Commons Amendment

– in the House of Lords at 8:13 pm on 13th November 2003.

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2 Clause 2, page 1, line 7, leave out Clause 2

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Food, Farming and Sustainable Energy)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. The government amendment removes Clause 2 from the Bill that left this House. Clause 2 placed a duty on the Secretary of State to make regulations to implement aspects of the Water Framework Directive. That clause as it stood when it left this House did not transpose the directive and in some respects went beyond its requirements. An enabling power to transpose the directive already exists in the European Communities Act 1972. The Government published a third consultation paper, in August, with proposed draft transposing regulations. October marked the end of successive government consultations on transposition, which started in March 2001.

As with most European legislation, it has been the longstanding practice, agreed in the House and used by successive governments, to transpose European legislation using the European Communities Act. The regulations will of course come to Parliament in the normal way.

The Government obviously are already under a legal obligation to implement the directive because it is a piece of European legislation. No specific provision along the lines proposed in Amendment No. 2A is necessary. Indeed, it would duplicate the powers under the European Communities Act.

The Government's proposed regulations to transpose the directive, which were published in August, already contain regulations transposing Articles 5 and 8, to which the noble Baroness's amendment refers. The corresponding draft regulations are already there. No further provision along the lines of subsections (2) and (3) of the amendment is therefore needed in the Bill.

I therefore hope that the noble Baroness, and others who support the amendment, will recognise that it would be counterproductive and duplication to provide this provision under the Bill, and that the normal procedure should apply to the Water Framework Directive as it applies to the vast majority of European legislation and regulation.

Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Whitty.)

MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT NO. 2

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2, at end insert "but do propose the following amendment in lieu of the words so left out of the Bill—

2AClause 2, Insert the following new Clause

:TITLE3:"Compatibility with EC Directive

(1) Wherever applicable, all provisions of this Act shall be implemented in such a way as to comply with and contribute to the requirements of the EC Water Framework Directive (2000/60/EC).

(2) The Secretary of State and the Assembly shall prepare and publish targets, together with a timetable by which each shall be achieved, for Articles 5 and 8 of the EC Water Framework Directive.

(3) The targets and timetable shall be laid before both Houses of Parliament and the Assembly within one year after the Directive has been transposed.""

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, the Minister says that there is a usual way to transpose directives. I agree. Does he also accept that the UK has an astoundingly poor record in transposing environmental directives? It is so bad that the UK came bottom of the league in Europe in the European Commission's Fourth Annual Survey on the Implementation and Enforcement of Community Environmental Law. That is enough proof of why the old method of transposing directives is simply not good enough. In my view, that alone would be good enough reason to use primary legislation.

There is astounding agreement between all sides involved with anything to do with water. The water industry—that is the companies themselves, the environmental NGOs and academics—and everyone I have spoken to about the Bill have one thing in common: they are all angry, disappointed and disbelieving that the Government could have put this legislation through without as much as a reference to the Water Framework Directive. After all, this will be the biggest change in our water management, certainly in living memory. They are worried for very good reason. Without the backing of primary legislation, the Water Framework Directive has been downgraded in importance. It is likely to be implemented in a non-cost effective way and without the urgency needed.

To be effective, the implementation really needs to mesh with planning and spatial planning functions, for example—hence my reference to Article 5. Article 5 is concerned with the type of measures that will be needed in the planning process to enable the Water Framework Directive to be properly implemented.

It is very difficult to see how the framework's objective of reducing, for example, diffuse pollution will possibly be achieved unless those changes are given the kind of urgency and planning that is needed. If the Government do not achieve the timescale, which my amendment also requires them at least to set out, it will cost us all in infraction proceedings.

More importantly, perhaps, the Minister will remember that the noble Lord, Lord Haskel, spoke exceedingly well in Grand Committee of the costs to industry—not only the costs of all the lost opportunities that innovation will bring in having industries that seek to clean up pollution. They are opportunities to be grasped and not to be taken at the last minute.

Article 8 is about monitoring surface and groundwater status. That work will tell us what needs to be done and where, and how difficult it is likely to be. Again, there is no use in leaving that until the last possible moment.

I hear the Minister's remarks that there is plenty of time and that people are fully seized and prepared to put the Water Framework Directive into action in the timescale. However, since the Bill left this House, when the Minister asserted that that would happen, I have spoken to all sorts of people, from local authorities throughout the country, those concerned with development control issues, developing local plans, spatial planning and transport, who are unaware of the demands that the Water Framework Directive will make, if they are aware of it at all. It is an extremely serious situation. If, at least, the provisions were included in primary legislation, the Government would have made a statement that it was important. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2, at end insert Amendment No. 2A in lieu of the words so left out of the Bill.—(Baroness Miller of Chilthorne Domer.)

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I support the noble Baroness, Lady Miller of Chilthorne Domer. Throughout the proceedings we have run a duet, supported by other noble Lords around the House, who are unfortunately absent, on the need to include in the Bill the Water Framework Directive responsibilities. It is a timely occasion, as there will not be a water Bill for many years to come. I wish to add to the noble Baroness's comments.

In his letter on the Water Framework Directive, the noble Lord, Lord Whitty, said:

"Clause 2 of the Bill simply provides an enabling power to implement aspects of the Water Framework Directive—it does not transpose the Directive. An enabling power already exists in the European Communities Act. Formal transposition of the Directive must be achieved by 22 December this year".

The letter was originally sent on 12th September. It continued:

"The Government published a consultation paper in August with proposed draft transposing regulations. Our consultation period runs until October".

I ask the Minister whether that consultation has finished; what has happened to it since then; and will the aims be achieved by 22nd December, bearing in mind that it is now 13th November? The noble Lord said:

"You will remember from the exchanges during the Bill's passage through the Lords that the Government firmly believes that there is no need to depart from the longstanding practice".

He has referred to that today. He adds:

"The amendment to leave out clause 2 reflects this".

The noble Baroness, Lady Miller, has said that the changes are major and will affect us whether we are individual users or business users, in whatever capacity. Can the Minister assure us that everything that has come from Europe has been transposed using the European Communities Act? Are other important things being dealt with differently, or is just this Bill involved?

The Government's reply to the Water Framework Directive, which was printed on 4th June 2003, underlines the importance of what the noble Baroness is trying to do. Chapter 1, paragraph 1, states:

"The Water Framework Directive offers the potential of enormous environmental and social benefits, but at the same time it will dramatically affect the ways in which farming, industries and others conduct their activities. Therefore the first—and perhaps over-riding—conclusion of our inquiry is that the Directive needs much greater public promotion".

That is the exact issue on which the noble Baroness has just touched. At chapter 10, on page 11, it clearly states:

"The Government should now clarify the timetable for completion of the strategic review of diffuse pollution from agriculture".

It continues:

"We trust that the review will consult as widely as possible about the scale of the problem, and the strategies and resources needed to bring this most intractable of pollution sources under control".

Most importantly, it states:

"Given the likely impact that dealing with diffuse pollution will have on the agriculture industry we recommend that the review assess carefully the financial implications of the Directive for the agricultural industry to ensure that costs of implementation for this sector are proportionate in respect of its present ability to pay".

I cannot help but reinforce that point. It is hugely important.

I now turn to page 13, chapter 15, which deals with administration and the directive. It states:

"The Directive requires legal effect to be given to the Directive by December 2003".

It is now 13th November, so when and how?

Page 15, paragraph 20, on integration and powers, states:

"We strongly recommend that the Government begin now to develop the arrangements, agreements and protocols which will be needed to ensure that the river basin management plans drawn up by the Environment Agency as competent authority carry sufficient force—and to ensure that the Agency is required to take into account the views of others in drawing up the management plans".

There are many other examples that I could cite, but those are the particular ones to which I wish to refer tonight.

The Minister should be in no doubt that there is extreme concern, not only on the part of noble Lords on these Benches and others in the House, but also in the wider domain outside. The Government need to explain more fully why they think that the measure will not be necessary and, even more importantly, how they will achieve their own objectives. I would be grateful if the Minister would answer those questions.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Food, Farming and Sustainable Energy)

My Lords, the first answer to the question asked by the noble Baroness, which, in a sense, is the key answer, is that the vast majority of European regulation is implemented under the European Communities Act 1972. It is very rare that we use primary legislation. In this particular respect, we have been through three periods of consultation on all aspects of the Water Framework Directive. The consultees, the stakeholders, the industry, the consumers, and those representing environmental concerns were all involved in that process.

The noble Baroness rightly referred to the time-scale. The Government intend to bring forward regulations following that consultation—which finished in October—next month. That is the normal process. A whole range of people have been engaged in that process. The noble Baroness, Lady Miller of Chilthorne Domer, says that nobody understands it, but I cannot accept that. All those people have been involved. Indeed, they would expect to be involved in that degree of consultation over proposed regulation on an extremely complex and—I agree—vitally important piece of European regulation.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, I did not say that people did not understand it, I said that those involved in planning, development, control and spatial planning were barely aware of it.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Food, Farming and Sustainable Energy)

My Lords, perhaps I misunderstood. I thought that the noble Baroness said that people could not understand why the Water Framework Directive was not in this Bill. However, those same people have been consulted about the Water Framework Directive over a period of years, at least since March 2001—in some cases earlier than that because the directive was in a draft form.

It would require very special circumstances for us not to use the normal process, especially when we are 99 per cent of the way through it, rather than put in this Bill at this stage a particular form of ability to transpose a part—admittedly an important part—of the Water Framework Directive. I am afraid that I have not heard tonight or in earlier discussions any reason why we should depart from normal practice in that respect. I therefore hope that the noble Baroness will not pursue this matter tonight.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, before the noble Lord sits down, he said that legislation would be brought before Parliament next month. We have no more time in this Session. When we return we start with the Queen's Speech, which will take us to the end of the first week of December. Is the statutory instrument already written or is it not in being? If 99 per cent of it is ready, what is not ready?

We want it in the Bill because this is a major change; it is not a minor change. I suspect that many of the statutory instruments taken through in the normal way are of a minor rather than a major nature. That is why, on these Benches, we are trying to push the Minister further than he is obviously willing to go. Perhaps he could comment on my two questions.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Food, Farming and Sustainable Energy)

My Lords, I am unsure of what else I can say. The fact is that we are well through the process of drafting, but it is not quite completed. It is scheduled to be in a form to place before Parliament next month. Everyone who has been consulted expects that to be the way in which we proceed. I do not understand why, either at earlier stages or now, we should propose to shove into the Bill a partial transposition trigger. As everyone recognises, the actual implementation will take time. It is a massive change to the way in which we regulate water. But the whole of it can be done under the European Communities Act in the normal way. The noble Baroness is wrong to say that it applies only to minor pieces of legislation. There are some serious Euro-sceptics on both our Back Benches who complain about it, but huge parts of European regulation are used in that way. It is the way in which Parliament and successive governments have seen fit to transpose European regulation.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Liberal Democrat

My Lords, I am sorry to interrupt the Minister when he is in full flow. Is he saying, in code, that there are some legal procedural difficulties with incorporating the EC directive into UK legislation in the way that is proposed in the amendment and that he is prevented from accepting it because of legal advice?

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat

My Lords, I thank the noble Baroness, Lady Byford, particularly for her support. I can understand the Minister having difficulty hearing me, but there is a very good reason why the "normal way", as he puts it, of transposing environmental directives—as I said at the beginning of my speech—is not satisfactory. We have the worst record in Europe.

That said, I am surprised that the Minister has not heard the voices from the consultations that came to me and to the noble Baroness, Lady Byford, from the industry, the utility sector and the environment, which said that it was important that the directive was in primary legislation. If there have been three consultations, surely it cannot have escaped the Government's notice that that is what everyone on the outside concerned in any way with water has been saying.

That said—bearing in mind that I cannot continue to speak for much longer because my voice will give out and that there is one further amendment I wish to move today—it is with great regret that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.