Water Environment and Water Services (Scotland) Bill: Stage 2
Section 3—The water environment: definitions
I welcome the Deputy Minister for Environment and Rural Development back to the meeting after our brief suspension. I also welcome various officials from the Scottish Executive.
We are about to consider amendment 115, in the name of John Scott, which would amend section 3. Before we begin, I appeal to members to be as concise as possible, because we have already taken some time over previous amendments. I hope to make substantial progress today, so I propose that we consider amendments until 1 o'clock. Do members agree?
Members indicated agreement.
Amendment 115 is grouped with amendment 116.
It is essential that, in coastal zone management, different types of areas and bodies of water are clearly defined and that information on them is readily available, particularly for the future development of fish farming. Such information would also be of value to all other users of coastal waters, including fishermen, marine biologists and pleasure craft users. Amendments 115 and 116 would make such maps readily available.
I move amendment 115.
I suppose that amendment 115 begs the legitimate question of why the bill will impose a duty on ministers to deposit maps that set out the boundaries of transitional waters—which we discussed last week—but will merely give them discretion to provide the same maps of coastal waters. The answer is simple: it is easier to map coastal waters than it is to map transitional waters. For that reason, the Scottish Environment Protection Agency might without reference to ministers be able to map the extent of such waters, which is why the bill will allow the use of the discretion. I understand that mapping transitional waters is more difficult, which explains why the bill will in that regard impose a duty on ministers; however, it is not the case that coastal waters will remain unmapped. I hope that, with that reassurance, John Scott will seek to withdraw amendment 115.
Amendment 116 seeks to amend section 3(10)(c) and would require ministers to issue revised maps where there appear to be changes to the limits of coastal or transitional waters; however, the bill as drafted will give ministers discretion to do so. In that context, amendment 116 is unnecessary, because SEPA should be able to make the relevant changes without referring to ministers. After all, under the characterisation process, SEPA will have the duty to identify and map all water bodies. A power to ensure that we can guide SEPA is all that we need. As I pointed out, we expect SEPA, without reference to ministers, to map coastal waters; however, as transitional waters are more complex for the reasons that we discussed last week, we feel that a duty is required.
I invite John Scott to respond to the debate and to indicate whether he wishes to press amendment 115.
As you want me to be brief, I will say merely that I want to press amendment 115.
The question is, that amendment 115 be agreed to. Are we agreed?
No.
There will be a division.
For
Crawford, Bruce (Mid Scotland and Fife) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
Scott, John (Ayr) (Con)
Against
Macmillan, Maureen (Highlands and Islands) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Radcliffe, Nora (Gordon) (LD)
Abstentions
Harper, Robin (Lothians) (Green)
The result of the division is: For 3, Against 4, Abstentions 1.
Amendment 115 disagreed to.
Amendment 116 moved—[John Scott].
The question is, that amendment 116 be agreed to. Are we agreed?
No.
There will be a division
For
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)
Abstentions
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Harper, Robin (Lothians) (Green)
The result of the division is: For 2, Against 5, Abstentions 2.
Amendment 116 disagreed to.
Section 3, as amended, agreed to.
Section 4—Establishment of river basin districts
Amendment 34 moved—[Nora Radcliffe].
The question is, that amendment 34 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)
Macmillan, Maureen (Highlands and Islands) (Lab)
Radcliffe, Nora (Gordon) (LD)
Scott, John (Ayr) (Con)
Against
MacKay, Angus (Edinburgh South) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
The result of the division is: For 6, Against 3, Abstentions 0.
Amendment 34 agreed to.
Amendment 35 moved—[Nora Radcliffe].
The question is, that amendment 35 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)
Macmillan, Maureen (Highlands and Islands) (Lab)
Radcliffe, Nora (Gordon) (LD)
Scott, John (Ayr) (Con)
Against
MacKay, Angus (Edinburgh South) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
The result of the division is: For 6, Against 3, Abstentions 0.
Amendment 35 agreed to.
Amendment 36, in the name of Nora Radcliffe, is grouped with amendments 36B, 36A, 127, 91, 92, 128, 93, 98, 132, 147, 46, 59, 148, 149, 150, 139, 61, 62, 106 and 69. Has nobody shouted "House!" yet? Before we consider the amendments, I should point out that several amendments would pre-empt others if agreed to: agreement to amendment 147 will pre-empt amendment 46; agreement to amendment 46 will pre-empt amendments 59, 148 and 149; and agreement to amendment 139 will pre-empt amendment 61.
I invite Nora Radcliffe to move amendment 36 and to speak to her other amendments and others in the group.
Amendment 36 is important because it would be meaningless to talk about a river basin district that covered almost the whole of Scotland and it would be difficult to get proper involvement in planning for a river basin district for the whole of Scotland. If the bill is to be implemented with the active participation that is a feature of it, we must break down any river basin district that covers virtually the whole of Scotland. Amendment 36A, in the name of Maureen Macmillan, would improve my amendment by replacing the phrase "geographical area" with the word "catchments", which is more sensible. If we are considering the water environment, it is obvious and sensible to act in terms of river catchment areas.
The purpose of amendment 128 in my name is to say that a sub-basin plan should contain the same information and requirements as a river basin management plan. It is crucial that the bill include a requirement that we take sub-basin districts and planning seriously, because those will be the front line where the real work of implementing the water framework directive will be. It is important that we do it properly. The other amendment in my name is amendment 132, which is a consequential amendment.
I move amendment 36.
I invite John Scott to speak to and move amendment 36B, and to speak to amendment 127 and other amendments in the group.
Amendment 36B agrees with Nora Radcliffe's amendment 36, but seeks to broaden its scope; there is nothing more complicated to it than that. The amendment incorporates the intention behind Maureen Macmillan's amendment 36A and tries to produce an amalgam of everyone's position, which I hope will be agreeable to the minister. What amendment 127 seeks to do is similar in principal to what Nora Radcliffe is trying to introduce into the bill on sub-basin management plans, which will need to be created, as Maureen Macmillan and others have said.
I move amendment 36B.
I invite Maureen Macmillan to speak to amendments 36A, 91, 92, 93 and 46, and to any other amendments that she wishes to address.
Amendment 36A picks up the same point that Nora Radcliffe and John Scott made, which is that SEPA must—for all the reasons that Nora Radcliffe gave about involving people from the bottom up—divide each river basin district into sub-basins. The second part of the amendment defines a sub-basin as:
"an area … comprising a particular catchment or geographical area"
and so on. No, that is the wrong amendment—sorry. Which amendment are we on?
Amendment 36A.
Yes. Amendment 36A seeks to replace "geographical area" with "catchments". The other amendment is—I have far too many bits of paper here.
The other amendments that you lodged are amendments 91, 92, 93 and 46.
Those amendments are all about sub-basin plans. I do not think that there is much to add to what Nora Radcliffe said. They amendments are consequential on the idea of sub-basin plans being included on the face of the bill. Amendment 93 has the same intention. It says:
"insert
".
I move amendment 36A.
I invite Fiona McLeod to speak to amendments 98 and 139.
Am I to speak only to those amendments?
You can address any of the amendments in the group. Amendments 98 and 139 are the only amendments in your name.
I will address first the amendments in my name. Amendment 98 seeks to ensure that sub-basin plans are included in schedule 1, which is consequential on the committee's cross-party support for the establishment of sub-basin plans. If we go ahead with the intention that we expressed in our stage 1 report to ensure that sub-basin plans are part of the mandatory process, schedule 1 should be amended accordingly to ensure that such plans are mentioned in it.
I find amendment 139 in my name more difficult to argue for, because it is consequential on amendment 140, on the establishment of advisory groups on sub-basin plans. Rather than argue for amendment 140 at this point, I will say only that amendment 139 is consequential on amendment 140, which seeks to set up sub-basin advisory groups.
I will address the minister's amendments 148, 149 and 150. I hope that I have the right numbers.
The minister will move amendments 148, 149, 150, 147, 59, 61, 62 and 69.
Without referring to the numbers, I will address my remarks to the minister's amendments in the section on the establishment of sub-basin plans.
I find the minister's amendments quite appealing. Obviously, he has accepted the committee's view as expressed in its stage 1 report and the view that was expressed in the evidence that we took that sub-basin plans are essential to deliver the water framework directive and therefore essential to deliver the bill. However, the amendments are not persuasive enough, because they do not go far enough. If they were agreed to, establishment of sub-basin plans and designation of areas for the sub-basin plans would happen entirely at SEPA's behest. The committee should be more minded to support Nora Radcliffe's amendment 36, as amended by Maureen Macmillan's amendment 36A, to ensure that the recommendations that we made at the end of our stage 1 deliberations are achieved.
I invite Des McNulty to speak to amendment 106 and any other amendments in the group.
Amendment 106 is a consequential amendment, so I do not want to say anything about it.
Okay. I invite the minister to speak to amendments 147, 59, 148, 149, 150, 61, 62 and 69 and to any other amendments in the group.
As the convener said, if, for example, amendment 46 is agreed to, it will pre-empt many of our amendments.
Members have an important choice. To follow on from what Fiona McLeod said, we have indeed accepted the committee's views and lodged amendments to substantiate the provision. That was done in response to the committee's wish to expand the provision that is made in the bill for public participation. That is important background. We have considered whether we need to do more in the bill to deliver our policy objective of having a network of advisory groups in each river basin district. Members will recall that Ross Finnie and I gave a commitment to consider that matter during the stage 1 debate on the bill. I can now say that we agree with the committee that we need to do so.
We have also lodged amendments to make it clear that advisory groups will no longer be required to have a pan-district remit, which is an important provision. The amendments will provide for a network of groups covering the whole district, but not in themselves overlapping. The amendments on advisory groups make it clear that SEPA will determine the remit of each group and that the remit can be fixed by reference to sub-basin plans. We shall discuss the strengthening of advisory groups when we discuss a later group of amendments, but that is important background information for the committee's deliberations on the amendments.
Fiona McLeod is wrong about differences. There are differences between amendments 36, 36A and 139, which I will come to, but it is wrong to say that there is any difference in relation to the discretion given to SEPA. Both sets of amendments properly give discretion to SEPA.
Amendment 147, which replaces amendment 58, is the main amendment in the series. It is designed to address concerns raised in relation to sub-basin plans in the committee's report. I am conscious of strictures to be brief, but the section is long and important, so if the committee does not mind, I will deal with it in detail.
We had originally planned to lodge amendments at stage 3, but we have managed to prepare them more quickly than we had expected and have been able to lodge them at stage 2—I hope that that will be helpful. Amendment 147 inserts a requirement in the bill for SEPA to establish sub-basin plans for the entirety of each river basin district—there is no difference in that respect from what Maureen Macmillan and Nora Radcliffe proposed. Therefore, SEPA will be responsible for determining the precise number of sub-basin plans and the areas to which they relate. That is the approach that the committee asked us to take and SEPA has made it clear that that was the way in which it intended to proceed. Therefore, it makes sense to include such provision in the bill. I hope that members will appreciate that change.
The bill as introduced had an important flexibility that amendment 147 does not remove—the ability of SEPA or a responsible authority to prepare a sub-basin plan relating to a particular aspect of water management within the district. The fact that amendment 147 makes such provision distinguishes it from other amendments. It means that it will be possible to draw up thematic sub-basin plans that deal with a range of cross-sub-basin planning issues, such as diffuse pollution and sustainable flood management, where such plans would add value to the process. It is important for SEPA to retain that flexibility. We want SEPA to be able to consider thematic, as well as catchment-based, sub-river basin planning.
Amendment 59 is consequential to amendment 147—it tidies up the changes resulting from that amendment. Amendment 148 makes it clear that the examples of issues that could be covered by sub-basin plans that are given in section 15(2) apply to the discretionary, thematic sub-basin plans that I mentioned. Amendment 149 makes it clear that the areas to which such thematic sub-basin plans relate need not be limited to the areas that are defined by SEPA in relation to the compulsory geographic sub-basin plans. We are leaving that option open. For example, it might be deemed necessary to prepare a plan for a smaller area with more acute problems—such an area could be described as a sub-catchment area. It is important for SEPA to have that option. I would argue that that provision adds value to the process of sub-river basin management planning.
In addition to catchment-based sub-river basin planning, there will be the opportunity to prepare thematic sub-river basin management plans to deal with issues such as diffuse pollution and sustainable flood management.
Amendment 150 seeks to stop any problems arising from those arrangements by requiring that any sub-basin plans that are prepared under new sections 15(1)(a) and 15(1)(b) must not be inconsistent with anything that is contained in the river basin plan that they supplement. That is an important clarification, which I know members were in favour of. Amendment 150 also specifies that sub-basin plans prepared under new paragraph (b) that relate to a particular area must not be inconsistent with the geographic sub-basin plans prepared under new paragraph (a). That is also a useful provision.
In that context, it is probably opportune to consider amendment 106. At present, Scottish ministers and every public body and office holder must have regard to the river basin management plan in exercising any functions that affect a river basin district. Amendment 106 would require that regard would also have to be paid to any sub-basin plan for that district. I sympathise with those intentions and I am prepared to accept amendment 106 in principle. However, I would like to give further consideration to the drafting. In conjunction with Des McNulty and the committee, I undertake to lodge an amendment to that effect at stage 3. Therefore, I ask Des McNulty not to move amendment 106.
I hope that that gives the committee all the assurances that it needs, which Fiona McLeod and others have mentioned. The proposed alterations represent a significant strengthening of the role of sub-basin plans as laid down in section 15 and, as such, represent the fulfilment of a commitment that Ross Finnie and I gave at stage 1.
Amendment 61 is intended to require SEPA to consult such river basin district advisory groups as it thinks fit about proposed sub-basin plans, and to take into account their views. It does so by requiring SEPA to consult such other persons as it sees fit under section 11(6)(i), in addition to those already referred to in paragraphs (a) to (h) at present. Amendment 62 is designed to achieve the same effect for responsible authorities; that is, they must consult those they think fit on any proposed sub-basin plans.
In practice, it is envisaged that these amendments will require SEPA, or another responsible authority, to consult such river basin district advisory groups as it thinks fit about proposed sub-basin plans and to take into account their views. Again, that is another important consideration. I recommend that the committee accept amendments 61 and 62, given the enhanced role that the amendments will then offer advisory groups and the link that will be established between sub-basin plans and advisory groups. That, taken in conjunction with the commitment to come back at stage 3 on ministers, public bodies and others having regard to the sub-basin plan for the district in question, completes the picture.
Amendment 69 amends section 19(2)(d). Currently, ministers can use the regulation-making power in that section to require SEPA to consult or consider the views of specified persons before taking any procedural step in relation to a river basin management plan. The amendment would allow ministers to require SEPA to consider the views of specified persons before taking any procedural step in relation to sub-basin plans. The amendment also ensures that, where a responsible authority establishes a sub-basin plan, ministers can make regulations requiring it to consult and involve others, in the same way that ministers can make such regulations in relation to SEPA. I hope that the committee will support amendment 69.
Amendment 36 would compel SEPA to divide each river basin district into sub-basins, which are defined as
"areas designated by SEPA"—
again, there is no conflict between us there—
"comprising a particular catchment or geographical area, including relevant bodies of groundwater, surface water, wetlands and bodies of coastal water."
We have given considerable thought to the issue of sub-basin plans and advisory groups. In that context, and in order that our amendment can provide for the thematic approach as well as the compulsory geographic sub-basin planning, which is an important distinction that adds value to the process, I ask Nora Radcliffe, Maureen Macmillan and John Scott to withdraw amendments 36, 36A and 36B because they have already been covered. Our approach is holistic and meets all the committee's objectives.
Amendment 46 seeks to compel SEPA to designate sub-basins within each river basin district, and to prepare a plan for each sub-basin. That would be unnecessary duplication, as the effect of applying section 10(2) to sub-basin plans is that those plans would require to address all of the matters covered by the river basin management plan. There is already provision in section 10(2) to require that sub-basin plans address all of the matters already covered by the river basin management plans, so there is nothing that is considered at river basin management level that is not subsequently provided for in the sub-basin plans.
Amendment 46 would remove some of the current flexibility from the bill, as it would remove from SEPA the ability to create the thematic, rather than simply geographic, plans that I want established. For example, as we have discussed at length, SEPA could create a thematic sub-basin plan on water resources or, if necessary, flooding. That important consideration is not provided for in amendment 46. As we know, if amendment 46 were passed, it would negate all the rest of our provisions, including SEPA's ability to create thematic sub-basin management plans on sustainable flood management. With that very important consideration in mind, I ask Maureen Macmillan not to move amendment 46.
Given the Executive's amendments, I would argue that amendment 127 is not necessary. It also raises difficulties in so far as it requests
"a sub-basin management plan for each sub-basin district"
without making clear how the districts would be defined or what a sub-basin management plan is intended to cover. Given that I have set that out in the Executive's amendments and that the Executive is going along that road, I ask John Scott not to move amendment 127.
Amendment 91 is also unnecessary. The purpose of the amendment is to establish sub-basin plans, which the Executive is going to do, but the amendment uses drafting that is inappropriate to the rest of the bill. I ask Maureen Macmillan not to move amendment 91. If she does not agree, I would have to ask the committee to reject that amendment, as it does not define the boundaries of the sub-basins to which it refers, nor does it make clear what the boundaries are intended to cover. I suggest that the Executive's amendments to section 15 address those issues.
Although I appreciate the intention behind amendment 92, I do not think that it is helpful. It would create an undue burden on those who are preparing sub-basin plans, by making them report on issues that are better left to the river basin management planning.
Amendment 92 would force sub-basin plans to include
"A summary of the characterisation of the river basin district"
It would also force them to include
"A summary of significant pressures"
on, for instance, surface water or groundwater for the entire river basin district. I think that it is self-evident that that is not appropriate for sub-basin management plans. Given the impractical consequences of the nature of amendment 92, and the fact that the Executive has lodged the amendments to which I have referred to require sub-basin management plans to incorporate everything that is already provided for in the river basin management plan, I ask Maureen Macmillan not to move amendment 92.
Amendment 128 is similar to amendment 92, in that it requires that a sub-basin plan must include the same matters that a river basin management plan must include, which are set out in part 1 of schedule 1.
Amendment 128 differs from amendment 92 in one important respect. It treats references in part 1 of schedule 1 to the river basin district as if they were references to the area that is covered by the sub-basin plan. That would avoid the problem of sub-basin plans having to contain information that pertains to the entire river basin district, which was the case with amendment 92. However, we continue to have significant concerns about amendment 128 as it is drafted. Executive amendment 147 makes provision for two types of sub-basin plan—the compulsory geographic plan and the other, optional thematic plan to which I have referred.
However, amendment 128 contains the wording
"as if references in that Part of that schedule to the river basin district were references to the area covered by the sub-basin plan."
That does not make sense in the context of the existence of sub-basin plans that deal with thematic issues, although it does so in relation to those that deal with geographic issues. I do not think that it would be useful to be so prescriptive in determining what is included in a sub-basin plan.
Like amendment 92, amendment 128 could create an undue burden for sub-basin plans to report on issues that are better and more appropriately left to river basin management planning. The Executive does not wish to see that happen. I ask Nora Radcliffe not to move amendment 128, on the basis that amendment 147 does what she seeks to do—with added value, as it makes provision for the thematic as well as the compulsory geographic approach.
Amendment 93 would require sub-basin plans to contain such maps, diagrams, illustrations and descriptive matter as Scottish ministers may direct or as SEPA thinks appropriate for the purpose of explaining any matter in the plan. I understand the reasoning behind the amendment, but I do not think that it is necessary. The amendments that we have lodged make provision for two types of sub-basin plans—geographic and issue-based plans—but seek to maximise the flexibility that SEPA has in preparing them. I see no benefit in our being unduly centralist in our approach to sub-basin plans at this stage. If, in the light of practical experience, it becomes necessary for Scottish ministers to impose an obligation on SEPA along the lines of that proposed by Maureen Macmillan, we can do so by making the appropriate regulations under section 19.
The river basin management plan must meet certain statutory requirements. The powers of guidance that Scottish ministers have under section 10(3) are appropriate to the river basin management plan. Sub-basin plans will be much more flexible documents on which SEPA and/or the responsible authorities will take the lead. I recommend that the committee reject amendment 93.
Amendment 98 seeks to replace the requirement in schedule 1 for river basin management plans to include
"Information as to any sub-basin plan."
with a requirement for them to include
"A summary of all sub-basin plans."
That is unnecessary, as the existing requirement would result in information pertaining to the sub-basin plans being included in the river basin management plan. I made that point in relation to amendment 106. Under section 10(2), ministers already have the power to specify any additional matters that they wish to see included in the river basin management plan. We have discussed that issue at length in relation to sustainable flood management. Amendment 98 is superfluous and I recommend that the committee reject it.
Amendment 132 seeks to amend paragraph 8 of schedule 1 to the bill. At present, that paragraph requires that a summary of the publicity and consultation steps that have been taken
"under subsections (3) to (6) of section 11 in relation to the plan and of changes made to the plan in light of the views and representations received on it"
be included in the river basin management plan.
The subsections in question relate directly to the publication and consultation aspects of the river basin management process. Amendment 132 seeks to insert a reference to section 15(1) in paragraph 8 of schedule 1. I argue that such a reference does not sit well there. Section 15(1) gives SEPA the ability to establish sub-basin plans, but paragraph 8 deals with views and representations. Paragraph 7 of schedule 1 requires that the river basin management plan should include information about any sub-basin plan. That provision is wide enough to address the concerns behind the amendment. I ask the committee to reject amendment 132.
As the convener indicated, for it to make any sense amendment 139 must be read in connection with amendment 140. It seeks to remove the requirement in section 15(3) that SEPA or responsible authorities
"must consult such of the persons specified or referred to in section 11(6)(a) to (h) as it thinks fit about a proposed sub-basin plan and must take into account any views expressed by those consulted."
In any other context, such a provision would be ridiculous, but it is not what it appears to be. Amendment 140 would insert a new section in the bill after section 15. The new section would require SEPA or the responsible authority to establish a sub-basin advisory group for each designated sub-basin, with the function—
Minister, could I ask you to leave that until later?
Okay. However, I am going to reject amendment 139 for good reasons albeit that they relate to another amendment.
I turn to amendment 106. I repeat the assurance that I have given to Des McNulty. When we reconsidered the amendment, we saw that it put a brick in the wall that otherwise would not be there, although we had difficulties with the drafting of it. I therefore give the assurance that provision will be made to relate sub-basin planning to river basin management planning in an amendment that we will lodge at stage 3. That amendment will achieve what amendment 106 seeks, but will be drafted in accordance with the rest of the section.
I realise that this is a complex section to which many amendments have been lodged, which is why I have allowed more time on it. However, I did not want the minister to address amendments 139 and 140 because there will be an opportunity to address amendment 140 before members are asked to vote on amendment 139. Members will be able to take the broader context into account at that stage.
I admire the minister's stamina in addressing all those amendments—it was not an easy task, and it is an extremely complicated section. I want to cut through some of this stuff so that I can express why I will support amendments 36 and 36A rather than the minister's amendment 147.
Amendment 36A is important because it seeks to leave out the reference to "geographical areas". Why is that important? Because rivers do not know geographical boundaries. If we are to stick by what we mean, from the mountains to the sea, the only proper way to approach the matter would be through a catchment process, not through a geographical process. A lot of what the minister said, about the thematic stuff being applied, made sense, but it could apply equally to catchment areas as to geographical areas. An amalgam between the two approaches would probably be the best result. In the meantime, to ensure that we get the best result, we must support Nora Radcliffe's and Maureen Macmillan's amendments. If we do so, the Executive will have to lodge another amendment, if required, at stage 3. If the Executive wins now, there will be little chance of getting "catchment" into the bill in place of "geographical". It would make tactical sense to stick with Nora Radcliffe's and Maureen Macmillan's amendments.
There is a basic misunderstanding that I may be able to correct. The geographically based planning would be catchment based, and the thematic planning that I propose over and above that would add value to that process.
If that is the case, that proves that we are considering two amendments that, although they are talking about the same thing, are not expressing it as well as they could. Therefore, a further amendment must be lodged at stage 3. The only way that we can get that is by supporting amendments 36 and 36A, as that will ensure that the Executive will have to produce an alternative. If we support the Executive's amendment today, we will be left with it at stage 3. That is what the Parliament will end up supporting and we will not get the best result.
I am especially attracted to the wording of the second part of amendment 36, which defines sub-basins as
"comprising a particular catchment or geographical area, including relevant bodies of groundwater, surface water, wetlands and bodies of coastal water."
I do not see anything in that amendment that would preclude thematic approaches where they were felt to be sensible.
I invite John Scott to respond to the debate.
Given the foregoing discussion, it seems that my amendment 36B encompasses all that Bruce Crawford requires. That is of importance. It is a catch-all amendment, yet it allows flexibility. I had been minded to withdraw amendment 36B, but now I will press it.
I seek clarification, convener. I understood that the person who moved the amendment at the beginning of a grouping was the person who summed up the whole debate. In this case, that applies to amendment 36, not to amendment 36B.
That is because John Scott's amendment 36B seeks to amend the lead amendment, amendment 36. Give me one second, while I consult.
I am assured that, as John Scott's amendment seeks to amend the lead amendment, he has the right to respond to the debate. While that might appear to be different from normal practice, that is the guidance that I have been given on the procedure.
The question is, that amendment 36B be agreed to.
On a point of order, convener. I am still confused about the procedure. We are deciding whether to agree to an amendment to amendment 36.
Yes.
How can we make that decision unless we have heard from the mover of amendment 36 their opinion of amendment 36B? They may or may not wish to accept amendment 36B.
And there is the question of whether the mover of amendment 36 wishes to press that amendment to a vote.
Yes. It does not make sense.
The mover of amendment 36 had the opportunity to indicate in their initial contribution whether they wished to accept amendment 36B or 36A.
But how could they indicate that without having heard the arguments?
They might have a view.
But the debate would then be about the amendment as amended.
Nora Radcliffe could have chosen to contribute to the open debate prior to the winding-up speeches. After everyone has spoken to their amendments, the mover of a preceding amendment may come back into the open debate to indicate their views.
Have I still got an opportunity to wind up?
If it is helpful to members, and with the committee's agreement, I am prepared to give Nora Radcliffe a brief opportunity to indicate her view on amendment 36B. I emphasise that, during the period of open debate on a group of amendments, there is nothing to stop members coming back into the debate and responding to something that they have heard. Members should take those opportunities when they are presented.
I can understand why John Scott would need to sum up. He is summing up on the original amendment in the grouping. That does not, however, explain why Nora Radcliffe does not get the chance to sum up. Hers is the first amendment in the group.
It is because she can sum up subsequently. Her amendment will either stand as it is or it will be amended.
I am working from the guidance that I have been given by the clerking team, on the correct procedure for considering amendments at stage 2. Following this meeting, I am happy to discuss further with the clerks the correct procedure and to give further guidance at a later stage. However, I am being given the current definitive guidance.
I am prepared to allow some flexibility. Nora Radcliffe may indicate briefly whether she is minded to accept amendment 36B, if that is what members desire, but I emphasise my encouragement to members to come back into the open debate on a grouping if they wish to comment on what they have heard.
In these specific circumstances or under all circumstances?
I move—
Unless you have a point of order—
Sorry, but I would just like to move that Nora Radcliffe be heard.
I ask Nora Radcliffe briefly to indicate her views on amendment 36B.
I support amendment 36A, as I believe that "catchment or catchments" would provide a better definition than "geographical area".
The question is, that amendment 36B be agreed to. Are we agreed?
No.
There will be a division.
For
Scott, John (Ayr) (Con)
Against
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Harper, Robin (Lothians) (Green)
MacKay, Angus (Edinburgh South) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
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 1, Against 8, Abstentions 0.
Amendment 36B disagreed to.
Does Maureen Macmillan want to move amendment 36A?
In the light of what the minister has said, I feel that the minister's proposal is more flexible than Nora Radcliffe's amendment 36 or my amendment to that amendment, so I do not intend to move amendment 36A.
Given what I have just said about the need to ensure that we take a catchment-based approach, I would like to move the amendment.
I would argue—
I cannot reopen the debate at this stage.
I do not want to reopen the debate. I want to say that agreeing to amendment 36A would make the process faulty. That might not be your advice, but it is my advice. Our amendments to section 15 make provisions that would be precluded by the provision in amendment 36A.
As you say, your guidance differs from the guidance that I have been given. In any case, it is still open to members to move the amendment if they want to.
I intend to move the amendment, because I believe that the Executive should lodge an amendment at stage 3 to tidy up the area—
We cannot reopen the debate.
Amendment 36A moved—[Bruce Crawford].
The question is, that amendment 36A 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)
Radcliffe, Nora (Gordon) (LD)
Against
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Scott, John (Ayr) (Con)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 36A disagreed to.
Does Nora Radcliffe want to press or withdraw amendment 36?
I have misunderstood the process. I thought that I would have an opportunity to respond to the debate at this point. As I do not, I will press the amendment, but I might not have done otherwise.
The question is, that amendment 36 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)
Radcliffe, Nora (Gordon) (LD)
Against
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Scott, John (Ayr) (Con)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 36 disagreed to.
Section 4, as amended, agreed to.
After section 4
Amendment 85 not moved.
Section 5—Characterisation of river basin districts
Amendment 117 is grouped with amendment 118.
Amendment 117 is aimed at ensuring that the impact of changing climatic conditions is taken into account in the characterisation of a river. Flooding or drought are likely to have as much impact as human activity on the character of a river and as such should be kept under review because, unquestionably, a river's character can change in a relatively short period of time. I have witnessed that happening.
Amendment 118 would require a social and economic assessment of water use to be made. The amendment is based on the evidence that we heard that suggested that the social as well as the economic impact of change to existing river basin systems should be taken into account before such changes are made. Whether SEPA has the capability to do such work is another matter and local authorities might be better placed to do it, but I believe that it is important that the work is done, as the evidence that we took suggested.
I move amendment 117.
Amendment 117 would require an additional assessment of the impact of natural activity on the status of surface water or groundwater. It is not clear to me—and John Scott's explanation has not particularly helped—how any such impacts would be reviewed in practice and what benefits that might offer. The purpose of the directive, and of part 1 of the bill, which implements the directive, is to protect or restore the water environment to a condition that is as close as possible to its natural condition. That is precisely what we set out to do. It would therefore make no sense to talk about the impact of natural activity on the status of surface water and groundwater, given that we are seeking to restore the natural status of the water.
John Scott might be referring to human impact, but in this context, that has a completely different meaning. Human impact, which we discussed in relation to Des McNulty's amendment 38, is referred to in paragraph 1.4 of annexe II of the directive, which lists all the pressures that must be considered in the characterisation process. The list is long and I will not read it out, but in large part, we have to have direct reference to what the directive already describes. Paragraph 1.4 is a classic example of that as it lists the pressures. On that basis, I recommend that everything that might be deemed to be such a pressure be included by virtue of its inclusion in the directive.
I have sympathy with amendment 118. It attempts to extend the characterisation process, this time to include a social and economic impact assessment of water use. However, we already do that. The economic analysis, which is required by section 5(2)(d), refers to the social and economic aspects of water use, which we have debated. The form of that analysis is specified in annexe III of the water framework directive, which specifies that the analysis should
"make judgements about the most cost effective combination of measures in respect of water uses to be included in the programme of measures under Article 11 based on the estimates of the potential costs of such measures."
That encapsulates better what John Scott seeks to do than does amendment 118. The provision is already there. The bill has to be read in conjunction with annexe III of the directive.
I ask John Scott to withdraw amendment 117 and to not move 118, because their content is provided for in the directive, which is incorporated in the bill.
I thank the minister for his comments and welcome the clarification that he has given. In the light of his comments, I seek to withdraw amendment 117 and I will not move amendment 118.
Amendment 117, by agreement, withdrawn.
Amendment 37 has been debated with amendment 32. Does Nora Radcliffe wish to move amendment 37?
Yes. Amendment 37 is consequential on amendment 32, the principle of which the committee has already accepted.
Amendment 37 moved—[Nora Radcliffe]—and agreed to.
Amendment 118 not moved.
Section 5, as amended, agreed to.
Section 6—Bodies of water used for the abstraction of drinking water
Amendment 38 was debated with amendment 20. Does Des McNulty wish to move amendment 38?
The minister said that he would come back to the committee this week with further clarification on amendment 38. Will the minister be given the opportunity to provide that?
We cannot reopen the debate at this stage. Des McNulty must decide whether to move amendment 38 on the basis of our previous debate.
I have seen some of the information that the minister is prepared to give about how the substance of the amendment will be dealt with through other provisions. On that basis, I am prepared not to move amendment 38.
On a point of order, convener. Des McNulty referred to material that he, as a committee member, has seen in regard to amendment 38. I am a committee member, but I am not aware of having seen any material. That makes it difficult for us to make a decision.
I do not know what material Des McNulty referred to, but we cannot reopen the debate. At this stage, the issue is whether someone wishes to move amendment 38.
I was not reopening the debate but making a point of order.
I cannot tell you what material Des McNulty referred to. Members should simply indicate whether they wish to move the amendment. I am usually prepared to let members say a brief sentence or so, but we cannot reopen the debate.
Amendment 38 not moved.
Amendment 86 is grouped with amendments 119, 120, 123, 96, 130 and 141.
A constant theme in what I have said about the bill is the requirement to have more information about drinking water quality that is put into the public domain more systematically. Members will be aware of the concerns of my constituents and others about the cryptosporidium outbreaks that took place at the beginning of August.
Amendment 86 would require the drinking water quality regulator to provide, free of charge, regular reports on water quality in print and on the internet. When the minister responded to my previous amendment 39, he made the fair point that it would not be reasonable to require Scottish Water to prepare reports on private water supplies for which it is not responsible. Nonetheless, I believe that it is important for customers to have access to accurate information about the state of their water quality supplies.
Amendment 86 is in the format of a probing amendment, in so far as I do not know whether a requirement for six-monthly reports would be the best way of providing that information. If the information is available, updates could be provided almost daily through the internet. However, what I am clear about is that recent events in Glasgow and Clydebank have shown that people want to know about drinking water quality. The experience with Scottish Water so far has been that people will not always be told what they should be told in an accurate and timely manner.
Information technology would allow the information to be widely disseminated. The information is actually available, although it may require some interpretation for people. I believe that the information could be made available via a website.
Amendment 120 arises from my concerns about the proposed new water treatment plant at Milngavie. One issue that has been raised with me is that the authority should take a multi-barrier approach to protecting water quality. Around the world, water authorities use filtration as a last resort to ensure that water quality meets the relevant standards that are required for human consumption. For example, perhaps in the 19th century the water from Loch Katrine reached Glasgow in a relatively pristine condition but subsequent development of the catchment has introduced various risks. The Scottish Executive should have a role in managing those risks, or at least in identifying them.
There are various catchment plans across Scotland, but they are undertaken on a voluntary basis. Those plans should be strengthened and incorporated in the characterisation process and in the setting of environmental objectives, and amendment 120 would establish a system to achieve those aims.
I move amendment 86.
Amendment 119 is self-explanatory. The information, perhaps to a lesser extent than Des McNulty suggested, should be collated, mapped, kept up to date and made available to the public. Apart from anything else, if such information were readily accessible, potential polluters would be more aware that they might be endangering water supplies, especially for drinking water. The more that people are made aware of a water supply, the more likely it is that they will take steps to avoid polluting it, which highlights the need for the maps and information.
I will speak to amendments 123 and 141 together. Other pieces of legislation may cover the outcome that I hope to achieve, but I am not aware of them. Therefore, given that the issue is important, I needed to ensure that the subject of the amendments could be discussed in a proper manner.
Members are aware of the impact of cryptosporidium, especially during the summer and the past few years in Scotland. The outbreaks in Glasgow and Aberdeen grabbed the most headlines. However, they were only the tip of the iceberg of a potential problem with drinking water.
The last report of the drinking water quality regulator for Scotland, which was published in August, shows the scale of the problem. Table B, which is on page 7 of the report and shows high-risk water treatment works for cryptosporidium in Scotland, states that more than a million people could be affected by the bug. All areas are affected, with the largest number of people—just short of 700,000—coming from north Glasgow and the surrounding area. It is a significant issue for the people who live in that area.
It is right that the bill sets objectives to minimise the risk of cryptosporidium entering water that is used for public consumption. Des McNulty referred, rightly, to incidents that happened because sheep in the Loch Katrine catchment area were doing their business close to the loch and it subsequently found its way into the river course. Understandably, Scottish Water has taken action to deal with that, but perhaps specific wording in the bill could deal with such problems.
Of course, the cryptosporidium outbreak was caused not only by the sheep around Loch Katrine, but by the cattle along the aqueducts that led to the Milngavie treatment works. After all, some of the older aqueducts are 130 years old and run a considerable distance. Amendments 123 and 141 would write into the bill a requirement to minimise the risk of cryptosporidium oocysts from water that is abstracted for public use. As I have said, more than a million people are served by water treatment works that are considered to be high risk and the bill must include some way of dealing with the situation objectively and meaningfully.
I support amendment 86. I do not see why the provision should pose any technical difficulties, particularly given the fact that water quality in sewage treatment plants can be tested almost 24 hours a day. As a result, publishing a six-monthly report should present no difficulties. Indeed, we could almost have a daily report.
I also support amendment 86. I am glad that the fact that the committee has overrun in its consideration of the bill has allowed Des McNulty to lodge an amendment stating that the drinking water quality regulator should publish the report instead of Scottish Water. That is only appropriate.
I am struck by the fact that we are able to publish a weekly analysis of the quality of bathing water during the summer months. It is entirely appropriate that the public should be notified of the quality of drinking water. As a result, I am interested to hear from the minister whether such analysis could be done more frequently than every six months.
When members refer to incorporating new provisions in the bill, they should recall the comments that I made about the protection of water bodies that are the source of drinking water in the first week of the committee's stage 2 consideration. Sections 6, 8 and 9 are particularly relevant in that regard. I will not go over the ground again, but I repeat my reassurance to members that the relevant provisions have been included in the bill.
Amendment 86 would require the drinking water quality regulator to publish a report on the water quality of each body of water identified by the order under section 6(1). Given what was said about the quality of bathing water, there is an important distinction to make. Amendment 86 would mean that the regulator had to report within six months of the order being made and at six-monthly intervals thereafter. As Des McNulty correctly pointed out, the amendment avoids one of the problems of amendment 39, which is that it would have forced Scottish Water to produce reports about the quality of all bodies of water across Scotland, including those in which it has no interest. However, amendment 86 creates problems of its own.
The drinking water quality regulator's main concern is—and, as the committee will agree, should be—the quality of the water that is delivered to customers' taps. Amendment 86 would divert the regulator from his or her primary aim of protecting public health by requiring him or her to produce reports about the quality of water in reservoirs and other sources of drinking water across Scotland before treatment has been applied. There are thousands of such bodies of water because they must include sources of public and private supply. As a result, the burden on the regulator would be enormous and inappropriate.
As members will appreciate, the regulator produces annual reports on tap water quality. That has been referred to. He does so after the water is treated and that is how we get a post-treatment report on drinking water quality. SEPA's reports on bathing water quality are done fortnightly but the reports are not analogous because bathing water is not treated.
That is not to say that bodies of water that provide drinking water will not be protected under the bill. Section 5 requires a characterisation of the water environment to be carried out and thereafter continuously reviewed. That characterisation includes an analysis of all the human impacts on each body of water. All bodies of water, including those used to provide drinking water, will undergo a thorough analysis of pressures and impacts. That analysis will be reported on and thereafter developed.
We have discussed the environmental objectives that will be set for such bodies of water, which include the aim of seeking to reduce the treatment required. Programmes of measures will be put in place to achieve those objectives. Therefore, amendment 86 is unnecessary, because provision is already made in the bill. Reference to the drinking water quality regulator is inappropriate in that context.
Amendment 119 seeks to amend section 6(3). It would require SEPA to keep available for public inspection an order made under section 6 and would require ministers to review such orders regularly. Again, I support the intent of the amendment, but it is not necessary. Like all forms of legislation, orders are a matter of public record and are readily available to all parties. Ministers are duty bound to review all orders. In this case, the order is likely to require review during each cycle of the river basin planning process. No explicit provision for that is required.
Amendment 120 seeks to introduce a new section that would require SEPA to carry out an assessment of each body of water used for the abstraction of drinking water. It would give ministers powers to make regulations about how and when the assessment should be carried out, and it would make the other provisions that Des McNulty described.
I now have the chance to answer the question that Des McNulty asked but which could not be answered when he was called upon to move amendment 38. The additional information that I provided to Des McNulty relates equally to amendment 120. Everything that Des McNulty seeks to get out of section 6 is already provided for in the bill. The characterisation that requires to be undertaken under section 5 will provide the assessment that Des McNulty requests.
Section 5(4) requires the characterisation to be carried out in line with annexes II and III to the water framework directive. Paragraph 1.4 of annexe II, to which I have already referred, refers to the pressures on bodies of water that the characterisation must cover, on which Des McNulty sought additional clarification. The list is comprehensive and includes all forms of pollution, from urban, industrial, agricultural—which is important for the issue of sheep et al—and other installations.
After characterisation, the environmental objectives and programmes of measures incorporated in the river basin plan will constitute the catchment area management plan that amendment 120 seeks, which may take into account natural floods, droughts or the measures necessary to improve the drinking water quality. Therefore, a provision exists that will provide the catchment area management plan that the amendment seeks.
Amendment 130 is consequential on amendment 120. It seeks to amend schedule 1 to require the inclusion of a summary of the catchment area assessments and plans in the river basin management plan. As I have said, the information sought by amendment 120 will appear in the river basin management plan. Because the provision already exists, amendment 120 is unnecessary.
Amendment 123 would change section 9 to provide that, for any body of water identified under section 6, the environmental objectives should include minimising the risk of cryptosporidium oocysts entering water abstracted from it.
Before I deal with that in detail, and given Bruce Crawford's comments, I want to make clear the Executive's commitment to the protection of the quality of our drinking water and to Scotland's public health. Those are an absolute top priority. We have learned the lessons of the cryptosporidium outbreak in Aberdeen, which we discussed in committee with John Scott and Des McNulty in the context of the Water Industry (Scotland) Act 2002, and the subsequent scares in Edinburgh and Glasgow. As the committee will know, we acted earlier this year to establish an ad hoc group of ministers, which reported in September. That report contained eight recommendations for action, and all have been advanced as a matter of urgency. They range from the development of better guidance and better management of incidents involving raised levels of cryptosporidium—which is clearly not a matter for the bill per se—to improving information on water distribution networks. Expert advice on cryptosporidium risk was commissioned by the working group and published on 5 November.
In that context, amendment 123 is not necessary to secure action on eliminating cryptosporidium risk, which is already under way. We are already providing everything that the amendment asks for. Executive amendment 16, to which I have made several references, has been discussed several times and provides for the issue. It incorporates a reference to paragraphs 2 and 3 of article 7 of the directive in defining the meaning of "environmental objectives", to which I have just referred. Specifically, paragraph 3 of article 7 provides that for identified water bodies, we should have the aim of
"avoiding deterioration in their quality in order to reduce the level of purification treatment required in the production of drinking water."
The objective of reducing the level of treatment applies to every body of water, including those identified as a source for drinking water under section 6. That is an important consideration, because it extends well beyond cryptosporidium oocysts. It covers bacteria including campylobacter, salmonella and shigella, viruses including hepatitis A and E and Norwalk, which can be water-borne, and microbes such as entamoeba and others—there are too many to list. They may not be present, but if they were, they would be removed before the water reached the tap. The provisions are much more extensive than those that make simple reference to cryptosporidium and they extend across the range of bacteria, viruses and microbes that can affect the quality of drinking water and human health.
What Bruce Crawford wants is already covered. If a water body is a source of drinking water, the bill already provides that reducing the level of treatment is an objective for it. The drinking water directive also requires the elimination of any contamination from drinking water.
That is not all. We must also consider the significant step forward in the bill in how we control activities that can lead to the contamination of drinking water sources such as those at Milngavie. Section 20 gives us extensive and effective powers to control any activity that leads to pollution of waters. It will give us much better powers to control direct and indirect forms of pollution, which include point source pollution. Moreover, the definition of pollution in section 20(6) makes it clear that harm to human health is a key determinant of whether something is polluting.
Having said all that, I think that it is important to be clear that although we can take steps to reduce the level of cryptosporidium in raw water, we will never be able to eliminate it. Cryptosporidium, after all, is ubiquitous in our environment, and a reservoir will always exist, as will wild animals and farm stock. The objective that I described requires that we seek a reduction in the need for treatment of raw water. That covers all the points raised by Bruce Crawford in relation to cryptosporidium and much more besides, for example bacteria, viruses and microbes.
Amendment 141 is related to amendment 123, and, given everything that I have said, I believe that it is unnecessary. It seeks to amend section 20(3) to insert a new leg describing pollution by cryptosporidium oocysts in bodies of water identified under section 6 as one of the activities that may be controlled by regulations under section 20. As I am sure the committee will agree, the matter is important, but, as I have said fairly extensively, such pollution is already covered. Section 20(3)(a) already provides that
"activities liable to cause pollution of surface water or groundwater"
are activities that may be controlled.
Pollution is defined in section 20(6), and it is clear that, as far as such activities are caused by the actions of man, pollution by cryptosporidium oocysts can be controlled under section 20. Farming is obviously a human activity, as we have discussed. Once again, what Bruce Crawford is looking for is covered. With those assurances, I am sure that he will be prepared not to move the amendment.
Amendment 96 seeks to amend schedule 1 to require a summary of the order identifying sources of drinking water to be part of the river basin management plan. As I have explained, such an order will be a matter of public record. Moreover, each body of water so identified will appear in the river basin plan together with its environmental objectives. On that basis, I submit that amendment 96 is not necessary either.
I appreciate the minister's good explanation, but I have one specific question before I decide whether I should move my amendment. You rightly said that the intent of the bill was to reduce the level of treatment that is required. That is a key phrase. What about the aqueducts that serve Milngavie treatment works from Loch Katrine? I realise that it might not be easy, but could action be taken to remove cattle from the aqueduct area? That is a specific point that we need to know about. Could there be an exclusion zone?
Will the minister respond to that query?
Yes. Section 20 gives us powers to control pollution to sources of drinking water. Without going into the detail of the aqueduct that was referred to, the answer to the question is yes.
So you would have powers to reduce the pollution in such circumstances.
I have gone into that in some detail.
I want not to move my amendment 123, so I am trying to understand the circumstances. What if a farmer has a field with cattle and those cattle are alongside the aqueduct? How do we ensure that the farmer either removes the cattle or creates an exclusion zone, given how the bill is drafted?
I reiterate that if the activity—in this case human activity related to agricultural production—pollutes the water environment, section 20 gives us powers to control it. To be precise, the reference in section 20(3)(a) is to
"activities liable to cause pollution of surface water or groundwater".
I ask the minister for clarification on that point, which I did not think that we were going to debate today. Let us get away from a reservoir situation completely and consider normal farming practice. For example, there are huge numbers of sheep and cattle along the borders of the Tweed, but there is also water abstraction there. How do you intend to cope with organisms such as you have described entering the water in that context?
I cannot get drawn into specifics at this stage. The regulations that we will produce will provide for best practice. That could involve fencing off important bodies of water for drinking water to prevent pollution from whatever source. The powers exist in the bill and such provision could be made. The use of those powers would depend on a case-by-case analysis of the risk and the measures that were needed to prevent pollution.
As no other member wants to speak, I ask Des McNulty to respond to the debate and to press or withdraw amendment 86.
Perhaps unusually, I am inclined to press amendment 86. In my experience, members have had to use parliamentary questions to get information from Scottish Water and the drinking water quality regulator, and that information has been relatively grudgingly given. I do not think that there is any reason not to provide reports on the quality of reservoirs as well as on the quality of drinking water. Information on both those aspects is part of the picture and would allow the public to map what has been going on.
The minister may want to return with a further amendment to deal with any drafting inadequacies in amendment 86, but the principle that the public should be allowed to get information is vital and we should pursue it. If the drinking water quality regulator and Scottish Water have information, why should the public not have access to it in the form of a report? The committee should support amendment 86.
I thought that I had responded to those points. Members are in danger of blurring the distinction between the respective roles of SEPA, in providing reports of the water quality in reservoirs before treatment, and the drinking water quality regulator, in providing reports on water quality after treatment. We propose that the information that Des McNulty seeks for himself and his constituents in any given circumstance should be available from SEPA pre-treatment and from the drinking water quality regulator post-treatment. That is an important distinction; it should not be blurred by giving an additional responsibility to the drinking water quality regulator to report on the contents of reservoirs prior to the treatment of the water. That responsibility already lies with SEPA.
If that is the case, that is fine and I do not need to pursue the matter. However, we must have the reports. If the minister is saying that the information will be made available and that he will ensure that there is a process for making it available, I am content to withdraw the amendment.
I will further undertake to investigate the incidence of irregularity in drinking water treatment reports from the drinking water quality regulator and get back to the committee on that.
Amendment 86, by agreement, withdrawn.
Amendment 119 moved—[John Scott].
Why was Des McNulty allowed to speak to his amendments again?
That was because the person who moves the lead amendment in a group has the right to respond to comments on the group. We have operated in that way with every bill that we have considered.
The question is, that amendment 119 be agreed to. I ask members to vocalise their agreement or disagreement to amendments to make my job of deciding whether we have agreement easier. Are we agreed?
No.
There will be a division.
For
Harper, Robin (Lothians) (Green)
Scott, John (Ayr) (Con)
Against
MacKay, Angus (Edinburgh South) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Abstentions
Crawford, Bruce (Mid Scotland and Fife) (SNP)
The result of the division is: For 2, Against 5, Abstentions 1.
Amendment 119 disagreed to.
Section 6 agreed to.
After section 6
Does Des McNulty wish to move amendment 120?
The minister assured us that catchment area management plans would be produced, so I am happy not to move amendment 120.
Amendment 120 not moved.
Section 7—Register of protected areas
Amendment 3 is grouped with amendments 4, 40, 87 to 89 and 121.
I will try to be as brief as possible. Paragraph 1 of article 6 of the water framework directive requires the register of protected areas to be completed by 22 December 2004 at the latest, which is four years after the date on which the directive entered into force. Amendment 3 makes it clear that SEPA must prepare the register by that date and thereafter maintain it. It is a technical amendment to make implementation of the directive more transparent. Rather than setting in regulations the date by which the register must be prepared, we are doing so in the bill.
Amendment 4 is consequential on amendment 3. It deletes the power to stipulate through regulations the date by which the register of protected areas is to be prepared. Amendment 3 makes that power unnecessary by putting in the bill the date by which the register is to be prepared. I recommend that the committee accept amendments 3 and 4.
Amendments 40 and 87 to 89 would expand the scope of the register of protected areas to include not only areas that are designated as requiring special protection under specific legislation and European legislation for the protection of the water body or the conservation of habitats and species that depend on water, as the directive requires, but areas that have been designated under domestic law, such as sites of special scientific interest and nature reserves, or that have been designated under the Ramsar convention. We see no benefit in that, and in many respects that would duplicate information that is available at the local authority area level. Section 28 of the Wildlife and Countryside Act 1981, for example, requires SNH to compile and maintain a register of SSSIs, including rivers and lochs, in each local authority area.
The directive and the register of protected areas concern the protection of the water environment and habitats or species that depend on it. The amendments would include in the register of protected areas sites that might have no water interest. An example of such a site is a quarry with fossils present or a mountain plateau that supports an important bird community, which we discussed last week. Neither of those sites has any relevance or relation to the water environment or its protection. It would make no sense to include them in the register of protected areas. I understand the sentiments behind the amendments, but I cannot support them, for the reasons that I have given.
The register of protected areas is a formal requirement of the water framework directive, as article 6 of the directive makes clear, and is one of the means by which Europe will police the protection of areas under Community legislation. The register also provides a clear link to the requirements of other Community legislation. For those reasons, there is no value in adding other non-Community designations to the formal register, which would weaken a valuable linkage.
It is important to stress that the bill is not a nature conservation measure per se. Such measures will come later in our proposed nature conservation bill. The bill will add value by ensuring that protected areas for which water quality is important—whether they are SSSIs or wetlands under the Ramsar convention—will be covered in the river basin management plans. Section 10 provides us with the power to ensure that that happens. That addresses the concerns that inadequate measures will be taken to protect such areas.
It is important to realise that the process of setting environmental objectives for water bodies and putting in place measures to achieve those objectives will be of immense value to water-dependent protected areas. For the first time, the bill provides a comprehensive and effective mechanism for the achievement of the ecological quality that is necessary to support important protected sites, which is a significant step forward for conservation.
My officials have been in contact with officials of SNH, which does not support the extension of the register of protected areas as proposed in amendments 40, 87, 88 and 89. SNH argues that the proposal would require considerable effort on its behalf, much of which would be misplaced in the context of the bill because the effort would have no direct bearing on the water environment. SNH points out—and I agree—that that effort would be better spent on ensuring that the environmental objectives and programmes that are put in place for water bodies that support protected areas are targeted properly. The issue is about the targeted and best use of resources to protect areas that are dependent on the water environment. We should not dissipate that activity across areas that are not dependent on the water environment.
I turn to amendment 121. At present, the bill refers to areas that are protected by Community instrument, including areas that are designated for the protection of habitats or species and in which the maintenance or improvement of the status of the water is an important factor in the protection of those habitats or species. Amendment 121 would expand that measure to include areas for which the maintenance, improvement or—importantly—the deterioration of the status of water is an important factor in the protection of the habitat or species. However, as the water framework directive is based on the principle that member states will be expected to maintain or improve the quality of water, we cannot countenance deterioration in water quality, particularly not in Natura 2000 sites, to which section 7(4)(d) primarily refers. Given that, amendment 120 is unnecessary and I recommend that the committee should reject it.
I move amendment 3.
At this point, I would have called Des McNulty to speak to amendment 40, but he has left the room for some reason. I call Fiona McLeod to speak to amendments 87 to 89. If Des comes back, I will allow him to speak to his amendment.
In some ways, it is unfortunate that my amendments are being discussed before we hear Des McNulty's comments on the more substantial amendment 40. I will go through my amendments one at a time.
Amendment 87, by inserting in section 7 the words "or other enactment" after "instrument", would more simply achieve Des McNulty's aim behind amendment 40, which lists the sites that we have to consider and make provision for. By using the phrase "or other enactment", we would ensure that we did not miss anything from the list that is proposed by Des McNulty in amendment 40. That would also mean that we need not constantly review or revise legislation to catch up with any changes that we might wish to make here in Scotland. As the minister said today and at the previous meeting, we are looking forward to a natural heritage bill being debated in the next session of Parliament.
Amendment 87 would also ensure that, if any changes are made outwith Scotland—in the EC or elsewhere—the act, as it will be by then, will allow us to ensure that we can keep our legislation and our sites up to date and protected.
Amendment 88 is consequential on amendment 87. Removal of the word "such" would mean that we did not tie ourselves to current Community instruments or exclusively to Community instruments when considering sites for protection. The minister said that non-Community designations are important, which I agree with; my amendments would ensure that Scottish designations receive due recognition and importance when we are looking at sites to protect.
Amendment 89 is specifically to ensure that Scottish sites of special scientific interest are included. The minister implied that that would mean inclusion of sites that did not necessarily have a direct impact on the water environment, but having asserted that, the minister should tell us the number of sites that do not impact in some way on the water environment. Again, I refer the minister to his comments on day two of the stage 2 process, when he stated expressly that the SSSIs were important and that, because they were important to him, he would ensure their further protection in a future natural heritage bill. I suggest that, rather than wait two, three or even four years, he demonstrate now his commitment to the importance of SSSIs in Scotland by including them in the bill.
I felt that it was important for us to take account of other important nationally and locally designated areas to ensure a more holistic approach to protecting environmentally sensitive areas. I note what the minister said about trying to get parity in the context of legislation but, in the specific Scottish context of managing such areas, the importance of designated areas should be recognised and we should ensure that all relevant designations are taken account of. In particular, I want to highlight the issue of including SSSIs and sites of importance for nature conservation, such as the one at Mugdock near the reservoir. Such sites might not be as sensitive as the EC-designated sites, but they are important to people living in and around those areas, which should be a factor in deciding on the use of such areas.
I accept the minister's broad thrust, but I wanted to probe and highlight the importance of the different systems of designation.
Amendment 121 seeks to allow the proper water habitat to be created for the protection and enhancement of species of wildlife and plant life, which Allan Wilson has mentioned. The very cleanest water is not always necessary, or indeed desirable, to allow some species to flourish. In creating wetland areas, for example, one would take clean, high-quality water from rivers and allow it to become brackish or to stagnate in order to create the desired wetland habitats. In so doing, the water quality must, by definition, deteriorate.
Amendment 121 would allow for the creation of such habitats without such action falling foul of the legislation, which would not otherwise allow the water to become stagnant, brackish or just plain dirty; for example, as a result of wading birds standing in it. If I understood the minister correctly, he said that that is all covered by existing legislation. I am happy to accept that, but I seek his reassurance on that because he covered that point quite quickly.
I agree with much of what Des McNulty said, but there is a danger of speaking at cross-purposes in some contexts. We are talking about a requirement to include on the register national levels of designation.
Fiona McLeod asked how many such national designations bear no relation to the water environment. I cannot give a figure off the top of my head, but I ask her why, in a water environment protection measure, would we wish to include on a register areas of national protection that bear no relation to the water environment. That does not make any sense, irrespective of the numbers of such designations. I gave two examples of designations that bear no relation to the water environment—there are others, although the number is immaterial, and such sites should not, ipso facto, be included in a register of such areas.
The bill is not a nature conservation/preservation measure—that will come later. I mentioned numerous measures that are prepared at local authority level and by Scottish Natural Heritage. There is statutory provision for those lists in section 28 of the Wildlife and Countryside Act 1981, which requires SNH to compile and maintain a register of notifications of SSSIs in respect of each local authority planning authority in Scotland. In addition, national planning policy guideline 14 on natural heritage states that local authorities' local plans should identify all international, national, regional and local authority designations on the proposals map.
Sufficient provision already exists for listing of all local, national and international heritage sites, so there is a question, in this context, about how best to use SNH resources and target them towards local, national and international protected areas that are related to the water environment. There is no purpose or function in incorporating in a simple register areas of national or local protection that bear no relation whatever to the water environment. That is a fairly simple point, which colleagues will be able to grasp.
I believe that existing provisions address John Scott's concerns. As we have discussed, the environmental objectives are flexible enough to accommodate the deterioration in water that John Scott identified, although he did not actually propose it. He gave the good example of wetlands, and how their creation relates to the objective to preserve and conserve the natural state of the water environment. If water is naturally stagnant and maintains different sources of wildlife, the environmental objectives are sufficient to ensure that that stagnant state is the objective that is sought; in that instance, the objective would be to sustain the wildlife that is dependent on that stagnant water. There is no point improving water quality to the extent that that would obliterate the wildlife that is dependent on the water's being stagnant, if you see what I mean.
Environmental objectives will vary case by case according to the body of water that is under consideration.
I would like clarification in relation to amendment 89, which would insert a reference to SSSIs. I ask the minister to consider where I would insert that reference, which would amend section 7(4)(d). How would an SSSI that had no effect on the water environment be covered by that paragraph, given that it refers to areas
"where the maintenance or improvement of the status of water is an important factor"?
All relevant SSSIs will be included; those that are not will not.
As I made clear, our argument is that amendment 89 and other amendments propose a broad-brush approach that would incorporate all local designations, including those that bear no relation to the water environment.
Amendment 3 agreed to.
Amendment 4 moved—[Allan Wilson].
The question is, that amendment 4 be agreed to. Are we agreed?
No.
There will be a division.
For
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Harper, Robin (Lothians) (Green)
MacKay, Angus (Edinburgh South) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Radcliffe, Nora (Gordon) (LD)
Against
Scott, John (Ayr) (Con)
The result of the division is: For 8, Against 1, Abstentions 0.
Amendment 4 agreed to.
Amendment 40 not moved.
Amendment 87 moved—[Fiona McLeod].
The question is, that amendment 87 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 87 disagreed to.
Amendment 41 was debated with amendment 32.
Amendment 41 is consequential on amendment 32, which was agreed to.
I move amendment 41.
The question is, that amendment 41 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)
Radcliffe, Nora (Gordon) (LD)
Against
MacKay, Angus (Edinburgh South) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Abstentions
Scott, John (Ayr) (Con)
The result of the division is: For 4, Against 4, Abstentions 1.
The vote is tied and I therefore must use my casting vote to vote against the amendment.
Amendment 41 disagreed to.
Amendment 88 moved—[Fiona McLeod].
The question is, that amendment 88 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 88 disagreed to.
As the minister did not understand where amendment 89 would insert the reference to SSSIs, I move amendment 89.
The question is, that amendment 89 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)
Scott, John (Ayr) (Con)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 89 disagreed to.
Amendment 121 not moved.
Section 7, as amended, agreed to.
After section 7
Amendment 42 was debated with amendment 19.
We had a lengthy debate on amendment 42, during which the minister indicated that the registers would be made available. On the basis of those assurances, I will not move amendment 42.
Amendment 42 not moved.
Section 8—Monitoring
I hope that we will be able to deal quickly with the next group of amendments. Amendment 5 is grouped with amendment 122 and amendments 6 to 11.
I will be as quick as I can be. Amendment 5 is technical and is designed to improve the drafting and transparency of the transposition of the water framework directive. As a requirement of the water framework directive, section 8 tasks SEPA to monitor the water environment, which is limited to three miles from the territorial baseline, and to monitor relevant territorial waters. However, if there is more than one river basin district, section 8 as drafted gives no clue as to what is meant by "relevant" territorial waters. Amendment 5 will ensure that, if we are to have more than one river basin district, SEPA would, in respect of each, have to monitor only the adjacent territorial waters. That is a technical provision, but I trust that members appreciate its merits.
Amendments 6, 7, 10 and 11 will change references to a monitoring "strategy" in section 8 to references to a monitoring "programme". The use of the word "programme" mirrors the terminology in the water framework directive and would make transposition of the directive more transparent. Again, although the amendments are technical, I hope that members will accept them.
Section 8's new subsection (2A), which has been introduced by amendment 8, incorporates the deadline for having relevant monitoring programmes operational by 22 December 2006. New subsection (2B) makes that deadline subject to regulations that are made under subsection (ca), which has been introduced by amendment 9. That will allow ministers to stipulate earlier or later deadlines for the operation of the monitoring programmes that are relevant to protected areas that are established in community legislation. The provision for the earlier or later establishment of monitoring programmes for protected areas is contained in the water framework directive. Amendments 8 and 9 are, therefore, technical amendments designed to improve drafting and transparency of transposition of the directive. I recommend that the committee accept amendments 8 and 9.
Amendment 122 seeks to place a requirement on SEPA to make available at all reasonable times, for public inspection and free of charge, analysis of information that results from monitoring the water environment and relevant territorial waters under section 8(1)(a).
Amendment 122 is unnecessary; section 10 and schedule 1 of the bill already require river basin management plans to include information about the arrangements for monitoring water status under section 8, and the results of such monitoring. Section 11 also places several duties on SEPA for the publicity and consultation that must accompany the river basin management planning process. The information that will be collected under section 8(1) will, therefore, be in the public domain. On the imposition of any charges in connection with making that information available, section 13(5) already provides that when a river basin management plan is approved, SEPA must make copies of the plan available for public inspection. Public inspection will be free and copies of plans will be available for sale at a reasonable price. I am content that nothing further is required in that regard.
Section 11 places several duties on SEPA in relation to the publicity and consultation that must accompany the river basin management planning process. I recommend, therefore, that amendment 122 be rejected.
I move amendment 5.
I think that the intention that lies behind amendment 122 is self-evident in that the amendment would make information gathered through the monitoring process available to all who wish to see it, use it or act upon it. I am sorry: I was talking to Fiona McLeod during the minister's explanation—something to which I probably should not admit—so I ask the minister whether that is what the amendment will do.
Yes. Section 13(5) provides that when the river basin management plan is approved, SEPA must make copies of it available for public inspection. Examination of those copies will be free and other copies will be available for sale at a reasonable price.
How do you define "reasonable"?
We would need to consult Bruce Crawford's dictionary.
Amendment 5 agreed to.
Amendment 122 not moved.
Amendments 6 to 11 moved—[Allan Wilson]—and agreed to.
Section 8, as amended, agreed to.
That concludes today's stage 2 consideration of the bill. A target for next week's meeting will appear in the business bulletin.
Meeting closed at 12:56.