I beg to move amendment No. 34, in
clause 16, page 17, line 45, at end insert
'of less than 50,000 cubic metres'.
I return to the word of the day—''proportionality''. The amendment would mean that the powers that be would not be required to publish every single application for a licence to abstract. It is designed to reduce the cost of those licences.
I recall the Minister describing those against whom he was legislating as the sort of people who, when damming a stream, take their cement mixer with them. That is a reasonable description, and so I have included 50,000 cu m as the amount. That is probably far too much, but it is a sort of opening bid, so that we can decide exactly how much water must be impeded before it is necessary to go through all the hoops that the clause demands, and the costs that that would incur. It is not a crucial matter, but I did not feel that it was essential to publish in the case of every single dam or misdirection of a stream.
I recall the hon. Member for Cardiff, West (Kevin Brennan) having a go at me earlier, when I chose the example of an Olympic swimming pool. The answer to how many swimming pools it would fill is that I do not know; it would depend on the size of the pool.
The hon. Gentleman's point is whether it is the right amount, which is not the issue. What is important is that we do not publish every dam and the change of direction of every stream, because that would be expensive and unnecessary. The information that people require may be hidden by superfluous publication. That is what the amendment is about. It is possible that 50,000 cu m is too much, or not enough; I am probing the Government to find out why every mortal change is to be published.
I can go some way to meet what the hon. Gentleman wants, because there will be regulations for exemptions in relation to advertising. However, I do not agree with the figure of 50,000 cu m, because as we discussed earlier, even small-scale impounding could have severe environmental consequences downstream, so it would be a mistake to have volumetric thresholds.
However, under new section 37, the Secretary of State will have the power to make regulations giving the agency discretion in respect of whether applications require publication and consultation. We will draw up those regulations and put them out for consultation in the normal way. The regulations will be proportionate: there will be some very minor impounding applications and it may not serve any useful purpose if they have to go through the process
and expense of advertising. Although I appreciate the hon. Gentleman's intention in tabling the amendment, it would be a mistake to specify absolute limits, because each application should be considered on its individual merits and its potential consequences.
Will the agency have complete discretion or will the regulations set out certain criteria against which it would have to make a judgment?
Yes, the hon. Gentleman is right: it will be the intention of the regulations to lay down the criteria by which discretion will be applied, subject to public consultation on those proposals. The Bill goes some way to meeting what the hon. Member for Leominster seeks.
With reference to the point made by my hon. Friend the Member for Leominster, will the guidelines to be drawn up refer to cubic metres, or will they be totally discretionary?
That will be subject to consultation. My personal opinion is that a guideline would not be needed, because even a small impounding application could have severe environmental implications. It will depend on what the application is for, what the impounding will do and what the effects could be. In such circumstances, it is not unreasonable that the Environment Agency should have some discretion. Regulations will be drawn up by the Department and put out to public consultation about how the agency will use that discretion, so that people are aware of what is involved.
Would the Minister consider publishing the regulations sooner rather than later, to dovetail with the measure? People should have the chance to look at those proposals in the light of the Bill—it will take time to go through Parliament—especially in view of his point about downstream environmental damage, which I understand.
Regulations and powers often follow after legislation has gone through Parliament; that is quite normal. However, in this case I will discuss the time scale with officials and talk to the hon. Gentleman about it. There is a considerable work load in drafting legislation, and the regulations procedure will come later.
I am grateful to my hon. Friends for taking an interest in the amendment and to the Minister for his replies to them. However, there is something quite sinister about all this. First, I am more than happy to accept the criticism that the volume is wrong, but it is sinister and wrong for the Government not to consult before they legislate. There should not be consultation once the Bill is drafted, written, published and enacted. There should have been consultation beforehand, and it should not be up the Minister to calm my anger in Committee.
I am more than grateful to the hon. Gentleman for commenting not only on my indignation but on the superb performance that we had from the Minister, with his righteous indignation, which in the end was actually wrong indignation—or perhaps ''wrong-teous'', if you will forgive me for that, Mr. Amess.
My hon. Friend's indignation is indeed righteous, because the Government have had several years to prepare the legislation. It has been going around the shops for a considerable time, and is not legislation that has been introduced in the recent past, so I urge him to continue probing the Government on the issue. It is not a coincidence that we meet under the picture of the Executive infringing the rights of Parliament.
My hon. Friend is right: the Government may well have to legislate before they can publish their regulations, but they should not legislate before they consult. Although we have been probing the Government on the volume, the time and the various procedures that will be used to ensure that extra costs will not be heaped on small abstractors and small impounders, we want to ensure that the Government know what they are talking about—which they cannot if they have not done their consultation.
My hon. Friend is not labouring a point, he is making an extremely good point. Here we are, yet again, considering Government-sponsored legislation that goes into considerable detail, but when we raise a pertinent point, we are told that it will be the subject of consultation during some future period, not even 28 days. We are again being asked to take the matter on trust, which is entirely regrettable. Does my hon. Friend suggest that the Minister return to the Committee, possibly when he has had time to reflect with his civil servants, to give us some details, so that we can progress further on the point?
That is a very good point, but unfortunately that suggestion is quite impossible, because the Government have not done their consultation first. No matter how much the Minister consults his civil servants, helpful though they might be, they will not be able to tell any of us what the future consultation will deliver. Although it is clear that we shall have to take the regulations after the legislation has been completed, we will not know what the consultation will deliver.
Although I recognise that the amendment is wholly flawed, I do not see how we can do anything—
Well, not wholly flawed, I accept—it is flawed in its details, but the concept behind it is not. I
therefore think that I need slightly more than just, ''We will consult later,'' from the Minister.
There is one major flaw in that great, righteous tirade, in that the Bill was consulted on, including the draft clause, in the run-up to the legislation. If the hon. Gentleman had been so concerned about the issue, he could have made some representations then. My memory may be slipping, but I do not recall any representations on this part of the Bill.
Moreover, it is a bit difficult to consult on applying regulations on a Bill that has not received legal or parliamentary assent—that is a bit hard, actually. What has happened is a normal part of legislation. Consultation has taken place, and the Bill has been in process for some time. The hon. Gentleman's logic seems to be that as it is so difficult to give the agency some sensible flexibility, we should not do it. That would save all the arguments.
There seems to be a lot of bogus indignation. The Bill was published in draft form some time before it started the formal legislative procedure, following a new process of publishing draft Bills for consultation that was introduced by this Government. The draft Bill procedure is not used in every case, but it was used for this Bill, and I am strongly in favour of it. It meant that there was much more consultation on this Bill than is often the case for legislation. We are now talking about small enabling provisions in the main part of the Bill, which has been out for consultation, and regulations will be put in place when the Bill is enacted. That is the normal legislative procedure.
It is all very well for the Minister to dismiss the provisions as a small piece of enabling legislation, but he cannot have it both ways. He says that they have already been consulted on, but if so, why does he have no answers? It is no good for him to say that we are coming up with false accusations. My hon. Friend the Member for Leominster suggested a threshold of 50,000 cu m only to tease out an answer, but answer came there none. There may have been consultations, but these provisions have not been properly thought through. We are merely Back Benchers trying yet again to hold an over-mighty Executive to account.
I see—this Government, unlike previous Governments, introduce a draft Bill process to allow proper consultation, and that means that the Executive are trying to override proper scrutiny. I cannot go along with that argument.
There is no comment on the threshold in the clause, because during the consultation process no organisation asked for a threshold. I return to my previous point: the agency needs flexibility. We are happy to consult on this point, but I do not think that a threshold should be set, because the circumstances should be considered on an individual's application.
I thought that it might be helpful to explain the real reasons for the apparent indignation of the otherwise cheerfully slouching Conservative Members. They do not understand the numbers
because they are not expressed in multiples of ordinary people's swimming pools. Having done the calculation myself, I can tell the Opposition that, based on the figures of the hon. Member for Leominster, it is approximately 10 pools.
I can see that for some Members, the unit currency of swimming pool multiples is useful for understanding thresholds. It is an interesting concept and could be a new measurement for volumetric assessment.
I return to the main point. It may be because of the late nights and early mornings, but we are getting into heavy weather on what is a fairly sensible part of the Bill. It provides the flexibility that Opposition Members have previously asked for and for which they are now castigating me.
If ever there was a Minister who deserved castigation, we have him before us, although not necessarily in this context. This is not a new piece of legislation—it is an amendment to section 37 of the Water Resources Act 1991—so it is not fair to say that the draft Bill procedure should have generated the consultation response. People will not necessarily have recognised that the Government were going to change the existing regulations to such an extent.
As for joking about the size of people's swimming pools, volume is not the point. We needed to know from the Government that they had considered the cost and drawn up guidelines—or even draft guidelines—on what would be published, and the accompanying costs. We merely sought confirmation from the Minister that proper procedures would be put in place and that the consultation that took place on the draft Bill would be properly considered.
What triggered my indignation—I am still unhappy about this—was the Minister's dismissal of the amendment on the basis that everything would be taken care of later. We wanted to know that the proper groundwork had been done. I believe that it probably had been, but the Minister missed the opportunity to confirm that. That triggered my indignation and will do so again if it continues.
We are going backwards on the point. The general process of legislation is that the principles, which are in the draft Bill, are consulted on, and the details follow later. Other aspects of the Bill will require detailed regulations and guidelines, and there will be consultation on them.
I should also point out that the clause introduces a new element of deregulation. I am not sure that the hon. Gentleman will want to vote against deregulation, but we shall see.
I accept that 50,000 cu m is an unrealistic amount. We are disappointed not to know what the guideline figures would be or, if they are not designed to be in cubic metres, to have them expressed in another understandable term. However, it is not the right time to have a vote on it, particularly as my next amendment deals with the subject of how
legislation is constructed, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
With this it will be convenient to discuss the following amendments:
No. 194, in
clause 16, page 18, line 34, leave out 'exclude' and insert 'include'.
No. 195, in
clause 16, page 19, line 10, leave out
'to be appropriate to do so'
'that there are no persons such as are described in subsections (1) and (2) of section 37 above.'.
I have some sympathy with the indignation expressed, because it is less than apparent what the provisions will deliver. On the face of it, they reduce bureaucracy, and we would all like to see that. Reading them through quickly, it would seem a good thing to say, ''If it isn't necessary, don't do it.''
We want to know why the Government would not want the requirements of subsections (1) and (2) to apply in prescribed cases. Earlier subsections detail those people who should be consulted and how that consultation should take place, but later subsections say that that would not happen in certain circumstances, which the Government will tell us about only in the regulations. The Minister now has an opportunity to give us more information about the circumstances in which the requirements would not apply.
On amendment No. 194, subsection (6)(b) appears to reduce bureaucracy, so it would seem that we would support it, but if the regulations relate to notices of application, we would like to know what those notices should include. Later in that subsection, it says that they might
''exclude prescribed classes of information''.
The Minister might say that some information is commercially confidential and so will not be published. However, we want to know what sort of information would be excluded and what the basis for that would be. If there is clarity about which classes of information will be excluded, that will give us a much better understanding of the regulations when they are introduced.
New section 37A, which amendment No. 195 would change, provides that the Environment Agency or the Secretary of State would not have to publish notices solely on the grounds that it would be ''appropriate'' not to do so . We do not know what that means, what the discretion will cover or whether people who need to know about those matters will be told. Ignorance is no excuse in law, yet it might be if those who had an interest in the matter had been disadvantaged by somebody's saying ''We need not include them; we will not tell them.'' If the abstraction was to take place on land owned by the applicant, would it affect other
people? How is one to know what might affect something going on downstream? In the case of chalk courses, there could be an interesting geological situation. We want to know in which circumstances it is appropriate not to supply the information.
As the hon. Lady says, the clause shifts responsibility for advertising from the applicant to the agency. There is also a requirement to serve notice on bodies such as water undertakers, navigation or harbour authorities and internal drainage boards. The idea is to ensure that anyone who might be affected by the proposals has the right to make representations, and for their views to be considered by the agency, even if it makes a determination. I do not think that anybody would disagree with that. I believe that as much information as possible should be in the public domain, and we should approach the legislation on that basis.
The hon. Lady makes the point that restrictions might be justified in some cases. I shall come to those. The clause gives powers to the Secretary of State to make regulations in two sets of circumstances. First, where advertising and giving notice should not take place at all, or where the information that is given needs to be limited, and secondly, where the need to advertise can be made discretionary in the exercise of judgment by the agency or the Secretary of State. That is not controversial—it is an enabling power to take a decision on whether the information should be available. The question is, why might that be necessary?
The amendments change the ability to provide for circumstances in which information about given applications should be limited or restricted. The provision could make applications easier by either not requiring or easing advertising details, for example, for renewal of time-limited licences on the same terms. Part of the intention of the clause is to reduce bureaucracy, as the hon. Lady has said.
There is a more important reason for the power. Since the Environment Act 1995 was passed, we have not been able to proceed with powers to remove the exemption of Crown sites from the licensing requirements of the Water Resources Act 1991. That is because of the need to give notice and to include details of locations of private water supplies to military bases. For security reasons, it is not desirable to publish details of abstraction licences that serve military bases or other sensitive areas. That is important here, because it is Government policy for all Crown establishments to comply with environmental legislation; we do not want Crown immunity to be used to avoid such legislation. The absolute requirement to publish details of abstraction licences is holding up progress.
I understand the Minister's argument, which has validity. It is right that as much information as possible should be published, including that relating to land that has had Crown immunity, but equally, we should not endanger national security. Therefore, some classes of water will have to be excluded. However, would he consider inserting a definition of the circumstances under which
information would be withheld? Perhaps the phrase ''national security'' could be written into the Bill, so that it included a restriction that would apply in circumstances that we could all agree rather than wider powers.
National security is a reason with which people are unlikely to disagree. However, there might be other circumstances, and I shall touch on one of them.
Amendment No. 195 would also limit the flexibility necessary to provide for discretion to be exercised by the agency or the Secretary of State. For instance, when seeking to encourage the trading of abstraction licences in areas of resource scarcity, it could unnecessarily impede progress if a trade that resulted in a benefit to the environment had to be advertised, when there was no positive reason to do so. The amendment would discourage that if there was an element of tradeability, because it would remove the need, in all cases, for people to make further applications for abstraction licences. One element of good water resource management is to be able to use flexibility if it is considered desirable.
The amendment would negate that development altogether. As there is always a water undertaker at every point when an application for a licence is submitted, the words proposed would mean that the purpose of the clause would be defeated. I do not think that that is the intention; I understand that the hon. Lady is seeking examples of when restrictions may be imposed. There may be a range of justifications for such restrictions. It may be possible to clarify when they might be used, just to give people an idea, and I would be happy to write to her further to clarify when we would envisage their being used. However, the Government are keen that the maximum amount of information should be put in the public domain, so that, when appropriate, people can see the abstraction figures and the numbers of licences. The powers should be used only in specific cases, and I have outlined one or two examples.
Let me make a general but pertinent point. I do not wish to be discourteous, but the Minister continually says that the Government wish to put as much information in the public domain as possible. I believe that he is committed to that aim, as is the Secretary of State, but the Bill has to be written in such as way as to apply to all future Governments—of whatever shape, colour or inclination. It is important that legislation holds future Governments to account. It should not allow future Governments to exploit undesirable loopholes in ways that the Minister would not want. Will he consider framing the legislation so that it precludes withholding information for unjustifiable reasons? That is how legislation should be framed.
I am entirely sympathetic, but it can be difficult to frame legislation to ensure that there is no abuse while still giving flexibility in circumstances in which information may legitimately be withheld. I assure the hon. Gentleman—I am sure that he will
accept it—that except in legitimate circumstances, the information should be made public.
Yes, I do. The Environment Agency will have to make environmental judgments on abstraction and resource management. I realise that national security has to be respected, and we would want to be confident that shared information was being used properly and confidentially. I would have thought that that could be arranged so that legitimate information could be used to enable proper resource management while protecting national security.
In those circumstances, the critical point is that it should be incumbent on the Ministry of Defence to decide what information can and cannot be shared. Surely the way round it is for the Bill to say that the information need not be shared for reasons of national security. That would seem to cover everything.
As the clause is written, there is the flexibility to do that—the problem is basically covered. I was saying that there would be a range of justifications for restrictions. National security is an obvious example, but there may be other relevant circumstances. I mentioned tradeability and the issues of bureaucracy, time and expense. The details would already be in the public domain and there would be no change to the abstraction figures or the details; there would simply be movement from one person to another. I understand the points that hon. Members are making and I do not think that there is any disagreement. The question is one of making provision in the Bill, where appropriate, for certain cases in which publication might not be needed or desirable.
I should like to help the Minister. I do not think that the matter needs to be dealt with in the Bill, or that we need a new clause. The code of practice on access to Government information contains everything that is necessary. However, the Ministry of Defence, for example, in contractorising the supply of water and sewerage arrangements, would obviously enter into commercially confidential dealings under, for example, Project Aquatrine. I wonder—this is a question of departmental attitudes—to what extent the Ministry of Defence should disclose information about bore holes to water companies, given the refusal to put that in the public domain?
Those are difficult issues, and I sympathise with what the hon. Gentleman says. The comments of the hon. Member for Lewes (Norman Baker) about future Governments' attitude to provisions that allow discretion are also relevant. However, there are parliamentary accountability procedures, such as the Select Committee process and parliamentary scrutiny. Ministers can be called before Select Committees to justify their use of such
powers. I am all for that and think that the Committees' role in holding the Executive to account is important. They are good at it.
I can tell the hon. Member for Guildford (Sue Doughty) that I am prepared to consider including a reference to national security in the clause. I do not know yet whether that would be appropriate, and I remind her that national security is but one of several considerations, although it is perhaps the most important.
We have had an interesting discussion, teasing out certain aspects of the matter. I am grateful for the Minister's commitment to consider the issue of national security and how we might proceed. No doubt we shall hear in due course on Report.
I fully accept the points about national security and military bases, but the fact remains that abstraction of water can affect others in the vicinity, and within a river basin system. If the information will not be in the public domain for the perfectly practical reasons explained in our debate, how are we to understand what impact the abstraction will have on others?
As I said, I do not think that there is any reason for that information not to be shared confidentially with the Environment Agency, in relation to its assessments of water management. I return to the point that the provision is an exception—not the norm. Good reasons for such an exception would be needed: either that no useful purpose would be served, or that national security was at stake. However, the Environment Agency would of course need information for its water resource management and assessments.
I think that we have taken that point as far as we can, and received some useful feedback from the Minister. I accept that an exceptional circumstance is envisaged. We look forward to seeing how the regulation will be expressed, as we consider the matter of the exceptions; we accept the reduction of unnecessary bureaucracy while protection is given to those who need protection. I believe that the principle of transparency remains. We want to consider whether the regulation will be future-proof or is open to abuse, and whether there are safeguards.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 35, in
clause 16, page 19, leave out lines 27 to 31.
I do not intend to keep members of the Committee long, but I draw their attention to section 66 of the Water Resources Act 1991—''Inland waters owned or managed by British Waterways Board''. The amendment would clarify the wording of the clause, as section 66(2)(a) has been removed. The current wording suggests that paragraphs (b) and (c) are amended, but remain. If paragraph (a) is removed, surely paragraph (b) becomes paragraph (a), and paragraph (c) becomes paragraph (b). If that is the case, the drafting is not right.
I did not read the clause that way. The exclusion proposed for the agency when it takes over
responsibility for advertising applications for abstraction and impounding licences would allow it to serve a copy of the notice on navigation, harbour and conservancy authorities and on drainage boards, except where British Waterways is the applicant. Amendment No. 35 would remove that exclusion. The reason for the exclusion is that, without it, the agency would be serving notice to British Waterways, which would be making the application itself. That would not make sense. I am not clear about the hon. Gentleman's points, but I am clear that the amendment would make no difference to them.
I am happy to accept the Minister's answer that my amendment is unsatisfactory, but its purpose was to determine whether the drafting of the clause was satisfactory. I am sure that the Minister believes that it is, but my point is that the paragraphs are wrongly named. If that is not easy to determine, I am happy to withdraw my amendment if he will confirm to me in writing the drafting procedure for this sort of administration.
The Minister is holding the wrong piece of paper. He needs to read the existing legislation. Surely, removing paragraph (a) means that paragraphs (b) and (c) move up the page. The amendment seeks to remove the entire paragraph, which is probably the incorrect way of dealing with the problem, but it should be clear to the Minister that the drafting of the clause is particularly bizarre. Unfortunately for him, we had a very long recess, during which I had time to read all this. The clause struck me as bizarre, which is why I seek clarification.
I read the clause myself, but I did not interpret it in the same way. I shall have to examine it in some detail, and I will write to the hon. Gentleman and let him know whether he is right.