Other definitions

I beg to move Amendment 8, in Clause 6, page 4, line 33, at end insert—

‘(g) any land owners with a relevant interest.’.

With this it will be convenient to discuss Amendment 114, in Clause 6, page 4, line 33, at end insert—

‘(g) Natural England.’.

The Committee will be aware that landowners have a number of roles to play under the Bill. I am sure that they will be called upon with the increased levy and that many are members of the current  flood defence committee. In terms of flood risk management, landowners are first and foremost risk managers in their own right. The purpose of the Amendment is to recognise that.

A number of years ago, successive Governments made capital grants available to enable landowners to lay drains and irrigation channels, which they are now maintaining at their own expense. They pay their council taxes and so pay towards the role of district councils. Many in Yorkshire, East Anglia and other parts of the country where internal drainage boards exist pay substantial fees towards their work, which in turn fund in large part the work of the Environment Agency. At every level, landowners have a great role to play in the funding of flood risk management. In earlier debates, we spoke about crop protection where land is waterlogged or saturated and the crops are lost. Landowners can suffer substantial losses in that regard.

The purpose of the amendment is to recognise that landowners are interested parties. We would like to include them in the definition so that they are consulted. I hope that we have identified the right place for that recognition to appear. I hope that the Minister and the Committee will look favourably on the amendment because we are asking a lot from landowners. It would bring them in and recognise them as risk managers in their own right if we added them to the list of risk management authorities alongside the Environment Agency, the lead local flood authorities, the district councils, the internal drainage boards—I am delighted they are in the list—water companies and highway authorities. It is a great omission that landowners are not in the list. Adding them would make it complete.

Similarly, the addition of Natural England would be appropriate and, as can be seen, a lot of names support that. I understand that Natural England is the primary channel of funds for many flood alleviation schemes, in particular for EU-funded money. It seems natural to add Natural England. Obviously, for the sake of drafting, I would like landowners to be included as (g) and Natural England as (h). If we could agree on that, that would be great progress.

I shall speak to Amendment 114, which stands in my name and those of my hon. Friend the Member for Cheltenham and others. It would include Natural England among the list of risk management authorities. Indeed, the hon. Member for Vale of York has covered several of the issues that have led me to that conclusion. My hon. Friend has raised the issue of water management and flood mitigation being not only about construction and man-made features, but about the land and using the landscape to ensure that the water that falls on it is not discharged rapidly, but at a controlled rate.

Natural England has among its statutory powers the ability to conserve and enhance existing landscape features and even to create new landscape features. As such, Natural England is an integral part of risk management and should be included as an authority. Indeed, the National Farmers Union and the Country Land and Business Association have already developed a protocol with Natural England on coastal protection, allowing some of the coastal defences to break down so that land can be taken back by the sea. That is obviously a delicate issue, but one that has been advanced by the  protocol and the close involvement of Natural England. I think that it would be a good idea to include Natural England in the list of risk management authorities.

With regard to amendment 8, tabled by the hon. Member for Vale of York, I can understand why she would include landowners in the list, because they do manage the risk of flooding. My only reservation is that that would increase the number of risk management authorities by an enormous amount. Indeed, within the Bill there are duties on those authorities that some landowners might not think appropriate for individuals and private businesses. Therefore, I would have a little caution on that. I am not trying to do the Minister’s business, but I will say that there are amendments to be considered later that will make it a duty for various organisations to consult more closely with landowners and involve them in that way. I therefore press the Minister to include Natural England, but I would treat the issue of landowners with a little more concern.

The hon. Members for Vale of York and for Upminster have tabled Amendment 8, which would add any landowners with a relevant interest to the list of risk management authorities, but there appears to be no clear definition of relevant interest. That is an interesting aspect of the matter, and I know that we could dance around that with regard to drafting and clarification, but there is something more fundamental to consider.

To pick up on the points made by the hon. Gentleman, this is not the part of the Bill in which to tackle concerns about the contribution of private property and individual landowners to flood risk. The bodies defined in the Bill are public bodies, including the water companies in their capacity as public undertakers. They have statutory functions and are given powers and public duties. They administer and receive public funding. They are held to account by regulators and pubic law. Therefore, the list is a clear category of organisations. Adding landowners as a class to that group simply would not work in that context, as they are not public authorities. In fact, heaven forfend the burden we would put upon them if we suddenly recognised them as such.

We recognise that there are issues with the contribution of private property to flood risk and flood risk management. We consulted on that in depth under the draft Bill and it was one of the most complex areas. Policy in this area needs further careful consideration, which we are actively undertaking on the back of the draft Bill. It might be best taken forward alongside linked areas, such as changes to IDBs, at a future legislative opportunity. I have signalled previously that we see the need to return and bring forward some of those additional aspects.

On Natural England and the flood alleviation responsibilities, I am informed that what has been said is not correct. However, Clause 29 provides a power to add new authorities to the list of risk management authorities. There is good flexibility under the Bill where necessary. Over time, we need to consider whether there are additional bodies that have flood risk management functions. As appropriate, those will be brought forward.

The hon. Member for Brecon and Radnorshire tabled amendment 114, which would include Natural England in the list of risk management authorities. I understand his point that Natural England is our principal environmental adviser and a source of great wisdom  and expertise. I accept the point made by him and the hon. Member for Cheltenham about the need to think about what can be done for landscape biodiversity and so forth and I am sure we will return to that point. However, Natural England currently has no statutory flood and coastal erosion risk management functions. As such, it has not been included as a risk management authority.

As I just mentioned in response to the hon. Member for Vale of York, clause 29 provides for Ministers to make an order that allows responsibilities to be reassigned between authorities or for additional authorities to be listed as risk management authorities. Therefore, if Natural England or another body assumed flood or coastal risk management functions, which is not outside the realms of possibility, it would be possible to list it as a flood risk management authority.

There are two other matters that I would like to bring to the attention of hon. Members in respect of clause 29. First, we are considering whether it would be appropriate to amend clause 29(1) to clarify that new bodies can be added to the list of risk management authorities.

Secondly, we are considering whether clause 29(6) accurately implements the devolution settlement. If an intended reassignment of responsibility was from or to a cross-border risk management authority or another body, it is not clear where the ministerial responsibility would lie for making such an order. Is it with me, the Secretary of State or down the M4? That provision may have to be more precise about when an order under the section should be made by Welsh Ministers and when by the Secretary of State. If further provision is required to clarify that important but technical issue, we will table an amendment on Report.

With those assurances, I ask the hon. Lady to withdraw the amendment.

I am grateful for the Minister’s fulsome remarks. In view of what he said and the possibility that we can revisit the matter under a more appropriate Clause, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

I beg to move Amendment 43, in Clause 6, page 4, line 33, at end add—

‘(14) “English risk management authority” means—

(a) the Environment Agency,

(b) a risk management authority within subsection (13)(b), (c) or (f) for an area that is wholly in England,

(c) an internal drainage board for an internal drainage district that is wholly or mainly in England, and

(d) a water company that exercises functions in relation to an area in England.

(15) “Welsh risk management authority” means—

(a) the Environment Agency,

(b) a risk management authority within subsection (13)(b), (c) or (f) for an area that is wholly in Wales,

(c) an internal drainage board for an internal drainage district that is wholly or mainly in Wales, and

(d) a water company that exercises functions in relation to an area in Wales.

(16) “Cross-border internal drainage board” means an internal drainage board for an internal drainage district that is partly in England and partly in Wales.’.

With this it will be convenient to discuss Government amendments 44 to 52, 54 to 57, 59 to 61 and 79 to 81.

Due to my obstreperous nature, I hope that the Committee will agree to these essentially technical and administrative amendments, which clarify the position of risk management authorities in relation to the national strategies and guidance for England and Wales. In particular, they relate to cross-border internal drainage boards.

Amendment 43 introduces the terms “English risk management authority,” “Welsh risk management authority” and “cross-border internal drainage board.” English risk management authorities are defined as the Environment Agency risk management authorities that exercise their functions wholly in England, IDBs for a district that is wholly or mainly in England and water companies that exercise functions in relation to an area in England.

Welsh risk management authorities are defined as risk management authorities that exercise their functions wholly in Wales, IDBs for a district that is wholly or mainly in Wales, and water companies that exercise functions in relation to an area in Wales. Amendments 44 to 46 make associated amendments to Clause 7. Their effect is that the national strategy will have to specify these English risk management authorities and their functions. The Environment Agency must consult those authorities and issue guidance about how they should exercise their duties under clauses 13 and 14. Although they are technical, the amendments are crucial to the effective operation of the arrangements set out in the Bill. Amendments 47 and 48 have the equivalent effect for Wales.

Amendments 49 to 52 make technical amendments to clause 11 that simplify the drafting of paragraphs (1) and (3), and introduce the concept of English risk management authorities into clause 11(1) and 11(4). Those amendments do not change the meaning of clauses 11(1) and 11(3) in respect of water companies. The concept of English risk management authorities is introduced into clauses 11(1) and 11(4), so that it is clear that these authorities, as defined under clause 6(13) with Government amendments, are bound by the obligations in clause 11. That means they have a duty to act consistently with the England national strategy and guidance and local strategies and guidance in the exercise of their flood and coastal erosion risk management functions. They also have a duty to have regard to national and local strategies and guidance in the exercise of other functions that may affect a flood or coastal erosion risk. However, water companies are still treated differently.

Amendments 54 to 57 have an equivalent effect for Wales. Amendments 59 to 61 are further technical amendments in respect of cross-border internal drainage boards, which relate to clause 27 on sustainable development. The amended provision clarifies for cross-border internal drainage boards whether it is the Secretary of State or Welsh Ministers to whom the duty to issue guidance on sustainable development will fall.

Amendments 79 and 80 make minor technical changes to clause 15 to address cross-border issues. The first two amendments make changes to address the fact that the  Environment Agency operates across both England and Wales. Those amendments are needed to ensure clarity as to when penalties will be subject to regulations by the Secretary of State and when subject to regulations by Welsh Ministers. As a result of the amendments, that will be dependent on whether the failure to comply with an information request relates to the exercise of an Environment Agency function in relation to England or in relation to Wales.

Finally, amendment 81 addresses a drafting error—my apologies—relating to the use of the term “authority” in the clause, which had not been defined as including the Welsh Ministers. Picking up the point raised by the hon. Member for Brecon and Radnorshire, we are striving to ensure that this is absolutely Wales-and-England foolproof.

If we are minded to approve these amendments, I am tempted to ask the Minister, if we table some technical amendments, whether he would be equally minded to agree to them in the spirit of co-operation. Obviously, we do not want to take up too much of the Committee’s time with these. I presume that they are all being moved together because they relate to the clauses that we are currently considering.

Only one is being moved; the rest are grouped for debate.

I am grateful for that. Obviously the Minister is perhaps closer to Wales than Scotland, but I understand that Scotland has gone down a slightly different path in that regard, and in relation to many other aspects of the Bill. We will put our minds at rest that this is a matter about which he does not intend to introduce any technical amendments at a later date.

I presume that the Environment Agency will play the same role in relation to both countries. To avoid any risk of judicial review further down the line, is the Minister convinced that the amendments lay to rest the issue of which is the relevant body and who is empowered to make the regulations?

Is the Minister saying that the regulations will either be laid before the Welsh Assembly for them to scrutinise or, if they are the responsibility of his Department, before both Houses of Parliament so that we can properly scrutinise them in this place?

To the best of my knowledge, I will not table any amendments, and I hope that I will not do so in respect of Scotland, either. As for regulations, we will follow normal procedures in the House. In Wales, the standard practice is to put the regulations before the National Assembly for Wales. The amendments define quite clearly the bodies that we need for cross-border work, which is of interest to the hon. Member for Tewkesbury and many others. They give powers to the Secretary of State, Welsh Ministers, the Environment Agency and internal drainage boards to apply the regulations. The regulations have been run around the House and the Welsh Assembly Government, so I can confirm that they are acceptable to both. As the hon. Member for Brecon and Radnorshire knows, it is important that we have working relationships bolted down properly in legislation.

To clarify, the Minister is moving Amendment 43 and will formally move the other amendments when we come to them.

Amendment agreed to.

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

Just to elaborate on earlier remarks on Clause 6(7), I am sure that the Minister is aware that there is some concern over paragraph (b), which states that where there is no unitary authority, the county council should be the lead authority for the area. I do not know how much detail I am allowed to go into—

As much as is in order.

Indeed, I am sure that you will keep a close ear on that, Mr. Martlew. My concern is that if one is looking for examples of sustainable drainage alongside the highway, I have no doubt that the county council is the lead authority in that area. However, if one is considering a planning application for what I would call a SUDS—a sustainable urban drainage system—for a major new development, I have no doubt that the lead authority would be the district council. The district council is clearly the planning authority. As we will be coming on to that debate later, I do not want to have that argument now because we will have plenty of time to debate it when the moment is right.

Is the Minister minded to consider an element of flexibility, so that where there is no unitary authority—in York we have a unitary authority and in North Yorkshire we have the relationship between the counties and the districts—we can write into the Bill that the county council or district council for the area is responsible as is appropriate? That would help the Minister enormously. It is not in the Committee’s interest to get the backs up of any risk managers or the interested parties in that regard. Self-evidently, the Committee will see of its own accord which is the relevant council.

As drafted, Clause 6(7) gives a hostage to fortune in the possible interpretation of lead authority, perhaps leading to a lot of unhappiness where there could be—

Joy.

Joy, even.

I am always happy to bring joy into people’s lives. I do not want to pre-rehearse any discussions that we might have subsequently, but I applaud the hon. Lady for flagging up the issue under this Clause. In the course of the draft Bill and also in recent weeks and months, we have had much good dialogue with the Local Government Association to try to resolve the issue and give some clarity and some reassurance that the Bill is not designed to trample over good working relationships and mechanisms on the ground. I think that we can return to that matter subsequently.

I do not want to walk away from Pitt’s clear recommendations to give clarity— and, in some ways simplicity—to where we put the responsibility, but that is not the same as how the measures will work on the  ground with partnerships and collaboration. I want to give the hon. Lady that assurance at this point, before we get to more detailed discussions. We want to see the most effective use being made of those organisations at either tier, and also of IDBs and others on the ground. Not only in terms of the Bill, but in the current economic climate, I can see no other way of doing that, because we need to make the most efficient use of taxpayers’ money in the delivery.

Question put and agreed to.

Clause 6, as amended, accordingly ordered to stand part of the Bill.