“Flood Risk Management Function”

Question proposed,That the clause stand part of the Bill.

With this it will be convenient to consider new Clause 9—Flood risk management function—

“The flood risk management function will be scrutinised in accordance with the provisions of the bill by both Houses of Parliament under the provisions of the European Communities Act 1972.”

At the same time as the Bill was published, the Government laid before the House and the Committee the EU regulations entitled the Flood Risk Regulations 2009 No. 3042. As I understand it, the procedure is that the regulations are subject to negative resolution, so I have a series of questions to put to the Minister. It is our preference to consider them as part of the legislation. Obviously, we are able to amend the main part of the legislation, but I presume that we are not entitled to amend the text of the statutory instrument.

I must declare an interest here. I am a member of the Select Committee on Environment, Food and Rural Affairs. An exchange between the Secretary of State and the Chairman of the Select Committee made it clear that if the Government had not been able to pass the primary legislation, section 2(2) of the European Communities Act would apply.

May I clarify something? If you wish to table a new Clause to amend the regulations at this stage, it is possible to do that. Obviously, when it goes to a Delegated legislation Committee, you cannot make such an Amendment. I hope that clarifies the position.

That is most helpful. Perhaps I can find out what time such amendments might be taken.

I am sure we can find that out for you.

Will the Minister confirm whether that procedure has been approved by the European Commission, so we that we know that we are on the side of the angels in that regard?

As I understand it, the regulations were published on 19 November and are in two parts: the explanatory memorandum and the general provision. Will the Minister tell us what the relationship is between the contents of the parts relating to preliminary assessment maps, the duty to identify flood-risk areas through the Environment Agency, the duty to identify flood-risk areas through the lead local authorities, the review of the Environment Agency and all the parts relating to maps? I want to be clear in my own mind as to the relationship between those parts of the regulations and the content of the Bill.

Proceeding to the explanatory memorandum, obviously it is the intention to incorporate the flood-risk parts of the flood directive into UK law. I understand from the public consultation that only 5 per cent. were specifically against the policy proposals. My specific concern relates to page 11 of the explanatory memorandum to the  flood regulations, where it talks about the annual costs being within the range of £6.26 million to £6.66 million. Is the Minister absolutely convinced that that is the total, and how will that amount be split between the work of the Environment Agency and the upper-tier authorities?

We are debating stand part, not the regulations themselves.

Yes. I think you will find, Mr. Martlew, that the regulations relate to the flood-risk management functions. You will see—it is my understanding—that the regulations are part and parcel of that. Will the Minister clarify those points and explain how that will be the case?

If it is appropriate to do so here, I would like to raise the following issue, which may also be raised later in consideration of the Bill. There is some concern that although it is right that upper-tier county councils should be the flood risk management authority for highways, particularly for SUDS in relation to highways, the planning aspect for new developments, particularly in relation to the discussion we have just had, is the lower tier—the district authority. Is the Minister happy in himself that, in fact, those responsibilities are properly recognised in the Bill?

I have listened carefully to the hon. Lady as she spoke to the Clause and, to some extent, to the new clause she has put forward. I say to the Minister that the Bill in general has been very good at ensuring that those powers that have been devolved to the Welsh Assembly are recognised and that powers will be given to the relevant Welsh Assembly Minister or to the Assembly itself. If the Minister replies to the clause and the new clause, he can spell out how the proposal could be made compliant in terms of the devolution Act and the Government of Wales Act to ensure that any flood-risk management function is scrutinised by not only both Houses in this place, but the Welsh Assembly.

In line with your dictum, Mr. Martlew, I will try to keep my contribution short and to the point. I thank the hon. Member for Vale of York for introducing the topic. The directive itself will go through the normal scrutiny. As she rightly acknowledged, we consulted on draft provisions to implement the directive as part of the draft Bill—clauses 50 to 63—published on 21 April.

We were grateful for the many consultation responses received and for the scrutiny of the draft Bill by the EFRA Committee, of which the hon. Lady is a member. We took account of both in bringing forward the measures, which the House has had before it since the Queen’s Speech, that relate to both the implementing regulations for the directive and the Bill we are debating today. The implementing regulations for the directive benefited greatly from those inputs.

Specific reference was made to the regulations in the written ministerial statement of 19 November when the Bill was introduced, in the Government response to the EFRA Committee report and the response to the consultation that was published. All interested parties, including Parliament, have had an opportunity to scrutinise  our plans for transposing the directive. The regulations were scrutinised by the Joint Committee on Statutory Instruments and by the House of Lords Select Committee on the Merits of Statutory Instruments in the normal way.

Laying the regulations on the day the Flood and Water Management Bill was introduced provided an opportunity for each of them to be considered by the House of Lords Merits of Statutory Instruments Committee, and officials provided clarification to that Committee. It also enabled Members of Parliament more generally to consider both the Bill and the regulations together. If further consideration of the Bill should result in any discrepancy, however unlikely, between it and the regulations, it would be entirely possible for us to amend the regulations accordingly, by statutory instrument with the negative procedure.

Why did we go ahead with that measure? The hon. Lady asked whether the procedure had been approved by the European Commission. As Ministers, we always seek to minimise the risk of infraction, and we know that it would be good to get the regulations in place in a timely fashion so that local authorities and others can get on with the business that the regulations allow them to do, but on a parallel time scale to the Bill. The European Commission will ultimately review whether the directive has been properly implemented, and will take infraction proceedings if it thinks that it has not. Using this way forward has minimised the risk of that, and things are well under way.

On the tiers of authorities, the allocation of responsibility in the regulations is consistent with that in the Bill. On the estimate of annual cost, I do not have that to hand, but if the hon. Lady is happy, I will gladly write to her and other members of the Committee with a breakdown of the cost estimates.

The hon. Member for Brecon and Radnorshire referred to WAG’s role in this, and he is right that we have gone to the nth degree in working with our compatriots in Wales to ensure that this fits. The Clause 2(2) regulations on the directive apply to England and Wales, and WAG have consulted on them. If hon. Members do not feel that the procedure is right, there is an opportunity to pray against the regulations. I cannot answer for the powers of WAG Members to do that. If Members prayed against the regulations, we would need to bring the legislation back. I am keen to ensure that the legislation moves ahead in the time scale that we have set for it.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.