DEFENCE AVAILABLE TO PERSONS CHARGED WITH OFFENCES (Hansard, 19 July 1974)

§ Mr. Rossi
I beg to move, That the clause be read a Second time.

§ Mr. Speaker
We can also discuss new Clause 11 entitled "Powers of Secretary of State in respect of certain statutory nuisances".

§ Mr. Rossi
New Clause 9 seeks to introduce a general defence into the Bill. At the moment there is, rightly, a large number of penalties for creating pollution, but some offences created by the Bill are of an obsolete nature. That is generally offensive to our legal system because we believe that there must be an element of guilty intention before a citizen can be 928 penalised for any act or omission. That is the general common law, although there are certain statutory exceptions.
New Clause 9 seeks to make it a defence for a person charged with an offence under the legislation to prove that he has exercised all due diligence to avoid the commission of such an offence by himself or by any person under his control. It is felt that this is a reasonable safeguard for the citizen and for industry as a whole. If it can be shown that proper care has been taken and there is no element of negligence, it should be a defence to any action brought against a person for inadvertent pollution or pollution outside the control of the person concerned.

§ Mr. Michael McNair-Wilson (Newbury)
I am grateful to you, Mr. Speaker, for selecting new Clause 11. I had hoped to raise this matter during the Committee stage but Select Committee business took me out of the country.
The clause relates to that part of the Bill referring to pollution of the atmosphere. The Bill as drafted seems to concern itself mainly with dirt pollution, fumes and smoke but, vitally important as those are—and clearly we must carefully consider how we can improve control of them—pollution is not simply what we see, taste or hear but is also what we smell.
A sweet scent is pleasurable; a noisome stench is incredibly objectionable. I gather that in the eighteenth century people carried nosegays of flowers because the sweet scent of the flowers counteracted the vile smell of the streets. By the same token, the purpose of the perfumes of Araby referred to in "Macbeth" was not so much to enhance the beauty of the person as to mask his or her body odours.
2.0 p.m.
Fortunately, all that is now in the past. Noxious smells are still with us, however, particularly those created within industry by operations such as chemical works, and in particular by the industry with which I am concerned—that which treats animal waste products. Here I must declare an interest. I am retained by such a company. Having said that, I hope that my words will perhaps carry a little more weight because I speak with just a marginal degree of experience.
929 My hon. Friend the Member for Hornsey (Mr. Rossi) put his finger on what I am driving at when he talked about those who are not intent upon creating a nuisance or noxious odours. My new clause relates to this industry, which is treating a certain type of waste product and is doing so as best as it knows how within the science of the art. It is faced with a problem to which there is as yet no answer. I hope to show to the Minister that his own working party came to the same conclusion.
On page 67 of Part I of the Report of the Working Party on the Suppression of Odours, published only this year, there was the following conclusion: The section of the industry concerned with rendering and similar processes stands out from all the others in the severity of its odour abatement problems. Nowhere is there yet a complete solution to the problems of these trades. Nor is there.
The trade's hope was that it would have some joy out of that report, because it would dearly like to know what is required of it to bring it within what might be described as acceptable limits. But it did not get any satisfaction. Now we are told that the working party is to produce a second report. It has stated that it wants to have a three-year period of research—which I believe started last April—and then it intends to produce conclusions which might be more binding and positive.
So keen is the trade to see the second report become an effective document that it is making a financial contribution to the working party and its work. But we may have to wait three years, and while we are waiting the trade finds itself in a position in which writs can be served against it under Section 100 of the Public Health Act 1936.
To get such a writ one simply has to prove public nuisance. One may say "The nuisance creates the writ and the company has to argue its case before the court." But with such a writ served against it the company will be very hard put to succeed in its defence.
Indeed, I have a letter from the chairman of the trade association governing the industry in which he described the importance of the trade and says: As an industry we collect and process more than I million tonnes of raw material per annum consisting of bones, fats and 930 slaughterhouse offals. This in turn produces some 220,000 tonnes of protein meal (for the farming industry), 150,000 tonnes of tallow, all of which are used in industry, including edible foods, gelatine for the food industry, pharmaceutical and photographic fields. This operation is carried out by some 150 rendering plants in 100 local authority areas, but 90 per cent. of the process and production originates from only about 10 per cent. of the total of these plants—all of considerable integrity and repute. The operation of our plants is governed by the Public Health Acts, and despite the many hundred of thousands of pounds spent by the industry in coping with odour suppression we are still under the most severe pressure by local authorities through the courts—in fact, several of our members have had to close down because of legal action. In this connection it should be emphasised that if the industry did not operate "— I ask the Minister of State particularly to note these words— and all animal wastes were allowed to accumulate for collection and disposal like other trade wastes, conditions would rapidly become intolerable and a threat to public health. Without quoting actual figures, it should also be emphasised that as an industry we employ many thousands of people and save the country a considerable amount in foreign currency by the production of essential products in this country, which if not produced would involve us in the importation of similar products from abroad. We as an industry would request that the Secretary of State gives us some breathing space pending the final report of the working party, and ensures that sufficient legislation is introduced to prevent the closing down of further plants. That letter says all that I want to say. No one I have spoken to in the trade would argue for a blanket way out of the perfect right of any local authority to take action under the Public Health Act. What I am asking for is that if a company can prove to the Secretary of State that it has taken all reasonable measures to curb the odour nuisance, he, bearing in mind the national importance of the trade, may be in a position to allow that company to continue.
I remind the Minister of State that these companies are already registered with the Alkali Inspectorate and therefore they are not, as it were, trading within an environment of their own making. I ask the hon. Gentleman to accept, as the trade has to do, that if there is no measure that it can now take to ensure that no odour nuisance will be created by what it does, it will not be put at the mercy of the 931 courts and closed down, as was Dolphin-Canadian at Shoreham, but will have an appeal to an authority above the local authority—namely, the Secretary of State—with a consideration greater than the personal loss of amenity by local persons.

§ Mr. Skeet
I support my hon. Friend the Member for Newbury (Mr. McNair-Wilson). I have one of these plants in my constituency. The idea is to produce animal protein through the utilisation of waste. If the waste were not utilised in this way it would be unused and a great loss to the nation. I remind the Minister that new Clause 1 was for the utilisation of waste in power stations for conversion into energy. In this case waste is being utilised to form food for animals, and this can be invaluable to the community.
If we are to be consistent we must ensure that these plants can continue. The responsibility should come under this Bill and not fall between two stools—the Bill and the Public Health Act 1936. The result of that would be that until the full inquiry reported most of the plants might have to close down and we might find ourselves without any of these processing facilities. I hope that the hon. Gentleman will give sympathetic consideration to this argument and bear in mind that I have a fairly heavy constituency responsibility which has a strong case.

§ Mr. Denis Howell
There are two important principles involved in these clauses. New Clause 9 seeks to provide a general defence of "no negligence" for people charged with pollution under the Bill. It would affect all parts of the Bill and, if it is the desire of the House, I could point to those matters in detail. If the law is to be effective, it must command public support. There are certain matters in all fields of pollution which should not happen and it is our duty to stop them occurring.
The principle is that people who cause pollution impose a burden on the rest of the community. This ranges from minor nuisances to serious hazards and grave dangers of life or health. People who pollute should be held responsible for the damage they do. We should be chary of giving polluters an escape clause of such magnitude as proposed in the provision. The general proposals of the 932 clause would give a blanket defence of due diligence which should not be provided. As a general principle, people have to have regard to the pollution which flows from their own activities. No local authority or water authority, in my judgment, would be likely to take action against people where a genuine mistake had occurred, although in exercising that judgment it would have regard to the severity of the pollution caused.
In another place there was considerable concern on this matter. The Law Lords who took part in the debate were careful to protect and preserve the rights of citizens to go to the courts for injunctions and in other ways to have these matters dealt with. I referred to the case of Alphacell v. Woodward, which was discussed at length in another place and in Committee upstairs. It turned on the interpretation of the words "causes or knowingly permits". In that sense I have to resist the amendment.
Let me make clear that the offence provision in subsection (1) does not create an absolute offence. It has to be proved that the pollution is caused or knowingly permitted. I think that is a reasonable provision to make in the Bill, and I cannot advise the House to depart from it.
I turn to new Clause 11 which deals with obnoxious smells. I am afraid that once more I cannot advise the House to agree to that provision. The existing law contained in the Public Health Act 1936 gives local authorities two means of proceeding against the statutory nuisance. One is an abatement notice enforceable in the magistrates' court. One defence available in the magistrates' court is that the offender was using the best practicable means to deal with the situation.
The second way of dealing with obnoxious smells and odours is by an injunction in the High Court. The hon. Member for Newbury (Mr. McNair-Wilson) wants to change the situation and quoted a case in which the High Court took action resulting in the closing down of an undertaking of the kind mentioned by the hon. Member for Bedford (Mr. Skeet)—an undertaking which in performing a national duty in disposing of offal and innards and other things which society has to deal with. I would be reluctant to interfere with the rights of citizens to go to the High Court for 933 an injunction. We should not forget that such a proposal would have to return to the other place and I am sure noble-Lords would not take too kindly to a proposal to remove the right for a citizen or company to go to the court. The Secretary of State would not wish to superimpose himself into any judgment on this matter in place of the courts.

§ Mr. Skeet
I believe the Minister has got my point, but what does he intend to do to save the industry in question? These firms will go out one by one unless he does something to assist.

§ Mr. Howell
In a Bill dealing with the control of pollution it is not my duty to go too far in that direction, except to say that it is obviously in the national interest to keep the matter under control. If a factory is giving out offensive odours and citizens go to the court and say that the smell is intolerable, the court may come to the conclusion, having heard the evidence, that it should issue an injunction. If that were to happen, I should be most reluctant to take any action, except to say to the firm concerned "We are sorry but you will have to build your factory somewhere else. We shall do our best to help you on another site and in planning matters." If conditions are intolerable, we must leave these matters to the courts.
The hon. Member for Newbury raised the novel concept that the House should take action to stop industrialists being at the mercy of the courts. I do not think that is a proposal which should be hallowed in legislation. We do our best to deal with pollution and it is for the court to interpret what we do. If we have to take action, we usually do so.
The report on odours has always been envisaged as being in two parts. The second part will contain an appeal to the public at the end of the year, and my Department is giving substantial financial support to research which we know will be recommended in that report.
I am sorry that I cannot advise the House to accept either of the new clauses.