Clause 6 - Existing impounding works: works notices

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

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Amendment moved [this day]: No. 7, in

clause 6, page 6, line 10, leave out subsection (2).—[Mr. Wiggin.]

Question again proposed, That the amendment be made.

Photo of Sir David Amess Sir David Amess Conservative, Southend West 2:30, 16 September 2003

I remind the Committee that with this we are discussing amendment No. 8, in

clause 6, page 6, line 15, at end insert

'within a specified time limit'.

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

I welcome you back to the Chair, Mr. Amess. These are minor probing amendments, but I thought that it would be helpful if they were included. Going back to the original Water Resources Act 1991, this aspect of the Bill is succinctly covered in the old legislation. It is short, straightforward and pretty clear. By tabling the amendment, I hoped to discover from the Minister what advantage the new wording delivers. I am sure that he has plenty to say on that, but I thought that the amendment would be helpful.

The purpose of amendment No. 8 is to treat the Environment Agency in the same way as it treats other people. That would be constructive. We are dealing with empowerment of the agency. We are giving it quite strong powers that, if used wisely, will help the environment, but we also have a duty to secure some constraints on the agency to ensure that none of the new powers is taken too far. If the Minister could throw some light on that, we would be grateful.

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

Amendment No. 7 would remove the definition of a works notice for the purposes of the clause. It would broaden the scope of the agency to include whatever it wanted in such a measure. I do not know whether the intention is to limit the agency's powers to use works notices, but it would not achieve that. The subsection limits what a works notice can include, and although, of course, I do not expect the agency to misuse the power in any way, the definition will provide some protection to the owners or operators of those works. There are no current powers to serve works notices on impounding works that are causing problems. This provision provides the ability to do that.

On amendment No. 8, I refer the hon. Gentleman to page 36 of the Bill, lines 33 to 35. They do precisely what I think he intends by his amendments. The relevant provisions are incorporated into the works notices provisions by subsection (3). I hope that that gives him the answer that he was looking for.

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

I am grateful for the second part of the Minister's answer. That allays my fears on that aspect of the legislation. The first part is covered best by subsection (2)(a), which deals with such works or operations as

''appear to the Environment Agency to be required for the purposes mentioned in subsection (1)(a) or (b)''.

That relates to the protection of the environment. It is a pretty-wide ranging power. It would not be beyond the wit of the Environment Agency to include just about anything within it. The Minister argues that by removing that part of the clause, my amendment would widen the powers, but I suggest that they are already wide and that my proposal would not necessarily do exactly what he says.

I recognise, however, that my simple deletion would possibly not be the best way to achieve the objective. I am happy to withdraw the amendments safe in the knowledge—a nod from the Minister will do—that we are looking at constraining some of the agency's powers so that they are proportionate. That is a tremendous word to use in the circumstances, particularly as the Minister used it earlier when we talked about other wide powers having unforeseen consequences. He said that ''appropriate'', ''cost-effective'' and ''proportionate'' were the criteria to be used, and with that in mind, I am happy to 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. 9, in

clause 6, page 6, leave out lines 21 to 23.

I am once again seeking clarification. The amendment would remove the words:

''including any power to make regulations or give directions, but references in those provisions to the Secretary of State shall be treated as references to the appropriate authority.''

It is not the clearest bit of legislative prose, but I believe that it empowers the Secretary of State to do just about anything that he or she feels is appropriate, which is an enormous widening of powers. I may be mistaken, and I again seek comfort from the Minister that the Bill will not do that. We should be proportionate—that is the word for the afternoon—in the powers that we allow to be adopted in the legislation, and I am concerned that the Bill is more generous than it should be.

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

The power of the Secretary of State is subject to a range of provisos and limits, some of which are set out in the Bill and some of which are the subject of normal parliamentary processes. The hon. Gentleman explained that the amendment is about the Secretary of State's powers. It might appear to remove the Secretary of State's power to make regulations on works notices, but it would not achieve that. The amendment would remove only the ability of the National Assembly to make regulations for Wales, which seems a little hard on Wales.

The regulation-making powers, which are clarified in the lines that the amendment would delete, relate to the form and content of works orders, the consultation to be undertaken locally, compensation to any person on whom a right of entry to undertake the works is

imposed and arrangements for the appeals. I would have thought that the hon. Gentleman would support such provisions. Far from extending the powers of the Secretary of State, they protect those who may be affected by the use of the works notice. I understand the hon. Gentleman's point, but the Secretary of State is constrained by the lines that he wants to delete.

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

I am grateful for that explanation. I did not read the Bill in that way, but on the strength of the hon. Gentleman's comments, 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. 11, in

clause 6, page 6, line 33, leave out subsection (7).

If the agency is of the opinion that proceedings for an offence under subsection (4) would afford an ineffectual remedy against a person, subsection (7) gives it the power to appeal to the High Court. Although I recognise that we may be dealing with both individuals and huge companies, I am not sure that that is the best way to empower the agency. It makes it the judge of whether a company can afford to deal with it, which I find difficult to understand. The law should apply equally, and it should not be up to a Government agency to decide which offenders should be punished by which institutions. It is possible that the drafting is misleading, but I suspect that the subsection allows the Environment Agency to offer different punishments to different people. I am uncomfortable with that.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I have two concerns about the subsection, for slightly different reasons. If a person fails to comply with a works notice, subsection (6) provides that the Environment Agency may

''do what that person was required to do and may recover from him any costs or expenses reasonably incurred''

in doing so. That seems entirely appropriate, and is in line with, for example, planning procedures, in which a council can restore a listed building and recoup the money from the owner of the building who has ignored the notice to repair it. There is nothing controversial about that. If subsection (6) contains a remedy, I do not see why subsection (7) is included—it adds nothing to subsection (6).

I agree that the agency should not perhaps make legalistic judgments. I also wonder why we are scrutinising legislation that may lead to an ineffectual remedy. If those who drafted the Bill believe that that might be the case, we should sort it out at this stage, rather than waiting for a problem to occur in future.

I therefore believe there to be three problems with the clause: the duplication of the powers given to the agency in subsection (6) by subsection (7); the question of whether the agency is the right body to make legalistic judgments; and whether we anticipate that the remedies will be ineffectual.

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

I can answer the hon. Gentleman's points. The amendment links to the previous amendment. It would remove from the agency the

power to seek a civil remedy—an injunction—to deal with an immediate problem. The subsection gives the agency the power to seek an injunction, which can be obtained from the High Court but not from the Crown court.

Immediate action cannot always be achieved by prosecution or the threat of it. It is envisaged that the power to seek an injunction would be used only in rare circumstances, in which an activity is under way that is causing damage, or has the potential to do so. The power is permissive, and will be used by the agency only when it considers that immediate action is necessary. That is likely to be in cases in which a works notice is not achieving its objective of remedying an environmental or water resource problem. If that power were removed, it would undermine the ability of the agency to deal with such a problem, and could lead to continuing environmental damage. That is the intention behind the inclusion of the subsection.

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

Although that is a reasonable explanation, it is not relevant because the clause covers existing impounding works. If the works are already occurring, immediate action will not be required, because the situation will have been in existence for some time before the Bill is enacted. I therefore do not accept that the Minister's reply is accurate, because he suggests that such a situation will suddenly appear, when existing impounding works must have been going on for quite a long time.

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

Such action may or may not be required. There may be profit in the activities that are currently taking place that is greater than the impact of the criminal sanctions. The power enables the agency to take immediate action in circumstances in which an activity needs to be stopped because it is causing damage.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I do not dissent from the objective stated by the Minister. Perhaps I am being rather dim, but can the Minister tell me why the Environment Agency cannot use the powers in subsection (6) to achieve that, without the need for the addition of subsection (7)?

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

The answer to that is that it is a matter of speed. Taking an injunction out under subsection (7) would be a much faster process. The court, rather than the agency, will decide whether an injunction should be granted, depending on the particular circumstances. With regard to the hon. Gentleman's point about the powers of the agencies, the courts therefore represent a safeguard. I would have thought that we would all be keen to see action taken in a situation in which there is a serious risk of immediate damage.

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

There are already some fairly draconian measures that can be taken against people who break the law. I learned that the words

''on conviction on indictment, to a fine.''

in subsection 5(b) refer to a fine from the High Court. The Minister already has the power to refer anyone breaking the rules to the High Court, so subsection (7) is again unnecessary.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

Does the hon. Gentleman agree with me that if the issue is speed, which elicited his last response to me, it could also be covered by subsection (6)? It states:

''If a person on whom a works notice has been served under this section fails to comply with any of its requirements, the Agency may do''

and so on. The phrase ''any of its requirements'' could involve a time scale, which could be as little as 24 hours. I do not understand why that does not cover the point.

Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs) 2:45, 16 September 2003

That is absolutely right. Earlier, we debated subsection (2), and what can be specified in the notice, which could also include a time period. I am grateful to the hon. Gentleman for pointing out the part of the argument to which subsection (6) relates. I stand by my amendment: subsection (7) is not necessary.

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

Again, I will try to explain the situation. The problem is that a conviction or indictment under, I think, subsection (6)—

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

I am not sure about that. Conviction or indictment means going to a Crown court, which takes time. The High Court can accept emergency actions and the agency can go there out of hours, which it cannot do in a Crown court. It might help hon. Members if I lay out the sequence of events that subsection (7) will permit. In the event of a problem with unlicensed impounding, the sequence of action would be to serve first a notice requiring the action to be applied for, and secondly a works notice if urgent action is needed. The problem is that they may be ignored. It is all very well saying that the power exists, but what happens in that case? The next step would be an injunction if the works notice is ignored. Finally, the agency may have to do the work itself in default.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

The Minister helpfully sets out the sequential arrangements, the second of which is serving a works notice. Under subsection (6), if the notice has been served and any person fails to comply with its requirements, the agency may do what it needs to do. Thus according to subsection (6) there is no need to take out an injunction.

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

It is a time issue. The hon. Gentleman says that the agency may do the work, but it has to go through processes to do so, including that of access. From experience of previous such issues, I imagine it would need the court's authority and an injunction to do so. That is my interpretation of the matter.

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

This has been a useful debate. The Minister has not yet convinced us that subsection (7) is vital to the Environment Agency. It seems to be the icing on the cake—the extra powers that the agency might like—but it is not convincing to say that it is for alacrity. The proposal deals with existing impounding works, which are already doing tremendous damage to the environment, so I cannot accept that it is a useful power for the future. Any future impounding will be covered by a separate provision, and will be

automatically in default of a licence, and therefore subject to a completely separate procedure.

We are talking about works that are already going on, about someone who has taken his concrete mixer to the beach or stream and started impounding, today, yesterday or weeks ago. I do not understand why the speed is relevant, and I will therefore find it difficult not to press the amendment. However, I can see that the Minister is seeking guidance, perhaps from minds greater than my own, so I shall remain on my feet until he is ready to dive in and reply.

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

I confirm what I have been saying: it is a final resort to seek powers to go on to someone else's land, as that involves all sorts of restrictions. Notices can be served, but that does not give the agency the power to intervene and, if necessary, rectify. A court injunction may be needed for that.

I repeat that that is an extreme example, but we must ensure that all avenues are covered in a case in which damage is caused and the landowner, for whatever reason, refuses to co-operate. There is a safeguard in place, which is that the case must be made to the High Court before an injunction is served. That kind of fall-back power should be included in the Bill.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

We are now given the new reason of entering land. I do not dismiss that as not being an important legal aspect—it is relevant—but if subsection (6) does not give access to land, what does it do? It seems to be an empty subsection. If it does give access to land, subsection (7) is not necessary, but if it does not, it is unnecessary itself. Both subsections cannot be necessary.

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

The Minister has done a sterling job in defending the current drafting. I said earlier that we are keen to make progress, but I do not see how I can withdraw my amendment unless the Minister is prepared to consider the dilemma of subsections (6) and (7) and perhaps reword them on Report.

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

We are getting into heavy-duty legal issues, but if it helps the hon. Gentleman, I will write to him—and send a copy to the hon. Member for Lewes (Norman Baker)—with the detailed reasons for the differences and why subsections (6) and (7) are both important. It is fairly clear that their principal importance is that they are emergency powers, but I will write in greater detail if that will help.

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

I am extremely grateful to the Minister, and I hope that the letter that he wrote to me—

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

Indeed, it appeared this morning, but only after the morning sitting. However, if the Minister writes, I will be grateful. I am also grateful to the hon. Member for Lewes because we have teased out some real difficulties thrown up by the drafting of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.