HL Deb 28 March 1972 vol 329 cc1032-44

7.6 p.m.

LORD SANDFORD

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Sandford.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ROYLE in the Chair.]

Clause 1 [General prohibition on depositing poisonous and other dangerous waste]:

VISCOUNT SIMON moved Amendment No. 1: Page 2, line 30, leave out from beginning to ("that") in line 31 and insert ("or (iii)").

The noble Viscount said: The purpose of this Amendment is to extend to persons charged with depositing waste the possibility of establishing a defence already available and set out in Clause 1(6)(b), to those charged with causing or permitting the deposit of waste; namely, that he took all such steps as were reasonably open to him to ensure that no offence would be committed. I must explain that because of the very tight programme for this Bill I had to put down this Amendment before I had an opportunity to discuss the matter with my noble friends. Therefore, I would ask the Committee to accept this as an Amendment for which I am solely responsible, although I would hope to be able to persuade your Lordships that it is one that should be adopted.

My reason for putting down the Amendment is that in my opinion the Bill, as drafted, is both unfair and illogical. On Second Reading I touched on this question of unfairness, and of course I listened carefully to what the noble Lord, Lord Sandford, said in this respect. I am bound to say that I did not find what he said entirely satisfactory. If I may quote from column 909, he said: when it comes to the company responsible for generating the waste being charged with depositing it … the company itself ought to be fully aware of what it is doing and take responsibility for its actions. I fully agree with that. I do not dispute that at all, but it is necessary to look and see what the offence is.

The offence is depositing waste of a kind which is poisonous, noxious or polluting and is liable to give rise to an environmental hazard. I find the word "liable" a difficult one. It is interesting to observe that the first paragraph of the Explanatory Memorandum states that it is an offence to deposit dangerous waste so as to give rise to an environmental hazard. That, I think, is a little different from "liable to give rise". It is also curious to observe—and I noticed this only a few minutes ago—that in the rubric Clause 1 is described as a General prohibition on depositing poisonous and other dangerous waste.

As the noble Lord, Lord Sandford, pointed out in moving the Second Reading, there is no general prohibition on the depositing of dangerous wastes. What he said, very rightly, was that if dangerous wastes are deposited the proper procedures must be undertaken for making them as safe as possible. He instanced—and this is a point of great importance to my argument—the advice which I think was originally given in the Key Report, that at the end of each day's work the waste should be covered with earth. However, the waste is covered with earth not by the person who deposits it, but by the person who looks after the tip. So, as I read the Bill, the situation arises that when the depositor—the man who has produced it—deposits the waste on the tip, has done everything he ought to do and has consulted the owner of the tip about what the waste is and about the quantities and the timing of the deposits, if by some misfortune the owner of the tip does not take the precaution of covering it with earth and the potential hazard becomes a real hazard, then the depositor of the waste will have committed an offence for which he has no defence, because he is not allowed to plead that he has done everything possible to limit it.

It might be said that he would surely not be prosecuted in such circumstances, but the facts could be elicited only at a trial. In any case, we have to remember that if the new clause in the name of the noble and learned Lord the Lord Chancellor is accepted, there will be a civil liability following a conviction and a person who had been injured—and we must also remember that a prosecution can be instituted by a private party—would be very foolish not to prosecute somebody who had no defence whatever. This seems to me quite unfair, and I should have thought it was entirely reasonable that if the depositor—in this case, the firm which had produced the waste and deposited it on the tip—had taken every reasonable step to ensure that environmental hazard did not follow, he should be able to escape liability if an environmental hazard followed through somebody else's fault.

I now come to the second respect in which I feel that the Bill is illogical. In winding-up on Second Reading, the noble Lord, Lord Sandford, said that paragraph (b) is intended to provide a defence for the contractor and not for the firm from which the waste comes. I confess that I find it very hard to see that as a proposition in common sense. If we are distinguishing between somebody who deposits waste and somebody who causes waste to be deposited, I should have thought that it was the firm which produced the waste which caused it to be deposited, and that it was the contractor who deposited it. It seems to me that the argument put forward by the noble Lord, Lord Sandford, was back to front in that respect. But in any case—and this is the main point which I tried to make on Second Reading, perhaps not very effectively—the person who produces the waste can always be charged as the man depositing it, because he is depositing by his servant or agent. It is because of that that he would lose the defence which is allowed to someone who is causing the deposit. Since in any prosecution the prosecutor wants to get a conviction, he will obviously choose to prosecute him as the depositor and not as someone causing the deposit.

I have one final point, and I must here refer to the reply of the noble Lord, Lord Sandford, to the debate on the Second Reading. He said: The main purpose of paragraph (a) is to provide a defence (and the noble Lord"— I think that was myself— reminded us that we are dealing here with a phrase which is deliberately ambiguous".—[OFFICIAL REPORT, 23/3/72; col. 909.] I do not think I can have reminded the House of that, because I certainly was not aware of it. But in the noble Lord's own words, here is a phrase in this Bill which is deliberately ambiguous. So I ask whether it is right for Parliament to enact a Bill containing a deliberately ambiguous phrase, or even an ambiguous phrase—because I recognise that the noble Lord may have used the word "deliberately" without due deliberation.

If this Bill were going through the normal course, I could no doubt raise this matter on the Question, Whether the clause shall stand part of the Bill? Then I should hope that between the Committee and Report stages the Government would find some means of removing this ambiguity. But that course is not open to us, because we shall be taking the Report stage immediately after this Committee stage. That is why I suggest, in all seriousness, that it would be quite wrong to let the Bill go through with this ambiguity. Since it brings all the people concerned on to the same basis, my Amendment removes the ambiguity and, if it is accepted, will not only cure the unfairness and the illogicality but also prevent us from enacting an ambiguous Statute. I beg to move.

7.18 p.m.

LORD GREENWOOD OF ROSSENDALE

It is always only reluctantly that I disagree with the noble Viscount, and on this occasion I do so perhaps with more reluctance than usual. But it seems to me that this Amendment is unacceptable. Unless I misunderstood the noble Viscount, what he is proposing is to give to the firm which is disposing of its own waste the same defence as a lorry driver can plead when he is disposing of somebody else's waste. If that is so, I think it would seriously weaken the Bill. In my view, there can be no doubt that the liability in a case like that should be an absolute liability, rather than one dependent on a question of intention. After all, it is an offence, I understand, to keep a Colorado beetle, whether or not one knows that it is a harmful insect. It is an offence to serve a policeman on duty with a drink, whether one knows he is on duty or not. That is an absolute liability, and it seems to me that the same liability should rest upon disposers of waste who are guilty of the conduct referred to in this Bill.

It seems to me that tremendous pressure must have been brought to bear from all quarters for a measure of this kind, before the Government decided to legislate. This is a matter which has been discussed for a considerable time. I believe that the Government have got the balance about right and that it would be a mistake if at this late stage we started to upset the rather delicate balance which has been achieved. I wonder whether perhaps I might save a little time by saying that this is, as we have been told, an interim measure. We know that the Parliamentary timetable is not going through an easy period, and I have therefore not sought to amend this Bill on Committee stage. I have been tempted to do so. I think the £400 penalty is ludicrous. I should have liked the Bill to last for only one year, to make quite sure that we got the definitive legislation in a very positive form at the earliest possible moment. But I have resisted those temptations, and if the noble Lord who replies from the Government Bench is able to tell us that it is the Government's firm intention to produce and bring before your Lordships' House the definitive legislation at the earliest possible opportunity, I personally shall be perfectly happy to treat the Amendments and the new clause which the noble and learned Lord the Lord Chancellor is going to move as purely formal.

7.22 p.m.

LORD SANDFORD

I will return to the substance of the Amendment moved by the noble Viscount. Lord Simon, and deal in the first place with the word "person" in the first line of subsection (6). As I said at Second Reading, it is quite commonplace in legislation (in fact we have had exactly the same thing in the measure we were dealing with immediately before this one) for the word "person" to refer to an individual or to a corporate body. It has been specifically used in this particular case because it is desirable for the purposes of this clause that it should be able to relate, on the one hand, to the individual lorry driver who deposits waste and, on the other, in certain circumstances, to the firm that generates the waste or, alternatively, the contractor who is dealing with the waste and whose lorry driver deposits it. This is a dual meaning with which I think all legislators are familiar, and it is the case that in this particular clause that word bears one or other of those meanings.

The defences are provided, and necessarily provided, for any lorry driver, whether he is working for a firm which has generated the waste and is depositing it on their behalf or is working for a contractor who is handling the waste on behalf of another company. It is unreasonable to suppose that the lorry driver, athough he is actually doing the depositing, can be fully responsible for the processes which have produced the waste, or be expected to know in detail what is noxious, poisonous or polluting in the waste; so he cannot bear the full responsibility for the effect of what he is doing. The defences provided for him are those set out in subsection (6)(a)(i). Again, in this business we have to deal with the situation where waste can be generated by one firm but can be disposed of by another, and the people there concerned deserve the defences provided under subsection (6)(a)(ii) or (6)(b). I think the Committee will agree that it is reasonable that they should have those defences, depending on whether they are charged with the offence of depositing waste or with causing or permitting waste to be deposited.

But we have a further case to deal with, and this is the one about which the noble Lord is concerned; that is, when a firm that is responsible for generating waste also undertakes its deposit and disposal, perhaps directly or perhaps by the use of lorries and drivers in its own employ.

VISCOUNT SIMON

Perhaps I may interrupt the noble Lord for a moment, because I fear that I have not made myself clear. The case I make applies just as much if the owner of the waste has employed a contractor to deposit it. He still has the responsibility, and he still has no control over the owner of the tip, as to whether the owner of the tip performs the necessary procedures.

LORD SANDFORD

I am coming to that point. But the firm that undertakes the disposal and deposit of its own waste, by means of its own employees or the use of its own processes, does not deserve, I submit to the Committee, the same range of defences as is provided for either the individual lorry driver who does the depositing or the contractor who does the depositing on behalf of the firm that generates the waste. A firm which generates noxious or polluting waste and deposits it itself must be held responsible for the whole of the process. That firm can be expected to know, or should know, what noxious, polluting and poisonous substances are contained, in what quantities and at what strength, in the substances with which it is dealing. It is not right, in our view, that the firm dealing with material in that way should have the defences provided for in subsection (6)(a). That is not to say that, in Common Law, if a firm so charged is able to show that the environmental hazard has been caused by circumstances entirely outside its own control, it will not have the same sort of defence that would be available in Common Law in all sorts of instances. But the defences provided here are not ones which should be available for a firm which could be held entirely responsible for the whole process, from the beginning of the generation of the noxious waste to its actual deposit and disposal. For those reasons, and for the other reasons set forward by the noble Lord, Lord Greenwood, I cannot advise the Committee to accept this Amendment.

May I take this opportunity to deal with the points made by the noble Lord, Lord Greenwood, who asked me for an assurance—and it might be helpful for me to give it straight away—about future legislation. We have already stated our intention that there should be more comprehensive legislation, but that it could not fully operate until the new local authorities have been reorganised. But it is our aim that a new system of control should be operated by the new county councils as soon as possible after they have come into existence. We are, if I may remind the Committee, now acting in response to an undertaking given by the noble Lord's friends in another place that if in the circumstances revealed by the episode at Nuneaton on February 25 we saw fit to bring forward emergency legislation, we could count on their support. We do see fit to bring forward this emergency legislation, and we are grateful for their support.

VISCOUNT SIMON

Along with my noble friends I support this Bill, but that does not mean that we should not try to improve it if we think there is a fallacy in it; and I must say that I am not very much wiser now than I was before. The noble Lord, Lord Greenwood of Rossendale, said—and I think the noble Lord, Lord Sandford, repeated it—that it was unreasonable that the firm should have the defence open to the lorry driver. As a matter of fact, it has the defence open to the lorry driver under Clause 1(6)(a), although it is not of much good to him, I must confess, because they are rather irrelevant points. But he has this defence open to him. But what I still feel is quite wrong is that he should be in jeopardy when the responsibility for the hazard arising is clearly not his. The noble Lord, Lord Sandford, said, if I understood him aright, that he would have a sort of Common Law defence. If we can be assured that this is so, I should be quite happy, but reading the Statute it says quite clearly that it is an offence to deposit waste which creates an environmental hazard. If there is no question that he has technically deposited the waste and therefore that he has created an environmental hazard, as he is specifically told that he cannot plead that he has done everything possible to stop it, I do not see where his defence comes. But if, perhaps, the noble Lord or the noble and learned Lord the Lord Chancellor can assure me that he in fact has this defence that it was not his fault, then I should be perfectly satisfied.

I am still a little worried about the question of ambiguity in the clause; but perhaps this was explained by Lord Sandford's saying that the word "person" refers both to companies and to people. I do not think that anyone is in doubt about that. If that is all the ambiguity, then the point is not important. If, in the circumstances I have described, it can be shown that the ultimate cause of the hazard is that some action was probably not taken by the man on the tip, would that be a correct defence to this charge of depositing noxious waste which is causing an environmental hazard?

LORD SANDFORD

I do not think I can go beyond what I have already said. I hope that that will be some sort of reassurance to the noble Viscount. There is the ordinary defence in Common Law that if the person charged with a particular offence can show that the offence has been caused by circumstances wholly outside his control, he has a defence. It is not the man who is depositing the waste within the curtilage of his own factory who needs the defences provided for the contractor and the lorry driver.

VISCOUNT SIMON

I leave out the man who tips waste within his own curtilage. I am thinking of the man who deposits waste on a public tip. The offence in the Bill is to have deposited the waste, not anything else. He has deposited it; how can he escape conviction? I do not know.

Loan SANDFORD

The offence is to deposit the waste so as to cause an environmental hazard. His defence, if he has none of the defences indicated in the Bill, would be to show that the environmental hazard has not been caused by him but by circumstances wholly outside his control.

VISCOUNT SIMON

I am much obliged to the noble Lord. I must not keep the Committee any longer. The offence is that of actually depositing poisonous waste that is liable to give rise to an environmental hazard. If it has given rise, then it was obviously liable to do so. In view of the time I will ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.33 p.m.

THE LORD CHANCELLOR moved Amendment No. 2: Page 2, line 34, leave out ("punishable under this section") and insert ("to be taken as a contravenion of subsection (1) above").

The noble and learned Lord said: I rise to move the first of a series of Amendments which stand in my name, and I may do so simply by saying that Amendments Nos. 2 and 3 are linked, paving Amendments for Amendment No. 4; and as I do not want to repeat myself I hope to be able to deal with all three of them together. There is a consequential Amendment later which I shall move formally. The point is this. As noble Lords will know, ever since 1898, where Parliament imposes a statutory duty to do something and imposes a criminal penalty, as here, in some cases it is the case and in some cases it is not the case that civil liability accrues against the person who commits the offence in favour of a person who may be individually injured by it. The commonest example is the liability of an employer for not fencing dangerous machinery where his employee suffers an injury by reason of the failure to fence. There are many other examples. There are also very many other examples where no civil liability accrues.

It is now Law Commission policy—and I must apologise for being rather a nuisance about this—to ask Parliament, where a statutory offence is committed, to say whether or not civil liability accrues. From my point of view, from the technician's point of view, it would not very much matter which of the two alternatives were chosen provided we made it clear which it was we meant. The danger being safeguarded against is the anxiety, expense and doubt as to whether there is a statutory civil liability or not. In this particular case I should have thought that the answer was fairly obvious. If a child gets damaged by cyanide illegally deposited in defiance of this Bill, he ought to have a civil remedy. Although the draftsmen may be thought to have made rather a meal of Clause 4, in point of fact that is what it is designed to do. With that explanation and in the light of what came from the noble Lord, Lord Greenwood, when concluding his remarks on the last Amendment, I move these Amendments. That is what they are all about.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move Amendment No. 3.

Amendment moved— Page 2, line 39, leave out ("prohibited by subsection (1) above") and insert ("a contravention of that subsection").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

THE LORD CHANCELLOR

I beg to move Amendment No. 4.

Amendment moved— After Clause 1, insert the following clause:

Civil liability.

.—(1) Where any damage is caused by poisonous, noxious or polluting waste which has been deposited on land, any person who deposited it, or cause or permitted it to be deposited, in either case so as to commit a contravention of section 1(1) of this Act, is liable for the damage except where the damage—

  1. (a) was due wholly to the fault of the person who suffered it, or
  2. (b) was suffered by a person who voluntarily accepted the risk thereof.

(2) The matters which may under section 1(6) of this Act be proved by way of defence to a charge of contravening section 1(1) may be proved also by way of defence to an action brought by virtue of subsection (1) above (references in paragraphs (a) and (b) of section 1(6) to the charge being construed as references to the act alleged to give rise to the liability).

(3) In this section—

  1. (a) "damage" includes the death of, or injury to, any person (including any disease and any impairment of physical or mental condition), and
  2. (b) "fault" has the same meaning as in the Law Reform (Contributory Negligence) Act 1945.

(4) For the purposes of the following enactments, namely—

and for the purposes of any action of damages in Scotland arising out of the death of, or personal injury to, any person, any damage for which a person is liable under subsection (1) above shall be treated as due to his fault.

(5) Subsection (1) above is without prejudice to any liability which arises apart from the provisions of this section").—(The Lord Chancellor.)

VISCOUNT SIMON

I hesitate to detain the Committee. I still feel that Amendment No. 1 having been rejected, there is a difficulty here because the only matters which can be taken into consideration in an action for damages under this provision are the defences allowed under Clause 1(6) of this Bill. Here we have a position where the depositor does not have the defence that he has done everything reasonable. I think his outlet by the Common Law defence that somebody else did it probably does not apply when any person who has deposited it can be sued for the damage. Perhaps the noble and learned Lord can help me.

THE LORD CHANCELLOR

With great respect, I should have thought that, on general principles, the noble Viscount was not correct about that. He will have noticed from subsection (1) of the new clause that the defences of volenti non fit injuria and total fault of the plaintiff are expressly included. Secondly, in the general law of civil liability there must be causation; that is to say, there must be the link of causation in order to give rise to an action for damages. All that strict liability in civil law amounts to is that where there is causation there is liability irrespective of negligence. That is the intention of this new clause. It always was. This is a factor common to almost every case of statutory tort.

On Question, Amendment agreed to.

Clause 2 [Duty to notify responsible authorities before removing or depositing waste]:

THE LORD CHANCELLOR

This is a drafting Amendment to cure a rather ludicrous mistake in the original draft which would have compelled the court to impose a £400 fine, instead of allowing them to impose something up to £400. I beg to move.

Amendment moved— Page 4, line 15, after ("of") insert ("not more than").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 [Operators of commercial tips]:

THE LORD CHANCELLOR

I beg to move Amendment No. 6. This is the same point as the last one.

Amendment moved— Page 5, line 25, after ("of") insert ("not more than").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Remaining clauses agreed to.

THE LORD CHANCELLOR

This Amendment to the Title is consequential on the first four Amendments. I beg to move.

Amendment moved— In the Title, line 3, after ("hazard") insert ("and to make offenders liable for any resultant damage").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with the Amendments.

Then, Standing Order No. 44 having been suspended (pursuant to Resolution):

LORD SANDFORD

My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(Lord Sandford.)

On Question, Motion agreed to.

Bill read 3a, with the Amendments, and passed, and returned to the Commons.