Clause 10 - Amendments relating to section 9

Water Bill [Lords] – in a Public Bill Committee at 4:45 pm on 16 September 2003.

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Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs) 4:45, 16 September 2003

I beg to move amendment No. 21, in

clause 10, page 11, line 10, leave out subsection (3).

This amendment may be unnecessary. I seek clarification because I suspect that this part of the Bill has been superseded by the 20 cu m allowance. Although I said that the Environment Agency should have some responsibilities to protect certain abstractors, I suspect that this part of the Bill does not relate to that. Provided that that is correct, I will have no problem withdrawing the amendment.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I can confirm the hon. Gentleman's interpretation. We have covered the details in the previous discussion.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Ms Sue Doughty Ms Sue Doughty Liberal Democrat, Guildford

I beg to move amendment No. 184, in

clause 10, page 11, line 25, after 'not', insert 'significantly'.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss amendment No. 185, in

clause 10, page 11, line 39, after 'would', insert 'significantly'.

Photo of Ms Sue Doughty Ms Sue Doughty Liberal Democrat, Guildford

The amendment seeks clarification on the balance between environmental protection and the interests of mining and quarrying companies. Mining is a consumptive water user. It is not a closed system, and it alters the geographical location and quality of water. In whose interests is the balance weighted? We seek clarification from the Government on how much of an impact water conservation must have on a company's operations for that company's interests to outweigh conservation needs. The Bill does not make that clear.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

Subsection (5) allows the agency to issue to companies conducting mineral exploration a notice setting out measures that they must take to conserve water. The amendments relate to subsections (5) and (6). Subsection (5) allows the agency to make that notice clear, whereas subsection (6) provides a mechanism to appeal against the notice if the mining company disputes the conditions that are being applied.

The amendments would change the emphasis, meaning that the mining operator could appeal to the Secretary of State against a conservation notice only if the notice significantly interfered with the mineral winnings. We do not believe that that is right, as it would narrow the conditions in which a group of extractors can appeal.

I understand the hon. Lady's point, but it is a matter of balance. The agency has the power to apply the conditions, which we think is right—the Bill is about water resource management—but, as several hon. Members have said, people have legitimate business interests and they must have the right to appeal if they feel that the conditions are unreasonable. We think that the balance in the Bill is right.

Photo of Ms Sue Doughty Ms Sue Doughty Liberal Democrat, Guildford

I thank the Minister for that explanation. We do not wish to restrict the reasonable right of businesses to operate in the way that they expect, as long as they are being managed within the provisions described by the Minister. Having heard his explanation, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I beg to move amendment No. 22, in

clause 10, page 11, line 46, leave out

'may', if he thinks fit'

and insert 'must'.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss the following:

Amendment No. 23, in

clause 10, page 12, leave out lines 10 and 11.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

This is a matter of clarification. I am seeking to add the word ''must'', rather than allow the Minister the facility to make the judgment for himself. It is important to note that the Secretary of State

''may, if he thinks fit''

allow a local inquiry or appeal, but that would be essential. I hope that the Committee will agree that allowing the Secretary of State to do as he ''thinks fit'' is probably less efficient than ensuring that he persists with a local inquiry or affords the appellant and the agency an opportunity to appeal before being heard by a person appointed by the Secretary of State. It is not a terribly complicated amendment.

Amendment No. 23 would remove lines 9 and 10, which state that the decision of the Secretary of State on any appeal against a conservation notice shall be final. If an appellant felt that the Secretary of State was wrong, he ought to have the right to go to court, and the amendment would allow that to take place. These are not major changes, but just a little tidying up. I hope that the Minister has an interesting reason why that may not be possible.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I am in something of a quandary because I agree with one of the amendments and not the other. Let me try to elucidate. The first amendment seems entirely sensible. It is a matter of natural justice that there should be a proper process for dealing with appeals. I am concerned that, as I read the provision, the Secretary of State could simply say, ''That's it, I've decided'', without the matter being properly examined. The Minister may say that that will not happen, in which case I do not see why it should not be a standard process for a local inquiry to be held, or for the opportunity afforded by new section 199A(3)(b) to be used. Those two methods seem entirely acceptable.

I do not know in what circumstances neither process would be triggered, and that is what I want the Minister to clarify. Are there circumstances in which neither an inquiry would be held nor the opportunity afforded for appeal and, if so, what are they? Unless there are very good reasons, it seems to me that one of those two options ought to apply.

On the second amendment, I suppose that someone has to take the final decision. I would ask the Minister to confirm that, notwithstanding the terms of the

clause, it would be open to a person appealing to pursue the matter to judicial review if he or she felt that the Minister had misapplied the law. If that opportunity is there, the decision of the Secretary of State is not final. I should be grateful for confirmation of that.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs 5:00, 16 September 2003

I think that I can provide that information. Amendment No. 22 relates to clause 10(6). As has rightly been stated, that maintains the current provisions for appeals against a conservation notice issued by the agency in response to a notice of intention to drill bore holes to search for or extract minerals underground. That part of the provision enables the Secretary of State, as is the case now, to arrange for an inquiry or hearing if he or she thinks that it would be appropriate, and it goes on to require the Secretary of State to arrange an inquiry or hearing if the appellant or the agency requests one. The interests of the appellant and the agency are therefore catered for. The amendment would remove any discretion, obliging the Secretary of State to hold a hearing or inquiry regardless of the wishes of the appellant, the agency or anyone else. That seems very restrictive.

Amendment No. 23 seeks to remove the reference to decisions by the Secretary of State on appeal being final. In answer to the point made by the hon. Member for Lewes, I can explain that appeals are normally decided by the Secretary of State based on the recommendation of an independent inspector, just like planning appeals—there is a process for that. Therefore, further scope for appeal should properly be limited to matters that are appropriate for consideration by a judicial review.

Once a decision has been made in the planning process, where an appeal and the recommendation of an independent inspector are involved, that is it. However, there is the opportunity for judicial review. That will still be possible under the Bill. The clause does not exclude judicial review in the event of an error in law or procedure; the safeguard is still there. The amendments are unduly inflexible and do not allow for an element of discretion relating to the circumstances. The safeguards that hon. Members are asking for already exist.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I am grateful to the Minister, particularly for his comments on amendment No. 22. Whether the Secretary of State thinks it fit to

''afford to the appellant and the Agency an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose'',

or whether he must do that hardly makes a difference. Whether the Secretary of State wants a local inquiry to be held is different, and I accept that that might require the him to use his own judgment. However, it is not necessarily a bad thing to insist that the Secretary of State allow the appeal process to speak to a third person.

I take the point that the hon. Member for Lewes made about amendment No. 23 and whether the

''the decision of the Secretary of State on any appeal against a conservation notice shall be final.'',

and I am willing to let that amendment fall. It is reasonable that the Secretary of State should have the responsibility and take the decision. However, I do not see why the Secretary of State should have the opportunity to wriggle out—

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

May I draw the hon. Gentleman's attention to lines five to seven on page 12? I have had a chance to look at them more closely while he has been speaking. I do not want to do the Minister's job for him but, as I read it, the Secretary of State is required to have such a hearing if requested to do so by the appellant. That seems to be the essential safeguard that both of us are, properly, looking for.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs)

I am grateful for that information. I agree with the hon. Gentleman and therefore I shall not press the Minister any further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.