CLEAN AIR BILL (Hansard, 14 June 1956)

§ THE MINISTER WITHOUT PORTFOLIO (THE EARL OF MUNSTER)
My Lords, in moving the Motion which stands in my name, that the Report be now received, I regret that my noble and learned friend the Lord Chancellor is unavoidably absent, because he intended to make some observations on the first two clauses of this Bill. In his absence, he has asked me to make these remarks on his behalf. The House may remember that on the Second Reading of the Bill the noble and learned Viscount promised that he would consider two points arising out of the defence given by Clause 1 (3) to a prosecution for emitting dark smoke. The first, made by the noble Lord, Lord Chorley, was that the onus of proving the matters mentioned in Clause 1 (3) rested on the prosecution and not on the defendant. The noble Lord referred to a case in which he said that your Lordships' House had held that if at the end of the balancing … the jury are not satisfied beyond reasonable and probable doubt then the person who is accused is entitled to the benefit". That, I suggest, is so in a case where mens rea is in issue. The position under this Bill, however, is quite different. If dark smoke is emitted, then prima facie the occupier of the building is guilty of an offence. Once the prosecution have proved that there was dark smoke, the burden of proof is thrown on the defendant, and Clause 1 (3) makes it abundantly clear that this is so, because it provides that It shall be a defence to prove the matters specified in paragraphs (a) to (d).
The second point, made by the noble and learned Earl, Lord Jowitt, was that there was a danger that the defendant might succeed in the defence afforded, say, by paragraph (a) of subsection (3), if he showed that the cause of the dark smoke was partly the inefficiency of an old-fashioned furnace and partly the fact that it had been lit up from cold. There is no doubt that under subsection (3) (a) as drafted, the lighting up of a furnace which was cold must be the sole factor causing the emission of dark smoke. If, 1033 in fact, the contravention was not solely due to that factor—that is to say, if the inefficiency of an antiquated furnace were a contributory factor—the defendant would not be able to bring, himself within the wording of the paragraph.
I am advised that the same considerations apply to paragraphs (b) and (c), and also to paragraph (d). The latter paragraph merely ensures that a combination of the factors mentioned in paragraphs (a), (b) and (c) shall, in fact, be a defence. It does not enable the defendant to plead a combination of those factors and yet another factor. Thus, if the contravention complained of were partly due to the inefficiency of antiquated plant, it would not be due to the combination of two or more of the causes specified in paragraphs (a) to (c) It is because the inefficiency of the plant, on the one hand, affords no defence under Clause 1 (3), and, on the other, prevents a defence from succeeding under the clause, that it has been expressly made a defence under Clause 2 (1) (a); and it is to he observed that the defence under Clause 2 will be available only for the limited period of seven years from the passing of the Act. The noble and learned Viscount has, therefore, come to the decision that no Amendment is required to Clause 1 (3).
As to Clause 2, to which I now turn, the reasoning which makes it impossible to raise the inadequacy of a furnace as a defence under Clause 1 (3) will also preclude the defendant from alleging under Clause 2 that the contravention was due partly to the nature of the plant and partly to the fact that the furnace was being lit up from cold. The defendant, however, who has an obsolescent furnace which he knows must necessarily emit dark smoke may be expected to take all appropriate steps in the light of the provisions of Clause 2 (1) to minimise the emission of smoke until he can replace the furnace. If he does this, and particularly if he arms himself with a certificate of the local authority under Clause 2 (2), it is inconceivable that, provided he maintains and uses the defective furnace properly so far as this is practicable, the local authority will institute proceedings against him if, nevertheless, what appears to be an excessive quantity of dark smoke is emitted on occasions. So long as that 1034 is the position, it seems a reasonable condition in which to leave the matter.
If the circumstances are different, and the local authority are justified in instituting proceedings, because of bad maintenance or user of the furnace, the defence under Clause 2 will be of no avail to the defendant. And this, again, it is thought, is as it should be. Although the defendant would be unlikely to plead this, it might emerge in the course of the proceedings that the real cause of the emission of an excessive quantity of dark smoke was the lighting up of the furnace from cold, a fact which would not in the circumstances assist the defendant, for it could not be shown to he the sole cause. And thus once more it appears that the defendant would he justly dealt with if convicted of an offence under Clause 1 of the Bill. My Lords, those were the observations which my noble and learned friend intended to make on the first clause of the Bill, which I am sure is now clear to all noble Lords.
I gave an undertaking to the right reverend Prelate the Lord Bishop of Sheffield, and to my noble friend Lord Rochdale, that I would consult with my right honourable friend the Minister about inserting Amendments on the Report stage to meet some of the points which they raised. The right reverend Prelate—who, as your Lordships will remember, moved an Amendment to Clause 3 of the Bill, concerning the reconstruction of furnaces—has written to me apologising for his absence to-day. We have dealt most carefully with the matter he raised, but my difficulty has been, as I told the right reverend Prelate on the previous occasion, to find adequate words which would bring the owner of a furnace into Clause 3 when, instead of replacing the furnace, he undertook a radical reconstruction. I have also discussed this question with those who are engaged in the furnace building industry, and they agree that there is no yardstick whereby a division between reconstructions which did not attract the provisions of Clause 3 and those which did could, in fact, be measured. I have no doubt whatever that after the passing of this measure furnaces will he reconstructed to enable them to be operated without the emission of dark smoke. Clause 3 is a safeguard against the installation of furnaces which might emit dark smoke, but whether it 1035 applies or not, if dark smoke is emitted an offence will always have been committed under Clause 1 of the Bill.
My noble friend Lord Rochdale is also, unfortunately, unable to be present to-day, but he asked me whether an industrialist would be guilty of an offence under Clause 5 of the Bill if, after approval by the local authority, his grit and dust-arresting plant still emitted grit and ash. I have been advised that if this were the result of careless maintenance, then clearly he would be guilty of an offence, but that if the plant had been approved by the local authority and it was ultimately found to be of bad construction, due to no fault of the industrialist, then the local authority, in all probability, would refrain from prosecution.
My noble friend also asked me to reconsider the definition of "smoke." I think he is aware that much consideration has been given to this question since the Bill was first published, and advice was freely offered to my right honourable friend the Minister by many organisations, including the Federation of British Industries. On close examination, however, each definition was found to be impracticable, due to legal complications. In these circumstances, my right honourable friend reached the conclusion that no comprehensive definition of "smoke" would assist the objects of the Bill. I therefore hope that my noble friend Lord Rochdale will be content to leave the interpretation clause as it stands to-day. I apologise for these long observations and I now beg to move that this Report be now received.

§ LORD SILKIN
My Lords, I am sure that the House is greatly indebted to the noble Earl for the careful statement that he has made, and for so fully and comprehensively honouring the undertakings which were given by him and by the noble and learned Viscount the Lord Chancellor on the Committee stage. I, too, have to apologise for absent friends. I can give only my own impression of what the noble Earl has said and to draw the attention of my noble friends to his statement. He will realise, of course, that the statement he has made, 1036 both on his own account and on behalf of the noble and learned Viscount, was merely obiter dicta—in case the noble Earl is not quite clear what I mean, perhaps I should explain: they have no legal effect on the courts.
The Lord Chancellor has given his version of what would be the law and whether a particular set of circumstances would constitute a defence. In a sense, he may one day have to interpret that, and it might well be that his own statement in this House could be read in support of the contention which counsel might make on the matter. Apart from that, however, nobody is bound by his statement—certainly not the Lord Chancellor himself, and still less the noble Earl, Lord Munster, in so far as he is dealing with the law. If, in spite of the explanations that have been given, there is still some doubt or ambiguity on the points raised, I hope the noble Earl will appreciate that it is possible that further Amendments will be put down on the Third Reading. Speaking for myself, the impression made on me by these statements—and I found them reasonably clear—was that they were satisfactory; they appeared to meet the points that have been raised. I will draw my noble friends' attention to the statements, and no doubt they will act accordingly. May I once more thank the noble Lord for his statement?

§ THE EARL OF MUNSTER
My Lords, of the first four Amendments which stand in my name, three are drafting and the first one, which we are dealing with now, is consequential on Clause 3 (5) which your Lordships agreed to insert on the Committee stage of the Bill. I beg to move this Amendment.

§ THE EARL OF MUNSTER
My Lords, this is a drafting Amendment. I beg to move.

§ THE EARL OF MUNSTER
My Lords, this also is a drafting Amendment. I beg to move.