Flood and Water Management Bill

Public Bill Committee, 19 January 2010.

Clause 17

Huw Irranca-Davies (Labour, Ogmore)

Mr. Chope, it is very good to be back under your chairmanship here in the second week of the Committee’s deliberations. Welcome back, as well, to the hon. Member for Brecon and Radnorshire. It is good to see him back, although his colleague did well in his stead.

May I respond to the comments made during the clause 17 stand part debate? Before we adjourned, the hon. Members for Cheltenham and for Vale of York asked questions about the scope of local levies and who will pay for them. Particular concern was expressed about their being used in place of funding from central Government. I will answer those questions in full, but let me first clarify the funding levels for flood and coastal erosion risk management, as hon. Members appear to be under the impression that funding has decreased.

The Government now expect to spend more than £2.15 billion on flood and coastal erosion risk management over the current three-year period. In 2007-08 total expenditure by central and local government was £580 million; in 2008-09 it was £660 million; this year spending will be £715 million. Next year, spending by central and local government is expected to be £780 million. As part of the fiscal stimulus package, £20 million was brought forward from 2010-11 budgets to 2009-10. The hon. Member for Cheltenham referred to the £660 million fund next year; that figure relates only to spending by the Environment Agency, not to the combined spending by central and local government.

I return to clause 17 and the matter of the local levy. The clause provides a route for local authorities to invest in risk management schemes that would otherwise not be taken forward. The hon. Member for Vale of York is right that the funding system changed in 2004, with most funding since then directed through a central grant to the Environment Agency. However, the local levy has continued since then and, for example, has raised £27 million for locally important projects in 2007-08. The clause extends the scope of the levy to include coastal erosion risk management projects, to provide greater flexibility to authorities, and to bring the levying arrangements into line with the scope of the new committees. To be absolutely clear, the local levy is not an alternative or a substitute for flood defence grant in aid, but an optional additional investment, voted for by local authorities to fund locally important works. We will provide funds to reform the grant to allow the levy to be increased by 10 per cent. The levy is tied to the Environment Agency’s functions, which do not extend to surface water management as that will be the responsibility of the authorities.

The hon. Lady is also right that the same people always seem to fund flood defence work in this country. However, she is mistaken in her assertion that landowners and local authorities are shouldering the costs. Landowners do not pay the RFDC levy; they pay drainage rates totalling about £15 million per year to internal drainage boards. In return, they directly benefit from the water level management services that internal drainage boards provide. About £3 million is paid by farmers to the Environment Agency, which, again, pays for additional maintenance work that benefits their land. Local authorities pay the RFDC levy as well as a special levy to internal drainage boards. To clarify, the special levy is separate from the RFDC local levy and is not affected by the Bill. Both those levies are compensated by formula grant from central Government, so, in the main, neither the local authority nor the council tax payer ultimately funds that important work.

Along with the block grant in aid paid to the Environment Agency, taxpayers across the country are funding almost all activity by the operating authorities, even though five out of six properties are not at risk of being flooded. If anything, there is a case for greater cost sharing with those that benefit from flood risk management activity, especially as overall investment needs to rise.

It is also useful to set the RFDC levy in the context of the overall funding picture for local authorities. The need for local authorities to spend more—perhaps as much as 20 per cent. more—on flood and coastal erosion risk management was foreseen at the last spending review in 2007. That led to more funding being provided within formula grant, including to pay for levies to internal drainage boards and RFDCs as well as to fund local authorities’ own work in maintaining coastal defences and managing local flood risk. Under current assumptions, and taken together with the funding we are providing for the Bill, overall local authority spending on flood and coastal erosion risk management would have to increase from £90 million to more than £160 million a year in the early years after commencement, before it is clear that such involvement is more than anticipated and provided for.

Clause 18

Anne McIntosh (Conservative, Vale of York)

I beg to move amendment 17, in clause 18, page 12, line 25, at end insert—

‘(5) The Agency must also publish on a quarterly basis its programme of regular maintenance work carried out on main water courses.’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss new clause 10—Regular maintenance of water courses—

‘The Environment Agency must undertake a programme of regular maintenance work of major water courses on an annual basis with quarterly reports to both Houses of Parliament.’.

Anne McIntosh (Conservative, Vale of York)

Good morning, Mr. Chope. May I welcome you back to the Chair? I would like to have a short debate on clause 18 stand part, so I will speak only to the amendment and new clause, which are not insignificant. The Committee will be aware that one of the key recommendations of the Pitt review was that maintenance should be not just done but seen to be done. I had one point of difference with the Pitt conclusions overall in relation to many of the flood visits that I made—those of 2000, 2005, 2007 especially, and last year’s floods in Cumbria. Although it is difficult to prove, anecdotally we were told that there is not now the level of maintenance that has been undertaken in the past. The amendment and new clause would rectify that.

My understanding is that the agency places annually on its website a maintenance programme. Obviously, that is a bit of a moveable feast, but if we are to address the issue and public concerns, the main thrust of the Bill should be to ensure that there is less opportunity to flood main watercourses in future. The Minister referred to the role of IDBs and how they are funded substantially by local farmers and landowners, many of whom hold positions of responsibility on them. We are told that it is very much the case that IDBs undertake a significant programme of maintenance that is public and there for all to see—as a vice-president of theAssociation of Drainage Authorities, I take that on good account. From the levies that they raise, they also make substantial funds available annually to the Environment Agency for the specific purpose of carrying out maintenance.

It is incontrovertible that the Government have increased capital spending on floods, although the insurance industry and flood victims would argue that the annual capital programme is simply not enough and does not go far enough. As a result of skilful parliamentary questioning, however, the Government have admitted that the maintenance programme has slipped in comparison with the capital programme. We want to rectify that. We want to hold the agency to account; it is a body that we hold in high regard and we believe that the amendment would help them and their reputation enormously. It will put to rest a fear, which has been expressed to us, so we are very much aware of it, that maintenance is not being undertaken at certain times of the year because of biodiversity, birds nesting and so on. That is also the case with the internal drainage board, but one can work around that.

Amendment 17 would insist that, instead of having an annual rolling programme, the agency publish on a quarterly basis its programme of regular maintenance work carried out on main watercourses. Obviously, since 2004-05 the number of enmained watercourses has increased. Another purpose of amendment 17 is to ascertain whether the agency’s maintenance programme is less vigorous than it was previously, and whether main watercourses are being dredged and maintained. I have seen physical evidence of that. For instance, self-planted willow trees that had not been removed contributed very much to the floods of 2007 in particular, and to other floods. If the main watercourses are not being dredged and maintained, water will back up into the minor watercourses, which are the responsibility of the internal drainage boards. That is what is making them so angry. They have a full programme, to which they adhere. Their work is being undermined by a lack of maintenance and dredging on the scale that we would like. If we are to implement Pitt, he was clear that maintenance should be not just done but seen to be done. New clause 10 is a helpful technical amendment to a different part of the Bill.

Clearly, our fervent wish is that the Minister will look favourably on the amendment and new clause and make them part of the Bill. I hope that he will address the issues that I have raised: not least, that the maintenance programme is not as vigorous as it was prior to 1997. As a Back Bencher, my right hon. Friend the Leader of the Opposition made political history by securing, for the first time, an Adjournment debate on that issue. He called for a better balance between spending on big capital projects in urban areas and spending on maintenance, from which rural areas benefit more. The issue touches the heart of all local communities, which are central to the internal drainage board. Given the Government’s catchment management systems and some other programmes, flooding of farmland will increase as existing rural flood defences on minor watercourses are allowed to fail, because the Government will argue that there is no money to maintain them. The amendment and new clause address serious issues, and I hope that the Minister will be minded to adopt them.

Laurence Robertson (Conservative, Tewkesbury)

Briefly, I want to support the amendment and new clause. Although a number of Opposition Members have welcomed the Bill, we have said frequently that it needs strengthening if it is to have the desired effect and impact, which the amendment and new clause attempt to provide. My hon. Friend would probably also want to tie them in with new clause 11—on which I hope to catch your eye, Mr. Chope—which relates to schedule 3, on smaller watercourses, private drains and sewers.

Last night, I had a meeting with Lord Smith, the chairman of the Environment Agency. We discussed this very issue, among others. Prior to the new regime at the Environment Agency, it was universally the view that dredging of rivers was not necessarily beneficial. The new chairman said that that was not necessarily his view; each river had to be assessed differently, and although it might not be beneficial on some rivers, it might be on others. Will the Minister let the Committee know what his approach and attitude would be towards the maintenance and dredging of main watercourses? Each and every main watercourse needs assessing properly.

As I hope to address new clause 11 later this morning, let me say that repairs and trying to catch up when a flood has happened are essential, but are not the best method of flood prevention. It is too late then. Maintenance, which so often gets neglected, is important. As with servicing one’s car, it is easy to put it off for several months; nobody notices until things start to go wrong. In requiring reports to be given on maintenance, my hon. Friend’s proposals would prevent such delay. I look forward to the Minister’s response.

Huw Irranca-Davies (Labour, Ogmore)

I am pleased to respond to the debate on amendment and new clause, which would require the Environment Agency to undertake an annual programme of maintenance work on major watercourses, with quarterly reports to the Houses of Parliament. With regard to devolved matters, the implication is that reports would also need to go to the National Assembly for Wales.

The hon. Member for Vale of York asked whether the Government concede that the maintenance programme has slipped—I assume that she refers to parliamentary questions. Although the maintenance programme has not slipped, what has changed is that there is a focus on risk management, and more assets are in target condition now than in 2007. The risk management approach reflected throughout the Bill and in our general approach is pivotal. Things have not slipped—they are more targeted.

The Government are committed to the risk-based approach to maintenance and that has been endorsed by the Pitt review in recommendation 25:

“The Environment Agency should maintain its existing risk-based approach to levels of maintenance and this should be supported by published schedules of works for each local authority area.”

I therefore agree with hon. Members that, in terms of both public confidence and accountability, it is crucial for the Environment Agency to be transparent and open in its planning of maintenance, and to consult on its plans with people who have an interest in how and how often it is done. The Environment Agency recognises that, and as a result is already going further than Sir Michael recommended. The Environment Agency consults with landowners and local groups on its main river maintenance programme each year. The regional flood defence committee approves the programme of works, which are now published on the regional pages of the Environment Agency’s website.

The EA’s progress on the maintenance programme is reported to regional flood defence committees. Such meetings are held quarterly and open to the public, and the minutes from each are available from each regional committee services team, details of which are on its website. That transparency allows anyone, including Parliament, to take an interest in maintenance schedules if there are concerns or a desire to do so. Information on any coast protection work undertaken by the EA will in future be made similarly available from the new regional flood and coastal committees.

It should be noted that the Environment Agency has a publication scheme in line with section 19 of the Freedom of Information Act 2000, and much of the information that it holds is already published as a matter of routine. Where information is not published, it may be available from the EA and other risk management authorities under existing freedom of information and environmental information legislation.

The Bill also provides improved tools for local authority scrutiny of flood and coastal erosion risk management activities. Those include the duty for all risk management authorities to co-operate, the power to request information, which we have dealt with, and the provision in schedule 2 for risk management authorities to comply with requests made by overview and scrutiny committees and to have regard to their reports and recommendations. That is consistent with the relevant recommendations in the Pitt review. It is right that authorities are held to account by local, democratic bodies.

Therefore, additional legislation on the matter is not necessary. To require the EA to maintain all major watercourses to a common or minimum standard would run counter to the risk-based approach and could divert resources from locations where they are most needed. As maintenance schedules do not change frequently, a requirement to publish quarterly, particularly to both Houses of Parliament, appears burdensome and unlikely to result in any improvement to the maintenance of major watercourses.

In the past, navigation authorities dredged some rivers to allow free passage for boats. That is still carried out on some critical occasions on navigable rivers, but the practice has ceased where navigation has declined. However, that type of dredging work was not carried out for flood management purposes. The EA’s risk management approach would take that into account where dredging needed to occur.

I think that I have covered all aspects, so on that basis and with the reassurances on publication and accountability —I think that we are aiming at the same thing—I ask the hon. Lady to withdraw the amendment.

Anne McIntosh (Conservative, Vale of York)

I confess that I am disappointed by the Minister’s remarks and I would like to press amendment 17 to a vote.

Anne McIntosh (Conservative, Vale of York)

I have just a few comments to make. There has been some concern about the reporting process under subsection (1):

“The Environment Agency must report to the Minister about flood and coastal erosion risk management.”

The Local Government Information Unit believes that the lead local flood authorities will not be reporting floods, and I wonder whether there is an argument that they should be required to report as well. They will have responsibility to investigate and determine the risk management assessment and delivery of flood and coastal erosion risk management. In the event that an authority fails to exercise its function—that is, whether it is in accordance with national and local strategies—the Minister can direct that function to another authority, and yet recover the costs from the original authority. Obviously, that is a cause of some concern to local authorities. Has the Minister considered that possible scenario and what the outcome would be?

The lead local flood authorities must also establish and maintain a register of structures and features that are likely to affect flood risk in an area, including their ownership and state of repair. I will have more to say about that when we discuss clause 30, under the definition of features in that regard. The Environment Agency must ensure that key third-party assets are registered and protected. Those are structures or features in private hands that provide an important public flood risk management function.

The Association of British Insurers welcomes the clear areas of accountability defined by the Bill. However, it believes that there needs to be further clarity around how various authorities will operate, and how transparent their performance in their areas of responsibility will be. It wishes to see a clear process, open to public scrutiny, that will involve monitoring and transparent reporting of how the Environment Agency, national Government, local authorities and other responsible bodies perform in their areas of accountability.

The Bill sets out in clause 18 how the Environment Agency will report to the Minister and, under clause 19, the local authorities have a duty to investigate and report on risk management, and to enable the Minister to direct, as under clause 30. However, the Bill seems to omit a very serious matter, in that it does not place an explicit duty on the Environment Agency to report publicly on its performance or monitor and publicly report on local authorities’ performance in reducing flood risk. Is that a deliberate omission on the part of the Minister? Will the Minister see fit to return to this at a later stage? Once again, transparency is key to the involvement of the Environment Agency.

A number of water companies have expressed their concern at the Environment Agency’s overall role. If the Environment Agency reports as set out under clause 18, will that be debateable either by the relevant Select Committee or on the Floor of the House?

The insurance industry goes further and asks whether the Minister would consider asking the Environment Agency that, not less than every three years, it reviews its overall performance and its relationships with local authorities. I await the Minister’s response.

Huw Irranca-Davies (Labour, Ogmore)

As Members understand, this clause requires the Environment Agency to report to the Secretary of State in England and to Welsh Ministers in Wales about flood and coastal erosion risk management. That report has to include information about the application of national flood and coastal erosion risk management strategies under clauses 7 and 8. In order to provide these reports, the Environment Agency will have to monitor the application of the strategies, as required by clauses 7 and 8, for England and Wales respectively. It is likely to need to request information from risk management authorities as well as collecting it directly.

I shall now respond to the questions asked by the hon. Member for Vale of York. It is worth clarifying that, in terms of lead local flood authorities gathering information, it is intended that existing reporting arrangements be relied upon wherever practicable—examples include the current local government performance framework of national indicators, floods directive products and reports prepared for and by local authority scrutiny committees and the Audit Commission. Additional information and clarity would be sought on a case-by-case basis, relying on clauses 13 and 14—duties to co-operate and powers to request information.

In respect of water companies, let me clarify that as well: water companies undertake an annual reporting cycle, the June returns, and the Environment Agency will be able to draw on those, for example, to seek to ensure a streamlined and joined-up approach to reporting progress of flood risk management.

I shall now discuss how the Environment Agency would pull together reviews of other operating authorities and other stakeholders to make sure that we have a balanced view. The Environment Agency has drawn on a variety of sources, as I have indicated, from the range of bodies involved to produce the report for Ministers. Those information sources, which also include Audit Commission reports, will already have undergone a consultation process.

In respect of the duties that the hon. Lady mentioned on the EA to report to a local authority, that is already covered by the EA’s performance monitoring, which is published on the website. Local authorities are also addressed through the national performance framework indicator NI 189 on flooding.

My understanding is that the Select Committee on Environment, Food and Rural Affairs can consider those reports under clause 18. It is also important that ministerial direction is given on the issue of whether lead local authorities are required to report. That information may be included in the EA report and the information may also be considered by the local scrutiny committee, as described within schedule 2. With this report we intend to monitor progress in the management of all sources of flood risk and coastal erosion. It is also expected to be used to inform policy development and to review priorities to make sure that effective and efficient flood and coastal erosion risk management is being delivered across England and Wales. I hope that the Committee are satisfied with these comments..

Clause 19

Martin Horwood (Liberal Democrat, Cheltenham)

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

‘or the Environment Agency or Welsh Ministers’.

Christopher Chope (Conservative, Christchurch)

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’.

Martin Horwood (Liberal Democrat, Cheltenham)

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.

Jessica Morden (Labour, Newport East)

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.

Anne McIntosh (Conservative, Vale of York)

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?

Huw Irranca-Davies (Labour, Ogmore)

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.

Martin Horwood (Liberal Democrat, Cheltenham)

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.

Huw Irranca-Davies (Labour, Ogmore)

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.

Martin Horwood (Liberal Democrat, Cheltenham)

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.

Clause 20

Anne McIntosh (Conservative, Vale of York)

I have a question for the Minister. The clause gives the Minister the right to direct a risk management authority to exercise a flood and coastal erosion risk management function. Under what circumstances might such a direction be given?

Also, subsection (4) states:

Will that be published on the website and be again debatable in both Houses? Presumably, a precedent is being set to other local authorities in similar circumstances going forward. So it could be a matter of some significance, a direction in its own right.

Huw Irranca-Davies (Labour, Ogmore)

To clarify, the power within the clause can be exercised only where the Minister finds that a risk management authority has failed to carry out its flood or coastal erosion risk management functions or has acted in a way that does not accord with the national local strategies. Therefore, it is intended that this power be exercised in accordance with established protocols and local government’s performance, and that, where feasible, the authority with primary responsibility is first given the opportunity to rectify any failing. We expect the power to be used only as a last resort.

There are various default provisions in the current legislation which do not require a ministerial direction. The decision to exercise default powers lies in the hands of different authorities. For example, the Environment Agency has default powers in relation to internal drainage boards. The intention of this new clause is to create a common approach applying to all bodies and to ensure that decisions about the exercise of default powers are subject to ministerial direction.

The clause allows for the direction to include a provision for the directed authority to recover costs from the defaulting authority for works carried out on its behalf. The clause also requires the Minister to publish and issue the defaulting authority with a copy of the direction, except where this may be contrary to the interests of national security. As to whether it would be published on the website, it would be dealt with as per normal with the normal Government performance framework protocol. This in effect means that it is highly likely that it will also be published on the Department for Environment, Food and Rural Affairs website.

Clause 21

Anne McIntosh (Conservative, Vale of York)

I beg to move amendment 26, in clause 21, page 13, line 21, leave out subsection (1) and insert—

‘(1) A lead local flood authority must establish and maintain a register, which in particular, must include information, including mapping, on—

(a) structures or features which, in the opinion of the authority, are likely to have a significant effect on a flood risk in its area, and

(b) Sustainable Urban Drainage Systems in its area.

(2) A lead local flood authority must establish and maintain a record of information in connection with any of the things specified in subsection (1), including information about ownership and state of repair.’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following: amendment 106, in clause 21, page 13, line 24, leave out ‘and’ and insert

‘or are likely to have a significant effect on public health and welfare if flooded, including—

‘(i) sites and structures critical to energy supply,

(ii) sites and structures critical to water processing and supply,

(iii) critical railway lines, roads and bridges,

(iv) telephone exchanges and other critical communications sites and structures,

(v) general hospitals, and

(vi) any other local sites and structures considered critical by the authority,’.

Anne McIntosh (Conservative, Vale of York)

I hope the Minister will be minded to support our proposals. I understand that there will be a separate clause stand part debate, in which we can raise one small point.

The Minister is aware that we have set great store by maintaining and supporting the register. This amendment is what the Minister might call a technical amendment. It relates to our amendments which follow, relating to the clause and schedule regarding sustainable drainage systems. We are asking that the lead local flood authority must establish and maintain a register which will particularly include information on mapping.

The Minister will recall our earlier debate and the emphasis that we placed on mapping by the lead local flood authority. Regarding the structures or features that in the opinion of the authority are likely to have a significant effect on flood risks and sustainable urban drainage systems in the area, it is implicit within the amendment that the lead local authority, if it is a county council, will have cognisance of the highways and the road system. It is implicit within the amendment that the lead local authority will have discussed with the lower-tier authority—district councils where there is no unitary authority—who will be best placed to talk about major housing developments. Will the Minister confirm that that is his understanding if he was minded to support this?

We are also asking that the lead local flood authority will establish and maintain a record of information in connection with any of the things specified, including information about ownership and state of repair. This goes to the heart—

Christopher Chope (Conservative, Christchurch)

Order. Those who want to converse should go outside.

Anne McIntosh (Conservative, Vale of York)

I am most grateful, Mr. Chope. Obviously we are reaching a tense and exciting stage of the Committee’s proceedings. I referred to SUDS and immediately a buzz goes around the room.

The Minister will be aware that there is huge concern that, if it is to serve its purpose, the register will be a register of all the assets. In his response to, and, I hope, acceptance of, this little set of amendments the Minister may wish to remark on the fact that we do not know where SUDS currently are. The lead local authority probably will know where the ponds relating to an overflow from a road will be, but there is deep concern that we do not know where the ponds and the urban drainage relating to new developments currently are. Going forward, if the Bill works effectively and if it does its job we will know where new SUDS are being created and we will move on to discuss who will be best placed to adopt and maintain them at that time.

New clauses 17, 18 and 19 are consequential in that regard. The Minister will be aware of the series of parliamentary questions on critical infrastructure that I pursued with him and I want to take the opportunity to express our disappointment. One of the primary recommendations of the Pitt review was that, as a matter of priority, there should be a full audit of critical infrastructure, not just stands and reservoirs. The Minister will recall that on a number of occasions the Government have said that the audit should have been completed by the summer of 2009.

It is fair to say that that audit of critical infrastructure has still not been completed. As we speak I am mindful of the substantial damage caused in the constituencies of the hon. Member for Copeland and his hon. Friend the Member for Workington (Tony Cunningham)—I am mindful of the fact that, had the wind not moved at the right time, that mountain of water may have fallen on North Yorkshire. So, if you like, we are all in this together. The critical infrastructure must be dealt with as a matter of urgency, and that is the purpose of new clause 17. I am mindful of the damage suffered by various parts of the country in 2007, in areas such as the constituency of my hon. Friend the Member for Tewkesbury and other parts of Gloucestershire, Oxfordshire, Yorkshire and Humberside. It is vital that we proceed as a matter of urgency with this critical infrastructure. The critical infrastructure that we have in mind includes pumping stations relating to utility companies—water companies, electricity companies and gas companies. If their pumping stations are not above the flood risk level, the level of damage caused by flooding can become much more substantial; as we saw in Gloucestershire, where there was a serious threat to the drinking water.

This is intended to be a helpful amendment. We would like it on the face of the Bill for the Secretary of State to have the power to require utility companies to report on their critical infrastructure and their ability to withstand future floods. That report would be laid before each House of this Parliament so that it may be debatable.

It is a matter of regret and disappointment that the audit of the critical infrastructure has not been completed. That risks serious consequences for the management of present and future flood risks; I am mindful of the fact that flood warnings are in effect at the moment due to the current thaw and the heavy rain that has fallen in recent days.

New clause 18 builds on that. As regards the resilience of individual properties, households and businesses, we are asking the Government to insist that the Environment Agency submits an annual report to the Secretary of State for Environment, Food and Rural Affairs and that the report includes information on the take-up of flood warnings by property owners and tenants. In reply to the previous debate, the Minister placed great emphasis on the importance of Floodline, but I am amazed that in some parts of the country the recent take-up of flood warnings in many areas was only 40 per cent. I include North Yorkshire and Yorkshire and Humber in that.

There are also problems if the phone number held by the Environment Agency only relates to the household or business, and that person is on a mobile some way away. There are all sorts of problems with relaying flood warnings. This subject should be kept under constant review. It is in all our interests to ensure that the take-up of flood warnings by business property owners, householders or their tenants in each case should be an opt-out rather than an opt-in. The Minister at one stage seemed to be looking at that, but we seem to have gone away from that proposal.

We would also like to insist that there should be a take-up of additional anti-flood measures on properties previously flooded before reoccupation. There is a certain tension at the Environment Agency, which expects that when houses are reoccupied, resilience measures have been taken. Where that house or business is in an area at risk of flooding, more resilience measures should have been taken, such as putting plugs higher up, not reinstating carpets, or putting tiles in where appropriate. If the property is flooded again, that house or building can be reoccupied more quickly. One would have thought that it was in the insurance companies’ interests to insist that such resilience measures are taken.

I can quite understand that there is resistance to taking such measures from householders and some business people, particularly where they own the property. They believe that it looks as though the house is going to flood—because it probably will—and they feel that the house will not be as easy to sell. The Bill must address that tension and I hope the Minister will look favourably on these provisions.

We would also like to see a provision that could be adopted regarding any developments with insurance companies on anti-flood measures, which would reduce the insurance premiums for properties at risk of flooding. If we do not make it in the interests of the business, householder or tenant to make good these resilience measures and if we are asking them to pay substantial amounts of money, then why is it in their interests if they are not going to have a reduced insurance premium? We would like to press the Minister and find out what discussions his Department has had, and what he has personally discussed with the industry to ensure that these resilience measures lead to a reduced flood premium.

New clause 19 follows on from that. We believe the British Standards Institution should be the body that says that the particular product the householder or business is being invited to use is fit for purpose. I pray in aid the example of the householder who owned two properties to let in Pickering, which was in the news once again over the Christmas period because of the snow. We now hear from the Environment Agency that Pickering is at risk of flooding because of the thaw, and we may still get more snow. That property owner spent £20,000 on flood-proofing the two flats to let, on the basis that the water would no longer penetrate. In fact, in 2007, having spent £20,000 the water went in just as quickly as if he had not done so. My question is, what come-back does that property owner have? We believe that currently there is none.

We would like the Government to accept new clause 19 to ensure that there are annual reports from the British Standards Institution that include information on what the burden of proof is to ensure that any product that receives the kitemark for flood-resistant products is fit for purpose. I have received a series of answers from the Minister and the Minister in the Department for Communities and Local Government who has responsibility for this matter, and the kitemark is the key.

If a product is not fit for purpose and a property floods, does the householder, the property owner or the tenant who has spent the money have grounds for an action against the holder of the kitemark or the producer of the product? At the moment, that is a great omission and there is no come-back. People are spending thousands of pounds each year to make their properties more flood-resilient and the products are simply not fit for purpose. I am sure that the Minister and other Committee members have been asked by many producers to approve their products. I believe that is the role not of a Member of Parliament—perhaps I am doing us a great injustice—but of the British Standards Institution. At the moment, there is no action after the kitemark is issued.

I would like the Minister to agree to include new clause 19 in the Bill or to satisfy us that those who have spent money to make their properties more resilient have an action they can take. The report we are asking for the BSI to publish would give the number of kitemarks issued in the year and the number of products issued under the kitemark

“which fail to meet the test of resistance which led to further flooding of any particular property.”

New clause 19 is key to filling the gap in the law whereby we ask property owners to spend substantial amounts of money but if the products fail they are left out of pocket and have no come-back. We believe that the Secretary of State should lay before Parliament a copy of the report and that it should be debatable because it would have to be approved by a resolution of each House of Parliament.

This little group of proposals goes to the core of what the Bill should be doing to make good the Pitt review recommendations. We believe it would satisfy property owners who have spent substantial amounts of money. It would satisfy the Environment Agency that people are coming back into their homes and that their properties are more flood-resilient. It would satisfy insurance companies and we hope that they would offer reduced insurance cover and perhaps lower excesses in these circumstances. This is an important group of proposals, which we hope the Minister will support.

Martin Horwood (Liberal Democrat, Cheltenham)

I am pleased to join in this debate, which I agree is as tense and exciting as any of our discussions last week on cross-border internal drainage boards. I will deal with the proposals in turn.

Amendment 26, which was tabled by the hon. Member for Vale of York, is entirely sensible. It underlines the need to clarify the continuing responsibility for SUDS after they have been installed. A weakness that is emerging in our discussion of SUDS is what happens after they have been put in and who is responsible for maintenance. The mapping and recording of SUDS would aid with that responsibility and I happily support the amendment.

Amendment 106, which I tabled, addresses the important issue of the resilience of critical infrastructure, which was an important consideration of the Pitt report. Recommendation 53 stated:

“A specific duty should be placed on economic regulators to build resilience in the critical infrastructure.”

Of course, in Gloucestershire we had two very clear examples of that. The flooding of the Mythe water treatment works resulted in the loss of fresh water for thousands of people for up to two weeks. I lost my water supply because of that. That was bad enough in the warmth and light of midsummer. Walking the streets of Cheltenham trying to find a bowser with water in it would have been a quite different experience had it been cold, dark and raining. There was a kind of camaraderie in the streets as people swapped information about which bowser actually had water and where the latest supplies of bottled could be picked up. It would have been much less funny if it had carried on for much longer. It was already less funny for vulnerable people such as pensioners. It is a serious issue.

It could have been more serious if the Walham electricity substation had been lost, and it very nearly was. That would have meant the loss of electricity to some 600,000 people, some as far away as Wales, and meant the loss of electricity for refrigerating fresh food and for water pumping—so we would probably have lost the fresh water—and the loss of the main electricity supply to hospitals, schools and all sorts of vital businesses. The cost would have been stupendous. Gold command briefly discussed, and rightly dismissed, the evacuation of Gloucestershire. Oxfam always used to advise people to keep within the villages in emergencies. That something as drastic as evacuation was even contemplated in the event of Walham being lost shows what an enormous catastrophe losing that critical infrastructure would have been.

Laurence Robertson (Conservative, Tewkesbury)

The hon. Gentleman lists many of the things that could have happened if we had lost the electricity supply. In addition, one thing that could have been lost, frighteningly, was the power of communication —the ability to get information to people. That would have been terrifying.

Martin Horwood (Liberal Democrat, Cheltenham)

The hon. Gentleman is right. All the computers switched off would have cut most of Gloucestershire off the internet. In this day and age that would have been a shock. The telephone system has its own power supply but that could have been compromised as well. What could have happened is a frightening prospect and Sir Michael Pitt was right to address it. However, in a sense, he was a little kind and the review was a little limited. He was kind in the sense that the Government were told in 2004 that a national review of critical infrastructure was needed. Because nothing was urgently pressing that they needed to take action on and there was no immediate example of what goes wrong when critical infrastructure is lost, the issue drifted and the review did not happen. By the time the floods hit, the national review had not been carried out. We are all aware of how great emergencies dominate the headlines for a few days or weeks and then drift out of the media’s attention, and out of Ministers’ attention from time to time as well.

The Pitt review was limited because I do not think that Sir Michael appreciated that critical infrastructure is far more than the utilities; they are more or less all that he addresses in his report. Recent events in Cumbria underline the fact that bridges are pretty critical infrastructure and having your town chopped in half could be disastrous—at one stage, that was potentially going to be for months for people in some towns in Cumbria.

Amendment 106 covers not only utilities, but also

“critical railway lines, roads and bridges...telephone exchanges and other critical communications sites and structures...general hospitals, and...any other local sites and structures considered critical by the authority”

so that we have a comprehensive register, maintained locally by the people with an interest in knowing where that critical infrastructure is. One slightly alarming thing that emerged from the experience of gold command in Gloucestershire was that until both Mythe and Walham were at risk, it was not aware of how important they were. For instance, the idea that when one substation was lost there was no back-up or alternative supply came, I think, as a shock to the chief constable in charge of gold command and as a shock to many of the rest of us.

I am grateful to the Minister for his letter of 11 January to the Committee, which points out a great deal that has been done on critical infrastructure since the floods of 2007. I am not alleging inaction. However, we are suggesting that the Bill does not create statutory duties, which the Pitt review expected it to. Should we find one day a less active and conscientious Minister taking the place of the hon. Member for Ogmore—

Huw Irranca-Davies (Labour, Ogmore)

Surely not.

Martin Horwood (Liberal Democrat, Cheltenham)

He is not going to be there for life—that would be a burden and a half.

Huw Irranca-Davies (Labour, Ogmore)

The hon. Gentleman should have read new clause 70.

Martin Horwood (Liberal Democrat, Cheltenham)

I would not put it past a Labour Government.

Should a less conscientious Minister take his place and should flooding drift off the political agenda, as it might do and as happened between 2004 and 2007, it is possible that the good intentions and the good record so far would start to drift away. The statutory duties are important, but the maintenance of a register relating to flooding at local level is a brilliant opportunity at least to put pressure on those responsible for those sites to be aware of the importance of them to the general population and to address the issue of their resilience to flooding.

Amendment 107 is complementary to the earlier one. It is obvious that we need to reduce the causes of flooding. However, as mentioned, flooding is a natural process and the intelligent and sustainable way to address it is to increase our resilience to it as well as defend ourselves against it. The requirement under the Bill for local authorities to establish a flood register offers the opportunity to promote resilience. Amendment 107 is designed to take those bodies, sites, or structures that we addressed in the previous amendment and ensure that there is some register of their state of resilience to possible failure due to flooding or coastal erosion. That is important for reducing the public cost of the emergency response. It is also important for insurance companies and for providing the public information that will act as a powerful incentive for owners of that infrastructure to ensure its ready state for flood events of the kind that we experienced in Gloucestershire, or might have experienced in other parts of the country.

It might also resolve the question that unfortunately sometimes arises of who is culpable when things go wrong. There was a particular issue in Gloucestershire that I raised on a number of occasions, where Severn Trent—perhaps compared with other water companies—did not seem to have built in resilience at the Mythe in the way that it might have been expected to. Compared, for instance, with national grid at Walham, it did not inform gold command quickly enough. When one closely examined, side by side, the accounts of who told what to whom, it emerged that even as local staff at the Mythe were warning Severn Trent management that the water pumping station was at high risk, it still had not informed gold command that there was an urgent need to act as it later did to save Walham—and so the Mythe was lost.

In that situation it is not clear who was at fault. There is an automatic duty and compensation scheme for water companies; where they are responsible for the unplanned interruption of water supply, they are supposed to compensate consumers. My argument—in fact Severn Trent’s initial acknowledgment—was that the compensation scheme should have come into play. Probably over £10 million should have been paid to consumers in Gloucestershire for the inconvenience of having lost their water supply, for which Severn Trent was in large part culpable. I am afraid, however, that it tried to wriggle out of that responsibility; it offered a much smaller amount in contribution to the emergency response work and its shareholders got away scot-free—I am afraid Ofwat let them get away scot-free. Had there been a register that detailed the level of resilience, it would have been much clearer whether or not Severn Trent had made that site resilient enough to meet the requirements of the flooding threat.

Laurence Robertson (Conservative, Tewkesbury)

On that point, I think that the water company should have realised that something might happen to the works because the surrounding roads and fields flood regularly. Just this weekend the police put up signs because the road had flooded, although not badly. It is situated in a place that frequently floods, so it should have clicked with the water company that something bad might happen.

Martin Horwood (Liberal Democrat, Cheltenham)

The hon. Gentleman is right and he has a good local knowledge of that part of our county.

I am very interested in new clause 28 and I look forward to seeing whether the Minister’s remarks on that offer any reassurance. New clause 6, like the other new clauses tabled by the hon. Member for Vale of York, is designed to address the issue of resilience at household level. The route that we have chosen is to amend the code for sustainable housing. The issue is pretty simple. We are simply not building flood resilient homes in areas of high flood risk. I had a look at the way the code for sustainable homes is currently interpreted on the architects’ website “Building Design”. It states:

“Architects and designers will be judged on the provision of rainwater holding facilities ... and the attenuation of run-off either to natural water courses or to municipal systems.

Where houses are sited in areas of flood risk, designers can gain extra points for constructing the ground level of buildings above the flood level, or designing the house with resilience against flooding to limit consequential damage.”

Points may occasionally mean prizes, but they certainly do not guarantee resilience. That is a conscious admission by the architectural profession that at the moment the code allows people to build houses for clients that place them in a position of risk. That will then lead to insurance problems if they are charged higher premiums, or if they have to make a claim that will probably lead to higher premiums for all of us. It seems to be part of a head-in-the-sand attitude to the building of flood defences which is not shared in other countries.

In other countries there are standard building regulations stipulating, for example, that, in flood risk areas, power sockets should not be in skirting boards. They are put at waist or chest height where they are easier to use for quite a lot of elderly people. That is a perfectly sensible change which should be automatic in a flood risk area. The more extreme examples in the Netherlands are of houses that rise up on stilts; the whole house floats upwards if there is a flood. That might be a slightly extreme variation, but all of these things could be looked at. The current situation is clearly inadequate.

I turn now to Conservative new clauses 17, 18 and 19. The hon. Member for Vale of York is clearly on a bit of roll. We will happily support all three of those. New clause 17 offers another layer of resilience planning to Ministers. It is not too prescriptive. It only says:

“The Secretary of State may by order require utility companies to report on their critical infrastructure”

We may not believe that that is absolutely necessary, but it seems to be a desirable addition to ministerial powers, so we would happily support new clause 17.

New clause 18 addresses the interesting interlocking issues of household flood defence, flood alerts and insurance, which are also addressed in our new clause 4. We all want to reduce damage from floods and claims from households, but quite apart from reducing the human misery, there is an important function here in reducing the cost of insurance for everybody. Better flood defences and management of the water in the landscape are important, but there are other ways to reduce the damage from flooding.

There are novel ways of protecting individual households. The hon. Member for Vale of York talked about some products being available that perhaps were not up to standard, but suppliers have shown me some extraordinary new products in the past couple of years. One system involves lightweight pillars that simply click into the ground next to a vulnerable opening such as the front door. Artificial planks are then slotted in and there are rubber seals, so when the water rises up against the front door the whole thing becomes watertight. It can be put up in minutes. It is very lightweight, so even an elderly person could do it at a pinch. It seems to be exactly the kind of thing that might qualify for the kitemark that is suggested in new clause 19.

In order to use such systems, especially those that one has to physically put in place when there is a flood warning, one needs a flood alert, so it is important that flood warnings are part of the mix. We need to address the whole issue of flood warnings and alerts. We currently have generalised alerts covering broad areas. Moreover, the alerts are issued days in advance, as was the case in Gloucestershire, and are not, in practice, a huge amount of help.

What one really needs to know is that a particular level of flooding is about to happen in a particular area. That would necessitate people rushing home from work and spending the last 10 minutes before the flood water arrives putting a system in place. That could prevent a lot of loss of property and, in turn, a lot of losses to insurance companies. It is also practical, because Met Office technology is now much more specific. In terms of predicting rainfall on a much narrower resolution, the potential exists to precisely predict extreme rainfall events, but that does not seem to have translated into the flood alert system. The new clause is therefore welcome in trying to bring those things together.

New clause 19 takes a slightly different approach from new clause 4, which we will debate later. The British Standards Institution’s kitemark scheme would be an entirely appropriate way to address the issue of finding a national accredited scheme for flood defence technology. I am not sure how the BSI’s responsibilities can be enforced in primary legislation, but I am sure that the Minister will expand on that. The intention behind new clause 19, however, is good and addresses similar issues to other new clauses that we have tabled. We would like to see those issues addressed.

David Drew (Labour, Stroud)

It is a pleasure to serve under your chairmanship again, Mr. Chope. I rise to ask my hon. Friend the Minister a couple of questions. The Environment, Food and Rural Affairs Committee wrote a report on the July 2007 floods and its most worrying aspect, as the hon. Member for Vale of York knows, was that we identified that 70 per cent. of our critical infrastructure was in the flood plain. That figure is of deep concern.

I subsequently went to look at the E.ON substation at Over and was quite impressed by the work that it had done. It has put the station on stilts, which involved huge capital expenditure. There seems to be some differential between the contingency planning of the electricity industry and that of the water industry. It was made clear to me that there was clear back-up from other parts of the country and other electricity stations. Is that for legal reasons, or is the industry far more aware of the need to keep the power on if possible?

I have said before that the simple fact in relation to the water industry was that Severn Trent did not take up the offers made by both Wessex Water and Bristol Water to insert pipelines that would have allowed it to keep the water on. It chose not to do that in what was a straight commercial decision. It was not done because of the inability to action the mechanism; it did not want to spend the money and be beholden to other companies. That was a shocking and wrong decision, and I think that, with the benefit of hindsight, Severn Trent has come to recognise that.

Another, more general question is: when a station, whether it be a water pumping station or a substation, is coming up for renewal or refurbishment, who has some traction to decide that its flooding risk is such that a contingency must be put in place—as happened in Over when E.ON put its substation on stilts—to deal with virtually every eventuality?

I would be intrigued to know whether that is covered by the Bill, or whether there are powers under other legislation—certainly in terms of electricity—that allow somebody to say that a facility which, because of its location, could flood, either needs to be moved, which is a huge capital expenditure, with all the planning process involved, or needs to be made fit for purpose, notwithstanding the fact that it has not flooded.

I have seen what can be done; parts of the electricity industry are already addressing the matter. We have some protections around the Mythe, as the hon. Member for Cheltenham knows better than I do. I do not know how robust those protections are, what risk analysis has been done or what contingency planning has been put in place. In the nuclear industry, every nuclear establishment has to have a full-scale emergency planned reaction to all sorts of contingencies such as terrorist attack or plane crash. Such establishments have to do that as a matter of course. I do not know whether that is the case with our critical infrastructure. If it is not, it ought to be because people ought to know what they are facing. We all know that it was only the brave but incredibly lucky reactions of the engineer at Mythe, who decided to turn off all the gear before it went down a big plughole, that saved the site from being out of use for a lot longer. I ask the Minister these questions because they are important issues.

Laurence Robertson (Conservative, Tewkesbury)

I support the amendment tabled by my hon. Friend the Member for Vale of York. I also support a lot of what the hon. Members for Cheltenham and for Stroud have said.

I mentioned earlier that I had a meeting with the chairman of the Environment Agency last night and he brought up the issue of the maintenance of the SUDS. The agency is concerned about whether the SUDS—whatever they turn out to be and we had a debate on that last week—will be maintained. Poor maintenance will be a problem and they will become ineffective. The argument for being able to build houses in a certain place will not be strong if the defences are not maintained properly. It is important that we put something in the Bill that makes that clear. I am aware that house builders, including in my constituency, are putting forward the argument, “We can deal with the water. We can deal with the run-off. We can deal with all these things.” We have to make sure that they can, because that will be quite a persuasive argument when they put in their planning applications. If there is not a safety net attached, houses are going to be built in areas where they should not be built. That is an issue that I have touched on many times.

I want to talk about the position of Walham and the Mythe. As I have mentioned, I live close to the Mythe in Tewkesbury and it is subject to flood. The fields there flood very regularly; the roads flooded this weekend. They continue to flood, not to the extent of 2007, but sufficiently to give a warning that something like that might happen again. The hon. Member for Stroud mentioned that there are some defences at the Mythe. I think that I am right in saying that they are semi-permanent; they are not perfect. I do not think that they will necessarily stand the test of time but there is something up there. However, we have to be absolutely sure that what happened in 2007 does not happen again. I will come back to that in a moment.

The position of the Walham substation is worrying because it flooded badly. It was only the heroic work of many people that stopped it going down and the entire county losing its electricity, with all the consequences mentioned by the hon. Member for Cheltenham. The reason I mention that is that an application has been accepted, on appeal, to build more than 500 houses not far from the Walham site, on green fields that, at present, soak up water. There was a lot of flooding in a town called Longford, which is very close to the Walham site. People were flooded very badly in that area. My concern is that building on that site increases the risk to those houses, and also to Walham. Our old friend the regional spatial strategy proposes building an awful lot more housing not far from there. Therefore, we are making the situation a lot worse and a lot more dangerous than it needs to be.

The hon. Member for Cheltenham raised the point about whether we should build houses in a flood resistant or resilient way. I would rather that they were not built in the wrong place in the first place, but if we are to build them he is absolutely right: we should consider how we build them. The hon. Member for Somerton and Frome (Mr. Heath) raised that point on Second Reading. The image everybody has of Tewkesbury across the world—I have even spoken to people in Australia and other parts of the world about it—is the iconic picture of the abbey surrounded by water. Everybody will recall that image. The abbey itself did not flood. There was water around the abbey, but the abbey itself did not flood. Building work on the abbey began at the end of the 11th century. That is a long time ago and we seem to have forgotten the principles that people in those days obviously understood.

The hon. Member for Cheltenham made a very good point about that. He also gave a good account of the problems caused by the loss of the water supply. Some people, I think I am right in saying, lost their water supply for up to three weeks. Most people lost supply for between one and two weeks, but I think some lost it for a little longer than that. To see the heroic effort to get bottles of water to people was unbelievable. Wagonloads of bottled water were brought in and distributed. The final distribution to houses was carried out by very young people—children—older people and volunteers. It was an absolutely extraordinary sight. We also had the bowser system, but this was a monumental effort that we cannot really expect people to go through again. I spent quite a while, on one particular day, with the Prime Minister.

David Drew (Labour, Stroud)

One of the reasons that we cannot go through that again is that so few of the bowsers were collected back. We will not have enough bowsers to run the operation again.

Laurence Robertson (Conservative, Tewkesbury)

The hon. Gentleman makes a good point. Getting water out to people was hugely difficult. That operation could not be carried out for very long. It is very difficult to get bowsers filled. I spent the Wednesday with the Prime Minister, who came to Walham and to the Mythe. He was on the phone trying to get people to fill the bowsers more quickly. I mention that because if the Prime Minister himself cannot move things on more quickly, then it is a very serious situation. If the Prime Minister cannot move things on, then who on earth do we go to? It was an extremely serious situation. I remember watching the late night news when the Secretary of State for Environment, Food and Rural Affairs, who had also been down to see what was going on and was very helpful, had to give an assessment to the Prime Minister on how things were going to go—whether the situation would become better or worse. I will never forget the news report saying that it did not look good in Gloucestershire; and that the Secretary of State would have to say to the Prime Minister that there was a great danger of losing the entire electricity supply. It was very frightening. As I mentioned in an intervention, if we had lost the power of communication—television, radio or mobile phones that could not be charged up—it would have been a very frightening situation. Looking back, it is perhaps easy to move on and forget, but it was a desperate situation and we cannot have anything such as that happen again.

In order to prevent such an event, we must start putting measures in the Bill. With great respect to the Minister, I keep hearing explanations about why certain things cannot go in the Bill, but that reinforces my concern. Although there is nothing in the Bill that I object to, there is not enough in it to ensure that we will not go through those problems again. Even if some new clauses or amendments are not absolutely perfectly worded—and I do not suggest that that is the case—they would be worth putting in the Bill as that would move us towards the situation in which we need to be. As it stands, the Bill does not do that. I support amendment 26 and new clause 17, and say to the Minister that we must put such measures in the Bill or it will not much improve matters. Amendments and new clauses have indentified in detail what needs to be done to improve the situation, and I hope that the Minister will accept some of the measures that have been put forward.

Nia Griffith (Labour, Llanelli)

I would like to push the Minister for an additional explanation on subsection (2). We all understand the need for a proper register of structures or features that could have a significant effect on flood risk. However, the question is: what is significant risk? We welcome the fact that the register will be made available for inspection by the public, but people will be looking out for the detail of the regulations, which will be crucial. People want to know not only that we are looking at things that have caused problems in the past, but that we are looking to the future and looking out for those things that will be a risk. People become angry when they feel that things could have been identified but were not, or if they find that building has been carried out and later somebody says, “Oh yes. It was always rather marshy down there.” That is the type of comment that we do not want to hear.

Yesterday I visited a place where a housing association has provided some high-quality homes in a suitable setting. There are a small number of homes that blend in well with the local environment and fit into a small town. The name of the street is significant—Willows close. One might wonder why, shortly after people had moved in, they experienced severe flooding. However, if we look at the records, we find that planning permission was initially turned down because of flood risk but that somehow, suitable plans were then found to alleviate the problem in some way, and that was supposed to be okay. Of course, it was not okay. That is the tragedy that can happen. The risk is not only to people in those particular homes. Many of us have seen what happens with what I call the sponge effect—if one place is squeezed, it squirts out somewhere else. Therefore, if people build in one place, that will have a knock-on effect on other properties or playing fields, which become more waterlogged.

I would like an assurance from the Minister about the nature of the provisions, the details, the time scale and the type of updating that will be required. Things clearly do not remain constant for ever; there are changes to our environment in everything from the course of rivers to the coastline to the effect of human activity. There will need to be constant updating. It is no good having something that we can access on the internet by pressing a button if it does not reflect the reality of something new that has been built.

I remember reading an Ordnance Survey map that did not show Llyn Brianne, a vast reservoir in Wales. Having recently moved to that area, I was unaware of it, so when I went walking I found—extraordinarily—a very large reservoir. People should not find themselves in that situation. People want to know that when they are making decisions, they have the necessary information.

I have one further point about the planning procedure. We in Wales have unitary authorities, which means that the local lead flood authority is likely to be the planning authority as well. That situation has advantages and disadvantages. Of course, there is a lot of streamlining with unitary authorities and they can be very effective. The considerable worry in this case is that only one authority is looking into the risk and controlling it. Therefore, the role of the Welsh Assembly Government Minister, and of the Secretary of State in England, is crucial in ensuring that the proper information is made available and that we take notice of it when we are making provision for the future.

We must have the most up-to-date modelling and information about flood risk so that people can make informed decisions when passing planning applications. People need to err on the side of caution and to be much more robust in asking questions about planning applications, particularly in low-lying areas in more rural parts of Britain. Obviously there is a crisis in places such as London, where it is very difficult to find additional places to build, but those of us who live in areas where there is a little more space should be ensuring that our provision for future generations is based on a much more common-sense approach and be prepared to say, “No, that’s not a good place. Let’s put this somewhere better—somewhere safer.” I therefore urge the Minister, when he gets down to looking at the regulations following this Committee’s work, to make them very prescriptive.

Chloe Smith (Conservative, Norwich North)

I want to speak particularly in support of new clauses 17 to 19, but also about amendment 26. I start by noting that I believe that I am the only member of the Committee from the east of England, which is one of those rather large areas that are referred to as a flood risk in their entirety. Anyone who has visited any part of it will recognise that that is a very broad-brush definition. Coming somewhat closer to home, and talking about Norfolk, I shall refer briefly to the Norfolk broads, with which hon. Members might be familiar, but I shall first address Norwich, North—my constituency.

I wholeheartedly support what my hon. Friends have proposed in new clauses 17 to 19, in that that is a way to give power to the people, through information, in a very specific, micro, super-local manner. Our debate has already passed over responsibilities that might reside at national and local levels. As I just tried to say, in a somewhat garbled manner, this is a super-local point about the way in which people might be able to protect their homes, down to the level of a rubber seal around the front door. It is incredibly important that people can know and decide about—perhaps in descending order—first, structures in their area, which is referred to in one of the proposals; secondly, utilities in their area, following on from new clause 17; and, thirdly, the insurance available and the factors that affect insurance in relation to their homes. Of course, our discussion on these new clauses is not the only area in the debate where we have referred to that. This is merely one aspect of the entire insurance debate, but it is a valuable one none the less.

Through new clause 19, we come down to the most micro level possible of modifications that home owners and tenants can make with confidence in their properties. The example of modifications raised by the hon. Member for Cheltenham—the pillar and plank scenario—put me in mind of a case in my constituency. In comparison with the very large and tragic floods that this country has seen, I am talking about “only” 12 homes—a small row of homes that have what is as yet an unidentified or uninvestigated flooding problem. My constituents are using the old-fashioned version of the plank system. There is an elderly gentleman who runs out of his door when he thinks that the rain might be coming and holds a plank in front of his driveway. The fact is that home owners have to do such things. Hon. Members have referred to the time that people have to act when they think that the waters might be on their way.

I wholeheartedly support the measures, which could give home owners and tenants confidence in products that they can buy so that they can exercise consumer power to do what they can in the face of what might, despite our best efforts in Committee, continue to be the frightening and confusing situation of flooding.

Amendment 26 refers to mapping. As other hon. Members have said, a mapping provision would be important, and mapping forms part of the theme of information provision that we have already covered. I want to draw on an example that is local to my constituency, in which there might be an implicit question for clarification by the Minister: the role of the Broads Authority. Perhaps the Minister will clarify how national parks, and the authority in particular, fit in to the categories of risk management authorities, local authorities, planning authorities and so on in the context that we are considering. I hope I shall be forgiven for looking back at definitions—and perhaps forward at clauses 22 and 24 on regional flood and coastal committees—but I should like the Minister to clarify where the Broads Authority sits among those elements of our work.

To return to mapping, hon. Members might have visited the Norfolk broads on wonderful holidays. Of course they have a large surface area, but I do not think that they are unmapped—like reservoirs in Wales, perhaps. However, the broads come into a small area of the city of Norwich, which often leaves local people foxed about what is the planning authority for a particular mooring in a part of the wider urban area known as Thorpe St. Andrew, which is in my constituency.

My key point is that the broads are not simply a rural place. They are also urban; they cross boundaries. As hon. Members have already noted, waterways do not respect such boundaries. The mapping element is a key part of allowing people to see, at the level of feet and inches, who is responsible for what. I wholeheartedly recommend that amendment 26 be accepted because it would afford extra benefit in such small-scale examples as I have mentioned.

Huw Irranca-Daviesrose—

Christopher Chope (Conservative, Christchurch)

Order. Before I call the Minister to speak, I want to say that given the length and breadth of the debate, I do not propose that there should be a separate clause stand part debate.

Huw Irranca-Davies (Labour, Ogmore)

Thank you for that clarification, Mr. Chope.

We have had a good, useful and thorough debate that has exhausted many avenues of clause 21. I want to respond first to some of the comments made by the hon. Member for Tewkesbury and my hon. Friend the Member for Llanelli about what is on the face of the Bill and the question of future-proofing. I know that I sometimes seem like the reluctant legislator, but I come from the point of principle that we put in a Bill what is needed, but get the right flexibility to avoid the need to revisit primary legislation. We can build in future-proofing for future Ministers, through regulations or guidance. Although I might seem reluctant, there are sometimes good reasons, and I never seek perfection, although to paraphrase Nye Bevan very badly, I would say that any journey that does not seek utopia is not even worth setting out on.

As I go through the points, I shall have to take some time, at the risk of incurring the wrath of the Committee’s business managers, because there is quite a lot of detail to cover. First, however, I am always willing to put my hand up when I make an error; I have indeed made a technical error in something I said in a previous sitting on a matter related to the one we are considering, for which I apologise.

On Thursday, I referred to the Environment Agency’s power to issue guidance to lead local flood authorities and others on requests for information under clause 14 and the register provided for under clause 21. The Secretary of State approves the agency’s national strategy and guidance under clause 7(7), but there are other more general arrangements to which I referred incorrectly—I referred to the wrong clause—including a power to direct the Environment Agency, which is to be found in section 40 of the Environment Act 1995, not section 19A, as I inadvertently said. That is a clarification, but the mistake does not affect the substance of what I said.

As I suggested, and as I think one of Scott’s lieutenants said as he walked out of the tent in the Antarctic, this may take some time. First, the hon. Member for Vale of York raised the issue of lead local authorities when she asked me to confirm that they should work with others to ensure that they have the relevant information that they need. I can confirm that the duty to co-operate in clause 13 already provides that they should do that. Similarly, clause 14 provides for information to be requested—I wanted to deal with that issue right up front and give that reassurance.

The hon. Lady and the hon. Member for Upminster tabled amendment 26 expressly to include “Sustainable Urban Drainage Systems” within the requirement for a register and record of structures. I agree that it is important to ensure that there is a record for both adopted and unadopted sustainable drainage systems. That is why, under paragraphs 22 and 23 of schedule 3 to the Bill, a SUDS-approving body is already under that duty to include all sustainable drainage systems that it approves on the register, while a record of assets is established under clause 21. To come back to the point with which I began my speech, it is right that the specific details to be recorded are set out in regulations that underpin the Bill.

The hon. Members for Cheltenham and for Brecon and Radnorshire tabled amendments 106 and 107, which would expand the scope of the register to include infrastructure that could have, as amendment 106 puts it:

“a significant effect on public health and welfare if flooded”.

As we deal with those amendments, may I refer again to the issue of SUDS being included on the authority’s register, which I have just mentioned? Just to clarify matters, SUDS approved under the Bill will automatically be put on the authority’s register. Other existing SUDS can be put on the register if they are relevant to local flood risk, which of course is the focus of the Bill, and indeed many of them will be. The ability to request information set out in the Bill will be quite important to that.

The hon. Member for Tewkesbury raised the issue of SUDS maintenance. The Bill provides for all SUDS serving more than one property in new developments covered by the Bill to be maintained by county and unitary local authorities in the future. Those authorities can also choose, if they wish to do so and if it is relevant to the flood risk management, to adopt existing SUDS. I refer the hon. Gentleman to paragraphs 16 to 21 of schedule 3 to the Bill.

Regarding amendments 106 and 107, there are existing requirements under the Civil Contingencies Act 2004 for local authorities to co-operate with transport and utility companies in local resilience forums, including in periods when there is an incident. Such arrangements relate to a wide range of risks and it would not be appropriate to require a register of infrastructure at risk of flooding and coastal erosion in isolation. Maintaining such a statutory register would not add any value to the existing arrangements and, in fact, would place an additional burden on local authorities.

The Government’s Centre for the Protection of National Infrastructure works with the operators of essential services and with lead Government Departments to help to identify and protect critical national infrastructure against security threats. I would like to go into further detail on this issue, because it has been raised by a few hon. Members. I have stated before that the natural hazards team was created within the Cabinet Office in May 2009 to co-ordinate work across Government and to ensure that the appropriate standards of resilience were in place across all sectors. My hon. Friend the Member for Stroud asked what was being done in the water sector and I will address that point in a moment.

The Cabinet Office’s critical infrastructure resilience programme is working right across Government to identify the risks to other critical infrastructure from flooding and other natural hazards. Action will then be taken to ensure that measures to improve the resilience of critical infrastructure are put in place before a hazardous incident occurs. That includes examining the balance between improving resilience and contingency planning to maintain the security and continuity of services.

To give the Committee an idea of how much has been done, the Cabinet Office has screened nearly 1,000 critical infrastructure sites for flood risk. It has identified 171 sites across the nine sectors of national infrastructure that could be flooded by rivers or the sea. By the way, the number of such sites in the water sector is the highest for any of those nine sectors, with the number in the energy sector the second highest.

As I mentioned before, the lead Government Departments are preparing a sector resilience plan for each of those nine sectors to examine the vulnerability to flooding of those 171 sites and to identify what actions are needed to improve resilience to disruption from natural hazards. That work is being co-ordinated by the natural hazards team.

Martin Horwood (Liberal Democrat, Cheltenham)

The Minister provides some reassurance in saying that national attention is being paid, finally, to critical infrastructure. However, when he mentions statistics such as 1,000 nationwide and 171 sites vulnerable to flooding, he reinforces my impression that there will be not nearly enough detail. I do not imagine that things such as the bridges in Cumbria that turned out to be so vital; district general hospitals; and critical communications, which the hon. Member for Tewkesbury emphasised as being important, will be addressed. The local knowledge required to look comprehensively at the resilience of critical infrastructure is surely a vital addition. That would translate immediately into the emergency response because when an emergency happens, gold command is based among local authorities and agencies.

Huw Irranca-Davies (Labour, Ogmore)

I thank the hon. Gentleman for his intervention. He has anticipated a point that I was coming to. He made an important point about bridges and locally important infrastructure. As we saw in Cumbria, there is a significant impact when such things go down. I will come to that point.

In response to the comment by my hon. Friend the Member for Stroud, I will give an overview of the 1,000 critical infrastructure sites and the 171 sites across the nine sectors. In the energy sector, 14 sites have been identified; there are 17 for the emergency services, 14 in communications and 63 for water. As I said, we will shortly bring forward the sector resilience plans and give more details of those sites. We will say what work has been done with the water companies and Ofwat to identify the actions that emanate from the identification of the sites. We are not in a position to reveal that today, but we will bring it forward in short order as a result of the work we have been doing.

David Drew (Labour, Stroud)

On that point, is there always agreement? As part of an agreement that a piece of infrastructure is at risk, is there a contingency to ensure that there is always some way for the provision of services in the area to be defended, even if there is no change in the logistical location?

Huw Irranca-Davies (Labour, Ogmore)

Absolutely. That is a very good point. The work I have been involved in and that will be revealed shortly, for example in Mythe, deals not only with the increase in temporary barriers and what further work can be done, but with where sites have interlinkages and where there is transferability of services from one place to another. For example, we are considering how we can ensure that there is sourcing of energy from other areas if one area is affected by an energy shutdown. The same applies to water supply. I assure my hon. Friend that that is part and parcel of our approach to resilience. It is not simply to do with putting barriers around things that are identified as critically vulnerable, but with where water companies and energy suppliers have said that they can relay transmission.

I was asked what is being done at the moment. We have not been waiting. I reiterate that these are just some examples from different sectors. In east Hull and west Hull, there are sewage pumping stations where flood defences have been provided in response to the 2007 floods. At the Hull waste water treatment works, there are defences against a one-in-200-year flood event. In Exeter, the electricity distributor has replaced the switchgear in the substation and elevated the new installation above the level of potential flood waters. Fire and rescue services in Humberside have raised the IT and communications equipment 1.5 metres above ground level to ensure the continuity of service. The National Grid has invested over £1 million in flood defences, including on a 1.2 km temporary flood defence barrier that can be deployed when there are threats of flooding, similar to that used at the Walham substation in 2007.

With regard to the point raised, rightly, by the hon. Member for Cheltenham on the assets identified locally on the ground, I can confirm, if we take the example of bridges and other infrastructure of such vital importance, that they are covered by the work of the natural hazards team at the Cabinet Office, as I have just mentioned. They are also included in some of the work on critical infrastructure. For example, Network Rail has assessed its bridges that are over water for scour damage. They are part and parcel of those considerations, so we do not ignore those assets.

Jessica Morden (Labour, Newport East)

I appreciate the Minister’s giving way, as he has done so many times today. I would like reassurance on that point before he moves on. In constituencies such as mine, which has seven bridges, the Swansea to Paddington railway line and cross-border issues relating to electricity and sewerage works, will he reassure me that there will be full discussions with the Welsh Assembly Government about some of those cross-border issues, particularly with regard to transport links?

Huw Irranca-Davies (Labour, Ogmore)

Absolutely. I can give my hon. Friend a categorical assurance that that already takes place within the Cabinet Office discussions, which include the input from the Welsh Assembly Government.

Anne McIntosh (Conservative, Vale of York)

The Minister does not seem to have responded to my remarks that they are woefully behind their schedule on critical infrastructure and on the hazards team. I commend their work, but they should have reported by spring 2009.

Huw Irranca-Davies (Labour, Ogmore)

I understand the hon. Lady’s point. The review of Pitt progress provided in December, which I am sure all Members have read, did show significant progress across a range of areas, but that area required further work, and I acknowledge that. It is pointless to say that we have delivered everything on it. The work undertaken shows that we are clearly progressing extremely well, and the sector resilience plans are well progressed. I hope to make a further statement on everything that has been done. I take the hon. Lady’s point, but it is not as if we have done no work in that regard.

Martin Horwood (Liberal Democrat, Cheltenham)

Is not the Minister underlining the limits of centralisation? He is trying to list a load of things in Exeter and so on, but the scale of what has to be done and the number of responsibilities, many of which do not relate to Government, such as the responsibilities of water companies, the National Grid and other private owners, show that that would be much more effectively done if there was a focus on carrying it out at the local level, because that would result in much more comprehensive attention to detail, based on local knowledge. It cannot all be done by Government.

Huw Irranca-Davies (Labour, Ogmore)

I do not disagree with the hon. Gentleman. In fact, just to clarify, the local resilience forums, which play such a pivotal role, have a key role in considering the risk to local infrastructure and contingency planning. They include all the key local bodies, including local authorities, NHS trusts, which he mentioned, and emergency services. For example, the Workington bridge will not have been categorised as national critical infrastructure, but the local resilience forum has identified it, and that is how it will work, so the local resilience forums can bring forward parts of the infrastructure because, as he is right to say, the local input is absolutely imperative.

The Government’s commission for the protection of national infrastructure will work, as I have mentioned, with the operators of essential services and lead Departments to identify and help protect critical national infrastructure against security threats.

On the question put by the hon. Member for Vale of York on what would help households know the best way to spend money to build in flood resilience, we are currently doing research on flood resilience and guidance. Following that, we will consult this spring on new guidance on flood resilience. I have discussed with her, the hon. Member for Cheltenham and others the need to do more on that and on flood-resilient building standards. That is in advance of, and in addition to, longer-term consultation on possible regulatory changes that will help deliver greater awareness, as will the Environment Agency schemes we fund to install flood products. I will return to that point shortly.

New clause 6, tabled by the hon. Member for Cheltenham, would impose a requirement on the Secretary of State to amend the code for sustainable homes to ensure that new homes are built with regard to flood resilience—the point that I just touched on. I recognise that the objective of the new clause is to get new homes built with appropriate flood resilience. I will expand on this in some detail. However, we believe that as a result of PPS25, which we discussed previously—I do not want to go over that issue in its broad context—we already have a clear policy framework in place to deliver it. PPS25 is clear that for developments where there is a residual risk of flooding, local authorities should consider how the design should incorporate flood resilience. It then points to guidance issued jointly by the Department for Environment, Food and Rural Affairs, by the Department for Communities and Local Government and by the Environment Agency on building in flood resilience.

Members of the Committee will be interested to know that in respect of Cumbria, the Association of British Insurers has revised and refreshed the guidance that it is issuing to all householders. It has strengthened the guidance on resilience repair and made clear to individual householders the potential benefits and cost savings on their insurance if they take up the issues. I will go into further detail on that as well.

Further to that, as I will explain shortly the Government are also considering how flood resilience and resistance might be improved in the building regulations for new buildings and repairs to existing homes. In practice, the code for sustainable homes is already aligned with PPS25, as it encourages development in low flood risk areas and promotes measures to reduce the impact of flooding in higher-risk areas.

Laurence Robertson (Conservative, Tewkesbury)

The Minister may be coming to it, but there is the issue of the new houses themselves being flood-resistant. Also, there is the need to avoid water run-off on to other areas—the water displacement. Will that be included in the assessment?

Huw Irranca-Davies (Labour, Ogmore)

Again, the hon. Gentleman anticipates a point that I am coming to. It is a good point. However, let me work my way towards it, because I am trying to string together a lot of points with a broad rationale.

As I was saying, the code for sustainable homes is already aligned with PPS25 in practice. Although homes built with public money are required to be built to code level 3, for private house builders the code is voluntary. Given that we have no plans to make building to the code mandatory, an amendment to the code would not necessarily deliver the assurance that new homes would be built with flood resilience, which is what the hon. Member seeks.

Let me turn to the code for sustainable homes.

Martin Horwood (Liberal Democrat, Cheltenham)

The Minister is kind. It makes sense if one is in favour—as we are—of making the code mandatory.

Huw Irranca-Davies (Labour, Ogmore)

Yes, okay. Let me expand further. As the hon. Gentleman mentioned earlier, there is more than one way to skin this particular cat.

Flood risk is addressed in the Sur 2 element of the code for sustainable homes. This aims to encourage housing development in low flood risk areas or to take measures to reduce the impact of flooding on houses built in areas with a medium or high risk of flooding. In a code assessment, two credits are available for developments situated in zone 1, which is a low annual probability of flooding and where the site-specific flood risk assessment indicates that there is a low risk of flooding from all sources. One credit is available for developments situated in zones 2 and 3a, which are medium and high annual probability of flooding, where the finished ground floor of all habitable parts of dwellings and access routes to the ground level and the site are placed at least 600 mm above the design flood level of the flood zone. The flood risk assessment accompanying the planning application must demonstrate to the satisfaction of the local planning authority and statutory body that the development is appropriately flood resilient and resistant, including safe access and escape routes where required, and that any residual risk can be safely managed.

Let me consider whether we should have a mandatory code. Mandatory standards for construction of new homes are laid down in the building regulations. The code is only effectively mandatory for publicly funded housing—I know that the hon. Gentleman would say make it mandatory for everything. If it were decided that resilience standards should be made mandatory, the right place to include them would be the building regulations. I will return to that in a moment. The Government have made a commitment to consider including resilience standards in the building regulations.

In preparation for a wider public consultation as part of the review for the changes due in 2013, we will consult in the spring on issues that might be reflected in future flood performance standards for new buildings and repairs and how they might be incorporated in the building regulations. It is a valid point. In Cumbria, Hull, Gloucester—indeed, everywhere—we have seen that some of the simple building resilience measures that can be introduced into homes make a huge difference.

Indeed, when those measures are coupled with flood warnings, what I saw on the ground in Cumbria—and what I am sure the hon. Member for Vale of York saw when she visited Wales—was that the work of the local flood forum was combined with the advanced flood warnings that were given. That work was then combined with the actions of people in Keswick or elsewhere, who had put basic, simple flood resilience measures in their homes. Those factors made a material difference, first, to the damage sustained in the property and people’s ability to get back into their house in a couple of days rather than months and, secondly, to people’s insurance premium in future. When those things are pulled together, they make sense.

Let me go on to what I think we can do, which relates to Government new clause 28. The hon. Member for Vale of York also tabled new clause 18, which would require the Environment Agency to report annually on flood warnings, individual property measures and insurance. I thank her for raising that issue. We already provide in clause 18 for the EA to report more widely and for Ministers to set the time scales and the contents of the report. So Ministers will be able to specify that sort of issue, including the matters that she has identified in the amendment. It should be noted that the EA already reports on flood warning as part of its corporate score card, which is published on the board as part of its website. Ministers discuss that with the EA in detailas well.

The hon. Lady also referred to flood warnings and opt-out. As hon. Members know, the EA is producing a roll-out of the strategy for improved flood warning. We have come on a lot, but we still need to encourage the take-up and so on. Of course, the flood warnings are targeted; they are not general, including in parts of Cumbria. Flood warnings were not issued everywhere in Cumbria; they were targeted at those areas identified to be at risk of flooding. Let me give something of an update on that. The report on Pitt that we published in December made it clear that the work we have been doing on the opt-out approach—recommendation 62 of Pitt—will be completed by February 2010, when our thoughts on that will be made tangible and real.

The hon. Member for Vale of York also tabled new clause 19, which would provide for a power for the Secretary of State to make an order to require annual reports from the British Standards Institution on flood resistance products. The measure would require such reports to be laid before Parliament and approved by each House. Ensuring that individual residents have complete confidence in the products they are using is an issue—I acknowledge that. To gain the BSI kitemark, products have to undergo rigorous testing to demonstrate that they can provide effective property-level flood protection. Information about businesses holding the kitemark is also available on the BSI website—www.kitemark.com. However, let me expand on the issue.

The kitemark scheme is a British standards accreditation scheme for products. People will be very familiar with British standards accreditation. In the case of flood protection products, accreditation is given to those who comply with publicly available specification—PAS—1188. To gain the BSI kitemark, products must undergo rigorous testing to demonstrate that they can provide effective property-level flood protection.

A working group that includes representatives from flood resilience product manufacturers, the Flood Protection Association, the Association of British Insurers, insurance companies, DEFRA and HR Wallingford has recently assessed the current BSI kitemark scheme for flood protection products. Its conclusion was that the kitemarking scheme is necessary to ensure product quality compliance and as a result it was reissued last April. So the group has confidence that the scheme is right. However, it is also important to say that we will keep an eye on the matter to ensure that the right products are being used in the right situations. That is key. We have a good grip on quality assurance and on the products, but the other aspect is to ensure that the advice given on the ground either by the ABI or its members to individual householders means that people are using the right product in the right place.

Anne McIntosh (Conservative, Vale of York)

I hope that the Minister agrees that it should not be for parliamentarians to say what is the right or wrong product. I applaud the working group.

Huw Irranca-Davies (Labour, Ogmore)

Indeed.

Anne McIntosh (Conservative, Vale of York)

I would, however, like the Minister to address two issues. When the guidance is followed and the kitemark is issued but the product fails, what right of redress does the consumer have? Is the insurance industry minded to reflect in its premiums or excesses the fact that the investment has been made?

Huw Irranca-Davies (Labour, Ogmore)

On the latter point, I am encouraged at the moment because the ABI has revisited and revised its guidance on the back of the Cumbrian floods, and its current guidance acknowledges that if someone appropriately fits flood resilience products in their house, it could have an effect on insurance premiums. That is important, but there is wider work to be done, not just on resilience but on the role of the various partners—the Government, the ABI, local flood forums, and others—in jointly stepping up to the mark, and on how we properly promote the level of expertise regarding the right product in the right place. We are considering some sort of pilot project based on Cumbria, which would look at what is happening on the ground—with information going out, resilience products being fitted and, interestingly—the behavioural response of individual householders. When people are offered resilience products, do they go for those products or is their desire to have an appropriate local builder in? The response of individual householders is an important factor.

Powers in the Building Act 1984 allow regulations to be made to cover resilience or resistance in respect of new buildings or major alterations. They do not allow for similar provisions in respect of most types of minor repair work, for example, requiring simple things such as the replacement of flood-damaged plaster with more resilient plaster, or electrical sockets to be moved up the wall in the likelihood of future floods. Amending schedule 1 of the 1984 Act in that way would ensure that building regulations could be made in relation to any type of flood resilience and resistance work to a building. We remain committed to considering the potential for regulating for flood resilience and resistance, and we will consult in the spring. At the same time, we plan to consult on additional guidance to boost what is already published to help those seeking to build in flood resilience. That guidance can then be consulted when dealing with planning permissions to ensure that development incorporates flood resilience when necessary.

I should make it clear on new clause 28 that any subsequent regulation under the power created by that Government amendment will have to be based on a thorough understanding of the costs and benefits of different flood resilience and resistance measures. To be justified, regulation is likely to have to be targeted on the basis of a cost-benefit analysis. One would not necessarily simply want to say to every householder, “You have to do x, y and z regardless”. I would not, therefore, like to predict exactly how any subsequent regulation might be framed, but our commitment is clear. Similarly, in advance of further detailed work to establish a better understanding of the costs and benefits of different approaches, I would not want to commit the Government to regulation. However, the amendment offers a useful additional power to the Government to regulate for flood resistance and resilience, if the further work that we are undertaking demonstrates a clear need to do so.

The hon. Member for Vale of York raised the issue of the consumer having recourse if one of the products goes wrong. If a product fails, under existing legislation, the consumer might have a claim against the manufacturer, if the product has been correctly installed—that is the key issue. The additional guidance on flood resilience will also help raise awareness of how to build in proper and appropriate flood resilience.

My hon. Friend the Member for Llanelli rightly raised the detail of the regulations. Some local authorities are already starting to record information, and we are working with the Environment Agency to ensure that the appropriate tools and systems are available to them. I will write with more detail on that. The register will allow a better understanding of how flood risk is managed, particularly local risk, and it will feed into the surface water management plans. Also, just to clarify matters, the Bill requires a register and a record to be maintained, so it will indeed, as part and parcel of that, be updated as well. That is the future-proofing element to which my hon. Friend referred.

I will now consider the comments on mapping made by the hon. Member for Norwich, North. The flood risk regulations implementing the flood directive provide for collation of assessment, mapping and risk management plans for all sources of flood risk, and will incorporate outputs from surface water management plans. Any confusion over responsibility will be resolved by the lead local authority under clause 19, which we discussed earlier.

In respect of how the national parks and the Broads Authority fit into the picture, it is a good question. They are not risk management authorities, but we have taken the power under clause 29 to add, if we are so minded, them—or other bodies—as bodies which must have regard to strategies under clause 11, or clause 12 for the national parks in Wales.

With those detailed comments I ask hon. Members to consider withdrawing the amendment and, when the time comes, supporting new clause 28.

Martin Horwood (Liberal Democrat, Cheltenham)

I am encouraged by the Minister’s remarks. I am not sure he entirely addresses the wide-ranging nature of amendment 106. There is quite a lot more to it than building regulations, and the critical infrastructure issues are wide-ranging. I hear what he was saying about the way in which local resilience forums are looking at critical infrastructure, and the way that interacts with national action. I suppose we must hope that that process will have the same kind of effect that we were trying to have through amendment 106.

I am pleased that the Government have tabled new clause 28. That genuinely seems to open the door to legislative action to make a real difference to the resilience of individual properties—at least, new properties. That seems to me quite a significant step and I am prepared to welcome that. On that basis, I will not push my amendments to a vote.

Anne McIntosh (Conservative, Vale of York)

We have had a very good debate, and I congratulate all my colleagues and thank them for the interest that they have shown. I think the amendments—certainly amendment 107—could potentially be complementary to our new clauses.

Mindful of your strictures, Mr. Chope, that I must make any comments on stand part, I would just like to make two comments on clause 21. We are wedded to the fact that the local community should be the master in the Peak district, and that subsection (1)(a) refers to a register guided by

“the opinion of the authority”.

Obviously, this would obtain local support. However, subsection (2) undermines this—possibly unnecessarily—by encouraging the Minister to

“make provision about the content of the register”.

Would the Minister therefore be minded—possibly at a later stage—to drop subsection (2):

Surely we must trust the local authorities to do their bit. That is part of our agenda of localism and trusting local communities, and we feel it could be undermined. We have some sympathy with the comments made about that by the Local Government Flood Forum.

The appeals process, which was mentioned earlier, is crucial here. If we put down a marker now, would the Government be minded to extend the appeals process, at a later stage, against the detail of enforcement notice, as well as allowing an appeal against the notice itself? It would be interesting if the Minister moved in that direction. I welcome the Minister’s comments and I thank him for speaking at length.

We will obviously consider new clauses 17, 18 and 19 further. However, we want to press amendment 26 to a vote.

Clause 22

Anne McIntosh (Conservative, Vale of York)

May I welcome you to the Chair, Mr. Martlew? It is a pleasure to serve again under your chairmanship.

The biggest change under clause 22 is the change of status of regional flood and coastal committees from advisory to consultative.

Eric Martlew (Labour, Carlisle)

Will you speak up a little?

Anne McIntosh (Conservative, Vale of York)

Indeed.

Will the Minister justify the impact that the change to the regional flood and coastal committees’ status would have in each region? Under the clause, what direction would potentially be given by the Environment Agency to local communities? Will the Minister assure us that, through subsection (2), the Government are not seeking to overrule either local communities or the role of the Environment Agency? We are putting down a marker to show that we are concerned by the change in status of the regional flood and coastal committees. Is the Minister minded to lay before the House the regulations that he proposes in subsection (2), so that we might be able to debate them in the usual way?

Martin Horwood (Liberal Democrat, Cheltenham)

It is a pleasure to serve under your chairmanship again, Mr. Martlew.

I want the Minister to address two issues in the clause. One is a general concern that what people agree is a valuable route to local democratic involvement in the flood risk management process may be diminished by the arrangements for regional flood and coastal committees. In the NHS, the parlance now is about expert patients. In many fields, it is recognised that the people who actually experience a problem may have insight that even the best academics and professionals sometimes cannot impart. It is valuable to have a route for local people to have a formal role in the flood risk management process. Until now, regional flood defence committees have been one such route—I have met local councillors who have expert knowledge, even though they may not have the professional qualifications of a hydrologist with a complex mapping system at their disposal. Computer models do not know everything and such committees have an important role.

I would like to hear from the Minister a clear expression of how the regional flood and coastal committees will fit between the national oversight role of the Environment Agency and the new lead local responsibility of the local authorities. Ultimately, I am asking what the Government see as the purpose of these new committees. In a sense that is not clearly defined on the face of the Bill; we are left to infer it.

The second specific concern is over the subsection of this clause that gives the Secretary of State power to establish the regions in which these committees are based. We are all familiar with Government regions, some of which are not appropriate at all, certainly not for something of this scale. The hon. Members for Tewkesbury and for Stroud and I labour within the south-west Government region, which places Tewkesbury in the same region as somewhere it is as close to as Scotland—the Isles of Scilly. That is a crazy scale of region; I hope that is not what is envisaged for these regional flood and coastal committees.

Organisations involved with the Blueprint for Water campaign have suggested that the natural regions for regional flood and coastal committees should be based on water catchment areas. That seems to be a natural and very sensible thing to do and one which would reinforce the thrust of the remarks that I have been making since the beginning of the Committee stage.

Andrew Turner (Conservative, Isle of Wight)

I am interested in the hon. Gentleman’s proposal. May I find out whether he is in favour of the Severn, including that part which is in Wales, being in one unit?

Martin Horwood (Liberal Democrat, Cheltenham)

The hon. Gentleman may have got the better of me. I am not absolutely sure where I would draw the boundary based on water catchment, and I have not really sat down with a map and thought that through. The Severn vale seems a logical area, but I am not sure whether that would include the Wye. I would leave that up to people more expert than me. The thrust is, again, that we should wherever possible try to work with nature and look at natural landscapes. The obvious regional designation in this case would be water catchment areas and water basins. It would be very welcome if the Minister committed to that now. If he does not find that possible, will he at least say that he would treat that suggestion sympathetically?

Huw Irranca-Davies (Labour, Ogmore)

Some good issues have been raised. Let me deal with the issue of the boundaries and that of Wales.

The boundaries of the regional flood defence committees were fixed under the Environment Act 1995. They reflected the boundaries that had existed previously under the National Rivers Authority and, before that, the water authorities. On the matters under discussion and the hon. Gentleman’s point about catchment areas, there is absolutely no benefit in continuing to fix the boundaries rigidly from the centre. Committee areas would need to take account of a range of factors, including the natural factors relating to river catchment areas and coastal erosion, the size and scale that is feasible and practical for committees to work on, and administrative boundaries. That approach would be in line with the Environment Agency’s current advisory committees dealing with environmental protection and fisheries, the areas of which are determined by the Environment Agency under the Environment Act 1995.

The hon. Gentleman raised the issue of whether there should be one single committee that is wholly and mainly for Wales. Currently, there is one flood defence committee on Wales, and the Environment Act 1995 provides that in relation to the other statutory committees. One of the committee regions consists wholly or mostly of Wales. However, we do not see a need to require that there is only a single committee for Wales. For example, it may be sensible to have two or more committees that cover the whole of Wales between them. We need to retain the flexibility for now and the future.

On the hon. Gentleman’s question about the role of local people, we will continue to make sure that there is a local role through the RFCCs. They will continue to have local authority membership, which we can perhaps talk more about when we come to the various amendments and the subsequent clause. In schedule 2, an additional provision for local authorities’ scrutiny increases the scope for public participation.

The hon. Member for Vale of York raised the issue of the change in executive status of regional flood defence committees—I am sure that we will return to that too. The current requirement for the Environment Agency to carry out its flood defence functions through regional flood defence committees creates blurred responsibility between the agency and those committees. It is a fuzzy edge. It also creates potential conflict when it comes to the allocation of funding by the EA and the achievement of Government targets. That arrangement was appropriate when committees raised the majority of flood defence funding through the local levy. However, that has not been the case since 2004, when a system of direct grant from central Government to the agency was introduced. Therefore, the Bill aims to bring the law into line with the present and the intended funding arrangements. However, it also brings matters more into line with the Environment Agency’s existing consultative committees, which are entirely advisory, although the regional flood and coastal committees will have decision-making powers relating to local funds.

I hope that that is a helpful explanation.

Laurence Robertson (Conservative, Tewkesbury)

I was not sure of the answer to a question asked by the hon. Member for Cheltenham, and I am not sure that the Minister has quite answered it. He said that we will return to the issue of the membership of regional flood and coastal committees, but I am unclear about the actual role of the committees, and how they sit between Environment Agency strategy and the lead local authority strategy. What exactly will they do?

Huw Irranca-Davies (Labour, Ogmore)

The interface between the Environment Agency, the regional flood and coastal committees and local authorities is key. As is described in the Bill, the RFCC is an advisory committee, but it also provides peer support and advice. There is an interface between the organisations, but the RFCC will be on an advisory, rather than executive, footing.

Anne McIntosh (Conservative, Vale of York)

That is the key point, which the Minister did not address. Will he now tell the Committee why the Government have changed and possibly downgraded the role of the regional flood and coastal committees, unless he feels that it is more appropriate to address that under clause 23?

Huw Irranca-Davies (Labour, Ogmore)

I suspect that we might come back to it, but I have already stated why that is. The Bill brings the position into line with the changes in funding since 2004. At one time these regional committees raised the majority of funding themselves. They do not do that any longer. The Bill aims to bring the legislative vehicle into line with the funding vehicles that are there now and are anticipated in future. We may well return to this matter, but that is the clear rationale behind it.

I did not entirely understand the issue that was raised with regard to subsection (2). That provides the power for the Minister to make regulations to make transitional provision for the move from regional flood defence committees to regional flood and coastal committees. It also allows regulations for the process by which the EA divides countries into various regions. It is fairly straightforward. I suspect we might return to the matter, but the rationale behind the change in status is to reflect the current funding commitments, which have changed since the historic basis.

Anne McIntosh (Conservative, Vale of York)

To help the Minister, we are querying why he needs to make these regulations. He cannot have it both ways. Does the clause serve the purpose of putting into place the consequence of changes? Personally, I disapproved of those. The way in which the previous regional flood defence committees raised money was much better. They were locally accountable, and the fact it is being centralised is regrettable. I do not quite know what the Minister is hoping to achieve through these regulations. What is the purpose of the transitional provision? Is it there because we are replacing the previous committees with new committees? He will detect from Committee members’ line of questioning that we are not clear what purpose the clause serves.

Huw Irranca-Davies (Labour, Ogmore)

The clause creates a new vehicle. Based on the historic precedent of the previous committees, it gives them a different remit. It puts them on a structure that reflects the current funding arrangements. I appreciate that the hon. Lady preferred not to have central funding, but there are national strategic aims that need to be delivered. We cannot do that on a purely local or regional basis. Based on the evidence, which has increased over the years, imperatives show where we need to make strategic decisions and where that also requires an interface with local areas. If we pull back and do not have such grant funding, we have the potential for one area to make a decision based on its allocated funding that may have a detrimental effect on an area downstream.

Pitt was absolutely clear on the issue in terms of risk management. We need the strategic overview and the local aspect as well. That is what we are trying to do. We need subsection (2) because the detail of how to proceed is not set out on the face of the Bill. With regard to the transition, we need practical rules to make clear how to move from where we are now. That is what subsection (2) is all about.

Eric Martlew (Labour, Carlisle)

There is a small typographical error on the amendment paper relating to amendment 156. It should read “clause 23”, not “clause 24”.

Clause 23

John Grogan (Labour, Selby)

I beg to move amendment 156, in clause 23, page 14, line 18, at end insert—

‘(2) The Agency may not implement the regional programme without the consent of the Regional Flood and Coastal Committee for the region concerned.’.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss clause stand part.

John Grogan (Labour, Selby)

I listened to every word that all three Front-Bench spokesmen have said, and the words “local democracy” and “localism” came up a lot. The amendment is infused with the spirit of localism, local democracy and the ancient liberties of our land. When I talk about local democracy, I do not talk about it in the way that some have talked about it in recent years, perhaps most notably my right hon. Friend the Member for Salford (Hazel Blears). They speak about focus groups and consultative panels that keep going until they provide the right answer to whichever arm of Whitehall is consulting. I mean elected local bodies making decisions on local issues.

The regional flood defence committees are one of the little-known marvels of our system of Government. They have brought local and central Government into partnership over the years. There are 11 of them at present. The chairman is appointed by the Secretary of State, and more than half the members are local government members. We will consider the composition of the committees in future amendments.

At present, the committees have the role of approving Environment Agency expenditure in a particular region. It is a historic role. The clause changes it to an advisory role: the committee will become an advisory body like other bodies that advise the Environment Agency. I think they should continue to have the role of approving the regional flood plan of the Environment Agency. It is a good check.

The Minister says that the funding system has changed. It is true that it changed marginally in about 2004. The central grant previously went to local councils, which then passed it on in a levy to the regional flood defence committees. It was always central Government money, but it was routed through the councils. I do not think that it is game, set and match to diminish the role of the committees.

One of the great joys of my life is being a vice-president of the Association of Drainage Authorities—a title I hold as dear as my membership of Yorkshire county cricket club or my chairmanship of the all-party group on beer. The association’s members are experts, and they often sit on these committees. They said that if the powers of the regional flood and coastal committees, as they will become, are diminished and the committees are made consultative bodies only, they will not have councillors of the same calibre wanting to give up their time.

My neighbour, the hon. Member for Vale of York, will know Councillor Peter Sowray, who gives up a great deal of his time to work on the Yorkshire regional flood defence committee. He does that because it is a job with meaning and purpose. He and his colleagues, whether they are councillors or not, can scrutinise the Environment Agency. I believe that the flood plan for Yorkshire is better for the fact that it is scrutinised by the committee that ultimately has to sanction it.

There is no evidence anywhere up and down the land that regional flood defence committees behave irresponsibly, turn down Environment Agency plans carte blanche or cause trouble for the sake of it. There is no evidence at all. The system works, and if it ain’t broke, don’t fix it. It would be much better to leave the committees with an executive role, not just over the levy, which is raised locally, but also over the regional flood programme of the Environment Agency.

It comes down to this: when the day comes that I am no longer a Member of Parliament—[Interruption.] That day will come, sooner or later. I might be looking for a job, and perhaps a Minister of whatever colour might decide to make me the chairman of the Yorkshire regional flood and coastal committee, which would be the true honour of my life. [Interruption.] Yes, it would be a true honour. I am too old to open the batting for Yorkshire, so I have to put my aspirations elsewhere.

If I were meeting the regional official of the Environment Agency, I would be treated differently depending on whether my committee and I had to approve the agency’s budget, or just had to be consulted. If it was a question of my being consulted, they would give me tea and biscuits but they would not treat the committee in the same way. It is only human nature. If one has to get approval from a body, one treats it with more respect. That is one of the great hidden gems of our democracy. We sometimes wonder how we can make the health service more responsive at a local level. It could learn a little from the success of the regional flood defence committees.

I urge the Committee to keep the executive role of the flood and coastal defence committees, give councillors and the other people who serve on them a proper job of work, and keep the Environment Agency responsible to a locally accountable body. When it comes to deciding on flood management and expenditure in Yorkshire, I would prefer that the final word went to the men and women of the white rose county who sat on the committee rather than the men and women from Whitehall.

Eric Martlew (Labour, Carlisle)

I remind hon. Members that I am taking clause stand part as well.

Anne McIntosh (Conservative, Vale of York)

I congratulate my hon. neighbour on his eloquence; I could not have expressed it better myself. The white rose league is exemplified by the co-operation on the Committee. We may be few in number on the Committee, but I hope that those who bat for the white rose county will punch above our weight. Before we take on that battle, I do not know whether there any Lancashire representatives here. I support the hon. Gentleman in his quest to have amendment 156 adopted. I have more difficulties with amendment 157, but I think I know where he is coming from. Perhaps the Minister will expand on that when he makes his remarks.

I should like to join the hon. Gentleman in paying a huge tribute to County Councillor Peter Sowray, who I have the honour to represent in this place, and to compliment him on the sterling work that he and others do on the regional flood defence committees.

I do not understand what the Minister and the Department hope to achieve with clause 23. In addressing some remarks on the content of the clause in the stand part debate, should the hon. Member for Selby fail in moving his amendment, I should like to associate myself with the Association of Drainage Authorities, which strongly disagrees with the move to alter the status of the regional flood and coastal committees from an executive to an advisory role. I do not condone what the Government did in 2004-05. I spent five years of my life campaigning to get the Cod beck, which floods frequently, enmained. I did not do that because it would become the responsibility of the Environment Agency but because I thought that it would follow the money, which was then with the Environment Agency and would have been disbursed by the regional flood defence committee and the Environment Agency together. No sooner had I succeeded in my campaign in 2005 to have Cod beck enmained, than the Government changed the system and moved the decision to a central body. I hope that the Minister will take this opportunity to apologise and go back to the system as was, which is what the hon. Gentleman is trying to do with his amendments.

The Minister’s own Department draft and floodwater management consultation stated that the rural flood and coastal defence committees

“ensure local democratic input into the decision making process”.

Therefore, altering their role to an advisory one would diminish their influence on the process. It goes on to say that the committees have already undergone major amalgamation from the previous local flood defence committees, and that the firm view of the Association of Drainage Authorities is that a further reduction in status is likely to undermine the committees’ ability to act on their current key strengths: their ability to raise money and to represent the local communities they serve. The Government’s proposed changes are also likely to deter local authority councillors and others from joining the committees if they are merely advisory. The likes of County Councillor Peter Sowray and his colleagues throughout the country will not see any purpose in or be attracted to serving on those committees.

I want to link my comments to the levying powers, and to echo the comments by the Association of Drainage Authorities that the regional flood and coastal committees must retain their executive powers and the opportunity to decide where the levy funding and the internal drainage board precept funding to the Environment Agency should be spent under the clause. Only thereby can we meet local democratic accountability in prioritising funds and giving local communities the confidence of knowing that the money they raise is being spent and accounted for under local scrutiny. The funding should reflect local priorities, not be part of a national pot that the Government can requisition as they go along. That has been the tendency since 2005, and the fact that Cod beck has not received any funding, to my personal chagrin, shows that that is the case.

The long-term certainty of finance is essential to sound water level and flood risk management. Water level management is a daily job, requiring regular action that must be planned well in advance. In contrast, flood-risk mechanisms may be tested infrequently, but must meet the standard demanded of them on those critical occasions. Both activities transcend political and spending periods as set out by the Government. The mechanisms to which I referred—the special levy and the way in which the agricultural drainage rate through which the internal drainage boards raise their money—may seem complex, but they have been proved over time to work. They ensure democratic accountability and scrutiny and, more important, they ensure the appropriate degree of financial security for internal drainage boards.

I associate myself with the comments of my distinguished neighbour, the hon. Member for Selby. I am sure that there will always be a place for him here or as a chairman of the new committees that he so desires. I draw the Minister’s attention to my comments about the levy-making powers, and I hope that he will exercise his powers under clause 23, particularly subsections (2) and (3), with great circumspection. I also hope that he will be minded to accept his hon. Friend’s amendment to subsection (1)(a) and (b). I associate myself with the hon. Gentleman’s comments and particularly with amendment 156, but we would like further clarification of amendment 157.

Martin Horwood (Liberal Democrat, Cheltenham)

I will not take much of the Committee’s time on this, but it might be worth reflecting on why acts of God seem to have affected great cricketing counties such as Yorkshire and Gloucestershire so much. Perhaps the explanation is that God is from Lancashire.

The amendment is welcome, and similar in intent to our earlier amendment 95 and new clause 23. Liberal Democrats could trace the thinking behind it back to John Stuart Mill’s “On Liberty”, and the basic idea that even public services and the exercise of authority are not only better theoretically for a bit of scrutiny, democracy and openness, but produce a better result. That has been a theme in many of our proposals for decentralisation and democratic scrutiny in the exercise of all sorts of authority.

The Government have a slight habit of substituting the mantra of consultation for proper democratic involvement. Anyone who has been involved in regional spatial strategies, and has been through the grinding five years of consultation, which produced almost no impact whatever on the final document as I see it, would be wary of that substitution of consultation for proper involvement. It would be a regrettable end to the noble history of regional flood defence committees if their role were diminished in that way. The amendment would, effectively, give them a right of veto over the implementation of EA flood risk management in their particular regions. That would concentrate minds considerably and lead to the improvement of the works planned. The Minister’s remarks, which tried to clarify the new role of the regional flood committees as defined in the Bill, did not really satisfy. They seem to be left with a purely consultative role with some residual powers of levy. That would be a diminished role; we want to see a role that would be fit for the hon. Member for Selby to chair at regional level in Yorkshire—that would be a fine end.

Huw Irranca-Davies (Labour, Ogmore)

I am pleased to respond to that. However, before I turn to the amendment, the hon. Member for Vale of York asked me to apologise. I simply will not apologise for a system that, with grant in aid and local levies, has now delivered double the spending; has given a real strategic national evidence-based overview to flood and coastal erosion management; and, by March 2011, will have allowed us to deliver additional better protection to 160,000 homes. I cannot apologise for that. It is important to make centrally funded decisions based on the best available evidence, but tying that into local input is equally critical; that has been a theme of this.

To refer back to why we are making these changes, hon. Members may not recall that prior to 2004 there was great criticism by several independent reviews throughout the late 1990s. Those identified a lack of strategic planning, poor value for money and a system that was dogged by bureaucracy. So we have not arrived here by accident. I do recognise the role of these committees and I will clarify that in a moment. That strategic overview is also important. Let us not pretend, however, that prior to 2004 everything was hunky-dory, because independent review after independent review showed that it was not. We do not want to return there.

The clause would require the Environment Agency to consult each and every regional flood and coastal committee about how it, as the EA, proposes to exercise its flood and coastal erosion risk management functions within that region. The EA has to go out there and consult on every proposal. It will be required to take into account any representation that the committee makes whether or not it is in response to a consultation. If the committee that my hon. Friend the Member for Selby heads decides, “We have picked up on something that they are not consulting on. We want to tell them that it is wrong or it is right,” the EA will have to take account of that regardless of whether it is in the consultation. The clause provides for the committees’ new largely consultative role covering both flood and—of course, the change within this—coastal erosion risk management.

The clause also requires the EA to obtain the consent of the relevant committee before it may issue local levies. Local levy raising and local input to add value to the whole process are key. We have repeatedly said that as a Government. The provision, therefore, leaves the decision-making power regarding the local levy in the hands of people such as my hon. Friend chairing the regional flood and coastal committee, reflecting the present arrangements with the regional flood defence committees. It also requires the EA to obtain the consent of the committee before spending revenue under section 118 of the Water Resources Act 1991, which includes not just the local levy, but other local funds—general and special drainage charges and contribution from IDBs. IDBs are critical in this matter, with their enhanced role. We want to ensure that regional flood and coastal committees have the decision-making power over how locally raised funds are used.

It is entirely plausible that there will be local influence over the Environment Agency’s regional programmes through the local levy and the contributions to EA costs, through scrutiny and through challenge. I expect that to happen. I rebuff the idea that the committees are toothless. They will, and should, hold to account and challenge as part of an open and transparent system. They should also be able to work co-operatively and add value to what is being done. We have to have the national and strategic elements, but we will also have the added value that only local input can bring.

We cannot allow, and I am not willing to allow, RFCCs to overrule the EA’s direct accountability to Ministers. The RFCCs will not sit at the desk opposite me and account for their actions or mis-actions. That will be done by the EA, which is accountable not only to Ministers, but to Parliament.

The hon. Member for Vale of York raised the issue of RFCCs having powers over local levies. The powers for RFCCs to approve levies and the spending of levy money are set out in clause 23(2) and (3).

I understand the spirit behind the amendment. It would introduce a requirement for the EA to seek the consent of regional flood and coastal committees before it implemented its regional programmes. We discussed a similar point last week in relation to local strategies. As hon. Members know, the Government could not have made it clearer that we recognise the important role that RFCCs will play at the regional level. In line with that, clause 23 places a duty on the EA to consult the committees about how it proposes to carry out its flood and coastal erosion management activities in their areas. The agency must take account of any representations made by the committees. That means that it will have to follow the recommendations of the committees, unless it has reasonable grounds to do otherwise. It will have to justify those grounds.

My hon. Friend the Member for Selby is right to ask for examples of that being a problem in the past. I would be hard pressed to find examples because of the co-operative relationship. Both the EA and the committees try to do the right thing on the ground. To extend the logic, if a committee challenges something good and early, the EA will have to work with it. If the EA will not do what the committee says, it will have to say transparently why it will not do so. Ultimately, the EA will be sitting in my office if my hon. Friend, in his future life as the chair of a committee, says to me, “What on earth is the EA doing in my region? It is doing brilliantly in 98 per cent. of the country, but in my patch it is not even listening to us. It has given reasons that are completely mad.” That would be an issue that I would be concerned with.

Clause 23 requires consent to be obtained for any local levy. The ultimate responsibility for allocating funding on a national basis must rest with the Environment Agency in England and with Welsh Ministers in Wales, if it is to be allocated systematically and equitably. I know my hon. Friend will understand that. There is a real issue of equitable distribution of funding and social justice. It is not just a matter of looking at the evidence and deciding what sort of defence is appropriate in each place and what strategies will be adopted from region to region. We must ensure that all the funding is not allocated to areas that have greater powers of persuasion or more money to prime the process and assist it. There is a real issue of social justice. That is why the national approach is so important.

The committee’s formal approval role will mean that it has a power of veto over programmes. I hope that it will never come to that. I will give my hon. Friend the corollary of his argument: I cannot see it ever coming to that, because if it did, there would be somebody sitting with the Minister saying, “What on earth has gone wrong here?” The proposal would blur responsibility and risk causing a stalemate—a delay—in bringing forward measures that are so important to people and to businesses. It could also hinder the Environment Agency in exercising a national overview of all forms of flood and coastal erosion risk, because the committees can only consider the risk within their own areas and region.

The Select Committee on Environment, Food and Rural Affairs, of which the hon. Lady is a member, was clear on that. It agreed with the proposed approach and stated in recommendation 17:

“The Bill should require decision making bodies to explain how they have taken into account any advice from regional advisory bodies, or their reasons for rejecting it.”

That has been enshrined in the Bill. However, let me acknowledge that I can see where my hon. Friend is coming from and that there is real tension between—this is at the heart of the matter—enabling local views to influence the Environment Agency works programme, delivering the strategic national aims that I am talking about and achieving best value for money.

In the past, when RFDCs controlled regional spending, as I have said, there were many parts—not every part—where there were underspends, and there were many examples of poor value for money. It is not me saying that; it was in report after report. Under the EA’s current national programme, which was criticised by the hon. Lady and from which I simply will not walk away, we achieved far greater value for money for the taxpayer from the funding. Although I recognise the passion with which she has spoken and with which my hon. Friend has moved the amendment, I do not have a solution to hand to what he is proposing. I cannot simply walk away from the national strategic overview. However, if we can, I am keen to try to find a way forward that effectively reflects local priorities without putting the improvements I have referred to at risk. I am happy to explore the possibilities of that with both the Environment Agency and my hon. Friend.

Finally, on a minor technical issue, my hon. Friend’s amendment does not accurately reflect the situation of the Welsh Assembly Government within Wales. I am happy to explore the matter further as long as he is willing to consider the context of the debate that we have had. I do not want to sacrifice the gains that we have made from having that balance between the national strategic and the local.

John Grogan (Labour, Selby)

I thank the Minister for his reply. I am going to press the amendment to a vote for four reasons, which I shall explain briefly. First, the Minister mentioned equity and equitable funding. The argument of centralisers throughout the ages is that the plans of a central body cannot be disturbed in any way by local circumstances because doing so would spoil the beauty of the plan.

Secondly, on the meetings in his office and the chair of the regional flood defence committee being at odds with the Environment Agency, that is precisely what I want to avoid. Those sorts of things should be sorted out in the region, because the Minister has far too many things to do to get himself involved with them. If the regional flood defence committee has to approve the plan, that is precisely what will happen.

Thirdly, that element of regional accountability means that there will be more value for money. Fourthly, I think that we all feel that there is no point in delaying the issue until Report. The Minister is a very busy man who has plenty of things to do, and there is no need for him to have meetings with me and the Environment Agency. If the Committee votes for the measure, we will all feel better for it in the morning.

Clause 24

Martin Horwood (Liberal Democrat, Cheltenham)

I beg to move amendment 108, in clause 24, page 14, line 29, after ‘selection’, insert ‘, election’.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss the following: amendment 109, in clause 24, page 14, line 30, after ‘appoint’, insert ‘or elect’.

Martin Horwood (Liberal Democrat, Cheltenham)

We should note the historic moment we have just witnessed. My only regret on this rare occurrence of a non-Government amendment being made is that the hon. Member for Stroud was not here to enjoy it, as he is a well-known rebel. We should also record our congratulations to him on becoming a grandfather, which I think is the excuse for his absence, and a very good one.

Amendments 108 and 109 also address the issue of local democratic input in the regional flood and coastal committees, as they seek to make explicit the possibility of either the direct or indirect election of members. As a liberal, I happen to believe that democracy is a healthy and positive thing and that the concentration of power in the hands of the few is dangerous and leads to bad decisions. The possibility that the committees could be either directly or indirectly elected is one that we should certainly incorporate in the Bill.

It is a shame that under the current wording of the clause the only options for membership of the committees appear to be selection or appointment. Given that we are trying explicitly to have democratic input at that level in the process, that is regrettable. The amendments are not prescriptive. They do not say that there must be direct elections or even that local authority members must be elected from within their authority, but it makes it clear that it is at least possible that people can be elected and represent their communities on that basis. Otherwise, there is a risk that the regional flood and coastal committees will simply be creatures of central Government and will lose their distinct value and purpose. I am strongly supportive of amendment 156 for similar reasons.

Jamie Reed (Labour, Copeland)

I have a lot of sympathy for the points the hon. Gentleman is making, but is there not a risk that we could end up with local committees designed to address flood issues that, if their membership is composed on a purely elected basis, will pursue populist causes without perhaps the necessary depth of knowledge, understanding and research? I have the greatest sympathy for democratic elections and appointments, but are there not obvious risks? I am trying to reach common ground.

Martin Horwood (Liberal Democrat, Cheltenham)

I think similar arguments were made against the Great Reform Bill. The point is that the amendment would allow the possibility of appointment and selection and of indirect election whereby members of a local authority would elect from within their number. I think that enough safeguards against demagoguery would remain intact in the clause even if the amendment were made. I would be happy to have at least the possibility of clearer accountability.

Jamie Reed (Labour, Copeland)

As flattered as I am to be compared to Robert Peel, that really was not the point I was trying to make. The point I am trying to make is that we want to get things done on the ground and we want to get them done quickly. We all know from our constituencies that certain people have certain issues regarding certain water features, and even with the work we are doing we may not resolve the issues that those communities are facing. I am sympathetic to the points that the hon. Gentleman is making, I am just trying to reach common ground on how we address that problem.

Martin Horwood (Liberal Democrat, Cheltenham)

I take the serious point that the hon. Gentleman is making. There were strong arguments from my constituents for the flood defence work that was done in Cheltenham at a cost of £23 million and which probably saved hundreds if not thousands of properties from flooding when the floods of 2007 happened. It was very welcome that those flood defences were already in place, even though they did not save everybody. Similar arguments were made that there was a pork barrel approach to flood defence, but we are talking only about the regional flood defence committees. As we have established, they are largely consultative bodies; they have the power to raise levies for specific projects but most of the strategic work would still be in the hands of the Environment Agency and the other flood risk management authorities. I do not think that the hon. Gentleman’s fears are likely to be realised and I am happy to support this amendment along with mine.

Anne McIntosh (Conservative, Vale of York)

I offer two congratulations. First, in his absence, to the hon. Member for Stroud on his good news. Secondly, I congratulate the hon. Member for Selby on achieving a pyrrhic victory with his amendment. I am minded to support his amendment 157and I hope that the Committee will do so too. I would like him to clarify what the position of the membership of the internal drainage boards will be in relation to subsection (2)(b). I would also like him to clarify the role of farmers, landowners and parish councillors. It would be very helpful if he could do that when he sums up.

I can see where the hon. Member for Cheltenham is coming from, but we had a good debate on critical infrastructure earlier and we adequately held the Government to account. There will be opportunities later to vote on our new clauses concerning the failure to come up with the proposed register for critical infrastructure, which I understand is part of the Pitt recommendations that the Government admit is still outstanding. The same goes for amendment 107—I believe it has been amply covered by the new clauses that we will have the opportunity to vote on later.

The Minister has on previous occasions said that in setting up the membership of the committees he is minded to look at the local authority proposal for catchment area flood management boards. As this is a clause stand part debate, could the Minister confirm that he is minded to look favourably on Select Committee recommendation 17 in paragraph 55 of the substantive report, which makes just such a proposal? The Committee clearly states that the Bill should require decision-making bodies to explain how they have taken into account advice from regional advisory boards. This might be the opportunity to illustrate that the Government are minded to do so in this regard.

Although I am mindful of the restrictions I mentioned earlier, I note that clause 24 allows the Minister to make decisions about the membership of a regional flood and coastal committee, including the number of members, the size of the area covered and the selection of appointment methods. Clause 25 also allows the Minister to direct the Environment Agency on payment. We feel that this is all-embracing. Who will the Minister consult when making those regulations? The clause talks about the proceedings of the committee, but it would be helpful if the Minister could expand on the provisions in that regard.

Martin Horwood (Liberal Democrat, Cheltenham)

I am slightly puzzled. I realise that the hon. Lady has moved on from amendment 108, but I am not quite clear whether she is now supporting the explicit possibility of electing people to the regional flood and coastal committees. If she is not supporting amendment 108, I would take it that she is, in a sense, supporting the current wording of the Bill, which seems to rule out the election of members of those committees.

Anne McIntosh (Conservative, Vale of York)

I think amendment 157 covers that eventuality and leaves the option open. It should be for the local authorities to decide. The whole thrust of my remarks in this regard is about letting local communities decide what they want to do and about us not being so prescriptive as to write it into the Bill. Given the choice, my preference would be to support amendment 157.

Andrew Turner (Conservative, Isle of Wight)

I am not quite clear what election means in these circumstances—whether it is election from the whole world within the area or election from members of one of the committees.

Anne McIntosh (Conservative, Vale of York)

My hon. Friend is at one with me. My preference would be to support amendment 157 on the basis that we should let the locals decide what works best for them in their area. Obviously, democracy is best, but if committee members are to be appointed, it should be for fixed terms, possibly with the ability for them to be renewed for one further term. The Government are being slightly cack-handed, and perhaps a little too prescriptive in what they are trying to do. It is part of the centralising versus local idea, and we would prefer to see more local decision making and less centralisation in the clause.

John Grogan (Labour, Selby)

At the moment, local authority representatives have a majority on the regional flood defence committee. What has made this an issue is that, at the moment, the Bill just gives powers to the Minister to appoint who he or she thinks fit to the regional flood and coastal committees. I was encouraged by what my hon. Friend the Minister said in the scrutiny session when he was asked about this by me and others. He said:

“I think that I am correct in stating that those local committees will have the majority of local authority members there.”——[Official Report, Flood and Water Management Public Bill Committee, 7 January 2010; c. 14.]

I hope the Minister will say explicitly that local authorities will continue to have a majority and the other members will be, as the hon. Lady mentioned, farmers and representatives of internal drainage boards, people who currently are appointed by the Minister to make up the rest of the committee. Of course, the chair of the committee is also appointed by the Minister. Therefore, I hope the Minister can confirm that will still be the case.

Regarding the business of electing or appointing, I am sure that the Minister does not mean to say that in Yorkshire, for example, he would be choosing the majority of local authority councillors. It would not be Whitehall’s favourite six or seven councillors. I presume that, as of now, the local councils themselves will be deciding. Not every local council is represented on a regional flood defence committee, so they have to choose between themselves and I think their practice varies on how they do this. Possibly, they have an election between themselves to decide who is going to put forward a representative; or if they are a unitary and there is only one council, it would presumably be an appointment from an individual council. That was what I was trying to tease out through my amendment, and I am hopeful that the Minister can reassure the Committee that it will be pretty well business as usual in terms of appointments to the new committee as it was to the old committees.

Huw Irranca-Davies (Labour, Ogmore)

Amendments 108 and 109 in the names of the hon. Members for Cheltenham and for Brecon and Radnorshire are intended to ensure that the members of the regional flood and coastal committees can be elected. The current provision in the Bill allows for them to be “selected.” Let me make it clear—that allows for both election or appointment by local authorities, Ministers, or the Environment Agency. The precise way of doing it is to be decided and will be set out in regulations. There will be further consultation with all relevant persons and authorities before a decision is arrived at. However, as I have said, the current drafting of the provisions will actually deliver what the amendments seek to achieve, which is the ability to have elections, within the phrasing “selection”. We have taken advice from parliamentary counsel that this is perfectly permitted within the measure, so the amendments are not actually necessary in that context.

My hon. Friend the Member for Selby has tabled amendment 157 which, like amendments 108 and 109, relates to the composition of RFCCs but in a slightly different context. It seeks to ensure that there are local authority elected or appointed representatives to regional flood and coastal committees and that representatives from local authorities form a majority on each committee. Current policy is in line with that. We intend to use the regulation-making power under clause 24 to ensure that local authorities have a majority on the committees. We are clear that this needs to remain the case, at least as long as RFCCs retain the right to raise local levies. We do not disagree with the aim of that proposal.

However, the clause is drafted to allow flexibility on membership and on the selection of members, rules, majorities and quorums so that we have a framework that can be adapted to changing circumstances in the longer term. The precise numbers will not be set by me. The numbers, the composition and means of selection—which could be by election or appointment as I have said—are yet to be decided on. We will consider the matter further and will consult before coming to a conclusion on the guidance.

Anne McIntosh (Conservative, Vale of York)

This is a new point that has not been raised. Is the Minister confirming that lead local flood authorities who pay the levy to the regional flood and coastal committee will have the right to be represented, on his reading of the Bill and if we were to adopt amendment 157? It is not entirely clear. Will he ensure that a method for proper representation of the lead local flood authority will be guaranteed?

Huw Irranca-Davies (Labour, Ogmore)

Well, indeed, and it can be part of the input in the consultation that will lead to the actual regulations. That is what that particular debate needs to have. I have re-emphasised where current policy is and the fact that we intend to use the regulation to make sure there is a majority of local authority members on those committees.

However, I note that the hon. Lady also raised the issue of whether we would be minded to look favourably on local authority flood management boards. We do look favourably on such proposals. There is the flexibility to do so. We do not think legislative provision is needed. Why do we need to be so prescriptive right here, right now? What we need to do is make sure that it can be allowed, so local authorities will be able, under the Bill, to put in place their own arrangements for such joint working.

Although we agree with the aim of amendment 157, we do not consider it appropriate. It would introduce rigid rules now when we need flexibility in future. On that basis, I hope Members will withdraw the amendments.

Martin Horwood (Liberal Democrat, Cheltenham)

The Minister is obviously a man of his word. If he says that parliamentary counsel gives explicit legal opinion that election is still possible, I see no need for amendments 108 and 109 to be pressed. However, I cannot help thinking this is a triumph of law over the use of English, because “selection” to me means something very different, but that is not unknown in legal circles and I am not a lawyer so I cannot judge.

I would, however, still be content to vote for amendment 157 to put the matter beyond doubt. I take the point made by the hon. Member for Vale of York that it achieves the same object as my amendments.

John Grogan (Labour, Selby)

I will not push my luck too far. I will accept the Minister’s assurances on this occasion—[Interruption.] No, I accept his assurances. He has been far more convincing on this amendment than on the previous one.

Martin Horwood (Liberal Democrat, Cheltenham)

I beg to ask leave to withdraw the amendment.

Clause 25

Anne McIntosh (Conservative, Vale of York)

I should be interested to know from which moneys the Minister may direct the Environment Agency to make the specified payments to the regional flood and coastal committee chairmen, or former chairmen. I understand that the agency will be authorised to pay allowances, so things are looking up for the hon. Member for Selby. He obviously knew something that we did not know when he declared his interest.

The Minister has the power to determine the amounts, or maximum amounts, that may be paid under the clause. Will he elaborate on whether that money is paid from his largesse or the Environment Agency’s current budget? Will he also elaborate on the nature of the allowances? I hope that he will forgive me for not having had a chance to discover that from the impact assessment. It would be helpful to have some guidance from him.

Laurence Robertson (Conservative, Tewkesbury)

In addition, under clause 24(a), the Minister will specify the number of members of committees. Will he multiply the figures and let us know how much each committee might cost?

Huw Irranca-Davies (Labour, Ogmore)

The clause allows the Minister to direct the Environment Agency to make payments to chairs and former chairs of the regional flood and coastal committees. I do not know whether it is right to say “chairs” or “chairmen and chairwomen”.

Anne McIntosh (Conservative, Vale of York)

Chairmen, because men embrace women.

Huw Irranca-Davies (Labour, Ogmore)

There we are. Such payments may be made in relation to remuneration, allowances, pensions and compensation. To give an idea of where we are, we must allow committee chairs to be paid so that committee members can receive allowances to cover their costs. Hon. Members will appreciate that that is reasonable, and it continues the current arrangements under schedule 5 to the Environment Act 1995 in relation to the regional flood defence committees. I shall relate my comments to what currently happens.

The chair’s remuneration is set by the Senior Salaries Review Body, which also sets annual increases. The increase for this financial year, for example, was set at 1.5 per cent., and chairs currently receive £17,503 precisely, except in Northumbria where the figure is set at £14,002 precisely. I do not know the reason for the difference, but I suspect that it relates to the number of days per month that are committed. The Environment Agency also sets allowances for travel and meals, financial loss allowances for other members, and financial loss allowances related to the length of the meeting.

I do not have to hand the information about where the funding will come from. Currently, it comes from the established funds that are available to the Environment Agency, but I will write to the hon. Lady clarifying where it will come from.

Clause 27

Martin Horwood (Liberal Democrat, Cheltenham)

I beg to move amendment 110, in clause 27, page 15, line 13, leave out from ‘(1)’ to ‘; and’ in line 14.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss the following:

Amendment 111, in clause 27, page 15, line 35, at end add—

‘(6) In this section “sustainable development” means development which enables all people throughout the world to satisfy their basic needs and enjoy a better quality of life, without compromising the quality of life of future generations, pursued in an integrated way through a sustainable, innovative and productive economy that delivers high levels of employment; and a just society that promotes social inclusion, sustainable communities and personal wellbeing and will be done in ways that protect and enhance the physical and natural environment, and use resources and energy as efficiently as possible.’.

Clause stand part.

Martin Horwood (Liberal Democrat, Cheltenham)

I shall address amendments 110 and 111 together. Only last night in my constituency, I was at an inspiring public meeting, as many of our public meetings concerning the regional spatial strategy are. It was addressed by one Jonathon Porritt, who, as I am sure the Minister is aware, was recently the chairman of the Sustainable Development Commission. He described a process that he called sustainable development abuse. It was the use, particularly by Government agencies and Departments, of the phrase “sustainable development” to justify almost anything that they cared to do. There is a loophole in the clause that would allow exactly that process in this case.

At present, the Bill allows the Minister to issue guidance not just about how authorities are to discharge their duty in the clause, but about the meaning of “sustainable development”. I am sure the Minister is a busy man, so we are helpfully pointing out in the amendments that he does not have to do that, because there is already a definition of sustainable development. It has been provided by the Sustainable Development Commission, which was set up by the Government for that very purpose, and which Sir Jonathon chaired.

The definition is the one given, broadly speaking, in amendment 111, which states that

“‘sustainable development’ means development which enables all people throughout the world to satisfy their basic needs and enjoy a better quality of life, without compromising the quality of life of future generations, pursued in an integrated way through a sustainable, innovative and productive economy that delivers high levels of employment; and a just society that promotes social inclusion, sustainable communities and personal wellbeing and will be done in ways that protect and enhance the physical and natural environment, and use resources and energy as efficiently as possible.”

That is a much more comprehensive, detailed and well thought-out definition than some of the ones that I have seen from Departments, mentioning no names except Communities and Local Government.

Roberta Blackman-Woods (Labour, City of Durham)

I wonder whether this is yet more evidence of the new-found centralising tendency of the Liberal Democrats. The clause as it is currently constructed at least allows some local interpretation of the guidance, whereas the amendment is prescriptive as to exactly what local authorities should do. We should allow the case for localism in interpreting the Minister’s guidance.

Martin Horwood (Liberal Democrat, Cheltenham)

That was a clever debating point from the hon. Lady, but the fact is that the English have been striving for the past 1,000 years or so to centralise the use of terminology on the basis of common understanding about what general terms mean.

The meaning of sustainable development has been abused—Sir Jonathon is right about that—by Departments in particular, which have neglected the environmental sustainability element of the meaning of the phrase. It has already been a theme in many of our discussions in the Committee. It is an important theme for the Bill, as the use of flood defences in concert with natural processes and in harmony with the natural environment is something that we need to encourage and reinforce at every possible opportunity. The two amendments would force the use of a definition of sustainable development that respects the environment and the natural processes involved. It has been developed by the very body commissioned by the Government to do the job of defining sustainable development. On that basis, I am sure that the Minister will be supportive.

Anne McIntosh (Conservative, Vale of York)

I would like to make some comments on clause stand part, but before I do let me say that I enjoyed the exchange between the hon. Members for City of Durham and for Cheltenham. On round one, I am minded to support the hon. Member for City of Durham, but the hon. Member for Cheltenham should not be discouraged because he has had one or two positive victories as well.

The Country Land and Business Association has stated that sustainable development is a fairly nebulous concept and could mean whatever the user of the term wants it to mean. It is happy that the Minister is under an obligation to issue guidance on what it will mean in the present context. Perhaps he can let us know what parties will be consulted. However, the CLA goes on to say that because the contents of the guidance is likely to have significant implications, it believes—and I think that all of us would wish to support its point of view—that the guidance could have been made available either at this stage or before Report.

Martin Horwood (Liberal Democrat, Cheltenham)

I am astonished that the hon. Lady is prepared to reject the Sustainable Development Commission’s definition of sustainable development knowing, as I am sure she does, that Government Departments under this Labour Government have, on occasion, produced the most astonishingly vacuous definitions of sustainability and have used them to justify the most unsustainable practices imaginable in housing, economics and local communities. There are many examples of sustainable development abuse, as Jonathon Porritt calls it. I find it astonishing that she is not prepared to support putting that clear definition in the Bill.

Anne McIntosh (Conservative, Vale of York)

I am pleased that the hon. Gentleman has such a good relationship with Jonathon Porritt, who seems to be a voice from the past. There are alternative definitions, which I will put to the Committee, so we do not necessarily have to take this one. One such definition comes from the Royal Commission on Environment and Development, which says that sustainable development is a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development and institutional change are made consistent with future as well as present needs. If we are to have a debate, there are a variety of definitions from which we can choose. As the hon. Member for Brecon and Radnorshire will recall, when we were in the Select Committee, we lamented the fact that no definition of strategy was given.

I should like to ask the Minister to support the comments of the Local Government Flood Forum, which has given the matter some thought. It says that the meaning of sustainable development is clearly defined in Government policy—so it would obviously take issue with the hon. Member for Cheltenham—and that it has been used to develop sustainable community strategies. It says that to issue new guidance with a new special flooding definition of sustainable development would be unnecessary. It is particularly concerned about clause 27(2). I have thrown that in the pot as a debating point, because there is confusion about what sustainable development means in this context.

Martin Horwood (Liberal Democrat, Cheltenham)

As the hon. Lady argues that we should not have logical definitions of sustainable development and a special flooding definition, she should support my amendment because it is designed to ensure that there are not multiple definitions across Governments and that there is only the one supported by the SDC.

Anne McIntosh (Conservative, Vale of York)

I want to hear from the Minister about what definition the Government are using in this regard.

Roberta Blackman-Woods (Labour, City of Durham)

I want to make a couple of comments on clause stand part. Unlike the hon. Member for Cheltenham, I was pleased to see the inclusion of clause 27 in the Bill, because it is important that authorities are able to think about future sustainability. I pay tribute to the hon. Member for Vale of York for making that point.

The Minister has told the Committee that authorities are already able to refuse planning applications that might in some way conflict with sustainability under PPS25. However, I think a number of us have had particular issues or circumstances in our constituencies relating to that. I am dealing with an issue where an application is being made for development on Durham’s flood plain. We are not at all confident that it will be refused under PPS25. Indeed, PPS25 is being used to approve the development because of resilience measures that are being included in the development. However, the nature of the development impacts on the possible sustainability of the whole area because it is being developed inappropriately. I would like some reassurance from the Minister that under clause 27 there will be strong cause for local authorities to be able to refuse development where they think it impacts negatively on the long-term sustainability of the area.

Huw Irranca-Davies (Labour, Ogmore)

The amendments would remove the requirement for ministerial guidance on sustainable development and would mean that guidance on the meaning and definition of sustainable development would be placed in the Bill. That definition would be fixed in primary legislation for ever and a day, until we revisit it.

The amendment is interesting, and I have sympathy with what the hon. Member for Cheltenham said. He asked whether I would be supportive and I can tell him that I support the intention, not the substance of the amendment. I accept the need for clarity, but the meaning of sustainable development has already been defined in various ways. For example, as many Committee members will know, in the international context, there was the well known Brundtland report, “Our Common Future”—the 1987 report of the World Commission on Environment and Development. More recently, in the UK context, there was the Government’s 2005 sustainable development strategy, “Securing the Future,” which includes the definition that is in the amendment.

I think we know where we are, but the problem is—I hate to say this—ever since the blueprint for growth in the 1960s and the Brundtland report, there has been much work on improving definitions of sustainable development, and I have no doubt that Jonathon Porritt and others will continue to improve those definitions. For example, we can look at definitions from Jacobs on weak sustainabilities and strong sustainabilities.

We already have definitions of sustainable development, but let me just add to those. If hon. Members were looking for a current definition of sustainable development beyond what the hon. Gentleman refers to, DEFRA’s website contains pages on sustainable development, including a definition and details on the principles that underpin it. The principles are equally important and include living within environmental means, ensuring a strong, healthy, just society, achieving a sustainable economy, promoting good governance and using sound science responsibly. We all know that the overall goal of sustainable development is to enable people throughout the world to satisfy their basic needs and enjoy a better quality of life without compromising the quality of life of future generations.

Guidance provided by the Minister under section 4 of the Environment Act 1995 and clause 27(2) of the Bill will allow us to be more explicit about what sustainable development means in the context of flood and erosion risk management in England and Wales. Clause 27 requires that ministerial guidance is given to clarify that definition in relation to flood and erosion risk management. We do not need to bang it in the Bill for ever and a day because we might get the definition wrong, or it might move on or be improved—tweaked, refined or made more specific—by Jonathon Porritt or whoever else.

Martin Horwood (Liberal Democrat, Cheltenham)

Will the Minister give way?

Huw Irranca-Davies (Labour, Ogmore)

If the hon. Gentleman has confidence that the definition he proposes is the definition par excellence and that no Minister would have to return to it over the next few years, I will welcome his intervention.

Martin Horwood (Liberal Democrat, Cheltenham)

The Minister seems to be presenting this as Jonathon Porritt’s personal definition, but it is not. It is the definition used by the Sustainable Development Commission. As has been pointed out, it is the official definition of the Government. I believe that it is agreed in the shared framework with the devolved Administrations, so it is also their official definition of sustainable development. Of course it will not be the end of conversation, discussion or debate on the matter.

If the Minister made a commitment to table an amendment that made the definition the same as the wording in the shared framework between the UK Government and the devolved Administrations at any given time, I would consider not pressing amendment 111.

Huw Irranca-Davies (Labour, Ogmore)

I try to be accommodating as far as I can, but I am not likely to propose such an amendment. My suggestion is that we provide guidance on what we mean by sustainable development. This might well be the definition that we settle on. There will be an ability to alter that in regulations, if necessary, although not necessarily through Jonathon Porritt because, as the hon. Gentleman says, this is not Jonathon Porritt’s definition. It will be an accepted definition at that time.

The definition might well last for five or 10 years, but my point is that it is not appropriate to fix one definition in primary legislation. We had the same debate during consideration of the Marine and Coastal Access Bill. The approach we took was to put the definition in the underpinning principles rather than in the Bill, for exactly the same reasons. I do not think that the hon. Gentleman is certain that this definition is the be all and end all. On that basis, putting it in the regulations based on guidance will allow us to stay in tune with any developments in the concept of sustainable development and enable Ministers to ensure that the guidance is consistent with other guidance on sustainable development, such as the statutory guidance provided to the Environment Agency under section 4 of the Environment Act 1995.

On the point made by the hon. Member for Vale of York, we do not have a firm date, but we anticipate bringing forward the guidance by autumn this year. In bringing forward any definitions through regulations, I would wish to consult with the public, academics, wildlife groups and others to ensure that we fix on the right definition. We could not do so if we bolted it on to the Bill.

Anne McIntosh (Conservative, Vale of York)

I notice that clause 27(3) lists a number of authorities. Water and sewerage companies are excluded. Would it not be a good idea for them to be included?

Huw Irranca-Davies (Labour, Ogmore)

I can clarify for the hon. Lady that a similar statutory duty already applies to Ofwat. The principles of sustainable development are embedded in its formulation and in the review of policy that controls the way in which water companies work. She raises an important point to ensure that the provision cuts across all agendas.

I agree with the theory of the amendment, but bolting the definition on to the Bill for ever and a day is not the right method. It is far more appropriate to have fluidity so that we can improve the definition as time goes by. I am addressing a conference on biodiversity, post-2010 targets. I would be remarkably wise if I could fix in time now what we should be doing to improve the environment in that context. The same applies here. We should have flexibility so that we can take this forward over time and evolve. Having said that, the definition the hon. Gentleman has put forward may well be the one that we agree on.

Martin Horwood (Liberal Democrat, Cheltenham)

That was a kind final comment, but the Minister’s argument seems to be against trying to define almost anything. At some time, one has to plump for a definition and put it in the Bill, in policy guidance or wherever. One cannot avoid the temptation to define anything on the grounds that it might change in the future.

I suggested earlier that, if the Minister brought forward an amendment that did not put a definition in the Bill, but said that for the purposes of the Bill, sustainable development meant whatever was the current definition of the shared framework between the UK Government and the devolved Administrations—that is the phrase used by the Sustainable Development Commission and means the current best definition that the Government have—that would be preferable to allowing Ministers in one particular Department to come up with their own definition. That is precisely the process, as the hon. Member for Vale of York pointed out, although she was not supporting my amendment, that leads to multiple definitions, some of which, I have to say, are vacuous, unsustainable waffle. I am afraid that I have sat through Select Committees with Ministers from various Departments, at various times, giving evidence on what they thought sustainability meant. Some of them produced the most ludicrous and meaningless statements, which were just PR fluff. We have to get serious about sustainability. It has a concrete and serious meaning, which respects economic sustainability, social sustainability and—the most important of the three pillars in a long-term sense—environmental sustainability. Without environmental sustainability, the other two fall.

Huw Irranca-Davies (Labour, Ogmore)

If we proceed along the course that the hon. Gentleman suggests, well intended as it is, the ability to go beyond the wisdom of this Committee, or beyond the wisdom of the proposal that he is putting forward, and to seek views before we agree on a definition is stymied. That is the way we should do it: to consult properly on the matter and bring it forward. If we settle on the definition that he has as the best way forward, so be it, but let us not cut that out at the moment, because it will not allow any of those interested parties to contribute to the debate that we are having.

Martin Horwood (Liberal Democrat, Cheltenham)

The Minister’s willingness to spend public money on consultations about things that have already been perfectly and satisfactorily defined is almost endless.

Laurence Robertson (Conservative, Tewkesbury)

I am not necessarily endorsing the hon. Gentleman’s amendment, but clause 3(3) on risk management gives

“examples of things that might be done in the course of flood or coastal erosion risk management”.

Does he not think that it might be useful, in a similar way, to give some examples of what sustainability might touch upon?

Martin Horwood (Liberal Democrat, Cheltenham)

The hon. Member makes an interesting point. It might well be good to give examples of sustainability, even if we are reluctant to define it. However, I will conclude. I might need your guidance, Mr Martlew. I would like to press amendment 111 to a vote.

Eric Martlew (Labour, Carlisle)

When we come to it.

Martin Horwood (Liberal Democrat, Cheltenham)

I beg to ask leave to withdraw amendment 110.

Clause 28

Anne McIntosh (Conservative, Vale of York)

Briefly, the Minister seeks powers to make further amendments. Under schedule 2 he is already making quite extensive amendments to a number of Acts. One that we query in particular relates to section 23(1)(b) of the Land Drainage Act. There are concerns that the amendment that the Government seek will impose a requirement on internal drainage boards and lead local flood authorities to consult with and, effectively, seek consent from the EA. A number of concerns have been expressed about the amendments later in the Bill. What power will the Committee or Parliament have to review them?

The list of Acts to which the clause refers does not include the Marine and Coastal Access Act 2009. I realise that it is a recent Act and the Minister is probably pleased with its content and its passage, but are there no circumstances under which he would envisage a need to amend that? I realise that the Bill has been through a number of drafts and what is now the Marine and Coastal Access Act was probably a Bill at that stage. However, it would be helpful to ensure that the list is as comprehensive as possible. To confirm, does that mean that an affirmative order will have to be laid in the form of a statutory instrument before the amendments will be made? Are there any other omissions as regards Acts that the Minister can think of that we may need to return to?

Martin Horwood (Liberal Democrat, Cheltenham)

The clause gives the power to amend primary legislation by order on the personal initiative of the Minister of the Crown. Even though that may involve an affirmative resolution of the House, in practice it shifts power from Parliament to the Executive. It is, I am afraid, rather typical of many pieces of legislation that have come before the House in recent years and is wholly unacceptable. It lends extraordinary influence to the personal whim of the Minister and I would like it not to stand part of the Bill.

Huw Irranca-Davies (Labour, Ogmore)

The clause will give the Secretary of State and Welsh Ministers powers to make consequential amendments through secondary legislation to the existing legislation so as to reflect the changes made through part 1 of the Bill. The sort of Acts that can be amended are the Public Health Act 1936 where relevant to water; the Coast Protection Act 1949; the Highways Act 1980 where relevant to water; the Land Drainage Act 1991; the Water Resources Act 1991; and the Environment Act 1995. To address the question from the hon. Member for Vale of York, the Marine and Coastal Access Act is not relevant to part 1 of the Bill; that is why it is not set out in it.

Many amendments to those Acts are set out in schedule 2 of the Bill. However, it is possible that other amendments might be needed to address inconsistencies between the old framework and the new. It is not reasonably possible to anticipate all such amendments in advance. They could include, for example, amendments to the provisions on powers of entry in the Water Resources Act 1991 so that they are sufficient for the wider activity of risk management as opposed to flood defence. Combined with powers under clause 44, which allows for inconsistencies and errors to be addressed, the clause will enable amendments required prior to consolidation of the existing floods legislation, as recommended by Sir Michael Pitt’s review.

As the hon. Lady said, the clause could allow for amendments to primary legislation, and I confirm that the affirmative procedure requiring a debate in each House, as well as in the National Assembly for Wales, will apply before the measures come into force. We believe that to be the right approach.

Laurence Robertson (Conservative, Tewkesbury)

I am grateful for the Minister’s confirmation on that point. Normally, however, when a Bill is enacted, it contains a provision which means that the Bill can be amended by order. I find it a little unusual to have a Bill that states that a previous Bill can be changed by order.

Huw Irranca-Davies (Labour, Ogmore)

As the hon. Gentleman says, I can safely say that this is not without precedent. We cannot reasonably anticipate every eventuality at this moment, but if amendments were necessary we would want to put them in front of both Houses so that they could be properly debated. That is the appropriate way to do it.

I also inform the Committee that it is necessary for the Government to table an amendment to the clause to provide for the fact that some of the authorities affected by the amendments, such as water companies, operate across borders. Clarity is needed in the legislation about when they will be subject to amending regulations.

Eric Martlew (Labour, Carlisle)

Order. That amendment is not before us today.

Huw Irranca-Davies (Labour, Ogmore)

I apologise. I will return to that technical issue at a subsequent stage.

Anne McIntosh (Conservative, Vale of York)

I was minded to let the clause stand part, but if the Minister plans to come back at a future date with an amendment, it would perhaps be best to strike the clause from the Bill until we see the new text. I do not think that it is appropriate. The Minister has had every opportunity to bring forward amendments by this stage. Concerns have been expressed to me about the clause, and it might be appropriate to strike it out until we get the amendments.

Huw Irranca-Davies (Labour, Ogmore)

It is in the hon. Lady’s gift to make that decision. As I have said, with your guidance, Mr. Martlew, we will probably return to the matter at a later stage. The amendment has not been tabled. If we bring it forward—it is “if” we do—it will be technical, and we would not bring it forward now but on Report. I will comply with your strictures, Mr. Martlew and not go into detail about what it will be.

Andrew Turner (Conservative, Isle of Wight)

Perhaps this question would have come better before the comments by my hon. Friend the Member for Vale of York. I am concerned about how many times we have done this sort of thing and allowed ourselves to be bamboozled—not quite bamboozled, but put in the position of agreeing something that has not been right. I am concerned about the number of occasions on which we have agreed to put things into the Bill to allow Ministers to amend the construction of previous legislation.

Huw Irranca-Davies (Labour, Ogmore)

The clause is in front of us, and hon. Members are free to vote for or against it as they see fit. Should we bring the amendment forward, it would be purely a technical issue on devolution.

Clause 29

Martin Horwood (Liberal Democrat, Cheltenham)

I beg to move amendment 138, in clause 29, page 16, line 23, after ‘consult’, leave out to end of subsection (4) and insert—

‘(a) the authorities that would be affected by it,

(b) the public.’.

The amendment proposes another piece of transparency that we would like to add to the Bill, which I am sure will be welcome. It would simply ensure that key decisions that have major implications for local people are not taken in secret. Under the clause, changes in responsibility are set down by order, but the shocking truth about orders in this place—it might shock the hon. Member for Norwich, North, who is new to these things—is that once in a while we are presented with orders that have already taken effect. We are effectively presented with a fait accompli. We then face the choice, in a Committee, of rubber-stamping what has already been done or disrupting procedures that are already taking place. It is an unsatisfactory process.

The amendment is designed to ensure that the Government are never tempted to reassign responsibilities behind closed doors and present them to Parliament subsequently, because there might be an obvious temptation to do so. The reassignment of those responsibilities could be important and could have implications for local people, and that is not something I would like to happen behind closed doors.

Anne McIntosh (Conservative, Vale of York)

I do not see the need for amendment 138 or believe that it would add anything of substance to the Bill. I would like to make some comments on the Bill’s current drafting. It is welcome that the Minister may add new bodies and that the Secretary of State can step in to reassign responsibilities under certain defined conditions, but I regret that it is not clear how that process will be instigated or what role the lead local flood authority, the district councils and the internal drainage boards would have in possibly instigating such a measure.

Would it not make sense for the Minister to explain the reasons for looking into restructuring flood provision and state them publicly so that we are better advised? Perhaps he would be minded to add to the clause something along the following lines: “Where all lead local flood authorities in an area request that the Minister consider reassigning responsibilities within that area, the Minister must respond with reasons.”

Perhaps the Minister will expand on the authorities that he believes will be covered. With regard to an order under subsection (2), the reasons should be stated. It is not entirely clear whether devolution has automatically been resolved under subsection (6)? Who will make the order, particularly with regard to trans-border matters?

Huw Irranca-Davies (Labour, Ogmore)

The clause provides Ministers with powers to make orders to reassign the flood and coastal erosion risk management responsibilities of lead local flood authorities, district councils and internal drainage boards. That will allow the reallocation of powers between authorities and amendments to the definition of risk management authorities. It will also allow for additional authorities to be included as risk management authorities.

The clause is probably not as clear as we would like it to be, with regard to whether additional bodies can be included as risk management authorities, or whether functions could be transferred to risk management authorities such as water companies. We intend to clarify that on Report.

Returning to the clause as drafted, the powers provide an additional degree of flexibility that will allow the framework of responsibilities to evolve over time, and the powers were recommended by the Environment, Food and Rural Affairs Committee during pre-legislative scrutiny. Although we do not have any plans to use them in the short term, the powers will be important in allowing change in circumstances to be addressed.

We are considering whether subsection (6) accurately reflects the devolution settlement. If an intended reassignment of responsibility was from or to a cross-border risk management authority or other body, it is not currently clear where the ministerial responsibility lies for making such an order. This provision may, therefore, need to be more precise about when an order should be made by Welsh Ministers and when it should be made by the Secretary of State. If further provision is required to clarify that important technical issue, we will bring forward an amendment on Report.

Amendment 138 would require public consultation on any changes made by order under clause 29. In its current form, the clause requires flood risk authorities to be consulted on any changes. The Government are committed to the code of practice and consultation, and the Welsh Assembly Government endorse the same principles and would take the same approach. Having heard what the hon. Member for Cheltenham said, and having looked at the provision in the light of his amendment, I will not waste the Committee’s time further, because the amendment probably is worth while. Therefore, if the hon. Gentleman will let me take away the amendment to ensure that the drafting is correct, I am more than happy to come back with a similar amendment at a subsequent stage, because it is well intentioned and helps to clarify the purpose underlying the clause.

Martin Horwood (Liberal Democrat, Cheltenham)

I am pleased and delighted by the Minister’s positive response to my amendment. Under the circumstances, I am more than happy to beg to ask leave to withdraw the amendment.

Anne McIntosh (Conservative, Vale of York)

On a point of order, Mr. Martlew. When the Bill was brought before the Committee, it was a very small Bill with fewer than 50 clauses. However, there are 17 paragraphs in schedule 1 and 54 in schedule 2. I am keen that we have the opportunity properly to scrutinise the schedules and that there will be the opportunity to have stand part debates. I seek your guidance, Mr. Martlew, on whether that should be indicated in advance, or whether debates will be called as a matter of course if there are no amendments to the schedules and clauses. Almost half the content of the Bill is contained in the schedules.

Eric Martlew (Labour, Carlisle)

There will be the opportunity to debate them at the appropriate point in our proceedings.

Clause 30

Anne McIntosh (Conservative, Vale of York)

I am most grateful for the opportunity to discuss clause 30. The Minister and the Committee will be aware that the Select Committee expressed concern about some of the definitions. The Environment, Food and Rural Affairs Committee concluded that it was concerned that bodies that will be able to designate things appear unsure about their scope or scale. The purpose of clause 30 is not in question, but we want greater clarity about what could be designated, how the designating authorities will co-ordinate with one another and how differences of opinion between designating authorities would be resolved. Furthermore, the provisions providing safeguards and appeals should be included in the Bill. To a large extent, that issue has been addressed, so I will confine my remarks—

Eric Martlew (Labour, Carlisle)

Order. You will have the opportunity to speak on schedule 1 stand part.

Anne McIntosh (Conservative, Vale of York)

Indeed, Mr. Martlew. Clause 30 gives additional legal powers to the Environment Agency to specify further and to designate the assets or features that may be considered under the clause, but Ofwat—

Eric Martlew (Labour, Carlisle)

Order. You will have the opportunity to speak on that later.

Anne McIntosh (Conservative, Vale of York)

Will the Minister comment on designation—the power to designate, and the powers given to designating bodies—as a preliminary before we consider schedule 1?

Eric Martlew (Labour, Carlisle)

The Minister is looking puzzled; I may have allowed the hon. Lady to go too far.

Huw Irranca-Davies (Labour, Ogmore)

I am happy to expand on that now, but I am wondering whether I will stray into a subsequent debate.

Eric Martlew (Labour, Carlisle)

We cannot have the debate twice. It would be better if the Minister confined his comments to the schedule.

Huw Irranca-Davies (Labour, Ogmore)

I note the points, and I will return to the matter when we come to the schedule.

Schedule 1

Martin Horwood (Liberal Democrat, Cheltenham)

I beg to move amendment 139, in schedule 1, page 32, line 5, after ‘environment’, add

‘; including defined geographical areas of landscape.’.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss the following:

Amendment 129, in schedule 1, page 32, line 7, leave out ‘affects’ and insert

‘is likely to have a material effect on’.

Amendment 25, in schedule 1, page 32, line 15, at end insert—

‘(6) Condition 5 is that a designating authority may only designate infrastructure if this does not compromise its primary purpose.’.

Martin Horwood (Liberal Democrat, Cheltenham)

The context of this amendment is, of course, schedule 1 and the powers that it confers. “Designation of features” sounds administrative and harmless, but buried in the schedule are some major extensions of regulatory power, and we must tread cautiously. In that context, it may seem odd that in amendment 139 I seem to be seeking to extend that remit, but I hope that the Committee will acknowledge that, in later amendments, I propose to mitigate some of the regulatory powers that the schedule extends.

Amendment 139 returns to the issue with which I started my Second Reading speech—will the Bill help Warden Hill? I am trying to place the provision in the context of precise local circumstances and how it will work in practice. I remind hon. Members that that part of Cheltenham has an obvious flood risk in a residential area, which could be exacerbated or mitigated by how the land immediately uphill at Leckhampton is used. The fields uphill are a crucial feature of the local environment. They hold water, and have been marked on a map by consultants working on the flood alleviation scheme at Warden Hill in dramatic blocks of blue showing where the water is held in the landscape. However, it difficult to place them precisely in the context of the wording of the list in paragraph 4(1)(a) and (b) of schedule 1:

“a structure, or...a natural or man-made feature of the environment.”

Amendment 139 seeks to put beyond doubt the fact that the list may include not just an obvious feature such as a dyke or bund, but an area of landscape that performs a flood management or water management function. That could extend not just to fields such as those at Leckhampton, but to an area of woodland or similar. There could be an argument—some people would have a commercial interest in making such an argument—for the definition of a man-made or natural feature of the environment to need just a clearly identifiable physical thing, such as a watercourse, dyke or bund. The purpose of the amendment is simply to point out that that kind of natural feature can mean that a particular area of land performs an important flood risk management function.

I shall not refer to amendment 129 because I think my hon. Friend the Member for Brecon and Radnorshire wants to speak on that, but I shall briefly speak about amendment 25. It raises a genuine problem, which has been emphasised, particularly by Network Rail, to members of the Committee privately. The amendment addresses an important issue, but I have a slight concern about it. Perhaps when the hon. Member for Vale of York speaks she might talk about the fact that it could unintentionally be quite dangerous.

As I understand it, the amendment would mean that infrastructure can be designated only if it does not compromise the main role of the company, which is fine with something as crucial as a railway structure. However, let us say that a wall on a factory’s estate is part of flood risk management in that it prevents neighbouring houses from being flooded by containing a river flow. Those who work at the factory might decide to change the wall because their primary concern is nothing to do with flood risk management. They are concerned with the operation of their factory and the wall might for some reason be inconvenient, so they decide to knock it down. I am worried that they might be able to use the clause to justify that, and that the flood risk management authority would have no redress, even if the wall was a crucial link in a chain protecting local people. I hope that the hon. Member for Vale of York can provide me with an excellent explanation of why that would not be the case. I look forward to her remarks.

Anne McIntosh (Conservative, Vale of York)

Before going any further, may I formally move amendment 25, because I understand that if I do not do so, we cannot vote on it later? Is that correct?

Eric Martlew (Labour, Carlisle)

When we come to it at the appropriate time, you can move it formally.

Anne McIntosh (Conservative, Vale of York)

I simply want the Committee to be able to vote on the amendment.

The Committee will be aware that the National Audit Office’s report of June 2007 on the construction and maintenance of flood defences in England found significant regional variations in the proportion of assets maintained by third parties. The report found that the proportion of third-party assets in good or very good condition was lower than for Environment Agency maintained assets. It also found that the agency had limited powers to force other bodies to improve the condition of their assets.

The Committee will be aware that the provision previously formed part 2 of the draft Bill. We need to be mindful of the fact that we should not downgrade the provisions to the status of a schedule because there are some very important issues to be discussed here. We are seeking to insert:

“that a designating authority may only designate infrastructure if this does not compromise its primary purpose.”

In answer to the point made by the hon. Member for Cheltenham, each case will be considered on its merits and according to the facts involved. I do not wish to be too prescriptive; I just wish to cover the situation that he has rightly identified. There are certain aspects that are currently not covered and it is important to include those in the Bill.

I do not see how amendment 139 adds greatly to the schedule as drafted or to my understanding of what the schedule should be. It is much better to define things and designate objects. I wish that the schedule and, indeed, the Bill went further in that regard.

Martin Horwood (Liberal Democrat, Cheltenham)

The hon. Lady may have noticed that evidence given to the Environment, Food and Rural Affairs Committee addressed the designation of “things” and used exactly the same word that she just used. The report states:

“We asked our witnesses from local authorities and the Environment Agency about these powers. None seemed sure what a ‘thing’ was.”

Witnesses disagreed on exactly what the definition might mean, and what it might cover. That was one of the specific fears that the Select Committee included in its report. Is the hon. Lady concerned about it?

Anne McIntosh (Conservative, Vale of York)

The hon. Gentleman refers to the same paragraph that I read out in the debate on clause 30. I do not accept that his definition takes the matter any further. We need to define objects—physical features such as woods, dykes or watercourses—not amorphous things. I would like to designate features that belong to third parties, which the NAO referred to in that regard.

What I am trying to do in amendment 25 is to narrow down the Minister’s all-encompassing powers. There should be a structure for trying to identify who owns the features. There will be issues when we come to discuss sustainable drainage systems that may be more relevant to what the hon. Gentleman is trying to do in his amendment, but I just do not accept his definition as fair.

We are co-signatories to amendment 129, so obviously we support it and may press it to a vote, depending on what the Minister says. I have some general remarks on schedule 1, but those are my remarks on the amendments.

Roberta Blackman-Woods (Labour, City of Durham)

I wish to make a couple of brief points about amendment 139. This time, I have to say to the hon. Member for Cheltenham that I have some sympathy with what he is saying. Like him, I am trying to keep several of my communities in mind as the Bill is going through. One of them in particular is Elvet Waterside. I want to ensure that it benefits from flood risk management not only because it is on the floodplain adjacent to the river but because it relies on the leisure space and bowling green that provide a part of the floodplain. I would like to hear whether the Minister thinks that such areas will be protected in paragraph 4(1)(b).

I hope the Minister will forgive me if he did this, but I am not sure that he sought to reassure me on the points that I raised in the clause 27 stand part debate. Perhaps he could return to them at some appropriate time.

Eric Martlew (Labour, Carlisle)

Perhaps not. Perhaps you could discuss it in private.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I wish to speak briefly to amendment 139, which has been mentioned by my hon. Friend the Member for Cheltenham, and also to amendment 129.

Amendment 139 takes forward the definition of what a feature is. Certainly on this side of the Committee, we are concerned that any natural features that could in some way limit or mitigate flooding should be protected and even enhanced. It is sometimes said that the drainage of uplands to increase agricultural productivity has led to rapidly increased flows of water, and that the flooding in Tewkesbury originated in the constituency of my hon. Friend the Member for Montgomeryshire (Lembit Öpik).

There is work going on in Montgomeryshire whereby upland that has been drained is now being taken back to its original condition, and drainage is being obstructed. It has been shown that that can reduce the flow of water off catchment areas and so mitigate flooding. Amendment 139 defines what could be a strong method of reducing flooding, and the Minister should consider it carefully.

On amendment 129, the designation of features will have implications for individuals, companies, other organisations and third parties, and their ownership of property because it will limit what they can do with their property. It might even put duties on them to maintain or improve it. We must be careful that things cannot be designated without good cause. There should be proportionality. Features should be designated when they materially affect or improve flood prevention work.

Amendment 129 would take out “affects” and insert

“is likely to have a material effect on”.

That would raise the bar and ensure that if the owner of property did not believe that a designation was justified in the public interest, he had a defence and an objection to the designation. It is important that we give comfort to those involved in preventing flooding that impositions will not be put on them unreasonably. Raising the bar in this way is one way of doing that and of encouraging their co-operation in these matters.

Huw Irranca-Davies (Labour, Ogmore)

Amendment 139, tabled by the hon. Member for Cheltenham, would insert an example of the type of feature that may be designated under schedule 1. That would affect paragraph 4(1), which provides that

“a designating authority may designate for the purposes of this Schedule...a structure, or...a natural or man-made feature of the environment.”

The amendment would add the words

“including defined geographical areas of landscape.”

Well intentioned as it is, I do not think that the amendment is appropriate because the definition is intentionally broad so that it includes any natural feature that acts as or forms part of a flood defence. To be designated, the feature must have an effect on flood or erosion risks. The idea of having examples of things that might be designated is good, but those should be provided in guidance, particularly considering the variety of things that might be designated. Including them would make the Bill more complicated.

I clarify that the intention is to designate things that have a tangible effect on flooding, such as boundary walls, embankments and culverts, which have been referred to. I acknowledge that there might be broader benefits, as the hon. Gentleman has said about this amendment and others. Some of those were identified in the evidence sessions. The representative of the Woodland Trust stated:

“If that feature is also going to have other wider landscape benefits for habitat, recreation and biodiversity in other ways, then by protecting that feature for flooding, you are also protecting all those other public benefits.”——[Official Report, Flood and Water Management Public Bill Committee, 7 January 2010; c. 50, Q73.]

I do not disagree with that. The critical point is that in protecting a feature from flooding, the other benefits will be protected. The test for such designated features is that they contribute to flood risk management.

I clarify that designations are intended to control things that are important to managing risk on the floodplain, rather than to label the floodplains themselves or afford areas landscape protections that the legislation designed for such purposes has not given. It seems unlikely that woodland would have a sufficient effect on flood risk to be designated, just for the sake of being woodland. It therefore falls outside the original intention. There may be woodland or parcels of land that are used as flood storage. There are many of those in our constituencies. Alternatively, streams of water might be directed through woodland during a flood and it might be helpful to designate that.

We want to avoid inappropriate designation. Given that we are designating parcels of land, if we inappropriately designated something that was not related to flood risk management, we would be increasing the risk of a successful appeal.

I will now consider the interesting question of whether something is a structure or a feature according to the definitions. Structures are generally interpreted as being man-made or managed assets. Features, however, may include or encompass natural features such as mounds, banks or paths over which water flows. The idea is not to enable vast swathes of land to be included arbitrarily, but it could include those things, provided they affect flood risk.

Amendment 129, tabled by the hon. Member for Brecon and Radnorshire, would change one of the conditions, set out in schedule 1, that must be satisfied before a feature can be designated. The condition is that a designating authority may designate only where it

“thinks the existence or location of the structure or feature affects...a flood risk, or...a coastal erosion risk.”

The amendment would remove the word “affects” and replace it with the phrase

“is likely to have a material effect on”.

I do not believe that that would have a material effect on the provision, because that is what the Bill means by the use of the word “affects”. I will give an interesting example, because we have teased the matter out in discussions as we have brought the wording forward. One effect in one area that is beneficial could have a negative effect down the line. I think that our use of the word “effect” recognises that one can look at that overall, rather than look just at one instance that might have a material impact somewhere, so we should look at it in the round.

It is clear that the Government do not expect an authority to attempt to designate a structure or feature that did not have a material effect on the risk of flooding or coastal erosion, and the guidance will give effect to that. The appeals provisions provide a further safeguard to prevent that happening. With regard to a duty on people who own features that are designated to maintain them, the Bill does not give that duty to maintain. It provides only that they should not interfere with it without consent. The hon. Member for Cheltenham raised the classic example of something that had not originally been designed as a flood risk management feature but that subsequently provides a flood management role, from a committee’s perspective. The intention is not to ensure that the landowner maintains the feature, but to ensure that it cannot be interfered with to the detriment of flood risk management. The authority cannot withhold consent unless a flood risk is affected.

Roger Williams (Liberal Democrat, Brecon and Radnorshire)

I am listening to the Minister carefully, but if a feature is in the ownership of an individual, a body or a company, what happens if it deteriorates so that its effect on preventing flooding is diminished? Does that mean there is not duty or burden on the owner to improve it or put it right?

Huw Irranca-Davies (Labour, Ogmore)

No. We considered whether we should bring forward in the Bill a clear and specific duty on individual owners, but that really will take a fair bit of thought. It is very complex, because we could be talking not only about companies, but about an individual living on a smallholding or a house where the wall abuts a stream or river that is part of the flood risk management strategy. That will require much thought, so we have not brought such a measure forward. The Bill enables the Environment Agency, for example, to work with such landowners to try to recognise and designate the features that are important and to try to work reasonably and constructively with them towards its maintenance, but there would not be a duty on the individual to maintain it. However, if that wall, having been identified and designated, was crumbling and falling down, the Environment Agency would be able to work with the landowner to go on to the land and ensure that it was repaired, if it relates to flood risk management in the area. In that way, we can achieve the purposes without trespassing on the rights of individuals too heavily, which I know the hon. Member for Brecon and Radnorshire would not want us to do.

The hon. Gentleman also raised the matter of protection for the owners of the assets, which I have just touched on. The owners may make representations on provisional designation, to say that it should or should not be in—this confers some sort of responsibility—and also to appeal a designation notice thereafter. As I have said, authorities will engage with this so that they are properly informed. And let us not forget that the owner will also benefit from effective flood risk management and probably from the feature being there and being kept in good shape.

We agree that it is important to consider whether a designation could impede the primary purpose of a feature in respect of amendment 25. I would like to reassure the House that under no circumstances do I anticipate that a designation will compromise the primary purpose of infrastructure. But a designation will offer a basic standard of protection to a structure or feature and to those relying on its flood risk management properties, by requiring flood risks to be taken into account before it is altered, removed or replaced. It will be possible to replace the designated structure or feature with another, provided that this flood risk is taken into account. The authority will not be able to withhold consent to a change unless flood risk is affected. In many instances, the owner or operator of a feature designated is also, as I have said, going to benefit from the flood protection, irrespective of its primary purpose.

Therefore, a designation will not affect an operator’s ability to operate, maintain or repair their infrastructure to ensure that it remains in its current state for its primary purpose. I have to make it clear that in all cases I expect designating authorities to work with infrastructure providers in respect flood risk management and consider carefully whether it is appropriate to issue a designation. The affected parties will, as I have said, have the formal right to make representations in respect of a provisional designation and the authority must take these representations into account. If all else fails, a right of appeal is provided. There is nothing in the provisions that will prevent the provider of infrastructure and a designating authority reaching an agreement in respect of flood risk management without recourse to a designation should they want to do so.

Therefore, with that clarification I ask the hon. Members for Cheltenham, for Brecon and Radnorshire, and for Upminster not to press their amendments, on the understanding that the definition of what may be designated as a feature is intentionally sufficiently broad such that a designation could be made only where it materially affects flood risk, and because the provisions should not impede the primary purpose of infrastructure.

Martin Horwood (Liberal Democrat, Cheltenham)

I am a little surprised that some of the Minister’s remarks sounded ambivalent about the value of broader natural features such as woodland in mitigating flood. Earlier in the Committee I quoted, extensively I think, from the Woodland Trust and their statistics about the impact that woodland can have on reducing flood risk. Before he stands up, I might also quote to him some research by the university of Manchester which has shown that increasing the green space covering urban areas by 10 per cent. reduces surface water run-off by almost 5 per cent., increasing tree cover in urban areas by 10 per cent. reduces surface water run-off by almost 6 per cent., and adding green roofs to buildings in town centres can reduce surface water run-off by almost 20 per cent. So there are many and varied kinds of natural or semi-natural features that utilise the natural properties of soil, trees and plants to retain water.

Huw Irranca-Davies (Labour, Ogmore)

Far from being ambivalent, we do recognise—I apologise if I was not clear—that woodland can contribute to flood risk management. But it is important that a designation is in respect of flood risk management, not woodland per se.

Martin Horwood (Liberal Democrat, Cheltenham)

I am not entirely sure I have been helped by that intervention, which seemed almost to contradict itself. Perhaps the Minister would be absolutely crystal clear on this. Does he think that this intentionally broad definition could cover a feature such as a field or woodland if those had been identified as important to flood risk management?

Huw Irranca-Davies (Labour, Ogmore)

Indeed, if they were designated as features that contribute to the flood risk management. There’s the rub. That is the important aspect of it. It is not appropriate to designate a woodland or a feature for its own sake. It has to contribute to flood risk management. So, on that basis, yes.

Martin Horwood (Liberal Democrat, Cheltenham)

Good. We may have a result in that case. If so, I may not press amendment 139 to a vote.

Turning briefly to address amendment 129, we may return at other stages to the pretty onerous powers conferred by the Bill. If we do not further amend the Bill in some respect or other, we would allow the Environment Agency and other flood risk management authorities an alarming and surprising degree of control over people’s own property. The Minister keeps using phrases suggesting that he does not anticipate that compromising primary purposes, but I am not sure whether that would be enough to satisfy Network Rail and some worried landowners and farmers. We will have to return to that under the aegis of other amendments, as I do not think that we will press these two to a vote.

I leave the Minister with one thought. Although he seems to be clear about the definition of “a feature”, the Environment, Food and Rural Affairs Committee was crystal clear. It said:

“We are concerned that bodies that would be able to designate ‘things’ appear unsure about their scope or scale. The purpose of the provisions is not in question but there needs to be greater clarity about what could be designated, how the designating authorities would coordinate with one another and how differences of opinion between designating authorities would be resolved.”

Those are real issues, to which the hon. Member for Vale of York has also alluded.

Eric Martlew (Labour, Carlisle)

The hon. Gentleman appears to have moved on. In effect he has entered the schedule stand part debate.

Martin Horwood (Liberal Democrat, Cheltenham)

In that case, I beg to ask leave to withdraw the amendment.

Eric Martlew (Labour, Carlisle)

Did the hon. Member for Vale of York wish to press amendment 25?

Anne McIntosh (Conservative, Vale of York)

No.

Martin Horwood (Liberal Democrat, Cheltenham)

I beg to move amendment 140, in schedule 1, page 32, line 18, after ‘authority’, insert

‘except where routine maintenance or maintenance for safety purposes is required of a structure, and where routine maintenance or use or good management is required of a natural or man-made feature of the environment.’.

Eric Martlew (Labour, Carlisle)

With this it will be convenient to discuss the following: amendment 141, in schedule 1, page 32, line 36, leave out ‘affect’ and insert ‘significantly increase’.

Martin Horwood (Liberal Democrat, Cheltenham)

Amendment 140 addresses the area of unintended consequences. I hope that the unintended consequences that we will be pointing out will horrify the Minister once we draw his attention to them.

Paragraph 5(1) of schedule 1 is far too broadly drafted. If we look at it precisely, the wording says:

“A person may not alter, remove or replace a designated structure or feature without the consent of the responsible authority.”

That is an incredibly broad definition when we are talking about things that may require maintenance, that may require proper attention in their normal usage—sometimes that might mean rebuilding, sometimes growth if we are talking about natural features, sometimes harvesting, or sometimes ploughing if we are talking about fields. The Minister very kindly pointed out that the definition in the schedule is broad enough to include such features, provided that they have been specifically identified as having a role in flood risk management.

Yet, on the face of it, it is not only Network Rail that would have to seek permission to maintain something, even something that they might think is essential to the safety of rail passengers—a landowner might have to seek permission to maintain and carry out proper land management of a piece of woodland, hedgerow or some other part of the landscape; a farmer might, in theory, if we take this to absurd extremes, have to seek the permission of a flood risk management authority before ploughing a field if that field had been identified as important to flood risk management and had been designated as a feature. Although it seems absurd that a lead local authority, an IDB or some other body might take it to that extreme, the trouble with such legislation is that if we require such fine judgments about whether something is justified or not, the legislation places all the cards in one player’s hands. In this case, the Bill would place all the powers in the hands of the flood risk management authorities; if they designate a feature, they have carte blanche to insist that a property owner needs consent. It then takes the power away from the particular landowner or asset owner, who would not have a leg to stand on if they disputed the powers being exercised.

I can imagine a special exemption being negotiated for Network Rail, which has made a particular case on the clause, but what about other bodies, landowners and smaller tenant farmers or upland hill farmers? They would not have the wherewithal to challenge such rules. The clause gives extraordinary power to flood risk management authorities, and that needs to be qualified. We have specifically done so in amendment 140, which inserts

“where routine maintenance or maintenance for safety purposes is required”

or

“where routine maintenance or use or good management is required of a natural or man-made feature of the environment.”

I hope that form of words would take care of the worries of Network Rail and also the concerns of landowners and farmers.

Amendment 141 addresses the same kind of issues, but leaves out the very broad word “affect” flood risk, and inserts the phrase “significantly increase.” That is partly on a purely logical basis. One would think that if somebody was going to change a flood risk feature, they would want to reduce flood risk, and that would be the perfect grounds on which to do it.

I have an example in my constituency. There is an area called Keynshambury road which backs on to Sandford park in the middle of Cheltenham. The River Chelt, which is one of the EA’s main rivers, passes behind a row of houses. A wall that was maintained by the Environment Agency looked as though it protected all those houses. It came to an end—it simply stopped—and effectively went down to ground level. When the floods of 2007 happened, the floodwater went around the end of the wall and flooded all the houses. The wall had no impact whatever, except to hold some of the water back in the gardens and prevent it from flowing back into the river. It was the absolute opposite of what it was intended to do. In fact, the Environment Agency had told local residents that they were not allowed to touch that wall. They would not even have been allowed to repair an obvious crack or break, and were not allowed to add to it in order to make it a complete flood defence.

Anne McIntosh (Conservative, Vale of York)

I have great difficulty seeing what the hon. Gentleman’s comments have to do with schedule 1 and designation of things or features. I am sure the hon. Member for Brecon and Radnorshire will agree that schedule 1 and all the points I want to make in a short clause stand part debate would be entirely in keeping. Why are we going on at such length about something that, on any reasonable consideration, does not—

Eric Martlew (Labour, Carlisle)

Order. Is this an intervention on the hon. Member for Cheltenham?

Anne McIntosh (Conservative, Vale of York)

I am having great difficulty following how the hon. Gentleman’s remarks fit in with schedule 1.

Martin Horwood (Liberal Democrat, Cheltenham)

Paragraph 6(5) is about consent to alteration, removal or replacement. Once one of these features is designated, extraordinary powers are conferred on the flood risk management authority, which in effect, controls them. The paragraph states that

“the responsible authority may refuse to give consent applied for under subparagraph (3)(a) only on the ground that, in the authority’s opinion, the proposed alteration, removal or replacement would affect a flood risk or a coastal erosion risk.”

Eric Martlew (Labour, Carlisle)

Order. I think the hon. Gentleman has proved his point in order. If he had not, I would have ruled him out of order.

Martin Horwood (Liberal Democrat, Cheltenham)

Simply, the use of the word “affect” means that one cannot even use the defence that one is improving flood defence to justify working on one’s own property. That is a complete nonsense. The scope is so wide that the refusal of consent could put the asset owner in an unreasonable position with respect to the flood risk management authority. Again, it puts all the cards in one player’s hands.

Roberta Blackman-Woods (Labour, City of Durham)

I want to speak about amendment 160. It is a very straightforward amendment. Essentially, it asks the Minister to provide a right of appeal against conditions that have been imposed by an authority providing consent for work, and the ability to appeal against the refusal of consent. The schedule outlines the circumstances in which an appeal can be made, which do not currently include appealing against any conditions. That point was raised by the National Farmers Union in the evidence session. I will not press the amendment this evening, but will the Minister reconsider the matter?

Huw Irranca-Davies (Labour, Ogmore)

Let me deal first with amendment 140, which was tabled by the hon. Member for Cheltenham. The amendment seeks to set out what maintenance is acceptable in respect of a feature designated under schedule 1. As the hon. Gentleman said, the amendment would affect paragraph 5, which states:

“A person may not alter, remove or replace a designated structure or feature without the consent of the responsible authority.”

The amendment would add

“except where routine maintenance or maintenance for safety purposes is required of a structure, and where routine maintenance or use or good management is required of a natural or man-made feature of the environment.”

Authorities will not seek to prevent the normal management or operation of a feature that keeps or restores a feature to the condition it was in at the time of designation. The purpose of designation is not to require any owner of a designated asset to do anything other than to continue its normal use. What will require consent from the authority is a material change to that designated feature. That is because a change could increase the risk of flooding and of coastal erosion. An authority will need to consider whether flood or coastal erosion is affected. If it is, the consent may be refused. However, consent cannot be refused if there is no effect on flood risk. Any designation or refusal of consent would have to be reasonable and be subject to appeals. I refer hon. Members to paragraph 15 of the schedule.

Amendment 141, which was also tabled by the hon. Member for Cheltenham, seeks to amend the wording of paragraph 6. As it stands, the provision prescribes that an authority may only refuse consent for an alteration, removal or replacement of a designated feature on the grounds that the proposed change

“would affect a flood risk or a coastal erosion risk.”

The amendment seeks to change the provision so that consent may only be refused if the proposed change to a feature would significantly increase the risks.

Let me make it clear that authorities will not seek to use a designation to prevent maintenance or repairs being carried out that will keep or restore the asset to its present state at the time of designation, nor will designation prevent a change from being made, provided that flood risk is not increased or affected. The only circumstances under which an authority could refuse a removal, an alteration or replacement are where the flood risk or coastal erosion risk is affected. I am not convinced that any further safeguard is necessary.

Martin Horwood (Liberal Democrat, Cheltenham)

Will the Minister give way?

Huw Irranca-Davies (Labour, Ogmore)

Let me expand a little, because I need to explain the nature of the wording proposed by the hon. Gentleman. As they stand, the provisions seek to prevent any increase in risk. It may not be its intention, but the amendment runs the risk of allowing a gradual, iterative and accumulative reduction in flood risk protection, which, over time, could have significant consequences. So, the current provision refers to the effect on risk. However, there would clearly be no grounds to refuse permission for the work proposed if its effect would be to reduce the risk of flooding.

Martin Horwood (Liberal Democrat, Cheltenham)

I accept the Minister’s point about the progressive and cumulative potential of small changes, but, nevertheless, he is therefore arguing that even maintaining a piece of woodland would need consent. Even if that were not unreasonably refused, nothing in the Bill would stop a flood risk management authority designating that piece of woodland as a flood risk management feature and insisting on consent for maintenance.

Huw Irranca-Davies (Labour, Ogmore)

To revert to our earlier discussion, that is exactly where the appropriateness of the designation must be precise. That woodland, flood meadow or whatever must be appropriately designated as part of the flood risk management within that area and become a designated asset for the purpose of what we are discussing. On that basis, anything that was done to that woodland that did not materially affect it would cause no concern whatever. The issue relates to instances in which the capacity of the asset that has been identified as contributing to flood risk management is diminished—therefore, someone could maintain, repair, plant, sow or do whatever.

The hon. Member for Cheltenham painted a picture earlier and said—I cannot remember his exact words—that such a situation would clearly be ridiculous. He is absolutely right. The idea that the authority would say, “I’m sorry. You cannot plant additional trees there,” or “You cannot replant or thin out or whatever,” is ridiculous. A duty of reasonableness must be applied. Therefore, the more spectacularly ridiculous situations simply should not apply.

Let me make it clear that a designation does not restrict maintenance that simply maintains the asset in its existing state. Indeed, a formal requirement has not been included to maintain a feature to a given standard for the purposes of flood risk management. The issue has been considered and explained in the consultation response. There may be concern among infrastructure operators that construction and change to infrastructure may be impeded. I seek to offer clear reassurance on that point. My officials are already meeting Network Rail to discuss those issues. A designation does not prevent a change from being made to the structure or feature; what it does require is the consent of the designating authority. Such consent cannot be unreasonably withheld.

Network Rail in particular has been concerned that authorities would try to designate things that are not suitable to flood defence. We have given it the reassurance that if something is not suited to flood defence, it would not be designated. Operating authorities would engage with infrastructure providers in the course of establishing what should be designated. If all else fails and there is a ridiculous or unreasonable designation of a particular feature, the right of appeal remains.

Network Rail was also concerned about the duty to maintain and that it would be required to maintain things to a higher standard. We have assured it that there is no formal duty to maintain and although an enforcement notice might require remedial action to restore the feature to its state at the time of designation, under no circumstances could a higher standard of defence be demanded. The hon. Member for Cheltenham also referred to the authority controlling a person by means of designation. As I have said, the measure does not mean that they cannot make a change, but it is important that we designate the correct assets. That is the crucial point.

Amendment 160, tabled by my hon. Friend the Member for City of Durham, would strengthen the right of appeal in respect of the designation of features under schedule 1. The amendment would add a right of appeal against the conditions that an authority may set in granting consent to an application for alteration, removal or replacement of a designated feature. Conditions would normally be specific requirements relating to the time and nature of works.

I know that the NFU, and possibly others, is concerned that an individual would not be able to appeal against the conditions. We have a comprehensive set of appeals in the Bill and it is only right that individuals are also able to appeal consent conditions. That would be in addition to the right of appeal in respect of outright refusal to consent to a change, to cancel a designation or in respect of an enforcement notice. So my hon. Friend makes a valid point that we should consider granting right of appeal. That was always the policy intention, but it might be that the provision does not adequately deliver it, as she has spotted. I am happy to look further at the matter. In the light of that, perhaps she would be prepared not to press the amendment, as she indicated.

On the other amendments, I can assure the Committee that the provisions in the Bill are not designed to prevent routine maintenance or the keeping in working order of a designated feature. For that reason, I ask the hon. Member for Cheltenham to withdraw amendment 140 and not to press amendment 141.

Martin Horwood (Liberal Democrat, Cheltenham)

Somebody once said that the only freedom that counts is the freedom to do what somebody else thinks is wrong. If everybody agrees that something is a reasonable consent, designation or piece of maintenance, there is absolutely no problem. Clearly, that is the ideal world in which the Minister would like to live. The problem is that it is precisely when one person says, “That is ridiculous. You can’t do that,” or another person says, “It is ridiculous to refuse consent for this. This is something that I absolutely have to do,” that the wording of the Bill matters.

I can imagine a situation where someone’s woodland or even hillside—I can think of a case near where I live—might be designated as important to flood risk management because the vegetation holds water. Good land management dictates that occasionally one has to cut back the vegetation and reduce its volume. Under the terms of the Bill, if that meant that the flood risk increased while the vegetation was regrowing, the land manager would have to go through the time and effort of seeking consent to do the work. The flood risk management authority—the lead local authority or whoever—would be perfectly within its rights to refuse the land manager the right to cut back the vegetation because, on the face of it, that would increase flood risk, yet it would be part of good land management.

The land manager—in some cases, common land and a voluntary organisation might be involved—might have to decide whether to put in all the time, effort and expense and possibly lose an appeal, or, frankly, to give up and do something more productive with their life.

Huw Irranca-Davies (Labour, Ogmore)

I am worried that we might be arguing about slightly different things. I have tried to make it clear that a natural feature such as a woodland or meadow would be designated only if it can be identified and designated as being pertinent to flood risk management within the area. That is the only occasion. It is important that we get that right first of all and do not designate for its own sake.

People might want to protect a local woodland and designate it in some way that will protect it for ever and a day. The Bill does not deal with that. If we get the designation correct, of a parcel of land for example, it becomes a feature as designated, and it is right that the same conditions should apply there as elsewhere. The important thing is to designate for the right reasons, and to ensure that the designation is targeted specifically at the feature that satisfies the need to protect against flood risk.

Martin Horwood (Liberal Democrat, Cheltenham)

I am not sure that I am reassured at all by the Minister’s comment. By definition, we are talking about things that have been designated as important to flood risk management. As we have argued on various occasions and seem to have agreed until now, that can include natural landscape features.

We live in a largely artificial landscape in this country. Even the countryside is largely artificial. It requires active land management and attention, and sometimes the cutting back of vegetation or the maintenance or dredging of channels. All those things require active intervention on an ongoing basis, yet paragraph 5(1) of the schedule states that, once the appropriate designation has taken place:

“A person may not alter, remove or replace a designated structure or feature without the consent of the responsible authority.”

“May not alter” in any way, presumably—there is no qualification in the schedule. That is an incredibly onerous restriction on active land management, not to mention Network Rail and other people whom we have discussed.

Even if it is completely reasonable and desirable to designate a feature as a flood risk management feature, the schedule confers an extraordinary power. We are simply seeking to qualify it and make it more obviously reasonable.

The rest of the debate is in Hansard.