Water use: temporary bans

I beg to move Amendment 145, in Clause 36, page 20, leave out lines 25 to 27 and insert—

‘(2) The following uses of water using a hosepipe or similar apparatus may be prohibited—

(a) watering gardens, lawns and landscaped areas;

(b) operating ornamental fountains and cascades;

(c) cleaning private motor vehicles;

(d) cleaning private boats, other vessels and watercraft;

(e) cleaning patios, drives, paths, pavements and other similar artificial external surfaces;

(f) operating private water slides and other water-based facilities designed for the entertainment of children;

(g) filling private ponds (other than fish ponds);

(h) cleaning external surfaces of non-commercial buildings.

(2A) The use of water using a hosepipe or other means for filling private swimming pools, paddling pools, hot tubs and similar bathing facilities may also be prohibited.’.

With this it will be convenient to discuss the following: Amendment 146, in Clause 36, page 20, leave out lines 38 to 41 and insert—

‘(6) Where a water undertaker makes a specific charge for a use which it prohibits under this section, it must make arrangements for a reasonable reduction of that charge (including arrangements for repayment or credit where the charge is paid in advance).’.

Amendment 35, in clause 36, page 20, line 42, at end insert—

‘(8) In this section “private motor vehicle” means any mechanically propelled vehicle intended or adapted for use on roads other than—

(a) a public service vehicle within the meaning of the Public Passenger Vehicles Act 1981(c.14); or

(b) a goods vehicle within the meaning of the Road Traffic Act 1988 (c.52) including any vehicle drawn by a private motor car.’.

Amendment 36, in clause 36, page 21, leave out lines 16 and 17.

Amendment 37, in clause 36, page 21, line 17, at end insert—

‘(d) set out the reduction in charges to be made under section 76(6).’.

Amendment 147, in clause 36, page 21, leave out lines 45 and 46.

The amendments are grouped because they relate to each other. I hope that they are self-explanatory, and encourage the Committee to support them.

Amendments 35, 36 and 37 might appear obscure, but we are seeking to restore in the Bill the definition of “private motor vehicle” that exists in the Water Industry Act 1991, which the proposed new section amends. This little group, particularly amendments 35, 36 and 37, provides the Minister with an opportunity to explain why the Government have decided not to include, but definitely to exclude, the definition from the Bill, as my understanding is that the definition of private motor vehicle would go some way to protecting certain businesses at times of hosepipe bans, as well as allowing public vehicles to be cleaned. We can all imagine the nature of the public vehicles that would be encompassed by the amendments.

We can think of no apparent reason why the Minister would need to reserve to himself the power of secondary legislation to amend the definition. Perhaps he will take this opportunity to explain why he is seeking to do so. In our view, the definition in the 1991 Act is clear and sufficient for the purposes, and we hope that he will agree to reinstate it so as to avoid any evidence of doubt when the Act is interpreted.

Amendments 145, 146 and 147 are consequential on a previous Amendment. Proposed new section 76(2)(c) will allow the Minister to define by order the terms in section 76(2). The Bill requires water companies to offer reasonable reductions in charges when restrictions are placed on use, but there is no definition of what reasonable reductions might be. The Minister should have the power to set out in more detail the reduction of charges expected if water companies cannot, do not or will not offer reductions that consumers consider to be reasonable. We invite the Minister to comment on that.

We propose to omit lines 16 and 17 on page 21 of Clause 36. The provision raises concerns about the role of the Environment Agency by giving it the ability to carry out work that might increase flooding or erosion and the responsibility to balance whether the benefits of the work will outweigh the damage caused to human health, the economy, infrastructure or the environment. The amendments question whether the Environment Agency is in the best position to balance those competing interests and, ultimately, to take decisions that could affect many people’s lives. We think that such decisions might best be taken by elected representatives, albeit with the support and co-operation of the Environment Agency.

The original draft Bill that was consulted on—I know that a number of issues were raised—did not give the Environment Agency the power to balance those competing interests. Rather, it allowed the agency to carry out potentially damaging work only when it explicitly would not create or increase the harmful effects. Our amendment would restore the original drafting, which is not perfect, as it still leaves too little a role, but would involve local authorities. The Minister must take this opportunity to explain to us why he thinks the new roles are better.

We also seek clarity on the types of work envisaged and what weight will be given to councils, internal drainage boards and local flood authorities during the consultation process outlined in the conditions set out. Concerns about the water restriction purposes have been expressed by horticultural groups, particularly Johnsons of Whixley, which is based in Vale of York and with which I currently enjoy good working relations. We are trying to balance what the role of the water companies should be, but we are also mindful of the horticultural interest.

I was desperately trying to think of a horticulturist in my Constituency that I could mention in a brazen attempt at product placement, but I will hold back. If I name one, the others will all be after me.

Once again, I will be an extremely reasonable Minister. Amendment 36 suggests a list of additional uses for water that a water company may restrict under its own powers, similar to the one that the Department for Environment, Food and Rural Affairs considered should be added when we published the response to our 2007 consultation on changes to the hosepipe ban legislation. The reason why we did not propose the same list ourselves in this Clause is that we need to obtain further information on the costs and benefits—as we set out in the impact  assessment—by which I mean the potential of each activity to save water and the cost of restrictions to customers.

We sought further evidence on that issue in the consultation on the draft Bill, but we did not get back anything of any great use in response. It is the sort of list that we will be bringing forward, and we do not think that it is far off the mark. If the hon. Lady will consider withdrawing her amendment, we can rapidly turn this round, go back, have a look at the matter and ensure that we have got it right and put it in the Bill. Ideally, we would like to consider each amendment in turn, but we can happily get this on to the Bill.

Other amendments include one that defines a “private motor vehicle”, and one that removes the provision that enables the Government to define words and phrases in relation to the specified uses of water that can be prohibited. I can see that the amendments have been tabled in the hope and expectation that by including the definition of a private motor vehicle, we will remove the need to use secondary legislation. Our intention is to use the provision for secondary legislation to define not only what is meant by a private motor vehicle, but what is meant by a private garden or “using a hosepipe”, as there has been some uncertainty about the exact scope of those phrases.

In future, we will also use the provision to define new words and phrases as appropriate, as further uses are added or existing uses amended. As hon. Members have said before, future-proofing holds very true here. Future-proofing in legislation allows the Government to clarify any uncertainties on scope that arise over time. Given the potential impact on customers, it is important that we have this ability to address uncertainties that emerge and refine definitions.

In addition, hon. Members have suggested redrafting section 76(6) of the Water Industry Act 1991 to clarify the requirement for a water undertaker to make a reduction in charges if it has made a specific charge for a use that is subsequently banned, such as in the case of the hosepipe and sprinkler ban. However, we believe that the section as drafted already has that effect, and it does not impose a more general requirement for a reduction in charges simply because restrictions are put in place.

Hon. Members are also seeking an amendment to include provision for the Minister, by order, to set out the reduction in charges to be made by water undertakers in respect of prohibited uses. It is entirely right that, where appropriate, reasonable reductions should be made, and that is what we are seeking to ensure. The precise detail of tariffs and reductions is a matter for the economic regulator to agree with the water undertakers.

Finally, hon. Members have proposed an amendment to remove the requirement for water undertakers to publish details of how representations may be made in respect of any temporary bans. That would remove a basic but important element of the duty to act fairly when exercising statutory powers, which enables customers to draw attention to potentially unforeseen impacts and to ensure that the water undertaker considers them before imposing those restrictions. The processes outlined in this clause will help to ensure that water undertakers  act proportionately in response to water shortages. It strikes that balance between the needs of the water undertakers to conserve water and the interests of the customer who may be affected by that decision. Given that clarification and the offer to come back with an amendment on clause 36 once we have considered the drafting, I hope the hon. Lady will consider withdrawing the amendment.

The Minister is being very generous and gracious, so we will pursue this matter further with him. For the present, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

I beg to move Amendment 27, in Clause 36, page 20, line 42, at end insert—

‘(8) A water undertaker must exercise its powers under this section in conformity with the relevant code of practice under section 76D.’.

With this it will be convenient to discuss Amendment 28, in Clause 36, page 22, line 42, at end insert—

‘76D Codes of practice

(1) There shall be a code of practice for England and a code of practice for Wales, issued by the Minister, about water undertakers’ exercise of their powers under section 76.

(2) Each code must, in particular, contain provision for the purpose of ensuring that—

(a) water undertakers exercise their powers under section 76 in a way that is proportionate to what is sought to be achieved and that is fair as between different users or groups of users of water,

(b) variations in the exercise of powers under section 76 as between water undertakers for neighbouring areas are kept to a minimum, and

(c) persons affected by the exercise of a power conferred by that section receive clear and timely information about its effect.

(3) In subsection (2)—

(a) the “proportionate” exercise of powers includes the introduction, or consideration of introduction, of less restrictive measures (such as restriction of hosepipe use to alternate days or to particular purposes) unless and until the water undertaker is satisfied that more restrictive measures are necessary, and

(b) the “fair” exercise of powers includes their exercise in a way that reflects the relative efficiency of different uses of water.

(4) The Minister—

(a) may vary or revoke a code, but

(b) must ensure that a code has effect at all times when section 76 is in force, and

(c) must ensure that each code, as it currently has effect, is published in such way as the Minister considers appropriate.

(5) Before issuing, varying or revoking a code, the Minister must consult persons who in the Minister’s opinion represent interests likely to be affected by water undertakers’ exercise of their powers under section 76.

(6) In this section—

“code” means a code of practice under subsection (1), and

“the Minister” has the meaning given by section 76A(4).’.

After three comparatively wet summers in most of the UK, it seems a long time since hosepipe bans were part of UK life. However, in anticipation of a drier summer in future, they are worth considering. The  amendments would effectively place a duty on the Secretary of State and Welsh Ministers to issue a code of practice for hosepipe bans, and a duty on water companies to conform to it.

As I understand it, water companies issue codes, but they are not very coherent or uniform, and that makes it difficult for people to comply with them. Subsection (2) of proposed new section 76D of the Water Industry Act 1991 would require each code to aim for three goals. They are, broadly, our old friends proportionality and fairness; minimum variation between neighbouring companies; and adequate information for consumers about what is and is not permitted. They are designed to respond to the concerns explained in the Horticultural Trades Association’s comments on the Bill.

Subsection (4)(a) would make it clear that proportionality includes a graduated approach to the exercise of powers under section 76. The code should clarify that, unless there is good reason to the contrary, a water company should introduce narrower, more tightly focused restrictions—such as hosepipe use on alternate days or for a particulate purpose, such as gardening, rather than car washing—before broader, indiscriminate ones.

Subsection 3(b) would provide that fairness includes taking account of differences in the efficiency of water use.

The proposed new section is not prescriptive, so the Secretary of State and Welsh Ministers will have discretion over the exact provision that should be made to further the goals.

Is it the hon. Gentleman’s intention to include in the Amendment protection for, for example, the horticultural industry and those who run garden centres and so on? In conditions of severe drought, they can be in danger of losing their stock, which would have a grave financial impact on the viability of their businesses.

I thank the hon. Lady for raising that point. As I understand it, commercial organisations are not covered by the restrictions. The horticultural industry is concerned because a broad ban makes people’s gardens difficult to maintain and leads to death and disease in plants, which could be avoided in the case of a more discrete ban.

Subsection (3) would provide flexibility by enabling a code to be varied or revoked, but a code must be in place at all times while section 76 is in force. When a code is revoked, a new code would have to take effect at the same time.

The proposed new section does not set out any formal procedure for issuing, varying or revoking a code, but subsection (5) requires consultation before a code is issued or varied. The requirement is drafted in identical terms to the equivalent provision in Clause 35—proposed new section 36G(2) of the 1991 Act.

Subsection (4) would also require the current version of the code to be made available to the public.

I appreciate the spirit of the amendments, which would require the introduction of and conformity with a statutory code of practice, whereby water undertakers used their powers to introduce temporary bans in times of water shortage.

As the hon. Gentleman said, water undertakers have a statutory duty to supply water for domestic purposes, such as drinking, cleaning and cooking. When water is in short supply, water companies must be able to restrict the use of water for non-essential purposes. Their drought plans, on which they rightly have to consult publicly, set out the way in which each water undertaker would deal with drought in their own area. That varies from area to area, depending on the topography and other local factors. The plans also include the triggers that cause the water undertakers to initiate a range of actions.

The water industry has indeed responded to Government proposals to produce a code of practice, and it has done so. The code concentrates on exactly the principles that the hon. Gentleman is trying to achieve, particularly those in respect of proportionality, consistency and transparency.

However, we acknowledge that, as we have seen in the past in the UK, droughts are not uniform events in terms of either location or duration. We firmly believe that undertakers must be able to react speedily and with flexibility to conditions in their area of supply, working with others to ensure that they have the plans right, so that they can achieve the objective of conserving water for domestic uses and for preventing the need for more restrictive measures to be put in place.

The order-making power at proposed new section 76(A)(2) allows the Secretary of State, or Welsh Ministers in Wales, to provide further detail as to the extent of the power by defining a word or constraining the extent of the power, for example, or by providing for exceptions to the restrictions—by preventing water companies from restricting certain businesses from using water if the negative impact on their business would outweigh the benefits of conserving the water, for instance.

The Government will keep under review how each water company exercises the powers and, taking into account the public interest, may adjust the powers using the secondary legislation provision in proposed new section 76(A)(2), if they think that appropriate. We can do what the hon. Gentleman suggests, and we will—we have to—keep this issue under close review. I hope that, with that assurance, he will withdraw the Amendment.

I have listened to the Minister’s response and explanation. On the basis that it is possible to refine the hosepipe ban, and not make it a broad ban, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 36 ordered to stand part of the Bill.

Clause 37 ordered to stand part of the Bill.