§ 3.56 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.—(Lord Hughes.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 1 [River purification authority's consent for certain discharges of effluent]:
§ LORD CRAIGTON moved, in subsection (3), to leave out "think fit" and insert "reasonably impose". The noble Lord said: For the convenience of your Lordships, I should like to discuss this Amendment with Amendments Nos. 2, 4 and 5. We seek by this series of Amendments to bring this Bill into line with the English Rivers (Prevention of Pollution) Act, 1961. Very briefly, the point is that in England the authority may grant consent subject to such conditions as they may "reasonably impose". In Scotland the authority is to grant consent subject to such conditions, not as they may reasonably impose, but, as they may think fit".
I do not base my opposition to this phrase "think fit" on the grounds that something "reasonable" may be preferable to something "thought fit", simply because there is, whichever phrase is used, a last resort appeal to the Secretary of State in Clause 6(2). That last resort appeal is couched in words that make it clear that the Secretary of State has an obligation to act reasonably. It is quite a short clause, and says:
Where an appeal is made as aforesaid, the Secretary of State may allow or dismiss the appeal, or may vary or revoke any terms of any such consent or notice, or may impose such new terms as he may think fit, and in the case of an appeal in relation to an application may deal with it as if it were an application to him in the first instance.
So, whichever words are used, the words I should like to insert or the words in the Bill, it seems clear that on appeal the outcome will be the same. I ask the noble Lord, if I am right on this, why change from the wording in the English Act? What is happening? Industrialists are confused and worried and are likely, with
two different codes in the two countries, to remain so. Boards, for whom this Bill is, after all, their instructions, may well take this change of wording as encouragement, if not instruction, to take a firmer line than is required of their English counterparts, or a different line. All those aggrieved by a condition will, in making their protests to the board, and perhaps later to the Secretary of State, be unnecessarily confused and may well read more than is intended into this change of law as between the two countries.
§ Again, local authorities, who may well spend some £50 million over the next ten years, and industry probably more, are also considerably concerned about the use of the word "reasonable". For these reasons, and because I am unaware that the wording of the English Act has caused any difficulty, I think and I hope that the noble Lord will accept these Amendments. I appreciate that in this respect the change made by the Government is a laudable attempt to make an improvement, but for the reasons I have given the risks of confusion and misunderstanding are great, while the improvement, if any at all, is marginal and, in my view, far too marginal to justify the interpretation of similar powers in the two countries by the use of different words.
§ I mentioned the figure of £50 million as the amount local authorities would possibly be spending, and in this connection I must raise here, because it is appropriate, one matter of which I have given the noble Lord notice. On October 12, 1964, the Scottish River Pollution Advisory Committee made a report to the Secretary of State which was, in effect, essential background information on the urgency and extent of Scotland's clean river problems, and that recommended that a £50 million programme of spending over the next ten years should be announced by the Secretary of State. If that is the size of the local authority problem, then I am advised that the industrial costs may well be about £75 million and farming costs perhaps £25 million. Under Section 1(4) of the Rivers (Prevention of Pollution) Act, 1951, the Secretary of State is obliged to lay before both Houses any such report which, in his opinion, is likely to be of general public interest.
§ Just after the report was presented to the Secretary of State, this Bill was 201 to go through both Houses. This is such a report of public interest. That report of October 12, 1964, was laid before both Houses on March 4, 1965. It is not for me to comment on what happens in another place, but it seems plain that while they should have had, and indeed could have had, this report available for all stages of this Bill, it was available for none of them. In your Lordships' House the Second Reading was on February 25, and I must ask the noble Lord why this report of October 12, 1964, was made available to us, not on February 25 or before that, but six days after Second Reading. It would have been no more than courtesy to let my noble friends, who had many speeches to make and much interest in this Bill, have this background information. The matter is more important than just in the consideration of the desirability of "reasonable" or "think fit"; on every aspect of this Bill one should take into account the nature and size of the problem of which we now, for the first time, have some advice.
I am not going to read this report, but I should tell your Lordships the sort of information that is in it. The report explains the problem of Scottish prevention of pollution, and it is addressed to the Secretary of State. The Advisory Committee say they have consulted all the river pollution authorities. They go on to give the various categories of work to be done and how much should be spent, and then they recommend that a capital expenditure programme of £50 million on the provision of new and improved sewage purification works should be put in hand. They comment:
We stress that this estimate is realistic and certainly not excessive. Indeed it is the minimum sum required to meet current needs.
They go on to say, for the reasons they give:
We recommend, also, the adoption of a ten years' plan to provide new and improved purification works and that you"—
that is, the Secretary of State—
should publicly announce this programme and see that it is carried out. We recommend, too, that those local authorities, of whom you have details, who are remiss in discharging their functions in this field should be stimulated to provide adequate and efficient sewage purification works".
Finally they say:
Acceptance of these recommendations would involve additional expenditure of but £2.4 million per annum by local authorities during the decade. The Committee cannot conceive that a nation enjoying a high and increasing standard of living, and calling for higher standards of social and recreational facilities, would be unwilling to meet the necessary expenditure—a sum less than the cost of a toilet roll per head of the population per month.
§ I must ask the noble Lord, even at this late hour, whether the Government accept these recommendations; secondly, I ask him to explain the extraordinary delay in the fulfilment of a Statutory obligation which resulted in important and available information being denied this House and presumably the other place, at the time we should have had it; and thirdly, would the noble Lord please accept my Amendment? I beg to move.
Page 2, line 3, leave out ("think fit") and insert ("reasonably impose").—(Lord Craigton.)
§ LORD BALERNO
I should like to support my noble friend Lord Craigton in his desire that the word "reasonable" should be retained in this Bill, as it was in the former Act. The deliberate exclusion of the word surely has some significance, and the substitution of the words "think fit" puts a greater onus on the inspector for sewage purification, from whom may well develop an extreme officialdom. We have to remember that these inspectors will be dealing with a variety of farmers whose effluent is causing trouble and who are unaware of the intensity of these regulations, and they may themselves become somewhat unreasonably difficult to deal with. I think it is most important that the inspectors who carry out this work should be instructed to do so in a reasonable manner, and the deletion of the word "reasonable" from the Bill seems to me to put too much authority on the shoulders of persons who are perhaps not the best fitted to carry it out.
LORD STRATHEDEN AND CAMPBELL
I would also support the Amendment of the noble Lord, Lord Craigton, largely on the ground that the substitution of "reasonably impose" for "thinks fit" really strengthens the authority of the purification boards. And I speak as a member of one river 203 purification board. "Think fit" is what goes on in their heads, and they impose those conditions. "Reasonably impose" gives a very strong implication that the matter has been carefully considered and is not put forward unless it is a really reasonable case. On those grounds, I support the Amendment.
§ LORD HUGHES
I am sorry I cannot accept the Amendments, because they would not improve the Bill at all. In the first place, I think the fears expressed by noble Lords that the change of words would cause concern to industry are groundless, or will prove to be groundless. I am certain that industry itself has no cause to worry about this change. When this particular Amendment was considered in another place an honourable Member there, who took a very prominent part in the consideration on the side of Her Majesty's Opposition, saw fit to observe that he did not consider that in this matter industry had the slightest need to fear. When I add that the Member concerned would be described there as the "honourable and learned Member", perhaps the value to be placed on the interpretation of words is even greater.
May I say just briefly why the wording was changed? It relates to the fact that there is now incorporated in the Bill appeal procedure which fits in with the requirements of the Council on Tribunals; and, strange as it may appear to noble Lords who have expressed the view that "reasonable" places greater restrictions or greater responsibility upon a board than "think fit", in fact it is the reverse, because when the Secretary of State has to consider an appeal in terms of the old procedure the only thing which he really is entitled to take into account is whether or not the board have been reasonable in their decision. The Secretary of State may be in the position of saying, "I do not think that this is a good decision, or the right decision that you have arrived at. But that is not my business. I cannot say, although I think your decision is wrong, that it was unreasonable". Therefore, as the appeal is against only the reasonableness of the decision, the Secretary of State has really little authority.
But in terms of the appeal procedure which we are now putting into the Bill, 204 the Secretary of State has unrestricted power to examine on behalf of the appellant the whole of the nature of the decisions, or the consents, or the refusal of consent that has been made by the river purification board, and he can accept them, amend them, revoke them, or substitute something else for them, as he may think fit. I would remind your Lordships that none of the Amendments seeks to alter the decision of the Secretary of State to deal with the matter as he thinks fit. So that, contrary to what may appear, the inclusion of the appeals machinery and the use of these words is, in fact, a greater safeguard for industry than existed in the previous Act. The Secretary of State is able to open up the whole matter on appeal.
In case we get too far away from reality in looking at these appeals, I should not like your Lordships to believe for one moment that the result of this legislation is going to be a flood of appeals to the Secretary of State. From the time the first Act was passed, in 1951, up to date, there has been only one appeal launched in the whole of Scotland against the decision of a board, a clear indication that there is no bureaucracy-ridden operation going on on the part of these boards. One would not think, if I may be permitted to be inconsistent, that it is reasonable to expect that boards which now have to account for their decisions to the Secretary of State by stating their reasons, should suddenly become a body who are to have no real regard for the interests of the appellants. For these reasons, I am unable to accept these Amendments which would act against the interests of industry and of agriculture, and would not in any way help the boards to carry out their task.
If I may proceed from that to the other point which the noble Lord raised, I am a little surprised at the strength of the language which he used in this matter, because, after all, he mentioned that the Report was dated October 12. I would remind your Lordships that the Election was held on October 15, so that the Report, dated and delivered presumably not later than October 13 or 14, would be received by Scottish Ministers of whom the noble Lord. Lord Craigton, was one; but one could not expect even the previous Administration to act on a £50 million matter the day 205 before the Election. So we can forgive them if they did not rush into print on this matter as quickly as perhaps they did on some other subjects during the previous year.
But that is not the only part of the story. In fact, there was a report of an advisory Sub-Committee a year before, in May, 1963, about the need for additional expenditure; and this, I am informed, was under discussion with Scottish Ministers for almost a year before the formal report was tabled. There were considerable discussions with Ministers as to what should go into the report. The noble Lord, Lord Craigton, may well have been one of the Ministers taking part in those discussions. In fact, the last meeting between the Committee and the then Secretary of State himself was in May, 1964. It was then decided that a formal report—I emphasise "formal report", because the Secretary of State had in fact been receiving reports in discussions for a period of almost a year—should be submitted; and this was the first report to the Secretary of State under Section 1 of the 1951 Act.
The Sub-Committee were asked to edit a report for submission to the Secretary of State, and it was decided—this may interest some noble Lords who were questioning me earlier on this—that it should be signed by all members. The result was that the report, although dated October 12, 1964, was not submitted to the Secretary of State until the following month. Although it is dated October 12, the previous Secretary of State did not in fact see it in its final form, although one may suspect that, because of all this discussion, he had a hand in formulating what was going to be in it; so he may well have been one of the compilers although his signature would not be on it.
In regard to Ministers, one would not have blamed even an Administration which had been in office for thirteen years if they took a little time to consider the implications of a first report of this kind, even though they had been discussing it, off and on, for a year; and if they took a little time to consider whether or not the report was to be published. New Ministers, therefore, must obviously be entitled to at least the same, if not a little more, latitude on this subject. 206 Therefore, I would suggest to your Lordships that in fact there has been no unreasonable delay at all in deciding to table this report, because in deciding to do so the Ministers would obviously prefer to be in a position to indicate fairly quickly the action which they were going to take on it, I can say that within only a few days the Secretary of State will have given an indication of the reaction of Ministers to this report.
Finally, on the report, I do not think there is the least impropriety because the report was not tabled earlier, just because we were discussing this Bill and another place was discussing it earlier. Surely, when a Bill is placed before your Lordships' House, or when one is placed before another place, it is to be considered on its merits as to whether there is need for legislation, to consider whether rivers are polluted and whether or not it is necessary that they should be kept clean or made clean. It would be all wrong if the impression were to be created (and it would be quite erroneous, because I am sure the noble Lord, Lord Craigton, is not suggesting this in any way) that we should have sought even greater powers than there are in the Bill if noble Lords had known there was a suggested expenditure of £50 million—or, worse, that because this might well be a costly thing to do we should have sought less powers, so that it would not be possible to spend the £50 million. Either way the amount involved is irrelevant to the consideration of the machinery which is necessary. Either it is right that we should make it possible for our rivers to be clean, or it is not right. If it is right, then it matters not whether at the end of the day the expenditure is going to be £20 million, £50 million or £125 million, or even more if one aggregates the expenditure of all those who would be involved.
Having said that, I hope noble Lords will not have forgotten the main purpose of my being on my feet at this moment. It is to invite them to accept what I have said: that the purpose of the change of words in the clause makes it better for those who are to be the possible subjects of instructions or refusals of consent, and that to go back to the 1951 form of wording would not be in the interests of industry, of agriculture or of clean rivers.
§ LORD CRAIGTON
I am grateful to the noble Lord for his reply, because he 207 had very short notice from me. He gave the background history of this report which he said was available to the Government in November. He did not give us a date, and I will not press him. He said that Ministers required a little time to consider the report. Of course that is so, but at this time the Bill was going through its stages in another place. I put it to the noble Lord that it might have been wiser for the Government to say, "We have not considered this report, but this is information which should be available to the Houses of Parliament". Whether or not that is so, they had plenty of time to consider it between November and February 25, rather than March 4.
I do not think the noble Lord's explanation has satisfied me why there should be this apparent discourtesy to your Lordships, to wait just six days after the Second Reading to produce this important perspective report. I agree that this Bill covers something that will have to be done anyway, but, whether something is going to cost £150 million or £50 million, this might have covered the Bill at many stages, and it might have been a better Bill had this report been available.
On the matter of the Amendment, the noble Lord quoted my honourable and learned friend in another place. He observed that there was not much difference between the two sides on this point. I wonder, again, whether, if the Houses of Parliament had known how much money was involved, they would have taken the same view. I do not press this Amendment. I am grateful to the noble Lord for his clear explanation of the reason for the change, which I am sure will be much welcomed and which we want to get on the record. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.24 p.m.
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ LORD DRUMALBYN
May I ask a question on the working of this clause? Under subsection (1), everybody, as I understand it, will have to apply for the right to discharge trade or sewage effluent into a stream. Clearly, if conditions were made at that time applying to everybody wherever there was gross pollution of a 208 heavy degree of pollution in a stream, the amount of expenditure which would have to be incurred in a short time would be heavy indeed. I understand from the report to which my noble friend alluded a few minutes ago that in regard to local authority expenditure the recommendation is that the rate of expenditure should be at £5 million a year. Presumably, the expenditure will have to be spaced over the period of ten years—I should like to receive an assurance from the noble Lord that the same consideration will be given to industry, and that its expenditure will be spaced over that period.
If industry were to be expected to incur "perfectionist expenditure", so to speak, in the early part of the period, it would be difficult, in any case, to achieve the programmes within the times laid down by the river purification boards. Apart from that, there would be a feeling of unfairness in industry that harsher terms and conditions were being applied to them than were being applied to the local authorities. So I would ask the noble Lord whether he will give an assurance—and I am sure that he can give it—that the purification boards will proceed by gradually turning the screw where this is appropriate. Admittedly, in certain cases it will be necessary to install a complete new purification plant, but I ask that they will proceed by gradually turning the screw and by possibly dealing with the matter firm by firm, rather than by trying to secure in the early stages, as soon as the applications are made, the degree of purification which they hope to achieve. I hope that I have made myself clear and that the noble Lord will be able to give that assurance.
§ LORD HUGHES
I have no hesitation in assuring the noble Lord that the process must be gradual. It would be a physical impossibility to expect industry or local authorities overnight, over a month, or over a year, to bring about all the improvements that would be necessary. I say this without in any way implying the rate at which expenditure would be undertaken on the public side. I am not absolutely certain about the extent to which I can, with propriety, quote what my right honourable friend said in reply to a question in this respect only to-day in another place; but if I do a certain amount of paraphrasing I cannot go far wrong. What he said in 209 reply would not have been unacceptable to the noble Lord. In fact, the indication was that the level of investment in sewage purification would be increased as soon as is practicable, having regard to the fact that the practicability of the Committee's recommendations would be taken into account by my right honourable friend in the Government's current reappraisal of expenditure and priorities. I hope that will make him happy, as I think it ought to.
§ Clause 1 agreed to.
§ Clauses 2 and 3 agreed to.
§ 4.30 p.m.
§ LORD CRAIGTON moved, after Clause 3, to insert the following new clause:
§ Control of seepage
§ ".—(1) Where any trade or sewage effluent, the volume of which in any day exceeds 5,000 gallons, is discharged into any well, borehole, pipe, shaft or quarry the river purification authority shall have power but shall not be bound to add substances or liquids to such discharges for the purpose of ascertaining whether such discharge is causing an offence under this Act.
§ (2) Where in relation to such discharge the river purification authority are of the opinion that seepage of such discharged effluent into a stream may give rise to an offence under this Act or that an offence has been committed, they shall require the person making the discharge to apply for consent (within a period specified by them) and the provisions of this Act and of the principal Act shall apply and the river purification authority may grant or refuse consent or grant consent subject to such conditions."
§ The noble Lord said: This is an Amendment about holes in the ground. We had difficulty in the Spray Irrigation Bill about the danger, if any, of drawing too much water out of holes in the ground to the detriment of the volume of flow in a stream, and we did nothing about it in that Bill. I could foresee difficulties and dangers being created for the drawer-up of fresh water, by the putter-down elsewhere of noxious effluent, without any stream being affected. It seems clear to me that the time may come, especially after the prohibitions of this Bill, when the Government of the day must consider the control of water, whether it goes into or whether it comes out of holes in the ground—in fact, the control of anything that goes into and comes out of holes in the ground.210
§ This is not a Bill to cover the whole control of this subject, and my Amendment is intended to cover only the narrower scope of river purification. It was suggested on Second Reading that there was danger of a stream being contaminated by underground water; and in reply the noble Lord, Lord Hughes, said in effect: If there is contamination there will be an offence under the Bill, so there is no need for any special provision. But this is not the whole answer. The board would have to prove a contamination, but the board have at present no powers to add any tell-tale substances at source, and without such a device it might be very difficult to prove where the contaminated water was actually coming from. The board might know of the discharge underground. They might fear a serious breakthrough or seepage that might not occur for months, or even years, which, once started, might continue for months or even years after the source of discharge had been found and stopped. But the Board, under this Bill, could do nothing until the proven seepage had actually started.
§ The dischargers might have been helped by the skilled guidance of the board, and they might welcome official consent in a case where the dischargers were unsure whether the discharge would lead to contamination of a stream. My Amendment authorises the board to try to find out whether there is an offence or a danger of it; and if there is, empowers them to treat such a discharge as coming within their powers of consent.
§ Commenting on the Amendment itself, I do not believe that one can make it obligatory on an authority to do a tell-tale test, as with a large volume of fluid this might be possible only by using radioactive tell-tales that might themselves be dangerous. But they should have powers to do whatever is practicable. I have not put this in the Amendment, but it is for consideration whether the large dischargers—and my Amendment is limited to the large dischargers—should be required to advise the board that they were making a discharge, and not wait, as it were, to be found out. It is admittedly breaking new ground to have power to stop or control a discharge that has not yet done any harm, but this is where, as I have explained, the greatest risk may well 211 lie. Of course, if the person putting the effluent in is stopped because of the risk which has not yet happened, there is always the appeal procedure to the Secretary of State.
§ There has been considerable pressure on some of us to move an Amendment to enable all boreholes to be controlled under this Bill. For the reasons I have given I do not think this would be the right thing to do. But I do believe—and my Amendment seeks to express this—that we must in the public interest control in this Bill any boreholes that are, or are likely to be, a danger to proper river purification. I beg to move.
After Clause 3, insert the said new clause.—(Lord Craigton.)
LORD STRATHEDEN AND CAMPBELL
My noble friend has moved this Amendment very clearly and cogently, and has covered every aspect of it. I was also going to raise the points which he raised. These substances which can be put in to indicate whether there is any seepage should be added before the actual pollution takes place. In fact, any person or firm, wishing to discharge into abandoned mine-workings and suchlike, should ask for prior approval, provided that those workings are within the area of the purification board. That goes part of the way of the English Water Resources Act, 1963, but it does not go nearly so far as that Act, which says that it shall not be lawful for any discharge of an offensive nature to be put into any hole in the ground, as my noble friend described it. I think this is a very important addition to the Bill, and I hope that the Government will give very serious consideration to the inclusion at the Report stage of something on the lines of the Amendment put down by my noble friend.
§ LORD HUGHES
I am grateful to the noble Lord for the Amendment which he has tabled, and about which he and I have already had quite considerable discussion. I am very much in agreement with the anxieties which are expressed about this problem, although it has not yet arisen in Scotland to any great extent. But we must accept that at least a possible consequence of the considerable expenditure which might be 212 placed on industry if they were to continue to discharge effluent into a river, is that they might look for other and apparently cheaper ways of disposing of this. Tipping it down a disused coal pit or a disused quarry might involve only a very minor expenditure on transport, as against a very considerable expenditure in other directions. So it may well be that this is a problem which could grow very much greater.
Might I just point out briefly that, in so far as the disposal of effluent in this way results in a seepage into a river, there is an offence within the operations of the Bill. The river purification board would have authority to act in the matter, particularly if they themselves were satisfied, even without being able to follow the seepage back to its source, that this was the only possible way in which it could have reached the river, and could seek to impose conditions upon it. But, as I say, there is little experience. So far as I know, there is only one case of the kind at the moment. I do not know if we can go so far as to say that it has made a seepage into the River Clyde, but the authority concerned about this at the moment is the Clyde River Purification Board. The attempt to deal with the matter is a laudable one, but it would be wrong for me at this stage to accept the Amendment, because the difficulties of the solution might be worse than the difficulties of doing nothing about it in this Bill.
First, as the noble Lord, Lord Craigton, has indicated, we cannot adopt the English precedent in this matter, as very comprehensive powers in this matter arose there because they were part of the Water Resources Bill. I would remind your Lordships that this is a Bill to prevent the pollution of rivers, and it is at least conceivable, if not certain, that eventually there will be effluent put down quarry-holes or disused collieries which will not at any time have any effect whatsoever on rivers or streams anywhere in Scotland. To seek to control them, therefore, in a measure intended to control rivers would be dishonest. It may be that the need will develop, and if that happens I have no doubt that Parliament will consider, and, if so advised, enact, legislation to control dumping in quarries, boreholes, pits, whatever it may be, in Scotland in the same way as has been done for England and Wales.
213 I come to the aspect of being able to put in liquids or materials, to help an authority to determine whether or not a dumping in one particular place would cause seepage to a particular stream. This question itself, of course, is not without difficulties. The quantities could be very considerable. In fact, the Amendment limits them to quantities in excess of 5,000 gallons per day. You do not trace, particularly if it is going to take months to do, by tipping in just a bucket of dye. In fact it might involve the addition of very large quantites indeed before they had any effect. Thus the result might be that the authority would be contriving to make themselves polluters of their own streams particularly if, in the process, they happened to affect supplies of water which were being used somewhere for domestic purposes. The users of these supplies, I suggest, would take a rather dim view if they suddenly found that they were getting green, yellow or red water.
But there is worse than that as a possibility. The most likely material to be used to determine the presence of seepage would be tracer elements, and as soon as one gets into the use of radioactive materials there is the possibility that one would create greater fear and alarm through having these going in many directions in underground strata, and eventually arriving in streams, particularly when, as the noble Lord, Lord Craigton, has, I think, very fairly stated, the periods involved may be very long. They may be months; they might he a year. In order to be effective, one would have to use radioactive materials which would have a half-life at least long enough to enable them still to be functioning at the expiry of that time. If, in fact, they were wrong, and the materials reached the streams very much faster than was anticipated, they would have proved their point, but at the expense of having radioactive substances then in their rivers for a very considerable period before they had ceased to be a possible danger.
I hope I have shown that the solution is not an easy one. It may be that it will not be possible to put something into this Bill which would come competently within the Title of the Bill. But 214 Her Majesty's Government are very sympathetic to it. They believe that there is a possible danger (perhaps, if we were discussing this in two years' time, we might be forced to say that there is a certain danger), but how we could deal with it in the time since this was first raised, quite frankly, I am not in a position to say. I am grateful to the noble Lord for having tabled this Amendment. I can assure the Committee that the matter is being very carefully examined, not just from the legal point of view but from the technical and the scientific points of view; and if it is possible for an Amendment to be put down at the next stage, then I shall be very happy to do so. If that is not possible, there will perhaps be an opportunity at the next stage to say just why Her Majesty's Government have found it impossible to do anything.
I should like to conclude on this item by saying that it has been most important for the public interest that this matter should be ventilated, because, whether or not anything is included in the Bill, the whole subject will now be kept under close examination, so that if further and more comprehensive legislation on this subject than is possible in this Bill should become necessary, Her Majesty's Government will undertake it. I therefore hope that the noble Lords will find it possible, on the assurances which I have given, to withdraw the Amendment.
§ LORD CRAIGTON
I am very grateful to the noble Lord for his reception. He and I knew that my Amendment, as drafted, was not acceptable, and we both realise that a solution, if we can find one, is not easy. I agree with him that we should try to find one. One point I would put to him is this. This Amendment, if he can draw one up—and he will have every assistance from myself and my noble friends—will affect the industrialist. We want to protect the industrialists from vexatious controls, but I know that the industrialist does not want to commit any offence to health. In that spirit, I have much pleasure in asking leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 4 to 7 agreed to.215
§ Clause 8 [Application of Act to tidal waters]:
§ 4.46 p.m.
LORD CRAIGTON moved to add to subsection (4):
In performing any functions under this Act or the said section 28 in relation to tidal waters (including all controlled waters) a River Purification Authority shall have special regard—
§ The noble Lord said: As I said in the debate on a previous Amendment, this Bill will be taken by the boards as an instruction on which their whole operations are based, and by this Amendment I seek to add words that draw the attention of boards to a matter of great importance in the area of their jurisdiction, and not least towards their responsibilities regarding offences under the Oil in navigable Waters Acts, which are referred to in a later Amendment. Such an Amendment as mine is well precedented. Similar general instructions are included in the Clean Rivers (Estuaries and Tidal Waters) Act, 1960; these were re-enacted in the Rivers (Prevention of Pollution) Act, 1961; and there is a kindred instruction, much on the same lines, in the Water Resources Act, 1963.
§ There are two good reasons for my Amendment, apart altogether from precedent. First, the Bill envisages almost a new approach to the problem of tidal waters, and this Amendment is an important safeguard for the many interests that may be concerned. Secondly, complex technological issues are involved, and the boards should be sure of the scope of the issues with which they should concern themselves. My wording may be faulty, but I hope the noble Lord will not turn this Amendment down, if he is going to turn it down, without further consideration. The simple point is that words such as I wish inserted, and which are suitable to the conditions of the English rivers boards, are in the English 1961 Act. In this, our Scottish Bill, there are no such words at all. I feel this is wrong. It is causing unnecessary disquiet, and 216 I ask the noble Lord, even if he cannot accept my words, to consider this matter carefully between now and Report stage. If he will do this, I believe he will decide to put down, in words that suit Scottish conditions, the sort of Amendment that I know he knows I want, and which Scotland, I think, wants, too. I beg to move.
Page 9, line 3, at end insert the said words.—(Lord Craigton.)
§ LORD HUGHES
I am sorry that I appear to be unreceptive this afternoon, but I cannot accept this Amendment, either, for a variety of reasons; and, because the Amendment covers a variety of reasons, I will follow the noble Lord's excellent example on this occasion and stick closely to what I have written.
An Amendment differing only in that it referred to "fisheries" and not "sea fisheries" was debated and negatived in another place on December 17. Paragraph (b) of the Amendment was included originally in the Clean Rivers (Estuaries and Tidal Waters) Act, 1960, following representations from the Federation of British Industries, who were concerned that control over new outlets and discharges to tidal (controlled) waters would result in the same standards being applied to these waters as to inland waters. Many large industries have been, and will increasingly have to be, set up near tidal waters to enable them to discharge large or difficult effluents.
The Amendment is not appropriate to Scotland as regards paragraph (a), sea fisheries, for our river purification authorities, unlike authorities in England, have no fisheries functions in controlled or tidal or inland waters. As river purification authorities have no fisheries functions they should not have a duty imposed on them to have special regard to sea fisheries. This is really quite inconsistent. The Secretary of State appoints members with fisheries interests to river purification boards and these members will be concerned to see that pollution does not prejudice fish life in the waters over which authorities have jurisdiction.
Paragraph (b) on having special regard to the factors arising from the tidal nature of the waters does, however, affect river purification authorities under the Bill and the 1951 Act. The words of the Amendment are innocuous, but if read strictly 217 they could mean that our river purification authorities, in considering the conditions to be imposed on discharges to heavily polluted waters, such as the upper reaches of the Clyde, should have special regard to these waters and therefore impose stricter conditions than they would normally—a result not envisaged by the movers or, I am certain, by the Federation of British Industries. On the other hand, discharges from large electricity generating stations—such as those at Hunterston, Kincardine and Cockenzie—would not merit such strict conditions as would be appropriate in narrower or more polluted waters. We are back, therefore, to the provisions in the Bill empowering authorities to impose such conditions as "they may think fit". The strict answer to the Amendment is, therefore, that our river purification authorities should better be left to exercise their judgment, subject always to a right of appeal to the Secretary of State, and therefore, that the Amendment should be resisted as being unnecessary.
I would remind the Committee of what I said on the Second Reading: that the desire to have clean rivers must be taken in regard to other circumstances. I repeat that we should be indulging in the heights of folly if we finished up with the cleanest rivers and the cleanest tidal waters in the whole world but with no industry by which we could live and enjoy them. The boards and the Secretary of State, as noble Lords would wish, must apply these things with reasonable regard to all the circumstances. From that point of view, industry has nothing to fear from the operation of the conditions as they exist, and I would remind the Committee further of the assurance I gave to the noble Lord, Lord Drumalbyn, that this is not a matter where a catastrophic change can take place overnight. If, therefore, it is accepted that we must proceed reasonably, having regard to all the circumstances in the matter of time, we must also proceed with similar discretion in regard to what is done in any particular river or any particular stream or any particular area of tital water. I hope therefore that the noble Lord will not feel that he is letting anyone down; but that he is, on the contrary helping them, if he allows the Bill to remain as it is.
§ LORD CRAIGTON
I am not as satisfied as I nearly always am with the 218 noble Lord's reply. My Amendment does not arise from the fears of industry; t it arises because I feel there is a need for a general direction on the nature of the board's duties. I quoted precedents; I will not do so again. This is not an unusual thing. The boards are made up of a great many people who do not have much to do with Acts of Parliament. The noble Lord, Lord Hurcomb, had a similar Amendment to mine in a Bill some years ago in your Lordships' House. It seems a good thing that there should be a general direction. I was expecting that the noble Lord would say that my Amendment was badly drafted—as was, I think, said when this matter was raised in another place. But the reply he gave was not the one I wanted. I wanted him to agree that some general direction as is in the English Act is necessary.
We may have to press the matter further at the next stage. The noble Lord said that his honourable friend, the Joint Under-Secretary in another place, turned it down; but if he will read the debate carefully he will see that his honourable friend very nearly accepted it, or so he said, and made it appear that if it were differently worded he would have accepted it. I ask leave to withdraw the Amendment, but I warn the noble Lord that if he cannot say he is prepared to think of the right form of words, then we must try again on a later occasion.
§ Amendment, by leave, withdrawn.
§ Clause 8 agreed to.
§ Clause 9 [Penalties and proceedings for certain offences]:
§ On Question, Whether Clause 9 shall stand part of the Bill?
§ LORD CRAIGTON
I have not put down any Amendments to this clause. I feel deeply the absence of my noble friend Lord Colville of Culross, whose understanding of these matters is so much greater than my own. I rise to keep the door ajar for him should he wish to raise any matters concerning this clause at a later date. On Second Reading the noble Viscount expressed concern about the position of potential offenders in cases where a mistake or accident had occurred, and especially those whose offences occurred due to circumstances outside their control. He wondered 219 whether they are properly dealt with in this Bill. Another point that troubles me is what, under the Bill, is the position of an industrialist who commits an offence where no consent is involved—for example, an exceptionally heavy storm washing contaminated substances off a roof and into the river; or contamination caused by putting out a fire. In such a case, the Bill as drafted seems to place an unwarrantable burden upon dischargers who have no alternative means of disposal except into controlled water, yet have used their best endeavours to minimise or prevent pollution.
§ LORD HUGHES
I do not think I can add very much to what was said on the last occasion when this point was discussed. I think perhaps it would be sufficient if I were to say that the record of the river purification boards indicates that they do not seek to do things just for the sake of complying with the letter of the law, but that the whole administration of the boards has been a matter—if not of what everybody would call "sweet reasonableness," at least not of much controversy. I am certain that anyone who had not deliberately committed an offence, or permitted the offence to be committed through carelessness or negligence—that is to say, was completely innocent, and the result was something he could not have avoided—would have nothing to fear. If it should be proved, to my complete astonishment, that I am wrong in this matter then I will communicate further with the noble Lord. But if he hears no more from me then perhaps the Committee will accept it, if the noble Lord, Lord Craigton, does nothing further at the next stage, that satisfaction does exist.
§ Clause 9 agreed to.
§ Clause 10 [Samples of effluents]:
§ 4.59 p.m.
LORD BALERNO had given Notice of several Amendments to the proposed new subsections to be inserted in Section 19 of the principal Act, the first being in the new subsection (2)(a) to leave out "forthwith". The noble Lord said: I beg leave to speak to Amendments Nos. 7, 8, 9 and 10 together,
because they refer to the same subject. I would refer the Committee to the opening subsection of Clause 10, of which the new subsections are a part. It says:
In any legal proceedings it shall be presumed, until the contrary is shown, that any sample of effluent taken at an inspection … is a sample of what was passing from the land or premises to those waters.
The problem is this. As the Bill now stands, the inspector could take a sample, and could then tell the owner or occupier of the land that he did so. As the Bill stands, it would be impossible for the occupier of land—or the master of a vessel—to show that the sample taken was not a fair sample. In fact, there would be only the word of the inspector that the sample was taken, and it would be impossible to prove to the contrary.
§ Inspectors are only human beings. In certain circumstances, one can conceive of several effluents from different premises coming out quite close to each other, and if all these effluents were being inspected, it might well happen that a sample would be taken by the inspector, in all good faith, he thinking it came from one set of premises, when in fact it came from another set of premises. These Amendments are intended to ensure that an occupier of land or a master of a vessel, or his representative, is warned that a sample is about to be taken, so that he can ensure that the sample is a sample taken from his premises, his land or his ship. It might he said that by giving him forewarning that a sample is being taken, he will adjust the effluent, but I suggest that paragraph (2A) of subsection (6) gives reasonable protection, and if an inspector of a purification board thought that an occupier of land or master of a vessel was playing tricks with him, I think there is sufficient to cover him at a later date. I beg to move.
Page 11, line 29, leave out ("forthwith").—(Lord Balerno.)
§ LORD HUGHES
I would ask your Lordships to reject these Amendments. I noticed, if I may say so without the slightest intention of giving offence, that the noble Lord has raised the inspectors a little compared with his previous reference. He has admitted that they are 221 human beings. Previously, he was prepared to accord them only the status of bureaucrats, which, in modern language, would seem to connote something at least sub-human.
The noble Lord himself must have had a little doubt about these Amendments, because he correctly anticipated the objection to them. We must accept that in the majority of cases people who are doing things which they ought not to do will be doing them from lack of knowledge rather than from a deliberate intention to break the law; but there will always be a number of people who will think that there is something clever in evading the restrictions which are accepted by their more law-abiding fellow citizens. These are the people who are most likely to seek to infringe the conditions imposed upon the discharge of their effluent, at times when it is likely they may get away with it; or when the inspectors are not expected to be available, or when the state of the tide may more speedily disperse the evidence.
The effect of this Amendment and the subsequent Amendments would necessarily be to make it very much easier for infringers to "fiddle" the arrangements. I would remind your Lordships that the taking of a sample is not the end of the matter. If the sample is to be the subject of a prosecution, the clause goes on to lay down the procedure which must be followed. The man against whom a charge is laid will receive a part of the sample, appropriately sealed. If we do what the noble Lord, Lord Balerno, asks us to do, it will be virtually impossible to prosecute successfully the worst offenders, and the people most likely to be proceeded against are the less culpable. Without any hesitation whatsoever, I must ask your Lordships not to accept these Amendments, which would drive a horse and cart through the Bill.
§ LORD CRAIGTON
If the noble Lord does not accept this Amendment, could he tell me one thing? What protection is there for a discharger against an inspector taking a sample at low water, or at a time of intermittent discharge, or at a time when the discharge is exceptionally heavy? Though I would not suggest for a moment that an inspector 222 would do something wrong, in the nature of things there must be a time when there is not a normal discharge, and if the discharger is not to know that a sample has been taken, how is he to know that it has not been taken at some time when the discharge was abnormal?
§ LORD HUGHES
I think the best answer to that is the information I gave earlier, when discussing the Amendment about inspectors. In a period of twelve years there has been only one appeal against the decisions of the boards. As the noble Lord, Lord Balerno, himself pointed out, what the boards will do must necessarily arise from the advice of their officers—the inspectors whom we are now discussing. If they have got through a period of twelve years satisfactorily, I think that it is going beyond the bounds of possibility to expect that they are suddenly going to start to do their jobs in a way which would produce false results.
After all, if a sample had been taken and there was a prosecution, and the discharger had received a part of that sample and was satisfied from his own knowledge that it could have been taken only at an exceptional time, so that the sample was not at all typical of what he was discharging, it would not be difficult for him to satisfy a court that he was being unfairly dealt with—perhaps by producing his own samples taken at varying times to show that the inspector's sample was exceptional.
The inspectors and the boards will wish to proceed only in cases where it is so certain that someone is doing wrong that a conviction is likely to result. They will not be in the position, sometimes alleged against traffic policemen, of wanting to "make a certain score" over a definite period. Obviously the boards have not proceeded in this way in the past, and there is no reason why they should wish to proceed other than in the best interests of river purification.
I would remind your Lordships that the boards must have the co-operation of those who are discharging, and the best way of depriving themselves of co-operation from industry and agriculture is to create the suspicion, even if only in one instance, that they have indulged in sharp practices. Because, of 223 course, to do what the noble Lord, Lord Craigton, has suggested might be done would be either gross neglect, which one would not expect from the trained inspectors we have, or sharp practice; and I am certain that the noble Lord would not wish to make any such allegation. I think that on this matter we are entitled to rely on the good sense of the boards and their inspectors.
§ LORD BALERNO
I thank the noble Lord for his answer. I admit it had not occurred to me that it would be possible for the occupier of the land to take samples himself and then produce them in court, thereby showing the contrary, as stated in subsection (1) of the clause. That certainly makes a diffence. I should like to say to the noble Lord that when I made some animadversions on the inspectors, I did not include all the inspectors; I just referred to an occasional inspector. When I referred to their probity, and perhaps not their highest intelligence, I referred to all the inspectors. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD BALERNO moved, in subsection 6(b), after "whatever kind" to insert "made by a qualified analyst". The noble Lord said: The point of this Amendment is that, as stated in the Bill,
an analysis shall be construed as including a reference to any test of whatever kind, and 'analysed' and 'analyst' shall be construed accordingly.
In the report of the Second Reading debate there was a slight misprint in Hansard, and what I gave as an illustration of an analysis, or what could be construed as an analysis, was that the inspector could put his hand in the effluent and put it to his mouth and taste it, and that would be construed as an analysis under the terms of the Act. Accordingly, I think it would be important to have after the word "kind" the words "made by a qualified analyst". I do not specify the scientific qualifications or the degrees he should have. That, I think, is unnecessary. What I feel we should take care of is that the inspector, who I understand is likely to be considered as an analyst, should not take the sample, because in that way you get into the situation of his being also the judge in the case. One must surely
have some difference between the man who takes the sample and the man who analyses it.
§ Pollution can be of various kinds. It can vary from the extreme of a poisonous pollution up the scale to what may be a purely vegetable pollution; and the vegetable pollution may, indeed, be of positive value as food for the fish. For instance, silage effluent as it emerges from the silo looks the most disgusting and repulsive type of effluent, but it is, in fact, quite harmless, and when sufficiently diluted by the burn in proper proportions is beneficial to wild life in the water and, consequently, beneficial to human refreshment. There being such nuance on an analysis which can be made, I think one should be careful that the persons who are making the analyses of the effluent should be properly qualified persons. I beg to move.
Page 12, line 11, after ("kind") insert the said words.—(Lord Balerno.)
§ LORD HUGHES
I cannot accept this Amendment, either, but I do not think the noble Lord will be unhappy when I explain the reasons. It is not necessary to say that there should be a qualified analyst, because the River Inspectors (Qualifications) (Scotland) Order, 1953, made under the powers in Section 10 of the 1951 Act, prescribes the qualifications of a river inspector ascorporate membership of the Royal Institute of Chemistry and of the Institute of Sewage Purification".River purification boards have laboratories, and their inspectors are qualified officers. Therefore, the person taking the sample is qualified. I doubt whether your Lordships would find it necessary for me to say this, but, as the lawyers say, for the avoidance of doubt, I shall add that the courts would not accept a sample of evidence unless satisfied of the competence of the analyst. I think, in those circumstances, the noble Lord has had apprehensions about the taking of samples which are not justified.
§ LORD BALERNO
Once again, the noble Lord, Lord Hughes, has the advantage of me in having a more extensive knowledge of the position. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.225
§ LORD HUGHES
This is one occasion on which I must take a certain amount of glory, because I am doing something arising from what was said on the Committee stage. Your Lordships will recollect that the noble Marquess, Lord Lothian, raised this point in the Second Reading debate. This clause, in conjunction with Section 19 of the 1951 Act, empowers river purification authorities to take samples passing from any land or vessel. It is questionable, however, whether land in this context includes premises, having regard to other clauses in the Bill (for example, Clauses 1(3), 2(2), 3, et cetera) which refer to land or premises. Your Lordships will notice that the Amendment does not refer, as was suggested by the noble Marquess, to the "occupier of the land or premises", for the reason, however, that both Section 19 of the Act and the clause refer to effluent passing from the land or vessel and not from its occupier. I beg to move.
Page 12, line 12, after ("accordingly") insert (", and any reference to land includes a reference to premises'").—(Lord Hughes.)
§ On Question, Amendment agreed to.
§ Clause 10, as amended, agreed to.
§ Clauses 11 to 14 agreed to.
§ Clause 15 [Interpretation and construction]:
§ 5.19 p.m.
VISCOUNT SIMON moved, after subsection (3), to insert:
( ) Nothing in section 1 of this Act as applied to tidal waters by section 8 of this Act or in section 22 of the principal Act as applied to tidal waters by section 29 thereof shall apply to discharges of oil or mixtures containing oil which are subject to the provisions of the Oil in Navigable Waters Acts 1955 and 1963.
§ The noble Viscount said: This Amendment arises in connection with a point that I raised during the debate on Second Reading. The United Kingdom is a signatory to two International Conventions for the Prevention of Pollution of the Sea by Oil—namely, the Coventions of 1954 and 1962, the second of which merely amended the first. I have a special interest in this, because when I looked it up I was surprised to find that I was a signatory of the final act of the 1962 Convention, a fact which I had completely 226 forgotten. Under these Conventions, the discharge of oil into large areas of sea from ships is prohibited. The relevance of this Bill is perhaps best expressed by reminding your Lordships that the prohibited zone includes a depth of 100 miles round the coasts of Great Britain and Ireland. Originally this prohibition applied only to tankers, but it is extended to non-tankers as from a date three years after the acceptance of the Second Convention which will fall next month, April 11, 1965. There are some other exceptions with which I do not think I need deal.
§ Article IV of the Convention—and this is an International Convention to which we have subscribed—provides in terms that it shall not be an offence to discharge oil within these zones from a ship if it is done in certain circumstances: for instance, for the safety of the ship, for preventing damage to ship or cargo, for the saving of life or—and I think this is of some importance—if the discharge is purely accidental or the result of an accident, provided that the master takes immediate precautions to put it right.
§ Effect was given to this Convention by the Oil in Navigable Waters Acts, 1955 and 1963, which deal in turn with the previous year's Convention. These Acts provide the machinery in this country for implementing the Convention. Section 4(1) of the Act incorporates the defences laid out in the Convention, and it is an interesting point that these defences apply to ships only. The Oil in Navigable Waters Acts cover discharges from shore installations, but although the Act applies to discharges both from ships and from shore installations, these special international defences, if I may so call them, apply only to ships.
§ Under the Bill we are now considering, it appears that the master of a ship discharging oil in tidal waters to which the Bill applies (and those are laid down in the Schedule) could be subject to prosecution also under this Bill when it becomes an Act. But in this Bill, of course, the defences agreed internationally are not provided for, and the consequence could be, as I mentioned on Second Reading, that the master of a foreign ship, coming here with full knowledge of the international law on the subject and of the position under the Convention (and I can assure your Lordships that the masters of ships are 227 well acquainted with things of this sort; they are not lawyers, but they are required, as part of their training, to learn the elements of the law with which they are concerned) could find himself prosecuted under an Act which did not give him the internationally agreed defence. I think he would be very rightly resentful, and that, if he made a complaint, as he doubtless would, to his own Government, they also would be very rightly resentful.
§ It seems to me, in view of the international obligations which we have undertaken, that we ought to make quite certain that prosecutions of masters of ships in respect of discharge of oil in territorial waters should be undertaken under the Oil in Navigable Waters Act where these defences apply. This matter was fully discussed in another place, and an Amendment similar to the one I have put down was rejected, but I have studied very carefully the debates in another place, and I must say that I find the arguments adduced against the Amendment very thin. The first and, think, the principal argument adduced by the Under-Secretary of State for Scotland in another place was that to accept the Amendment would represent a change in Government policy. That may or may not be a statement of fact, but it does not seem to me to be an argument.
§ There was then a great deal of talk about the possibility that the areas of legislation covered in the two Acts were not the same, and that this might leave a loophole where no prosecutions could take place. I think I am right in saying that the Under-Secretary was challenged on this point but did not return to it, and I have been unable to discover that there can be any areas in which neither the oil pollution Acts nor this Bill would apply. Then it is said that to do what was suggested would create an anomaly between discharges of oil from shore installations and discharges from ships. I readily concede that that is so. The anomaly is already in the oil pollution Acts because, as I have already explained, ships are given the benefit of the internationally agreed defences and shore installations are not. So that anomaly already exists. A further gloss on this was perhaps a slip on the part 228 of the Minister, because he suggested that confusion might arise as to the legislation under which to prosecute, if it was not known whether the oil came from a ship or from a shore installation. It seems to me that if that is not known, there is no possibility of bringing a prosecution in any case.
§ During the discussion, I thought there was rather a lot of what I hope I may call, without offence, loose talk. I think that the Under-Secretary himself made the comment that there is little point in trying to clean our rivers if we allow our estuaries to be fouled indiscriminately. There is no question of indiscriminate fouling of the estuaries. The rules under the oil pollution Acts are in some respects stronger than the rules which would be applied by this Bill. There are not only higher penalties under those Acts, but there is one point which, I suggest, is of considerable importance. Nobody goes about polluting the seas on purpose. The most likely cause of pollution is an accident or a mishap. Under the Oil in Navigable Waters Act, if there is pollution as a result of an accident, it would remain an offence unless the master took immediate and proper steps to remedy the defect.
§ We had a short discussion on Clause 9 of this Bill a few moments ago and, so far as I could make out, some doubt was expressed about the position under this Bill in the event of an accidental discharge. I am advised that under Section 22 of the principal Act, which I think is the operative section, the words used are that anyone who causes or knowingly permits pollution is subject to the penalties of the Act. Those words, it seems to me, would make him absolutely free of prosecution if the Discharge was accidental. So in those circumstances the position, if one had a prosecution under the Oil in Navigable Waters Act, would be strengthened.
§ At the end of our discussion on Second Reading, the noble Lord was good enough to repeat an assurance which had been given in another place that, because the legal procedure in Scotland made this possible, the Lord Advocate would give instructions to procurators fiscal for all such cases to be reported to the Crown Office and for the decision to be taken by Government under which of the two Statutes prosecutions would more appro- 229 priately proceed. It seems to me that, quite clearly in the case of ships, if we are to fulfil our international undertaking there is only one Act under which the prosecution could proceed; there is only one Act that is appropriate.
§ I do not know whether the noble Lord will be able to tell us whether there are any circumstances in which he considers that it would be appropriate to prosecute the master of a ship under this Bill. It seems to me that either there are such cases—and if there are, it appears that we are contemplating in certain circumstances not fulfilling our obligations under the international agreement—or else there are not such cases; and if there are not such cases, I would urge on the noble Lord that he should accept this Amendment and make the position clear in the Bill, instead of relying on administrative instructions. I hope that in the course of his reply the noble Lord will be able to tell us on which leg he is standing. I beg to move.
Page 14, line 7, at end insert the said subsection.—(Viscount Simon.)
May I, too, declare an interest in the subject matter of this Amendment in that I am a director of a shipping company with particular responsibility for tanker operations. I do not propose to repeat the detailed arguments so clearly presented by my noble friend Lord Simon, but there is one point of basic principle which I feel should be emphasised briefly. The ship owners of the world have learned slowly anti painfully to discipline themselves under a series of international conventions, ratified by the contracting parties on the basis of domestic legislation. These disciplines are of the utmost importance in the ordinary pursuit of the seaborne trade of the world.
Having passed the Oil in Navigable Waters Acts of 1955 and 1963, we gave our word to the shipping interests of the world that certain defences would be available to the masters of any ship, whether foreign or British. If by unilateral domestic action we withdraw that undertaking we leave ourselves dangerously exposed to similar unilateral withdrawals in overseas ports whether from these or any other conventions. Clearly, it is unthinkable that 230 special defences should be available to foreign masters in British waters but not to their British counterparts. The technical implications of the point at issue are comparatively narrow; the international implications are wide and dangerous; and I would urge Her Majesty's Government to accept the Amendment.
§ LORD HUGHES
Both noble Lords who have spoken to the Amendment have stated their case fairly and accurately as they see it; but it is not just as simple as they have suggested. May I first of all say to your Lordships that there is no question whatsoever of Her Majesty's Government's withdrawing from international obligations. The 1955 Act remains on the Statute Book and will not be affected one iota when this Bill becomes an Act. I would remind your Lordships of the assurance which was given in another place and which, as the noble Viscount, Lord Simon, stated, I repeated here. So that it might be quite clear, I think it would be well if I repeated that assurance. The Lord Advocate authorised my right honourable friend in another place to use these words:I propose to give an instruction to procurators fiscal that all cases of alleged contravention of the Oil in Navigable Waters Acts and the Rivers (Prevention of Pollution) Acts in respect of discharges of oil from vessels should be reported to the Crown Office for consideration by Crown Counsel. The object of the instruction would be to make certain that prosecutions proceeded under the appropriate code.When I gave that assurance the noble Viscount, Lord Simon, said that that was all very well so far as it went but Lord Advocates changed, and had we any assurance that what one Lord Advocate did would be followed by his successor? I can add further to the assurance, on the procedure in the Lord Advocate's Department, that when such an administrative instruction has been issued it remains part of the standing instructions irrespective of the holder of the Office, unless and until other instructions are issued by another Lord Advocate.
The noble Viscount, Lord Simon, asked me, in getting, I thought, right to the heart of the matter, whether I could indicate a case where proceedings would be taken under this Bill when it became an Act, rather than under the 1955 Act. 231 In so far as ships accidentally or deliberately discharge oil, I cannot think of a case in which the Lord Advocate would elect to prosecute under this Bill rather than under the Oil in Navigable Waters Acts. That having been said, your Lordships may say, "Well, why not accept the Amendment?" The reason is a particularly simple one. There is a duty placed upon the boards to see that rivers and tidal waters are as clean as they can be made. In order that they may do so they must have an interest in the matter, and if we take one particular form of pollution and say that this does not come within the board's jurisdiction, that they have no responsibility whatever for seeing that oil pollution does not take place, they have no standing in the matter.
I would remind your Lordships that I said on Second Reading debate that in Scotland prosecution is a matter for the Crown authorities; it does not lie in the hands of private individuals or other authorities. But if we take the Amendment, the position would be, as I have said, that this body, interested only in having clean rivers and tidal waters, would be removed from having any locus in the matter. We would then be back in the position that if there were to be a prosecution, it would rest on a harbour authority reporting the matter to the procurator fiscal for his action. This, I suggest to your Lordships, would place harbour undertakings in a most invidious position. They would, in fact, be invited to be the party responsible for initiating prosecutions against their own customers. I do not say that a harbour authority would not do this in appropriate cases, because it would be quite unjustified on my part to suggest that harbour authorities would not undertake the duty because it was an unpleasant one and one which might, at the end of the day, prove to be an unprofitable one; but we ought not to place them in the position of having to make any such choice when there is a completely disinterested body able to undertake this action. In these circumstances, we should be neglecting our objective to have the rivers and tidal waters made as clean as possible if we accepted the Amendment.
This is not a new point. I would remind your Lordships that the case 232 for excepting oil discharges has been considered in another place, and not once before but twice in the time of the previous Government, as a result of public inquiries into the Firth of Forth and Solway Tidal Waters Orders; and the Secretary of State—the predecessor of the present Secretary of State—in both cases decided that the 1951 Act should apply also to discharges of oil from ships. Ships, therefore, are subject to the provisions of both the 1951 Act and the 1955 Act, and without difficulty or incident whatever, and I submit that there is no need for reversing the decisions already taken by the then Secretary of State in both of these Orders. The first of them was taken in 1960, and the second in 1963. So there has been consideration of this subject over a period of years—in 1960, 1963, and again in 1965.
I can assure noble Lords that shipowners, whether of British or foreign vessels, have nothing to fear from the operation of this Bill when it becomes an Act. In fact, if I might introduce a slightly flippant note into what is discussion of a very serious subject, your Lordships have been reminded by the noble Viscount, Lord Simon, that the penalties under the 1955 Act are much more severe than they are under this Bill, where the maximum penalty is £500. If I remember rightly, in the 1955 Act the fine is £1,000 on summary conviction, and I think without limit on indictment. If we leave it to our reputation, I should imagine the legal authorities would be just as anxious to collect the maximum penalty rather than the other way round, so that there is every inducement, both in International Law and in revenue, to proceed under the 1955 Act. I hope that this admission of what is regarded as either a national strength or a national weakness would be the final argument to persuade your Lordships that the Amendment is not necessary.
§ LORD CRAIGTON
I have listened to the noble Lord, Lord Hughes, and I am grateful for his explanation, and to the noble Viscount, Lord Simon, for moving this Amendment. But I do not think the captain of, say, a Polish ship, if he commits an offence in British waters, can be expected to rely for Britain's interpretation of International Law on what a Scottish Minister told a Committee of this House in March, 1965. Even if 233 the Polish captain had a copy of Hansard, he would learn that the Lord Advocate would himself decide under which Act to prosecute; and, furthermore, the Lord Advocate would advise—though he could not instruct—his successor to do likewise. The noble Lord's explanation may be acceptable for our countrymen, but can visiting foreign nationals really be expected to understand these Scottish legal niceties?
I do not seek to make fun of this. I offer what may be a realistic solution. I realise that we and other nationals are subject to the international code on oil discharge on land and sea. On land, the offence will be nearly all by our own nationals or locally-owned firms. River pollution from land up country will be better policed, if that is the word, if the board have some direct responsibility. In relation to land offences, therefore, I consider the Bill makes sense, and I think what the noble Lord said makes sense. I do not think the Amendment is as helpful as it might be. I appreciate that we can safeguard ourselves against discharge from ships of undesirable trade effluents, and of course this Bill, which is our domestic code, covers this possibility.
But discharge of oil from ships will come from foreign as well as home ships. The present international code is adequate for our ships, but foreign ships are surely entitled to know where they stand, or where they float, in this respect, and that condition should be the same in every water they might visit. I believe the right place to draw the line is between land and water. The noble Viscount's Amendment includes shore installations. I suggest to noble Lords that at Report stage we should so amend this Bill as to exclude from it offences under the Oil in Navigable Waters Act committed by vessels floating free and not tied or connected by pipe to the land. If we do this, I suggest that we shall get the best of both worlds and the Bill will seem sense to the Polish captain.
There is one small point which I think should be raised and which was raised on the Report stage in another place but not answered. The Bill seeks to control the discharge of trade effluents from ships, but the principal Act defines trade effluents as something discharged from any premises. Could the noble Lord say whether ships are premises or whether a 234 small Amendment of the 1951 Act is desirable?
§ 5.44 p.m.
§ LORD HUGHES
I should like to answer the noble Lord's points. In the first place, I think he completely misunderstands the purpose of the assurance I gave. I did not anticipate that anything I said as to the Lord Advocate's intentions would lead to either the edition of Hansard which contains the Second Reading debate or to-day's edition becoming an international best seller, because in fact the question will not arise so far as the master of a Polish vessel or a home vessel is concerned. If matters proceed as the noble Viscount, Lord Simon, would wish them to proceed and as I expect them to proceed, if the captain is prosecuted he will be prosecuted under the 1955 Act. The noble Lord says, "Why not say so?" I am afraid he has not been listening to me. I said the reason for putting in this provision was so that the board may have a standing in the matter.
§ LORD CRAIGTON
That is exactly ray point. Navigable waters go 100 miles out to sea. The river purification boards should have regard to land installations or ships attached to land, but I cannot see the sense of them going all over the harbour looking at vessels discharging oil when the captain has left the shore and is on his way off.
§ LORD HUGHES
But the noble Lord would go further. They would have nothing to do with the River Tay up to Perth because it is tidal. If the Amendment is accepted, only comparatively small vessels proceeding further up would come within the purview of the boards.
I come back to my point. The master of a vessel, whether British or foreign, is concerned only if he is to be prosecuted. If he is to be prosecuted, it is practically inconceivable that he would be prosecuted other than under the 1955 Act. The reason for giving the board a purview of the matter is so that they may exercise their functions in securing that rivers are clean, and from that point of view, and that point of view only, they are required to have a locus. This was a matter which must have weighed with the previous Secretary of State when he declined to make this sort of exception in two Orders in 1960 and 1963, and while I know 235 that the noble Lord, Lord Craigton, at least has a high regard for what I have to say in these matters, he has an even higher regard for what his right honourable friend has to say in them; so when his right honourable friend and I are saying the same thing at different times, he is placed in an exceedingly difficult position, because he must toss both of us in "the drink" at the same time. I suggest that the shipowner, whether foreign or at home, has nothing whatever to gain from seeking to take this matter out of the Bill. As I have said, the two Orders which were made in 1960 and 1963 have operated satisfactorily without any incident whatever, and there is no reason to expect that their application to all the areas covered by this Bill will provide any different result.
§ VISCOUNT SIMON
I have listened with great interest to what the noble Lord, Lord Hughes, has said, and I thought he made a very good case for his argument, except in one respect: that is, that in cases of oil pollution in tidal waters—I would agree that the dividing line may be somewhere else—broadly the discovery, the detection of the pollution, will have to be undertaken by the harbour authority, because I do not think the river pollution board will be in any position to detect discharges from a ship in the harbour. Certainly I can say—speaking not with Scottish experience, but with English experience—that the Port of London Authority is itself the pollution authority for the River Thames, and we have never felt inhibited from prosecuting for discharging merely because the dischargers are customers, for we have an overall responsibility to the people living here for maintaining the cleanliness of the river. Nevertheless, I appreciate what the noble Lord has said.
I should like him to consider, if it is possible, between now and the Report stage, the sort of compromise suggestion that the noble Lord, Lord Craigton, made. He is quite right, of course, in saying that my Amendment would have covered discharges of oil from shore installations into tidal waters; and he is quite right also in saying that I addressed my argument almost entirely to discharges from ships. I was really doing so because I was 236 concerned with the International Convention, and the International Convention does not cover discharges from shore installations. I do not feel that I should detain the Committee any longer on this matter, except to ask the noble Lord, Lord Hughes, whether he would be willing to have a little further discussion on the subject between now and the Report stage. Would the noble Lord consider that?
§ LORD HUGHES
Without unduly raising the hopes of the noble Viscount in this matter, it would be discourteous of me if I did not undertake to look at the matter still further, to see whether any compromise is possible to achieve both purposes—clean rivers and no dubiety at all on the part of shipowners.
§ Amendment, by leave, withdrawn.
§ Clause 15 agreed to.
§ Remaining clauses agreed to.
§ Schedule 1 agreed to.
§ Schedule 2 [Seaward limits of controlled waters]:
§ 5.52 p.m.
§ LORD CRAIGTON moved to leave out the reference to "A line drawn across Craigevan Bay and Stonehaven Bay from Garron Point … to Downie Point. …". The noble Lord said: My noble friend Lord Stonehaven regrets that he cannot be here to speak to this Amendment. When this Bill first came to another place the words we seek to omit were not in the Bill. Stonehaven Bay was not mentioned. The reference to it was added in Committee, without discussion or explanation. That was bad enough. But I am advised that this area was included in the Bill without prior consultation between the Scottish Development Department and Kincardine County Council, without prior opportunity to the County Council to make representations, and without any opportunity for the appropriate committee of the County Council to consider the matter. Surely, this is most undemocratic. In all my experience with the Scottish Office I have never heard of land or water affected by legislation being included without prior 237 consultation with the local authority concerned.
§ In this case I am advised that there are strong local views. They object on grounds of expense. They object on the ground that tests show that the tidal flow will carry any effluent well clear of Stone-haven Bay. They object on the ground that this coast erodes, and that there is no possibility of deposit on this coast. They object on the ground that the Medical Officer of the Department of Home and Health in Scotland and an engineer from the Scottish Development Department knew of these things and have raised no objections. I am told that over the last five years there has been no complaint or evidence of any washed-up sewage matter, and that there is already a high degree of dilution which could be increased by the use of comminuters. I am told that it would be impracticable, for many good reasons, to site sewage works in the Borough of Stonehaven or the village of Cowie; and finally, that if and when the County Council's sewerage development is proceeded with it would be necessary to carry out considerable treatment of effluent before putting it into the sewers at all.
§ In view of these strongly held opinions, it was surely unnecessarily highhanded to include this area without so much as a "by your leave" or "thank you". If the noble Lord values, as I did, the co-operation of the local authorities, his right course is to accept my Amendment, to start discussions with those concerned. Then, if it is considered proper, after discussion, to do so, he can acid this area to the scope of the Bill, as the Secretary of State has power to do under Clause 8 of the Bill. I beg to move.
Page 16, line 5, leave out lines 5 and 6.—(Lord Craigion.)
§ LORD HUGHES
If it is as impossible to pollute Stonehaven Bay as the representations of the authority would indicate—and I gather that in fact the representations are those of the Stone-haven Town Council—
§ LORD HUGHES
Well, let us not proceed along those lines—one has suspicions 238 in this matter. If it is impossible for the Bay to be polluted, as all these arguments would indicate, I do not know why there should be any worry; because the authority are not going to do anything unless there is a need for action. So that if the place is clean, and is going to remain clean, nothing will be done. But if it is excepted—and it is the only area of tidal water which is excepted—a possible inducement could be created whereby there would be an incentive to go there because it is the one place where it would be easy to have pollution. That, of course, is not the final answer, because as the noble Lord said, the Secretary of State could add this area afterwards. But I would say that it might be a case, if you like, of bolting the stable door after the horse has gone.
I am advised that no different procedure has been adopted in this case from that adopted in others of the same kind. Stonehaven Bay has received no less favourable treatment than others, because in fact none of the authorities were consulted in this matter. So that if there is any offence in this matter, in not following what has been done on other occasions, we have certainly done it in a wholesale fashion. No other authority has objected. They are all aware of the fact that they are listed. They are also aware of the fact that they were not consulted. The only objection, I would suggest to your Lordships, comes not from the local authority, but from Lord Stone-haven, who may have imagined that the inclusion of Stonehaven Bay at this late stage inflicted an injustice on the local authority concerned with the Bay.
One point which remains to be answered is that this reference did not appear in the Bill at the beginning; it came in without explanation, and it falls to me to make an explanation of the fault—and I myself can appear in a pure white sheet, as it was not my responsibility. But the fact is that Stone-haven Bay was not in at the beginning for the simple reason that, whether in typing or through some other cause, a line was missed. It ought to have been in from the beginning; it was accidentally left out, and when it was discovered that it had been accidentally omitted, it was put in. There was nothing more sinister than that. The authority are therefore now in the same position as they would 239 have been in at the outset if the thing had been done properly. They have been subjected to no injustice, and they have received exactly the same consideration as all the rest, in that they have not been notified; so that at the end of the day they are in exactly the same position as everybody else. If their innocence in relation to present and future pollution is as great as mine in relation to this ommission, they have not more to fear than I have in the matter.
§ LORD CRAIGTON
Nobody in the Scottish Office has a white sheet: it is a collective responsibility, and the noble Lord must also take responsibility. I am horrified to learn that these things should be done without consultation with the local authorities. If Stonehaven had known that they were in the Bill, they might have objected. But I do not think my noble friend would wish me to divide the Committee on this issue, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 2 agreed to.
§ Schedule 3 [Modifications of sections 22, 24 and 28 of the principal Act]:
§ LORD HUGHES
This is a drafting Amendment. It is merely to insert the word "of". I should think it is a typographical error. Without the word "of" the sentence does not make sense. I beg to move.
Page 17, line 20, after ("words") insert ("of").—(Lord Hughes.)
§ On Question, Amendment agreed to.
§ LORD BALERNO
In view of Lord Hughes's explanation as to why reasonableness should not be reintroduced into this Bill, I think fit not to move the last two Amendments in my name.
§ Schedule 3 agreed to.
§ Remaining Schedule agreed to.
§ House resumed: Bill reported, with Amendments.