Clause 2 - Protection of inland surface waters, transitional waters, coastal waters and groundwater
Water Bill [Lords]
9:15 am
Mr Norman Baker (Lewes, Liberal Democrat)
We may disagree on the amendments with regard to how European directives are enacted in domestic legislation. I am not happy with the Government's position, which is that simply because something has always happened, it must continue to happen. In other words, if someone is hanged for sheep stealing, people who steal sheep should continue to be hanged in the indefinite future. Sometimes we must reflect on and alter past practices. That must apply here due to the magnitude and importance of the water framework directive. There is no argument about that.
I refer the Minister to comments made by the Select Committee on Environment, Food and Rural Affairs. The first line of the summary of its 2002–03 report states:
''The Water Framework Directive is a hugely important piece of legislation.''
Everyone accepts that. The measure has been on the stocks for a considerable time. It has been progressing through the European Parliament and the EU process for some years, and so cannot have taken the Government by surprise. However, according to my colleague in the House of Lords, Baroness Sue Miller, it seems that there are two separate teams in DEFRA, one working on the Bill and one on the water framework directive, and never the twain shall meet. Is that joined-up government? A joined-up Department might be useful for a start.
The Minister's predecessor, in a letter of 3 March 2000, attempted to explain why the Utilities Bill had been carved up and all the water provisions taken out. By the way, those provisions reappeared without amendment in this Bill three years later. He wrote:
''As we have been developing the draft Water Bill, it has become increasingly clear that it makes more sense to tackle all the changes we want to see made to the regulatory framework for water in a single piece of new legislation.''
As was often the case, the right hon. Member for Oldham, West and Royton (Mr. Meacher) knew what
he was talking about on the environment. He was right. We should have had a joined-up Bill that included the water framework directive. It is not impossible to have such a Bill; we have seen that approach in Scotland. Scotland has managed to have a joint piece of legislation that has been well received by all sides. The environmental lobby, business and all political parties have recognised the value of that approach; it is a great pity that it has not been replicated in England and Wales.
The Secretary of State herself recognises the problems encountered in implementing European Union directives. In a speech to the Water UK conference on 2 May 2002, she said:
''While we contest where we disagree sometimes we have been forced to accept judgements that we have under-implemented in the past. The lesson for the future is absolutely clear: we must engage from the first stages of such discussion, be more certain of what commitments actually mean, and play a full part in negotiation of new directives.''
The thrust of her speech, which has considerable validity, is that past directives have been under-implemented. Situations such as that of the fridge mountains have arisen, and we do not want them to happen again. DEFRA's preparation, and before that the preparation of the Department of the Environment, Transport and the Regions, should have brought together the Water Bill and the water framework directive in one Bill. However, that will not happen, and that is faulty, not joined-up, government.
A democratic point also has to be made. Although the directive is hugely important, and it is recognised as the most far-reaching environmental legislation since the EU began, it will be dealt with by secondary legislation. That cannot be right in a democracy. It should be implemented by primary legislation with a full debate and with the scrutiny that this Bill is receiving.
The Minister's response in the letter sent to Opposition spokesmen simply repeats the assertion that primary legislation is not appropriate. For the benefit of the hon. Member for Salisbury (Mr. Key) and others, the relevant section states:
''Formal transposition of the Directive must be achieved by 22 December this year.''
That suggests that the Government are late in beginning their consultation and preparation process. One might have thought that, given that warning, they could have combined the directive and these measures in primary legislation. Instead, they are scrabbling around at the last minute trying to complete consultations before a deadline that was announced some time ago. The letter continues:
''The Government published a consultation paper in August with proposed draft transposing regulations. Our consultation period runs until October.''
It also says:
''An enabling power already exists in the European Communities Act'',
and as it is standard practice, we should not worry about whether it is implemented by primary legislation.
I do not think that the Government have deliberately decided to bypass Parliament or stop us scrutinising the measure. However, there has been a chronic failure in the Department and its predecessor properly to anticipate what is required by the EU directive and what the Government want to achieve through the Bill. Different teams have worked on the two matters separately and, too late in the day, someone has asked, ''Why does this Bill not incorporate the directive as the Scottish legislation does?'' I guess that the Minister has been advised that it is too late to do that now. As a consequence we have a hybrid process, which is unsatisfactory.
It is not now sensible or achievable to incorporate the directive in the Bill, but I want to put it firmly on the record that it is wrong that the Government have got themselves in such a position and that the Bill will be less satisfactory as a consequence. Problems may arise between the terms of the Bill and those of the water framework directive when it is enacted. Will the Minister give an absolute guarantee that, when the directive is introduced by secondary legislation, it will not be necessary to amend what will then be the Water Act? Will the Act be sacrosanct, or will bits and pieces require amendment because we did not properly anticipate what would happen? I will lay money now that regulations will be introduced to do just that when the statutory instruments are considered in the not-too-distant future.
The amendments are an attempt to recognise that it is right to have not only primary legislation to introduce the directive but measures to check how that is progressing. For example, amendment No. 174 refers to
''the legally binding timetable required.''
Members should be aware that the timetable for the directive is strict. It is helpfully set out on pages 13 and 14 of a Library research paper—the Library's research papers are always helpful. About 10 or 15 dates have to be met for the water framework directive. We should be discussing that and monitoring what the Government do to ensure that it is implemented properly, instead of squirreling it away in secondary legislation as the Government want. The purpose of amendment No. 174 is to ensure that they are firmly tied to that legally binding timetable.
Amendment No. 175, which is not dissimilar to Conservative amendment No. 2, would require an annual report to be laid before Parliament on the implementation of the directive. Again, that is not unreasonable. It is no use the Minister saying that we can have Adjournment debates or raise matters in written questions. That is no substitute for a proper debate on major legislation. That is not simply the view of my colleagues or that of the Conservatives, although they will speak for themselves on this matter. It is the view of companies.
I note the Environment, Food and Rural Affairs Committee report on the directive. The note sent by the Library says that the view of the Committee was that there would be a requirement for primary legislation in respect of the water framework directive. The report states:
''South West Water Limited, however, reported to us that 'primary legislation is recommended strongly as the preferred vehicle to enable the transposition of the Water Framework Directive into national legislation' . . . We do not make a judgment on this point: although the status and comprehensive nature of the Directive amply justifies the introduction of a 'standalone' bill, the important point is the effectiveness of the transposition of the Directive into national law, not the means by which that is achieved.''