Water Abstraction Regulations

Baroness Jones of Whitchurch Excerpts

Monday 15th January 2018 Lords Chamber

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[Baroness Jones of Whitchurch]

That this House regrets that the Water Abstraction (Specified Enactments) Regulations 2017 (SI 2017/1042), the Water Abstraction and Impounding (Exemptions) Regulations 2017 (SI 2017/1044), the Water Abstraction (Revocations etc.) (England) Order 2017 (SI 2017/1046), and the Water Abstraction (Transitional Provisions) Regulations 2017 (SI 2017/1047) have missed the 2012 deadline set in the European Union Water Framework Directive which has required Her Majesty’s Government to explain their general implementation of the legislation to the European Commission; notes that the Regulations draw on a consultation exercise originally carried out in 2009 and then repeated in 2016; and considers that the delays cast doubt on the ability of the Department for Environment, Food and Rural Affairs to handle the volume of secondary legislation that will result from the Brexit process.

Relevant document: 10th Report from the Secondary Legislation Scrutiny Committee.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I pursue this Motion to Regret the four water abstraction regulations that have been tabled for three main reasons: first, the policy implications contained therein; secondly, the pattern of delays in Defra dealing with regulations; and, thirdly, the wider capacity issues within the department to deal with future legislation.

The background to the Motion is the excellent report of the Secondary Legislation Scrutiny Committee, which was published on 16 November 2017. As ever, the committee has carried out its responsibility with scrupulous attention to detail and to the public policy implications of the regulations. The report describes how the four sets of regulations have the combined effect of ending exemptions from the requirement to obtain a licence to abstract water. This has significant environmental implications as, in the past, unfettered water abstraction—for example, in the use of irrigation—has impacted on the flow of water available for other users further downstream. As the Defra Explanatory Memorandum makes clear, currently 5,000 significant water abstractions are exempt from licensing, compared to 20,000 that do have to have a licence. This creates an unfair playing field and allows unlicensed abstractors to put pressure on the environment and other water users.

Given the environmental importance of this issue and our understanding of the need for careful management of water catchment areas, particularly in the light of recent flooding crises, I would have thought that the Government would have been keen to act. Sadly, the opposite has been the case. As the Secondary Legislation Scrutiny Committee has highlighted, these regulations have been tabled 14 years after the requirement to do so in the Water Act 2003, and five years after a deadline set by the EU water framework directive. Not only is this negligent but it put us at odds with our EU obligations, which could have led to the Commission bringing formal proceeding against us, which, in turn, could have led to taxpayers funding the Government’s defence. I have to ask: why did it take so long to act on this issue?

Over this period, the Government carried out two consultations on proposals to remove the licensing exemptions. The first was instigated in 2009, resulting from the Labour Government’s decision to consult on the need to comply with the EU directive. Not surprisingly, those who already had licences and those concerned with the environment supported the regulations, and, again not surprisingly, those who did not have licences were resistant to the proposals. When the new Government came in in 2010, they failed to implement the changes required as they decided that the business concerns were more important than the environmental concerns. It then took another six years for the Government to decide that a new consultation was necessary. As the SLSC report makes clear, this proposed a,

“light-touch, risk based approach to licensing … which is now being taken forward”.

Indeed, the impact assessment concentrates its concerns on the cost to business of making these changes. As the SLSC report concludes:

“It is clear that Defra’s concern to mitigate the impacts on business has been an important cause of the protracted timescale for removing these licensing exemptions”.


My first reason for pursuing this Motion to Regret is to highlight our concerns that business interests are being put before environmental interests and before the need for fair play between those who are already in compliance and those who seem to want to continue to act outside the system. Is this the way that the Government are going to go forward? If it is, it rather contradicts everything that the Secretary of State has said about putting the environment first, and the rather lofty ambitions of the 25-year environment plan, which will require some hard choices, considerable behaviour change and potential costs on the part of business. It would be helpful if the Minister could clarify whether the Government’s policy in the most recent consultation, based on prioritising business needs over environmental objectives, remains the same.

Secondly, I would like to raise the inconceivable delay in bringing forward these regulations. We are now 12 years past the Water Act 2003 and five years past the deadline for compliance with the EU directive. How can the Minister justify this delay? I raise this with particular concern, because it is not a one-off event. This is not the first time that the SLSC has criticised Defra’s treatment of secondary legislation. In July, the SLSC noted that the Marketing of Fruit Plant and Propagating Material (England) Regulations 2017, which transposed three EU directives, missed the transposition deadline of 1 January 2017. The Commission issued a formal notice to the UK in late January and, in response, the department set a revised transposition deadline of June. In the same week, the committee also noted that the Single Common Market Organisation (Emergency Aid) (England and Northern Ireland) Regulations 2017 were based on a short, two-week consultation in September and October 2016. That was done for good reason, but the committee questioned why, given the early October consultation deadline, it then took six months for the regulations to be laid.

In March, the committee noted that Defra’s answers to its questions on the Commons (Registration of Town or Village Greens) and Dedicated Highways (Landowner Statements and Declarations) (England) (Amendment) Regulations 2016 had misrepresented the position of user groups. The committee wrote to the Minister to bring the case to his attention. In his response, he acknowledged that the department may have given the committee the wrong impression. I would be grateful if the Minister could explain why these delays and mistakes are taking place and what is being done to address these failures. The prompt and accurate processing of secondary legislation is an essential part of legislative scrutiny and I hope he can confirm that it will be taken more seriously in the future.

Finally, I want to raise the wider issue of the department’s capacity to handle forthcoming legislation. We already know that 80% of legislation affecting Defra is derived from the EU level. The European Union (Withdrawal) Bill will give ongoing legal effect to the directly applicable legislation, which the UK will of course take on board. At the same time, the technical details, in the form of statutory instruments, will need to be crafted accurately and in a timely manner.

The noble Lord will know that the January 2017 House of Commons Library briefing found there are 922 regulations relating to agriculture, 1,122 to fisheries and 527 in the field of environment, consumer and health protection. While not all of these will be relevant to the UK, it is clear that Defra will have a significant amount of extra work to carry out between now and March 2019. At the same time, we already have promises for an animal sentience Bill, a fisheries Bill and an agriculture Bill—all of which are expected this year.

In November 2015, RSPB and Wildlife Trusts economists said that cuts to Defra’s budget would be equivalent to 57% in real terms over the course of two Parliaments. I accept that this has been partially mitigated as, in October, the Government confirmed extra funding for Defra in order to prepare for Brexit. At the time, the department said that it expected to hire an additional 1,200 civil servants to cope with its extra workload. However, a National Audit Office report published this month suggests that only half this number of posts had been filled as at November, and of course these posts are only intended to cover the work of Brexit, not the wider day-to-day running of the department. Is the Minister satisfied that Defra now has the resources necessary, at the right level of knowledge and training, to process the huge workload linked to Brexit, as well as the day-to-day work such as preparing primary and secondary legislation and rolling out the 25-year environment plan?

I look forward to the Minister’s response on these three challenges—the Government’s approach to regulating business in the context of environmental priorities, the need to address the delays and errors in the processing of secondary legislation, and the overall capacity of the department to deal with the upcoming workload.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I am very grateful to the noble Baroness, Lady Jones of Whitchurch, for putting down this Motion to Regret. I am able to support all of her arguments in this vital matter. The use and retention of water is key to the way in which the country is able to function, both in terms of domestic properties, farming and business.

As the noble Baroness said, the 10th report of the Secondary Legislation Scrutiny Committee back in November made it very clear that the Government have taken an exceedingly long time to reach the point where they feel they can move forward with secondary legislation—some 14 years after the parent Act. Currently around 5,000 significant water abstractions are exempt from licensing, while some 20,000 abstractions have licences. There does not appear to be any substantial reason why licences should not apply to all abstractors. This is clearly inequitable.

Keeping our rivers flowing must be a priority as overabstraction is damaging diverse wildlife populations. It would seem, from the Prime Minister’s speech last Thursday, that the Government have now woken up to this fact. Analysis shows that the economic and social costs of drought far exceed the costs of addressing the problem and that the rate of return on investment of improving river health is high.

Nearly a quarter of rivers in England are at risk from unsustainable water abstraction, with 14% classified as overabstracted, meaning that water removal is causing rivers to drop below levels required to sustain wildlife. Some 9% are overlicensed, meaning that the river would be overabstracted if licence-holders took all the water they were entitled to. This situation is critical and should not have had to wait 14 years to be addressed.

As we heard, the Government conducted a consultation in 2009 and then again in 2016. I wonder if having consulted in 2009, the incoming Government did not like the responses and shelved the document. I have looked at the responses to the 2016 consultation. Farmers and the mining and quarrying industries were the highest responders, but some responders did not reply to all questions, as they did not all apply to them. Somerset has farming, mining and quarrying industries that are highly dependent on water abstraction. I found the responses of the water level management contributors most interesting, as I live close to the Somerset Levels. The internal drainage boards are only a small section of responders, but they are extremely important.

I was also interested in the response to Question 3 on excluding compensation provisions for future abstractors, with all six environmental groups agreeing with the proposal and all seven in the quarrying and mining sector disagreeing. I understand the Government’s dilemma in trying to please everyone. But water, as we know, needs to be both harvested and protected for the environment. The Government must transpose the water framework directive in full, establishing mechanisms and sanctions to enforce its implementation, even if we leave the EU. The 2027 deadline to increase the proportion of water bodies in good ecological status should be upheld.

The Government’s Brexit White Paper guaranteed that this important piece of legislation and its 2027 deadline would be transposed into UK law. Will the Minister now confirm that this will happen? In its Water for Life White Paper, Defra set out its intention to reform the abstraction regime to ensure sufficient water for wildlife and economic growth. The resulting legislation to make this a reality was due this spring. But in April 2017, the Minister confirmed that new legislation was on hold due to insufficient parliamentary time to take it forward.

In 2016-2017, Britain experienced the driest winter and early spring for more than 20 years according to the Met Office. But Parliament appears not to have been able to allow time for the Government to implement the vital legislation covered in the Water for Life White Paper.

As well as wildlife and biodiversity, water abstraction featured in last week’s 25-year environment plan. The Government aim to amend licences in cases of unsustainable abstraction; encourage water trading and storage; introduce more low-flow controls to protect the environment; and replace seasonal constraints to allow extra abstraction at high flows. They will be extremely busy and it will be good if all that comes to pass.

In many parts of the country, severe drought is a real issue, but in others, the problem is flooding. Managing water flow, storage and movement is key to all those areas affected. Not taking action on the directive for 14 years seems to these Benches to be dilatory in the extreme. I look forward to the Minister’s response on this important matter.

--- Later in debate ---

I should emphasise again the 25-year environment plan, because it has come up so many times. This is a continuing task—it is not about arriving in 2041 and suddenly deciding we need to fulfil the plan. The plan will be worked on day in, day out, as we work to leave the environment in a better place. Clearly, the good custodianship of the water supply is one of our prime duties and something that the Environment Agency has responsibility for. The agency is working extremely hard, and we in turn are working with it. I am most grateful to the noble Baroness for this opportunity.

[Baroness Jones of Whitchurch]

My Lords, I thank all noble Lords for their contributions, and in particular the noble Baroness, Lady Bakewell, and my noble friend Lord Whitty for their wholehearted support of the position that I put forward. All noble Lords owe a debt of thanks to the noble Baroness, Lady Byford, and my noble friend for a very enlightening history lesson going back to 2003. I absolutely agree with the Minister’s comments that it is very helpful to have people who were there at the time to put us straight on a few things when we look back in history and try to understand what happened.

I also agree with my noble friend Lord Whitty that the end result of all that was that over and again a coherent approach to abstraction was put on the back burner. We had the opportunities to take the issue forward and to have a more holistic view of water extraction and water management in the round—but time and again we did not find the time or make it a priority to take that forward. I will also say—and I think the contributions this evening have echoed this—that we are now far more aware of the importance of water management than perhaps we were back at that time. It is not just something for the experts: there is a much wider public concern about what is happening in terms of water management in the UK. We have been given examples of floods and droughts—we all see it, know it and feel it, which I think focuses our mind on the fact that we really need to be doing more about it.

We will have opportunities to debate this going forward, and I welcome some of the issues that the Minister mentioned. He mentioned the new abstraction plans that are coming forward, which are contained in the 25-year environment plan. I mentioned that I was concerned about the overemphasis in delays on business interests. Some people queried whether or not that was true. I would only pray in aid on all that the analysis of the Secondary Legislation Scrutiny Committee, which said:

“While the Department clearly had to consider the way in which businesses would be affected by the changes proposed, we see no reason why its reflection on the consultation process in 2009 needed to take the best part of a decade to be turned into detailed implementation”.


I share that analysis at the end of the day, despite what the Minister said about the environment being put first. The party opposite says that regularly, and we all want to believe it, but we also have to look at its actions as well as its words, and the proof will be in the telling as time goes by. So the Minister did not exactly reassure me on that—but maybe he said as much as he was able to.

I also thought that he was rather grudging in his acknowledgment of the fact that there had been a delay. I think he said that there could have been more expeditious progress. Well, that is a bit of an understatement of the facts. I think that everybody can see and acknowledge that there is no justification for the delay, whatever the reasons, and that it could have been dealt with more speedily.

The Minister sought to reassure me on the issue of capacity, but I am concerned that the recruitment now taking place is focused on Brexit. The department has taken a big hit in terms of staff reductions in the last 18 months. The new recruits are very welcome and I look forward to working with them, but they will be focused on Brexit rather than the bread-and-butter stuff that we are dealing with here, which is some of the business-as-usual work that still needs to take place. The Minister said he would go away and look at why some of the other delays that I mentioned had taken place. We need to keep our foot on the accelerator to ensure that the work is kept up to date.

The Minister said at the end that he did not think I would be satisfied by all that he had said—and, unsurprisingly I am not. Nevertheless, I welcome the dialogue and discussion, and I think that he gave fair and honest answers. With that—and bearing in mind the lateness of the hour, since I know we are going to be debating these issues for many months to come—I beg leave to withdraw the Motion.

Motion withdrawn.