Water (Special Measures) Bill [HL]

Lord Blencathra Excerpts

2nd reading
Wednesday 9th October 2024 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I declare my interest as set out in the register.

This is an interesting little Bill. Among the first bits of advice I had from my illustrious predecessor, the great Willie Whitelaw, when I became an MP in his place, was, “Remember, David, in Parliament always distinguish between activity and achievement because there are those who run around being highly active but achieve nothing”.

I understand where the Government are coming from with this Bill. There are problems in the water industry—that is not the fault of privatisation, which has been successful, but of inadequate regulation by Ofwat. Those problems were addressed by the previous Government in the extensive Plan for Water, and the new Secretary of State, in his speech to the water industry on 5 September, seemed to repeat most of the items in that plan. He ruled out nationalisation and said that water companies need to attract private investment. He said he wanted to address catchment-level water solutions, and to that end intends to run a full review and seek a reset of the industry and a new partnership. He also wanted nine more reservoirs built, along with pipelines and peatlands, to help store water. These are very important issues. If that could be delivered then that would be a major reset and a real achievement. We all want to see that review conducted as speedily as possible, especially since the Plan for Water, published by the previous Government in 2023, set out most of what seems to be on the Secretary of State’s agenda.

Then we come to the Bill and what it will achieve. In launching the Bill and the proposal to double compensation for water cut-offs, the Secretary of State used phrases such as “crack down” and “toughen up” as he outlined measures to send executives to prison, automatic fines by the regulator, changing the burden of proof and a whole new range of unspecified powers for the Secretary of State and the Environment Agency. To me, it sounded very much like a remake of Tony Blair’s

“Tough on crime, tough on the causes of crime”—


which did not work then, despite the rhetoric. That is a lot of activity, but where is the impact assessment by the Government to show what it will achieve? The Government hope that automatic fines and the changed burden of proof will free up the Environment Agency to pursue the larger and more complex cases. If that is the case then we should see the calculations leading to that belief.

Will the measures in this Bill improve water quality? Charles Watson, the chair of River Action, said that while it was a “relief” to see the new Government acknowledge problems in the water sector, only a “comprehensive and holistic review” of regulation would fix matters. James Wallace, the chief executive, said:

“Talking about CEO bonuses is not going to sort things out. What we really need to see is a regulator, the Environment Agency, with its teeth given back and its funding given back”.


The Chartered Institution of Water and Environmental Management, while welcoming the review, said it is of paramount importance

“that this review cuts right across the activities of all government departments. From Defra, through housing, transport, energy, health and more. It mustn’t be kept in a Defra-sized box, or it will fail to match Reed’s ambitious pitch”.

I hope the Minister will confirm that the review will cut across all those different government departments and agencies.

Those I have just quoted welcome the Bill as a little step forward, but the real achievement would be if the Government could deliver on the Secretary of State’s vision in the review. That is why I conclude that the Bill is good political talking tough, but it might achieve little; it is possibly activity over achievement. However, we shall examine it fairly and seek to improve it, while asking some key questions.

First, I want to look at new Section 35B of the Water Industry Act 1991, which introduces the concept of “specified standards”. The existing Section 35A already deals with remuneration. The company has to base it on meeting “standards of performance,” in the wording of Section 35A of the 1991 Act. The water services regulation authority, Ofwat, will be given the power to draft rules on what these specified standards are, including whether someone is a fit and proper person to be a senior officer,

“or in respect of other matters”.

That is quite a wide-ranging power. How will it interface with the Company Directors Disqualification Act 1986, which provides extensive powers to disqualify a director? The Financial Conduct Authority also has rules on what is a fit and proper person.

In future, we could see water company executives who will have satisfied all the company law criteria to be a director, but their remuneration will be subject to new so-called “specified standards”. Those standards will include

“consumer matters, … the environment, … the financial resilience of undertakers, and … the criminal liability of undertakers”,

and

“any other matters that the Authority considers appropriate”.

Who on earth will ever want to be a director of any water company with those potentially onerous conditions? We have no idea yet what those conditions will be, and it is essential that we have some indication of that before we get to Report. The Secretary of State has to be consulted under new Section 35C. Since the Government have specifically made a big fuss about these new rules, the Government must have some idea of what they want in them and cannot say, “Oh it is not up to us; it is entirely up to the authority in due course to invent the rules”.

Punishing directors for carrying out the wishes of the shareholders is surely the wrong approach. When Macquarie had 48% of the shares in Thames Water, jacked up the debt by £2.8 billion and took out £1.1 billion in dividends, do we really think that the managing director and directors could have stopped that? The majority shareholder, I submit, was in the driving seat. Macquarie and other shareholders would have rapidly replaced those directors and executives if they tried to limit dividends and spend more of the profits on infra- structure. There is no question on these Benches of us seeking to let water companies off the hook. Where they have failed to deliver, they should suffer sanctions and penalties. However, penalising the management is targeting the wrong group; it is the shareholders who should lose out financially for company wrongdoing, however that may be defined. The description of a person in a “senior role” includes

“such other description of role with the undertaker as may be specified”.

We need to know a little more about who those people might be. That is something we shall need to explore in Committee.

I turn to Clause 4, which amends Section 110 of the Environment Act 1995 with a new imprisonment provision, of which the Government have made a big thing. Sections 110(1) and (2) of the Act sets out the offences of knowingly obstructing “an authorised person” from carrying out lawful duties, of failing

“to comply with any requirement”,

of preventing

“any other person from appearing before an authorised person”

or of failing to “provide facilities” for an investigation. That person shall be guilty of an offence. The penalty is a summary fine or imprisonment to the maximum of the magistrates’ court levels. On indictment, it could be a fine and/or up to two years in prison.

That is the current law, so how does Clause 4 change it? It makes not a single change to the offences in Sections 110(1) and (2). It makes not a single change to the fines and imprisonment. I am very happy to be corrected by the Minister, and I hear what she said about there being a difference. I am happy to be educated on that in Committee, but it seems that the Government here are dancing on the head of a pin—making a big thing about a tiny little change. I think these offences were included in the past. This clause seems to replicate existing provisions to let the Government boast that they are taking tough action against water undertakers, to make a political point.

I instinctively dislike civil penalties imposed by government or arm’s-length bodies or other organisations, whether it is the Inland Revenue or a parking fine company. It avoids due process. I leave it to the noble and learned Lords in this place to give their opinions on the dangers of changing the burden of proof from “beyond reasonable doubt” to just “the balance of probabilities”. I have no problems if a company has genuinely committed the offences and deserves the penalties, but changing the balance of proof could mean that some were unjustly penalised. That could result in large fines and damage to the company’s reputation.

I have similar concerns with Clause 6, on automatic penalties for specified offences that will be created by the Secretary of State. At least those have to be laid before Parliament under the affirmative procedure, and we will have a chance to debate them. As the noble Baroness pointed out on the delegated powers, the Bill gives enormous powers to government agencies. I look forward to reading the Delegated Powers Committee’s report to see what it says about the powers in the Bill and whether it agrees with the Government that the scrutiny they propose is adequate. I also want to see more of the Government’s thinking on the regulations they propose. They cannot say that it will be up to Ofwat and the Environment Agency to invent the rules, and that it is nothing to do with them. They have clear ideas about what they want in the regulations, and we need a steer.

We will also want to explore the Government’s thinking on the involvement of consumers in board decision-making. The Bill is exceptionally vague on that. Clause 1(3) requires a water company to involve consumers in any decisions

“likely to have a material impact”

on consumers. I suggest that any decision made is likely to have an impact on consumers, so what is the Government’s definition of “material”? Clause 1(3) also says that consumer views may be represented by someone being on a “board, committee or panel”. These are radically different concepts, from executive decision-making to an advisory panel. Again, we would like to hear more of the Government’s thinking.

The Secretary of State made a major speech to the water industry on 5 September, and committed the Government to building nine new reservoirs, multiple large-scale water transfer schemes and 8,000 kilometres of water mains pipes, and to upgrading 2,500 storm overflows. As the noble Baroness said, Ofwat costed that at £88 billion. The Secretary of State, in his interview last Sunday, was adamant that every penny of that money would be raised in the private sector and invested within the next five years. As the Secretary of State is clear that these things need to be done—a lot of them were set out in the Plan for Water of 2023 —and it would be a real achievement to do them, why are they being kicked into a long-term review? That is what we should be discussing in this House as soon as possible—the balance between investment and increasing water bills.

The Secretary of State’s endorsement of privatisation and bringing in private investment was interesting. He said that his plans would

“unlock the biggest ever investment in our water sector, and the second biggest private sector investment into any part of the economy for the entirety of this Parliament”.

In other words, he was saying that privatisation worked, but proper regulation was inadequate.

Those are the big issues that will actually deliver a better water industry, not the presentational matters in the Bill. Nevertheless, we will explore it constructively, support it where it is right, and seek to amend it where necessary to ensure due process and clarity. We look forward to addressing all that in Committee.

Environment and Climate Change Committee Report: An Extraordinary Challenge: Restoring 30 per cent of our Land and Sea by 2030

Lord Blencathra Excerpts

Wednesday 11th September 2024 Grand Committee

[Lord Blencathra (Con)]

My Lords, in standing in for my noble friend Lord Roborough, who could not be present at the start of this debate, I must tell the Committee that the last time I clutched a Dispatch Box desperately seeking inspiration was Thursday 20 March 1997. I was the last Conservative Minister to answer a departmental Question at 3.15 pm, immediately followed by John Major answering his last PMQs, and then we prorogued for the general election. Some 28 years later I am an example of His Majesty’s policy of patching up and mending old things, and putting them to work again.

I need to declare my interests as on the register but to go further too. I remain for the next three months the deputy chair of Natural England. I have checked with the clerks and, while I can talk factually about nature, Natural England, this report and the last Government’s response, under the Addison rule I cannot speak officially for Natural England, nor answer questions about its activities or advocate its policies—only the Minister can do that. Because of my position in Natural England, I am automatically on the Joint Nature Conservation Committee, so I leave it to the Minister to say what a brilliant job we are doing in Natural England.

I welcome the Minister to her post. There is no one better on the Labour Benches in the Lords to do it, and she is an excellent addition to the Defra ministerial team.

I commend the noble Baroness, Lady Parminter, and all the noble Lords who conducted the 30 by 30 inquiry, on their recommendations. I also commend the 16 noble Lords who have spoken today. They made excellent points, including in the superb speech by my noble friend Lord Goldsmith of Richmond Park, who is welcome to take this seat back any time he likes.

A lot has happened since the report was published in July 2023, and not just the change of Government. Noble Lords have read the last Government’s response, and in the changed circumstances I see no point in rehashing it all today. The report called for national parks to be given a new statutory duty to protect nature, and Section 245 of the Levelling-up and Regeneration Act imposed a new duty to do just that; I hope that my noble friend Lord Harlech will be reassured by that. As I recall, that was the Lord Randall amendment in the Lords.

The report called for local nature recovery strategies to be given statutory underpinning in local development plans. Schedule 7 to the levelling-up Act did that; I believe that was the Baroness Parminter amendment. On SSSIs, I say to my noble friend Lord Harlech that Natural England has now moved fully to assessing the condition of SSSI features at the site scale, and the focus is on bringing SSSI condition assessments up to date and in line with the EIP target to complete this by the end of January 2028—although that is highly dependent on not cutting Natural England’s grant in aid.

Natural England is also progressing the EIP target to have action under way and on track by January 2028, which will bring 50% of SSSI features into favourable condition. Natural England is continuing to look for improvements in the approach to monitoring —to make more use of modern technology, such as earth observation, to increase the contribution of participatory science, and to utilise condition assessments gathered by third parties, such as ENGOs, which my noble friend Lord Lucas called for—and we aim to grow that.

I say to the noble Baroness, Lady Young of Old Scone, that I have been involved in about six new SSSI designations or extensions. They may not be many in number but two were absolutely massive, including a large one down in west Cornwall—which was slightly controversial—and another large one near RAF Fairford and the waterworks around there.

The report underplays the role played by national nature reserves, which I argue are a legitimate component of other effective conservation measures. I submit that the country’s NNRs meet the OECM criteria defined in CBD 15 and in the Government’s nature recovery Green Paper. There are currently 221 national nature reserve sites, which comprise 110,000 hectares or 427 square miles. That is 0.85% of England’s area. Natural England manages 134, the Wildlife Trusts 50, the National Trust 20, local authorities 29 and the RSPB, National Parks, other NGOs and other government agencies 34.

Let me cite a superb example: the new, supersized Purbeck Heaths NNR announced in 2020. Seven organisations manage it: Natural England, the National Trust, the RSPB, the Amphibian and Reptile Conservation Trust, the Dorset Wildlife Trust, Forestry England and the Rempstone Estate. The new NNR is larger than the original NNR, which was 996 hectares—it is now 3,331 hectares, a 234% increase. It is better, as it is increasing biodiversity and creating a more dynamic and resilient landscape, and it is more joined up, as it has a huge continuous grazing area and landscape-scale objectives.

Another excellent example is the Somerset Wetlands “super” NNR which links up six pre-existing national nature reserves on the Somerset Levels and Moors. It is managed in partnership by Natural England, the Environment Agency and five other NGOs. The crucial point is that some say NNRs should not be included in the OECM category nor count towards 30 by 30, since they are not statutorily protected—but that is a feeble point. These organisations are all approved by Natural England to manage reserves properly and bring about species recovery and conservation. Thus, I say to the Minister that they should be included as part of our 30 by 30 targets, since they may be managed by other effective means, as my noble friend Lord Lucas pointed out.

Finally on national nature reserves, paragraph 83 of the report said:

“We recommend that the Government enable and resource Natural England to develop and publicise accessible digital and offline tools and communications to enable members of the public to learn about and engage with their local protected areas”.


I agree entirely but, before doing so, we need to sort out proper online publicity for the 134 national nature reserves run by Natural England. I invite everyone, including the Minister, to search “visit a national nature reserve” on Google. Up will pop some very sexy sites with superb photos, but they are all from the National Trust, the RSPB, the Wildlife Trusts and NNRs run by similar organisations. Down that list somewhere will be a GOV.UK site called “National Nature Reserves in England”. Click on that and it will reveal 11 regional categories. Click on “North West NNRs” and it will reveal seven more categories. If the Minister clicks on “Cumbria”, that will list 37 NNRs—without a single map to help you. If she clicks on “Bassenthwaite Lake”, she will get this:

“The reserve is a shallow, balanced nutrient lake in the north-west of the Lake District. Main habitats: open water”.


To paraphrase Bob Geldof, is that it? It is the most beautiful landscape—after Ullswater and Blencathra, of course—and there is not a single photo of it, nor of any other national nature reserve, featured on GOV.UK. No wonder the NNRs managed by the other organisations have five times the visitor numbers. We all want people to access nature for the benefits it brings to health. I hope the Minister will have far more success than I have had over the last six years trying to get a dedicated site for national nature reserves, rather than buried in the bowels of GOV.UK.

The report, in paragraphs 73 to 75, urges the Government to prioritise working with the overseas territories. As the Minister will know, 94% of the United Kingdom’s biodiversity is not in Great Britain and Northern Ireland but in our 14 overseas territories, their unique islands and their 6.4 million square kilometres of ocean. The Darwin Plus scheme applies to our OTs.

I was the Minister way back at the first Earth Summit in 1992 in Rio, which launched the Darwin Initiative. I must admit, as a new, five week-old Environment Minister, I had not a clue what I was launching. I read the brief and had no idea how successful the scheme would turn out to be. Now, the Government have funded over 1,275 projects at a cost of £230 million, achieving both biodiversity conservation and multi- dimensional poverty reduction. Twelve years ago, I worked with our overseas territories for a few years and saw at first hand the splendid work the Joint Nature Conservation Committee did in our OTs and how the OTs desperately wanted more JNCC input, if only it could afford it.

Minister, it is an easy and impressive win for us in here in the United Kingdom to support the Blue Belt programme and the overseas territories biodiversity strategy being worked up at this precise moment by the JNCC and Defra. The JNCC has also done work on creating blue finance criteria, so that companies can invest in nature recovery projects in our United Kingdom’s oceans and our overseas territories’ seas and know that it is not genuine and not bluewashing.

The report made some very important recommendations on marine monitoring, and discussing all the implications could be a full day’s debate in itself. The last Government’s response pointed to the targets in the EIP and said that monitoring is very complex. Indeed it is. Natural England identified our marine protected areas in just 10 years. That was a splendid achievement, but identifying and designating them is one thing; managing them is another. All of us here can stand on a piece of land and have a fair idea of what it is, its condition and what we think we would like to do to improve it, but we can stand at the edge of the ocean and we have not got a clue what is happening under the surface. If we cannot measure it, we cannot manage it.

All I can say today is that I encourage the Government to step up all marine monitoring efforts, which are essential for biodiversity and carbon capture and form part of our 30 by 30 target. I agree entirely with my noble friend Lord Caithness, the noble Baronesses, Lady Boycott and Lady Jones of Moulsecoomb, and my noble friend Lord Banner, on bottom trawling. I have been deeply involved in all this for the last six years and, as your Lordships know, I can bore for England—or Natural England—on it, but let me give some general observations and advice to the Minister, if I may be so impertinent.

Much of the Government’s growth talk has been about building houses, and more houses are urgently needed. I accept that not all so-called green-belt land is sacrosanct and there are poorer bits which can be built on, but genuine high-quality green belt must be protected. Growth and nature are not exclusive; they are complementary. If the Government build houses on grey belt land, they must ensure that there is green space right around them for gardens, space for nature and rewilding, tree-lined streets and not just a token little green park 15 minutes away. I agree with my noble friend Lord Gascoigne, who made that exact same point. Nature recovery is essential in our towns and cities, not just the countryside.

On the countryside, I appeal to the Minister to maintain the £2.4 billion expenditure on ELMS and innovation grants. Farmers are key to nature recovery, as well as producing the food we need.

My main disagreement with my noble friend Lord Banner is that, in my experience farmers excel with carrots rather than sticks. I hope the Government will take on board the points made about tenant farmers by my noble friends Lady Rock and Lady McIntosh of Pickering.

Also, Minister, please get the message across to all those doing big infrastructure projects to consult Defra’s arm’s-length bodies, including Natural England, at a very early stage to look at what protected species might be affected. Workarounds can then be done in the early stages, but if they wait until the bulldozers are about to demolish the bat roosts, the ancient woodlands or the Ramsar sites, then delays will occur—delays caused not by the intransigence of Defra’s arm’s-length bodies but by the law.

Over the last few years, the Forestry Commission, the Environment Agency and Natural England have liaised to increase co-operative working on the ground. That makes sense. If we are to deliver 30 by 30, then we have to work together. If, for example, we look at a river catchment area, the Environment Agency will have a view on river flows and dredging, the Forestry Commission will have a view on what trees should be planted on the banks or nearby and Natural England will have a view on what other flora and fauna, such as beavers or voles, could be present. By co-operating, we get the best possible solutions to reduce flooding, increase woodland and recover nature and wildlife, and that will help deliver 30 by 30. Working together would assist in removing the uncertainty that concerned the noble Earl, Lord Devon. My plea to the Minister is that all the Ministers, in the Commons and here, and the directorates in Defra collaborate in the way that the three ALBs I mentioned are collaborating on the ground at operational level.

As the Government look to create three new national forests and nine new river footpaths, deliver the best possible nature recovery programmes in ELMs and revise their EIP targets, can we ensure, for example, that the forests link in with existing SSSIs, national nature reserves or landscape recovery projects to create wildlife corridors which are more joined up and protected, as my noble friend Lord Gascoigne suggested? Our national forests could also be part of our 30 by 30 targets, as well as the ELM and landscape recovery schemes, provided they meet the criteria. The take-up of schemes for landscape recovery has been incredibly excellent and is beginning to make a real difference for nature recovery: that is farmers volunteering to farm for food and nature. A time may soon come when these could also be included in our 30 by 30 target, provided that they meet the quality thresholds.

Let me conclude on this note: the one area where the Government cannot blame the Tories—

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Baroness Hayman of Ullock) (Lab)]

Is there just one?

[Lord Blencathra (Con)]

There is more than one, but one area is our Environment Act, which has given us the tools for nature recovery for the first time in our history. I invite all colleagues to look at Sections 98 to 116, which include “Biodiversity gain”, the “duty to conserve and enhance” nature, “Local nature recovery strategies”, “Species conservation strategies”, “Protected site strategies”, controlling tree felling and “Habitats Regulations”. Add in “Conservation Covenants” in Part 7 and the ELM schemes from the Agriculture Act and we have the greatest raft of measures for nature recovery that this country has ever seen. As nature recovers in those areas, then they can become protected and could qualify for 30 by 30. I suggest to the noble Baroness, Lady Jones of Moulsecoomb, that these powers are better than the new commission she suggested, but I do wish her a speedy recovery for her trusty right boot, provided it is not used on me.

Indeed, the Labour manifesto, on page 58, calls it “our Environment Ac.t” I did not expect it to say, “Michael Gove’s brilliant Environment Act”, but what I take from that wording is that they will tweak the EIP targets and tweak some other things, but they will not undermine the excellent new levers in our Environment Act. Let us use every lever in that Act, not just to bend the curve on nature loss, but to achieve real, sustained and progressive recovery of nature in this country.