Clause 15 - Applications: types of abstraction licence

Water Bill [Lords] – in a Public Bill Committee at 9:00 am on 18 September 2003.

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Photo of Norman Baker Norman Baker Liberal Democrat, Lewes 9:00, 18 September 2003

I beg to move amendment No. 188, in

clause 15, page 16, line 6, leave out 'ought to be' and insert

'will be considered as if'.

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

With this it will be convenient to discuss the following amendments: No. 189, in

clause 15, page 16, line 8, leave out 'ought to be' and insert

'will be considered as if'.

No. 190, in

clause 15, page 16, line 11, leave out 'ought to be' and insert

'will be considered as if'.

No. 191, in

clause 15, page 16, line 14, leave out 'ought to be' and insert

'will be considered as if'.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

The discussion arising from the amendments will be brief. My tabling of them may be due to my past existence as an English teacher. I query the possible ambiguity in the Bill caused by the word ''ought'', which, it seems, can express a view of what should happen without necessarily compelling it to happen. I gently suggest to the Minister that our formulation, the words

''will be considered as if'',

would give a much clearer legal position and be more likely to achieve what the Government want.

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 point about making text less ambiguous when there is a case for doing so, but I believe that his amendments would make it more ambiguous. The clause enables the agency to require an applicant for one type of abstraction licence to apply instead for another type, or to group several related applications together. It might, for example, be more appropriate for an applicant to have a temporary licence, rather than to spend a lot of money on a time-limited one, so the provision would work to the applicant's advantage.

The amendments all propose to modify the basis on which the agency may require applicants to apply for different types or groups of licences. Changing the drafting throughout new section 36A(1) to read,

''will be considered as if''

rather than ''ought to be'' is to make a distinction without a difference. Those words in the amendment add ambiguity.

The key issue is that the agency must be able to decide that an application is not right. If it decides, for proper and relevant reasons, that the application ought to be different, the clause requires the licence to be treated differently. The amendment, however, would not require the agency to decide why an application should be treated differently but simply that it should be so treated. That would miss the crucial test of the agency having to justify why the licence ought to be treated differently. That is the reason for the difference in the language, and I hope that, as a result of that clarification, the hon. Gentleman will withdraw the amendment.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I thank the Minister for that explanation, and I think that he has a point. His argument that the amendment makes a distinction without a difference and that it is also ambiguous seems slightly contradictory. However, I am happy to accept his explanation, and 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. 30, in

clause 15, page 16, leave out lines 13 to 16.

The amendment deals with new section 36A(1)(d), which states that

''any such application as is referred to above ought to be accompanied by an application for revocation of an existing licence to abstract water.''

The provision is unnecessary, because that is something that the agency might have to decide when dealing with applications for abstraction licences. I understand that those who want to change the type of licence will accompany such applications with a revocation of the existing licence. That may be the key: it may be that one cannot change a licence unless one already has one, in which case the provision is more understandable. However, it seems a little too heavy-handed because it seems almost automatic that one should not be able to change something unless one already has it. I cannot return to a shop and change an item unless I have something to change. The provision seems to be over-egging the pudding a little, and I wonder why it is in the Bill; I feel that it is slightly more drafting than needed. I want to know why people should be able to change a licence if they do not already have one.

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

The hon. Gentleman has touched on the reason for the provision. The amendment would remove the agency's ability to decide that an application for an abstraction licence ought to be accompanied by an application to revoke an existing licence. The agency is most likely to seek an application for a licence simultaneously with the revocation of an existing licence when a permanent licence is to be replaced by a time-limited one—an applicant may find it advantageous to switch over. The agency would ask the licence holder to apply to revoke the current licence so that only one licence was extant for a given abstraction at any one time. Generally speaking, most people would want to revoke one when applying for the other, but the provision makes absolutely clear the procedures that would have to

be followed. It is a matter of clarification rather than of the provision being unnecessary.

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

I am grateful to the Minister for that reply, which makes sense. There is one other problem with the wording. An abstractor with a permanent licence might wish to abstract more water, perhaps not for a long period, and would have to apply to the agency. Obviously that would not be an emergency abstraction; we dealt with those earlier. A company that bottles water might have a particularly large order that will run for six months, and it might want to abstract a considerably larger amount of water for that short period. It would therefore give up its permanent licence and put itself in the agency's hands, which might well turn down the company's application when it returned to its original business.

That is a hypothetical example of the point that I am trying to make: why would anyone want to put their permanent licence in the agency's hands when the Bill contains few safeguards? The agency seems to operate on a first come, first served basis, so the clause will put a business's permanent licence at risk.

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

I repeat: in some cases, there will be advantages to the holder of a permanent licence switching to a time-limited one. Those advantages may be cost-related, or they may relate to the compensation arrangements, which are different for time-limited and permanent licences, as we will see later in our consideration of the Bill.

In response to the example given by the hon. Gentleman, I can tell the Committee that if someone holds a licence for a certain volume of abstraction, they do not have to apply for a whole new licence, but can seek a variation to the existing one, so the situation that the hon. Gentleman outlined would not arise.

Mr. Wiggin rose—

Mr. Ian Liddell-Grainger (Bridgwater) rose—

Photo of Ian Liddell-Grainger Ian Liddell-Grainger Conservative, Bridgwater

I seek clarification from the Minister, as my hon. Friend has a point. The holder of a licence is totally in the agency's hands if he wants to change that licence. If the agency chooses to delay the application for any reason, such as the investigation of land ownership, the holder could be put in the very difficult position of, say, bottling while having no licence, all because of time constraints, bureaucracy, or whatever. If that did happen, what recourse would the licence holder have? Would they have recourse to the Secretary of State to arbitrate the gap between the granting of licences, or could they appeal to the agency on the grounds that it had caused the delay? Would it not be better for the licence to be coterminous so that it could be revoked without causing a delay?

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

I cannot think of any circumstances in which a delay would occur. Bottling plants, for example, have permanent licences. If they wanted to vary the abstraction, as in the example given by the hon. Member for Leominster (Mr. Wiggin), they could seek a variation, and they would still be able to abstract while they did so. That should not be especially problematic. The agency would, of course,

want to consider the potential effects of increasing the abstraction. If the licence holder wanted to change to another licence, the existing licence would remain in effect while the application was being considered and until it was determined. As I said, I cannot think of circumstances in which a gap of the sort referred to by the hon. Member for Bridgwater (Mr. Liddell-Grainger) would arise.

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

The Minister has, once again, clarified matters. The amendment sought to clarify the wording of the clause. I am comfortable with the Minister's explanation, and 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. 31, in

clause 15, page 16, leave out line 26.

At our last sitting, the Minister was very clear that we should not make ourselves hostages to fortune with the wording in the Bill. The great word that emerged was ''proportionate''. I was not quite sure whether we were being proportionate by allowing the agency to

''arrive at the decision referred to in paragraph (a), (b), (c) or (d) . . . on the basis of its assessment of any one or more of the following'',

and then to include ''any other prescribed matter.'' The word ''prescribed'' might well mean prescribed by the Secretary of State, which would probably be acceptable. However, it may not mean that, so again I probe the Minister for a little clarification.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs 9:15, 18 September 2003

The clause enables the agency to require an applicant for one type of abstraction licence to apply for another type instead, as we have been discussing. The amendment would remove the ability of the Secretary of State to prescribe further matters for the agency to take into account. By prescribe, I mean that the matters would be in the regulations set by the Secretary of State. This is an example of the accountability that has to exist in the operation of the agency, which, in the end, is a delivery arm of the Department for Environment, Food and Rural Affairs despite its being a non-departmental public body.

I always feel a little uncomfortable discussing such provisions. In my time as a Minister, I cannot think of a single instance when the Secretary of State would have wanted to interfere with decisions made by the agency. The provision is for occasions when there might be further matters that the Secretary of State wanted the agency to take into account when making a decision on the variation of licences. It is a safeguard for the democratic accountability between this House, the Secretary of State and the agency as the delivery arm of a Department that is accountable to Members of Parliament.

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

As I suspected, this provision has a belt, braces and almost a spare pair of trousers. I draw the Minister's attention to the fact that the Secretary of State gets dragged into it all once again in new subsection(4). The interface between the Secretary of State and the agency is well covered throughout the Bill. That is why I suspect that the provision is not really necessary, particularly because, as the Minister says, the agency is a delivery arm of DEFRA. If the

agency thought that there was a problem in the offing at any stage, it would be able to talk to the Secretary of State and arrange, in less wide-ranging wording, for corrections to be made.

I suspect that later on we will come across other such wording. I am grateful to the Minister for saying that he is not particularly comfortable about this sort of thing, and that in his experience the Secretary of State has practically never had to intervene. On that basis alone, we do not need the wording and I feel that the Bill would be better without it.

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

I return to the point that the wording is there to cover all eventualities. Loopholes need to be avoided in legislation. There might be a problem in the future which has not been foreseen, and legislation might not allow the Secretary of State, as in this case, to set regulations when it might be felt appropriate to do so. The provision is simply part of the normal checks and balances that give accountability to Parliament, bearing it in mind that the buck stops with the Secretary of State. We need a legal and democratic link in legislation to cover all eventualities. The subsection is a belt-and-braces provision, and I doubt that such measures would ever be used. However, I suspect that if we did not include the provision, we would find that we needed it.

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

I wonder whether the Minister himself might become Secretary of State. I am tempted to leave the line in, but what clinches it for me is that one day I might be Secretary of State. On that basis more than any other, 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. 32, in

clause 15, page 16, line 37, leave out from 'served' to end of line 38 and insert 'within 28 days'.

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

With this it will be convenient to discuss amendment No. 33, in

clause 15, page 16, line 42, leave out from 'period' to 'or' in line 43 and insert 'of 28 days'.

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

Once again, the amendment is to probe the Government on the time periods within which the agency must operate. In an earlier sitting, we bandied about the period of five days. I have used a 28-day period in the amendment as it seemed to be a more reasonable length of time. When amending Bills, there is always a danger of somehow constraining the process. However, bearing it in mind that the Minister went for my jugular on the subject of increased bureaucracy, I point out to the Committee that the amendment is designed to reduce the agency's ability to prevaricate and to tie it to a helpful time scale.

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

I understand the reasoning behind the amendment. However, it would completely remove the Secretary of State's power to prescribe important procedural details for abstraction licensing appeals. That is not a fall-back position. The Secretary of State's role in appeals is clear, and it is a key aspect of the Bill. The amendment would mean that there was

no procedure for serving notices. It would remove the Secretary of State's ability to ensure that there are common procedures for appeals which are necessary to produce consistency.

New section 36A(6)(b) of the Water Resources Act 1991 provides that if the agency serves a notice to the applicant, it will not follow the advertising steps or proceed with the application before the end of the period within which notice of appeal may be served on the Secretary of State.

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

I am a bit confused. Does new subsection (5) refer to the notice issued by the agency under new subsection (3), the notice issued by the applicant on appeal to the Secretary of State under new subsection (4), or both?

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

I will return to that point in a moment because it would be worth first considering amendment No. 33, which would add a 28-day time limit for the agency to proceed with the application. That is parasitic on amendment No. 32, which would remove the Secretary of State's power to prescribe appeal procedures and time limits on the regulations. The hon. Gentleman asked to whom that applies, and it is the Secretary of State who can prescribe appeal procedures and time limits for the regulations.

As the hon. Member for Leominster said, the amendment would impose a time limit of 28 days. That limit would be restrictive, because it might produce a mismatch in timing between when an applicant appealed to the Secretary of State and when the agency could proceed with the licence. That might be inappropriate to the time scales of the appeal, the conditions that the Secretary of State would set, and the time at which the agency could proceed with the licence. I hope that that clarifies the point.

The hon. Member for South Cambridgeshire (Mr. Lansley) raised a specific point about new subsection (5) on the applicant's notice of appeal. I hope that those explanations are satisfactory.

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

It would be helpful for the Secretary of State if the applicant had to serve notice within 28 days. I believe that, during the recent storms, the power companies had to be notified of all compensation claims within a month.

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

On that vexed question, the one-month limit was particularly unhelpful in the storms last October, as many of my constituents found. Happily, we have managed to secure compensation for many of them anyway.

Does my hon. Friend agree that if an applicant has a right of appeal, it should be exercised relatively quickly rather than being allowed to stretch into the distance? I would not be surprised if the Secretary of State were to choose 28 days when he comes to prescribe the matters.

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

I am extremely grateful for my hon. Friend's intervention. I have constituents with the same problem and I am more than happy to accept that 28 days may not be the most appropriate period.

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

It is perfectly reasonable for the Secretary of State to specify a period. The purpose of the amendment is to obtain clarity about that period. I hope that the Minister will assure us that the point will be taken seriously.

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

I may be able to provide some helpful reassurance to the hon. Gentleman. The period is not set in stone in the Bill, for the reasons that he gave. There may well be circumstances in which 28 days is not appropriate, but I can assure him that it is proposed that the appropriate period set by the Secretary of State will be 28 days.

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

I am extremely grateful for that reply. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I beg to move amendment No. 192, in

clause 15, page 17, line 2, leave out from 'Agency' to 'and' in line 3.

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

With this it will be convenient to discuss amendment No. 200, in

clause 23, page 26, line 10, leave out from 'Agency' to 'and' in line 11.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

The amendments relate to the wording in clause 15 that is repeated in clause 23. I raise this matter as one of natural justice. Under the system set out, applicants have the initial choice as to the type of abstraction licence for which they apply. However, the agency may require an applicant to apply for a different type of licence, or for some types together. The applicant has a right of appeal to the Secretary of State against the agency's decision. That is the basis on which the clause is established—so far, so good. The Secretary of State is the impartial person who decides between the two parties and, under new paragraph (a) at the top of page 17, he or she

''may allow or dismiss the appeal, or vary any part of the decision of the Agency''.

Again, there is no problem with that sensible arrangement.

It is the next part of the sentence that worries me:

''whether the appeal relates to that part of the decision or not''.

That rather wide power seems to be given to the Secretary of State for no good reason, unless the Minister can justify that.

I shall illustrate what I am concerned about. Let us say that someone has a dispute with their landlord over the common right of passage and they appeal to an independent body. That body says, ''We're not really interested in your right of passage. We're going to make a ruling about who is responsible for the roof'', although that is not the subject of the appeal at all.

I wonder why the Secretary of State needs that decision-making power. It seems fundamentally unjust that the Secretary of State can rule on something that no one has raised, and that there is no right of appeal against that and no opportunity for any representations to be made by the agency or, indeed, the applicant. That seems to go against the rules of fundamental natural justice, so I should like some explanation from the Minister as to why the power is in the Bill. He keeps going on about all these safeguards and the belt-and-braces powers that the

Secretary of State has, but he will accept, in terms of justice, that each one must be considered and justified in its own right. If it has not been justified in its own right, it should not be in the Bill. Simply giving the Secretary of State carte blanche powers on every aspect of the Bill is not the way to approach it.

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

Straight away I can assure the hon. Gentleman that there is no question that any part of a licence could be changed on appeal unless the applicant had had a full opportunity to make representations. That will not be arbitrary. There will be no variation, and bits will not just be dismissed without people being allowed to have their say on that. In addition, the Secretary of State is subject to judicial review in the normal process of any decision making, even on an appeal process such as this.

The amendments would change the applicant's appeal process, which is provided for in the Bill, and would remove the provision that the Secretary of State may allow or dismiss the appeal, or vary any part of the agency's decision, whether or not the appeal relates to that part of the decision. I understand the hon. Gentleman's argument that checks and balances are needed on both sides. There needs to be an appropriate balance between the power of the Secretary of State, the rights of the applicant and the powers of the agency, but the amendments would throw that balance out.

As the hon. Gentleman says, the amendments would narrow the Secretary of State's powers in relation to decisions on appeal. That would limit the Secretary of State's ability effectively to direct the appeals procedure. It would also mean in practice that every appeal would relate to every aspect of every decision. That is bureaucratic and unnecessary, and it would mean—this is important in regard to the checks and balances affecting various interest groups—that abstractors could, if they wanted, rely on technicalities, to the disadvantage of proper water management. They would effectively decide what could be changed.

Such a state of affairs cannot be right, because it upsets the balance of the appeals process and the powers and duties of the Secretary of State and the Environment Agency. Although I understand what the hon. Gentleman says on the matter, the balance of responsibility and accountability is right. Narrowing the powers of the Secretary of State would make the appeals process more difficult and shift the balance unfairly towards the applicant.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes 9:30, 18 September 2003

I am happy to admit when I have been convinced by an argument, but I am sorry to say that on this occasion I have not been convinced. First, the Minister says that there will be a full opportunity for representations to be made in the event that the Secretary of State decides to vary something that is not part of the appeal. I see nothing in the clause that allows the applicant any say in such a matter. The applicant will have responded to the agency's notice, commented on it and appealed in the appropriate terms; the notice, therefore, is the thing on which the applicant will have had an opportunity to comment.

There will have been no opportunity to comment on any matter outside that, although the Secretary of State is to be permitted to use his powers on such a matter, by the phrase

''whether the appeal relates to that part of the decision or not''.

How can the applicant be said to have a right to comment on something that is not part of the decision? It is not logical.

To start the roundabout again: if the Minister is saying that the Secretary of State, who wants to comment on or make a decision about something that was not dealt with in the appeal, can invite both the agency and the applicant to make comments on the matter, that is different—I could support that—but that is not set out in the clause.

Secondly, the Minister has alluded to judicial review. Of course, that is a backstop that is always available, but it is not a justification for allowing sloppy legislation to be passed. The passing of the Bill without comment from us would be a material fact when a court came to decide whether to uphold a request for judicial review, so that argument is not a legitimate one.

Thirdly, I understood the Minister to be arguing that abstractors would be able to rely on technicalities, and that therefore it would be up to the Secretary of State to correct the ineffective notice served by the Environment Agency. If the Environment Agency serves notice correctly, there should be no technicalities for the abstractors to rely on. It is incumbent on the Environment Agency to get the notice right, and it is not for the Secretary of State to act as some sort of back-up sweeper to correct its errors.

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

Including the words in question would limit recourse to judicial review. If, without those words in the clause, an appeal were made against a decision of the agency, setting out the grounds of appeal, and the Secretary of State introduced an extraneous matter relating to the decision, a case for judicial review might arise. The Secretary of State could be claimed to have acted unreasonably in introducing that further issue. Although the Minister prays judicial review in aid, his objective may be to restrict it.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I am not sure whether his objective is to restrict it, but the effect of the clause is to restrict it.

For those three reasons, I am not happy with the Minister's response. I should be happy to listen to him deal with my points if he wishes to, but from what I have heard so far, I think I shall have to press the matter to a vote.

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

Let me try to reassure the hon. Gentleman. He is mistaken about what he expects the Bill to contain in relation to an appeal process. Appeal processes are clearly established. There is nothing unique about an appeal process in the Bill; most legislation has an appeal process. Although the reference is always to an appeal to the Secretary of State, in reality an appeal will be to an inspector, who will deal with it in the proper course of law in the

appeal courts structure and make a recommendation to the Secretary of State. That is the actual procedure. In practice, there will always be an opportunity to make representations on any of these issues, because apart from the normal guidelines and appeal processes, which this legislation follows, it is also required by the Human Rights Act 1998, to which the Government are signatories and with which all our legislation must comply.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

Will the Minister explain how it is possible to make representations on a decision that the Secretary of State has taken?

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

The Secretary of State would use the powers only if there was an appeal. If she wanted a variation, that would be discussed within the appeal process. The applicant would have the opportunity to make their case about whatever the Secretary of State was concerned about in relation to the variation that she may seek. In addition, there would be some knock-on effects to the hon. Gentleman's suggestion. Licence applications can be complex depending on what they are for. Changing part of a licence could have knock-on consequences for other parts. If those consequences cannot be given effect, the only other choice that the inspector would have would be to refuse the licence completely. I am talking about adding an element of flexibility that assists the applicant in terms of the abstraction licence.

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

In the previous sitting the Minister used the analogy of planning inspectors for the Secretary of State's decision being made on the advice of an inspector. I confess that I have not had a chance to look this up, but is he saying that if the Committee were to look at the Secretary of State's powers in relation to a planning appeal, we would find a similar provision, allowing the Secretary of State to vary any part of a decision, whether or not it related to the grounds of an appeal?

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

Yes, the hon. Gentleman is correct to use that analogy. The procedures are very similar in law, because that is what they follow. To expand on that, if the Secretary of State wanted to bring about a variation in that way, she could do it either by giving notice to the inquiry or, if for some reason the inquiry had ended, by giving notice in writing. The appellants would have the right to reopen the inquiry if they so chose. If there was a variation from the Secretary of State and the appellants had not had the chance to make their case in an inquiry they would have the right to have the inquiry reopened. The applicant would always have the right to make their case if variation powers were used.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I am sorry, but I am not convinced by that argument. I hesitate to say this, but I do not think that the analogy of the planning inspector on which the Minister relied is correct. A planning application may be refused for whatever reason—perhaps because the subject of the application would overlook neighbours—and the applicant can appeal to an inspector. The inspector will consider it, but in those circumstances he cannot say, ''Actually, the overlook is no problem but I don't like the design of the eaves, so I'm going to refuse the appeal.'' That is not possible under the planning terms, so I do not

think that that analogy holds true. What is possible here? We are assuming that appeals will be oral hearings rather than written representations. Will they always be oral hearings?

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

They can be: so they may not be. They may be written representations, in which case there is no possibility that someone can hear what the inspector is thinking.

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

It is the right of the applicant. The applicant can have the proper oral hearing. Just as in a planning appeal, he could make a written submission. The procedures are exactly the same, even to the extent that a planning appeal is in itself effectively a rehearing. A planning application goes through the planning process in local government. That is the first hearing. When it goes to appeal the whole application is reopened. As far as I can see, the procedures for appeals here are identical to planning appeal procedures.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I hear what the Minister says. As someone who has sat on planning committees for many years and has served as a leader of a district council, which is the planning authority, that is not my understanding of the planning appeal process. We will have to differ on that. One of us will be right and one of us will be wrong. An oral hearing could be chosen and the inspector could say that he wanted to make a ruling on something that is not part of the initial decision. If the parties had an opportunity to make representations, that would be an acceptable legal process. I would not have too many concerns about it. However, that is not guaranteed to happen. A written representation could be made, in which case the inspector could decide on matters extraneous to the decision.

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

But if there was a written representation and the inspector made a decision on something that was not part of the application, the applicant would have the right to reopen the hearing because there had been a change.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

Does the applicant have the right to reopen it? I asked the Minister about that earlier. Is there a formal right for the applicant and the Environment Agency to be consulted and have their views heard if the inspector takes a decision

''whether the appeal relates to that part of the decision or not''?

The way in which the clause is constructed makes it possible for the inspector to bring in extraneous matters that are not covered by the notice served by the agency and have not been considered by the agency or the applicant. A decision can therefore be taken against which the only recourse is through judicial review. That would appear to be a possible outcome.

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

No, I must make this point clear. The hon. Gentleman is again confused by the fact that legislation like this does not lay out every dot and comma of appeals processes because there are established processes of appeal in law. In law, appellants are given the opportunity and have the absolute right to make representations on every relevant matter. It is not possible to introduce new matters into an appeal and not give the appellant the

right to comment or make his case. That is not possible under the existing provisions of appeal and the legal provisions that run alongside legislation. They are not generally put in a Bill. That is where the confusion arises.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

In that case, I cannot see the point of the words in the clause. I want to ensure that an inspector cannot introduce extraneous matters that have not been subject to proper deliberation.

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

We are talking about abstraction licences and the Minister has thrown open the huge amount of opportunity to appeal that may or may not be there, but he has not taken the cost into consideration. If we leave this extra power in the Bill, we effectively prevent many people who may feel injustice is being done from appealing, simply because of the cost.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes 9:45, 18 September 2003

The hon. Gentleman makes an important point. Cost is another factor that I had not mentioned but is germane in terms of natural justice. The Secretary of State and I appear to want to have the same process put in place: a process that is fair, and in which there is the opportunity for representations to be made on potential decisions. Our objectives are the same, but the wording does not allow that to happen, or allows it to be overcome by giving the Secretary of State the power to introduce extraneous matters at the decision stage. Where is the right of appeal or representation at the point when the decision is made? Provision for that does not seem to be included. The wording is such that a decision could be made without allowing representations to be made. I am therefore not convinced by what the Minister says, and I do not believe that I will convince him, so I intend to press the matter to a vote.

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

The hon. Gentleman is entitled to press the matter to a vote if he wishes, but he is making rather heavy weather of it. I emphasise again, for the record, that in all cases the applicant will have the right to comment on any sort of variations. The hon. Gentleman will find that in a range of legislation the Secretary of State has the power to intervene—we are back again to the belt-and-braces approach—in issues of national importance, for a relevant reason. If the Secretary of State uses that power to intervene in relation to a variation, the applicant will, in all cases, have the right to comment and make their case.

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 13.

Division number 4 Adults Abused in Childhood — Clause 15 - Applications: types of abstraction licence

Aye: 8 MPs

No: 13 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Clause 15 ordered to stand part of the Bill.