HL Deb 12 July 1961 vol 233 cc221-32

6.47 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Viscount Simon.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AILWYN in the Chair.]

Clause 1 [River Board's consent for pre-1951 discharges]:

VISCOUNT SIMON

This is a very simple Amendment and is really only for the purpose of clarification. It was always the intention and meaning of Clause 1 that it should be possible for applications to be made and dealt with as soon as the Bill becomes law. But it has been questioned whether the conditions attached to a consent given before the appointed date could be enforced before that date, in view of the fact that it is only after that date that the first subsection of Clause 1 becomes effective and declares a discharge without consent to be illegal. This Amendment therefore makes it plain that conditions may take effect before the appointed date, subject of course to subsection (6) of Clause 1 (which suspends their operation for three months or until an appeal is determined), and further makes plain that once these conditions are in operation they may be enforced under subsection (8) of the same clause. I beg to move.

Amendment moved— Page 3, line 15, at end insert ("and where consent is granted before that date subject to conditions, those conditions may, subject to subsection (6) of this section, take effect before that date")—(Viscount Simon.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 [Protection while applications are being dealt with]:

VISCOUNT SIMON moved, in subsection (2), at the end of paragraph (d) to insert: or (e) paragraph 32 of the Third Schedule to the Gas Act, 1948, or section sixty-eight of the Public Health Act, 1875 (which relate to pollution from gasworks) The noble Viscount said: This Amendment and Amendment No. 4 are really on the same lines. Your Lordships will have observed that in Clause 2 we provide that once an application has been made for consent the applicant is protected from prosecution under certain enactments until the application has been dealt with, either by the river board imposing conditions or by the Minister after appeal. It has been pointed out to us that there is a specific provision in paragraph 32 of the Third Schedule to the Gas Act, 1948, which imposes an absolute prohibition on Area Gas Boards allowing any waste products at all to flow into a river. That being so, the Gas Council have made the request that we should introduce this Amendment, and add to the enactments under which the applicant is protected from prosecution paragraph 32 of the Third Schedule to the Gas Act, 1948, and Section 68 of the Public Health Act, 1875, which also relates to pollution from gasworks. I beg to move.

Amendment moved— Page 3, line 40, at end insert the said new paragraph.—(Viscount Simon.)

EARL JELLICOE

I fear I rather missed my cue on the last Amendment. I should like to make it clear that this Amendment, like the last one and the other Amendments which my noble friend will be moving, has the full support of Her Majesty's Government.

On Question, Amendment agreed to.

VISCOUNT SIMON

This Amendment arises from the fact that some doubt was expressed, both by river boards and also by industry generally, about the effectiveness of the clause as it now appears. This clause provides that in certain circumstances the protection given to applicants may be withdrawn, and the circumstances are, If…the applicant has since the making of the application failed to use, or to repair or maintain, any purification plant". It was felt that in one way this was too wide, because "failed to use" might merely mean that it was used but was not used efficiently. The river boards felt that that was inadequate. On the other hand, industry felt that "failed to use" might mean that you had got to have full and continual use of the plant, and that a discharger might lose the protection of the clause where normal variations in the quantity or character of the discharge made it unnecessary and perhaps impossible to run the plant at capacity all the time. So the proposal is put forward that we replace those words by the words "make proper use of". I would just point out that the question of whether or not proper use has been made of plant, which is obviously a question of fact, would be decided, not by the river boards but by the magistrates' court, and it is only if proper use has not been made of the plant that the magistrates' court may decide, on an application, to withdraw the protection given to the applicant. I beg to move.

Amendment moved— Page 4, line 2, leave out ("use") and insert ("make proper use of").—(Viscount Simon.)

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4 [Protection for persons complying with conditions]:

VISCOUNT SIMON

This is an exactly similar Amendment to Amendment No. 2, dealing with the protection of the discharger once conditions have been laid down by the river board. I beg to move.

Amendment moved—

Page 5, line. 20, at end insert— ("or (e) paragraph 32 of the Third Schedule to the Gas Act, 1948, or section sixty-eight of the Public Health Act, 1875").—(Viscount Simon.)

On Question, Amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5 [Review and variation of conditions governing discharges and new outlets]:

6.55 p.m.

VISCOUNT SIMON

This Amendment has been submitted at the request of the river boards. They have pointed out that from time to time they may be asked for a purely temporary consent. For example, when a plant is being washed out once a year there may be a temporary consent for a particular type of discharge, and it is felt that it would not be at all appropriate in that case for all the formula prescribed in the First Schedule to be attached to the consent, and for there to be a rule that it could not be altered for two years. I beg to move.

Amendment moved—

Page 6, line 18, at end insert— ("(4) Subsection (2) of this section shall not apply to a consent or notice. which, in consequence of the temporary nature of the discharge to which it relates or for any other reason, will be spent within two years from the date on which the consent takes effect or the notice is given, and no notice shall be given under subsection (I) of this section varying the conditions of any such consent or notice except with the consent in writing of the person making the discharge.").—(Viscount Simon.)

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 agreed to.

Clause 7 [Other provisions relating to discharges and new outlets]:

VISCOUNT SIMON

These three Amendments—Nos. 6, 7 and 8—all run together, and I hope that it will be to the convenience of the Committee if I speak to them together, although I understand that we have to deal with them separately. I am afraid they are a little difficult to follow, and perhaps I might be allowed to read to your Lordships how the clause will run when these Amendments, if the Committee agree to them, have been added. The clause will then read: If the occupier of land or premises from which effluent passes or may pass to a stream by two or more ways meeting at the outlet, or a point short of the outlet, gives his consent for the purposes of this subsection. the power to impose conditions under this Act or section seven of the principal Act as to effluent discharged from the land or premises shall thereafter (and notwithstanding any change of occupation) include power to impose conditions as to the nature and composition, temperature, volume or rate of discharge of effluent passing in each or any of those ways separately. A consent given for the purposes of this subsection shall be recorded in the register under subsection (7) of section seven of the principal Act but may be withdrawn by agreement with the river board or the Minister. This is a rather complicated point. You sometimes have discharges running from two or three pipes into a common outlet. It may suit a discharger to have those three discharges tested and sampled separately. It was originally provided in the Bill that this could be done by the river board at their discretion, but it is now proposed that that procedure can be adopted only with the consent of the discharger. It is understood that in many cases it will in fact be suitable to the discharger to do it, and in those cases where it is not suitable it would not be at all appropriate to do it. I beg to move the first of these three Amendments.

Amendment moved— Page 8, line 22, leave out from beginning to ("stream") in line 25 and insert ("If the occupier of land or premises from which effluent passes or may pass to a").—(Viscount Simon.)

On Question, Amendment agreed to.

VISCOUNT SIMON

I beg to move Amendment 7.

Amendment moved— Page 8, line 26 after second ("outlet") insert ("gives his consent for the purposes of this subsection, the power to impose conditions under this Act or section seven of the principal Act as to effluent discharged from the land or premises shall thereafter (and notwithstanding any change of occupation)").—(Viscount Simon.)

On Question, Amendment agreed to.

VISCOUNT SIMON

I beg to move Amendment 8.

Amendment moved—

Page 8, line 29, at end insert— ("A consent given for the purposes of this subsection shall be recorded in the register under subsection (7) of section seven of the principal Act but may be withdrawn by agreement with the river board or the Minister.")—(Viscount Simon.)

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Clause 8 agreed to.

Clause 9 [Estuaries and tidal waters]:

VISCOUNT SIMON moved to add to subsection (1): ("but as if, in relation to any tidal waters or parts of the sea to which the provisions of the said sections two to five, or any of them, are first applied at a time after the commencement of this Act, for references to the date appointed under section one of this Act there were substituted references to a date twelve months after that time or such earlier or later date as may be specified in the order applying the said provisions")

The noble Viscount said: This is purely a technical Amendment, designed to correct a drafting omission. Certain orders may be made by the Minister, after the Bill becomes law, under Section 6 of the Act of 1951, which will have the effect of extending river board control of existing discharges to tidal waters to which it does not already extend. The Amendment before your Lordships enables the Minister to fix an appointed date in respect of any such Order. The reason is that if an order were made after the Bill had come into force, it might even be after the appointed date in the Bill, and it would be necessary to appoint a special appointed date to deal with the particular order. I beg to move.

Amendment moved— Page 9, line 18, at end insert the said words.—(Viscount Simon.)

On Question, Amendment agreed to.

7.2 p.m.

VISCOUNT SIMON moved to add to subsection (2): and the said Act of 1960 shall apply to any such tidal waters or parts of the sea as are not controlled waters but are waters to which, at the commencement of this Act, any of the provisions of sections two to five of the principal Act apply by virtue of an order made, or having effect as if made, under section six of that Act as it applies to controlled waters".

The noble Viscount said: This is again a purely technical Amendment to correct a drafting defect in Clause 9. The intention of Clause 9, broadly, is that the first three clauses of this Bill—those dealing with existing discharges—will apply, in tidal waters, only to those waters which are already, or may become, subject to an Order by the Minister under the Act of 1951. All the other parts of this Bill, much of which relate to new discharges and which amend the Act of 1951, apply to all those tidal waters to which the Act of 1951 applies, and they are the waters which were referred to in the Schedule to the Clean Rivers Act, 1960. It was thought that those waters in respect of which special Orders had been made were all included in the Schedule to the 1960 Act. It has been found that, in fact, there are a few which are not covered. There is one on the Yorkshire North-East coast and there are five in the Hull and East Yorkshire River Board area, and the purpose of this Amendment is to enable the Bill to apply to those six small tidal areas. I beg to move.

Amendment moved— Page 9, line 18, at end insert the said words.—(Viscount Simon.)

On Question, Amendment agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Samples of effluent]:

VISCOUNT SIMON

This is a very small drafting Amendment. As your Lordships will see, Clause 10 provides for the river boards to exercise their powers under the River Boards Act, but it has been pointed out that the Lee Conservancy Catchment Board exercises its power under a different Act, and that is the reason for this Amendment. I beg to move.

Amendment moved— Page 10, line 35, after ("1948") insert ("or under any other enactment").—(Viscount Simon.)

On Question, Amendment agreed to.

Clause 10, as amended, agreed to.

Clause 11 agreed to.

Clause 12:

Restriction of disclosure of information

12.—(1) If any person discloses any information which has been furnished to or obtained by him in connection with the execution of this Act or the principal Act he shall be guilty of an offence, unless the disclosure is made— (a) with the consent of the person by whom the information was furnished or from whom it was obtained; or

LORD BALFOUR OF INCHRYE moved, in subsection (1), to leave out "the execution of" and to insert, "any consent or any application for a consent under". The noble Lord said: Clause 12 was inserted into the Bill in the other place during Report stage at the request of industrial interests, who felt that the existing law did not adequately protect a trader against leakage of information about industrial processes which river boards might acquire, and it is right that in the Bill the responsibility of river boards should be that better provision is made for the protection of the trader. I have no objection at all to the Federation of British Industries' view that there should be confidential retention of information which deals with industrial processes, and that there should be no danger of rival concerns gaining commercial advantage through information disclosed by river boards.

But the effect of this clause, as at present drafted, is very much wider than that. As at present drafted, this clause would prevent river boards from giving any information about any subject which has to do with the operation of the Act. River board officials act not only in connection with river board matters, but also as protection officers for fishing; and when they are so doing it could be said that they are acting under the principal Act. If that be so, and there were a thousand or ten thousand poisoned fish, the river board officers would be unable to give to those responsible for trying to keep our rivers clean any details of matters as were revealed by such poisoning.

I am sure that the promoters of the Bill do not wish to prevent a river board from co-operating with riparian owners and others in the prevention of pollution and the full exercise of riparian owners' Common Law rights. Since the war, three Government Committees—the Hobday Committee, the Armer Committee, and, a few weeks ago, the Bledisloe Committee—have all recommended that the civil law in relation to pollution should be retained as a valuable supplement to statutory law. In other words, those, whether individuals or fishing clubs, whose waters have been polluted should retain the right to claim damages against the polluter, and, where appropriate, seek an injunction. A river board has no power except to impose a fine, whereas the riparian owner can get action in the way of an injunction and in the way of damages.

For many years, there has been happy co-operation between riparian owners and river boards in fighting pollution. Samples of polluted water and dead fish are frequently taken by riparian owners and handed to river boards for analysis. The river board may or may not take criminal action; that is for the river board to decide. But when the owner claims damages under civil law, he certainly needs analyses of the samples to prove his case. And, indeed, if I read one paragraph of the Bledisloe Report to your Lordships, your Lordships will see that my contention is borne out. On page 52 of the Bledisloe Report, paragraph 191 says: …For the purpose of removing any doubt there may be, we think it should be made clear that in a Common Law action any sample taken by a river board official should be admissible as evidence. As the clause is at present drafted, that would not be possible.

I quite appreciate the general purpose of Clause 12—to prevent the divulging of trade secrets which a river board official may discover in the course of his duties—but I must say that I think it is rather a remote contingency, as pollution has gone on for years past, and it was only at the Committee stage in another place that any fears were expressed. I regret very much that this clause was inserted without any consultations with interested parties such as the Anglers' Co-operative Association, which represents the interests of millions of men of all classes who fish all sorts of waters in this country. It would have been so much better, I think, had those responsible co-operated at the beginning.

The purpose of the two Amendments—and I move the first one; they are alternatives—is to provide industry with adequate protection while, at the same time, allowing the co-operation which has existed in the past to continue in the future, and also to allow the riparian owner to retain his civil law rights, assisted in their fulfilment with the help of the river boards, such as has occurred in the past. It seems to me quite unnecessary to impose such a complete ban on intercourse with outside people or bodies as this Bill at present proposes, and my first Amendment seeks to confine the ban to information that may be obtained as a result of consent or an application for a consent for the discharge of an effluent. I think that it is an eminently reasonable Amendment which I hope will find approval with the promoters of the Bill and also with the Committee. I beg to move.

Amendment moved— Page 11, line 36, leave out ("the execution of") and insert ("any consent or any application for a consent under").—(Lord Balfour of Inchrye.)

7.11 p.m.

VISCOUNT SIMON

This Amendment is not quite so simple as the noble Lord has tried to make us believe and as I am sure he believes himself. Like all your Lordships, I have only had an opportunity of seeing this Amendment this morning and there has not been a great deal of time to look at it, but, so far as I am advised, in the principal case that he has brought before the Committee the noble Lord has been misdirected. It has been pointed out to me that the power of sampling derives from Section 16 of the River Board Act; it is not derived from this Bill at all, and therefore Clause 12 would not prevent the passing of a sample, if, in fact, that is what is done. This raises a rather wide issue. I was not aware of this practice and I do not think that your Lordships would generally agree that it is a good idea for a public body to be given powers which they can then use to support a private person in claiming damages from some other private person. That seems to me a rather curious thing, but I understand it has been going on, and I am advised that this clause as it stands would not prevent its going on.

Generally speaking, I prefer the wording in the clause, perhaps because one always prefers the wording one has been brought up to, but. I do not know whether there is a great deal of difference in what is now proposed. I have to point out that the wording of the Amendment would need to be looked at, not only because applications and consents are affected, but also because the case—I think it is in Clause 1 (5)—where no application is made and the river board has to impose conditions would somehow have to be brought within the Amendment. I would ask your Lordships to accept the clause as it stands, and perhaps between now and the Report stage I could have some further conversations with the noble Lord—we have not had any talk together except a brief one in the House this afternoon—and see whether I can satisfy him that his Amendment is unnecessary or whether, between us, with the interests concerned, we can find an Amendment which could be accepted.

EARL JELLICOE

I think that at this stage the waters we have been discussing have become a trifle murky, even polluted. I confess that I am still not really clear about the full implications of my noble friend's Amendment, despite his lucid exposition. At first blush, I confess I also share some of the hesitation which my noble friend Lord Simon has just expressed. Therefore, I would hope that my noble friend Lord Balfour of Inchrye will not press this Amendment at this stage, more especially since he raised the question of consultation. On this Amendment there has been no chance of consultation with interested parties. I may add that before the existing clause was incorporated in the Bill, there was full consultation, at least with the River Boards Association. There has not been much time to consider this rather complicated Amendment. I should hope that we could go along with the suggestion made by my noble friend Lord Simon—namely, that if my noble friend could see his way to withdraw his Amendment at this stage, we could have a look at the whole matter between now and Report stage.

LORD BALFOUR OF INCHRYE

I always want to respond to an appeal, but I must make one or two remarks—first of all, with regard to the strictures as regards shortage of time. Perhaps these would be better addressed to those who promoted the Bill and did not take into consultation the fresh water fishing and anti-pollution interests, but dealt so promptly and efficiently with large industrial enterprises.

EARL JELLICOE

I thought I had explained to my noble friend that there was full consultation with the River Boards Association, who surely deal with fresh water.

LORD BALFOUR OF INCHRYE

Yes, but river boards vary very much and do not all have the interests of anti-polluters in mind in the way some of us would like. It would have been much better if the Salmon and Trout Association and the Anglers' Co-operative Association had been brought into the picture at an earlier stage, and that is the reason why there is such a shortage of time—I was only told about this at a later stage.

I will withdraw my Amendment provided the noble Viscount, Lord Simon, comes with me in the general intention that co-operation between all the interests aimed at keeping our rivers clean shall continue unprejudiced in the future as in the past. I was not much attracted by the noble Viscount's words when he spoke about a "curious thing". There is nothing underhand in a river board giving the result of an analysis to a fishing club or to a riparian owner. After all, the river boards are paid for by the public, and I think it is only right and natural that they should render that service. If the effect of rendering that service enables someone to obtain damages, that is a matter for the judiciary to decide. But if the noble Viscount will come with me in trying to work out an Amendment—and I think he has a valid point with regard to my Amendment when he says that it covers the case where no consent is asked for—with the wish to co-operate in arranging that the liaison which has existed in the past should continue in the future and that the riparian owner's rights of redress by way of injunction for damages should not in any way be affected indirectly by the Bill, I shall be glad to withdraw my Amendment. Otherwise, I feel it is an Amendment upon which noble Lords could well express their views.

VISCOUNT SIMON

I do not wish to delay the House as late as this by dividing on this Amendment. I should certainly like to go with the noble Lord in the spirit of co-operation. I hope he will not ask me to sign my name to the rather long sentence he gave to me, which, I am afraid I have not got in my head. The only thing I would say is that I feel the co-operation must be not merely with the Salmon and Trout Fishing Association and the Anglers' Cooperative Association, but also with the River Boards Association and the Federation of British Industries—in fact, with all the interests concerned in the Bill. Provided that we have the cooperation of all the interests concerned in the Bill, I will gladly give the noble Lord an assurance that I will go with him to try to find a mutually acceptable Amendment.

LORD BALFOUR OF INCHRYE

With that assurance, and with freedom to come back to the subject on Report stage, if necessary, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Remaining clauses and Schedules agreed to.

House resumed.