HC Deb 22 March 1989 vol 149 cc1194-202
Mr. Boswell

I beg to move amendment No. 98, in page 111, leave out line 47.

After the excitement of a few moments ago, I feel myself rather in the position of the dustcart after the Lord Mayor's show, though it would be indelicate if I were to speculate on which particular speeches require sweeping up. However, it is perhaps appropriate to start with that analogy because we now come to the parts of the Bill that are directed towards the control of pollution. This is an area in which hon. Members on both sides of the House have taken a keen interest. We are all anxious to ensure that standards are maintained and, wherever possible, raised.

The amendment would change slightly the existing provisions of the Control of Pollution Act, which, as the House will know, are reflected in the Bill. It is right and proper for me to acknowledge, though I do so with some regret, that there must be provision—as there is—for valid defences for causing pollution, provided that permission is very tightly controlled. Clearly, that applies to discharges in accordance with a consent issued by the National Rivers Authority or, in the case of this specific provision, to derogations from the penalties where there is an emergency, in order to avoid other dangers to the public. Perhaps I should say, en passant, that I am very pleased with Government amendment No. 64, which will further confine what might be called the emergency excuse.

It is right to provide for eventualities and to provide that these discharges follow the requirements of the National Rivers Authority. It is also right that there should be clarity for operators who discharge within consents and that they may do so without fear of prosecution. But, equally, I think that it will be agreed by all that there should be no easy loopholes—certainly no avoidable loopholes—in the legislation. There should be no way in which those who might pollute our rivers may do so with impunity.

Hon. Members—certainly those who served on the Standing Committee—will recall some of the debate on this clause. I am grateful for the opportunity to return to that debate, not least because the Government undertook to reflect on the very serious points that were made then. It should be remembered that the basis of clause 104 is no more than a continuation of the current law.

The defence is already available under the Control of Pollution Act 1974. Nevertheless, real problems have been drawn to my attention by the water authorities and I believe that it is right to ventilate them further. The amendment refers to waste disposal sites. Elsewhere in the clause there are references to mines and ships, but I shall confine my remarks to the issue of disposal licences. It should be made clear that where an operator wishes to obtain a site for a tip for disposal, his licence comes from the local authority, not from the water authority. I welcome the provision for the local authority to consult the water authority on such an application, which will carry forward into the new arrangements after privatisation.

Once the operator has obtained the disposal licence from the local authority, he can set up his waste disposal site. The House will be well aware of the problems that some sites cause. We are all aware of the recent report by the Select Committee on the Environment and of the articles in The Times this month. It is the experience of the water authorities that have contacted me that there are frequent examples of watercourses being directly polluted as a result of the seepage of toxic materials in leaching from such sites.

The Anglian water authority has drawn my attention specifically to three such recent incidents in its area—one at Rushton, which is in the county but not the constituency that I represent. Others are cropping up all the time. Such pollution incidents damage fisheries and damage or threaten the public water supply because this pollution is, as it were, unplanned for, is sometimes not easy to detect quickly and can be insidious. It is right to draw the House's attention to the fact that under clause 53 the water undertakers themselves will, for the first time, be guilty of a criminal offence if they supply unfit water for human consumption. Therefore, they, too, will have a close interest in avoiding the sort of pollution to which I am referring.

The House will certainly be aware that the problems with the sites arise mainly from the lack of proper provision and the lack of effective supervision of after-care arrangements by the disposal operators, especially where the site has been closed. It would be wrong in principle if such operators were also to have a special cast-iron defence because of their possession of a disposal licence, which is what the amendment seeks to strike out. As I have said, there are similar concerns over vessels and abandoned mines. These are real issues that worry hon. Members of all parties.

The water authorities have enough to do in trying to protect our rivers without this extra burden on them. Only last week I was given to understand that the Anglian water authority, which covers the greater part of my constituency, was faced with a major pollution incident in Suffolk. Pig slurry had gone into the river, affecting 30 miles, and killing thousands of fish. Tragically it was in a river that the authority had only recently restocked. No doubt there will be proceedings against the farmer involved, but I gather that that farmer has already been prosecuted four times. The water authority suggested that, when dealing with the overall issue of pollution, it might be wise to consider a provision for an injunction procedure as opposed simply to dealing with incidents on an ad hoc basis through prosecution.

In moving the amendment I put down a marker of continuing concern. I know that the Minister has expressed his own anxiety about these problems. I hope that he will note my suggestion, listen to the debate and, I hope, return with something before the final proceedings on the Bill.

Mr. Boateng

The hon. Member for Daventry (Mr. Boswell) is, in more ways than one, the carthorse that comes along after the Lord Mayor's show. Not only does the hon. Gentleman follow through today's proceedings and the major debate that we had on previous amendments, but he picks up, in identical terms, the amendment tabled by my hon. Friend the Member for Copeland (Dr. Cunningham), which I moved in Committee.

This is a modest little amendment. Committee members may remember that we proposed it in a spirit of good will —there was not much acrimony or argument between the parties, although such days did exist. To give Jack his jacket, the Minister responded in kind, which is why we look forward to hearing from him what positive steps he plans to take, having had time for mature reflection.

This is an important little amendment because it seeks to overcome a gap in the existing law and the fact that the present site regulations on waste disposal are seriously defective. The amendment says that there should be no exception from prosecution if the discharge of polluting waters takes place from the site where a disposal licence has been given under section 5 of the Control of Pollution Act 1974. It is as simple as that, and is not—as was rather uncharitably suggested by the Minister before he fully appreciated the purport of the amendment—a duplication of controls. The amendment does not require the water authorities' controls to be applied through both the waste disposal licence and the discharge consent. He was concerned about that and said that he was not persuaded that anything was to be gained from such duplication. Nothing would be gained, which is precisely why the amendment does not propose such duplication.

The amendment merely says that there should be no automatic exemption where leachates discharge to land or percolate through surrounding rock strata and pollute the water supply. In such a case the prevention of pollution is clearly intended to be covered by the waste disposal licence. There does not appear to be any undue difficulty in stating that an offence could still occur in such circumstances, when, because of the gap in the existing laws—due to the withdrawal by the Local Government, Planning and Land (No. 2) Act 1980 of the powers to issue regulations under section 6 of the Control of Pollution Act 1974—it is possible for abuse to take place and for the public to be without proper remedy. That has happened.

The result of the unintended gap in the law is that a waste disposal authority can bring criminal proceedings against a discharger of pollutant only if waste has been deposited when the pollution is taking place. The chance of a waste disposal officer happening to visit the site just as this was occurring, who was able to give evidence that, as the waste was deposited the leachates or overflow was occurring, is—as you, Madam Deputy Speaker, could imagine, if you were to apply your mind to such an unpleasant course of events—unlikely to result in many successful prosecutions.

We are told that the reason for the gap between the Committee and Report stages is to allow the Minister time to reflect and to consult his advisers. I notice that not many papers have been passed to the Minister during the speech of the hon. Member for Daventry or during my speech. I see the Minister pointing to his head: that is only small consolation. I do not want to be offensive to the Minister, but we can take only small satisfaction from his gesturing to the size of his cerebral matter. In any event, I hope that the absence of passed notes denotes that the amendment is wholly acceptable and in the public interest.

10.45 pm

Unanimity has broken out in the House, as it did in Committee. We hope the Minister will respond in the spirit that has caused that unanimity to break out.

We want to give the Minister a warning. When we moved the amendment in Committee, we wanted to give him a lifeline. He was getting himself into hot water at the time—scalded is the word that springs to mind. He is not unaccustomed to that, but we wanted to give him a way out. We wanted him to be able to show that he was, after all, the consumers' friend, a man genuinely concerned about the environment. So we offered him this simple, easy little amendment in a spirit of helpfulness. In Committee, he put his hand halfway out; we should like him to stretch it right out tonight.

The Minister should bear in mind the warning given by the Earl of Rosebery all those years ago at the time of the formation of the London county council. It concerned the significance of water in the affairs of our nation. Water", he said, is one of those points which have wrecked a powerful government before now and may wreck governments again. The Minister should keep that in the forefront of his mind when considering his response to this little debate, and seek to salvage something from the wreckage.

Mr. Allen McKay (Barnsley, West and Penistone)

I brought a particular problem to the Minister's attention in Committee. We bottled the problem, to show what it was about. This amendment would deal with that problem in the future, although we can do nothing about the past.

The Minister promised to discuss with other Departments how to deal with this problem from the past. I refer to discharges from closed collieries. Yesterday we discussed the restructuring of the mining industry in Committee. When the Government talk about restructuring, they mean more closures. It is imperative that we deal with the problem now at its source. I want to ask the Minister about the discharges from Bullhouse colliery. The Minister promised that he would discuss ways of dealing with that problem with the Department of the Environment.

We must recognise the extent of the Government's powers as a result of their majority in this House, but we should also recognise the power of the public who are speaking out openly against the Bill. If the Bill becomes an Act, the chances of the River Don being cleaned by British Coal or the NRA would be remote.

I spoke to Gordon Jones, the chairman of Yorkshire Water, and three of his four directors at 5 pm today. I was tied up in the Chamber for a while, but he told me that simply to clean the river to comply with EC standards on drinking water would cost £140 million. That gives us some idea of the massive task facing a privatised Yorkshire Water. There will be little room for financial manoeuvre to clean up the river. The river can be cleaned. I have examined the minutes of meetings held by South Yorkshire county council to discuss the problem. It admitted that it would be a costly process. It would cost about £300,000 to be effective and would require running costs of around £130,000 a year.

That may seem a lot of money to clear that stretch of the river, but correspondence from a constituent of mine, Mr. S. N. Crofts, puts the matter into perspective. Mr. Crofts, who has been following our proceedings very carefully, wrote to me on 9 January expessing his concerns about the Bill. In his latest letter he says that he has not written since then because all kinds of things have been happening in the House, which is true in many respects. Mr. Crofts brings to my attention a list of companies which are regularly, under licence, discharging toxic waste into the River Don. That pollution is in addition to the discharges from Bullhouse colliery.

I am glad that Mr. Crofts has written to me. I will be visiting him because he has kept records since 1985 and has produced graphs which show clearly where and when the pollution occurs. That information would be very useful. He also provides the Yorkshire water authority with information about the river. As the secretary of the Salmon and Trout Association in south Yorkshire, he has a strong vested interest in the quality of the water. In his most recent letter, Mr. Crofts points out clearly what could happen if the river was cleaned up: where industry or mine water does not affect the river and where trout and grayling abound along with kingfishers, dippers, moorhens and herons along with all the waterside plants when clean unpolluted water is available. Amendment No. 98 would help to affect the river waters and improve the condition described by Mr. Crofts. This is a small amendment and it would reflect well on the Government if they would accept it. It would show that they are sincere in their views about the cleanliness of river water. I had hoped that the Minister would rise to accept the amendment because we had won through. If the Government will not accept the amendment, I hope that the Minister will provide an explanation. I hope that he will also explain what progress is being made with other Departments in relation to cleansing the River Don of the discharges to which I have referred.

Ms. Walley

I look forward to hearing whether the Minister has any assurances to give following our earlier discussions—which he has now had an opportunity fully to consider—particularly as the amendment is in the name of his hon. Friend the Member for Daventry (Mr. Boswell).

If polluted discharges occur at a site where there is a disposal licence granted under section 5 of the Control of Pollution Act 1974, there should be no exceptions to prosecution. We acknowledge, as I trust the Minister does, the genuine concern that exists among the public that there should be integrated pollution control. The amendment addresses a loophole in the 1974 Act. If no opportunity is offered by the Bill to close it in respect of disposal sites and licences, there is a real risk that any future legislation resulting from the current consultation paper on waste disposal will, far from being integrated, be likely to go off at an even greater tangent. Existing legislation must be tightened up, and that tightening up should be reflected in the Bill also.

My hon. Friend the Member for Barnsley, West and Penistone (Mr. McKay) drew attention to the anxieties of those living in the vicinity of waste disposal sites, who are acutely aware of the problems that pollution creates. My hon. Friend the Member for Brent, South (Mr. Boateng) argued that the amendment is wholly acceptable and in the public interest. I urge the Minister to recognise that the Government's credibility, in claiming to be an Administration concerned about pollution control, is at stake.

Mr. Moynihan

The debate has been helpful, not least in respect of the poetic contribution of the hon. Member for Brent, South (Mr. Boateng) who, in characteristic style, sought to ensure that I extend my arm further towards the arguments made by both sides of the House and accept the amendment. I can tell the hon. Gentleman that my arm, which is already half extended, is moving rapidly towards the three quarter mark. I say that, because the points made by hon. Members were important and relevant, and because I recognise the water authorities' concern that existing arrangements are not operating satisfactorily. That point was made also in Committee.

The only reason why I hold back from fully extending my arm is to be found in the remarks of the hon. Member for Stoke-on-Trent, North (Ms. Walley). My hon. Friend the Member for Daventry (Mr. Boswell) made the House aware that the Environment Committee has just published its report on toxic wastes, which deals with waste disposal sites and has an obvious bearing on the subject. We have not yet finished studying that report. Moreover, in the context of proposals for integrated pollution control, consideration is still being given to the overall regulation of waste disposal sites and to the links between land and water pollution.

We are still carefully considering the implications of policies affecting the issues that are the subject of the amendment. However, I assure the House that we are keen to ensure the best practical protection of water quality from pollution by waste disposal and landfill sites. If further strengthening is possible in the context of the Bill, we shall pursue it.

The hon. Member for Barnsley, West and Penistone (Mr. McKay) raised an important point about discharges from collieries, particularly the Bullhouse colliery. I had the good fortune to discuss the matter with him, and I mentioned that I would provide him with comprehensive answers and additional information about the grants we were discussing in Committee. I shall hurry that along in view of his wish to pursue that constituency matter. I assure him that I will get back to him as soon as I possibly can.

11 pm

Mr. Boswell

As the Minister has extended his arm three quarters of the way to meet the issues that we have raised, I am prepared to wait one quarter longer for his final decision, in the confident hope that it will be a positive decision taken before the end of the passage of the Bill. In that spirit, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Moynihan

I beg to move amendment No. 64, in page 112, line 9, after 'public', insert— `( ) that person takes all such steps as are reasonably practicable in the circumstances for minimising the extent of the entry or discharge and of its polluting effects;'. I do so with confidence, because my hon. Friend the Member for Daventry (Mr. Boswell) welcomed the amendment when he saw it on the Amendment Paper and I am sure that it will be welcomed by Opposition Members.

Clause 104(2) provides that a person shall have a defence to a charge of polluting rivers and other controlled waters if he can show that the polluting discharge or entry was made in an emergency to avoid danger to the public.

The Government consider that that defence, which reproduces the existing provision in the Control of Pollution Act 1974, should be subject to an important condition. A person should be able to plead such a defence only if he can demonstrate that he has taken all reasonably practicable steps in the circumstances to minimise the discharge and its polluting effect. That is provided in this tightening-up amendment.

Even in the case of an emergency discharge, discha.rgers should have a clear obligation to do all they can to minimise the effects of their discharges. It will make a further small, but important and useful, contribution to a more effective system of pollution control, and I commend it to the House.

Ms. Walley

There is some concern that amendment No. 64 could be interpreted as a get-out or let-out provision. It is important that the Minister gives us some idea of what he means by "reasonably practicable". How subjective will that assessment be and who will judge whether something is "reasonably practicable"? Is the Minister concerned about whether the general public will consider something to be "reasonably practicable"? Will an action have to be "reasonably practicable" in the view of the water companies or in the opinion of Her Majesty's inspectorate of pollution which has been grossly under-resourced in terms of staff and so on?

The amendment appears to be highly subjective. The Minister needs to give the House some assurances on where the principle that the polluter pays fits into the amendment. For those reasons we seek further clarifica-tion from the Minister as to the purpose of the amendment.

Mr. Boateng

The uncharitable might believe that my hon. Friend the Member for Stoke-on-Trent, North (Ms. Walley) was being somewhat carping in her response to the Minister who has come to the Chamber at this time of night to move such an amendment. They would be deeply misguided in that view. The points that my hon. Friend raised have to be taken on board, because, sad to say, experience has shown that the water companies, which are to be regulated and controlled, and are subject to the legislation might seek to use the defence that the Minister has provided in the amendment. Those self-same water companies agree with Mr. Keith Court, who is chairman of South West Water. I note that the Minister for Water and Planning is even more languid than usual. One might think that he is the last Minister who can afford to be languid. He flings himself back on the Bench—were the cameras only present—a smile hovering on his lips, with mute resignation playing around those pearly gates.

Mr. Keith Court said: High calibre staff will be needed to outwit the regulators of the water industry after privatisation. Those high-calibre staff will no doubt be paid the high sums mentioned quite properly by my hon. Friend the Member for Bootle (Mr. Roberts).

If high-calibre staff are to be employed to outwit the regulators, it is vital that the question that we have asked is answered. There are circumstances in which a defence such as that provided by the amendment should properly exist. There should be a defence in an emergency, but what is meant by an "emergency"? In what circumstances does the Minister foresee that it would be reasonable for the polluter to draw himself or herself within the ambit of the defence?

That question becomes more important when one reflects on how existing law is administered and applied by the courts. Widespread concern has been expressed by not only Labour Members but Conservative Members about some interpretations of pollution control law, the fines imposed and the latitude that is sometimes extended to the polluter. We hoped for—I am sure that it is a hope shared by all reasonably minded people—the greening of the magistracy so that it might become more vigilant.

That is not an unreasonable hope, but Labour Members are not prepared to rely on hopes, which dominate the thoughts of Conservative Members. They hope that regulation will be effective and that somebody will purchase shares. We are not content to rest on hope; we want some certainty, which the Minister has not provided. When we receive that certainty, he may find that Labour Members are prepared to take a reasoned attitude to the amendment.

Mr. Richard Livsey (Brecon and Radnor)

The hon. Member for Brent, South (Mr. Boateng) omitted to mention the charity that might be offered by the amendment. That might be a let-out for polluters. I hope that it is not, but if one examines the amendment carefully a number of questions arise.

As the hon. Member for Brent, South rightly said, an emergency has not been accurately defined. Will the words "reasonably practicable" be defined? What steps should be taken when an emergency occurs to prevent it getting out of hand? The word "minimising" could also have various interpretations. One would have thought that "prevent-ing" would have been better than "minimising". I trust that my suspicions will be dispelled by the Minister. I hope that he will be able to convince me that the use of those words is specific and that he can explain their meaning in detail so that we can all be reassured.

Mr. Moynihan

It is in the nature of an emergency that it is impossible accurately to define what it will be. It is absurd for Opposition Members to suggest that the Bill could describe in detail a range of possible emergencies to back up the case. If an accident occurred, for example, at a water treatment plant and chemicals used in the treatment process got into the water, the water plc would have to make a decision as to the most important step to be taken in the light of public health. The company might conclude that the best step to take would be to discharge the affected water into the water course rather than allow it to find its way into the system. The company might not need to make that decision, but it is impossible to predict accurately all the factors that would need to be assessed in an emergency.

As the hon. Member for Brent, South (Mr. Boateng) so accurately stated, it is important that proper provision is made for an emergency, but it is rich indeed for the hon. Gentleman—a distinguished lawyer in his own right—to wish to define in greater detail the long-standing defence of "reasonably practicable". [Interruption.] There is a certain amount of barracking about whether the hon. Gentleman is a distinguished lawyer—a highly paid lawyer might be a more accurate description.

Mr. Boateng

Get on with it.

Mr. Moynihan

Suffice it to say, in the last two minutes of this debate, that it is for the courts to make the judgment in the light of all the circumstances. That is the key point. We seek to tighten the defence available before the courts by bringing forward amendment No. 64.

Amendment agreed to.

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