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Flood and Water Management Bill

My Lords, unlike in the previous debate, I oppose the question that Clause 38 should stand part of the Bill not as a probing exercise but because we would have a better Bill if it were removed. Clauses 38 and 39 are twins. They both allow for flooding or coastal erosion to take place, provided that certain conditions have been met. That, at first glance, appears to be something of an oddity in a Bill which is designed to manage, curtail or prevent flooding or coastal erosion. However, I suspect—and I have not heard or seen anything to counter my suspicions—that the Government saw the Bill as a convenient, though not necessarily crucial, vehicle for these clauses and decided to make use of it. My reason for saying that is because Clauses 38 and 39 have less to do with managing flooding and everything to do with managing the environment—specifically, with meeting targets under the European Union’s habitats directive, which requires a certain amount of land to be returned to a state in which it supports wildlife. Whether the directive is right or wrong, whether it makes the right or wrong demands on land, is not strictly relevant today, although I am sure noble Lords have views on that. The directive is a reality. The issue that I am raising is not about whether, but how, environmental targets should be achieved. I am not proposing, as some have feared, to do away with the power to allow some farmland to flood or erode for the benefit of the environment. I am, however, challenging the right as to who may take the decision to allow that to happen. I said at the outset that Clauses 38 and 39 are twins. Both grant powers to permit work which causes land to flood or erode, if that work is in the interests of nature conservation, the preservation of cultural heritage or people’s enjoyment of the environment or cultural heritage, and if the benefits of the work outweigh the harmful consequences. Both clauses have those criteria at their heart. The difference between the clauses is, of course, that under Clause 38 the Environment Agency is the body which will make these judgments, weigh up the arguments and make a decision—against which there is no appeal. Under Clause 39, the body making the decision is the local authority. The primary difference is democratic. One body is elected; the other is a quango—no matter how respected it is, it is still a quango. It is my firm view that decisions such as these, which will not be universally popular and which may impact on property prices and the character of local areas, should be made ultimately by a body which is accountable to the community it serves. That accountability is, when boiled down, one of the fundamental points of local democracy. As to the argument that the Environment Agency must be involved because of its strategic overview, expertise and money, I agree that the Government in their wisdom have drafted a neat clause in Clause 39 such that if we were to drop Clause 38 altogether, the Environment Agency would nevertheless be ensconced in the process. Under Clause 39, the local authority cannot make a decision unless it has consulted the Environment Agency. The local authority must go the agency and I cannot see anything which would prevent the agency coming forward unbidden with advice. It need not be an entirely passive player. Under Clause 39(8), the local authority can arrange for the Environment Agency to carry out the proposed work. Under subsection (10) the agency may make grants to local authorities for the work to be done. In other words, if we excise Clause 38 but retain Clause 39, we retain the strategic benefits of the Environment Agency and access to its skills and expertise, and to its financial wherewithal. What we would lose is the right for an accountable agency to make decisions on whether harm outweighs benefit. The executive power stays with local authorities where it rightly belongs. I am grateful that the Government have drafted such a thoughtful clause, because that has convinced me that Clause 38, as well as being wrong in principle, is superfluous to what this part of the Bill seeks to achieve. As I have said previously, we have a good Bill. If the Government agree to remove Clause 38, we will have a better Bill.