Water Environment and Water Services (Scotland) Bill: Stage 2
I welcome the Deputy Minister for Environment and Rural Development, Allan Wilson, and Alicia McKay, Michael Kellet, Elinor Mitchell and Brian Dornan, who are Scottish Executive officials.
I remind members of the procedure, because it is a while since the committee has considered a bill at stage 2. Each group of amendments will be dealt with in turn and the member who lodged the lead amendment will have the opportunity to speak to and move their amendment. Other members who have amendments in the group will be given the opportunity in turn to speak to their amendments. They will not be required to move their amendments at that stage, but can move them later. Other members will also be able to speak.
If the minister did not move the lead amendment in a group, he will be able to respond to the group. Finally, the member who moved the lead amendment will be able to wind up and respond to the debate. Decisions on amendments might not always be taken immediately after those amendments have been discussed—decisions will take place at the appropriate points.
Section 1—General purpose of Part 1
Amendment 19 is grouped with amendments 21, 25, 28 and 42. I remind members that when they speak to and move a lead amendment, that is their opportunity to comment on other members' amendments in the same group.
I thank the convener for reminding us of the procedure—the reminder was well received.
I hope that it is obvious to members that amendments 21 and 28 are linked to amendment 19. I shall speak to the cluster of amendments and not just to amendment 19.
During the stage 1 debate in the chamber, I highlighted a weakness in the bill—the lack of a requirement for a national flood plan or flooding strategy. The bill will make improvements—particularly if the suggestions that the committee made during its stage 1 inquiry are introduced—but we will still have an approach that is more fragmented than necessary. That will inevitably continue ad hoc policy making and decision taking. Ultimately, the taxpayer and the environment will bear the cost.
As I said in the stage 1 debate, we need a structure that will ensure that a strategic, focused and consistent approach is taken at river basin and sub-basin levels. That approach can be delivered only if the bill requires ministers to establish a national strategy for sustainable flood management. A strategic overview must be established if we are to have any hope of creating an holistic and integrated approach to implementing flood-avoidance measures.
During the stage 1 debate, John Scott said:
"more … needs to be done to achieve an integrated approach that takes into account environmental, agricultural and forestry policy objectives. Unless an integrated approach is taken, taxpayers' money may be spent pursuing contradictory policy objectives, which must be avoided at all costs."—[Official Report, 30 October 2002; c 14727.]
I support that view. Des McNulty said:
"we must have co-ordinated flood management systems. Indeed, we might … have to come up with a national flooding strategy".—[Official Report, 30 October 2002; c 14736-37.]
I agree with that, too. Sarah Boyack said:
"The bill should set the framework for a coherent overview on flood prevention and management. I do not care whether it is SEPA or the local authorities that produce a national flood approach".—[Official Report, 30 October 2002; c 14740.]
It is safe to say that the creation of a national flood strategy has general support. It is no surprise that that view prevails, as we are all aware of the implications of climate change, more flooding incidents because of increased rainfall and greater coastal and tributary flooding as sea levels rise. The question is: who should be responsible? I ask the committee to support the view that the establishment of a national strategy for sustainable flood management should lie in ministers' hands. Only ministers can have an overview of the impact on agriculture, farming, industry, forestry and even housebuilding policy, for instance. That will have an impact not only on Scotland's lochs and rivers, but on the sea that surrounds our land. Only ministers can make the big changes in policy and in the targeting of financial resources that will be required to create an integrated and strategic overview.
The national flood strategy could deal with matters such as flood defences and flooding consequences, but local authorities are best equipped to deal with those matters. More important is the need to take a proactive approach to flood-avoidance strategies. Only by doing that will we move from hard defences, sandbags and canoes to protecting natural flood plains and considering how we plant our forestry, where we build our settlements and how agriculture and biodiversity can better co-exist to the benefit of both.
Most important, a national flood plan is required because of people. The bill is as much about people as it is about the environment. If members are concerned about whether the responsibility should lie with ministers, I suggest that they visit the Department for Environment, Food and Rural Affairs website, which makes it clear that DEFRA is responsible for the strategic approach to flooding in England and Wales. That strategy might not be very good, but the department is responsible for it. I am sure that the Scottish ministers could come up with a much more satisfactory strategy. I implore members to support my amendments 19, 21 and 28.
I move amendment 19.
With your indulgence, convener, I ask for Sarah Boyack to be given the opportunity to speak to amendment 25, as we share the amendment and it should have been lodged in her name, rather than mine. I will speak to amendment 42 after that.
I am prepared to accommodate that.
I welcome Sarah Boyack to the meeting, and apologise for not doing so earlier.
Thank you. I am grateful to have the chance to speak on amendment 25, because I have a constituency interest and also an interest through my membership of the European Committee, which gave evidence to the Transport and the Environment Committee at stage 1.
When amending the bill we have to meet several criteria. We have to know that it is necessary to amend the bill, and we also have to know that we get the wording right. As a former minister, I know that it is difficult to pass both those tests. The minister will come along afterwards, and he gets different advice from the rest of us. However, it was clear at stage 1 that a key purpose of the bill was to mitigate the effects of flooding. It is critical that action on flooding is included in the bill, and that we identify the duties to act on flooding. That is what amendment 25 is about.
At the moment, we all know that we are concentrating on dealing with the aftermath of the failure to manage flood issues. In Edinburgh, the bill is £25 million. Across the country, it varies from area to area. The problem is that the target is moving. Climate change is making it harder to deal with flooding. We have to tackle and manage the root causes. We have to have effective flood-avoidance strategies, which means taking an integrated and co-ordinated approach across local authority boundaries. Crucially, that means gaining expertise that does not already exist. That is the reason for seeking to include in the bill the measures in amendment 25.
We need to take an integrated and co-ordinated approach, which means that the Scottish Environment Protection Agency, local authorities and the Executive have to pull together to ensure that we have action. The promotion of sustainable flood management has to be a statutory responsibility, because it is not happening effectively enough at present.
The committee's stage 1 report raised concerns about exactly how the responsibility should be laid, and about SEPA's exact role as a policy maker and regulator. We cannot afford to get hung up on that, because local authorities already make policy and implement and regulate it. The Executive does the same. It is clear that the Parliament and ministers will set the overall policy framework. The challenge is achieving the co-ordination to deliver that framework. If we need further guidance as a result of the bill, I am confident that ministers will produce it.
It has been suggested to me that we are, in a sense, going beyond our European obligations as they stand under the water framework directive, but it would be a tragedy not to act now and to wait for the rest of the European Union to catch up with us, because the costs and insurance problems are affecting my constituents and the Government. This is not about taking a Rolls-Royce approach; it is about producing a bill that is fit for purpose and which meets our needs now.
Ross Finnie is quoted in the Transport and the Environment Committee's stage 1 report on the bill as saying:
"the timely implementation of this Bill will put us ahead of the game across Europe"
with "sensible river basin planning". There is no problem in being ahead of the game if we need to be ahead of the game, and I think that we need to be ahead of the game.
I hope that the minister will look favourably on amendment 25. I hope that its wording is correct, although I am sure that the minister will tell us if it is not. I would like the duty in amendment 25 to be included in the bill. There must be a duty, and it must apply to the relevant authorities. Sustainable flood management has to be at the heart of the bill, because it is about protecting the water environment and managing and reducing the impact of flooding. I hope that the minister will accept the case for acting now.
In its stage 1 report, the committee determined
"that river basin management planning will only be judged to have been a success if the number of floods and the amount of damage caused by flooding is reduced over the next few decades."
It recommended that:
"SEPA should require that each sub-basin plan includes an assessment of flood risk and proposals on how flood risk can be mitigated".
The aim of amendment 42 is to create a process so that the committee's recommendation can be implemented, by identifying areas that are at risk of flooding. In keeping with the enabling nature of the bill, I have left some latitude for ministers in relation to the content of the register and how it should be prepared. The most important decision that will have to be made relates to the level of flooding that is to be registered. In other parts of the world, a once-in-a-hundred-years flood is the risk level that is chosen, but given Scotland's climate and topography, I did not feel that I was in a position to define the level of flooding at this stage. That should be left for ministers to decide, following consultation with communities and expert bodies.
Amendment 42 would not only create a register that identifies areas at risk—I would think that residents and landowners are often already aware of the areas of highest risk in their communities—but it would be a starting point on which a number of smaller amendments could be lodged to show how any register of flood-prone areas could be used as a stepping stone to address current flooding problems in Scotland. Formalising the register, substantial parts of which already exist, would be a significant step forward in showing that we are serious about dealing more effectively with flood issues. Amendment 42 and amendment 25, which seeks to insert in the bill sustainable flood management, are the correct way to proceed.
I have one or two differences of opinion with Bruce Crawford and his Canute-style approach. The appointment of a minister to be in charge of a national flood management strategy is not necessarily the best way to proceed. There are better ways to achieve the aim, perhaps by placing duties on SEPA and identifying the clear role of local authorities. I take issue with Bruce Crawford's approach, although not necessarily with the direction in which he is trying to go.
Amendments 25 and 42 represent a serious and thought-through way of tackling flood issues.
I speak in support of amendments 25 and 42. Des McNulty has opened the account on Bruce Crawford this morning. I am sure that Bruce will be delighted to be welcomed back to the committee in that fashion, and to know that more will come as the bill proceeds.
Sarah Boyack makes an important point. Constituents of mine who live close to the Braid burn, who have suffered major flooding twice in the past few years, will be concerned to know that as soon as possible we will take an approach to legislation and action that is practical and prevents their homes from being flooded again. At the same time, they will be comfortable with the fact that we should pass legislation and take action that satisfies the administrative requirements of the water framework directive, in order to keep our house in order.
I am sympathetic to amendment 25 and to Sarah Boyack's view that rather than take a Rolls-Royce approach, we need to take the approach that what is best is what works. Amendment 25 takes us down that path.
I am also sympathetic to Des McNulty's amendment 42. If we are not to take the approach that is outlined in amendment 42, I would like to hear from the minister strong reasons why we are not. If the minister cannot satisfy the committee on that point, we might want to leave him some latitude to come back to us, because there is significant merit in what Des McNulty said.
I understand the approach that Bruce Crawford is taking in amendments 19, 21 and 28. I would not argue that that approach has not been given serious thought, as Des McNulty's comments might have implied, but it is the wrong approach nonetheless—delighted though I am to hear Bruce Crawford again extolling the merits of the UK approach and putting his unionist credentials on the record for the benefit of the committee.
I support strongly the tone of everything that has been said by the four contributors so far. Their comments reflect the general unease that the bill might not provide the level of integration that is required to deal with floods. That is why I will support Bruce Crawford's amendments 19, 21 and 28, amendment 25, which Sarah Boyack spoke to and, in principle, Des McNulty's amendment 42. I remind Des, however, that King Canute waded into the waves on his own in order to prove that he could not stop flooding. The single-person approach that we might be left with—or the approach with a lot of unco-ordinated authorities attempting on their own to stop flooding, with a fairly low level of co-operation—is exactly what we do not want; we want a high level of integration.
I also support the sentiments of amendments 19, 21, 25, 28 and 42. I will reserve judgment until I have heard what the minister has to say but, as I said in the stage 1 debate, if we are to address all the issues, it is vital that we do so in an integrated way that covers all levels of policy. It is vital that we hear what the minister has to say.
I am delighted that John Scott resisted the temptation to take the King Canute comparison further.
It is good to be back in front of the committee. I always enjoy such occasions and I suspect that today will be no different. I am grateful for the opportunity to deal with the first group of amendments, which deals with the important issue of flood management.
As my colleague Ross Finnie and I said in the stage 1 debate, we take flooding seriously, not least because of its human impact, to which Angus MacKay referred. As the MSP for a constituency in a flood-prone part of the world, I am well aware of the misery—to which members referred—that flooding can inflict on our fellow citizens. For that reason, if for no other, the issue is important.
The committee agrees that the bill will make a valuable contribution to flood management. I will explain why in a minute. It is probably worth while putting it on record that we are considering the workings of the Flood Prevention (Scotland) Act 1961. After this meeting, I will attend a meeting in Bute House with colleagues including the Minister for Justice and the Minister for Social Justice, who is responsible for planning, to consider how the flood management system is working and how it could be better co-ordinated—Sarah Boyack used that terminology. That consideration continues. Our examination of the bill adds value to that process and we should consider the bill in that context.
From the outset, we should be clear that the river basin planning system that the bill introduces provides a useful forum for discussing flood management issues at the strategic level that Bruce Crawford and others talked about. That is because the system brings together local authorities, which have a key role in that aspect of flood management. I think that the committee shares our view that local authorities, which have local knowledge and are elected by local people, are best placed to decide where flood defences are required. Local authorities come together with other partners on a catchment basis, which is the most sensible basis for thinking about flooding.
As I said at stage 1, I am sympathetic to the views that lie behind several amendments in the group. The most obvious examples of what I mean are amendment 25, to which Sarah Boyack spoke, and amendment 28. I agreed with much—but not all—of what Bruce Crawford said, but I agreed with everything that Sarah Boyack said.
We made it clear at stage 1 that section 10 gives us the power to make regulations that determine the issues that a river basin management plan must cover. We can use that power to ensure that flooding issues, as they impact on the protection of the water environment, are included in a plan. However, as many members have said today and previously, that should be more explicit. I agree, and I undertake to consider whether the inclusion of flood management as an issue for river basin management plans could be clearer in the bill.
We could make that clearer in several ways. We could amend section 10, include a provision in schedule 1 and/or amend section 2, as Des McNulty and Sarah Boyack suggested, with the appropriate terminology to distinguish the functions that are necessary to promote sustainable flood management where practicable from those functions for which that might not be practicable. I propose to come back at stage 3 with relevant amendments to ensure that the members' concerns are covered.
I support the promotion of sustainable flood management, but I am concerned that amendment 25 would impose a high test on ministers, the Scottish Environment Protection Agency and the responsible authorities that would be neither desirable nor, importantly, relevant in all cases. Section 2 imposes general duties on those parties to secure compliance with the directive. In due course, one or more orders will be made under section 2 to specify enactments under which the Scottish ministers, SEPA and the responsible authorities must exercise their functions or designated functions to secure compliance with the directive. Amendment 25 would require ministers, SEPA and the responsible authorities, when exercising those functions, to promote sustainable flood management. Such a duty might therefore apply in respect of a potentially wide range of functions, which would not always be appropriate and would be unduly onerous. Given my undertaking to Des McNulty and Sarah Boyack to come back with a substitute amendment, I ask Des McNulty not to move amendment 25.
I turn to Bruce Crawford's amendments 19, 21 and 28. As Sarah Boyack said, and as other members know, contributing to the mitigation of the effects of floods is an element of the protection of the water environment and is therefore already covered explicitly in part 1. Amendments 19, 21 and 28 would require ministers to prepare a national strategy for sustainable flood management and to incorporate that strategy as part of the general purpose in section 1. Section 1 sets out the general purpose, goals or broad aims for part 1, but it does not determine how we get there; that is what the rest of part 1 does. Given that, amendments 19 and 21 would not sit appropriately alongside the rest of section 1 and should be rejected.
Although I have sympathy with amendment 28, it is unnecessary because we expect the river basin management planning process to address flood management issues, where they are relevant to the protection of the water environment. Given that, it makes no sense for ministers to prepare a stand-alone strategy without a requirement to involve others, which is a prerequisite of river basin management plans. I referred to the importance of local authorities in the planning process, and it is worth pointing out that local authorities are properly charged with deciding where flood defences are required, but that that does not imply that a national strategy does not underpin those decisions.
Flood defence schemes are approved and funded by ministers to national design standards. All schemes are required to take account of upstream and downstream impacts. River basin planning will provide the strategic forum within which the strategy can be developed. To an extent, amendment 28 betrays the spirit of participation that underlies part 1, which I do not believe to be Bruce Crawford's intention. We want an all-embracing and holistic approach to flood management. I ask Bruce Crawford not to move amendment 28, as it would not sit with river basin management planning as a whole.
Amendment 42 would introduce a new section in the bill requiring SEPA to prepare a register of flood-prone areas. I do not regard the amendment as necessary; in fact, it is potentially damaging. Section 25 of the Environment Act 1995 states:
"(1) Without prejudice to section 92 of the [1970 c. 40.] Agriculture Act 1970 (provision of flood warning systems), SEPA shall have the function of assessing, as far as it considers it appropriate, the risk of flooding in any area of Scotland.
(2) If requested by a planning authority to do so, SEPA shall, on the basis of such information as it holds with respect to the risk of flooding in any part of the authority's area, provide the authority with advice as to such risk."
SEPA already assesses flood risk in Scotland. It does that job very well and, increasingly, to a very high technological standard. I assume that colleagues have seen, as I have, the maps that SEPA produces of flood-risk areas. Many others, including planning authorities and insurance companies, use those maps. My greatest concern about the amendment is that it would give a statutory basis to the designation of particular parts of Scotland as officially at risk of flooding. That could have considerable impact on insurance premiums.
The most appropriate place in which to refer to this pre-existing body of work is section 2. We should incorporate in the relevant enactments that I have just cited a reference to sustainable flood management. I hope that, given that assurance, colleagues will withdraw or not move their amendments. At stage 3 we will lodge amendments that address members' concerns, which I share.
I invite Bruce Crawford to respond to the debate and to indicate whether he intends to press amendment 19.
I say to Des McNulty and Angus MacKay that it is good to be back—I think.
Sarah Boyack's amendment, and Des McNulty's, complement what I am trying to achieve. I have been accused of trying to impose a King Canute-style approach on the minister. However, if we leave the minister with few powers to take the holistic approach that he supports, I believe that when dealing with flooding in the future he will be more like the little boy with his finger in the dyke than King Canute.
Angus MacKay referred to my unionist credentials. I am happy to learn from all small nations in Europe, including our neighbours south of the border.
I agree with everything that the minister said in laying out the holistic approach that he wants to take. However, what really matters is how that is achieved. I do not think that the river basin planning process will be strong enough to make the changes that will be required in national policy to underpin what is intended in the bill. The river basin planning process cannot decide on policy in farming and agri-environment. We could use the rural development scheme to target money so that, for example, farmers were paid to create flood plains. A river basin plan cannot do that, but a minister can.
Another issue is the future of housebuilding. A river basin plan cannot introduce or circulate to local authorities national planning policy guidelines, which decide their planning policies. Only a minister can do that, and only in that way can we start to affect what local authorities do in relation to housebuilding for the future.
Ministers set the policies for Scottish Enterprise Tayside and all the other local enterprise companies throughout Scotland. A river basin plan cannot do that, and the targeting of that money might affect floods in the future.
Most important, the minister should set a climate change strategy for Scotland. A river basin plan cannot do that, but a minister can, and that is the level at which we need to start talking about making changes in policy development to address proper sustainable flood management. The minister gave a prime example when he said that he is going off shortly to discuss issues of flood management and protection. If the minister were responsible for producing a sustainable flood management plan for Scotland, that would already be in the bill. That is exactly why we need to be doing such work and giving the powers to the minister. If we do not do that, we are, in effect, asking him to stick his finger in the dyke while we continue with the sandbags and canoe approach.
I was heartened to hear the minister talk reasonably about how he might deal in section 10 with the intention behind amendment 28; I look forward to seeing how that would work. However, my amendments would ensure that the minister was required to produce a plan, rather than leaving the situation unclear.
The question is, that amendment 19 be agreed to. Are we agreed?
No.
There will be a division.
For
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Harper, Robin (Lothians) (Green)
McLeod, Fiona (West of Scotland) (SNP)
Against
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Radcliffe, Nora (Gordon) (LD)
Abstentions
Scott, John (Ayr) (Con)
The result of the division is: For 3, Against 5, Abstentions 1.
Amendment 19 disagreed to.
I allowed the debate on the first group of amendments to go on for a while, because the question of floods is key. However, I appeal to members to be as concise as possible in dealing with further amendments so that we can make progress.
Amendment 20 is grouped with amendments 22, 38 and 39.
Amendments 20 and 22 are geared towards linking the bill to all the elements of the water framework directive, one of which is the notion that good water quality will contribute to securing the drinking water supply for the population. Scotland is in the middle of implementing the requirements of the drinking water directive—more effectively in some areas than others.
The water framework directive is framed with the fundamental objective that bodies of water that are used for the abstraction of drinking water should be identified. Member states should then ensure compliance for each body of water in line with that directive. The way in which Scotland implements that will be important for the public health of our country.
Paragraph 3 of article 7 of the directive states:
"Member States shall ensure the necessary protection for the bodies of water identified with the aim of avoiding deterioration in their quality in order to reduce the level of purification treatment required in the production of drinking water. Member States may establish safeguard zones for those bodies of water."
That is a key part of the European directive, which the bill is supposed to implement, and it is appropriate that we ensure that the bill includes it. I do not understand why ministers have chosen not to put that in place.
The spirit of openness and transparency is an important characteristic of the water framework directive. With amendments 38 and 39, I am trying to bring together environmental protection and public health by identifying and making clear any threat to the integrity of a body of water used for the abstraction of drinking water that would be a threat to public health. All threats should be identified and it is incumbent on all levels of government to do so and to work with communities to mitigate them.
Among the factors that could be identified under the amendments are cryptosporidium in certain catchments, pesticides in others and metals such as lead in others. Consumers should have access to relevant information about their drinking water and be aware of its quality. It is also important that people are informed about water quality and that there is a mechanism to ensure that that information is not just released at times of crisis but as part of a continuous process. The idea of having water quality reports is not new or unique; they are produced in several jurisdictions in North America, Australasia and other places where statutory reporting systems for drinking water quality are in place. Bearing in mind the problems that we have experienced in the west of Scotland, what I am trying to do with these amendments makes sense.
I move amendment 20.
I would like to know why amendment 39 specifies "six monthly intervals" for the publishing of the reports, as opposed to any other period of time. I do not know whether that is too often or not often enough.
The proposal in amendment 39 would cost a significant amount. Who would pay for the analysis?
I ask Des McNulty to respond to those points when he winds up the debate.
We are in agreement with Mr McNulty on certain aspects of his amendments. Perhaps I should make clear the impact that the bill, as drafted, would have on bodies of water that are the source of drinking water.
Section 6 provides that such bodies of water must, in the first instance, be identified. We will consider amendments to that section in due course. It is important to note that, when we say "such waters", we mean all waters that are a source of drinking water, whether the supply is public or private, which is important in relation to John Scott's point on amendment 39.
Once the bodies of water have been identified, we would use the powers that would be given to us in section 8 to ensure that the condition of the waters is monitored to the standards that are required by article 7 and annexe V of the water framework directive. Section 9 would require us to set environmental objectives for bodies of water that have been identified under section 6. I refer members to the Executive's amendment 16, which would incorporate an explicit reference to article 7.3 of the water framework directive, which reads:
"Member States shall ensure the necessary protection for the bodies of water identified with the aim of avoiding deterioration in their quality in order to reduce the level of purification treatment required in the production of drinking water."
I hope that members will agree that, with amendment 16, we have acted to achieve the purpose behind the other amendments in the group, which I will now deal with individually.
Amendment 20 would insert a new leg to the definition in section 1(2) of
"protection of the water environment"
by adding:
"avoiding a deterioration in the quality of water in bodies of water used for the abstraction of drinking water".
That amendment would be unnecessary in the light of what I have said. Subsection (2) already makes it clear that
"‘protection of the water environment' includes … preventing further deterioration of … aquatic ecosystems".
In that context, "aquatic ecosystems" includes all bodies of water, whether or not they are sources of drinking water supply.
Amendment 22 would insert a new provision in section 1(3). Subsection (3) establishes the wider aims of section 1, and the new aim under amendment 22 would be
"a reduction in the level of purification treatment required in the production of drinking water".
That amendment would be unnecessary, because amendment 16 would provide an explicit link to article 7.3 of the water framework directive. Amendment 16 would have more practical impact because it would be inserted in section 9, which deals with environmental objectives.
Amendment 38 seeks to amend section 6 by providing that along with the order designating waters that are the source of drinking water must come a description of the factors that threaten the quality of that water. That amendment also is unnecessary, because section 5(2)(b) refers to
"a review of the impact of human activity on the status of surface water and groundwater".
Section 5(2)(a) would require
"an analysis of the characteristics of the water environment"
to be carried out and thereafter continually reviewed. Such a characterisation would include the analysis of all human impacts and activity on each body of water. Therefore, a thorough analysis of the pressures and impacts would be prepared for all water bodies, including those that are the source of drinking water—which is what we are discussing in this context—and would be subject to continuous review. Such analyses would be reported on under river basin management plans.
At the heart of the bill and of planning for the water environment is the inclusion of the best possible information about the pressures that are on that environment. Those pressures may relate to "agricultural activities", "mining activities" or "industrial activities", which are cited in amendment 38, but all those activities are part of wider "human activity", and would be provided for under section 5; monitoring those pressures would be provided for under section 8. Those provisions render Des McNulty's amendment 38 unnecessary and redundant.
Amendment 39 says:
"Scottish Water must … at six monthly intervals … publish a report on the water quality of each body of water identified"
under section 6. I argue that that, too, is unnecessary. As I have explained, and as, I hope, members have taken on board, the quality of all bodies of water in Scotland will be reported on, assessed and continuously reviewed as part of the river basin management planning process.
Amendment 39 would introduce an added complication, to which I think John Scott partly alluded. As I said at the outset, we are talking about all water supply and sources of abstraction, whether public or private. Amendment 39 would force Scottish Water to produce reports about the quality of water in bodies of water in which it has no interest—in other words, in private supplies or sources of drinking water. It would be inappropriate to impose such a duty on Scottish Water, as that would lie outwith its statutory functions.
Given that all the points that Des McNulty has raised in this group of amendments are incorporated either in the water framework directive or elsewhere, I ask him to withdraw amendment 20 and not to move amendments 22, 38 and 39.
I would like the minister to clarify one point before Des McNulty responds to the debate. Would the reports to which you referred be made publicly available?
Yes.
When we prepared amendments 20 and 22, we were not aware of the contents of Executive amendment 16. The minister is clear about the fact that paragraphs 2 and 3 of article 7 of the water framework directive would be fully incorporated in the bill, so I am content. I will seek to withdraw amendment 20 and not move amendment 22.
I am much less happy about the minister's assurances on amendment 38. He pointed to section 5(2), which refers to the characterisation of river basin districts, but that is not the same as what I ask for. For identified bodies of water that are linked to water catchment, an enabling process should exist to identify contamination threats, whether from agricultural, mining or industrial activities. Scope also exists to add factors. I am concerned because ministers say that they have insufficient powers to deal with those threats. Amendment 38 would be a positive step towards establishing a mechanism that would at least identify contamination threats. The minister did not refer to public health issues, which are crucial. I am not minded not to move amendment 38, which would add something to the bill.
As for amendment 39, the minister said that he would publish more information, but I would like to know what information would be produced. I will not move the amendment, as mechanisms exist to provide more information and need not be part of the bill. However, it would be helpful if the minister were to write to us before stage 3 to say how that information would be produced and in which formats we might receive it. I will not move amendment 39, but I will move amendment 38 at the appropriate time.
Amendment 20, by agreement, withdrawn.
Amendment 21 moved—[Bruce Crawford].
The question is, that amendment 21 be agreed to. Are we agreed?
No.
There will be a division.
For
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Harper, Robin (Lothians) (Green)
McLeod, Fiona (West of Scotland) (SNP)
Scott, John (Ayr) (Con)
Against
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Radcliffe, Nora (Gordon) (LD)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 21 disagreed to.
Amendment 22 not moved.
We are close to the time at which we will conclude our stage 2 consideration for today, but we have time to deal with amendment 23, which is in a group on its own. I ask Nora Radcliffe to be as concise as possible in dealing with the amendment.
The intention of amendment 23 is simple. The water framework directive is intended to maintain and improve water quality, but that cannot be done without a baseline. Amendment 23 would set a baseline from which we would take our measurements and against which we would decide whether standards were better or worse.
It is important to have a baseline in the bill and the amendment suggests
"the date of Royal Assent of this Act"
as the point at which we could set the baseline and from which we would take measurements.
I move amendment 23.
I ask other members to be as concise as possible in commenting on the amendment, as the minister has a pressing engagement elsewhere.
I presume that the fact that some assessments might take place several months or a year before the date that has been mentioned will make no difference to the meaning of amendment 23. Would I be right in assuming that the latest assessment would be taken as the standard?
Perhaps the amendment makes sense, but I do not understand it. If we are trying to define what would constitute further deterioration, where is the standard, to which the amendment refers, set down? What would happen if, after the date of royal assent, we decided to change the standard or if the standard were changed by individual or multiple bodies in some other context? Would the legislation bind us to a standard that might be lower than the new standard?
I think that amendment 23 is perfectly reasonable.
The point is important in the wider European context. If we set standards in advance of other European countries, we could be found to be in breach of those standards and subject to infraction procedures.
As members are aware, the prevention of the deterioration of our water environment is one of the prime purposes behind the bill and is explicitly included in section 1. That being the case, I do not believe that amendment 23 is necessary. Further, it would not be wise to accept it as it would set Scotland apart from its European partners.
The water framework directive establishes the prevention of the deterioration of the water environment as one of its fundamental objectives, but it does not establish a date on which the no-deterioration requirement would kick in. I do not think that it would be sensible to set a different date for Scotland from that which will be set for the rest of Europe. As Angus MacKay said, that might put our water users at a competitive disadvantage compared with their compatriots in the rest of the EU. As I said in response to SNP questions in the stage 1 debate, we do not want to gold-plate the legislation to Scotland's competitive disadvantage.
What underpins the bill is the fact that we do not know at the moment the true state of the water environment. We do not know what the standard that is referred to in the amendment is at the moment for most of Scotland's water, but it is important that we conduct a characterisation of each river basin district, as I said in the debate on the previous group of amendments. There would be a characterisation under section 5(1) and a review under section 5(3), done in accordance with the technical specifications that are set out in annexes II and III of the directive. Human activity and its impact on the water environment will form part of the characterisation process. Only when we have done the characterisation and supplemented it with the on-going enhanced monitoring that will be introduced by section 8 will we be in a position to determine what the benchmark standard might be. We would have to go through that process before we could set a date. That subject is exercising our colleagues in member states across Europe.
A lot of hard work, involving sophisticated science, must be done during the characterisation process and in the subsequent monitoring process before we can set a date. To designate the date of royal assent as the date from which a reduction in the standard would be measured would not be appropriate. Having given all those assurances, I ask Nora Radcliffe to withdraw amendment 23.
Does that mean that you see the value of having some sort of fixed point when there is a sensible opportunity to set one, and of setting a benchmark at the appropriate stage?
The first benchmark date that we have set—which is a common date, set across Europe—is the date for the publication of a river basin management plan. The specific requirement is for that to take place in 2009 and that is what has been laid down.
It seems important to have a benchmark or fixed point, although I accept that the one that I have suggested in amendment 23 is perhaps not appropriate. It would be helpful for the committee to know the timetable for the characterisation that we have been discussing. That would give us a better understanding of when benchmark setting might be appropriate. In light of what the minister has said, however, I seek leave to withdraw amendment 23.
The bill specifies that the characterisations must be done by a date in 2004. There is then the run-up to the publication of management plans in 2009.
Amendment 23, by agreement, withdrawn.
I propose that we conclude our consideration of the Water Environment and Water Services (Scotland) Bill for this meeting. We will of course return to it next week and in subsequent weeks. I thank the minister and his officials, and Sarah Boyack, for their attendance and contribution.
I suspend the meeting for a couple of minutes in order to allow one ministerial team to depart and another to arrive.
Meeting suspended.
On resuming—