§ 3 p.m.
The Earl of Caithness
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Earl of Caithness.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES (LORD ABERDARE) in the Chair.]
Lord McIntosh of Haringey moved Amendment No. 91 A:
Before Clause 8, insert the following new clause:
("Duty to protect the environment and promote recreation.
—(1) This section has effect, in relation to a relevant body—
(2) The duties imposed under this section shall apply in relation to—
(3) A relevant body shall, in respect of its functions under this Act, have a duty to protect the environment, further conservation and generally to enhance beauty and amenity in relation to any matters to which section 8 below refers.
(4) Subject to subsection (3) above, a relevant body shall, in respect of its functions under this Act, have a duty to promote public access to land and waters for recreational purposes.
(5) For the purposes of this section, "relevant body" means the Authority, a water undertaker, a sewerage undertaker, an internal drainage board, or any person who—
§ The noble Lord said: Amendment No. 91A introduces a new clause before Clause 8, and your Lordships may think that is a rather curious procedure. It does that because Clause 8 is defective in so many ways that it is difficult to correct those defects within the scope of the clause as it has been framed.
§ As Members of the Committee will see from the Marshalled List, we have many detailed amendments relating to Clause 8, but we thought that it would be helpful to the Committee, rather than slowing matters down, if we tabled an amendment, Amendment No. 91 A, which deals with everything we think is wrong with Clause 8 and sets out the way in which we think the protection of the environment under this Water Bill should be handled.
§ The later amendments to Clause 8 deal with—and I set them out in only the barest outline because there will be a number of hours of debate on those subjects—first, the loose wording which exists and the fact that the clause continues to use words like "having regard to the desirability" of doing something rather than actually doing it; secondly, the matters which are left out of Clause 8 which should be put in—and examples of that are angling interests and the protection of coastal waters; and, thirdly and in particular—and this is a matter of which I give advance notice—the fact that the clause does not properly apply to subsidiary companies of water or sewerage undertakings.
§ Generally speaking, Clause 8 is weak because, as has been said on a number of occasions as we have considered this Bill, it is subordinate to the prime duty of the Secretary of State and the director general in Clause 7 to see that the water undertakings have an adequate return on capital; in other words, the interests of the environment, like the interests of the consumer which we discussed last week, come second to the profit motive.
§ Even if all these amendments were accepted there would still be a fundamental problem with the duties imposed on the Secretary of State, the National Rivers Authority, the Director General of Water Services and the relevant bodies—the relevant bodies being the water and sewerage undertakings. The problem is that the main duties contained in subsections (1) and (2) of the clause apply only when the undertaking or the director or whoever it may be is considering or formulating proposals relating to water plc land.
§ That makes Clause 8 essentially a defensive mechanism. It means that where there are proposals, there the director or the water undertaking has specific duties in order to protect the environment. In seeking to insert this new clause into the Bill, we are arguing that, even if all the other defects in Clause 8 were corrected, there is a need for a positive duty on the water and sewerage undertakings rather than simply a defensive duty which applies only when proposals are to be considered.
§ If there is no positive duty, there cannot be any realistic prospect of the environment having its true force, the force that it should have, against the prime responsibility for maintaining the profitability of 399 the water undertakings. Why—and I ask this in all humility because I realise that the structure of the Bill is very carefully thought out indeed—cannot the Government agree that there should be positive obligations on the Secretary of State, on the director, on the authority and on the water undertakings? Why do all those obligations have to be secondary to the profit-making interest?
§ That question is being asked not by me alone: it is clearly exercising the public of this country at large, because the deep opposition to these privatisation proposals does not arise from a public belief that water is a God-given commodity which should not be charged for. I believe that those romantic ideas are long past, if they ever existed. The problem is that people think water is such an essential and so naturally monopolistic a phenomenon that it should be subject to social criteria aimed at protecting the consumers and the environment rather than subject to the profit motive.
§ If the Government seek to convince the public as well as those of us on these Benches who think differently, then they must convince us that environmental interests have in the Government's mind at least equal priority with the other considerations. The Secretary of State has consistently called this an environmental Bill and has consistently talked about the National Rivers Authority—in that case with some justification—as being a step forward in the way in which we treat environmental matters. The acceptance of Amendment No. 91A and the insertion of this new clause before Clause 8 would show the Government's good faith in this matter and would enable them to give effect to what the Secretary of State and the government spokesmen have consistently said since this Bill in its present form was first formulated.
§ Perhaps I may now turn to the detail of the content of the new clause. Subsection (1) gives effect to the obligations, whether or not the water plc or authority is formulating or considering proposals as specified in Clause 8(1) or (2). It gives that effect regardless of the obligations under Clause 7(2).
§ Subsection (2) means that the clause will refer not only to the operational land of the water and sewerage undertakings but to all land and to that land regardless of the ownership in which it subsequently alights. That presages amendments which we have put down to ensure that the water undertakings cannot get out of their environmental obligations under this Bill simply by disposing of the land either to other companies altogether or, indeed, to their own subsidiaries. Therefore, it seems to us that if there is to be environmental protection for water authority land, that must be a continuing environmental protection, no matter in whose ownership the land is after privatisation.
§ However, it is not just land with which we are concerned. We are also concerned with buildings, objects, flora and fauna, with natural features on the land and with rivers, reservoirs, streams, canals, other waterways and the banks of such waterways. All those should be protected in the same way as the land is protected. The same is true of beaches and 400 coastal areas which might be affected by the carrying out of water and sewerage functions.
§ Clause 8 sets out in some detail—and we hope that after this amendment it will set out in even more detail—the precise duties which will exist for the Secretary of State, the authorities, the director general and the relevant bodies, the water and sewerage undertakings. However, if the detailed duties are not protected by this clause, they will be triggered only if proposals are put forward for different use of the land. We are rationalising this procedure and making sure that it is an abiding duty for all time on those concerned with the land. The proposals apply not only to what actually happens to the land but also to public access to the land. They apply not only to the authority, the water undertakings and the internal drainage board but also to those persons who have acquired an interest in the land which was formerly owned or leased by a water authority.
§ It is therefore fair to say that this new clause draws together the more important of the obligations which we believe should be placed on the water undertakings which will succeed the present water authorities. If the Government can see their way to agreeing to the amendment we will feel much happier not only about Clause 8 as it is presently drafted but also about the amendments which, as the noble Earl, Lord Caithness, has indicated, are to be introduced to Clause 8 to protect land of special environmental value. We do not know what those new amendments will propose. We do not attempt in any way to anticipate, either negatively or positively, what form they will take. The Minister was not able to say what form they will take; he was good enough to say that he would listen to Members of the Committee before making a final decision on what form they should take. That is clearly the correct procedure.
§ I hope that the Minister will feel that this new clause is a helpful contribution to our collective thinking, that he will agree that the principles embodied in it are worthy of inclusion in the Bill and that he can indicate the Government's acceptance of the amendment. I beg to move.
§ Lord Broadbridge
The purpose of this amendment, to which I have put my name, is, to use the language of solicitors, the avoidance of doubt. It seeks to specify comprehensively exactly what land and waters are to be conserved so that when the Bill leaves Parliament and has to be operated by others not close to our debates they will not be left in the unenviable position—alas, not unknown—of saying that it is all very well but Parliament did not make clear beyond an iota of doubt what exactly is to be protected.
In supporting this amendment I am most concerned with what might be called urban fringe land. I spoke on Second Reading and again on Amendments Nos. 2 and 8, which were taken together, in that context. Much is made of the risks to national parks, areas of outstanding natural beauty, SSSIs and the like. Such areas are already corporately protected, although it was gratifying, as the noble Lord, Lord McIntosh, said, to hear the Minister when replying to Amendments Nos. 2 and 8 say that 401 the Government will give special additional thought to the worries expressed by the Committee.
At that time the Minister differentiated between what broadly he called uplands and the urban fringe. In the context of the latter he wondered whether I was aware that some 500,000 houses have to be built by the year 2000. That may well be so, and the present and successive Secretaries of State will have the unenviable task of exercising the wisdom of Solomon in deciding where they should be built. However, I must mention—I promise this will be for the last time—that if the 29 acres of reservoirs and filter beds at Stoke Newington are to be taken as an example the present balance is between 1,100 luxury dwellings and associated shopping facilities on the one hand, and one of the few remaining large amenities, available to about 1 million or 2 million people living in inner north London, on the other. I feel that such a situation is replicated all over the country; otherwise I would not mention a parochial issue. It is a microcosm of situations which must exist elsewhere.
The amendment seeks to ensure that such an area is initially within the protection areas covered by the Bill by comprehensively specifying those areas. It is not only those areas of land and water having a high national profile of usage and enjoyment that need initial protection. There are also the areas about which I have spoken—a sort of rag-bag of often small locations that could easily be totally changed. They may not be of national importance; they may be small; but they are a vital lung to a surprisingly large number of people, many of them elderly, some of them young, and in either case often poor. Such people enjoy these crucial areas daily. I do not consider it an exaggeration to say that it is a part of what keeps them out of psychiatric treatment.
The amendment is designed to be helpful and constructive, not divisive or wrecking. I hope that Her Majesty's Government will accept it in the spirit in which it is offered and not, to bend a rather well known aphorism, take the stance of, "Beware of Greeks, especially when they bring gifts".
§ 3.15 p.m.
§ Lord Ross of Newport
I speak briefly in support of the amendment. Clause 8 will alarm anyone who looks at it closely. It is lamentably weak. It is full of sentences such as, "having regard to", "taking account of", and "having regard to the desirability of". That does not satisfy anyone who has an interest in conservation. I do not think that it can be said that so weak a Bill will conserve.
With these amendments we seek to move from the defensive to the positive. Why is it not possible for positive environmental duties to be included in the Bill? The Minister has said that he is prepared to come forward on Report with amendments to Clause 8; we all appreciated that. He said that he would listen to suggestions. I suggest one possible way forward. For land with environmental prospects the Government could offer to the water authorities a long lease of, say, 999 years with restrictive covenants. That is one possibility. It would not be particularly difficult and certainly there are many 402 bodies, such as the NCC and the Countryside Commission, which could advise the Minister on what land should be transferred. That would be a positive step, though it probably does not appeal to the Minister.
In the meantime, the amendment goes to the root of the matter and, if accepted, would please many in the Committee who have later amendments dealing with individual subjects such as fishing, and so on. Therefore, I hope the amendment will receive a sympathetic hearing.
§ Viscount Caldecote
I have considerable sympathy for the objectives of this amendment. My understanding of it is that there are two aspects. The first is continuity of protection, on which the noble Lord has just spoken. It is an obvious point that I hope the Government will take on board because there is no point in protecting the use of land and water areas which now belong to the water undertakings and abandoning that protection if and when the land is sold.
Secondly, subsections (3) and (4) of the proposed new clause refer to conservation and recreation. Both are important, but I am not sure that I am entirely happy about always putting conservation in front of recreation. It is, of course, a difficult balance to be held, but I should like to emphasise the great importance of recreational opportunities for the young. We shall come back to that point later in the Bill. There is no doubt that much hooliganism today is because young people do not have enough outlets for their energies. They need interesting and challenging recreational activities. Sailing is one of those activities. Sailing and racing on reservoirs and rivers constitute a very important outlet for young people. I hope that the Government will give a firm indication that they support that principle, whether or not the amendment is the ideal way of achieving it.
§ Lord McIntosh of Haringey
Before the noble Viscount sits down, it is not intended in this amendment that conservation should have priority over recreation. It is simply that the words have to be in one order or another. There is no intention whatever that full attention should not be paid to recreation. There is, of course, sometimes a conflict, as the noble Viscount will recognise, between access and recreation. That is a professional or technical matter; it is not an issue which we intend to pre-judge in our wording of the new clause.
§ Viscount Caldecote
I was very glad to hear what the noble Lord said. The wording of subsection (4) "Subject to subsection (3)" implies that subsection (3) is more important than subsection (4). No doubt that point can be dealt with in subsequent amendments.
§ Lord Renton
I must agree with my noble friend Lord Caldecote about the need for continuity in planning arrangements. We had a discussion about that last week. I do not wish to repeat the argument that I and others put forward. The obvious need for continuity is that you do not get adequate protection 403 of the environment unless you have it. It is not fair on the people whose interests are involved if we do not have continuity, and if we are always chopping and changing the policy.
Having said that, I do not see how anyone can disagree with the broad motives of the noble Lord, Lord McIntosh, in putting forward the amendment. As I see it, his trouble is that those motives are already embodied in Clauses 8, 9 and 10 of the Bill and are set out in very considerable detail. The actual words of the amendment used sometimes overlap with the words in those subsequent clauses, especially Clause 8. I believe that if we were to add this clause to the Bill before Clause 8, we would be making a very confused situation in the reading of the Bill on this vitally important subject. I grant that this is one of the most important matters for us to be considering in connection with the Bill. I shall be very interested to hear what my noble friend Lord Caithness (or whoever is to answer for the Government) has to say. I would not expect them to accept the amendment as it stands.
§ The Earl of Onslow
As my noble friend Lord Renton said, I do not believe that anyone can in any way disagree with the motive. I believe we have to be quite careful about preserving the Stoke Newington filter beds as if they were the Pyramids of Egypt or the Colossus of Rhodes. After all, they were created by man. If we are not very careful and the filter beds are not looked after properly, they could easily become derelict industrial wasteland. I see the conflict, and I see that it is essential in that part of London to produce proper recreation and conservation with proper access to wildlife. There should be proper access to all the things that almost all Members of the Committee have been privileged to have. We must be very careful how it is done. One has to consider whether one should apply a special piece of legislation to one's old chums to build the roads in Stoke Newington. I am not totally sure whether that is right.
We must wait until Report to see the amendment of my noble friend Lord Caithness on this very subject. I hope that he can get the amendment published as quickly as possible so that we can have almost a pre-Report stage discussion at some later stage in the Bill when it can be tagged on. If views emerge that modify the amendment a little and make it a little better, then those changes can be taken in before the amendment is finally tabled at Report stage. The point that the noble Lord, Lord McIntosh, has raised is absolutely valid. We must not preserve the Stoke Newington filter beds solely and forever. It seems equally important that we must get the Government's proper thinking and allow the planning process to take its due regard as well. This is too complicated and it seems that there are many balls in the air at the same time. All these matters should be looked at very carefully before we take a decision on what the noble Lord, Lord McIntosh, wants.
§ Baroness White
Perhaps I may pass from Stoke Newington to the highlands of Wales. I have here a 404 report of a public meeting held by Welsh Water on Friday of last week. The heading in the local newspaper of Saturday morning is "Hotels plan for private reservoirs". The article continues:Hotels and leisure developments may be built overlooking lakes and reservoirs in Wales after Welsh Water is privatised. But the authority's chiefs stressed yesterday that any construction on some of the most beautiful stretches of Welsh countryside would be 'sensitive' to the environment".The article goes on to explain that on the assumption that privatisation is to take place, Welsh Water will be subdivided into subsidiaries. This brings emphasis to the point made by the noble Lord, Lord Renton, and others, that unless one has continuity of responsiblity, a great deal of Clause 8 will be of little value. The report continues by stating that while the core functions of Welsh Water will be carried out by Dwr Cymru—that is simply Water Welsh in Welsh—there will be three other subsidiaries; namely, Welsh Water Engineering and Environment, Welsh Water Enterprise and then the subsidiary which is connected with this proposed new clause, Welsh Water Land and Leisure.
It is made quite clear that:Land and Leisure will be a self-contained profit making subsidiary. Profits will not be transferred to Dwr Cymru to keep down water prices but it may make up a substantial part of the dividends to shareholders".We are given the assurance by the current managing director of Welsh Water, reinforced by his chairman, that:Welsh Water Land and Leisure will make 'commercial use of the company's land and recreation assets in a very sensitive way' ".I am quite certain that they are entirely sincere in this intention, but what concerns most of us is surely how sensitive can the new subsidiary company afford to be? I am quite certain that it will start off with the best of possible intentions. It is made entirely clear that it will have to provide profits for the shareholders. I am not arguing that particular point concerning the consumers and the prices. Under the Bill such an undertaking will be entirely legitimate. It has now been publicly announced, regarding the areas of the other water authorities that are to become plcs, that they will do very much the same, and they will seek to exploit any landscape or other features at their disposal. The Welsh situation is similar. It will be very difficult indeed for them to resist maximum exploitation. One cannot blame them for that because that is the nature of the new creation. However, it makes it absolutely essential that in dealing with this situation, and if we really care about the environment—the beauty of the landscape, wildlife, the flora and fauna and other natural and archeological features—we make quite sure that Clause 8 is adequate.
With the greatest respect to the noble Lord, Lord Renton, in particular, no one can really pretend that Clause 8 as at present drafted is anything like adequate to meet the situation that I have described, and which I have every reason to suppose will be affecting the majority of the new water plcs. I am equally sure that most of them will wish to carry out their duties quite conscientiously. I am equally convinced that they will find that the pressures on them when they become commercial companies will 405 be such that they will almost certainly be led into putting forward development schemes which may or may not get past the planning authority. If they do, then in many situations they will not be the most desirable ways of treating areas of beautiful country which many of us would wish to see not developed unnecessarily, but to remain peaceful and calm and a refreshment to those who wish to go to them.
§ 3.30 p.m.
§ Baroness Phillips
I should like to underline what my noble friend has just said and ask the noble Lord, Lord Renton, this question. How many times have we heard the argument that as this will already be covered in the Bill we do not need it again? It is better to have it in the Bill twice than not to have it at all. There is always the danger that there will be something slightly different in the amendment from the words already contained in the clause.
I want to take up one point with my noble friend on the Front Bench. As a Christian I happen to believe that water is God-given. Of all the government privatisations, this is the one for which they will have to answer later to the Almighty. Water is there for man to use. We must keep that point firmly in front of us.
On conservation, and following the points about Wales and Stoke Newington, in Fulham where I live there is great competition to get the river sites so that expensive flats can be erected. Such flats would look over the river at a beautiful open space. What is that beautiful open space? It is the Barnes reservoir. When I was a small girl I was always told that it would never be taken away and that it was there in perpetuity. It is a beautiful space which we in London value. We should think carefully before we allow anyone to destroy the open spaces, the trees and the plants which are there for enjoyment and recreation. Surely the Government could for once write something into the Bill twice. Does it really matter? The strange argument is always used that the Bill already says this. If the clause is not clear—and with due respect to the Government, it is not clear—what is wrong with underlining the point with this amendment?
The noble Baroness may like to know that the Moslems have a saying, "We have created from water every living thing".
§ Baroness Lockwood
Perhaps I may follow my two noble friends and other noble Lords and take the Committee on a geographical tour of the country, from Stoke Newington to Wales, and from Fulham up to the Yorkshire Moors and Dales. This matter affects not only areas like London but all the large industrial towns in our country. Most of them have reservoirs and areas of land which are well used in the vicinity by local inhabitants. In Yorkshire one thinks of the Washburn Valley, which provides a real amenity to the citizens of Leeds and Bradford. It is not part of the Yorkshire Dales national park but is nevertheless not only an amenity but a recreational area where young and old can come to enjoy the countryside and begin to 406 appreciate the flora and fauna and other natural beauty in the area.
Noble Lords have talked about the importance of continuity. That is embodied in the amendment. We are not just thinking of the water undertakings as they are at present but as the water plcs which might either subcontract or sell some of the land. The rights embodied in the amendment would go with the land so that a company which took it over would be equally responsible for fulfilling the obligations. My noble friend Lord McIntosh spoke of the amendment as a defensive mechanism and went on to point to the positive duty embodied in it. There is a positive duty to protect and conserve the environment and to enhance its beauty and amenity. The clause gives as much weight to the importance of this function as is given to the responsibilities embodied in Clause 7.
Unlike the noble Lord, Lord Renton, I do not feel that Clauses 8, 9 and 10 in themselves are adequate protection. We need something to balance the obligations in Clause 7 to make these undertakings subject to the overriding business and profit principle. The Minister has on previous occasions assured us that there is protection in the Bill. Many people are not convinced by that argument and they would like something specific and positive written into the Bill. I hope therefore that he will be able to accept the amendment.
The Earl of Halsbury
Perhaps I may rise on a purely technical point of draftsmanship with particular reference to the point made by the noble Lord, Lord Renton. I have always been taught that, from the standpoint of what I might call the aesthetics of draftsmanship, the general should precede the particular. The most general aspect of the Bill is its Long Title. Clause 1 is the most general clause and so on, following in order throughout the different clauses, where the general precedes the particular. If the amendment of the noble Lord, Lord McIntosh, is of a more general character than Clauses 8, 9 and 10, which follow, the point made by the noble Lord, Lord Renton, fails. If, on the other hand, it is as particular as what follows, there could be confusion between the different aspects. The noble Lord's point would then have substance.
§ Lord Ezra
The number of noble Lords who have intervened in the debate on this amendment demonstrates the importance attached to it. In fact, that is a reflection of public opinion. The public is concerned about what will happen to the land which is associated with the water industry and which has substantial environmental and recreational impact. It would be in the Government's interest to show beyond any doubt that it is their intention to safeguard those aspects. That is what the public wants. Clause 8 as presently drafted does not go far enough. If, as some noble Lords have suggested, some duplication of what is said in the Bill is necessary, so be it. Let us duplicate on a point of real public concern.
The noble Lord, Lord Renton, made an important contribution to our discussion. However, he accepted that continuity of the environmental and 407 recreational aspects of the land is important. This has to be emphasised beyond doubt. The noble Earl, Lord Caithness, said at an earlier stage that the Government would introduce measures to safeguard this land and would do so at a later stage. I hope that when he comes to reply to the debate he will tell us what he has in mind so that our doubts can be set at rest. The Committee attaches the greatest possible importance to maintaining the environmental and recreational benefits offered by this land. We want them to be retained not only in its present ownership but in any future possible ownership. We look to the Government to make sure that that is enshrined in legislation.
§ Baroness Carnegy of Lour
Unfortunately I missed the beginning of the speech of the noble Lord, Lord McIntosh, so I may have misunderstood his amendment. Does it say that any land which at the date of the passing of the Act was owned by a water authority will in perpetuity, whoever owns it, continue to have its environmental and ecological protection and public access organised by a water or sewerage undertaking? Is that what it says? It is terribly important that land which is not necessary to the undertaking but which is wanted by the public for public access—and for which the planners want to ensure that there is such access—may be owned by a number of people who would need to organise their own protection of the environment and their own public access without any interference which may arise just because the land happened at one time to be owned, for whatever reason, by a water authority. I wonder whether I have perhaps misunderstood the meaning of the amendment.
§ Lord McIntosh of Haringey
The noble Baroness has raised an interesting and most helpful point. The intention is that those who receive land under the Act—that is, the water undertakings—shall have a continuing responsibility whether or not they continue to own the land. Such undertakings, as they dispose of the land, must secure adequate covenants to give effect to the provisions under this clause and under Clause 8. That is a well-established procedure which exists in many circumstances in the private sector.
My wife and I own a house in London which used to be a tennis club. The covenant dating back to the 1920s on the club stipulates reasonably that no alcohol shall be sold on the premises. There is also a continuing covenant, which my solicitors drew to my attention when we bought the premises, that no alcohol shall be consumed thereon. I think that we have managed to find our way round that particular covenant. The principle of a continuing covenant on the disposal of land is not one which is foreign to our law and there need be no difficulty in ensuring that continuing obligations are carried out.
From the public point of view it is absolutely essential that there should be continuing obligations regardless of who the current owner of the land is. The relevant bodies—in other words, the undertakings who receive the land under the 408 Act—must be the people who are responsible in the first place for imposing the covenants.
§ The Earl of Radnor
The point should be made that control by covenant is not nearly so strong as it used to be. Moreover, it is very dependent on the previous owner having influence over whatever is sold and upon which the covenant is held. I can imagine that that might not necessarily be the case with a water plc selling on something to someone else; indeed, it may not have any influence in that particular geographical area. Therefore if the matter came before the courts it would be found that the covenant was not as valuable as we seem to think it is at present.
§ Lord McIntosh of Haringey
I am grateful to the noble Earl for that helpful point. It seems to me that what we are gathering from this discussion is that all Members of the Committee who have spoken thus far are in favour of the principle of continuity. Indeed, that includes the noble Lord, Lord Renton, and the noble Earl, Lord Onslow. If so and if it is the case, as the noble Earl, Lord Radnor, suggested, that the covenant procedure is not adequate, then we must find a way of ensuring that the Act makes that protection available.
§ Baroness Carnegy of Lour
I think the fact that the noble Lord, Lord McIntosh of Haringey, had to find a way around the covenant as regards alcohol when he bought his house is a good illustration of what my noble friend has just said.
§ Baroness Blatch
The two explanations which we have just received from the noble Lord, Lord McIntosh, are most helpful. They emphasise just how much the main objective is shared by all participants in the debate; that is, continuity and continued access to all of these sites. But the amendment goes a little too far. Subsection (2) refers to "any land", "any buildings, objects, flora, fauna", and "any river, reservoir", and so on. It seems to suggest that if the amendment were accepted—again it would be helpful to have further clarification—there would be no varied land use of any piece of land, or any building, which could be owned by a water authority either prior to the passing of the Bill or subsequent to its enactment. Therefore I think that that provision would be too all-embracing.
I am reminded that both on Second Reading, and subsequently in this debate, my noble friend the Minister has promised that an amendment is to come from the Government at some stage. The amendment will protect the interests and concerns which have been expressed by all speakers in the debate. Therefore I should prefer to wait and listen to what the Minister has to say on the matter in terms of protection of these areas of special interest and to see the amendment which will be put forward in due course by the Government.
The Earl of Caithness
It is a tradition of this Chamber that it gives particular care and attention to the protection of our environment. With its ability to stand back and take a long-term view it is 409 invaluable that it should do so. It is therefore entirely in keeping with that tradition that the three clauses—namely, Clauses 8, 9 and 10—before us today have evoked exceptional interest and a particularly diverse range of proposed amendments and additions.
But, if the clauses are few, they are of considerable breadth and complexity. So I begin, if I may, by complimenting the noble Lord, Lord McIntosh of Haringey, for providing, in the first amendment, one which precisely distils a number of fundamental issues to which many have been giving careful thought. If to distil the issues were to solve them, I would be in the happy position of beginning today's proceedings with full agreement. But, inevitably, that is not the case and for fundamental reasons I cannot do so. However, because the noble Lord has distilled all today's discussion into one amendment, and because there appears to be some misunderstanding of the Government's position and their intentions, I hope Members of the Committee will bear with me if I take some time to reply.
Perhaps I may start by sketching the background and identifying certain general considerations which will be relevant to all our proceedings today. As the Committee will be aware, Clause 8 carries forward and develops, in various ways, the duties on water authorities in the Water Act 1974 and the Wildlife and Countryside Act 1981 in respect of conservation, access and recreation. There has been a tendency in discussion of the Bill elsewhere to portray our proposals here as too limited. In this area I suspect it is impossible to satisfy everyone, but I hope that Members of the Committee will not lose sight of three particular considerations.
First, the duties—particularly that of further conservation—are stronger than those which attach to any other industry in the private sector or in the public sector. I wonder how many noble Lords would have expected a year ago that any government would place a duty to further conservation on new private companies. That is an unprecedented step. I hope that noble Lords will not lose sight of the fact that it is a unique marriage of private status and public responsibility in this area.
Secondly, the duties are modelled closely on those already applying to the public water authorities. We regard this as a merit because it ensures continuity of practice and legal interpretation. In the last 10 years those duties have been a success. In many areas the water authorities have a proud record in conservation. And for all the well-orchestrated complaints the fact is that the water authorities have increased public access to their land in recent years.
The third consideration is the need for balance. This Chamber rightly places great emphasis on conservation and environmental matters. As I said, it is able to take a long-term view and the Government listen particularly to it on these matters for that reason. But there is always a temptation to go further for the sake of doing so. I know that the Chamber would not resort to that: it would be inappropriate because what we propose is not the minimum we thought might prove acceptable. On the contrary, it is what the Government regard as the right balance 410 between environmental obligations and all the other needs and objectives that need to be served.
I make these three points now, not to make them again, at least for a while. But I hope that Members will not lose sight of them as we move through the many proposals before us today and particularly this first amendment.
The origin of this particular amendment may be speculated upon. The noble Lord collected his checklist of matters in Clause 8 which have been the subject of any doubt in another place or outside this Chamber and sent instructions to his crack team of draftsmen, "Give me a clause that solves all possible problems, squares all obvious circles". The amendment is wide-ranging and sweeping indeed. It cuts out any subordination to the general duties in Clause 7; it cuts out the limitation of the duty to the relevant body's performance of its function. It deals at a stroke with all issues related to disposal of land and makes any possible protection run for ever, in any circumstances, under any future owners; and it frees public access from any sort of constraint or limitation.
Now, all those separate issues are to come before the Committee in the 29 groups of amendments which follow. And that is how we should deal with them: separately, fully and on their merits, which is how, until the last possible moment on Friday, it seemed that we would deal with them. But then the noble Lord, Lord McIntosh, in the adept way to which this place is now well accustomed, pulled the rabbit from the hat. Well, the proposal is here and we must deal with it. The question the Committee must consider is whether it is not so flawed—flawed not in detail but in substance—that it should find no place in the Bill. To assist in this, let me deal in turn with each of the subsections of the amendment and the particular issues that they raise.
I begin with subsection (1), which is by way of preamble and has two parts. Paragraph (b) states simply that the clause shall have effect notwithstanding the duties of the Secretary of State and director in Clause 7; but of course that must be the case because, unlike Clause 8 itself, this new clause does not apply to the Secretary of State and director general.
Well, what are we to infer from this? What we infer is that the proposers have simply evaded the issue. They recognise, I suspect, that if the Secretary of State and director are to be subject to the duties, the relatonship to Clause 7 must be dealt with—and that can only realistically be done in the way the Bill does it—by making Clause 8 and any new clause subject to Clause 7 so far as the Secretary of State and director are concerned; but, to avoid being forced to the sensible position in the Bill, the new clause simply omits the Secretary of State and director from the duties. That loses more than it gains, for all parties involved in these matters should be subject to the same general environmental duties.
Subsection (1)(b) simply dodges the issue. But it is in subsection (1)(a), which deals with the relationship of the duties to functions, that the clause really begins to fall apart. For what do we find? In (1)(a) it is declared that, unlike Clause 8, the duty shall 411 apply whether or not the relevant body is formulating or considering proposals related to its functions. The link to functions, it seems, is to be severed. With one bound, or so it seems to the reader, we are free. But hold on. For further down, in subsections (3) and (4) we are told that actually the duties apply only in respect of the relevant body's functions.
What are we to conclude? We are to conclude, I suggest, that the underlying purpose may have been to end the link to functions; but then inescapably, inevitably, back we find it had to come. The particular conservation and other duties in question are there because they are specially relevant to the functions of the water industry; but they have no special relevance to all those other activities which, in common with all other companies, they may engage in, and which have nothing to do with the functions which Parliament expressly requires the water authorities to perform.
I now turn to subsection (2), with which I must associate subsection (5). Together they define when the duties arise, who are the relevant bodies for purposes of the clause and in what circumstances land is to be protected by them. The key points are not only that subsection (2) applies the duties to any land held by the relevant bodies, but also that they are applied for ever and a day through subsection (5), which imposes the duties on any successor owner who may in future acquire ownership of any water authority land. The difficult issues of the need for special protection for certain special categories of land in special circumstances are dealt with in the most radical way possible.
Once more, with one bound, we are free. Or are we? Subsection (5)(a) certainly tells us that anyone who acquires the land acquires the duties; but then, just to spoil it, subsection (5)(b) starts talking about functions again. The key question is whether, for a body to become a relevant body and acquire the duties, both conditions have to be satisfied or just one. We look to the clause for clarification. Are the two conditions linked by an "and" or by an "or"? As neither appears, we have no clarification. The uncomfortable fact is that the draftsman has collided with the reality the proposers so obstinately ignore. If we are to read in an "and", then the clause does not change the sensible position in the Bill; but if the duty can fall on any person simply because he acquires the land, simply because it was at one time water authority land, and regardless of the acquirer's possibly totally different functions, we have an absurdity.
That absurdity is at its most stark with regard to formerly operational urban land. Never mind whether it has any merit on conservation and amenity terms; forget future—indeed present—needs which might conflict with this: housing, employment and all those other considerations that a responsible government must weigh and a responsible opposition should weigh. What a proposal—a proposal to extend state interference in perpetuity in the long-term use of private property. That on a day when the Labour Party has apparently moved to abandon its Marxist heritage.
412 The noble Lord, Lord Broadbridge, said that when considering decisions in the future, the Secretary of State must have the wisdom of Solomon. What he really meant was that the Secretary of State must have the wisdom of Solomon but he is not allowed to exercise it here. If the effect of these subsections is as I have described, I am bound to say that the proposal lacks that essential ingredient to which I previously referred. It lacks balance. It is injudicious. It is unsafe and unsound.
We are then left with the two central subsections, which set out the actual content of the duty. Subsection (3) refers to protecting the environment, furthering conservation and enhancing amenity, much in the terms of the Bill as drafted, and I have no quarrel with them. But subsection (4) imposes a duty to promote public access to water authority land for recreation. That is a different matter. It goes beyond what we propose, and it is dangerous because it is unqualified in any way. First, it covers not just the places of natural beauty and amenity referred to in the Bill as drafted, but all undertakers' land; any urban depot or sewage works to which people might, for reasons best known to themselves, wish to have access for recreation; secondly, it is not subject to any qualification such as, "so far as practicable" or, "reasonably practicable". The undertakers shall promote public access, and that is that. Never mind possible conflicts with operational needs, the costs that could arise, safety considerations, or the owner's liabilities. Thirdly, the undertaker is to promote public access not only so long as he owns that land, but even in the act of sale and thereafter.
As the Committee is aware, the Government support continued protection and indeed enhancement of public access to water industry land, where appropriate and practicable, and subject to reasonable constraints. As we shall see when we debate that topic, nothing in the Bill prejudices that. However, the effect of this subsection would be to sweep away all those reasonable constraints. Here again, the proposal lacks balance. It is unwise. It is too open-ended, and is unsound.
My noble friend Lord Onslow raised the important point of the assurance that I gave at an earlier stage. I fully take on board the necessity to bring the matter to the Committee's attention as soon as possible, but until I have heard all that the Committee has to say it is difficult for me to bring it forward. Of course I cannot tell the noble Lord, Lord Ezra, what the amendments are until we have listened to and considered what the Committee says. The noble Lord's interpretation of listening and considering is rather different from mine.
I have now reviewed each of the subsections and all the key issues the proposed new clause raises. In each respect the clause is found to be fatally flawed—flawed not just in details or technicalities which we would happily leave our draftsmen to disentangle for us, but in its fundamentals. Time and again it evades issues or contradicts itself. At every turn it collides with reality.
The proposed amendment has nonetheless served a useful purpose: it has focused on major issues and allowed us to take a broad view, as we should; and 413 for that I thank the noble Lord who proposed it. That being so, I hope that he does not feel bound to press it to a Division. If he does so, then I am bound to advise the Committee that, being so flawed in its fundamentals, and scattering its shot in all directions, it should find no place in the Bill.
Where then would that leave us? It would leave us where we were on Friday, before the rabbit was pulled from the hat—with 29 sets of amendments which enable us to deal, separately and on their merits, with all the different issues that these clauses raise. I can assure the Committee that from this Bench we shall approach them in an open and constructive manner. We have already said that we should, and in due course will, find a means to deal with the main outstanding difficulty: the need to provide some permanent protection for sites of particular conservation and amenity value. The noble Lord tried to pre-empt my assurance to the Committee on day one by dividing on the second amendment. I repeat that assurance again. I hope on reflection that Members of the Committee will not spurn it. Our minds are open and they will remain so on all the following issues and matters on which I look forward to hearing the views of Members of the Committee.
§ 4 p.m.
§ Viscount Caldecote
Perhaps I may ask the noble Earl one short question. He referred to the continuing protection of conservation and amenity values. Does "amenity" include recreation?
The Earl of Caithness
There is a considerable amount of recreation on water authority land at the moment. As I said, it has been increased in the last 10 years. That too is a matter which we shall be debating.
§ Lord McIntosh of Haringey
I am always pleased when the noble Earl feels it necessary to depart from the departmental brief and go to the Conservative Central Office brief—or is it the Prime Minister's speech writer who wrote the piece about former Marxist traditions in the Labour Party? I do not think that comes from Marsham Street. I shall save myself the pleasure of responding to the noble Earl's speech until I have dealt with the remarks of other noble Lords who have taken part in the debate.
It has been a helpful debate, not least because it has revealed an all-party, I would say a universal, concern that the Bill as drafted does not provide the full degree of protection, particularly continuity of protection for the environment, which not just pressure groups and interest groups but the people of this country as a whole expect from us in going through a Bill.
The noble Lord, Lord Renton, was particularly concerned about the danger of overlap with Clause 8. But I thought that the noble Earl, Lord Halsbury, dealt with that very effectively. Our new clause refers in subsection (3) to,any matters to which section 8 below refers".As the noble Earl, Lord Halsbury, suggested, it is intended as a general statement of the principles 414 which ought to be adopted in considering Clauses 8, 9 and 10. As the Minister rightly reminded us, all of those are concerned with the protection of the environment. Again as he rightly reminded us, these are extremely complex measures.
Our concern is that complexity in this case has not produced clarity. At the end of the day what we need is clear and unambiguous commitments to the protection of the environment. Particularly with the subordination of Clause 8 to Clause 7, that is simply not available under Clause 8 as it is drafted. Our tabling Amendment No. 91A on Thursday afternoon was an attempt to help the Government rather than the reverse. It was an attempt to clarify the whole range of issues which, as the Minister rightly said, are embodied in the 29 groups of amendments to be considered today.
We take the view that it does not matter how sympathetic the Government will be to the 29 groups of amendments. I do not know whether I am right in drawing the conclusion that the Minister will be sympathetic to some of them. Maybe I am too naive and anticipating too much, but he certainly seemed to indicate that there was a degree of concern which the Government shared on these matters. However, as Clauses 8, 9 and 10 passed through another place with inadequate amendment they will still be inadequate to protect the environment. If that is the case, then as we rise at the end of the evening we shall be very pleased to have achieved more.
However, I do not think that is what the people of this country want. I think that they want in the first instance not just amendments at the margin. They want those, and we shall pursue them. But they want a clear statement of the Government's intention not to allow water privatisation to damage our environment. It is not a question of imposing new duties on anybody; water authorities are at present under public control. As citizens of this country, ultimately we have the power through our democratic process to control what the water authorities do with our land which is in their ownership. It is our land; it is the people's land. That is above all what the amendment is intended to protect.
I do not think that we would be right to accept the suggestion of the noble Earl, Lord Onslow, that we should wait for the Government's amendments. The Minister himself in his reply did not indicate that we should do that. He suggested, I think rightly, that we should continue to discuss Clauses 8, 9 and 10 as they are before the Committee and that he and the Government would take into account what amendments required to be brought forward as a result of the Committee's discussion. I take that to be the correct view.
As we have the responsibility of putting down amendments at this stage, we should for our part seek to secure the best result on Clauses 8, 9 and 10 and in the new clause preceding Clause 8 that we can, and that should be the basis on which the Government will consider what further amendments are required. I see no constitutional difficulty in that; no argument against our amendment that the Government have given a necessarily imprecise—I 415 am not complaining—indication of future concessions. In order to help clarify the Government's mind, we must do the best we can. I have no doubt that my friends who have prepared the amendment will be delighted with the phrase, "crack team of draftsmen", but it is much less cynical and much less instrumental than the Government seem to think.
I listened with great care to what the noble Earl said about our amendment. Until he came almost to the penultimate line, I did not find any serious or effective criticism of the drafting. The one case where I think we are at fault is in the failure to put "and" or "or" between sub-paragraphs (a) and (b) in subsection (5). If I were to say to the noble Earl that yes, he indicated that "or" would be preferable and if he agreed to the amendment I would ensure that at Report stage the word "or" was inserted, would he then agree to the amendment? I think not. Of course he would not, because it is nothing like as important a matter as he claims.
However, that was the only defect of any substance which was brought forward against the amendment because, as a whole, it deals with the problems which are before the public mind. It deals with the problem that Clause 8 in particular only refers to proposals which come before the undertakings. It deals with the problem that all the protections in Clause 8 are subordinate to the profit-making obligation in Clause 7. It deals with the problem that the obligations do not continue after the undertakings dispose of the land, whether to a third party or not, and even to a subsidiary, as my noble friend Lady White set out very clearly. The amendment deals with that problem. The government clause does not deal wih it. The amendment defines more clearly than the Government have ever done in Clause 3 the nature of the duties to protect the environment. It deals in subsection (4) with the question of public access to land, which is inadequately dealt with in the clauses as we have them.
In his opening remarks, the Minister sought to suggest that these were unprecedented obligations on private companies. I suggest to the Committee that these are unprecedented private companies. What they have is complete control of a natural monopoly on something that is essential to all of us. Any company, private or public, which has the privilege of supplying the British people with something which is essential to them, and supplying it on a monopoly basis, must have extra obligations imposed upon it. The British people require that as consumers of water, as inhabitants of this country and as those who are concerned with the preservation and conservation of this country's environment. It is on those bases that I move this amendment.
§ The Earl of Onslow
Surely it is a total waste of time to walk around in circles. The noble Lord knows perfectly well—he has said it before—that arithmetic will mean that he loses this matter. On Thursday night, by sweet reason, eloquence and powerful argument, my noble friend Lord Caithness was persuaded to do something. I think this Chamber will listen to reason. My noble friend Lord Caithness 416 has said that he will come forward with an amendment which will deal very fully with this matter. Obviously, we should like to hear a lot more about what is contained in that amendment. I am totally in agreement with what the noble Lord wants to do; but I think that walking around in circles to a pre-determined mathematical result is a waste of everybody's time.
§ Lord McIntosh of Haringey
I am the first to congratulate the noble Earl in achieving success with his amendment on Thursday night. I think that was well worth doing. But I have to remind the noble Earl that what he contemptuously described as walking around in circles—or what outside this Chamber could be described as walking around in a circle down to the polling station and back again—is rather an important part of our democracy. It is important for our democracy that we express our opinions. People outside this Chamber, as well as Members on these Benches, expect us to express our opinions as clearly as we can. We do not always do so in the expectation of immediate success, but in the expectation that people will understand that what we are saying is right. I think this amendment is right. I hope I shall not have to make a second peroration on this amendment and that the Committee will be prepared to proceed to a Division.
§ 4.12 p.m.
§ On Question, Whether the said amendment (No. 91 A) shall be agreed to?
§ Their Lordships divided: Contents, 92; Not-Contents, 108.417
|DIVISION NO. 1|
|Addington, L.||Howie of Troon, L.|
|Amherst, E.||Hughes, L.|
|Ampthill, L.,||Jenkins of Hillhead, L.|
|Ardwick, L.||Jenkins of Putney, L.|
|Aylestone, L.||Kennet, L.|
|Blyth, L.||Kilbracken, L.|
|Bonham-Carter, L.||Kilmarnock, L.|
|Boston of Faversham, L.||Kinloss, Ly.|
|Bottomley, L.||Lawrence, L.|
|Briginshaw, L.||Leatherland, L.|
|Broadbridge, L.||Listowel, E.|
|Bruce of Donington, L.||Llewelyn-Davies of Hastoe B.|
|Carmichael of Kelvingrove, L.||Lloyd of Kilgerran, L.|
|Carter, L.||Lovell-Davis, L.|
|Chitnis, L.||McGregor of Durris, L.|
|Cledwyn of Penrhos, L.||McIntosh of Haringey, L.|
|Davies of Penrhys, L.||McNair, L.|
|Dean of Beswick, L.||Mais, L.|
|Dormand of Easington, L.||Mason of Barnsley, L.|
|Elwyn-Jones, L.||Mayhew, L.|
|Ezra. L.||Milner of Leeds, L.|
|Falkender, B.||Molloy, L.|
|Falkland, V.||Mulley, L.|
|Fisher of Rednal, B.||Nicol, B.|
|Foot, L.||Ogmore, L.|
|Galpern, L.||O'Neill of the Maine, L.|
|Graham of Edmonton, L.||Peston, L.|
|Greenhill of Harrow, L.||Phillips, B.|
|Gregson, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Hanworth, V.||Rathcreedan, L.|
|Hirshfield, L.||Rea, L.|
|Reilly, L.||Strabolgi, L.|
|Ritchie of Dundee, L.||Taylor of Blackburn, L.|
|Rochester, L.||Taylor of Mansfield, L.|
|Ross of Newport, L.||Tordoff, L. [Teller.]|
|Sainsbury, L.||Turner of Camden, B.|
|Seear, B.||Underhill, L.|
|Serota, B.||Wallace of Coslany, L.|
|Shepherd, L.||Walston, L.|
|Somers, L.||White, B.|
|Soper, L.||Williams of Elvel, L.|
|Stallard, L.||Wilson of Rievaulx, L.|
|Stedman, B.||Winchilsea and Nottingham, E.|
|Stewart of Fulham, L.|
|Stoddart of Swindon, L.||Winstanley, L.|
|Airey of Abingdon, B.||Hives, L.|
|Alexander of Tunis, E.||Hood, V.|
|Annaly, L.||Hooper, B.|
|Arran, E.||Hylton-Foster, B.|
|Ashbourne, L.||Jenkin of Roding, L.|
|Auckland, L.||Knutsford, V.|
|Balfour, E.||Lloyd-George of Dwyfor, E.|
|Beaverbrook, L.||Long, V.|
|Beloff, L.||Lucas of Chilworth, L.|
|Belstead, L.||Lyell, L.|
|Bessborough, E.||Mackay of Clashfern, L.|
|Birdwood, L.||Macleod of Borve, B.|
|Blatch. B.||Malmesbury, E.|
|Boyd-Carpenter, L.||Mancroft, L.|
|Brabazon of Tara, L.||Margadale, L.|
|Bridgeman, V.||Marley, L.|
|Brougham and Vaux. L.||Merrivale, L.|
|Bruce-Gardyne, L.||Middleton, L.|
|Butterworth, L.||Monk Bretton, L.|
|Caithness, E.||Monteagle of Brandon, L.|
|Campbell of Croy, L.||Montgomery of Alamein, V.|
|Carnegy of Lour, B.||Mowbray and Stourton, L.|
|Carnock, L.||Munster, E.|
|Chelmsford, Bp.||Nelson, E.|
|Chorley, L.||Norfolk, D,|
|Clitheroe, L.||Norrie, L.|
|Colnbrook, L.||Nugent of Guildford, L.|
|Constantine of Stanmore, L.||Onslow, E.|
|Cottesloe, L.||Oppenheim-Barnes, B.|
|Cullen of Ashbourne, L.||Orkney, E.|
|Davidson, V. [Teller.]||Pennock, L.|
|De Freyne, L.||Penrhyn, L.|
|Denham, L. [Teller.]||Peyton of Yeovil, L.|
|Denvent, L.||Radnor, E.|
|Dundee, E.||Reay, L.|
|Eden of Winton, L.||Reigate, L.|
|Effingham, E.||Renton, L.|
|Elles, B.||St. Davids, V.|
|Elliot of Harwood, B.||Saltoun of Abernethy, Ly.|
|Elliott of Morpeth, L.||Sanderson of Bowden, L.|
|Erroll of Hale, L.||Shannon, E.|
|Faithfull, B.||Sharpies, B.|
|Ferrers, E.||Skelmersdale, L.|
|Fraser of Carmyllie, L.||Strange, B.|
|Fraser of Kilmorack, L.||Strathcarron, L.|
|Gainford, L.||Strathclyde, L.|
|Gibson, L.||Terrington, L.|
|Gridley, L.||Teviot, L.|
|Hailsham of Saint Marylebone, L.||Trumpington, B.|
|Vaux of Harrowden, L.|
|Halsbury, E.||Westbury, L.|
|Harmar-Nicholls, L.||Whitelaw, V.|
|Havers, L.||Wolfson, L.|
|Henley, L.||Young of Graffham, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.418
§ 4.20 p.m.
§ Clause 8 [General environmental and recreational duties]:
§ [Amendment No. 92 not moved].
Lord Norrie moved Amendment No. 93:
Page 7, line 47, leave out ("the functions of").
§ The noble Lord said: This amendment and Amendments Nos. 106 and 123 have the same purpose. That purpose is to extend the scope of the conservation and recreation duties set out in Clause 8 so that they apply to all land presently owned by the water authorities.
§ To a considerable extent the Committee has already discussed this issue and many noble Lords have expressed their concern that private water companies will be able to dispose of their assets, either through sales or by transfer to subsidiary companies, with the result that conservation and recreation duties will no longer apply. The Minister went some way to allaying those concerns by announcing that the Government will come forward with amendments at Report stage to ensure that countryside areas of special conservation and amenity value cannot subsequently be disposed of without a measure of protection.
§ Provided they are effective, such new provisions will be particularly welcome. However, before the Minister goes away to consider the detail of the Government's amendments, I ask him and the House to consider the need to preserve recreational and amenity use of all water authority land, not just that in special areas or land which is in operational use. The land to which the Minister referred was principally land in highland and upland areas and of quite outstanding beauty and environmental importance. It is right that the Bill should provide proper protection for such land; but what of land of less scenic importance?
§ The special use of the water authorities' 500,000 acres of land for recreational activities does not end at the bottom of hills. In fact some 70 per cent. of water authorities' land lies outside the specially protected areas which I understand the Minister's amendments will cover. Yet much of that land is immensely important for amenity use. Angling and boating rely on access to reservoirs in the lowlands. Indeed, the reservoirs might have little scenic attraction but nevertheless provide traditional and accessible recreational facilities for the majority of the population who live in urban areas. Much is countryside, which may not qualify for special protection in the same way as land in a national park, but it is often of particular value in providing green lungs for our cities and towns; yet its very proximity to population centres makes it a prime target for development.
§ We are told that the environmental and recreational duties set out in this clause are to relate only to water undertakers' functions; in other words their operational activities. What of non-operational land? Private water companies will be free to dispose of it or transfer it to a subsidiary company. They could develop it, close down an official recreational facility and restrict or simply end any freedom of 419 access, with only normal planning procedures to satisfy. I am afraid that I have difficulty in understanding how the planning system could prevent a private water company from simply terminating recreational use of land.
§ Obviously a company will need planning permission if it wants a time-share development on its land because in this case there is a proposed change of use. That would not be the case if the company merely wished to restrict public access. It seems to me that there is very little to prevent a private water company from barring entry, even when the land is operational and when Clause 8 duties are meant to apply. However, if land happens to be non-operational, the stark truth is that the company could bar access or charge heavily for it with impunity.
§ I am particularly concerned that by excluding non-operational land from the special duties in Clause 8 the Government will be encouraging private water companies to declare land non-functional. In the past there has been very little reason for the water authorities to do so as they have not been able to realise their land assets and at present all water authority land is subject to existing conservation duties. That is set to change and I suggest that the private water companies to be are aware of it. They will have two powerful incentives to declare land non-functional: first, to realise the asset, and, secondly, to escape the special duties in Clause 8. That is quite apart from the fact that future technological developments in the water industry, such as the London ring main, could result in a lot more land becoming non-operational.
§ Amendments Nos. 93 and 106 aim to close this loophole in the Bill. By removing the reference to functions, the conservation and recreational duties would no longer apply just to water undertakers' operational land. Water companies would be placed under special duties when developing or considering any proposals, not just those relating to their functions. If a water company proposed to sell off land or transfer it to a subsdiary company, it would have to meet the recreation and conservation duties of Clause 8 even if the land were not operational. Amendment No. 123 simply reinforces the change by ensuring that successor bodies and subsidiary companies fall within the scope of the conservation and recreation duties.
§ I do not accept the argument that the recreation and conservation duties should apply only to water undertakers' operational land. The reason that we should protect existing fishing rights, rights of access, sailing rights, climbing and all the many recreational activities which take place on water authority land and water is that those facilities were made specially available because the water authorities were publicly owned. Where the public has enjoyed access to water authority land, that access should be preserved, whether or not it happens to relate to a function of the water undertaker and whether or not the land happens to be in a national park. If, as is claimed, the planning system will adequately conserve private water company landscape, what then is the point of the special duties in the Bill in the first place?420
§ These amendments will, more than any others, expose what the Bill is about. All privatisations claim to reconcile the interests of consumer and investor. This one, through these few clauses, is also meant to recognise the interests of the environment and recreation. So, when less land will be protected after privatisation than beforehand, it is hard to avoid the conclusion that the interests of the investor are being placed above those of the environment or the recreational user. These simple amendments can restore the balance. I beg to move.
§ Lord McIntosh of Haringey
I was impressed by the simplicity and effectiveness of the amendments when I saw them on the Marshalled List. I am even more impressed having listened to the closely and powerfully argued case put forward by the noble Lord, Lord Norrie. It cannot be the public conception of water privatisation—or if it is, it cannot be to the advantage of this Government—that the effect will be that non-operational land of the water authorities will be, in effect, free from all the environmental constraints that are sought in Clauses 8, 9 and 10.
If that is not the case, and if the Government have a different interpretation of the wording, and if it is the case that non-operational land is indeed covered by those clauses, then we have to hear much better arguments than have been put forward either at Second Reading in this House or throughout the lengthy Committee stages in another place. As the argument stands, it appears that the control exercised over the water and sewerage undertakings and the responsibilities of the Secretary of State, the National Rivers Authority and the director general refer primarily if not entirely to the operational aspects of the water undertakings and the operational land that they need.
As the noble Lord, Lord Norrie, rightly said, one effect may well be that water authorities seeking to maximise the return on capital, as they are obliged to do under Clause 7, will seek to declare what would otherwise be operational land as non-operational for this purpose in order to escape the provisions of Clause 8. I cannot believe that that is what the Government want. The noble Lord has pointed out a grave defect in the Bill as drafted. I hope that, without any great need for further partisan discussion, this can be treated as a matter in which all of us in the Committee are in agreement, and that the Government will accept the noble Lord's amendment.
§ 4.30 p.m.
§ The Earl of Onslow
I believe that my noble friend's amendment makes an immense amount of sense. He has presented it extremely clearly. On the grubbiest possible political level, for a Conservative Government to be seen to take away the rights of people to do this or that in furtherance of private interests would not do their electoral chances much good. As I hope that I shall see those happy, smiling faces on the Front Bench after the next election, I sincerely hope that my noble friends will take notice of what my noble friend Lord Norrie has said.
421 That is the matter at its most cynical level. There is a much more important level; namely, that it is right that water, when privatised, should maximise its assets. Part of the problem is that it has not maximised its assets up to now. If one suddenly imposes upon a private company that sort of duty to maximise its assets, one must equally impose upon it strict guidelines and structures through which it maximises those self-same assets. It would be right, therefore, to go very far down the road indicated by my noble friend.
We must be careful that the planning system, certainly in the upland areas and in some of the countryside areas, does not stop the blanket planting of sitka spruce, the grubbing out of hedgerows or some of the other practices about which the environmentalists now complain. That is partly the fault of the tax system which encourages that method. However, having said all that and pointed out what should not need to be pointed out, I sincerely hope that my noble friend will take a great deal of notice of what my noble friend Lord Norrie has said.
The Earl of Caithness
Amendments Nos. 93, 106 and 123 deal specifically with certain issues which have already arisen in the amendment that we have just discussed, ending the link between the environmental duties and the functions of the relevant body and extending the duties to subsidiary companies and to others to whom undertakers' land might pass. I hope that the Committee and my noble friend Lord Norrie will bear with me if I reiterate at greater length points that I have already made. These are important matters that we need to set out clearly.
Perhaps I may deal first with Amendments Nos. 93 and 106, which concern the conservation and public access duties. Their effect would be that the duty should apply when relevant bodies formulate or consider any proposals, not merely proposals related to their functions. In short, the question is: why should the duties be tied to proposals in relation to the performance of functions? The answer is that this is the essential and inescapable logic of the issues. The functions of the relevant bodies—water supply and sewerage, drainage, pollution control and the rest—interact with the natural environment at every step and to an unsurpassed degree. Application to functions therefore makes perfect sense because conservation of nature should be an integral feature of all those activities.
That is what the Government want, and our draft code of practice breaks new ground in spelling out the detail of what is to be resolved. We shall refer regularly to the draft code of practice. It is in the Library of the House. I hope that noble Lords have seen it. It is headed Draft Code of Practice Conservation, Access and Recreation and it was published on 24th January.
There are many activities in which the appointed companies may engage and rights that they may exercise which cannot be construed as their functions and to which it would be quite unreasonable to have the duty attached. For instance, the companies will no doubt hold some of their cash and reserves in 422 security. Are they to have to further conservation every time they trade such stocks, perhaps having to invest in environmentally friendly companies? Perhaps there is some merit in that, but there is absolutely no merit in legislation whose effect might conceivably be to require it.
Let me take another example which I know is of some concern. Like other utilities, the new companies may from time to time have surplus urban land that the planning authorities may agree should be developed to meet housing needs. But if such proposals cannot be reconciled with a duty to further conservation, proposals of great social importance but possibly of little or no conservation value may prove impossible. Perhaps I may remind the Committee that we shall bring forward proposals for the long-term protection of land of particular environmental significance. We can discuss that matter on other amendments, but we cannot and should not have the duty to further conservation attaching to every step that the relevant bodies take, however little intrinsic relevance it has to it.
The criterion applied in the Bill and at present in the current legislation is the right one. Furtherance of conservation is deeply and specially relevant to all the functions of the water industry, but it has no special relevance to all those activities which, in common with all other companies, they may pursue and which have nothing to do with the functions that Parliament has expressly required them to perform. In the duty to further conservation in performing its functions, the Bill places uniquely heavy and important conservation obligations on the water industry. I hope that the Committee will not wish to press them to the unreasonable and impractical lengths which would be involved in widening the duty to bite on any proposals that a relevant body might have on any occasion to consider.
To conclude on the first part of the amendments in this group, perhaps I may offer my noble friend and the Committee some reassurance. "Functions" is a broad term, and very little water authority land is likely at any one time not to be functional. In particular, while all the catchment lands may not be used for operational purposes, they are functional in the sense of being related to the function of water conservation. Hence, any proposals relating to them are likely to be caught by the duty. If my noble friend would feel it helpful for us to make clear that wide interpretation in the Clause 10 code of practice, we shall gladly consider that point.
§ The Earl of Onslow
I am sorry to interrupt my noble friend on this point. Does that provision take into account the possibility of a water company off-loading land to a subsidiary and then taking it back again, if it should need it, if it wants to get out of its conservation duties?
The Earl of Caithness
As I understand it, if the land can be termed functional—that is the broad definition and could well apply in the case to which my noble friend alluded—and if the water authority or plc wants that particular land but gives it to a subsidiary in the meantime, it would still be classed 423 as functional and therefore subject to the proposed duties. From what my noble friend said, it may be helpful if we make that clear in the code of practice.
Perhaps I may now turn to Amendment No. 123, which is separate but linked through discussion. It also deals with an issue that has already been raised. The amendment invites the Committee to add to the relevant bodies to which the duty is to applya successor body or any subsidiary thereof".The use of the term "successor bodies"—which, in the Bill, means the NRA and undertakers—may create some confusion, but I shall leave that aside. I understand my noble friend to mean bodies to which land or indeed functions might subsequently pass, and also any subsidiary companies. I address that important question of substance.
Perhaps I may deal first with subsidiary or associated companies. To extend the duty to them would be misconceived. The Clause 8 duties bite upon the functions of water bodies, which, as I have said, by their nature have profound implications for the environment. But a subsidiary or associated company of a water or sewerage undertaker will not by definition carry out the appropriate functions because they are for the appointed company itself. Necessarily, it will pursue quite different activities to which the Clause 8 duties may have only tenuous connection or no connection at all.
The same considerations apply in the case of successor bodies to which the land allocated under schemes under Schedule 2 might pass, but with even greater force. The fact is that the great majority of the duties apply in respect of functions, and should so apply, and it is most unlikely that any successor owner would share the functions of the relevant bodies. I am driven therefore to the conclusion that to extend the duties to successor owners and subsidiary bodies would be flawed in logic and irrelevant in practice.
Nevertheless I recognise that my noble friend is drawing the attention of the Committee to an issue which we accept is significant and substantial. This is again the concern that land which is of special value by reason of the purposes to which Clause 8 is directed may not be properly protected if it passes to a successor or subsidiary. I realise that my noble friend went rather wider than that in what he said.
I share my noble friend's concern because in some areas of high environmental or amenity value the water authorities may have established special conservation or access arrangements which there would be no means to secure under subsidiaries or successor owners. That was precisely the concern which I expressed to the Committee last week and which I said we intended to address in an amendment at a later stage. Applying the duties to subsidiary or successor bodies is not in our view a practical option, but others are open and those are the ones we are exploring.
I offer my noble friend the assurance that, while for the reasons I have given we cannot resolve the problem he raises in the manner he proposes, we shall certainly address it by other means. In the 424 circumstances I hope that he will wish to reflect on what I have said, and I shall of course be happy to discuss it with my noble friend who, as the Committee will know, has wide experience of this with the British Trust of Conservation Volunteers.
§ Lord McIntosh of Haringey
Before the noble Lord makes up his mind whether to press this amendment, may I draw his attention to two points about the Minister's reply, which was in some ways helpful? The first is that he is relying substantially on the code of practice in Clause 10. As we shall be showing later today, this code of practice is deeply defective. It lacks statutory authority and it contains a number of provisos that make it much less effective than we should like it to be.
Secondly, the noble Earl is relying on some of the detail in Clause 8, which, as the Minister himself reminded us in response to the previous amendment, has been the subject of a thick cluster of amendments designed to increase its effectiveness. Therefore, any assurances that the Minister gives based on either of those two clauses must be taken subject to a view (which it is not possible to take yet) of the Government's response to the amendments which have been put down to those clauses. Therefore, we must handle these assurances with a very long spoon, if I may put it in that way.
The second point that I want to make is that the Minister has on this occasion, as on previous occasions, given assurances about the Government's intention to table further amendments at a later stage related to land of special conservation value which is not required for operational purposes. He has made a valid and a valuable point about the distinction between functional land and operational land that certainly we should all take account of.
The noble Earl's undertaking to introduce further amendments was based on his undertaking to listen to your Lordships' debate on these amendments. We ought not in any way to curtail our debate on these subjects because of an undertaking to introduce amendments at a later stage; otherwise the amendments themselves might not be as far-reaching as we think they ought to be.
§ 4.45 p.m.
§ Lord Ezra
Before the noble Lord, Lord Norrie, replies to the Minister I should like to add a few comments. The Minister has touched on the nub of the whole issue, which we touched on earlier today and which is still recurring. These privatised water companies are not going to be ordinary private companies. They are going to inherit a great tradition of efficient water supply and of responsibility for the lands associated with their operations.
Therefore it is right and proper that two firm responsibilities should be clearly laid on them in this legislation: namely, the water supply side of their activities, and the land ownership side of their activities. I hope that this will come out clearly. I hope too when we debate the amendments that the noble Earl will be proposing later that we shall bear that in mind. However, at this stage I feel that this is something that should be pressed pretty hard, and I hope that the noble Lord, Lord Norrie, will do so.
§ Lord Norrie
My noble friend the Minister has already agreed to come forward with amendments at Report stage to give special protection to countryside with particular conservation and amenity value. In doing so he has been true to his Secretary of State's pledge given to the standing Conference on Countryside sports last month that the Government would carefully listen to debate on these matters. In the same spirit I do not wish to press my amendments today, but I ask my noble friend to maintain the dialogue. I therefore beg leave to withdraw the amendment.
The Earl of Caithness
Before my noble friend concludes let me say that I am grateful for that. At least he takes an assurance of mine seriously.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 94 not moved.]
§ The Deputy Chairman of Committees (The Earl of Listowel)
Before I call Amendment No. 94A I should point out that this amendment would make it impossible for me to move Amendments Nos. 95 or 96.
Lord McIntosh of Haringey moved Amendment No. 94A:
Page 8, leave out from beginning of line 2 to ("so") in line 4.
§ The noble Lord said: In moving Amendment No. 94A I should like to speak also to Amendments Nos. 98, 101, 107, 110, 112 and 117. In order to make clear the purport of these amendments I think it is necessary not only to read out the amendments—that is something that is done fairly frequently—but to read out the words that will be omitted or replaced if these amendments are carried, because it is these words (these weasel words) that detract from the confidence that we can be expected to have in the power of Clause 8, which is absolutely fundamental to our argument.
Amendment No. 94A would leave out the words:
relating to the functions of that body"—
we have debated that issue already in the amendment of the noble Lord, Lord Norrie—
and, in the case of the Secretary of State and the Director, with their duties under section 7 above".
§ The Committee has already been reminded that Section 7 refers to the primacy of the profit motive as opposed to the primacy of the environment or the consumer.
Amendment No. 98 leaves out the words:
have regard to the desirability of protecting".
Amendment No. 101 leaves out:
take into account any effect".
Amendment No. 107 leaves out:
have regard to the desirability of preserving".
Amendment No. 110 leaves out the words:
take into account".
Amendment No. 112 leaves out:
such steps as are—
Amendment No. 117 leaves out:
to such extent as it considers desirable".
§ I shall not weary the Committee with the context of all these phrases, but their very repetition makes it clear that the power of this clause is simply not sufficient to protect the environment as I believe this Committee would wish it to be protected, and as indeed the Government claim it is protected when Ministers make speeches on this subject. We are not requiring in these amendments that the environment should have absolute priority over all other considerations. What we are requiring is that it should have equal consideration with the other functional and financial obligations of the undertakers.
§ As it stands, the Bill contains a large number of qualifications. We have pointed out some of them and I have no doubt that if one went through the Bill in great detail we could find many more qualifications of a similar kind. The point that I wish to make to the Committee is not that these qualifications are continuations of existing restrictions on water authorities but that they are in themselves an erosion of existing rights. The rights are there now and the fact that Clause 8 is inadequate in these respects takes away those existing rights.
§ In some of the most attractive parts of the British Isles, we all now have access to land owned by water authorities. We have an assurance that the land owned by water authorities is maintained, conserved and protected by authorities that are in public ownership and responsible to all of us. It is that protection that is to be taken away by privatisation; and the assurances of Ministers, quite frankly, are simply not good enough.
Let us look at the reasons for this. First, in responding to the last amendment, the Minister referred to the draft code of practice which was issued in January. I remind the Committee of what the Parliamentary Secretary, Mr. Colin Moynihan, said in another place on 22nd March about the codes of practice. He stated at col. 1118 of Hansard:
All the duties are made enforceable by the Secretary of State who is to take into account how far the companies have complied with the code of practice".
§ Such enforceability may be all right for the present Secretary of State—I am saying nothing against him personally—but if a Secretary of State has an obligation only to take into account how far companies have complied with the code of practice, then I am afraid the history of these matters in the courts has been that on many occasions "taking into account" is treated with a derisory laugh. It is said, "Yes, we took it into account but we went away and did something different." That is what the undertakings are being invited to do. That is what a Secretary of State is being invited to do by the wording of this clause and by the words of Mr. Moynihan.
The protections in this Bill are a weakening, an erosion, of the duties that exist in the Water Act 1973. In the same column, Mr. Moynihan said, that the proposals in the Bill,
—preserve for the privatised industry all the present duties of the public sector".—[Official Report, Commons, 22/3/89; col. 1118.]
That is not true. Section 1 of the 1973 Act established the national policy for water. Section 1(2) states:
It shall be the duty of the Secretary of State to secure the effective execution of so much of that policy as relates to—"—
among other things—"—
the use of inland water for recreation;
the enhancement and preservation of amenity in connection with inland water; and
the use of inland water for navigation".
§ That statement was elaborated in Section 20. I do not suppose that the noble Lord, Lord Nugent of Guildford, has a copy of the 1973 Act in front of him, although I know that he keeps it by his bedside and has the wording in his head. However, he will recall that these are duties on the Secretary of State and they are far different from duties to "take into account" a code of practice in considering whether a company has complied with the law. To that extent also the present proposals are an erosion of the protection that the public has under existing legislation.
§ In the present Bill there are no such positive aims as were set out in the 1973 Act. The Government have resisted any suggestion that there should be such obligations. Our amendments do no more than restore the position in this respect—and there are many others—to that which already obtains under the Water Act 1973.
The third argument that is sometimes used to support this code of practice is that there is a fallback position of planning legislation. Again, Mr. Moynihan—who seems to be taking all the stick on these matters—suggested at col. 117 of Hansard on 22nd March, that:
With planning controls and the proper regulation that we support and are providing, land can be as well protected in the private sector as in the public".
§ Planning controls are simply not adequate, as everyone knows who understands about these matters. Planning controls do not apply to change of rural land use between one type of land use and another. The classes of use are not like that. What is required—and this I should have thought was a conclusion generally accepted by those who have dealt with planning law over the years—is that there has to be a positive land management plan. This has to be capable of being called in aid when new proposals for changes in land use arise.
§ We are talking about land owned publicly by the water authorities which will be transferred to the private water companies. At the moment all the new water companies will be required to do is to take account of environmental and conservation interests. However, their fundamental obligation under Clause 7 will be to realise the highest commercial value from their land holdings. Therefore the Bill as drafted is significantly weaker than the 1973 Act. The code of practice is not legally enforceable.
§ If we are to maintain the protection that the public already has, if we are to put into legislation the assurances that have been made by Ministers, it is necessary for us to approve these amendments this afternoon. I beg to move.428
§ Lord Renton
Each of these amendments has approximately the same objective; namely, to place upon those who are given powers or duties under the Bill the obligation of carrying out the powers and duties conferred upon them irrespective of all other factors, however important from the public point of view and however unavoidable those factors may be.
Perhaps I may give just one example. If we look at Amendment No. 107, it refers to page 8, line 19. Instead of being told,to have regard to the desirability of preserving for the public any freedom of access to areas of… natural beauty",and so on, the Secretary of State and others would be required, if the amendment were accepted, to preserve, irrespective of other factors, that freedom of access. At first sight of course that sounds absolutely splendid. But let us suppose that there really is a vital need for a new road. It may be a vital need expressed locally because of a landslide that has destroyed an existing road and another one has to be found; or it may be that it is accepted by most people concerned that there has to be a new trunk road. We have disputes over trunk roads going through national parks and areas of natural beauty. The one alongside Loch Lomond is a very obvious example to quote.
We really cannot legislate in an absolute way which makes it impossible for Ministers and others responsible to take these decisions irrespective of other important factors affecting the public interest. We never have legislated in that way. If we were to accept these amendments, moved with great sincerity by the noble Lord, we should be embarking upon what is from the point of view of legislation by Parliament a new process. I therefore do not see how my noble friend could accept these amendments.
So much for that general point. But if we look at the first one, Amendment No. 94A, where the noble Lord seeks to leave out those first three lines or so at the top of page 8—he read them out; there is no need for me to do so again—we would find that we were being inconsistent because we have included in the words here:so far as may be consistent with the purposes of any enactment relating to the functions of [the body concerned] … and, in the case of the Secretary of State and the Director, with their duties under section 7 above".I am sorry, I had to read it again. I think that I had to in order that noble Lords could follow my argument. If we leave that out, we shall be indirectly causing an inconsistency in the Bill, partly with its own contents and partly with other enactments. That is another way in which we should not legislate. So again, if it is not an inappropriate expression in the circumstances, with due regard to what the noble Lord has said, I do not see how my noble friend on the Front Bench can accept these amendments.
§ 5 p.m.
§ Lord Ross of Newport
I do not intend to speak for very long or to be repetitious because much of what I wanted to say has already been well said by the noble Lord, Lord McIntosh. Perhaps I can answer the noble Lord, Lord Renton. I do not think it is right 429 to say that when the water services are privatised the water authorities and the Director General of Water Services would be put in a rather less onerous position than under the original Water Act of 1973. We are concerned with reasonable practicability, and I feel that that word should be put into the Bill. As for the argument that the noble Lord made about the road bypass, that is certainly valid but one has to be reasonably practical and some decisions must be taken which perhaps go against what we are trying to write into the Bill. I hope it will be agreed that what is there at the moment is hopelessly inadequate.
The Minister obviously feels that we on this side of the House are not taking his assurances as literally as perhaps we should. I sincerely hope that we shall have some good amendments with some teeth when we return to Report stage. But what I, and I dare say other noble Lords, have heard and seen on television or on the radio does not give us any future confidence. The Committee may or may not know from the "World at One" programme that at least £2 million, and probably something up to £30 million, is being set aside for advertising the water companies' privatisation. On the business programme on BBC1 we heard interviews with people who know—not politicians but professors who have studied the water industry—talking about the enormous costs of becoming a plc: an increase which would be put on the water authorities. Something like 50 per cent. extra cost was quoted by a professor from Nottingham. That means that the pressure will be on. We know already that the North West Water Authority is advertising for a surveyor in land management to bring in property companies and the rest. The water authorities will have to look to all their assets, and they may push pretty hard for things that we in this House may not wish to see developed.
I totally agree with what the noble Earl said earlier. There may be areas which were formerly reservoirs, and they may have potential for reasonable development. However, I do not share his view that we shall need all these extra houses in the South-East. Because we have fewer school-leavers now, I believe the pressure will be off housing. I hope it is for his benefit because he is housing spokesman. I do not think that I shall see it, but I hope that I live long enough to see whether I am proved right or wrong. I do not take the statistics too literally; but that is why we are concerned.
The amendment that I really want to speak to is Amendment No. 101 which talks about preventing "any deleterious impact". What do we mean by that? It has been drawn to my attention that it is not the normal problem of development. Draining the marshes is going over the top concerning water drainage. I am sorry to have to tell the Committee that I am about to leave the Isle of Wight, but I can give two examples where the Royal Society for Nature Conservation has become extremely worried because the local water authority, for whom I have a lot of respect, has done extensive drainage at Alverstone and Afton Marshes. But damage has been done; there is no doubt about that.
Mr. Grainger Davies, who used to run the water authority on the island, is already working for the NRA and he knows the area. I have every confidence 430 that he will understand this although he will have to change sides somewhat quickly because he was very much for promoting new water mains and sewerage outfalls while he was with us. That is the area we want to have covered, and I believe most people will accept that. All the rest are there to try to strengthen it and they perhaps may give greater force. If we could return to the position that existed in 1973, I should be satisfied.
§ Lord Howie of Troon
I wish to refer briefly to the comments made by the noble Lord, Lord Renton. Unless I misunderstand the amendment, I do not think it would preclude roads being built through these areas where they are necessary. Access is the matter which is to be protected, access by the public to the areas listed in the amendment and in the Bill. There is no difficulty about access over a road. One builds a footbridge and can cross from one side to the other. Then the problem of access is solved. Our motorway system involves access bridges for pedestrians, cattle and other animals on almost all our motorways, especially those in rural areas. That was a red herring referred to by the noble Lord in an attempt to illustrate the problem.
As I see it, the intention of the amendments is to make sure that these private companies do not fence off and deny access to areas which were previously open to access by members of the public. If I understand correctly the mind of the noble Lord, Lord McIntosh, he realises that private owners often fence off areas which previously were not fenced off. That is the kind of access that we are talking about. I do not see any difficulty for the Government in accepting the amendments.
§ Baroness Lockwood
Not only will the Bill if passed unamended weaken the protection that we have already under the 1973 Act, but the very fact that the Bill is before us and is being considered weakens the present arrangements that have been operating under the Act. The National Trust and a whole range of other associated conservation bodies are already concerned about their relationship with the water authorities under the threat of the Bill.
As I pointed out in the debate last week on an earlier amendment, there are signs that the water authorities are already beginning to backtrack on some of the arrangements that they have previously followed. I gave the example last week of the Peak District where the fencing of land by water authorities has taken place without consultation with the park authorities. In the Lake District there has already been some confrontation between ramblers and riders. The North-West water officers are already disinclined to support any specific commitment to dedication of any route to the public in advance of privatisation. We are already seeing an erosion of some of the rights which have been established on a voluntary basis. That concern should be taken seriously by the Government.
In defence of the Bill the Government are relying to a large extent on the code of practice, but, like any other, the code of practice is not mandatory and does not apply to non-operational land. Again, as I pointed out on a previous amendment debated last 431 week, taking for example the Yorkshire Water Authority, out of the 75,000 acres owned by that authority, only 16,000 are operational. Despite the fact that in some senses the Government seem to be claiming that only 5 per cent. of the land owned by the water authorities is non-operational, in some areas a large proportion of the land is non-operational. We shall not have the protection of the code of practice in relation to that, whatever protection a code of practice might bring.
Secondly, the Minister and his colleagues in another place rely on the present planning procedures. My noble friend Lord McIntosh pointed out that planning procedures do not apply in all cases. However, during the past year a series of decisions was made by the planning authorities. Of the appeals which were lodged, only 30 per cent. were successful in respect of the national parks of the country. So if there is currently such a lack of support for conservation under the planning appeals it would appear that we do not have a strong base on which to rely for protection under the Bill.
I hope that Members of the Committee will support the series of amendments which seeks to leave out all the conditional clauses relating to these provisions of the Bill and thereby strengthen our rights under the Bill.
§ Baroness Macleod of Borve
The noble Lord, Lord Howie of Troon, appears to have the impression that the amendments concern only access. Amendment No. 101, instead of taking into account any effect which the proposals would have on the beauty or amenity of any rural or urban area, inserts the words "prevent any deleterious impact". Will the noble Lord, Lord McIntosh, say whether I am right in believing that it is not about access but about the impact of an event which may happen in the area on the various aspects of the area?
Will the noble Lord also tell the Committee whether it is true that the remarks made by my noble friend Lord Renton about the roads will apply? If in the public interest a road is required and most people believe that it should be built, will that be prevented by the amendment so that there will be no way in which building could occur? I suspect that the noble Lord knows more about planning law than I do, but it appears to me that the amendment would override anything that could happen.
I believe that in his contribution the noble Lord, Lord Ross, took the point made by my noble friend Lord Renton about the roads and probably will not support the amendment. I shall be interested to know what the noble Lord, Lord McIntosh, thinks about the issue.
§ Lord Howie of Troon
I am grateful to the noble Baroness for drawing attention to that issue. I do not regard a road as having a deleterious impact.
§ Baroness Blatch
The last remark probably makes the point. The word "protect" in Amendment No. 98 is an uncompromising alternative. While the road may not have a deleterious effect its excavation works and building certainly will. If the amendments 432 are accepted the requirement and demand to protect will not allow for even short-term deleterious effect or damage. To add to "protect" the words "and conserve" goes even further down the road of putting an impossible constraint on the authorities to carry out their normal operational work. If the words "protect and conserve" were accepted it would be important to draw a distinction between the conservation of buildings owned by the authorities and those owned by other landowners.
§ Lord McIntosh of Haringey
I have not yet spoken to Amendment No. 99, which will be dealt with later.
§ Baroness Blatch
I am sorry. I shall withdraw my comments and leave them as read when the amendment is dealt with. I believe that Amendment No. 101 is included in the group. Again, the absolute constraint of preventing any deleterious effect thwarts any short-term operational work which will be required to be undertaken by the companies. Therefore, such an absolute constraint is not acceptable and one must return to what is suggested in the Bill: that a duty should be put upon the operators to have regard for reinstatement and restoration.
§ 5.15 p.m.
The Earl of Caithness
The noble Lord, Lord McIntosh, approaches the whole question of this and other parts of the Bill under two definite misconceptions, both of which he has highlighted again today. The first misconception to which the noble Lord continually refers is that profit is the prime motive. Profit is not the prime motive; the customer is the prime motive. I have previously dealt with that fact in great detail. I know that the noble Lord will not listen and that he will continue to pursue his own angle. However, I hope that other Members of the Committee— —
§ Lord McIntosh of Haringey
I am sorry, but the noble Earl must not confuse listening with agreement. I listened carefully to what he said, but I disagree. On that issue, so does his noble friend Lord Nugent. It is not that I do not listen to him but that I do not agree.
The Earl of Caithness
I am delighted and am now reassured by the noble Lord. There was a moment when I was not quite so sure.
The second misapprehension under which the noble Lord labours relates to this part of the Bill, because he says that the duties are weaker than in the 1973 Act. The duties are very much in the same terms. In addition, I point out to the Committee that in Clause 7 the Secretary of State is under a duty to secure the proper carrying out of the water undertakers' functions. That includes their duties under Clause 8. One can take that forward to the enforcement angle and I refer Members to Clauses 20 to 23, with which we shall come to deal. Let us be absolutely clear that there is no weakening of the environment and recreational duties.
433 I turn to deal with the amendments before the Committee, all of which seek to strengthen in various ways the terms of the general environmental duties in Clause 8. They are separate amendments, not consequential upon one another, but it is useful to discuss them together. Amendment No. 97 concerns the provision in the Bill as at present drafted which makes the duty to further conservation apply only so far as it is consistent for the purposes of any enactment relating to the functions of the relevant body; and in the cases of the Secretary of State and director with their duties under Clause 7. Amendment No. 94A deletes the words relating to the functions of that body. Amendments Nos. 98, 101, 107, 110 and 112 seek to tighten up the terms of particular duties in the clause.
I deal first with the need for consistency with the functions of the body in question. There are three aspects of the proposal to which I must draw Members' attention. First, this limitation exists in present legislation. From what has been said about such matters in another place and today by some Members, I feared that some may see in the Bill as drafted some deep ploy related to the sale of the companies. Nothing could be further from the truth. I ask Members of the Committee to note that limitation has been seen as sensible by our predecessors, and I shall argue that it is just as sensible today.
My second point is the simple reason why it is sensible. The importance of the words in question is so that we do not impose on the relevant bodies conflicting objectives with no indication of how they are to be reconciled; for, in cases, the duty to further conservation may conflict with the duty to supply wholesome water, or effectively to sewer the area, or any other of the undertakers' statutory duties. We should not allow that if we are to attack the problem in a rational way.
In circumstances where that conflict arises I suggest that the duty to further conservation should not apply. It is a point upon which I have previously commented. Much as we may wish to further conservation, the Committee must surely recognise that there can be circumstances where that should take second place, when, as here, that conflicts with the essential and life-sustaining functions of this industry upon which the community depends. There is an alternative. We could adopt a weaker conservation duty which, because it could not inhibit essential water supplies, sewerage and other services, could run more widely. The duty could be drafted simply, "to have regard to conservation". I suggest that more would be lost than gained by such an approach.
The third consideration is a practical one and I believe it provides some reassurance. The fact is that the circumstances where the duty to further conservation will be inhibited by the need for consistency with other functions will be very, very few. If there were many cases in recent years I do not doubt the noble Lord, Lord McIntosh, would rightly have drawn them to our attention. I heard him refer to none.
On these grounds I suggest that much the wiser course is to adhere to the terms of the Bill. Any other 434 approach could entail conflict with essential services and might for that reason bring conservation itself into needless disrepute.
Let me turn now to the second element of the amendment—to delete the reference to the duties of the Secretary of State and the director under Clause 7. I suggest this also would not be sensible. The House has already debated the relationship of Clauses 7 and 8 in another context. Suffice it to repeat here that the subordination of Clause 8 to Clause 7 is very narrow. Let me emphasise that it does not apply to anything the companies may do in the performance of their own duties. The companies' conservation duty will not be directly constrained by customer protection, economy and efficiency. The Committee should draw comfort from that, The qualification applies only in the case of the Secretary of State and director and is to avoid conflict between the duty to further conservation and the duties placed upon them in Clause 7 as to how they exercise their enforcement powers.
In practice the occasions for such conflict will be very few, not least because among the Secretary of State's obligations is the duty to secure that the companies properly carry out their duties, and that includes the duty to further conservation.
I conclude then that the constraints which the amendment seeks to delete are ones which in practice are likely to arise only very rarely: while we must provide for them, they need cause the Committee little concern. The essence of the matter is this: if you want a strong conservation duty of the kind we are preserving, there must be some circumstances, where it conflicts with other essential services or functions, where it is important but should not be seen as of overriding importance. We must achieve a proper and sensible balance in these matters. That is, I suggest, what the Bill as drafted achieves.
Amendment No. 98 asks us to delete:have regard to the desirability of protecting",historic buildings and to insert "protect". As Members of the Committee well know, there is general legislation for the protection of historic buildings. Where such buildings are listed or otherwise subject to statutory protection, there are obligations which fall equally on all owners, whoever they may be and whether in the public or private sector. Now in this clause, as in current legislation, we impose on the water industry a special and more wide-ranging obligation in terms as set out in the Bill. That is not unreasonable since pipe-laying and drainage and other water industry operations can affect historic features. Nevertheless the fact of the matter is that this is a special duty. That duty and the code of practice clearly involve obligations which go beyond what is expected of other bodies.
I submit that it would be quite unreasonable to press these obligations even further. Protection of historic features is a laudable objective, to which we require the water industry always to have regard, but we cannot bind the industry always to secure it. It must always be a consideration, but given other duties and requirements, it cannot always be an obligation.
435 Amendment No. 101, which was very much to the forefront of the mind of the noble Lord, Lord Ross of Newport, deals with natural beauty and amenity and asks us to delete the present term and to insert: "prevent any deleterious impact". My concern here is a related one. It is going too far to ask to require that the particular result be achieved, for often deleterious impacts cannot reasonably be foreseen. We can ask the relevant bodies to have regard for the issues, but it is not practical to ask them to ensure the outcome. Equally it is surely unrealistic to make the obligation mandatory. Other factors may intrude; particular circumstances may arise which make it unreasonable because of the weight of other circumstances to do what the amendment proposes. The amendment imports a degree of rigidity which is wholly unrealistic.
Amendments Nos. 107 and 110 in respect of the public access duty are similarly flawed. The relevant bodies are to be told to preserve public access. But that gives no allowance for the flexibility—a point well made by my noble friend Lord Renton which we must allow. For what happens when their functions require restriction of access? What happens when for proper conservation reasons it may be necessary to close off access to particular land? Those are but some of the problems.
Perhaps I may give your Lordships some examples. I am sure that Members of the Committee will know the problems faced by national parks on the question of access, and I quote from an article in The Times of 24th April on this very subject which brought to everybody's attention the fact that there was a helicopter airlift used in the drive to repair the dales' paths, which stated:Each year up to 120,000 pairs of boots trample across 40 miles of footpaths in the three Peaks turning them into unsightly scars, more than 100 yards wide in some places and stripping away the natural vegetation of the area".The noble Lord, Lord McIntosh of Haringey, wants it both ways. It is clear that already in the national parks it is not possible to have it both ways.
What happens to Schedule I birds under the Wild Life and Countryside Act? The noble Lord, Lord McIntosh of Haringey, wants access anywhere, any time, in the nesting season close to Schedule I birds but he also wants conservation. It is not possible to have both. If human beings are present in those circumstances, Schedule I birds will not nest anywhere near there.
Amendment No. 112 takes us into the recreation duty. We are asked to substitute "all particular steps" for "reasonably practicable steps". By doing that the Committee may exclude all regard for financial consideration. How in the practical world in which we live can that be realistic?
Finally I turn to Amendment No. 117 which relates to Clause 8(4) and which provides the new duty on the NRA generally to promote conservation and recreation, and would delete the qualification that the duty is to be discharged only to such extent as the NRA considers desirable.
Clause 8(4) is an important new provision. It removes in respect of the NRA two significant 436 constraints on the present water authorities in relation to conservation works and recreation provision.
In the first place water authorities can at present only undertake works for the improvement or enhancement of rivers to the extent that such works form part of or are ancillary to the performance of one of their main functions. We believe this is an unreasonable restraint. It is important that there should be a body able to take steps to conserve and enhance the river environment. Often of course such activities will fall to riparian owners or local planning authorities, but the NRA should not be inhibited by lack of powers from playing its part. We would not expect use of the powers to be substantial in the next few years: necessarily most environmental work by the NRA will be part of its drainage, water resources or pollution control functions. Nonetheless, the power is an important one.
With recreation the position is similar. There are already a number of co-ordinating or promotional bodies such as regional councils for sport and recreation and local authorities. The NRA will not want to usurp their contributions. At the same time it must not be limited in its recreation provision to putting its own rights over water to recreational use. It should, for example, be able to help manage effective recreational uses of rivers where there is no navigation authority or give support to local voluntary bodies to do this. And there must be a body which, irrespective of its other regulatory functions, is able to take a clear overall view of the development of recreation on rivers where this is needed. Again it should not be expected that the NRA will make dramatic use of these powers in the short term. However, it is important that from the start it should have the powers to promote recreational uses when it sees clear need and there is no other body well placed to assist.
Against this background it follows that we do not believe that the qualification,to such an extent as it considers desirable",should be deleted. Recreational opportunities on rivers will continue to be provided primarily by riparian owners and there are other promotional and co-ordination bodies whose role should not be usurped. The NRA's task should be supportive: when things need to be done to facilitate recreational uses of rivers, and there is no other body better placed to do them, then it is right that some obligation should fall upon the NRA. But it is the NRA which itself is in the best position to judge this I suggest that,to such extent as it considers desirable",precisely expresses this position and should be retained. An unqualified duty is not necessary and would be beyond what the NRA could discharge. The NRA is enabled by this clause to act in relevant circumstances and it would be wrong to go beyond that.
I have been through all the proposed amendments very thoroughly. I suggest that the present terms have served us well in the past. They are consistent with reason and with the need for balance and discretion. They will require the relevant bodies to protect the environment effectively in the future, just as they have done in the past.
§ 5.30 p.m.
§ Lord Foot
I do not know whether the noble Earl will welcome any support from me but I should like to add a few words in support of what he had to say about the principles behind the amendment. Incidentally, in taking this view I do not expect to make myself very popular on these Benches.
Clause 8 imposes a duty upon various people and in the remaining part of Clause 8 the extent and the type of that duty is defined. Is not the argument between the noble Earl and the proposers of the amendment in principle that the noble Earl says that you cannot define that duty in absolute terms and that you must define it in qualified terms. I believe he is right. It follows that if you attempt to do the impossible and impose an absolute duty in all circumstances, whatever they may be—even if there is conflict between one environmental interest and another—you do not strengthen the legislation but weaken it. You are passing into law something completely impractical that has to be regarded in the real world.
Therefore, on that ground alone, the noble Earl is right in saying to the Committee that it would be better to leave the words as they stand. It may be, of course, that at a subsequent stage we might be able to think of better words of qualification than presently contained in the Bill, but that is something for the future. On the general principle as to whether one should impose absolute duties in all circumstances, I am on the side of the noble Earl.
The Earl of Caithness
I am extremely grateful to the noble Lord for so clearly putting exactly the message I was trying to get across.
§ Baroness White
Before my noble friend responds, can the Minister clear my mind on one point? I should know, but I am not certain, how far the duties of the authority under Clause 8(4) extend. The subsection states that it is,the duty of the Authority, to such extent as it considers desirable, generally to promoteand then gives the various desirable areas in which it should do so. However, what happens to the subsidiary companies I was concerned about? Does the authority's word extend in any way to them or is it the position, as I suppose, that it does not cover them at all? Does it apply only, in fact, to operational land? That was the matter exercising the mind of the noble Lord, Lord Norrie. Some of the most undesirable environmental effects may well arise from the activities of the subsidiary companies, not the core company which is carrying out its duties of the water supply and sewerage.
The Earl of Caithness
Much hinges on whether or not the land is functional, which is a point I covered earlier for my noble friend Lord Onslow. If the land is not functional and not involved with the operations and, therefore, is surplus to requirements, there is the assurance I have given the Committee that I will be bringing forward an amendment which might involve some of that land, but might not, in which case there is the proper planning procedure to go through and, indeed, other planning 438 requirements which are relevant should the land be in such a condition.
§ Lord Ross of Newport
With respect to my noble friend, who is a lawyer and therefore takes a legal attitude to these matters, one of the arguments I put forward is that we are seeking to strengthen the clause for the very reason that the noble Earl has just mentioned. There is a grave risk. We know the new companies will hive off land to subsidiary companies. They will do it immediately. That is what they did in the Isle of Wight when we stupidly allowed Bembridge Harbour to be sold to private individuals. They immediately set up two companies, put all the properties into one of them, and then put the rents up. They even made people pay rent to park next to the beach. That is what will happen.
With the greatest respect, it may well be that my noble friend is right in legal terms. However, on reading the clause, it is obviously weak. If it does not apply to subsidiaries there is no point in wasting our time in arguing. I beg the noble Earl to take that on board.
§ Lord McIntosh of Haringey
I very much enjoyed the Minister's final remark that the amendments he intends to table on Report may deal with the problem, but, there again, they may not. That is the problem we face. We do not know what amendments the noble Earl intends to table, nor does he. We have to go on stating our case regardless of imprecise commitments. They cannot be called commitments.
We must be grateful to the Minister. He did, as he said, thoroughly go through the amendments and explain the Government's position. I pay tribute to him for the serious way in which he has treated the amendments. The interesting point about both the Government's case from the Front Bench and the interventions of the noble Lords, Lord Renton and Lord Foot, is that they all depend on the claim that the amendments are absolute; that under Clause 8 they put absolute obligations on the undertakers, the authorities and the Secretary of State.
These are lawyers who are intervening from the Back Benches. I am not a lawyer, but I have always thought that in looking at obligations of this kind you look not only at the nature of the offence but also at enforcement. Enforcement does not come under this part of the Bill but under Part II; in particular, in the part of Part II which deals with the modification of orders of appointment of the undertakers. The sanction which the Secretary of State or the Government have against undertakers who break the conditions under Clauses 8, 9 and 10 comes in orders that they may make with respect to the appointments of the undertakers.
I look in particular at Clause 20(5) and the restrictions placed upon the ability of the Secretary of State or the Director General of Water Services to make, in this case, provisional orders. Subsection (5) states that they cannot make orders if,the apprehended contraventions are, of a trivial nature … that the company has agreed to take and is taking all such steps as it appears to him for the time being to be appropriate for the company to take for the purpose of securing or facilitating 439 compliance with the condition or requirement in question; or … that the duties imposed on him by Part I of this Act preclude the making or, as the case may be, the confirmation of the order".It is in the enforcement that the qualification of an absolute duty comes and unless there is absolute enforcement, which there clearly is not in Part II, then there is not an absolute duty in Part I and the objections made to our amendments on the ground that they are absolute have some force. They are intended to be much stronger than Clause 8 as it stands, but they are only absolute if both the duties and the enforcement are absolute. That is far from being the case. What has never been said in opposing these amendments is that the existing wording is satisfactory. There has been no defence of the repeated words, "have regard to" or "the desirability of"; there has been no denial that all of these so-called obligations and duties designed to protect the environment are subordinate to Clause 7. In case it is thought that I have not read Clause 7 it refers to both the functions of the undertakings and the duty to make a reasonable return on capital.
The primacy of the water and sewerage functions and the primacy of the shareholders' return on capital have not been denied in any of the responses to these amendments. Unless I and those on these Benches can be convinced that the Government intend to strengthen the wording of Clause 8 in order to make the protection more effective, then we are not going to be convinced that the Government have got Clause 8 right. There is a long way to go before we have the protection that will satisfy the environmental lobby and those who use the land owned by the water authorities. We have not got anywhere near that yet and I feel it is necessary to take the decision of the Committee.
§ 5.42 p.m.
§ On Question, Whether the said amendment (No. 94A) shall be agreed to?
§ Their Lordships divided: Contents, 71; Not-Contents, 109.440
|DIVISION NO. 2|
|Addington, L.||Ezra, L.|
|Ampthill, L.||Fisher of Rednal, B.|
|Ardwick, L.||Galpern, L.|
|Aylestone, L.||Graham of Edmonton, L.|
|Boston of Faversham, L.||Gregson, L.|
|Bottomley, L.||Grey, E.|
|Brooks of Tremorfa, L.||Hampton, L.|
|Bruce of Donington, L.||Hanworth, V.|
|Carmichael of Kelvingrove, L.||Hirshfield, L.|
|Carter, L.||Houghton of Sowerby, L.|
|Cledwyn of Penrhos, L.||Howie of Troon, L.|
|Cocks of Hartcliffe, L.||Irvine of Lairg, L.|
|Davies of Penrhys, L.||Jenkins of Hillhead, L.|
|Dean of Beswick, L.||John-Mackie, L.|
|Dormand of Easington, L.||Kennet, L.|
|Elwyn-Jones, L.||Kilbracken, L.|
|Listowel, E.||Rea, L.|
|Llewelyn-Davies of Hastoe, B.||Ritchie of Dundee, L.|
|Ross of Newport, L.|
|Lockwood, B.||Serota, B.|
|Longford, E.||Shepherd, L.|
|Lovell-Davis, L.||Simon, V.|
|McIntosh of Haringey, L.||Stedman, B.|
|McNair, L.||Stewart of Fulham, L.|
|Mason of Barnsley, L.||Stoddart of Swindon, L.|
|Milner of Leeds, L.||Taylor of Blackburn, L.|
|Mishcon, L.||Taylor of Mansfield, L.|
|Monson, L.||Tordoff, L. [Teller.]|
|Mountevans, L.||Turner of Camden, B.|
|Mulley, L.||Underhill, L.|
|Nicol, B.||Wallace of Coslany, L.|
|Ogmore, L.||Walston, L.|
|Peston, L.||White, B.|
|Phillips, B.||Williams of Elvel, L.|
|Pitt of Hampstead, L.||Winstanley, L.|
|Ponsonby of Shulbrede, L. [Teller.]|
|Airey of Abingdon, B.||Lauderdale, E.|
|Alexander of Tunis, E.||Lawrence, L.|
|Annaly, L.||Long, V.|
|Annan, L.||Lucas of Chilworth, L.|
|Arran, E.||Lyell, L.|
|Ashbourne, L.||Mackay of Clashfern, L.|
|Auckland, L.||Macleod of Borve, B.|
|Balfour, E.||Malmesbury, E.|
|Beloff, L.||Mancroft, L.|
|Belstead, L.||Margadale, L.|
|Bessborough, E.||Marley, L.|
|Blatch, B.||Merrivale, L.|
|Blyth, L.||Middleton, L.|
|Boyd-Carpenter, L.||Monk Bretton, L.|
|Brabazon of Tara, L.||Montgomery of Alamein, V.|
|Bridgeman, V.||Mottistone, L.|
|Brougham and Vaux, L.||Mowbray and Stourton, L.|
|Butterworth, L.||Munster, E.|
|Caithness, E.||Nelson, E.|
|Campbell of Croy, L.||Norfolk, D.|
|Carnegy of Lour, B.||Norrie, L.|
|Carnock, L.||Nugent of Guildford, L.|
|Chorley, L.||Onslow, E.|
|Clinton, L.||Orkney, E.|
|Clitheroe, L.||Orr-Ewing, L.|
|Coleraine, L.||Pender, L.|
|Colnbrook, L.||Penrhyn, L.|
|Colwyn, L.||Peyton of Yeovil, L.|
|Constantine of Stanmore, L.||Radnor, E.|
|Cottesloe, L.||Reay, L.|
|Craigavon, V.||Rees, L.|
|Cullen of Ashbourne, L.||Reigate, L.|
|Davidson, V. [Teller.]||Renton, L.|
|Denham, L. [Teller.]||Renwick, L.|
|Dundee, E.||Romney, E.|
|Eden of Winton, L.||St. Davids, V.|
|Elles, B.||Saltoun of Abernethy, Ly.|
|Elliot of Harwood, B.||Sanderson of Bowden, L.|
|Elliott of Morpeth, L.||Sharpies, B.|
|Faithfull, B.||Skelmersdale, L.|
|Fraser of Carmyllie, L.||Somers, L.|
|Fraser of Kilmorack, L.||Strange, B.|
|Gainford, L.||Strathclyde, L.|
|Gardner of Parkes, B.||Swinfen, L.|
|Glenarthur, L.||Trafford, L.|
|Havers, L.||Trefgarne, L.|
|Henley, L.||Trumpington, B.|
|Hesketh, L.||Tryon, L.|
|Hives, L.||Vaux of Harrowden, L.|
|Hood, V.||Westbury, L.|
|Hooper, B.||Whitelaw, V.|
|Hylton-Foster, B.||Wyatt of Weeford, L.|
|Jenkin of Roding, L.||Young, B.|
|Killearn, L.||Young of Graffham, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.441
§ 5.50 p.m.
§ [Amendments Nos. 95 to 98 not moved.]
§ Lord McIntosh of Haringey moved Amendment No. 99:
Page 8, line 9, leave out ("have regard to the desirability of protecting") and insert ("protect and conserve").
§ The noble Lord said: In moving Amendment No. 99; I should like to speak also to Amendments Nos. 100, 102, 108 and 120. The Committee will see that the amendments are in the names of my noble friend Lady Birk and the noble Lord, Lord McGregor of Durris. My noble friend is, fortunately for her, in Spain at the moment and gives her apologies for not being present. The noble Lord, Lord McGregor, has given me his apologies for having to leave before we reach this debate. Therefore I am on my own, but I shall speak long enough for my noble friend and the noble Lord.
These amendments have a common theme. They seek to ensure that Clause 8 adequately reflects the need to preserve our heritage and particularly the need to protect our archaeological heritage. Amendment No. 99 may appear to be a variant on Amendment No. 98. It leaves out the words in line 9 of page 8,
have regard to the desirability of protecting",
and inserts not just "protect" but " protect and conserve". "Conserve" in heritage and archaeological terms has a specific meaning which goes beyond the meaning of "protect". It is worth saying a few words about this because those who are concerned with archaeology and with the preservation of ancient buildings, monuments and antiquities and indeed with the preservation of industrial archaeology—machinery, factories and documents—realise that this must apply not only to the protection of objects and artefacts from accidental damage but also to their conservation and to ensuring that they are available in the most effective way for the use and enjoyment of scholars and of the general public.
As with the previous amendment we are far from satisfied with the adequacy of the words,
have regard to the desirability of".
§ However, I shall not go over that argument again. We are concerned that the duty of conservation, long-term positive conservation, is not adequate for the purposes of archaeology. It has been suggested by the Government Front Bench that the code of practice is adequate for this purpose. Unfortunately, the code of practice is still subject, as is Clause 8, to the overriding requirement under Clause 7 that the Secretary of State and the Director General of Water Services shall secure the finances of the water and sewerage undertakings. If they are faced with a conflict between, for example, laying a pipeline which is the most effective pipeline to lay and carrying out a large archaeological rescue operation, the obligation under Clause 7 will be an absolute obligation.
§ I am sorry that the noble Lord, Lord Foot, is not present because, in the context, the absolute requirement is on the other side.442
§ They will be absolutely required not to conserve because the word "conserve" does not appear anywhere in the Bill. The current dispute in relation to the Rose Theatre on the South Bank, where a short stay of execution has been obtained for the archaeologists to investigate the remarkably preserved ground plan, floors and part of the walls of the theatre, is a good case in point. If the developers who owned the land of the Rose Theatre were a water company plc under the terms of the Bill, and if the Bill went through unamended, I suspect that the water company would find plenty of justification in Clause 7 to be even more ruthless than any other developer and would not give adequate attention to the need for the conservation of valuable archaeological and cultural remains. This additional duty to conserve our heritage is the theme of Amendment No. 99. It is an important theme which ought not to be ignored.
Amendment No. 100 is perhaps less controversial. It spells out what is meant in line 10 of page 8. Clause 8(1)(b) requires all concerned:
to have regard to the desirability of protecting buildings or other objects of archaeological, architectural or historic interest".
We welcome those words, as far as they go, but with Amendment No. 100 we seek to add the words,
including ancient monuments, industrial remains, portable antiquities and documents".
§ There is no extension of principle here. The extension is of the explicit reference to those elements of our heritage which are often forgotten but ought to be taken into consideration.
Amendment No. 102 uses a valuable phrase which arises—perhaps I should have referred to it before—in the Land Drainage Improvement Works (Assessment of Environmental Effects) Regulations 1988. The amendment inserts the words,
the need to avoid, remedy or reduce any adverse [effect]".
§ This obligation, which is by no means an absolute obligation—it refers to the need to "reduce" any adverse effect—is a valuable improvement on the Government's wording. It is not enough to say that this should be reflected in the draft code unless and until the draft code has more powerful status than it has so far. The amendment would be a valuable addition to Clause 8.
Amendment No. 108 seeks to add to subsection (2) of Clause 8 after the words "other places of natural beauty",
and to buildings and other objects of archaeological, architectural or historic interest".
Those words occur in subsection (1)(b) but would be appropriate in subsection (2)(a):
to have regard to the desirability of preserving for the public any freedom of access",
to these buildings and other objects of archaeological, architectural or historic interest. Again, it is not an absolute obligation. Nobody denies that there can sometimes be a conflict between access and conservation. But having regard to the desirability of access, it seems to us to be a modest and reasonable extension of the protection of our heritage and the protection of the ability of our people to take advantage of it.
Amendment No. 120 seeks to add a new subparagraph to subsection (4). It seeks to add to the duties of the authority the duty of promoting,
the conservation of buildings and other objects of archaeological, architectural or historic interest, including in situ organic archaeological deposits and artefacts dependent for their survival on a high water table".
§ This may appear to be a technical point but it is particularly relevant to water authorities. Many ancient objects, especially of wood, have been preserved because they exist in swamps in waterlogged conditions. Water companies frequently dry out swamps. This desiccates any archaeological remains which may exist in the swamp with the result that they decay rapidly. The Committee may recall the extreme steps that had to be taken to protect the Tudor ship the "Mary Rose" when it was rescued off the south coast. It had been preserved by being in water but would have disintegrated rapidly if it had not been protected. It will be clear that the same can apply to waters or waterlogged land in the ownership of water companies and that they ought to be required—indeed, our amendment would require them—to take steps to protect the archaeological objects found in those circumstances which would otherwise be ruined. It is also true that rivers—because people throw things in them, and have done so throughout the ages, and because objects were lost there when rivers were a major means of transport—yield large numbers of objects of archaeological interest which will now be the responsibility of the National Rivers Authority. It therefore seems proper that the authority should have a further obligation imposed upon it, in addition to the existing obligations contained in subsection (4), to conserve those other objects of archaeological, architectural or historic interest.
§ I hope that the amendments will not be thought of as controversial. They seek to extend and clarify the relevant duties rather than significantly to extend them. I also hope that they will commend themselves to Members of the Committee. I beg to move.
§ 6 p.m.
§ Lord Addington
When considering such a wide sphere as archaeology, it is right that we should take special account of it as regards the amount of damage which can be done to an archaeological site through, for example, the lowering of a water table or excavation work. I should like to endorse, without exception, everything that the noble Lord, Lord McIntosh, said. Moreover, I should like to reinforce what he said by making this point. In a nation such as ours where so much of our history is of the non-written type—that is, we have cultures which dominated our history: for example, the ancient Celts and the early Saxons who did not have a written culture—it is basically taught to us through archaeological finds. Thus I think it is most appropriate that we should take every step we can to ensure that most of these archaeological finds are kept in as good a condition as possible.
§ Baroness Carnegy of Lour
The points made by the noble Lords, Lord McIntosh and Lord Addington, 444 are absolutely valid. Indeed, it is true that sometimes an entire wooden dug-out canoe in an amazing state of preservation can be found in a swamp. Of course it would be most important to ensure that such a find was preserved. However, I take issue with the noble Lord as to whether such hard and fast wording is right in this context.
Amendment No. 99 would require the authority, or whatever body is running the land, to,protect and conserve objects of… historic interest".Amendment No. 100 adds to that provision items of industrial heritage. On moorland a footpath may be suffering from slip because the land above it has become very wet and requires draining. The drainers would attack the matter, begin to dig the drain and might easily discover very old and interesting drainage systems which had been put there previously. They could be either very early stone-rubble drains running straight up and down the hill or perhaps 100 year-old horseshoe-shaped clay drains. In order to drain the area they would need to intercept those drains and put in another clay drain, or some other kind of drain, at an angle to the existing drains in order to disperse the water.
In my view, if it is said that such a drainage system is of extreme interest and must therefore be conserved, it will not be possible to do anything about it; one would have to move the footpath away in another direction, leaving the drainage system under the ground. The right thing to do in such a situation would be to record the drainage system and perhaps dig up one or two of the horseshoe drains and put them on show for the people's interest. Indeed, that is frequently done. This wording is unsuitable for such a situation, although it is absolutely suitable for the dug-out canoe or the piece of pottery which has been thrown in the river. However, such hard and fast wording is not suitable for legislation as regards this particular area of activity.
§ Lord Howie of Troon
I am happy to support my noble friend Lord McIntosh in these amendments. I should stress, however, that I am mainly interested in Amendments Nos. 108 and 120. I say that lest I inadvertently give the noble Baroness, Lady Carnegy of Lour, the opportunity to score another bull's eye. That is something which I am most anxious to avoid.
Looking at Amendment No. 108, it will be seen that it refers to,buildings and other subjects of achaeological, architectural or historic interest".The water industry has a great many structures which are of historic and, indeed, of other kinds of interest. However, they are not buildings, they are not really objects and they are not architectural, although they should be preserved in so far as that is possible. I refer to aqueducts, locks, sluices, lock gates and tunnels. The whole industrial infrastructure of the water industry is really missed out in this important amendment. I know that Amendment No. 100 refers to "industrial remains", but I am not talking about remains; I am talking about structures which are actually there and which might conceivably become remains sometime in the future. I know that one 445 could argue that they are objects, but I do not think that it is sufficient to refer to the structures which I have in mind as objects. Indeed, they are far more important than that.
I think it may well be in the recollection of Members of the Committee that we came across this same problem about buildings a year or so ago when debating what eventually became the Copyright, Designs and Patents Act 1988. In the course of our debates, when the problem was drawn to the attention of the Minister, he redefined the word "buildings" to include "fixed structures". In fact, a fixed structure is what most of these things are. I am happy to support my noble friend's amendment, Amendment No. 108—I am sure that the Government will accept it—on the understanding that when we come to the Report stage we will amend it to refer not only to buildings but also to fixed structures, and that it will refer to engineering as well as to architectural and historic interest.
§ Baroness Nicol
I rise primarily to assure my noble friend that he is not quite alone as regards those Members of the Committee who sit immediately behind him on these Benches. I should also like to say that I expect the Minister to make the point that we must rely on the code of practice in this matter. As regards that code of practice, I shall make just two points. First, it represents a weakening of the criteria laid down in the land drainage proposals which were given, I think, about 14 months ago. Secondly, if Members of the Committee will turn to page 9 of the Bill and look at Clause 10(2), they will see that it says:A contravention of a code of practice as for the time being approved under this section shall not of itself constitute a contravention of any requirement imposed by section 8 or 9 above".That provision would seem to weaken the code of practice completely. I hope therefore that when the Minister comes to reply he will draw those two points together and explain to the Committee exactly what is the value of the code of practice upon which we are being asked to rely.
§ Lord Wyatt of Weeford
I think that the objectives which the noble Lord, Lord McIntosh, has in mind are highly desirable. His amendments would strengthen the possibility that such objectives could be achieved. Therefore I should like to express my support for them.
§ The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh)
I hope that I can be brief on this group of amendments which seek to strengthen and amend in various ways the obligations of relevant bodies to have regard to the desirability or protecting historic features. A number of the comments made in response to the earlier groups of amendments are relevant here and I shall not repeat them.
As regards the specific terms of Amendment No. 99, in so far as it seeks to have as a substitute a mandatory obligation to protect historic features, we believe that it goes too far and we cannot therefore accept it. I shall return to the amendment in a moment.
446 We submit that it would be unreasonable to press those obligations further than is provided for in legislation at present. Perhaps I may indulge myself to the extent of using the example of a house and its prohibitions and restrictions under a restrictive covenant given earlier by the noble Lord, Lord McIntosh of Haringey. I live in a house which, if I applied for planning permission today, would be described as obtrusive, inappropriate and out of keeping with the surrounding environment. If I were lucky enough to be one of the 30 per cent. who got through the appeal procedure described by the noble Baroness, Lady Lockwood, I would then be in the position, if I wished by chance to change the colour of my wife's dressing room, of having to paint it under the cover of darkness, because what would have been inappropriate is now a Grade I listed building.
My experience is that the restrictions and protections imposed in this country are heavily enforced. Protection of historic features is an important objective to which we require the water industry always to have regard; but we cannot bind the industry always to secure it. It must always be a consideration but, given other duties and requirements, it cannot always be an obligation.
The noble Baroness, Lady Nicol, asked what the position was with regard to the code, of which she does not have a high opinion. I should take a moment or two to lay out to the letter what the code does. In addition to considering whether there has been, or is likely to be, a contravention of any of the requirements of Clauses 8 or 9, the Secretary of State is required by Clause 10 to take into account any contraventions of the code of practice with respect to the undertaker.
The enforcement order under Clause 20 requires the undertaker to take specified action, or to refrain from action, to remedy the breach. If the provisions of the enforcement order are contravened, there is a provision in Clause 23 for the Secretary of State to apply to the High Court for a special administration order which may lead to the loss of the undertaker's appointment.
I said that I would return to Amendment No. 99. We are prepared to consider incorporating the word "conserve" into the Bill. We recognise the points made by the noble Lord, Lord McIntosh. We shall look further at what help we can give in placing more items into the code.
Having said that, perhaps I may turn to the other amendments in the group. I recognise here concepts and terms which may provide a more positive and helpful expression of both historic buildings and landscape duties. In the light of what Members of the Committee have said, I accept that there may be scope for a better formulation, without making the obligations unrealistically tight as in the terms of Amendment No. 99. I cannot commit us to particular terms today, and I do not want to mislead the Committee into believing that we can accept the full impact of the amendments. If the Members of the Committee are content, I should like to take away Amendments Nos. 100, 102, 108 and 120 to see whether we can import into the clause some of the more helpful features of those amendments, and thus go some way at least in the direction in which 447 the amendments press us. I hope that on that basis the noble Lord may be able to withdraw the amendment.
§ Baroness Lockwood
In relation to Amendment No. 99, did the Minister say that he would look at the possibility of including the word "conserve" in the code or in the Bill itself?
§ Lord Howie of Troon
When the Minister takes away Amendment No. 108, will he also take away my comments on it?
§ Lord McIntosh of Haringey
Should the noble Lord, Lord Hesketh, ever by challenged about the obtrusive nature of his house, he needs only to show the picture of his house with his charming family in front of it published in The Times some 10 days ago. I am sure that that will provide an adequate defence against any challenge.
I must express my gratitude to the Minister for his observations. Clearly, we should prefer to have a stronger obligation than merely "having regard to the desirability", but the inclusion of the word "conserve" as well as "protect" in the Bill will give considerable comfort to those who are concerned with our archaeological and architectural heritage. I am sure that they would wish that I should take up the Minister's offer to consider further amendments. If there is any way in which I could take part in the formulation of those amendments in discussion with him, I should be glad to do so. In the meantime, with my thanks to the Minister and to the Government, I beg leave to withdraw Amendment No. 99.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 100 to 102 not moved.]
§ 6.15 p.m.
Lord Addington moved Amendment No. 103:
Page 8, line at end insert—
§ The noble Lord said: The purpose of the amendment is to protect the visual interest and amenity of the scenic landscape in some parts of the country; to ensure that public walking is freely available and to maintain an ecological balance within the countryside, especially in river basins. Many people agree that planting dense, single species conifer forests is extremely unsightly. There is no variety of colour and no visual interest is produced. A one-species forest is also environmentally unsound as it provides little food for some types of the wildlife that may inhabit it.
§ However, the impact on the ecology in those areas is more significant as conifer trees shed needles which produce acidic humus. That changes the soil 448 type, and water running off such land tends to become more acid in quality. As a consequence, rivers and stretches of water also become more acidic. The result often inhibits fish growth. For example, fish died in Durham Dales in 1986 as a result of run-off. On that occasion, new drains had been dug in coniferous woodland. That increased the rate of run-off and produced an intensive burst of acidic water entering rivers. However, because plantations tend to be a single species type of conifer, they also produce a more dense canopy which shades out all the undergrowth, thus reducing the range of flora and fauna. Once again, that will reduce the amount of food available in the forest, affecting all the wildlife around.
§ Access to new plantations would also be increased as one cannot walk through densely planted new conifers. Plantations reach semi-maturity before one can walk through them. That takes about 30 years. Two thinnings are needed before one can enter the woods. In another place Mr. Moynihan referred to the fact that he was aware of the problem. He agreed with the Opposition that it might be useful if reference were made to the issue in the code of practice. It was a highly complicated issue and many conflicting positions had been taken on the potential problems of conifer afforestation, not least the acidification of water supplies.
§ I hope that the Minister will be able to respond helpfully to the amendment. I beg to move.
§ The Earl of Radnor
The noble Lord, Lord Addington, has a point, but only one—the acidification of water. I do not go along with any of his other arguments. With coniferous forests planted in the wrong place, acidification is a matter for consideration. Acid rain and dead streams, especially in Wales, are a considerable worry.
As often happens among scientists, there is a great argument as to the exact reason for all. If people go to Wales and talk to the Welsh Water Authority they will be told quite clearly that it has nothing to do with electricity coolers, motor cars or industry because the Welsh winds sweep in from the Atlantic. Therefore, that cannot be the reason. The Welsh attribute the acidification of their streams, or at least they did so two years ago, almost entirely to the unwise planting of coniferous forests.
The matter should be looked at and perhaps covered in this clause of the Bill in some way or another, but certainly not as proposed in the amendment which refers to the catchment areas of inland waters and the desirability of having some influence over them. So far as I am concerned, the catchment areas of inland waters are the whole of England and Wales; that is what we are dealing with in the Bill. It would be quite wrong that those examining the problem and having responsibility for water should have control and influence over tree planting throughout the two countries. I suggest to my noble friend that the proposals are worth looking at. Somewhere in the clause, as well as the flora and the fauna, there should be some mention of the acidification of waters relative to the planting of coniferous trees—but it should not go too far.
§ Lord Moran
I wish to give my strong support to the general thrust of the amendment for the same reason as the noble Earl, Lord Radnor. The problem of acidification is extremely serious. A large area of upland mid-Wales where I live has been affected by acidification: it has had a damaging effect on the fisheries there. A number of lakes and the upper reaches of many rivers are now biologically dead. There are no fish in them, no invertebrates, and consequently birds like dippers have disappeared.
As the Minister will be aware, the Welsh Water Authority has organised a research programme funded by his department and the Welsh Office which have given the authority £600,000 to pay for research by 20 scientists until 1991. The work has been going on near the Llyn Brianne reservoir. It started orginally because a trap was put in below the dam to catch ascending salmon and sewin and take them up above the dam so that they could spawn. The trap worked very well. They were taken up but did not spawn because they were killed by the low ph and the high level of aluminium. That resulted from the fact that one of the rivers feeding the dam, the upper Towy, flowed through land 90 per cent. of which was covered with conifers. Largely as a result of that, the water became too acid to support fish life.
A great deal of research has been going on and it has been established fairly clearly that one reason is that conifer trees "scavenge"—the technical word used by scientists—the pollutants out of the air. The needles bring them down and concentrate them and they run off into the streams, particularly on poor soils which have no buffering effect, as is the case in many parts of mid-Wales.
Welsh Water is satisfied that surveys throughout mid and north Wales have established that there is a relationship between forestry and streamwater aluminium which is toxic to fish. It is therefore restricting further planting of trees in the sensitive upland area.
It is very important that this problem should be addressed. I wish to ask the Minister what steps the NRA will take to deal with the problem which seems to me of the first importance for river quality in the upland areas. The problem exists in many countries: it has been a problem in Canada; it is a continuing problem in Norway and Sweden; and it is now a serious problem in Wales as well as parts of south-west Scotland and other areas.
I very much hope that even if the Government do not accept the amendment they will be prepared to bring some wording into the Bill which will establish the matter as a very high priority for the National Rivers Authority.
I support what the noble Lord, Lord Moran, has said. I am glad that he mentioned south-west Scotland, an area where we have a family property. The main public water supply there becomes rather precarious about every four years. This is partly due to the fact that although it is an area with normally fairly good rainfall, every four years there is a drought. The situation is made much worse by the fact that there are vast areas of conifer 450 plantations; these are very thirsty trees indeed. I know of a hillside with three wells which never failed until conifers were planted. When the trees became pretty fully grown they were so thirsty that water had to be carted a considerable distance by tanker in order to replenish the wells.
So it is not only the acidity that is caused by conifers; it is the fact that they cause a lack of availability of water, both public and private supplies, where the water is needed. For that reason I support the amendment.
I do not go along with my noble friend Lord Radnor in saying that we should ignore the effect on the flora and fauna. That is a factor which should certainly be borne in mind among all the other factors when the Forestry Commission or private owners are deciding whether to plant trees.
§ Lord Wyatt of Weeford
I wish to say a word in favour of the much-maligned conifer forest. These trees are extremely attractive evergreens. They look very agreeable in the winter when they illuminate and make more pleasurable the landscape. I do not believe it is true that they are busy killing fish life and wildlife. After all they grow in profusion in many parts of the world and people are fishing like mad for salmon and God knows what else in the lakes and rivers below them. I hope that the Government will not listen to all this obscurantist prejudice against the charming conifer.
§ Lord Howie of Troon
Conifers are fine trees and native to my part of the world, but I think it is fairly well established that they play a substantial part in the acid rain problem. The amendment merely talks of preventing further afforestation. There will still be a large number of plantations in south Wales, for example, and south-west Scotland where experiments are taking place.
We must ensure that if we prevent further afforestation the water authorities take other steps to prevent the acidification of lakes, reservoirs and streams. There are experiments now in south Wales involving spreading lime. The same is happening at Loch Fleet in Galloway. Not only should the spread of conifer forests be discouraged, but where they exist water authorities must be obliged to take such steps as liming in the lochs and water courses to counter the ill-effects of the conifers.
§ 6.30 p.m.
§ Lord Clinton
I do not like this amendment either. It represents another attack on conifers. Conifers should grow well and produce an economic crop on these sites. In the catchment areas they would produce a crop much faster than hardwoods. It has been suggested that hardwoods and softwoods could be grown together. That idea should be considered. Surely the choice should be left to those on the ground to make their decisions on the basis of the usual consultations. This amendment imposes a duty and ties the hands of the relevant body as regards the kind of crop that can be grown. I do not support the amendment.
§ The Earl of Arran
I think I can be of some partial help to the noble Lord, Lord Addington. His amendment would require that bodies subject to the duties in Clause 8, in considering proposals related to their functions, should have regard for the desirability of preventing conifer afforestation in inland water catchments. I can readily understand the sentiment underlying this amendment. Coniferous afforestation in the wrong places, as my noble friend, Lord Radnor forcefully pointed out, can damage traditional and cherished landscape. It can contribute to soil erosion. And, most important for our present purposes, it can contribute to the acidification, as the noble Lord, Lord Addington, pointed out, of rivers and lakes, potentially harming water supplies and damaging the local ecology.
But the fact that coniferous afforestation can be detrimental to water quality in this way means that it is something to which the NRA and undertakers are bound to have the closest regard. While, therefore what the noble Lord says is, with qualification, valid, given the incentives on the relevant bodies, it hardly needs saying in the Bill.
There are good reasons why it should not be said. The duty in question is already a broad and inclusive one. To single out one particular practice for special reference is inherently undesirable because it can cast doubt on the scope of the provision.
In any case, the terms of the amendment go too far in two particular respects. It is going too far, first of all, to say that prevention of conifer afforestation is desirable everywhere in water catchment areas, as the terms of the amendment could suggest. Secondly, the Forestry Commission has already produced guidelines on how, by appropriate practices, conifer planting and protection of water quality can go together. Good practice can solve problems.
Looking to the wider context, I ask the Committee to recall the changes to government policy last year which made clear that the approval of the Forestry Commission should not normally be given for new planting, which consists predominantly of conifers, in the uplands of England
In these circumstances, and for these reasons therefore, this amendment is neither necessary nor desirable. However, as my honourable friend the Minister of State said in Committee in another place, we accept that this is an issue to which some reference in the code of practice would be useful. What we have heard today strengthens our view that that would be appropriate.
As regards the point that the noble Lord, Lord Moran, made, I can say that, more generally, acidification of upland streams is a matter which I know the NRA will be concerned about and will address in due course. It is, of course, a much wider problem which the department is studying.
If the amendment should be pressed, I urge the Committee to resist it as too sweeping and restrictive in its terms and yet at the same time too specific for a statement of general duties. However, I hope the proposer will feel, in the light of what I have said, that that is not necessary.
§ Lord Renton
Before the noble Lord replies, I wonder whether my noble friend Lord Arran would make it clear that in the code of practice there would be a reference not only to the danger of acidification, but also to the threat—this does not apply everywhere, but only in certain circumstances—to the availability of water if large conifer plantations are established.
§ The Earl of Arran
I am sure that what my noble friend Lord Renton says will be taken into account when it is decided how to phrase this particular reference in the code of practice.
§ Lord Addington
This has been an interesting and beneficial debate. I hope the Committee agrees with me on that. The Minister has met me some of the way and has given what I think I can describe as a broad undertaking to make sure the problem will not get out of hand and that it will be dealt with. I wish to draw attention to the fact that there is more than just the acidification of water in question here. The environment around water areas should also be considered. I hope that that will be dealt with in the code of practice. However, with the assurances I have been given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Graham of Edmonton moved Amendment No. 103A:
Page 8, line 13, at end insert—
("(1A) Any proposals by, or in relation to, a body or person to which subsection (1) above refers shall where they relate—
§ The noble Lord said: Those who follow these matters closely will notice that Amendments Nos. 103A, 103B and 103C all seek to get something written into the Bill about consultation in respect of certain matters. Amendment No. 103A seeks to ensure that—
The Earl of Caithness
Will the noble Lord clarify for the Committee whether he is speaking to all three amendments together?
§ Lord Graham of Edmonton
I apologise. I understand they will be taken separately. When I consulted my noble friend Lord McIntosh of Haringey, my first reaction was that the three amendments were interrelated although they deal with separate points. I hope that the sweet reasonableness which the noble Earl, Lord Onslow, apparently felt was successful the other night may also be successful as regards one, two or even three of the amendments. But I shall deal with them separately and be grateful for small mercies.
Amendment No. 103A refers to proposals by a body or person having regard to,consultation with each local authority in the area in which the land is situated and shall have regard to the results of such consultation in relation to recreational or environmental matters".453 As the Chamber knows, I am a strong local authority man. I enjoyed my service in local authorities very much. I invite the Chamber to consider the safety net that such consultation would provide. Local authorities often have joint arrangements with water authorities. If a change of ownership is envisaged by means of this legislation, and if subsequently there is a further change by means of the establishment of the plcs, and if other forms of management and ownership flow from that, it is essential that local authorities should be consulted. After all, the interests of the people within the areas of local authorities will be affected by such changes. Not only should local authorities be consulted, but also the gravamen of the consultation should be taken into account.
We on this side are trying to second guess what might be said in response to our proposals. No doubt we shall be told that there are adequate safeguards in planning procedures to make sure that the views of those who are held to be directly affected will be considered. But a number of Members of the Committee have drawn attention to the fate of planning applications in, for instance, the national parks. The situation there is very bleak. If one considers Exmoor, for instance, one can see that the percentage of appeals as regards planning applications is very high indeed. In 1985 it was 57 per cent., in 1986 it was 66 per cent.; and in 1987 it was 50 per cent.
In the Lake District National Park, the percentage of appeals on planning applications was 35 per cent. in 1985; 48 per cent. in 1986; 43 per cent. in 1987; and 44 per cent. in 1988. Like the Minister, we are firm advocates of the planning procedure nexus. If someone wants to make a change and that change is considered and then rejected by a local authority or a planning authority, it is perfectly proper that another court of appeal is established. We are not drawing any inference from the fact that an undue proportion of appeals against local authority planning decisions succeed. However, the Minister will understand the sensitivity of those who are concerned that they should not have to rely on the planning appeal nexus and that they should be consulted.
Like the Minister, I believe that when the Bill becomes an Act we shall be in a new ball game. Everyone concerned in local authorities will have to come to terms with the new facts of life. One can do that in two ways. One can do it the hard way or one can do it the sensible way; namely the Bill should lay down that if a change of use or change of ownership is of substance, the people affected should be consulted. In my view the amendment is eminently reasonable. I also believe that it will go a very long way to satisfy people outside this House that the Minister is especially concerned to ensure that local authorities are consulted, because they spend ratepayers' money and provide recreation and environmental facilities. Local authorities are not solely councils of 15 or 20 people; they represent the people who live in the area. We hope that the Minister will say something helpful about the amendment. I beg to move.
§ 6.45 p.m.
The Earl of Caithness
The amendment seeks to impose a restriction on the ability of successor bodies to dispose of land; not, as the noble Lord, Lord Graham of Edmonton, said, substantial land, but land. It would require that no disposal or change of use of land should take place without consultation with the relevant local authority on recreational or environmental matters.
The first point I should like to make is that it is appropriate to regulate changes of use; they are already regulated by local planning authorities—the very bodies the noble Lord, wants to be involved. What is proposed here would cut across or extend unreasonably those general arrangements. The second objection is that I believe that the requirement to consult in respect of disposals goes unreasonably wide. We are not here restricting it to exceptional amenity or environmental features which might be jeopardised by disposals but are placing the requirement on all disposals. That surely is onerous and unreasonable and would extend unduly the remit of the local authority. Of course local authorities, particularly in their planning function, have an important role in recreation and environment. But we do not believe that that can justify the intrusion of consultation obligations as wide and onerous as these.
§ Lord Graham of Edmonton
Is the Minister saying that a form of words which is not as all-embracing as those in the amendment would meet with his sympathy, if not his approval? He pointed out that the amendment does not specify the land to which it refers. In essence it is all land which is currently in the ownership of or leased to the water authority. Before such land is disposed of or undergoes a change of use consultation should take place.
The Minister talked about onerous conditions. Who bears those onerous conditions? It will be the new owners. If the Minister says that somehow the amendment would prevent them from doing what they would otherwise do without consultation, he needs to spell out to the Committee and to those outside what the new owners would want to do that would change the use to the detriment of the enjoyment of the land by the current users. What would be onerous? The new plc may decide to rationalise its asset portfolio. It may decide to dispose of land which is surplus to its functional requirements and which is currently used environmentally or recreationally. The new owner may wish to jazz up the recreational use or to chance his arm and ask for planning permission for industrial use, warehousing, shopping facilities or for some other change of use. The Minister says that it would be onerous to lay down conditions requiring them to consult before changing the use of the land. I am surprised.
The Minister might say that planning procedures lay down means by which consultation takes place. However, more than one local authority may be affected by a change in the use of a particular piece of land. For example, I live in the middle of Lee Valley regional park, and am proud to have been a founder member of the Lee Valley authority in 455 1964–65. The Lee Valley covers a number of local authorities. In such areas a change of use on which only the local authority in whose area the land is located—the riparian owner—is consulted might be seen by other authorities as a matter on which they should also be consulted.
I should like the Minister to say a little more about what he is afraid of when he talks about laying a burden on new owners before they change radically, or change at all—I must be careful about my qualifications because there could be arguments—the existing use. I do not say that the use should never ever be changed; changes must be envisaged. But it is clear that the Government are opening up a host of possibilities for change of use in the future. If that is to be possible, why not consult the representatives of the people who will be affected by the changes? I do not mean just the shareholders, the employees or the managers: I mean the people who live in the area.
§ Baroness Blatch
Before the noble Lord sits down perhaps I may ask him a question about the example which he gave of the area within his own former constituency which extends over a number of district council boundaries. If there were to be a change of use the planning departments of each of those authorities would be involved and there would automatically be liaison with each local authority. Does he agree that they would all be involved in any change of use policy? He appeared to rule that out.
If the noble Lord replies to that question perhaps I may also ask him whether the particular area to which he referred is subject to local enactments anyway.
§ Lord Graham of Edmonton
I would happily settle for confirmation from the Minister that the planning legislation lays down that all local authorities affected by that change will be consulted about any change of ownership or use of land in an area such as the regional park or in the land which is currently under the sovereignty of the water authorities. That is the case for the amendment. If that is the case, and the noble Baroness, Lady Blatch, whose views I respect, tells me that there is no need for the amendment in those terms, I shall happily withdraw my amendment. But it ain't necessarily so.
The Earl of Caithness
In his first reply to my remarks the noble Lord concentrated very firmly on sub-paragraph (b) of his amendment, which relates to a proposed change of use of the land. It was quite right for him to do so. However, as he knows, and as Members of the Committee know, if there is to be a change of use of the land, local authorities have to be consulted. That is the planning law.
The second time that the noble Lord responded to me, he returned to paragraph (a) of his amendment, which refers to any disposal of land. That is where I take issue with him. It is unnecessary to have the onerous duty of consulting the local authority about the disposal of land in whatever shape, form or location. In my view, to have to discuss matters concerning land currently owned by a water 456 authority with a local authority would be an unnecessarily onerous imposition upon the ownership of land. The proposed change of use—the point of concern to the noble Lord—must be subject to a planning application.
§ Lord Graham of Edmonton
Is the Minister saying that if, under the planning procedure, there is a change of use, all affected local authorities will automatically be consulted? Does the Minister nod his head at that proposal?
The Earl of Caithness
If more than one authority is involved, it depends whether they are in agreement between themselves.
§ Lord Graham of Edmonton
Will the Minister confirm that all local authorities, whether there are five or only one, affected by a change of use will be consulted under the planning procedures?
The Earl of Caithness
Again, that depends upon the agreement between the local authorities. It also depends on what the noble Lord means by "affected" by a proposed change of use. A proposed change of use will be submitted to the local authority. If the local authority wishes to consult adjacent local authorities because there is common ownership or a boundary is involved, I am sure that the agreement will already be there, as my noble friend Lady Blatch has said.
§ Lord Graham of Edmonton
That is interesting. At local level I have come across scores of cases involving a change of use. At one stage I was privileged to be chairman of the planning committee of the London Borough of Enfield. It was our policy—I am sure that it was the general policy—to take the view that the people affected by a change of use should be consulted; for example, with regard to the demolition of a large house and the construction of eight flats or the change from residential to business use. In the main, that meant the people on either side of the house or perhaps on the other side of the road.
However, the Minister will not be surprised by the number of people who were not consulted about the decision and felt that they should have been consulted. It is not an easy science to decide who is affected by a change of use. The Minister said that a local authority—prima facie, the local authority directly affected by a change of use—may decide to consult its neighbouring authorities. I know that from my experience of local matters; for example, in respect of planning applications for large shopping developments on the A.10, adjacent to the M.25, in the Broxbourne area of Hertfordshire. As a courtesy, the authority consulted other London boroughs such as Enfield and Barnet. When a change of use is involved, every affected local authority should be consulted.
The second point that the Minister quite fairly made related to the change of ownership. According to the Minister, it has nothing to do with the local people if someone acquires land and then decides to sell it to other people. As I understand the Minister, the local people should not be consulted and should 457 wait and be surprised by the new owners. The Minister may take the view that he is not concerned when a change of ownership takes place. There is no proscription in respect of that matter. We do not ask that there should be proscription, but we believe that there will be terrible consequences when the Bill is enacted. I am not referring to the purpose for which the land will be used, but to its ownership. From his experience, which I greatly admire, the Minister will be as aware as I am that there are many cases in which land changes hands That land appears to be intended for one purpose, but planning applications may emerge five or six years later, although they had been intended from the first.
We envisage that people will acquire land, whether it be allotment land, green belt or recreational land. In five years' time, a planning application will be submitted by the owners, although their names may not be the names on the door. Local people are entitled to know who are the owners of that land. At present, the owners of all land in water authority areas are the water authorities. When there is a change to a plc, there will be a change of ownership. We protest against that change on principle. When the new owners emerge, we know that they will be a very disparate crew. They may well be desperate, but they will certainly be disparate. Ownership will be scattered. Is it not reasonable for local people who enjoy the facility to be consulted through the local authorities? That is all I ask. Perhaps the Minister will say a little more about my point.
The Earl of Caithness
I take the noble Lord's argument and I shall take it to its logical conclusion. But the intermediate step is: how does one consult the local people when one goes only as far as the local authority? I want to take the noble Lord's argument all the way. He is concerned about any land that the water authorities at present own. Surely, if he is to be consistent, he should argue that any disposal of land, including his house, should be notified to the local authority, to all the other owners and to the person in Cumbria who might happen to like his home in Lee Valley Park and think that the noble Lord is a suitable owner, but would dread the thought of me buying it.
§ Lord Graham of Edmonton
That response can be arranged. The noble Lord suggests that the disposal of a person's house falls into the same category as the disposal of part of the heritage of this country which involves open space, land and recreational use. With great respect, there is no comparison. Land which is at present owned by the people will now be sold to shareholders in a plc whose prime motive will be to make money out of it and who may then decide to sell that land to other people who believe that they can make even more money out of it. If the Minister tells me that there are people who will buy that land in order to keep it and restore it to its orginal use, he knows more about the matter than I do.
We believe that the people in a community are entitled to be consulted. The Minister makes a fair point. Not all local authorities will be equally zealous in doing that. He is aware that local newspapers may
458 sensationalise matters, but people find out about matters through the local press. We are talking here about large sums of money. The Thames Water Authority has an estimated £1,000 million-worth of assets. We are talking about billions and billions of pounds. The Minister has failed to satisfy me and the Committee. He has marginalised the importance of a change of use and ownership in respect of those important land areas, but I do not think that he will say much more of help to us. I shall consult others and see whether we can come back with a more narrow amendment based upon the Minister's comments tonight. He is not out of sympathy with me, especially with regard to the change of use, but he is adamant that, once the land is owned by other people, it is none of our business to know to whom they will sell it. The people of this country are entitled to know to whom the land may be sold. However, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 7 p.m.
§ Lord Graham of Edmonton moved Amendment No. 103B:
Page 8, line 13, at end insert—
("(1A) It shall be the duty of the Authority and every relevant body, in formulating or considering any proposals relating to the functions of any relevant body or, as the case may be, that body—
- (a) to ensure that no such proposals shall affect any scheme, established in consultation or jointly with one or more local authorities, for the purpose of furthering the environmental or recreational amenity of the land concerned;
- (b) where sub-paragraph (a) above applies, to attach such restrictive covenants and other safeguards to the use of the land as may further the purposes of that sub-paragraph in relation to that land; and
- (c) to ensure that no such proposals shall affect, or make less likely the achievement of, any proposal for a scheme made by a local authority where, were that scheme already in existence, it would be a scheme to which sub-paragraph (a) above applies.").
§ The noble Lord said: There are currently in existence many agreed recreational and environmental management plans. The ownership of the land about which there are agreed recreational and environmental management plans is not in dispute at the moment. There is a happy relationship with a local authority which often provides expertise, facilities and subsidy from the ratepayers to encourage its residents to use the facilities. I think particularly of management schemes for access to land and for the protection, maintenance and improvement of wildlife habitats and of the operation of river regulatory schemes so as to benefit wildlife, fishing and other recreational pursuits. Many of these arrangements are of a purely voluntary nature.
§ In the previous debate the Minister said that it is none of our business if the ownership of the land changes hands. I tried to make the case that it was. Suppose that there is a management agreement between a local authority and the new owner, the plc. Then they decide to change the ownership of the land. We say that we ought to have something written into the Bill, or an understanding, that before 459 any existing management arrangement is disturbed there is consultation with the other partner. If a joint agreement is only to be exercised by the new owners of the land and not by the current users and supporters of the land, it is very one-sided indeed. I beg to move.
§ Lord Renton
This amendment overlaps with subsection (1), which it follows. If I may say so with respect to the noble Lord, it does so in a rather confusing way. For example, he says that the authority must ensure, and so must every relevant body,that no such proposals shall affect … a scheme".What he means is "adversely affect any scheme", but that is not what it says.
Any such proposals may affect any scheme, but that is not what the noble Lord is after. His amendment does not express his intention. We get exactly the same point in paragraph (c) of his amendment, where we again have the words:to ensure that no such proposals shall affect, or make less likely the achievement of, any proposals for a scheme made by a local authority where",the scheme is already in existence. Again the noble Lord needs the word "adversely" in.
Apart from that, if we look at paragraph (b) we find a reference to the tempting proposition that there should be restrictive covenants. We had a most interesting reference—I forget which of your Lordships made it—to restrictive covenants several amendments ago, but they can turn out to be a bit of an illusion because of the law and practice which have grown up in relation to them.
The courts are very reluctant to enforce restrictive covenants if they have become irrelevant owing to a change of owner or a change of use. Indeed in the past, as the noble and learned Lord, Lord Elwyn-Jones, sitting there knows very well, sometimes restrictive covenants have not been enforced as between the original owner and the original tenant or the original vendor and the original purchaser. Therefore if we were to build too much hope on bringing in the concept of restrictive covenants in these circumstances, it might turn out to be a disappointment.
Apart from those detailed points I hope that my noble friends will not accept this amendment, because frankly it adds confusion to a clause which is already perfectly clear thanks to the terms of subsection (1).
The Earl of Cranbrook
I think we need to know whether there are precise examples of such agreements. I have sought information from Anglian Water. So far as I am aware there are no such agreements with the local authority in existence in Anglian Water (which is the largest water authority in the country) to provide recreational or amenity facilities.
§ Lord Hesketh
The purpose of this amendment is to provide that no proposals of a relevant body shall jeopardise any scheme established jointly with a 460 local authority, or in consultation with it, for recreation or amenity; that it may if necessary achieve this by the imposition of restrictive covenants; and that no such proposals shall adversely affect any scheme currently being developed.
I am grateful to the noble Lord, Lord Graham, for his proposal, which I accept directs the Committee's attention to a matter of relevance which we should consider. The number of joint schemes between local authorities and water authorities is not, we believe, very large—I believe I am right in saying to my noble friend that there are some with Birmingham—but it is significant, and they deserve our attention.
We do not, however, believe that the right solution is to incorporate proposals on the lines of this amendment into the Bill for two particular reasons. First, the obligation to have proper regard for these schemes is implicit in due observance of the existing Clause 8 duties in the Bill in that the schemes would have been established in pursuance of the predecessors of these duties; secondly, the amendment is cast in particularly rigid terms. It would appear, for instance, to prevent a relevant body from seeking to amend or resile from a scheme even where it might be reasonable for it to do so. Nor is it entirely irrelevant that no such reciprocal obligations are to attach to the local authority even though they are joint schemes.
Having said that, I accept that this is not an issue that we should let pass. We believe that the best course would be to seek to cover the issue within the code of practice, taking full account subject to the particular doubts I have expressed, of the terms of this amendment. I hope that with that undertaking the noble Lord, Lord Graham, will be content to let us give effect to the reasonable objectives of the amendment by those means.
§ Lord Graham of Edmonton
I am grateful for the concluding words of the Minister. I have a number of illustrations here of existing arrangements, none of which relates to Anglia. The Committee in effect wants me to show the colour of my money, or to put my money where my mouth is, in respect of the fact that there are arrangements that could be disturbed. Let me give the Committee the first one.
Many of the river valleys in Greater Manchester, together with the associated reservoirs and water authority lands, are managed jointly by local authorities and the North West Water Authority. Together, as in the Douglas Valley, schemes of access have been agreed with jointly-funded wardens and information services. A massive new recreation resource, which includes the fascinating gardens of Rivington Hall—and we are going to hear more about Rivington later—a water authority property, has thereby been created. That is an agreement of the kind that we are trying to protect.
Secondly, the water levels of certain reservoirs—for instance, Selset in Durham—are maintained at a specific height for as long a period as possible to allow water sport to take place. In this case sailing is possible for much of the summer season but at some cost to Northumbrian Water which now pumps water from other sources. Thirdly, certain reservoirs or certain sections of reservoirs 461 —for example, Gouthwaite reservoir in North Yorkshire and Bakethin dam in Northumberland, neither of which is a national park—are managed as nature reserves. Agreements have been entered into for the management of those sites and no physical development or intensive local uses are permitted.
We believe that those arrangements are in danger. The Minister—and I accept completely what he says—says that he has sympathy with what we are trying to protect and that it may be possible that the code of practice will contain wording, or arrangements, in such a way that this will be satisfied. Like everything else, I of course accept what the Minister says without question in so far as the words are concerned, but we need to see the words on the paper. We need to see the code of practice in order to be satisfied. At this stage I am grateful to the Minister for what he has said. In the light of what he has told the Committee, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
§ The Earl of Arran
This might be a suitable moment at which to break for dinner. I suggest that we do not return to the Committee stage of the Bill before 8.10 p.m.
Moved accordingly, and, on Question, Motion agreed to.
§ 7.10 p.m.