HL Deb 23 March 1965 vol 264 cc537-49

4.30 p.m.

Report of Amendments received (according to Order).

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: My Lords, when I put down this Amendment the intention was simply to give the noble Lord an opportunity to explain why he himself, after considering all we said in Committee, could not put down an Amendment to control effluents discharged into holes in the ground. But since then there has occurred an example which has converted our theoretical fears into a reality. As we speak now, great quantities of oil from an old coal mine vent are pouring into the River Clyde at Motherwell, and I understand that the National Coal Board are attempting to trace the source of the discharge. I told the noble Lord's officials at St. Andrews' House about this matter yesterday, and they appreciate that an offence is being committed under the Bill. But the damage has been done; and I believe that we ought to do something about this now. I think that the noble Lord will agree with me that there may be no opportunity for some time, other than the next stage of this Bill, to act in this matter. Therefore, I move the Amendment formally in order to give the noble Lord a chance to answer the points I have raised.

Amendment moved—

After Clause 3, insert the said new clause.—(Lord Craigton.)

LORD HUGHES

My Lords, as I think I made clear to the Committee at the last stage of the Bill, I was very sympathetic to what lay behind this proposal; and if it could have been done then I should have been happy to have something inserted in the Bill. The noble Lord, Lord Craigton, does not think that the Amendment he moved is the full answer to the proposal, and, as he has been good enough to say, he has put it down in order that something more could be said on the subject.

This pollution from an old coal mine vent near Motherwell is a very clear illustration of the difficulties with which we are faced. It is obvious to anybody that the river is being polluted by this oil coming into it. What is not at all obvious—in fact what has not been determined—is where it is coming from. Although it is stated that it is coming from an old coal mine vent near Motherwell, nobody in fact knows where it is being put in, or when it was put in. It may be that it was put in many years ago, and is only now finding its way out. This points to a possible future danger. Such deposits may in the past have been put down disused quarries in many different parts of the country and may not yet have found their way to any river. They may find their way to a river in the future.

The difficulty which faces Her Majesty's Government in this matter is that this is a Bill for the prevention of pollution of rivers, and it would not by any stretch of imagination fall within the Long Title of the Bill to give power to control the dumping of effluent down any hole anywhere in the country just because it happened to fall within the area of a river purification board. There is no indication at all at present that the dumping of such effluent in any particular place will ever result in its running into any river at any time. It would be extremely bad law to proceed, from one known case, to place upon industry throughout the whole of the country a burden of seeking to comply with the terms of this Amendment.

The Clyde River Purification Board, quite naturally and properly, are very interested in this problem and have since had another "go" by putting forward another Amendment which it was suggested might be moved at the next stage of the Bill in your Lordships' House. This Amendment approaches the matter from an entirely different point of view altogether. Perhaps it would be easier if I read the suggestion to show the completely different approach, though one that remains equally unworkable. The proposed Amendment would be: Where any person intends to discharge any trade or sewage effluent into any borehole, disused mine, pit or quarry he shall, not later than fourteen days before commencing any such discharge, give notice to the river purification authority in whose area such borehole, disused mine, pit or quarry is situate stating:

  1. (a) the nature and composition of the effluent;
  2. (b) the maximum volume of the effluent which he intends so to discharge on any one day; and
  3. (c) the highest rate at which it is proposed to discharge the effluent."
Your Lordships will note that all the suggested alternative Amendment requires is that any such proposed future discharge should be notified. There is no penalty provided for lack of notification. Even if there were a penalty, it would not necessarily help the situation at all, because once the authority have received a notification they are no further forward, unless at some time in the future a particular discharge comes into our rivers which they control and can be definitely identified as coming from one source and one source only. Let us assume that in the area of a particular river three distilleries put effluent down different disused pits. In due course, something which can be identified as distillery effluent finds its way into the river. Where do the board stand? They cannot prosecute any one of the three because they cannot prove which of the three, if any, has caused the effluent to reach the river.

The Amendment put forward by the noble Lord, Lord Craigton, contained a suggestion which Her Majesty's Government have considered very carefully, because it appeared to offer a way of solving the difficulty of relating the arrival of the effluent from a particular deposit by giving authority to the board to add materials of some kind or another to the pit, so that if, in due course, it arrived at a river it could be identified. There are two ways in which this could be done, involving two broad categories of material. One was to put in dye. As I indicated on the last occasion, the quantities are so enormous that in order to serve any useful purpose one would have had to tip the dye in by the barrel-load if it were not to be diluted out of all semblance of useful purpose whatsoever. From that point of view, dyes were inevitably ruled out. The other way was to put in tracer elements of radioactive substances. But here again the quantities would have had to be appreciable.

We came reluctantly to the conclusion that, by allowing river purification boards to do this, we could be creating a greater danger and a greater hazard to health by allowing fairly substantial quantities of radioactive materials to be put in for purposes of tracing. But there is an even greater disadvantage. In fact we should be conferring by Statute a right on the river purification boards to pollute their own rivers in a way which they were seeking to prevent everybody else from doing. The only defence which they would have would be that they were being allowed to pollute the rivers for the purpose of proving, that somebody else had polluted them first. That does not seem to be either common sense or good law.

Where, therefore, do we find ourselves? Fortunately, the existing law is not completely defective on the subject. There is a variety of Acts presently on the Statute Book under which authorities can act. There is the Public Health Act, 1897. There is a variety of sections in that Act whereby an offence could be created by dumping in quarries or pits, even although the substance did not reach the river at all. There is the Water (Scotland) Act, 1946, under which a possible offence could be taking place; and there is, of course, the possibility of an offence at Common Law. I must admit, however, that it is quite possible that circumstances could arise in which something was happening which was not in the public interest, and which could not, in fact, be dealt with under any part of the law as it exists at present.

We are, therefore, placed in the unfortunate position that there is no basis of pollution presently known to exist which would justify us, at this late stage in the consideration of the Bill, so to widen it as to make it a Bill very different from the form in which it reached your Lordships' House. I am, therefore, able to offer only this fact to your Lordships. There is at present a standing official committee appointed by the Minister of Health and the Secretary of State, to consider present methods of disposal of solid and semisolid toxic wastes from chemical and allied industries and so on. I shall not read all the remits. It could perhaps be going a little beyond the remit to require them to examine this proposal, because your Lordships will notice that the reference is to "solid and semi-solid toxic wastes". On whether, for instance, distillery effluent is sufficiently solid to reach the stage of being regarded as semi-solid, I would not wish to venture an opinion.

However, I doubt very much whether anyone, either in your Lordships' House or elsewhere, would quarrel with Her Majesty's Government if they took the opportunity of having this committee examine this particular aspect of alternative ways of dealing with trade effluent, and recommending whether anything requires to be done. It may well be that Parliament will have to consider other legislation to deal with this subject. That may be next year, it may be in ten years' time, it may be never at all. I suggest to your Lordships that it would not be consistent with our purposes first to make our rivers clean, and secondly to do so without unnecessary interference with the day-to-day life of the country, if we extended the powers of the Bill into this very wide field without the clearest evidence that it is absolutely necessary.

I suggest to your Lordships that, while the activities of the Clyde Board have undoubtedly pointed to the evidence that there is one particular case, and that there may well in the future be more cases, that falls very far short of what is necessary to require us to widen the scope of the Bill to this extent at the present time. Therefore, I must ask your Lordships not to accept this Amendment, although I am still of the opinion that it was an effort which must have been made in order that the question should be examined from every possible angle.

LORD CRAIGTON

My Lords, I am grateful to the noble Lord. I feel that this Amendment has done some good and I believe that the Clyde River Purification Board will be satisfied, as I am, with the noble Lord's careful review of the objections to the Amendment which they thought might go down, and of the objections to my Amendment. We are grateful for the review of the noble Lord's existing powers. I am satisfied with the assurance that the noble Lord has given, that he will take executive action under his powers, and with his obvious preparedness to embark on comprehensive legislation should this prove to be essential. With those words, I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 9 [Penalties and proceedings for certain offences]:

4.46 p.m.

LORD DRUMALBYN

moved to leave out subsection (2) and to insert instead: ( ) In the case of any offence under section 1 of this Act, or, after the commencement of this Act, of any offence punishable under paragraph (a) of subsection (1) of section 22 of the principal Act it shall be a defence for a person charged in respect of the discharge into a stream of trade or sewage effluent or of matter which is poisonous, noxious or polluting to prove that—

  1. (a) by reason of the events which caused the discharge to be made it was not reasonably practicable for him to seek the consent of the river purification authority before making the discharge; and
  2. (b) it was not reasonably practicable for him to dispose of the effluent or matter otherwise than by discharging it (directly or indirectly) into that or some other stream; and
  3. (c) he took all reasonably practicable steps to prevent the discharge or, as the case may be, to prevent that matter from being poisonous, noxious or polluting."
The noble Lord said: My Lords, may I move this Amendment on behalf of my noble friend Lord Colville of Culross, who regrets very much that he is unable to be present—though perhaps not so much as I regret that he is unable to be present. I apologise in advance if I have not correctly understood my noble friend's Amendment, but I will do my best on it.

My noble friend feels very strongly (and I agree with him) that provision ought to be made for the Bill specifically to exclude what he describes as the "once-in-a-while accident". He does not think it right to leave the Bill in such a way that a person from whose premises a discharge is made, in apparent contravention of a prohibition, or of conditions laid down by the river purification authority, should have no defence at all if the discharge is made in circumstanes where the person could not have avoided it. He thinks it is wrong to rely solely on the procurator fiscal's normal unwillingness to prosecute in such circumstances, for as the clause stands, if the procurator fiscal believes that there has been a discharge which it was reasonably practicable to prevent—whether or not he is right in that opinion—he prosecutes, and then the person is guilty even although, in fact or in truth, it was not reasonably practicable to prevent the discharge. He is guilty simply because the Bill provides no defence for such circumstances.

That is a situation which, surely, should not be allowed to arise, and I therefore hope, that the noble Lord will accept the Amendment, at least in spirit. It is meant to cover not only pre-1951 discharges under Clause 1 of the Bill, but also post-1951 discharges, under Section 22 of the 1951 Act. I understand that Section 28 can be enforced by a charge under Section 22 of the Act, and, also, that it is intended to cover plain discharges of noxious matter under Section 22(1)(a). I have probably said enough to make clear my noble friend's intention, which is reasonably clear on the face of the Amendment. There has to be an event, and it has to be an event which makes it not reasonably practicable for the person in charge of the premises to seek the consent of the river purification officer, and not reasonably practicable, either, for him to dispose of the effluent elsewhere. He has also to show that he took all reasonable practicable steps to prevent the discharge, or to prevent the matter from being poisonous, noxious or polluting. I think that is reasonably clear.

I may tell the noble Lord, as I am sure he is aware, that I do not intend to press the Amendment, because he realises, as my noble friend did, that it has a defect, in that it goes further than his intention. If Section 22(3) of the principal Act were to remain in force, it would seem to provide a possible defence for a continuing discharge, as well as for one which arose out of the kind of unforeseen circumstances that my noble friend had in mind, in cases where the discharge was not repeated, or, at any rate, was put right as soon as possible. As noble Lords will see, it is not my noble friend's intention to make the defence too easy, or to make it a general defence.

If the noble Lord and the Government are of the opinion that it is something that should be dealt with as my noble friend thinks, perhaps the best way to deal with the matter would be to leave subsection (2) of Clause 9 as it is but to add a proviso along the lines of the words that my noble friend wishes to insert. At any rate, I hope that the noble Lord will at least take the point that where a person is, so to speak, an innocent discharger, he should have a defence written into the Bill, and should not be entirely dependent on the procurator fiscal's discerning that he is an innocent discharger. I beg to move.

Amendment moved— Page 10, line 22, leave out subsection (2) and insert the said new subsection.—(Lord Drumalbyn.)

LORD HUGHES

My Lords, I am grateful to the noble Lord, Lord Drumalbyn, for the way in which he has proposed the Amendment and has admitted the defect that it contains. I must admit that I was a little surprised that the noble Viscount, Lord Colville of Culross, put this Amendment down again, because I wrote to him on March 10, following on what I said at the last stage; and I do not think I can do better than tell your Lordships what I wrote to the noble Viscount on that occasion. I said: You were concerned in case removal of the defence in Section 22(3) should penalise a person for accidents or mistakes which were outwith his control. My advice is that this subsection does not, however, confer a defence against accident, and that the provisions of the Bill will thus not affect the liability of a polluter to prosecution under Section 22(1)(a) of the 1951 Act. The offence under the latter subsection, of causing or knowingly permitting poisonous, noxious or polluting matter to enter any stream, is not amended by the Bill. If there have been accidents or mistakes for which he has no responsibility, a discharger will accordingly be in no worse position when Section 22(3) is deleted". There is then more, but that, I thinks is the important point.

Now the effect of the Amendment as proposed would be really to nullify all that we are attempting to do in the Bill, in so far as it was anybody's desire to evade the provisions of the measure.

LORD DRUMALBYN

The noble Lord, when he says, "as proposed", means "as drafted", rather than as I proposed it.

LORD HUGHES

Yes; as drafted. The average person does not seek to evade a law which is obviously in the public interest; so, even if this Amendment were included, the average individual would do his best to comply both with the spirit and with the letter of the law. But in this particular case we cannot guarantee that we shall always have to deal only with average reasonable individuals. We shall have to deal with anyone who may be polluting the river; and if we were to permit this, we should be giving a discharger a defence by enabling him to prove that it was not reasonably practicable for him to seek to apply for consent. It would permit him to make or to continue to make a discharge without applying for consent, leaving it to him to take a chance that the discharge will not be found out, and, if it is found out, to show that it was not reasonably practicable for him to apply for consent.

The effect of this would be to take the matter out of the hands of the river purification board and out of the hands of the Secretary of State for Scotland. It would allow a man who wished to take the risk of breaking the law to go on breaking the law and polluting a river until he was found out. Then, when it was drawn to his attention, he could plead that it was not reasonably practicable for him to do otherwise; and he must be prosecuted. Right up to that point, until the court had decided against him, he could continue to pollute the river.

LORD DRUMALBYN

My Lords, may I intervene again? I am grateful to the noble Lord for giving way. I know that was not the intention of my noble friend—and I am sure he has had legal advice on the point. But my noble friend tried to avoid that construction by the words he put in—namely, by reason of the events which caused the discharge to be made …". He has tried to avoid the very risk that the noble Lord has been describing.

LORD HUGHES

That may be so in paragraph (a), but then we come on to paragraph (b), which says: it was not reasonably practicable for him to dispose of the effluent or matter otherwise than by discharging it (directly or indirectly) into that or some other stream; … The second paragraph, I think, is subject to even greater objection than the first, because what is "reasonably practicable"? A man may say, "It is not reasonably practicable for me to do so because I cannot afford to devote that part of my resources to dealing with the problem". We do not accept that a thing is practicable or reasonable only if a man decides that it is not going to cost more money than he is prepared to spend on it.

To return to the language of paragraph (a), it says: by reason of the events which caused the discharge … By itself, that does not confine the Amendment or the terms of this measure to one particular set of discharges. If a man wishes to evade the law, he can found any such discharge into the river on this. At the worst, he is in the position that the court decides that he has in fact not had reasonable excuse to continue to do so, and finds him guilty of an offence. He may consider it is a risk worth taking if he can get away with it for a year, two years or three years before it reaches the stage of prosecution.

The proposed limitation, I suggest to your Lordships, is not necessary. The advice which I have been given is that the Bill as it stands places the person who has accidentally made a discharge into the river without consent in no worse a position than he is at the present time. The present law has operated for twelve years. There has been no complaint at all during that time that any of the boards have acted unreasonably towards those people to whom the present measure applies, and I have no reason to believe that, just because there is a new measure, they are suddenly going to start interpreting the law in a different way altogether. The fact is (as I have said, not once, not twice but now this will be for the third if not the fourth time) that the success of this measure at the end of the day must depend upon the degree of cooperation which the boards receive from the community. That co-operation, up to the present, has been good. We have tried to word the Bill in such a way as to ensure that in future we are likely to receive the maximum degree of co-operation.

The people who have most to lose by being unreasonable or non-co-operative are the boards themselves, and I think that is the best safeguard for individual dischargers. The present position, unchanged as it is in law, will continue to be unchanged in practice. I think therefore that the noble Viscount, Lord Colville of Culross, has feared something which in fact has not taken place and which, I suggest, will not take place. I cannot think of any form of Amendment which would be acceptable, because it would be weakening the main and essential purpose of the Bill. I would be prepared to accept a certain limited weakening if I thought it was necessary in order to protect innocent people from prosecution. I am satisfied beyond any shadow of doubt that the accidental discharger or the innocent discharger has no more to fear now than he had previously. Therefore, I feel no sense of guilt at all in asking your Lordships not to accept this Amendment.

LORD DRUMALBYN

My Lords, am grateful to the noble Lord for the explanation that he has given. He will understand that I am in a little difficulty over this myself because it is not my Amendment. In the circumstances, I hope he will not mind if I allow the Amendment to be negatived.

On Question, Amendment negatived.

5.2 p.m.

LORD HUGHES

moved to add to the clause: ( ) Without prejudice to the exercise of the functions of a river purification authority in relation to any discharge of an effluent from a vessel, in a case where the provisions of the Oil in Navigable Waters Acts 1955 and 1963 apply to restrict such a discharge no proceedings for an offence against this Act or against the principal Act shall lie in respect of that discharge. The noble Lord said: My Lords, when we last considered this clause doubts were expressed by the noble Viscount, Lord Simon, and the noble Lord, Lord Geddes, as to whether we should be discharging our international obligations properly if we continued to make it possible for offenders to be prosecuted under two different Acts of Parliament instead of prosecution being confined to the Act which flowed from our adherence to the International Convention. I was sympathetic to the points of view which were expressed, without necessarily committing myself to anything about it, because, frankly, I could not see, nor had I up to that stage found, any case where prosecution would take place under this measure rather than under the 1955 Act. On further inquiry, however, I found that the desire to have the Bill as it was arose not because there was any intention that the prosecution should take place under the 1965 Act, as it will be, rather than under the 1955 Act, but in order to ensure that the river purification board had a standing in the matter. If we had done what was suggested there would be many occasions when in fact pollution could take place without its being anybody's business really to prosecute, other than a harbour authority.

The noble Viscount, Lord Simon, pointed out that his authority, the Port of London Authority, were also a pollution authority and that they found no difficulty in combining both functions. That, of course, is perfectly true; but, with respect to the noble Viscount, I would point out that what a powerful authority like the Port of London Authority could do with impunity might take on a different aspect in some small harbour in the north of Scotland where they proposed to take action, because the harbour authority might then consider that if they were to take action foreign shipowners would avoid the harbour in future because they had at one time been prosecuted and fined there. Therefore, there is no comparison; but it is desirable that there should be no confusion on the part of the possible offenders as to the law with which they have to comply.

The Amendment in the form which I now propose makes it quite clear that the prosecution will take place under the Oil in Navigable Waters Acts, 1955 and 1963, but at the same time makes it quite clear that the discharge of the functions of river purification boards includes supervision of these matters also. I think this will meet in its entirety the point which noble Lords raised and at the same time leave the river purification boards happy that they have authority over the whole field of pollution in the waters for which they are responsible.

Amendment moved— Page 10, line 25, at end insert the said new subsection.—(Lord Hughes.)

VISCOUNT SIMON

My Lords, I should like to say how grateful I am to the noble Lord for the manner in which he has met this point. In spite of some discouragement during the earlier stages of this Bill, I felt sure that with the noble Lord's good will and with the ingenuity of the Parliamentary draftsmen this result could be achieved. It has ben achieved triumphantly. I have ben asked by the noble Lord, Lord Geddes, who cannot be here this afternoon, to add his thanks also to the noble Lord for what he has done.

On Question, Amendment agreed to.