Clause 19 - Protected rights

Water Bill [Lords] – in a Public Bill Committee at 11:00 am on 18 September 2003.

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Photo of Bill Wiggin Bill Wiggin Shadow Minister (Environment, Food and Rural Affairs) 11:00, 18 September 2003

I beg to move amendment No. 38, in

clause 19, page 22, line 32, leave out 'four' and insert 'six'.

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

With this it will be convenient to discuss the following amendments:

No. 119, in

clause 103, page 128, line 40, leave out 'four' and insert 'six'.

No. 120, in

clause 103, page 128, line 43, leave out 'four' and insert 'six'.

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

Protected rights are an area where the Government have made a significant change to the current situation, effectively by taking away protected rights and ensuring that all people who had licences to abstract in perpetuity now have a time limit on that, albeit one of 12 years—it may be for longer, but will be with any kind of certainty for only 12 years. The change is intended to address the problem of people who have a licence but do not use it.

I feel that the wording in the Bill is inadequate, because the period of reference—the time limit—in new subsection (8)(a) is four years. I have sought in

amendment No. 38 to make it six years. Hon. Members might wonder why I have chosen six years; it is because it fits in with CAMS, the catchment abstraction management strategies, which are the new way of assessing abstraction. Particularly with the Government's intention to license genetically modified crops, crop rotation will become an even longer and more important cycle. A four-year period does not even take into consideration the weather, which I think generally operates on a seven-year cycle. Because CAMS has a six-year period, I felt that we should have a six-year period in the Bill to tie in with that.

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

I understand the hon. Gentleman's points about time limiting and his logic about the six-year period. This is another arbitrary decision on a time scale. He will know that some organisations want a shorter period, while others want a longer one. However, we think that the four-year period reflects the needs of the situation better.

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

I know that the Minister has many notes in front of him, and he may not have found the one that tells him why he chose four years, but I hoped that he would justify the four-year period. Unfortunately, he has not done that.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

This is an important matter for farmers in particular, and the hon. Gentleman put a convincing case for why the period should be six years. If I understood it correctly, the Minister's response was simply that a variety of representations were made and that he chose something in the middle. Is that also the hon. Gentleman's understanding?

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

I am reminded of the little boy who stuck his finger in the dyke, except that this time the Minister stuck his finger in the air and guessed a number. Unfortunately, four years is not the right period. Considering the weather cycles, seven years should be the right period. The Government chose a six-year period for CAMS, so I moved in their direction in proposing six years, when the amendment should probably have been for seven years. I am disappointed that the Minister has not got a better excuse for choosing four years, and if he does not come up with one, we should vote on it.

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

I remind the hon. Gentleman that the Bill is about sustainable water management. With that in mind, we need to strike a balance in the effective use of water. If people are holding an abstraction licence but not using it, they are preventing other potential abstractors from acquiring a licence. There are legitimate reasons why people hold on to licences, but four years is a considerable time, and if a licence is not used within it, it is not unreasonable to revoke the licence. It is a question of trying to reflect the needs of proper water resource management and recognising that there may be legitimate reasons why people have not used a licence during a certain time scale. Four years is a reasonable balance.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

Let me help the Minister by putting this question: he said that four years is a reasonable time scale, which is a catch-all answer, but why did he choose four years and not three or five? What is the magic with four?

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

The current period is seven years, as hon. Members know. We think that seven years is too long—

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

Because, as I mentioned, someone who is not using an abstraction licence may be stopping other people who have a legitimate need for one. It is a question of ensuring the proper use and management of water. Other people may be applying for licences while someone is sitting on one, and seven years is far too long a time for that to happen. The proposed four-year period strikes a balance between the needs of an abstractor, which we recognise, and the needs of licence applicants. A protected right is not same as a licensed abstraction, and the period relates to an abstraction that does not take place. Furthermore, the four years can be extended by the agency.

Photo of Hugo Swire Hugo Swire Opposition Whip (Commons)

Will the presumption be that the licence will be extended after the four years, which is what the Minister said earlier? At the end of a four-year licence, will the presumption be that it will be extended automatically, even if it has never been used?

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs 11:15, 18 September 2003

I am not sure that ''presumption'' is the right word, although it would be fair to say that there is a presumption of renewal. The four-year period can be extended by the agency. If the licence holder has a legitimate case for wanting a longer period, the agency has a responsibility to listen. It should consider the business case, the issue of need and all other relevant matters. Four years is an acceptable period, bearing in mind that it can be extended if an individual licence holder can make a case for that.

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

Earlier, the Minister referred to the fact that one might be able to trade licences—somebody might not be using a licence and others might want it. Would not the provisions take care of that point, so we could allow a longer time for the licence?

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

I should point out that that relates only to unlicensed abstractions, not to licensed ones. That is why there is the four-year period. A protected right is a device that protects existing abstractors against later licensed abstractors, which is what I mentioned. The agency is required to ensure when granting new abstraction licences that holders of protected rights can continue to abstract within the terms of those protected rights. We have to strike a balance, and four years—which can be extended if the circumstances allow—is the right balance.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health

The point about the agency being able to extend licences is covered by subsection (9)(b), which does not say ''under any circumstances'', but under circumstances in which abstractions authorised under the old licence were

''planned to be carried out at intervals of more than four years''.

That is a subtle text. It makes it difficult if abstractions were originally planned to be carried out not at intervals of more than four years but more frequently or continuously, but a change occurred to a business or its circumstances. By the way in which the subsection is worded, the agency would be

constrained from taking the change of circumstances as meaning that the original licence planned for the abstractions to take place at intervals of more than four years. It is not as easy as the Minister implies for the agency to extend the period before the protected right is lost.

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

The power is there, but it has to be justified. The criteria to which the hon. Gentleman refers have to exist. Although there are qualifications in the text, the right is there. If he wants clarification, I shall be happy to write to him.

Photo of Mr Simon Thomas Mr Simon Thomas Plaid Cymru, Ceredigion

What appeared initially to be a rather arcane amendment has teased out an interesting line of thought—or lack of it—from the Government. The hon. Member for Leominster advanced several cases as to why the period should be six years. I am not sure about the weather, but if he is, he should be in a different job and making money out of seven-year predictions.

In terms of planning for changes that might be required in advance of the introduction of GM crops and for different periods of crop rotation, there is an argument for six years. The Minister seems to be saying that six years is unreasonable, and that it should be four years, but we have heard no evidence as to why it should be four years. We have not even heard evidence that the seven-year period was an obstacle to water conservation. If the Minister can tell us why it has been a problem, perhaps we will be able to decide that six years is too close to seven, so four is right. Not having heard the arguments, I tend to think that there is nothing against six years, so we should try to protect the licence holders in the way that has been suggested.

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

We are talking about the right to abstract and where it is not being exercised. In the Bill, that right lapses after four years or any such period as is agreed by the Environment Agency, which was a point that has been made. That is to prevent unused abstraction rights from blocking access to water resources through the prevention of new licence issues.

In reality, that period should be as low as possible in terms of water resource management. If people are not using their rights, other people may want to apply for abstraction licences, and it is not right and proper for them to be excluded in those circumstances. We of course recognise that there may well be a case for keeping licences that are not being used. Also, the loss of a protected right does not stop abstraction taking place. The unlicensed abstraction can continue lawfully, but the status of the abstraction may change.

The amendments would change the period after which a protected right could lapse from four to six years. We believe that the proposed, normal four-year period is right. That goes back to the issue of balance. The period should be limited to as short a time as possible, for good reasons. There may be good reasons to have a six-year period in relation to a protected right, although seven years is too long, and six years does not make a very big difference, because it is reducing the period by only one year. To give the agency effective powers, four years is the most appropriate figure, and that is why it is in the Bill.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

We are still struggling, or at least I am. Will the Minister explain why he has concluded with his officials that the present seven-year period should be reduced to a four-year period? What problems have arisen?

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

The main problem is that the Bill is about water resource management. People might want to abstract, yet others might have protected rights but not be using them, thereby stopping that abstraction, and in some cases that may put increased pressure on other abstractors. If there is not a requirement, other abstractors should be considered. However, the question is how long that protected right should be given. The period is currently seven years, but the proposal is for it to be four years, which is better in respect of the balance between the needs of the abstractor and those of people who are coming in.

Photo of Hugo Swire Hugo Swire Opposition Whip (Commons)

I am not sure that we are enlightened by that argument. There is nothing new in what we are discussing, but will the Minister, with all his experience in such matters, say how many examples there have been of people being denied licences for abstraction because others have been holding on to licences but not using them? Is that a problem that his Department has encountered? If so, will he say how many examples of it have been encountered in any given year and whether that was a material reason for arriving at his rather strange conclusion?

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

I do not have those figures to hand, but I am sure that I can try to find them for the hon. Gentleman. They may even appear in the course of

this discussion—and, by amazing coincidence, they have just come to me. The actual figure is none. However, before the hon. Gentleman interrupts to claim that that illustrates his case, seven years may well be precisely a time scale that makes things difficult in relation to taking the relevant action.

To return to my point, I know that the argument is about seven, six or four. However, my own preference is to give maximum powers in relation to managing water use efficiently and effectively, while trying to take into account the legitimate needs of users. The choice that we have is either the existing seven years, which the agency, with its experience, thinks is too long, as do I, the six years proposed by the hon. Member for Leominster, which is very different from seven years, or four years, which I would prefer, as it would give maximum powers for resource management to the Environment Agency and reflect the rights and reasons of people applying now. It is a question of balance and choice. Having taken into account all the various arguments, I believe that four years is the most appropriate time scale.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health

If I recall correctly, the Minister referred to the phrase ''or any other period,'' implying that the agency could simply—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.