this amendment we are trying to ascertain how the Government view the continuation of these services in the future.
§ A standing technical advisory committee on water quality consists of representatives of the department and the National Water Council. This committee has shown quite recently that nitrate levels are causing great concern and that they are largely the result of the increased use of fertilisers in agriculture. Will that committee be moving over from the National Water Council, and is it to become part and parcel of another body? It is a most important committee which is concerned with water purity and water safety. The observations of all these organisations will not be received until 31st March, but we want to be sure that the thousands and thousands of people who are directly interested in all kinds of sport, recreation and conservation will have their voice heard in the future as it has been heard in the past. I beg to move.
§ 11.16 p.m.
§ Lord Melchett
Perhaps I may briefly underline the point which my noble friend has raised about the possibility that the new regional committees which the noble Lord, Lord Skelmersdale, mentioned—I think for the first time at Second Reading—will cover both recreation and conservation interests. As my noble friend has said, the conservation bodies are not at all happy about this, not because recreation and conservation are in conflict or are unhappy bedfellows but because there is already a very well established working relationship between conservation bodies and water authorities at regional level. The consultations involve representatives of the Nature Conservancy Council, the County Naturalists' Trust (covered nationally by the Royal Society for Nature 207 Conservation) and the Royal Society for the Protection of Birds. Those three organisations have established together, voluntarily and statutorily, very good working relationships with water authorities at officer level.
There is a very strong feeling in all those organisations that the new proposal of the Government, if it destroyed the existing relationships, or replaced them or tried to run alongside them, would spoil something which is working reasonably well at the moment. This was recognised by the Government in yet another set of guidelines, issued following the Wildlife and Countryside Act as recently as 8th November of last year. Paragraph 10 of those guidelines says that the arrangements which I have described and which the Government recognise in the document provide a useful opportunity for water authorities to discuss their medium-term capital works programmes and annual maintenance schedules. The document goes on to say that, where necessary, site meetings are arranged. These are quite different sorts of consultation, with site meetings, a whole day being spent looking at a land drainage proposal, or whatever. It is quite a different sort of consultation from the kind that people with recreation interests would want to be involved in or would benefit from. The same will go for wildlife interests, where recreation issues are being discussed: how sailing facilities can be improved on a particular reservoir.
The Government have gone quite a long way to recognise one of the fears about the Bill in making the proposal the noble Lord has, and for my part, unlike the discussion on the consumer consultative committees under Lord Sandford's amendment, I would be quite happy if the Government could give us an assurance that the guidelines will say that there will have to be in every water authority—and it must be this definite or it will need amendment of the Bill itself, and I say that with the full backing of the people who have been involved in these meetings—separate committees at regional level, and that the committee dealing with conservation will build on the existing consultative arrangements the Government themselves have recognised as recently as November last year as working very well and providing great benefits to both sides. If the noble Lord can say that now, or at Report stage, I think he will set a lot of minds at rest.
So far responses from the Government have not been nearly clearcut enough to allay these fears. I know the RSPB had a response either today or yesterday from the Government, and I honestly do not think it is enough. They must say definitely that they will, as it were, honour existing arrangements and ensure that at every water authority these two things are kept separate at regional level.
§ Baroness White
Other bodies also have similar arrangements to those mentioned by the noble Lord, Lord Melchett. In Wales we have close relationships with the Welsh Water Authority on the part of the Council for National Parks, and the Council for the Protection of Rural Wales, of which I am a member. We certainly would not wish to have any disturbance in that kind of informal consultation, which is what it is at the moment.
208 The guidelines I have are published in October, not November; whether they are the same ones I am not quite clear; I think they are. Possibly I have a Welsh version published earlier than the English one. When we did have discussions relative to these guidelines, as recently as January of this year, with the Welsh Authority we found that there was considerable dubiety in their minds as to the interpretations of where their duty really lay in relation to Section 48 of the Wildlife and Countryside Act, which amends Section 22 of the principal Act. I found a semantic debate going on within the water authority, and I have the notes issued subsequent to our meeting, in which the chief scientist, who was present, said that the authority had yet to take a view on the interpretation of Section 48, as to whether conservation was to be considered as a duty, a function or purely an interest to be taken into account as appropriate. Even at this time of night it must be obvious that there is some slight difficulty when the water authority does not know what the guidelines really mean.
This was followed by a remark by the chairman of the Welsh Water Authority, that while there was great sympathy on the part of the authority, any proposals which required financing by the authority which were not statutorily required would be difficult to justify. If one looks at these guidelines, they appear to me to suggest functions, on the one hand, and take away any possible expenditure, on the other. I think it is too late at night to discuss what is a very important section of this Bill. I noticed that my noble friend did not refer to the second part of her amendment, in which it is suggested that it should be made a duty for the water authorities, in their annual reports which they are statutorily obliged to produce, to indicate the manner in which they have fulfilled their obligations under Section 48 of the Wildlife and Countryside Act. I think this would be an invaluable provision and I very much hope that it is one which the Government can accept.
§ 11.25 p.m.
§ Lord Skelmersdale
We now get from the general, I suppose in a sense, to the specific although I have been at pains on the earlier amendments to point out that we are talking about two, or possible more, totally separate committees. I shall come to that in a moment. The consumer consultative committees are designed to deal with the broad policy and, as the noble Baroness said, the methods, costings, prices charged, local authority interests, and so on, of the water authorities themselves, However, the recreation and conservation committees, as I said—and I repeat—will be on a regional basis because we do not see that it is appropriate either to duplicate the Water Space Amenity Commission at the one end or to have them in such small units that they are sub-regional at the other end.
We amended Clause 7 in another place to make clear that in making their proposals to represent the interests of consumers water authorities should include those who are likely to use water or land associated with water. There is a specific reference now in Clause 7 to the duty of water authorities in respect of recreation. I should like to emphasise to the Committee that water authorities continue under 209 exactly the same duties as regards recreation, conservation and amenity as they have been under hitherto. There is no change at all. We shall amend the guidelines to be used under Clause 7 to secure that these committees are established. We do not, however, see the need to make them statutory as the amendment proposes. At the moment there is no reference in Clause 7 to committees.
Perhaps at this point I can comment on something that the noble Baroness, Lady Fisher of Rednal, mentioned—the standing technical advisory committee on water quality. This is really not relevant to this amendment. We have decided however that where committees of this kind are doing a useful job they should be continued, either by the water industry itself or by the Department of the Environment.
§ Baroness Fisher of Rednal
I am not sure what the Minister means by "the water industry itself ". Does he mean the Chairmen's Association? What does " the water industry itself " mean?
§ Lord Skelmersdale
In this connection it would indeed mean the water authorities' Chairmen's Association or one of the water authorities nominated by it, whichever was appropriate. However, the point I seek to make is that whoever ends up doing it will not go out of existence if they are currently doing a useful job, which that particular committee is most certainly doing.
§ Baroness Fisher of Rednal
I do not want to keep on interrupting the noble Lord, but that is what we are trying to find out with the amendment. Where are all these different things going to? We know at present where they are; they are with the Water Space Amenity Commission or with the National Water Council. We want to know where they will go in the future.
§ Lord Skelmersdale
What I am trying to say to the noble Baroness is that this standing technical advisory committee on water quality has no relevance to consumer consultative committees.
§ Lord Skelmersdale
My understanding is that it does not, and there is no need for it to have such a relationship. It will be continued, but as a completely separate entity from the committees that we are discussing in this and previous amendments.
§ Baroness Fisher of Rednal
All that I would say is that if one looks at the Hansard in the other place one sees that it was quite emphatically raised only last week by a Member of Parliament as a question regarding water purity.
§ Lord Sandford
I wonder whether my noble friend could just confirm what he said or perhaps correct a point which I may have misheard. I thought that he started off his response to Amendment No. 34 by saying that we are dealing with two quite separate bodies, and I agreed with him there. There is the committee which is referred to in the amendment of 210 the noble Baroness, Lady Fisher, which is to deal with recreation, sport and conservation, which the amendment would require to go on the face of the Bill. My noble friend then went on to resist that by saying that it would be dealt with otherwise and that it would be dealt with by amendments to the guidelines to Clause 7. But Clause 7 is not dealing with those committees; it is dealing with the consumer consultative committees. I wonder whether my noble friend can help me.
§ Lord Skelmersdale
Yes, I do agree that this is, on the face of it, confusing. The point is that, as my noble friend has just said, Clause 7 deals with consumer consultative committees. What I am saying, and the Government have been saying since, I think, the Committee stage in another place, is that there are various kinds of consumer and there are two sorts of consumers' committee—first, what I call the general consumer consultative committees, which I described just now to the noble Baroness, Lady Fisher, and, secondly, the specific ones which are those on recreation and conservation, which up to as recently as, I think, the beginning of last week it was intended should be rolled together as one body. But I am now able to tell the Committee that we are considering with some urgency the points that have already been put to us this evening on whether in fact the recreation, amenity and conservation bodies are compatible.
Over and above that, I should make it clear that it is not intended that the Government's proposals should cut across existing arrangements which work satisfactorily to the various parties. If therefore there are existing links between conservationists, for example, and water authorities on specific conservation matters, the authorities and the organisations may well wish these to continue, and it is not the Government's intention to prevent that. Alternatively, the new committees may wish to make their own arrangements, such as the establishment of sub-committees for the separately identifiable interests of conservation.
This amendment again revolves around guidelines which, to use a rather unparliamentary expression, and indeed to paraphrase what I have already said, are up for grabs. In other words, they are under discussion at the moment. The matters that have been referred to this evening will of course be considered in a redrawing of the guidelines in a definitive method.
The noble Baroness—
§ Baroness Birk
All this consultation is going on and the guidelines are being considered. Will they be available certainly to members of the Committee who are interested before Report stage? How will it be possible to draw up amendments ready for Report unless we know quite definitely what are the intentions of the Government? I really must support what the noble Lord, Lord Sandford, said about the two separate committees, which, with great respect, seem to have got a bit confused in the Government's mind as well.
§ Lord Melchett
I know that the noble Lord has just given way and I would be quite happy to sit down again if he would prefer it, but rather than ask him to make a second speech after he has finished this one, 211 may I say that he has responded to my point, I am afraid, in a way that is not adequate, as I see it? Indeed he repeated some phrases which I recognised from his Second Reading speech.
Since that time the Royal Society for the Protection of Birds has written to the department and the department has written back. A point is being made about splitting these regional committees. Let us stick with regions, for Heavens sake! and regional committees, because that is what the amendment is about. I cannot think why anybody, least of all the Government, who want to get a move on should keep talking about the local consumer consultative committees in this amendment when they do not even come up and we have dealt with the matter. Anyway, let us stick with the regional committees which the Government proposed at Second Reading in this House would consist of recreation and conservation interests. The noble Lord used the phrase then—and he has again tonight—that this would not cut across existing consultative arrangements if they were working to the satisfaction of all parties, or if they existed.
As I have said tonight, the Government themselves issued a circular last November pointing to the arrangements which have been worked out between the three organisations on the conservation side—the RSPB, the RSNC or the local naturalist trusts—and the Nature Conservancy Council on the one hand, and regional water authority staff on the other. As I understand it, in almost all regional water authorities—although now it may be all—this arrangement works well, and the Government have recognised that in a circular.
It is not a question, with respect to the noble Lord, of coming back to your Lordships' House at this stage of the Bill and saying "If there are arrangements which work well and if people are satisfied with them, then they can continue". We are in a different ball game. There are these arrangements and they do work well—the Government said so in a circular last November. It seems to me that they ought to be able to come along now and say: "If that is the case, all right, we will amend what we said earlier in the debates on this Bill. There will be separate arrangements. We will not allow the Bill to be used as an excuse by some water authorities which were not very happy about these arrangements being established to scrap them or to go back to something". The arrangements have been established over a long period of time with a great deal of difficulty and negotiation in some cases, and it is seen as extremely important that they should continue—not because, let me stress, of any incompatability between conservation and recreation, but because conservationists want to consult about different things in different ways and in far greater detail. They want to go on site visits to look at areas where land drainage proposals are going to be made.
If people in the department and the Government cannot understand the point that has now been made several times, it really seems to me that we ought to think about writing it into the Bill. With respect to the noble Lord, he has not picked up the point that I am making. It is not a question of incompatability: it is a different type of exercise. It is working well in every regional water authority area. The Government have 212 recognised that in a circular that they themselves have issued. So it is not a question of saying: "If it is going all right, we will let it continue". They know that it is.
I really do think that it is not asking too much, if it cannot be done tonight, that the noble Lord should drop the form of words that he used on Second Reading and say,"We will take a fresh look at this". He should forget all this stuff about, "Well, if it is going okay, we will let it continue", which is not relevant to the argument, and then say, "We recognise these arrangements; they will continue to exist. They will not be duplicated or superseded by some other committee involving a much wider range of interests whose members want to talk about different things in different ways at different places".
§ Lord Sandford
I really must urge my noble friend to take that advice and also to make provision on the face of the Bill. It does confuse the matter enormously if he continues to suggest to the Committee, which I really do not think he meant to do, that what is contained in Amendment No. 34 plus the additional factors which are quite appropriately being introduced by the noble Lord, Lord Melchett—all of which require to be dealt with on a regional level corresponding to each regional water authority—can somehow be dealt with not on the face of the Bill, but by guidelines relating to Clause 7 which have to do with consumer consultative councils which, although we do not know as much as we want to know about them, we know are going to be organised on a divisional basis. They cannot possibly be dealt with in one and the same package.
§ Lord Skelmersdale
I am obviously not making myself in the least bit clear. The consumer consultative committees are totally separate from those committees that we are discussing at the moment. Those that we are discussing now will be on a regional basis, whereas the consumer consultative committees, as my noble friend has just said, will be in very much smaller local areas, which one might call either districts, sub-regional, or whatever.
§ Lord Skelmersdale
Yes, fine. As regards the point made by the noble Lord, Lord Melchett, perhaps I could have phrased my remarks more felicitously and instead of saying "if there are" existing links between conservation bodies and water authorities that work currently, the situation will not change, I should have said "where there are". I am sure the noble Lord will accept that not every rose in this particular garden is quite as beautiful as every other rose. In other words, there are occasions when things are not working quite satisfactorily. However, the Government do not propose to change things which are working well. I hope that that makes the point absolutely clear.
§ Lord Melchett
It is late at night and we want to get on, but, with respect, I really think that the noble Lord ought to agree to take this away. The fact is that the Government issued guidelines—these infamous guidelines—from another Bill last November, which said at paragraph 10—and I shall quote again to the noble Lord because this is the important point:Consultation procedures.So far as nature conservation is concerned, established patterns of consultation already exist between most water authorities and 213 the NCC and voluntary nature conservation bodies through regional-divisional liaison meetings. These provide a useful opportunity for water authorities to discuss their medium-term capital works programmes and annual maintenance schedules. Where necessary, these existing arrangements should be improved so as to ensure that any proposed works with a significant implication for nature conservation can be identified well in advance. Where appropriate site visits should take place"—and so on. There are established procedures which the Government have recognised and which, as I understand it, have the full support of the Nature Conservancy Council and certainly of the two royal nature conservation societies, the RSPB and the RSNC, who are involved.
The particular arrangements do not involve anybody else on the nature conservation side; just those three organisations are involved. There are others which the circular covers for amenity and landscape; I say that because I hear my noble friend Lady White making noises, if she will forgive the expression. But the point I am making is that these consultation procedures on nature conservation work well and are established. If not dealing with this tonight, then at least the Government really must go away without any 'ifs' and 'buts' and think about it and be prepared to say, " Yes, we realise these are arrangements which exist; they are working well; nothing in the new regional committees will be allowed to disturb these in any way at all ". It may be that these arrangements can have a regional committee for nature conservation on top of them; it may be that that is not necessary. I am quite happy to leave that to the Government. But they really must be prepared to say not just that where it is working all right they will let it continue, but that these arrangements for all water authorities do work well and they will continue. There is a very important difference.
§ Lord Howie of Troon
Will the noble Lord the Minister not have mercy on us and just give an undertaking to take all this away and take a very quiet, restrained look at it, and, in so far as there is strength in the representations of my noble friend Lord Melchett and others, he will accede to these, and in so far as what they think is strength is weakness, he will reject them? I think that that might help us quite a hit.
§ Lord Skelmersdale
I am very grateful for the advice of the noble Lord, Lord Howie, but I was, I hope, in the process of making it quite clear that there was nothing in Clause 7 to stop the existing arrangements. I hope that this goes as far as even the noble Lord, Lord Melchett, would like me to go. They will continue. Having said that, I will most certainly consider the point.
§ Baroness Fisher of Rednal
I am not satisfied with the remarks that the noble Lord has made. I am even more muddled now that he has finished than I was when he started. I thought I had it clear in my mind. Because of the lateness of the hour it is important for us to get on. I know that my noble friend Lord Melchett has spoken about the field of conservation. But there are all kinds of sport that go on now, and their interests are equally important because they will clash on many occasions with those of the conservationists. 214 Angling, water skiing, and all such sports might affect the conservationists at some time.
I shall read what the noble Lord has said, but I hope that any information that the Government can give us concerning guidelines or anything else will be forthcoming so that at the Report stage we shall be able to understand the implications of the Government's measures, including the abolition of WASAC, and the National Water Council. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 11.45 p.m.
Lord Beaumont of Whitley moved Amendment No. 34A:
After Clause 7, insert the following new clause:
§ ("Minutes to be open to inspection.
§ The minutes of proceedings of a water authority shall be open to the inspection of any local government elector and any local government elector may make a copy of an extract from the minutes.").
§ The noble Lord said: This is a probing amendment and returns to the question of the publicity of the proceedings of the water authorities. I have abandoned, at any rate for the time being, the attempt to persuade the Government to in any way alter the integrity of these new bodies which have their own particular form and functions. I am not entirely certain that I accept the arguments. What I should like to do is to explore the situation where, accepting the arguments deployed by the noble Lord, Lord Bellwin, in the first part of this Committee stage, we managed to establish as much of the openness of the work of the committee as we could, and its openness to electors, ratepayers and those who are paying water rates.
§ To that end I have tabled the clause, which many people will recognise—and not least the noble Lord, Lord Bellwin—as being the first part of Section 228 of the Local Government Act 1972. The object of the exercise is not that these would necessarily be exactly the right words to put into this Bill, but that if it was acceptable to the Government that some kind of procedure along the lines of Section 228 of the 1972 Act, the inspection of documents, should be put in the Bill, that possibly the Government would take the amendment away and see whether this was the right way of dealing with the matter and perhaps expand it to have all the provisions of the section in the Bill. Perhaps it could be so altered that it did not necessarily refer to local government electors.
§ What I wish to discover now is whether the Government will accept that ordinary members of the public who pay their water rates have a right of access to the proceedings of the local water authority whence they can proceed to seek publicity, write to the papers, and be in touch with all the local committees we have been discussing for the last hour or so. I beg to move.
§ Lord Bellwin
I am not without sympathy to what the noble Lord has just said. The Government are not in the business of concealing what the water authorities are doing. It is just as important that the public have access to information about the authorities' decisions in the future as at the present. Perhaps I could quickly outline what we are doing to secure the objective.
215 As your Lordships may recall from our discussions about the press and the public, we intend that the press shall receive advance information about the items under discussion at board meetings and, following the meetings, there will be, as a matter of routine, press conferences. As part of this arrangement, we have decided to require the water authorities to produce a note of the decisions reached on the various items under discussion, and this note will be available to the press and will also be available, as the minutes are now, for inspection by the public. The same note will be issued to the consumer consultative committees. We will be requiring the water authorities to implement these arrangements when we issue a revised version of the guidelines on consumer representation.
Given that the proposals are not identical to what is proposed in the amendment, as the noble Lord, Lord Beaumont, fairly said, that was not the major part of what he was seeking to ascertain. As my noble friend said earlier, it is difficult at this hour to go into detail. But if the noble Lord wants to know our intentions, I am equally anxious that they should be understood. I suggest that there is no major difference between us on this; there may be a difference of emphasis, and perhaps of degree, at the end of the day, but basically we are in the business of seeing that information is available. What concerned us so much on the previous matter was the ability of the committee to function in a different style from the way the local government one did, but we need not go into all that again now. Outside of that—outside the executive style of the boards—we are indeed anxious that there should be the maximum information in the best possible way. I shall not, unless I am pressed, go into more detail on that now, but I hope that will satisfy the noble Lord. I repeat, I feel that on this point there is not much between us. Indeed, I go further and say that any suggestions that are made would be welcome.
§ Baroness Birk
I understood the Minister to say that there would be a report of the minutes of the proceedings. A report of minutes is quite different from the minutes themselves; a report, as I understand it, would be an edited version. Or have I misunderstood the noble Lord?
§ Baroness Birk
Anote is not the same. Does he mean the actual minutes will be repeated? Otherwise a note could mean a selective version.
§ Lord Bellwin
Perhaps this is a matter we should discuss. We have an open mind on it because we agree it is important. The noble Baroness will appreciate that minutes can be written in all sorts of ways.
§ Lord Bellwin
Indeed, and it will not be easy to get an exact clarification, because it is something that needs to be in the Bill; I accept that. Perhaps we can pursue the matter, and the noble Baroness will not find the Government unwilling to consider it.
§ Lord Beaumont of Whitley
I thank the Minister for his remarks. His opening statement about the relationship of the authorities with the press was one of the few cheerful things we have heard this evening. I thank him for outlining the intentions of the Government, which I hope have been sharpened during our debates. I shall not pretend that the whole thing is nearly as satisfactory as it should be, but I think the Government are trying to do the best they can in the entrenched position that they have adopted. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 8 agreed to.
Lord Howie of Troon moved Amendment No. 34B:
After Clause 8, insert the following clause
§ (2) For section 1 there shall be substituted section 6 of the Reservoirs Act 1975, and after that section there shall be inserted, as section 1A, 1B and 1C, sections 7, 8 and 9 of the Reservoirs Act 1975.
§ The noble Lord said: Both this amendment and No. 34C are probing amendments, and I hope that the Government will regard them exactly in that light and will not investigate the drafting of them, since they are drafted entirely as probing amendments. The inadequacies of the drafting are clear to me and to the Public Bill Office, and I do not think that there is any need to go into that at all. They indicate a direction in which the Government's mind might go, if they feel so inclined.
§ The amendments follow intimations that I gave at the Second Reading of the Bill, in the light of the report of the Select Committee on the water industry, which I think came out before Christmas—or at least some little while ago. I should like to make a slight correction to my Second Reading speech, if this is the right place in which to do so. I notice that at the top line of column 1058 of the Official Report I am attributed with referring to "Keynesian Ministers". I should be extremely happy if there were any Keynesian Ministers to be seen, but what I in fact said at the time was "changing Ministers", which is quite different; it means something entirely different.
§ Leaving that point aside, what we are dealing with here is the means of controlling the design, construction, inspection and so on of reservoirs. It arises under the Bill because it deals with water, and because the Select Committee had suggested that the Bill was an appropriate place to deal with the Reservoirs Act 1975, which is the most recent legislation on the safety of reservoirs. It is the most recent legislation in the historical sense, but in another sense it is not, because it has not been implemented; so it is not recent at all. This is rather sad.
§ The history is laid out in my Second Reading speech, and so I shall not dwell on it, and it is laid out much more elegantly, and in Much more detail, in the Select Committee's report; but basically it is as 217 follows. The control of these elements of reservoir design rests in the Reservoirs (Safety Provisions) Act 1930. That was by no means a hurried Act, because although it came after one or two accidents in the 'twenties, it followed somewhat belatedly after a Royal Commission report in the 1860s. That report had been neglected; the disasters of the 1920s drew it to people's minds, and the 1930 Act followed.
§ In the period since 1930 those civil engineers and others who had been operating the Act came to believe that it was inadequate for their purpose and in 1966 the Institution of Civil Engineers reported on the functioning of the Act and suggested a number of ways in which it could be improved. Arising from that report, the Government produced the 1975 Act. What I have to say specifically is this. The 1975 Act was supported by both sides of the House. I see sitting in the Chamber this evening my noble friend Lady Birk who, throughout the Committee and Report stages of the Bill carried on a dialogue with the noble Baroness, Lady Young, whom I saw earlier this evening and who, for quite understandable reasons, is not present at the moment. These two noble Baronesses discussed the Bill in total amity and in agreement that it was necessary. In the end it was passed. It was not implemented, and for the feeblest of all reasons; that is, that successive Governments—and I blame no particular party here, for all parties are to blame—thought that it was too expensive to put it into operation. That is the only reason why the Act has not been put into operation.
§ The Select Committee studied the matter and took evidence from engineers, who had been trying to operate reservoirs under the 1930 Act. Almost without exception, they found that engineers thought the 1975 Act ought to be implemented. The only people who did not think so were the Government, who did not want to spend the money, a number of local authority politicians who did not want to spend the money, either, and a very small number of engineers, an insignificant number.
§ It is quite clear from the evidence presented to the Select Committee that the 1930 Act is not up to the job and that the 1975 Act ought to be implemented. The Select Committee suggested that amendments to (they said) the 1975 Act ought to be brought in under this Bill. They chose this Bill merely because it was convenient, because it was there, because it was a way in which the thing could be done now instead of waiting until Heaven knows when, when people thought they might find time.
§ My amendments do not tackle it in the same way as the Select Committee. I have suggested, first, that the 1970 Act ought to be repealed. I do not believe that at all. What I wonder is this. The Government have suggested that the 1930 Act is adequate. If the Government are right and the 1930 Act is adequate, then the 1975 Act is unnecessary and ought to be repealed. If it is unnecessary, it encumbers the statute book and ought to go. I do not believe that. I want the Government to tell me how it comes about that, on the one hand, the 1930 Act is adequate and, at the same time, the 1975 Act remains on the statute book unimplemented. That is all I want to know there.218
§ If the Government do not wish to implement the 1975 Act in its entirety, then I suggest in Amendment No 34B no more than the bare bones of a way in which the Government might go about it. They might take the 1930 Act and delete from it such parts as are inadequate for their purpose and put into the 1930 Act such parts of the 1975 Act which would bring the 1930 Act up to date and make it a reasonable and usable piece of legislation. That is all I have to say to the Government. I wish them to explain why they do not want the 1975 Act in operation. What else could there be which makes them think that the heavily criticised 1930 Act is adequate, and what ought they to do about it? Unless the Minister is in a condition of alarm and despondency, I do not intend to divide the Committee.
§ Baroness White
I make no apology for rising even at this late hour. It is because this Bill has been inadequately thought through. This was made plain on Second Reading. It is a matter of complete astonishment that this particular issue has not been dealt with in this piece of legislation. My personal view is that it would be better, when we have heard what the noble Lord the Minister has had to say, for my noble friend to withdraw his amendment so that we can have a proper debate at a reasonble hour on Report. I see that the noble Lord the Government Chief Whip is rising to his feet.
§ Lord Denham
I thought the noble Baroness was suggesting that we were at an unreasonable hour. We have taken quite a lot of time in discussing previous amendments and some of them have been moved at very great length. That is why the hour is not as reasonable as it might be.
§ Baroness White
I repeat my charge to the Government that it is because the Bill has been inadequately thought through in the first place. There are lacunae in this Bill which ought never to have occurred.
There is one matter which I should have thought would have caused shame to all of us. We have an Act which has been on the statute book now for almost eight years which has not been implemented in any way at all. This is surely something which, as legislators, we should feel ashamed of. It is utterly unprofessional to have legislation completely unimplemented remaining on the statute book. We have an opportunity in a Bill which is certainly germane, but apparently no effort has been made by the Government to deal with an issue of which all of us concerned with these things are perfectly well aware and which all of us, I believe, feel should be properly tidied up.
We devoted a chapter of the report of the Select Committee to this issue and made it quite clear. The committee considered that positive enforcement duties, such as proposed in the 1975 Act, should be brought into effect. I could quote various other passages.
I feel that it is not reasonable at this time to go into great detail. We should seek another occasion, and we shall certainly do so at Report stage, so that we can have a sensible discussion on an issue which ought to have been tackled by the Government in this legislation and which they show no sign whatever of 219 facing. It is not exclusively the Government's fault. The dilatoriness applied to the previous Administration too, but as parliamentarians we ought to take this matter rather more seriously.
§ 12.7 a.m.
§ Lord Skelmersdale
I would not dream of taking it anything but seriously, especially after the remarks of the noble Baroness. The noble Lord, Lord Howie of Troon, is about to provide the Government with the opportunity to respond positively to the conclusion of your Lordship's Select Committee that the Reservoirs Act 1975 should not be left on the statute book unimplemented.
I should perhaps first point out to the noble Lord, Lord Howie, that the Reservoirs Act 1975 differs from the Act of 1930 in many respects. The key provisions are first that it would make county councils in England and Wales and regional councils in Scotland, not district councils, responsible for enforcement and gives them an explicit duty of enforcement rather than a power. These enforcement authorities are required to keep registers of reservoirs in their area, and are given powers to satisfy themselves that the Act is being complied with. Secondly, the 1975 Act requires reservoir owners to appoint a named supervising engineer to keep a reservoir under continual supervision between inspections. Thirdly, reservoir undertakers are required to furnish information to enforcement authorities so that they can effectively ensure that the Act's essentail provisions are complied with.
It is a severe weakness in the 1930 Act that the public authorities concerned have powers, but not duties of enforcement, as the noble Lord has told us. Therefore, it is clear to the Government that a more effective system of securing reservoir safety must place a clear duty of enforcement on some responsible authority. Next, if enforcement is to be active, there must be a clear duty on reservoir undertakers not only to take the necessary measures for safety's sake, but also to provide necessary information to the enforcement authority. In terms of the 1975 Act, this requires bringing into effect parts of Section 2 of that Act, and of Section 21. These seem of greater priority than the replacement of the 1930 Act's provisions in relation to inspection by those of the 1975 Act; or than the creation of a new criminal offence.
Accordingly, I am able to tell the House today that the Government's decision is that the time has come to implement the 1975 Act, phasing its introduction so that an early contribution is made to reservoir safety, and so that adequate data are available to local authorities to carry out their enforcement function. This is an important decision, affecting many interests—reservoir owners and undertakers, local authorities, and others. The practical implications need to be considered, and therefore appropriate consultation will be carried out on the timing and nature of the implementation of the 1975 Act.
The Government wish to emphasise that in their view most importance should be attached to ensuring that all reservoirs are inspected as provided for in the Act; it is the large number of reservoirs for which no one appears to take responsibility which gives rise to the greatest concern; so we envisage that consideration 220 will be given later to the implementation of the provision for routine supervision between major inspections.
I could continue in this vein for several more minutes, but I do not think it is appropriate. I hope the Committee will accept that I am doing exactly what the noble Lord, Lord Howie of Troon, and your Lordship's Select Committee wanted, at least in this respect.
§ Baroness White
I suppose we should be grateful to the Minister even at ten past midnight-not exactly the most appropriate hour to announce a decision which is welcome in itself and of which I think I am right in saying that we were given no warning at Second Reading. However, one only hopes that this good intention will be turned into actuality during the currency of the present Administration and that it will not then be upset should there be a change in the Administration in the relatively near future.
§ Lord Howie of Troon
I am rather glad I stayed! Did I understand the Minister to say that he intended to implement the 1975 Act? If so, can he tell me when? I know it is churlish to look a gift horse in any part of its anatomy, but let me say this: if the Minister does in fact intend to implement the 1975 Act and to implement it within a reasonable time, it would satisfy me entirely if he were to write to me. I would make sure that his letter was published in The New Civil Engineer magazine, where it will be read by all those engineers who worry about these things. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 34C, 35 and 36 not moved.]
§ Clause 9 agreed to.
§ Remaining clauses agreed to.
§ 12.13 a.m.
§ Baroness Fisher of Rednal moved Amendment No. 37:
Page 9, line 15, at end insert—
("( ) A water authority shall join with other water authorities in making arrangements for the co-ordination at national level of the following matters—
§ The noble Baroness said: This again is a probing amendment. We are concerned over what will replace the central joint negotiating machinery for workers inside the water industry. We are concerned that the break-up of the Water Council might be regarded as an opportunity to move away from pay bargaining at the centre and move it down to the regions. The part about negotiations, conditions of employment and the persons employed by them is important to us, and we want to know where the new arrangements envisaged in the Bill will go.
§ On training provisions, has the Minister anything further to tell us? I accept of course that the water 221 authorities will be considering appropriate regional training, but does the Minister accept that there is a need for central training where the mixed disciplines at senior staff and management levels are quite justified? Will he be able to tell us any information tonight regarding the establishment of the new limited company that was talked about in the other place at Report stage, which might be taking over the training assets of the National Water Council?
§ Safety regulations and practices are important and we need to know where they will go because there is concern at the moment that the authorities are trying to cut corners to save finance. That is something which is important to us, and we want to know where the safety regulations and practices will be going. We have already touched on pensions and superannuation arrangements, so I shall not mention them. Those are the points that I particularly want to draw to the attention of the Minister and I shall be glad if he can elucidate. I beg to move.
§ Lord Skelmersdale
We have already covered a good deal of the ground in this amendment on Amendments Nos. 13 to 16, which seems a long time ago. But, nonetheless, we did. As my noble friend Lord Bellwin and I have explained on various occasions during the course of the evening, the water authority chairmen have agreed to establish a water authorities' association. The purposes of this association are to be as follows.
First, it is to be an organisation for water authorities to discuss among themselves, and with representatives of Government and other bodies, any matters relating to the water authorities, their functions, powers, duties and so on; secondly, to co-ordinate any necessary joint action on the part of the industry; thirdly, to act as trustee or administrator in relation to pensions schemes established for the industry; fourthly, to provide public relations and public information services; fifthly, to examine the need for research and to promote research where necessary; and, sixthly, to encourage training and education, although there will be separate arrangements to establish a water industry training association.
The Committee will note that what the noble Baroness is asking for in this amendment is already explicitly covered, or capable of being covered, under one of the broad categories which I have just mentioned.
We have already debated the future of negotiations on pay and conditions of service, and the new pension arrangements for the water industry, and I do not think it would be appropriate at this late hour to say any more on those subjects. Training is undoubtedly an important function for the water industry employers, and the Government are encouraged that the chairmen have agreed to establish a water industry training association, to which the noble Baroness referred, which will make central provision for training in the water industry.
We are aware of feelings in the water industry that the provision of training by the National Water Council—and training is one of the Council's statutory functions at the moment—has been on a rather more lavish scale than is always appropriate. In particular, 222 there has been criticism, not only within the industry but also from the Manpower Services Commission, that training has been supply led rather than demand led. In other words, there has been insufficient attention at the local level to determining what the training needs are and building courses around them. This approach has been reinforced by the system of financing the National Water Council's training activity; a system of levies and grants for the most part.
These are generalisations, and I am aware that they are not the whole story. Nevertheless, they underline the problems of establishing statutory bodies to carry out work such as training. The body will exist, come what may; and, in particular, it will exist whether or not it is providing exactly the service which is required.
The water industry training association will be a company limited by guarantee. The water authorities will still be obliged to provide training for their staff—there will still be a statutory requirement—and they will still be obliged to conform with general legislation on safety regulations and practices. Indeed, much of what I have been saying about training is relevant to safety procedures, since many of the courses provided by the National Water Council deal with safety matters. There will be a continuing need for such courses. The water authorities will still wish to provide them, whether centrally, or, as happens to a considerable extent already, at the local level.
As the Committee will have gathered, we do not feel that there is a need for a statutory body or fresh statutory requirements in connection with any of the functions mentioned in this amendment. One of the difficulties with statutory requirements for coordination, such as is proposed here, is that they lead to an inevitable growth in bureaucracy. The essence of our proposals is to let the water authorities, who are the paymasters and have all the relevant functional responsibilities, decide on the level of central activity required. There will be economies to be made—substantial economies—and we must not allow the scope for such economies to be dissipated by amendments such as the one currently proposed. I took the point which the noble Baroness made about this being a probing amendment. I am not sure whether she considers she has probed far enough. Perhaps she will let us know.
§ Baroness Fisher of Rednal
I thank the noble Lord for that information. He said " capable of being covered " as well as " being covered ". Certain matters have not yet, presumably, been defined, and they are capable of being covered. I shall read what the noble Lord has said in reply. It is an important issue. When the Bill becomes an Act and these guidelines and details are set down, will the names of the chairmen of the water authorities be announced and also the names of the chairmen of the committees? Everybody knew that the noble Lord, Lord Nugent of Guildford, was the chairman of the National Water Council. If people know who is the chairman of X, Y or Z, they can make approaches at that level, if desired.
§ Lord Skelmersdale
Whether this would be appropriate generally, as in the case of my noble friend Lord Nugent of Guildford, who is absent at this late 223 hour, or whether the regional water authorities and district committees would have that information circulated generally in their own areas, I shall have to consider. But most certainly I take the point which the noble Baroness has made.
§ The Deputy Chairman of Committees (Lord Murton of Lindisfarne)
If Amendment No. 38 is agreed to, I shall be unable to call Amendment No. 39.
§ Amendment, by leave, withdrawn.
§ Schedule 1 agreed to.
§ Schedule 2 [Provisions relating to dissolution of National Water Council and Water Space Amenity Commission]:
§ 12.22 a.m.
§ Lord Irving of Dartford moved Amendment No. 38:
§ Page 12, line 14, leave out from (" but ") to end of line 17 and insert—
- (" (a) it shall be the duty of the Secretary of State to ensure that an offer of employment to commence not later than the day following the date of the Council ceasing to exist, is made by a water authority or other employer to each person who is an employee of the Council on the passing of this Act; and the terms of each such offer must be such that they are, taken as a whole, not less favourable to the person to whom the offer is made than the terms on which he is employed on the date when the offer is made;
- (b) an offer made in pursuance of this paragraph shall not be revocable during the period of three months beginning with the date on which it is made; and ")
§ The noble Lord said: My noble friend Lady Fisher and I have put down six amendments. With the agreement of the Committee, I beg to move Amendment No. 38 and I shall speak to the other amendments at the same time. They concern matters of great importance. The amendments deal with matters of interest to employees regarding the continuation of their employment and the terms of that employment. They also cover important related matters. The Minister in another place was unable to comment on most them because they were still being negotiated. Tonight I hope the noble Lord the Minister will be able to say something about them and that he will accept the amendments.
§ Amendment No. 38 is self-explanatory. It is designed to protect employment after the cessation of the National Water Council. Amendment No. 39 is designed to ensure the transfer of National Water Council staff to the bodies which will respectively take over the National Water Council's functions. It is designed in any event to ensure that every member of the staff who wants it will have employment after dissolution. The amendment does not preclude voluntary severance or early retirement, arrangements for which will still be made by the National Water Council before it is wound up. It would also have the effect of preserving continuity of employment for employment protection Act purposes, because a transfer under it would probably satisfy the requirements of paragraph 17 of Schedule 13 to the Employment 224 Protection (Consolidation) Act 1978. A general provision relating to continous employment is set out in another of our amendments.
§ The Bill, as drawn, will simply consign the entire National Water Council workforce to unemployment, leaving each employee to make such efforts as are possible in the present economic climate to find a job elsewhere. The Bill gives no guarantee whatever that any such persons will obtain a job with a water authority or a new representative body of authorities, and it is simply unheard of for public servants to be treated in this way when their employer created by statute is abolished by statute. Parliament is free to create and abolish public bodies as it thinks fit but must surely recognise its obligation to employees who in good faith have entered the public service without expecting to be dropped into unemployment at parliamentary will.
§ The amendments are inspired by Section 255 of the Local Government Act 1972 and also by paragraph 8(1) of Schedule 3 of the Local Government Finance Act 1892. During Report stage in another place, the Parliamentary Under-Secretary of State for the Environment said, on the subject of staffing levels after abolition of the National Water Council, that the abolute numbers to be employed centrally will be significantly fewer than those employed currently in the National Water Council, although he nodded when Mr Denis Howell expressed the hope that natural wastage would be used and jobs found for people who had served the industry well and whose livelihood is in jeopardy. The position remains that the jobs and livelihoods of these public servants will disappear on the dissolution of their employer, and, unless the Bill is amended, they will have no protection at all. I hope the Committee will realise how important and how necessary this amendment is.
§ Amendment No. 40 is consequential on acceptance of Amendment No. 38. No. 41 should be self-explanatory, althought it is not quite as simple as would perhaps appear. It is relevant and necessary whether or not the two previous amendments in regard to transfer or offer of employment are successful. In the consultation paper (paragraph 39) it is said that the National Water Council staff re-employed by another employer in the undustry shall be regarded as having continuity of employment for the purpose of the Employment Protection Consolidation Act 1978. I venture to ask, by whom will they be so regarded? Probably not by an industrial tribunal in the event of a subsequent claim for unfair dismissal, because paragraph 17 of Schedule 13 to the Act refers to transfer of an undertaking (or part of it) from one employer to another, or statutory modification of a contract of empolyment. The dissolution of the National Water Council will have neither of those two effects, so continuity may not be preserved unless specific provision is made for it in the Bill.
§ This amendment is important for safeguarding rights in the event of dismissal, particularly as to the qualifying period for eligibility to apply to an industrial tribunal and in the event of a finding of unfair dismissal. If the correct provision is not made in the Bill, there could be a risk for up to about twenty years of adverse effect on the basic award due to someone who is subsequently unfairly dismissed.225
§ Amendment No. 42 concerns the transfer of staff whose terms and conditions after transfer are the same as before. This sub-paragraph is enabling only. It seems logical to include contracts of employment in the enabling provision in case it should be necessary or appropriate in due course to use this sub-paragraph in relation to contracts of employment. Amendment No. 43 is designed to ensure that any new association, company or other organisation that might be set up to do some or all of the work now done by the National Water Council will make pension arrangements for staff no less favourable than the scheme applicable to water authority employees. It may be that such provision is already envisaged by the existing subparagraphs of paragraph 7 of Schedule 2, but they appear not to go far enough and we wish to be in no doubt that suitable pension arrangements will be made.
§ On 18th January, the Under-Secretary, Mr Shaw, said in another place that administration of the water industry pension fund would pass to the Yorkshire Water Authority and the machinery for payment of pensions would be preserved intact. That is all very well in relation to staff of existing water industry employers, but no guarantee has been given that a new body, presumably an association of water authorities, and/or a limited company or several of them, will make the same pension provision for their staffs. If pension provisions by a newly created employer are not the same, staff will run the risk of losing heavily on transfer to it from the local government scheme, which is the scheme currently applied to staff of water authorities and the National Water Council, or earning significantly worse benefits from their future service with the new employer than they have earned to date in the water industry. It is unfortunate that we have to deal with such important matters so late at night, but I nevertheless hope that the Minister will be able to give an adequate reply.
§ Lord Skelmersdale
I shall certainly do my best. We very much appreciate the concern expressed by these amendments and I hope that your Lordships will agree that what I have to say will allay at least some of that concern. However, I am afraid that the Government cannot accept Amendment No. 38. Its purpose is to secure continuity of employment for all National Water Council employees. We believe—and this is important—that some considerable economies in staff and resources will be made by the Bill.
As I have already explained, we envisage the need for some functions of the National Water Council to be continued centrally. However, economies and improvements in efficiency are part of the reason for our proposals and we cannot, therefore, accept this amendment. I should add that Mr. Len Hill, Chairman of the Chairmen's Industry Committee, has advised that in the proposed new Water Authorities' Association all posts except that of the secretary will be protected for existing National Water Council staff, so long as they are suitable.
The National Water Council is a party to the water industry's generous 1977 scheme for the payment of compensation on severance. This compensation is in addition to redundancy payments payable under 226 employment protection legislation. Under the water industry's 1977 scheme the employer pays compensation where an employee is made redundant, provided that he has not unreasonably refused a reasonable offer of alternative employment within the water industry. What is a reasonable offer would be a matter for consideration in the light of particular circumstances. But if the terms offered were much less favourable than those currently enjoyed by the employee I would not expect this to be regarded as reasonable. Staff will also have the protection afforded by the Employment Protection (Consolidation) Act 1978, to which the noble Lord has already referred.
As I understand it, Amendment No. 40 is consequential on Amendment No. 38. I am advised that Amendment No. 41 is unnecessary. The 1978 Act operates on the basis that either there is a break in someone's employment, in which case questions of compensation arise, or there is not, in which case they do not arise.
In our view, any of the operations of the National Water Council which are transferred in whole or in part to some other organisation—be it a water authority or, say, the proposed Water Authorities' Association—are likely to represent the transfer of a business, or part of a business, within the terms of Section 94 of the 1978 Act. In these circumstances, continuity of employment would be preserved, provided that the new employer made job offers to the staff before dismissals by the National Water Council took effect and provided that employment with the new employer began within four weeks of that date.
As for Amendment No. 42, I can assure the noble Lords that the exclusion of contracts of employment from the agreements to which sub-paragraph (3) of paragraph 4 applies does not in any way adversely affect the interests of staff. I think that is something that particularly concerns the noble Lord, Lord Irving of Dartford.
This particular sub-paragraph is concerned with the possible need to clarify the construction of references in agreements to which the council are a party where rights and liabilities arising from those agreements are transferred to a water authority or other body. References to the council in such agreements could need to be treated as references to the body to which the rights or liabilities are transferred.
In the case of contracts of employment, we do not consider that it would be appropriate to transfer to a water authority or other body any liabilities of the council which may remain. There may, for example, be a claim against the council for compensation for an industrial injury. We consider that the proper course is for the Secretary of State to assume any such rights and liabilities of the council which may arise under contracts of employment. We have provided for this in sub-paragraph 3 of paragraph 3 of Schedule 2.
We do not propose, therefore, that any order under subsection (4) of Clause 3 should transfer any rights and liabilities in relation to contracts of employment to a water authority or other body. The purpose of the words to which this amendment relates is simply to make this exclusion clear in relation to sub-paragraph 3 of paragraph 4, which is concerned with consequential provisions in cases where rights and 227 liabilities under other types of agreement may be transferred.
Finally there is the question of superannuation for those who become employees of bodies established as a consequence of this Bill. This is Amendment No. 43. As I said at the beginning, I share the concern of noble Lords that the staff should be fairly treated and I am sure that proper pension provision will be made by these bodies. I expect that any new bodies established would wish to bring their employees within the same superannuation arrangements as apply to staff in the water industry.
If any bodies established as a consequence of this Bill did not come within the criteria in the present regulations for " admitted bodies " under the local government superannuation scheme, my right honourable friend would propose amendments to those regulations in order to bring the new bodies within scope. It would then be for those new bodies to negotiate an admission agreement, which I would expect to be with the administering authority for the water industry pension fund.
In the medium term, I understand that the water authorities intend to set up their own pension arrangements, independent of the local government scheme, under Section 27 of the Water Act 1973. The Bill will require that no arrangements of this kind can be established without the Secretary of State's consent—that is achieved by paragraph 7(2) of the schedule—and I can assure the Committee that he would not give consent unless the position of employees of any bodies of the kind under discussion was adequately safeguarded.
I hope that the noble Lord, Lord Irving of Dartford, will accept the Government's view that the proposed amendments are neither necessary nor in this case appropriate. I hope that, in the light of this explanation, the noble Lord will not seek to probe too much further at this late hour.
§ Lord Irving of Dartford
I think that the noble Lord will understand if we find the answer to Amendment No. 38 wholly unacceptable. The other matters are, as I think that he will agree, matters of great complexity. He would, I am sure, wish to allow us to have time to examine his reply in some detail and perhaps come back at another stage. In view of that statement, I beg leave to withdraw Amendment No. 38.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 39 to 43 not moved.]
§ Schedule 2 agreed to.
§ Schedule 3 agreed to.
§ Schedule 4 [Repeals and Revocations]:
§ [Amendment No. 44 not moved.]
Lord Skelmersdale moved Amendment No. 45:
Page 19, line 17, column 3, at end insert ("In section 17(5) the words "under section 6 above".")
§ The noble Lord said: This is a very minor amendment. One of the provisions of the Bill is to repeal Section 6 of the Water Act 1973. Section 6 is unnecessary because water authorities will have a free hand in making arrangements for their functions to be discharged—whether by committees, joint committees, officers and so on; there is no need for any express provision on the subject. Since Section 6 is being repealed, a reference to it in Section 17(5), which deals with maintaining the standards of our rivers, is also redundant and should be repealed. I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 46 to 48 not moved.]
§ Schedule 4, as amended, agreed to.
§ [Amendment No. 49 had been withdrawn from the Marshalled List.]
§ [Amendments Nos. 50 and 51 not moved.]
§ House resumed: Bill reported with amendments.
§ House adjourned at twenty minutes before one o'clock.