Local authorities: investigations

I beg to move Amendment 103, in Clause 19, page 12, line 27, after ‘authority’, insert

‘or the Environment Agency or Welsh Ministers’.

To allow for Environment Agency or Welsh national investigations in the event of a flood in case the local authority’s response needs to be investigated or in case the flood affects more than one local authority area.

With this it will be convenient to discuss the following: Amendment 42, in Clause 19, page 12, line 27, leave out ‘investigate’ and insert ‘take proportionate action to clarify’.

Amendment 104, in clause 19, page 12, line 32, after ‘authority’, insert

‘or the Environment Agency or Welsh Ministers’.

To allow for Environment Agency or Welsh national investigations in the event of a flood in case the local authority’s response needs to be investigated or in case the flood affects more than one local authority area.

Amendment 105, in clause 19, page 12, line 34, at end add—

‘(c) lay the report before Parliament, or in Wales, the National Assembly for Wales.’.

To ensure any investigation report is publicly available and drawn to public attention.

Clause stand part.

It is a pleasure to be serving under your chairmanship again this morning, Mr. Chope.

Amendments 103 and 104 address the national oversight role of the Environment Agency. There is a fear that the expectation taken from the Pitt review, that there would be a clear national oversight role that would have real teeth, that would establish a “buck stops here” responsibility, is not fully implemented in the Bill. We want everyone to know that there is one organisation that carries that active responsibility for all forms of flooding. Amendments 103 and 104 address the interesting power present in Clause 19 that allows investigations into the carrying out of flood risk management responsibilities by other agencies. That power is given only to local authorities. If it is reasonable for lead local authorities to exercise this power in pursuit of their lead local responsibility for flood risk management, why is it not a reasonable power for the Environment Agency to exercise at a national level, with their even more important national oversight role?

The risk is that this national oversight role—in this clause and in other clauses in the Bill—may be rendered rather toothless. Who is going to judge whether flood risk authorities, such as water companies, which are clearly outside the remit of a single lead local authority, are really acting consistently and with regard to, or in obedience to the national flood risk management strategy? It would be a major risk for even a large local authority such as a county council to pursue a water company, given the resources available for almost anything to local authorities these days. It would be a great deterrent for them to launch an investigation into, or try and pursue, an organisation such as a water company in order to try and insist on their exercising their responsibilities fully. In practice, an important national agency such as the Environment Agency would have the resources to carry out a proper investigation. They could address areas on a much wider level than a single local authority. Instead of the risk of a rather toothless national oversight role, the amendments seek to apply a little dentistry to the Bill and make the role more toothy and effective.

Amendment 42 seems to water down these investigative powers in the case of local authorities. It will be interesting to hear what the hon. Member for Newport, East says in support of it. It seeks to substitute proportionate action for investigation by the lead local authorities. I am not sure how it is possible to take proportionate action if one has not been able to investigate. However, I am certain that the hon. Lady has very good arguments in favour of that and I look forward to hearing them.

Amendment 105 is in my name and that of my hon. Friend the Member for Brecon and Radnorshire. It seeks to ensure that any investigations that are launched and paid for out of public funds will not lie on a dusty shelf somewhere but will be brought fully into the public domain. It asks for the reports from those investigations to be laid before Parliament, or in Wales, before the National Assembly. That adds an additional level of transparency and openness to the Bill, so I am sure the Government will welcome it with open arms.

I am speaking to Amendment 42; the reason for it has been identified by the Local Government Flood Forum. Clause 19 could be understood to mean that local authorities have to investigate and publish results for all floods, even where it is clear who is responsible or where the costs of investigating would be much more than that of the damage caused by the flood itself. A case might be a river with a bridge blocked by debris, causing temporary flooding of a neighbouring field. It would be a simple case for a farmer to sort out without the need for the local authority to step in and perform a full investigation. The amendment proposes to make it clear that local authorities need only take proportionate action to clarify who is responsible. It would also mean that a local authority would need to do something only if it was not clear who was responsible, and if it did, the cost should not be excessive.

I take the opportunity to welcome back the hon. Member for Brecon and Radnorshire; I hope he has fully recovered. I hope it was not the excitement of the Committee proceedings that took him away. I find some sympathy with the amendments moved by the hon. Member for Cheltenham and wait to hear the Minister’s response.

I should like to make one comment on Clause 19 stand part. While we agree with the duty that a lead local flood authority must investigate in the event of a flood, it is unclear which risk management authorities have relevant flood risk management functions and whether each of those authorities has exercised, or is preparing to exercise those functions in response to the flood. The Minister was minded to look more closely at the catchment management and the co-operation of local authorities in that regard. That is very pertinent here. I wonder what mechanism he envisages for local authorities to co-operate. I am mindful of the word that was used in an earlier clause—“partnership”—and whether that has any legal meaning in this regard.

While an investigation should be undertaken in those circumstances, the scale of the flood would presumably have to be significant, in keeping with the earlier clauses. Would the purpose of the investigation be to establish who was responsible in order for the remedy to be delivered? Would it not be important that the Secretary of State in this country or, in the case of Wales, the  Welsh Ministers be informed of the result after such an investigation, so that we could all learn from it and ensure that the necessary remedial action had taken place? The issue of the Cumbrian floods spring to mind. It returns to the theme of roads being the responsibility of the highways authorities. Cumbria is not a unitary authority so it will have this problem.

In the particular instance of Cumbria, from my memory, the debris after the river floods subsided was left on farm land. If the land was public property, the cost of removing the debris would fall to a public agency. The land may also be contaminated if it has had sewage and other foul water in it. In those circumstances, could the Minister take the opportunity to elaborate for our better understanding on what the investigations would be and what their purpose is in regard to clause 19?

Amendments 102, 103 and 104 extend the duty to investigate to the Environment Agency and the Welsh Minister in the case that the local authority response needs to be investigated or the flood affects more than one area. I agree that it is important that a lead authority’s response can be questioned if it is not properly exercising its functions. However, the effect of these amendments would actually defeat the principal purpose of this Clause, which is to give the public that single point of contact when it is uncertain which risk management authority should be taking action.

Sir Michael Pitt’s review identified the need to have a single organisation so that members of the public are not passed around without resolution. The suggested amendments could actually result in duplication of effort as well, in which lead authorities and the Environment Agency or Welsh Ministers are all required to investigate a flood event. The explanatory statement by the hon. Member for Cheltenham suggested that the authorities’ response may need to be investigated. But there is already provision in clause 20 for the Minister in England and Welsh Ministers to direct the Environment Agency or another risk management authority to act on behalf of a defaulting authority, if the Minister is satisfied that it has indeed failed to exercise its functions. In addition, where a flood affects more than one local authority area, clause 13 provides a requirement for the affected local authorities to co-operate with each other and ensure that investigations are co-ordinated.

The hon. Members have also tabled Amendment 105 to require the results of any investigation to be laid before Parliament or the National Assembly for Wales,

“To ensure that any investigation report is publicly available and drawn to public attention.”

However, the Bill already requires the authority to both publish the results and notify any relevant risk management authority. The local scrutiny function provided through schedule 2 will enable the results of investigations to be considered locally. But requiring the results to be laid before Parliament is likely to be unduly bureaucratic and to impose additional burdens on the local authority for little practical effect.

A similar requirement proposed by stakeholders for the Secretary of State to be informed is also unlikely to be proportionate and the same effect will be achieved by summarising the information in the report from the Environment Agency set out in clause 18. But there is, of course, nothing to prevent authorities or others of notifying Ministers and MPs about any concerns that they have, particularly if urgent action is needed.

So let me clarify: in terms of the investigation, this is intended to apply to flood events rather than general local authority performance. Local authority overview and scrutiny committees can consider all flood risk management in their areas and it is important that there is accountability at this level.

As for the question of who will judge whether water companies are acting consistently, it is for the EA to monitor the application of the national strategy. As we have said, water companies will need to act consistently with this, so the EA will have a role in that respect. On the question of who will judge in an investigation whether water companies are acting consistently with the strategy, water and sewerage companies have a regulator—Ofwat—for their water supply and sewerage functions, but the scrutiny committees will also be able to scrutinise a water company’s exercise of its flood risk management functions.

The hon. Member for Vale of York asked whether the Secretary of State and Welsh Ministers should be informed of any investigation. A large number of incidents could occur and it is not appropriate to refer them all to the Secretary of State or to Welsh Ministers. We would expect to be notified of investigations into major incidents, though. Some of these cases, such as the Cumbrian example, to which the hon. Lady referred, would also be investigated by the EA, and they can and would be summarised, of course, in its annual report.

The hon. Lady also asked about mechanisms for local authorities to investigate in the context of the partnerships to which the Bill refers. Authorities can work together; there are co-operation arrangements in clause 13 and provision for the ability to request information. There is no formal mention of partnership specifically. However, we have made it clear that the duty to co-operate is in the spirit—and will be the effect—of the Bill. That includes the investigation function.

I understand that amendment 42 is in response to representations that have been made to my hon. Friend the Member for Newport, East. There is, understandably, concern from a number of local authorities and others that the requirements as currently proposed could be—and I emphasise “could be”—interpreted as excessively onerous on them. My hon. Friend mentioned that the Local Government Flood Forum, in particular, raised the issue in the written evidence to the Committee. It suggested that a

“common sense approach should be taken with registers, strategies and designations. They should be completed with regard to need, risk and the value that they add.”

It expressed particular concern that the definition of flooding is broad, stating:

“In many cases it's not in doubt who is responsible so the LGFF suggests that a qualifying statement be inserted that makes it clear that the lead local flood authority only need investigate where it's not clear who was responsible.”

I am sure that hon. Members will understand that there is a standard requirement for public bodies to act reasonably, as I mentioned and as has been discussed in Committee.

However, my hon. Friend has tabled an interesting and potentially helpful amendment. It would make it clear that the lead local authority should take proportionate action to clarify rather than investigate which flood risk management authorities have relevant flood risk functions. That could go a long way to ensuring that local authorities  take a common-sense approach, which provides good value for money and adds value. However, I should like to consider further how we can most successfully address the issues raised and clarify the intended scope of the duty. With those remarks on clarification, I ask hon. Members to consider withdrawing the amendment.

I thank the Minister for his remarks. I take the point that some of the other scrutiny arrangements in the Bill may render Amendment 105 unnecessary. In a sense, I agree that the most important level at which to have transparency about lead local authority investigations is local. However, I was not particularly reassured by his remarks regarding the national ability to launch investigations for the Environment Agency, which we seek to include. He talked about a single point of contact being very important, and implied that that would be the lead local authority.

Last week, the Minister told us, in reply to one of our other amendments, that the single point of contact was to be the national Floodline, which is operated by the Environment Agency. He cannot have it both ways. To start with, that is two single points of contact and I can imagine that, if there is more than one single point of contact, there will be disagreements between them about exactly who is responsible for what, and the whole system starts to break down. This is precisely the kind of confusion about which everybody was worried, and which many of us experienced in the aftermath of the floods. The amendment seeks to rectify that.

The Minister said that, rather than the Environment Agency’s launching its own investigations, it was clear in the Bill that the Secretary of State would have the power to direct flood risk management authorities, which were not carrying out their functions properly, to do so. However, that implies that the Minister would act on the advice, principally, of civil servants, and without an Environment Agency investigation. That rather suggests that the Department would be trying to do the Environment Agency’s job for it, further confusing exactly who is responsible. This is a poorly thought-out part of the Bill. The confusion of responsibility was one of the main complaints after the floods.

I just thought that an Intervention might help to expand upon my earlier explanation. One thing I did not remark on was that we anticipate that local authorities will make use of the EA’s Floodline service in providing the local service, particularly for the reporting of incidents, so there is a synchronicity between the two.

I do not remember “synchronicity” being the word that the Pitt report used; I think it said single point of contact. I think that that is what many organisations, like the National Flood Forum, have emphasised is absolutely necessary.

As I was concluding, our discussion has revealed a rather poorly thought-out set of interlocking responsibilities in the Bill. Those responsibilities need to be invested, at national level, in one body with the power to investigate and go after authorities that are not carrying out their functions properly. All members of the public should  know that, when push comes to shove, that is the one body to which they can take their complaints, and which they know has the power to address them.

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

Clause 19 ordered to stand part of the Bill.