Lords Sitting of 15 January 1974

Preamble
The House met at half past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Saint Edmundsbury and Ipswich.

SMOKING AND HEALTH
LORD AIREDALE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government, since the Commissioners of H.M. Customs and Excise report a continued rise in domestic consumption of tobacco despite a rise in the price of cigarettes, whether they propose to intensify their anti-smoking campaign.
THE MINISTER WITHOUT PORTFOLIO (LORD ABERDARE): My Lords, as soon as the revised list of the tar and nicotine yields of the various brands of cigarettes sold in the United Kingdom is published next month the Health Education Council will launch a further anti-smoking campaign.
LORD AIREDALE: My Lords, I am much obliged for that encouraging Answer. Are not the Government appalled at the fact that, despite all their efforts up to date, we still have a rising consumption of tobacco in this country?
LORD ABERDARE: My Lords, it is interesting, if one looks back a bit, to see that it has fallen to some extent. Cigarette sales, by weight of tobacco, for example, were some 10 per cent. less in 1972 than in 1960.
LORD FOOT: My Lords, have the Government any evidence that the previous publication of the figures about tar and nicotine had any effect on the consumption of cigarettes?
LORD ABERDARE: My Lords, the object of publishing these figures was to encourage people to switch to safer brands of cigarette It is too early to say whether or not this has in fact happened.
LORD PLATT: My Lords, do Her Majesty's Government recall the words of the Chief Medical Officer of Health in his report on the state of the public health for the year 1972, when he said:
"It is manifestly not in the public interest that the cigarette should be so constantly presented as a desirable adjunct to sophisticated living"?
Do Her Majesty's Government agree with that statement?
LORD ABERDARE: My Lords, we have taken the view that it would be difficult to ban further advertising of cigarettes because they are still legally sold and there is still competition between brands, and we have no evidence that such a ban would in fact reduce smoking.
LORD RHODES: My Lords, may I ask the Minister whether tobacco is an item in the cost-of-living index?
LORD ABERDARE: My Lords, I am not sure. I cannot answer that question without notice.
BARONESS SUMMERSKILL: My Lords, may I ask whether the noble Lord is confident that the report on tar and nicotine will be published next month, or is this wishful thinking?
LORD ABERDARE: My Lords, it is due to be published next month, but in present conditions one is never quite sure about printing.

HIJACKING OF AIRCRAFT
2.40 p.m.
LORD JANNER: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is the present position with regard to the steps they have taken and are taking to deal with the hijacking of aeroplanes, and whether they will join with other civilised nations in refusing air facilities to those nations who harbour the hijackers.
THE MINISTER OF STATE, FOREIGN AND COMMONWEALTH OFFICE (BARONESS TWEEDSMUIR OF BELHELVIE): My Lords, aviation security measures in the United Kingdom are under constant study in consultation with

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the National Aviation Security Committee. Following insufficient support for Her Majesty's Government's proposals at the International Civil Aviation Organisation Assembly in Rome in August, we are considering whether further international initiatives can be taken to protect the international community from the menace of hijacking.
LORD JANNER: My Lords, is not the noble Baroness aware of the fact that this is becoming an extremely serious matter? Those who hijacked the plane in Rome are at present being harboured. Is not this part and parcel of the role that those nations harbouring these people are now taking as "Big Brother", when they use every device they can possibly use as accessories both before and after these crimes of terrorism? Is it not time that the civilised nations got together to stop this kind of thing?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, that was exactly what Her Majesty's Government were trying to do in Rome. The British delegation co-sponsored a proposal that access to air space should be denied to the aircraft of States which failed to deal with hijackers. This was supported by less than half the States present.
LORD BESWICK: My Lords, the policy of Her Majesty's Government at Rome was a policy which I think all in this House would accept. Can the noble Baroness now say whether she has succeeded in getting the nine members of the European Economic Community to agree with the policy that Her Majesty's Government put forward in Rome?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, not yet. Some members feel that sanctions of this nature should be imposed only by the United Nations. We are considering whether we can get agreement with our European partners on the standardisation of security arrangements at airports, which we think is of prime importance.
LORD BESWICK: My Lords, the security arrangements at airports are a completely different matter. We are now talking about something else. Can the noble Baroness say what in fact has been done by Her Majesty's Government to try to persuade the other Governments
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of the European Economic Community to support us at the next International Conference?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, a great deal has been done through ordinary diplomatic channels and at Rome. As I said earlier, some States consider that the United Nations ought to be the only organisation which has responsibility for sanctions.
LORD HARVEY OF PRESTBURY: My Lords, is my noble friend aware that some of us feel that the British Government have given a lead in every conceivable direction in dealing with this difficult problem? Will my noble friend give an assurance that there will be no let-up in inspection and surveillance at British airports?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I thank my noble friend. I believe that the United Kingdom has given a lead on these matters in the international field, and we are certainly doing everything we can so far as security at United Kingdom airports is concerned.
LORD SHEPHERD: My Lords, can the noble Baroness say which countries in the E.E.C. failed to follow our line and did not give us support?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, if we take the Hague and Montreal Conventions which the United Kingdom has ratified, Ireland, for example, has neither signed nor ratified either. There are various other countries which I could mention, but it would probably take too long to list them to the House.
LORD SHEPHERD: My Lords, my supplementary question was about countries within the E.E.C.
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, what we were striving to do was to put the Hague and Montreal Conventions inside the Chicago Convention. If the noble Lord is asking specifically about the E.E.C., I have already mentioned Ireland. Then there is France, which has signed and ratified the Hague Convention but not the Montreal Convention; Belgium, which has signed and ratified the Hague Convention but not the Montreal Convention; and

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Luxembourg and Italy, which have not ratified either the Hague or the Montreal Conventions.
LORD JANNER: My Lords, in view of the gravity of the situation, which is part and parcel of the fact that some nations are wanting to act as "Big Brother", is it not extremely important, with time running against us, that a special conference should be called to deal with terrorism, with blackmail and with all the other measures that are being used?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I entirely agree with the noble Lord that this is a matter of extreme importance. That is why this conference was brought together in Rome. But it was unable to reach agreement. We therefore consider that until wide international agreement is obtained, the best course is to have the maximum possible security at airports.
LORD ORR-EWING: My Lords, will my noble friend bear in mind that there are approximately 130 members of the United Nations, less than half of them having an airline under their control? So is it not much more suitable to proceed either through the E.E.C. or through ICAO, and not wait for a massive and amorphous body like the United Nations to make up its mind?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I agree with my noble friend, But the United Kingdom is not waiting for the United Nations, since we have taken a lead in this matter.
LORD BALFOUR OF INCHRYE: My Lords, will the Minister consider putting in the OFFICIAL REPORT a list of those countries which have not ratified?
BARONESS TWEEDSMUIR OF BELHELVIE: Yes, my Lords; I will consider that.

FAMILY PLANNING
2.45 p.m.
BARONESS BIRK: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of the fact that they have accepted the broad conclusion of the Ross Population Panel that the economic prospects for Britain will be better with a smaller rather than a larger population, they will give urgent consideration to launching a family planning publicity campaign to offset the probable effect on the birthrate of The emergency regulations restricting heating in the home, and the shut-down of television programmes at 10.30 p.m.
LORD ABERDARE: My Lords, the Health Education Council will launch a campaign next month, not for the reasons advanced by the noble Baroness, but as a prelude to the provision of family planning within the National Health Service.
BARONESS BIRK: My Lords, while thanking the Minister for that reply, may I ask him whether he will give some indication of the amount of money to be spent by the Health Education Council? May I also ask him whether he is aware that organisations such as the Health Education Council, the Family Planning Association, the Brook Advisory Centres and the Birth Control Campaign are concerned about the possible effects of this emergency on the birth rate on abortions and on unwanted pregnancies? Further, will the Minister accept that although I have related the Question to the emergency there is a tremendous need for a continuous and on-going programme of propaganda and education, especially in view of the fact that starting in April of this year the Government are to spend £23 million on integrating contraception into the National Health Service? Can be give some figures on what the Government intend to spend?
LORD ABERDARE: My Lords, I cannot give the exact figure which the Health Education Council will devote to this programme. But I can agree with the noble Baroness that it is very important that we should continue with the

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programme of drawing the family planning services to the notice of the public. The campaign itself will consist of advertisements in national newspapers and in women's and men's magazines. It will not be on television, but a new booklet on contraception is being produced for wide general use and a short film is to be made for cinema advertising later in the year.
LORD DERWENT: My Lords, with reference to the Question on the Order Paper, can my noble friend say why having the television on should prevent love-making?
LORD ABERDARE: No, my Lords.
LORD SHIN WELL: My Lords, instead of the Government's coming to a definite conclusion about this matter and its relationship to television being suspended at half-past ten at night, would it not be better to wait until the normal period of gestation has expired and come to a decision nine months hence?
LORD ABERDARE: My Lords, a certain amount of research was done on this matter in the case of a black-out in New York. The conclusion was that it had no effect on the birth pattern.
BARONESS BIRK: My Lords, will the Minister agree that as the black-out in New York was for only one night and was only one casual occasion, it is not relevant to the present situation? Although we all hope that the emergency will soon come to an end, will be agree that the propaganda should continue?
LORD ABERDARE: My Lords, where family planning is concerned one night is very important.
LORD PLATT: My Lords, may I very respectfully ask the Minister whether he is quite certain about his statement, because I thought—indeed I read—that the black-out in New York had a quite striking and interesting effect.
LORD ABERDARE: My Lords, I am quoting from some research done by Mr. J. Richard Udry which was published in Demography in August, 1970, and he concluded that there was no increase in births associated with the black-out. If the noble Lord is interested, I will let him see a copy of the paper.

LEGAL AID BILL [H.L.]
2.50 p.m.
THE MINISTER OF STATE, HOME OFFICE (VISCOUNT COLVILLE OF CUL-Ross): My Lords, on behalf of my noble and learned friend the Lord Chancellor, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill. In moving this Motion, I should just mention that the Bill has already been amended by the Joint Committee on Consolidation Bills.
Moved, that the House do now resolve itself into Committee (on Recommitment).—(Viscount Colville of Cuross.)
On Question, Motion agreed to.
House in Committee (on Recommitment) accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clauses 1 to 11 agreed to.
Clause 12 [Solicitors and counsel]:
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 1:
Page 13, line 13, leave out ("give advice or assistance or, as the case may be") and insert ("advise, assist or")
The noble Viscount said: I must confess that in moving this Amendment we are really taking advantage of the opportunity which occurs on the last two Amendments, which are of substance, to put right some very minor drafting points indeed. This particular Amendment is pure drafting. The object of it is to make the wording of subsection (6), to which it relates, fit in exactly with similar wording in subsection (5) of Clause 12. It really is just drafting, and I beg to move.
On Question, Amendment agreed to.
Clause 12, as amended, agreed to.
Clauses 13 to 15 agreed to.
Clause 16 [Employment of solicitors by Law Society]:
VISCOUNT COLVILLE OF CULROSS: This is another drafting Amendment. I beg to move.
Amendment moved—
Page 17, line 4, leave out ("or") and insert ("and")—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
Clause 16, as amended, agreed to.
Clauses 17 to 30 agreed to.
Clause 31 [Amendment and revocation of legal aid orders]:
VISCOUNT COLVILLE or CULROSS VISCOUNT COLVILLE or CULROSS moved Amendment No. 3:
Page 32, line 8, leave out ("an") and insert ("a legal aid contribution").
The noble Viscount said: This Amendment, which I now move, in fact goes with the two following Amendments. They are, again, purely drafting, and they tie up with the wording in other Parts of the Bill. I beg to move Amendment No. 3.
On Question, Amendment agreed to.
Clause 31, as amended, agreed to.
Clause 32 agreed to.
Clause 33 [Means enquiry by Supplementary Benefits Commission]:
VISCOUNT COLVILLE OF CULROSS: I beg to move Amendment No. 4.
Amendment moved—
Page 33, line 43, leave out ("an") and insert ("a legal aid contribution").—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSS: I beg to move Amendment No. 5.
Amendment moved—
Page 34, line 1, leave out ("an") and insert ("a legal aid contribution").—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
Clause 33, as amended, agreed to.
Clauses 34 to 41 agreed to.
Clause 42 [Repeals, revocations and savings]:
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 6:
Page 40, line 26, leave out subsection (4).
The noble Viscount said: This and the subsequent Amendment are really the point of having these Amendments at all
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because, of course, we now have a slightly different situation about the application of this Bill to Northern Ireland. This Amendment leaves out subsection (4), which was included in the Bill to make sure that the repeal of the existing enactments relating to legal aid and legal advice and assistance did not affect the power to make Orders in Council under Section 1(3) of the Northern Ireland (Temporary Provisions) Act 1972, or the validity of any Order so made. But since the Bill was drafted the Northern Ireland Constitution (Devolution) Order 1973 has appointed January 1 last as the day for the commencement of Part II of the Northern Ireland Constitution Act 1973, and, by virtue of Section 2(4) of that Act, Section 1 of the 1972 Act expired on that day. In any event, no Order in Council has been made under Section 1(3) of the 1972 Act for purposes similar to the Bill; so it follows that Clause 42(4) is no longer needed and should be omitted from the Bill. I would only add that when I was chairman of the Committee I always found the Northern Ireland application question very difficult indeed. I beg to move.
On Question, Amendment agreed to.
Clause 42, as amended, agreed to.
Clause 43 [Short title, construction, commencement and extent]:
VISCOUNT COLVILLE OF CULROSS: I beg to move Amendment No. 7.
Amendment moved—
Page 41, line 9, leave out ("with the exception of section 42(4) above").—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
Clause 43, as amended, agreed to.
Schedules agreed to.
House resumed: Bill reported, with the Amendments.

ROAD TRAFFIC BILL [H.L.]
2.56 p.m.
LORD ABERDARE: My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales that they, having been informed of the purport of the Road Traffic Bill, have consented to place their prerogative

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and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
My Lords, I beg to move that this Bill be now read a third time.
Moved, that the Bill be now read 3a.—(Lord Aberdare.)
On Question, Bill read 3a.
Clause 5 [Provisions supplementary to sections 1 to 4 and Schedule 1]:
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 1:
Page 9, line 17, leave out ("owner of that vehicle") and insert ("person by whom the vehicle was kept and used").
The noble Viscount said: My Lords, this Amendment and Amendment No. 2 are in fact purely drafting. If any noble Lord wishes me to explain them of course I will gladly do so, but I hope the House will accept my assurance that they make no difference to the sense of the Bill but I think add clarity to it. I beg to move.
On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSS: My Lords, I beg to move Amendment No. 2.
Amendment moved—
Page 9, line 18, leave out from ("that") to ("at") in line 19 and insert ("the vehicle was kept and used by some other person").—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
Clause 12 [Extension of type approval scheme to all vehicles and to vehicle parts]:
LORD MOWBRAY AND STOURTON LORD MOWBRAY AND STOURTON moved Amendment No. 3:
Page 16, line 39, leave out ("section 47(1)") and insert ("the application of section 47(1) in relation to vehicle parts").
The noble Lord said: My Lords, this is a drafting Amendment designed to clarify the interpretation of Section 47(1) of the Road Traffic Act 1972 as amended in subsection (3) of the clause. On behalf of my noble friend Lord Aberdare, I beg to move.
On Question, Amendment agreed to.
2.58 p.m.
LORD HACKING LORD HACKING moved Amendment No. 4:
After Clause 15 insert the following new clause:
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". In section 6(1) of the 1972 Act (driving with blood-alcohol concentration above the prescribed limit) the words from "as ascertained" to "Act" shall be omitted and the words "at the time he provides the specimen" shall be omitted."
The noble Lord said: My Lords, with your Lordships' leave, I intend to speak to all the Amendments in my name in one single speech, although at a later stage I may ask your Lordships' leave to move them in three groups; that is to say, Amendments 4 and 5, Amendment 6 and Amendments 7 and 8.
VISCOUNT COLVILLE OF CULROSS: Hear, hear!
LORD HACKING: My Lords, I am much obliged to the noble Viscount. This was the course I adopted, a little under protest, at Report stage, and it seems to be the most convenient way to deal with my Amendments. I am most conscious of putting down substantive Amendments at the Third Reading of this Bill, and I am most conscious, too, that many of your Lordships may think that this House has better things to do to-day, on this day of crisis, than to consider the breathalyser law. Indeed, there is a substantive matter later in your Lordships' Order Paper; namely, the Committee stage of the Protection of the Environment Bill.
However, I hope to persuade your Lordships that these Amendments are of importance, not only because of the present state of the breathalyser law which, if I may quote the noble Earl, Lord Mansfield, is "ludicrous, uncertain and unfair" and bringing us "into disrepute", but also because my Amendments focus on a matter which should be of real concern; that is, the efficacy of our laws. Much of our current legislation suffers from the grave malady of being excessively complicated and hence unenforceable (at least within the intention of Parliament) by the user. In my submission, the Road Traffic Bill is no exception, couched as it is in language which few will be able to master, particularly if you take into account the pressures, for example, in the county council office or in a court of law.
Before again being critical about the breathalyser law, I should say that I recognise the climate in which the Roard Safety Act passed through Parliament. Never before in peace time has a law threatened to interfere so much with the

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personal liberty of so many citizens. Hence Parliament wrapped and wrapped again the Bill with clauses restricting arbitrary action by police and other administrators of the law. It tried, mainly successfully, to protect the liberty of the motorist, although perhaps it did not take sufficiently into account the liberty of such people as a child client of a colleague of mine who, in consequence of injuries inflicted by a drunken motorist, will never be able to enjoy much of the liberty of what remains of her life. What is curious about the stand being taken by the Government, and by other noble Lords, particularly those who were in Government at the time when the Road Safety Act became law, is that those then in Government have recognised the major failings of this Bill, while the present Government have not—at least, not sufficiently to persuade them to amend the law.
Just how bad is the breathalyser law as it was enacted in 1967 may be illustrated by two simple examples. First, if the judges had not from the outset stretched the meaning of the words, "driving or attempting to drive", beyond their natural meaning, hardly any motorist in the land would have been convicted and the breathalyser provisions could never have been enforced. Second, although the Act set out two offences, the offences of driving and of being in charge, it failed altogether to set up the means by which the latter offence could be proved, except by chance of the backdoor through the "unfit to drive" provision.
My Amendments do not attempt to deal with all the problems arising out of the present law, but they do attempt to deal with the three areas of what I believe are major difficulty. At the Report stage, I went through these areas in detail and explained precisely what had gone wrong, and why, and how my Amendment would cure the defects. This afternoon I do not propose to take that course, but shall tell your Lordships what the three areas of difficulty are and, I hope, satisfy you that my Amendments provide the answer.
The first area of difficulty, which is referred to in Amendments Nos. 4 and 5, is Section 6(1) of the Road Traffic Act which confuses the offence with the proof of the offence. The result is that any
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motorist can bring the whole procedure to a nullity by taking a drink between the time he is stopped and the time of giving a specimen of blood or urine. My Amendments divide the offence from the proof of it and, in doing so, stop up this outrageous escape hole.
The second area, to which Amendment No. 6 refers, is that the Act requires the police to commence the breathalyser procedure while a motorist is still driving or attempting to drive. A moment's thought will enable your Lordships to realise that it is physically impossible to place the first bag of the first breath test into the possession of the motorist while he is driving or attempting to drive, and therefore the courts were faced with a basic difficulty. They therefore attempted to lay down, and did lay down, a test as to when a person is driving or attempting to drive. Not surprisingly, this produced some absurd results. For example, the noble and learned Lord, Lord Hailsham of Saint Marylebone, in his speech in the case of Sakhuja v. A hlen and Others, pointed out that the Law Courts have held that a motorist was still doing something connected with driving when buying a newspaper, and was still held to be driving or attempting to drive. But if he stopped his car to buy groceries he could no longer be held to be driving or attempting to drive.
Even the application of those tests, alas! enables some of the most serious of offenders to escape conviction. For example I cite a case which I quoted during the Report Stage the case of Edkins v. Knowles. In that case, in brief, a motorist was driving at an excessive and dangerous speed. He was seen by detectives who were in a police motor car. They followed him but thought that he was driving far too fast and dangerously for them to overtake him. They followed him to a holiday camp, and when he stopped there they kept him in the driving seat until a uniformed police officer—who of course is the only person who can administer a breath test—arrived.
When the uniformed officer arrived the man had been in the driving seat for fifteen minutes. On being invited by the uniformed officer to undergo a breath test he obliged, and it was found that he was excessively over the limit. But it was held, not unnaturally, that he was no

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longer driving or attempting to drive, and the procedure came to a nullity. My Amendments recognise the obvious: that the procedure cannot be invoked until a motorist has ceased driving. Hence, if my Amendments are accepted the motorist will no longer be able to drive off at speed with impunity, pursued by detective officers, and then later escape a conviction.
I move to the third area where there is considerable difficulty, and it is referred to in Amendments Nos. 7 and 8. The Act insists at present that a specimen of urine or blood may be taken only from persons arrested under the "unfit to drive" procedure or the "over the limit" procedure. Suppose, for example, a motorist escaping from a crime of grievous bodily harm in a public house is pursued and arrested for that offence and is taken to the police station. If it later transpires that the offender had been drinking excessively, then under the present procedure a police officer is stopped from bringing in the breathalyser procedure. Or take another example from my own experience. An offender was driving a motor car, and, having been stopped by a police officer, proceeded to punch the police officer on the nose. Not unnaturally, the police officer arrested him for that and again the procedure was brought to a nullity. My Amendment ends that nonsense. Above all, my Amendments seek to clarify the law. Amendments Nos. 7 and 8 are concerned with an exercise in grammar and syntax and the only hurtful thing that the noble Viscount, Lord Colville of Culross could say would be that my grammar or syntax is poor.
As well as seeking to clarify the law, my Amendments would relieve the courts of an enormous burden of unmeritorious cases about which the noble and learned Lord, Lord Hailsham of Saint Marylebone, rightly had some harsh things to say. The matter becomes more critical if this Bill is passed because hitherto difficult cases have gone to the Crown Court; and from the Crown Court there is a right of appeal only by the defence to the Court of Appeal, Criminal Division. One of the consequences of the enactment of this Bill would be that all the breathalyser cases, apart from those where the prosecution elects to go for trial, will be tried before justices, and hence both the prosecution and the de-fence
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fence will have a right of appeal on law. I am not going to anticipate the reply which the noble Viscount, Lord Colville of Culross, gives to my Amendment here at Third Reading. I can only express the hope that he has been given better instructions than he received at the Report stage, for those instructions which begin. "We are getting on nicely, thank you", provide no comfort and no answer to the problem.
My Lords, before I sit down I should like to express a word of thanks. I am not lucky enough, speaking from this position in the House, to have a number of wise men to supply me with information and corrections. But I had, before coming to this House, been very lucky to receive the advice and encouragement of members of your Lordships' Judicial Committee, many Judges in the High Court, Lords Justices and puisne judges, as well as members of the Bar, and the result is that my Amendments are the consolidated work of a number of people on both sides of the judicial Bench. I beg to move.
3.11 p.m.
LORD STOW HILL: My Lords, I should like briefly to support the noble Lord, Lord Hacking, who quite obviously, from the very careful and detailed speech which he has addressed to your Lordships' House, has made a very thorough study of these important problems—problems which are in no sense abstruse. These are matters which affect the safety and conduct of every citizen in the country—if I am right in supposing that at any rate nearly every citizen drives and every citizen is exposed to risk—if a driver has consumed too much alcohol when he drives or attempts to drive. I should be rendering no service to your Lordships' House if I sought to repeat what the noble Lord, Lord Hacking has so clearly put before the House, but I would submit that it is clearly quite indefensible to enact laws which will enable a driver who is stopped and takes a breathalyser test and is asked to come to a police station to have the proper test made, to evade the consequences of his misdoing by taking a flask out of his hip pocket and drinking some whisky. That, as I understand it, is the present state of the law as it has been interpreted. It is equally difficult to justify a state of law which proclaims

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that you are attempting to drive if in a motor car you buy a newspaper, but that you are no longer attempting to drive if your thoughts wander to the subject of groceries. The distinction is so slight that it really must elude the commonsense of citizens who, as I have said, are so directly affected by this legislation. I should have thought that the culmination of absurdity was that you can escape the consequences of your excessive consumption of alcohol by banging a policeman on the nose when he stops you and asks you to take a breathalyser test.
My Lords, that is what the present law has been shown to enact. The courts do their level best to try to make sense of law as it emerges from the two Houses of Parliament. This, of course, is a new field of law, in this country at any rate, and when one in enacting a completely new scheme from time to time, one is bound to find that anomalies crop up and frustrate the intention of the Legislature. That really has happened, I should have thought, to a rather major extent in this pattern of legislation, and I greatly hope that the noble Viscount will be able to tell the noble Lord, Lord Hacking, that he will carefully consider these seven Amendments, the general objective of which has already been fully explained by the noble Lord, and that he really will make an attempt to cure these monstrous absurdities in the wording of the present Act. I hope he will not just out of hand turn down language which in many respects has been shown, when the law is administered, to be inappropriate. I earnestly ask the noble Viscount to go at least as far as that.
3.15 p.m.
LORD FOOT: My Lords, I should like to add any help I can to the noble Lord, Lord Hacking, in moving these Amendments. I am not going to re-argue the points he has made, as followed up by the noble Lord, Lord Stow Hill, because I do not think there will be any argument in any part of the House about these anomalies and absurdities in the present law. Indeed, when the noble Viscount, Lord Colville of Culross, was dealing with this matter at the Report stage he did not seriously argue on the merits of the Amendment moved by the noble Lord, Lord Hacking. He developed a rather different argument. He said that
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we had had this Statute effectively since 1967, and during the course of the years a body of case law had been built up interpreting and elucidating the enactment, and it would be a pity to disturb that body of case law. His argument, in effect, was, "Do not let us try to alter it now because if you do and try to introduce Amendments to the existing law that will mean that you will only be producing more bones for the lawyers to gnaw upon and you will have the problem of developing a further body of case law to interpret the amended law".
I cannot regard that argument—and I hope I have not misinterpreted it—as being sufficient or satisfactory because, as I understand the point made by the noble Lord, Lord Hacking, it is that despite the judicial interpretation and elucidation of the existing law that we have had for the past seven years, these anomalies have been made clear. Indeed, the anomalies have only been underlined and emphasised by the judicial decisions we have had upon the Act. Therefore it does not seem to me to be any answer to say that the Act ought to be left as it is, and that you can leave it to the process of judicial interpretation to put these things right, because they have not been put right by the process of judicial interpretation and we have been left with these glaring anomalies and absurdities upon which I think everyone is agreed; yet the Government are saying to-day as I understand it, that it is too late in this House in this Bill to do anything about it. My Lords, I think that that, too, is unsatisfactory.
The noble Viscount, Lord Colville of Culross, in his speech on Report gave three very clear hints that if the noble Lord, Lord Hacking, would leave the matter here in this House there would be time for this matter to be considered, and it would be considered, in the other place. If that is true, and if it is the Government's intention to introduce Amendments to the breathalyser law in the other place if and when this Bill reaches them, then I suggest that it is only right that the Government should give us an undertaking to-day that that will be done. If the Government will give an undertaking that they will introduce the necessary Amendments to cure these absurdities and anomalies in the other place I, for once, shall be content to leave the matter there; but if the

845
Minister is not prepared to give us that undertaking, and if in effect this is just stalling, then, if the noble Lord, Lord Hacking, decides to divide the House I certainly will go into the Lobby with him.
We may not have another opportunity of dealing with the faults in the breathalyser law for a long time to come, whether or not there be an Election. It may be another five years before we get a further amendment of that Act. Are these absurdities to remain for another five years? May I say to the Minister, when he talks about putting this right or having something done about it in the other place, that it is in this House where this kind of thing ought to be put right. The Government introduced the Bill into this House in the first instance. We have much better opportunities here for discussing such matters with less Party political debate than they have in the other place. One of the great virtues of this House—I almost said one of the few virtues—is that decisions about these things are often decided by the arguments put forward rather than by the Whips. I suggest that this is the kind of subject which should certainly be so decided. I would therefore say to the Minister that unless he will give us a clear undertaking that the Government will take steps in the other place to propose Amendments to meet the difficulties which the noble Lord, Lord Hacking, has pointed out, then I for one hope that we shall carry this Amendment to a Division, and I hope that we shall be supported by many Members of your Lordships' House who have listened to the argument.
LORD CHORLEY: My Lords, I should like to add just a word or two in favour of what has been said about these Amendments. It has always been a puzzle to me that so late in the 20th century a Statute could be as badly drafted as this one in relation to the sections concerned with the breathalyser test. It is no doubt true that the Judicature have done their best to clarify the wording, but it was so bad to start with that it has been almost impossible for them to succeed, whatever the noble Viscount, Lord Colville, may have said about it at earlier stages. Really, it would be very much better to start again and try to put it right. The administration of this section of the law hardly redounds to the credit of the Bench, however hard they have tried to put it right.
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I should think there is no part of the law which over the past few years has appeared to the man in the street to be so lacking in common sense as these particular sections. I hope that the opportunity will be taken to-day to do something towards putting them right.
BARONESS BIRK: My Lords, following the contributions made by the distinguished lawyers, and as the only layman so far to speak, unless there is some very good reason which was put forward either on the Report stage or earlier, it seems to me on the basis of common sense and speaking as a magistrate, that the Amendment standing in the names of the noble Lord, Lord Hacking, and other noble Lords makes good common sense. We are always being told, when trying to introduce what we think is an improvement, that this is not the right place and that one should wait for the relevant Bill before attempting to make a change. It would seem to me that there is no better place for this matter, and all the other anomalies, to be ironed out than this Bill. I hope the Minister will find himself able to take that view.
3.24 p.m.
VISCOUNT COLVILLE OF CULROSS: No, I do not, my Lords. I will try to explain to the noble Baroness and to other noble Lords who have spoken why I take this stand. This is not a precipitate or unpremeditated remark, but it is one that rests upon two fundamentals. Incidentally, I hope the noble Lord, Lord Chorley, is not going to leave his place for one moment, because I should like to commend him very much for what he said just now. The noble Lord intimated—and I do not wish to go into the question of whether or not the basic drafting of the Act of 1967 was or was not sound—that what we ought to do is to look at the whole question again and reconsider the entire structure of the legislation, which I have no doubt he has had to administer in Westmorland over a period of time and which has caused him difficulty, as it has others. Might I just say to the noble Lord that I entirely agree with him; he is entirely right about this, and we must not underestimate the weight of what he has said, based upon his personal experience.
This Bill would have been an opportunity to deal with I know not how many

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points arising out of the Road Traffic Acts. We have put in this Bill a number of important measures to deal with road safety. I need not catalogue them because they are familiar to your Lordships; but the Bill has been restricted in its area according to priorities and pressure on Parliamentary time. This has happened on purpose. I am not saying in reply to the noble Lord, Lord Foot, that a review of the blood alcohol legislation is never going to be necessary, but I must also tell the noble Lord that whatever the result may be in terms of going through the Division Lobbies, I cannot possibly give any undertaking (in view of what the noble Lord, Lord Chorley, has said) that we are going to be able to get this whole thing completely re-thought in order to put down major Amendments in another place. If said something on the Report stage which led people to believe that that is what I was saying, then I am very sorry. But I must make it quite plain now that I was not making any such promise, and noble Lords will have to act accordingly.
I accept that this legislation is not very easy. It was attacking a problem which is perhaps not very familiar to the criminal law. There was a stage before the courts got at it when it appeared that it might also fail because of errors of drafting. In fact, it has not failed. The number of breath tests and the number of convictions (no doubt partly due to the folly of motorists) has risen fairly steadily year by year in fairly constant proportion to each other. In 1972 there were 120.000 breath tests, of which quite a large number proved negative, and there were 44,000 convictions. So there we have not got a picture of legislation which has failed; and when the noble Lord, Lord Hacking, tries to make out how had this law is, we must remember that large numbers of convictions are being obtained under this law.
I think that against those figures, one has to look at a comparatively small—indeed, probably miniscule—number of anomalies that arise out of one very simple fact. If you get caught by the police with more alcohol in your blood than the prescribed limit automatically you get disqualified. There is nothing that a person who has a motor car dislikes more than being disqualified. Therefore, this law, whether it was drafted well, badly or indifferently,
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has inevitably been under supreme pressure. Every possible technicality to do with the procedure of the police, the drafting of the Act or with anything else that could be thought of by the ingenuity of those concerned, has been tested and re-tested in the courts. That is why in a comparatively small number of cases only anomalies have occurred. I am not saying that if we were to start again we would do it in the same way. What I am saying is that there is a fairly strong argument for not tinkering with the law at this stage in its development. I am afraid that I do not agree with the noble and learned Lord, Lord Stow Hill, that it is not abstruse. The very arguments that the noble Lord, Lord Hacking, put forward show that there are matters in it which are by no means easy of interpretation and it is precisely for that reason that he has put down the Amendment. It is not a simple law, but is one that is gradually being understood and worked out by those who have to deal with it.
My Lords, the noble Lord, Lord Hacking, has rightly dealt with these matters in three parts to which I will come in a moment. We think that although procedures under the present law may be tiresome for the police, the police and the courts are now familiar with them; and, as I have just said, the law is working. Certainly when it comes to the question of driving, one can pick fun out of the difference between stopping to buy a newspaper and stopping to buy one's groceries, but if one reads the opinion of my noble and learned friend the Lord Chancellor in Sakhuja v. Allen, it will be seen that that is with respect, perhaps a rather superficial way of looking at what is rather a profound interpretation of the law about when or when you are not driving for the purposes of this Act. We feel that we should gain still more experience of the present law before we start any process that somebody might think right of a practical re-building of the whole thing. I am afraid that no rebuilding from the very start is practicable within the timetable of this Bill.
The noble Lord, Lord Hacking, advised I know by a great deal of eminent legal opinion, has taken a great deal of trouble about this matter and he has given ample notice of what he wants to do. He explained it most thoroughly on a previous occasion and he has given me every possible assistance in preparing for

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it. I am deeply grateful to him. It is the most helpful way of carrying on proceedings in this House, and I earnestly hope that he will accept my thanks. My thanks also go to those who have assisted him.
What I should like to do—and I will try to do this briefly because, as the noble Lord has said, we have important business to follow—is to look at some of the points he has raised and to see whether he has got it right, because I suspect—whatever the noble Lord, Lord Foot, thinks and whatever other noble Lords think about the weaknesses of the law—that if noble Lords are going to divide on these Amendments then they will want to be perfectly certain that they are flawless. Without going into horrid little drafting points, I should like to point out one or two of the difficulties which are quite substantial in the drafting of these Amendments and suggest to your Lordships that, despite the erudition that has gone into their preparation, they may not quite do.
Let us look for a moment at the first two new clauses. We are here involved, as the noble and learned Lord, Lord Stow Hill, said, with the person who takes a drink either after he has been stopped by the police or after he has had an accident. He may take it out of a hip flask; he may go into a pub; or he may be given a drink by some misguided but kindly person nearby. He may do it dishonestly or he may do it out of the purest of motives. What are we to make of it? It partly depends upon the definition of whether or not he is still driving, and to that the Sakhuja case has made a considerable contribution. If there has been an accident and he has taken a drink in between and there is no way of telling whether or not he has done so with malice or out of pure innocence, it may pause a genuine difficulty. But I suggest to your Lordships that that does not happen very often. What do we find, however, in the tightening up of the law as proposed by these first two Amendments, and in particular by the defence, the new subsection (2A) that the noble Lord, Lord Hacking, has put down as Amendment No. 5? What we shall then have is this: we shall have an offence deemed to have been committed when the tests prove the prescribed limit or more in the blood unless the contrary be shown, and the proof is
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upon the defence. How does the defence prove it? That is what one has to work out. First of all, it has been established that you cannot apportion the amount of alcohol that was in a person's blood while he was still driving the car and the amount of alcohol that has been added to that amount in his blood by means of him taking a drink later. That has been established by the Rowlands case, and beyond doubt, as I understand it.
LORD HACKING: My Lords, may I intervene to say that I had very much in mind the case of Rowlands v. Hamilton, but my Amendments would overrule that judgment.
VISCOUNT COLVILLE OF CULROSS: They may overrule the judgment, my Lords, but they do not overrule the fact that you cannot apportion the amount. At any rate, the Amendments do not specifically allow you to do it nor do they say how you can do it. As I understand it, the practical difficulties of this, depending on different people's metabolism, are intense. I may be wrong, but that is the advice I have had, as prepared by the noble Lord and the advance notice that he has given me. If one cannot apportion the amount of alcohol that you had in your blood before you took the extra drink after driving—if your Lordships see what I mean—then this defence can only work if you can establish that you had no alcohol in your blood at the time you were driving the car. That, I suggest, is going a bit far because, after all, you are entitled—for better or for worse—to have up to 80 milligrammes per millilitre without committing a criminal offence. This defence indeed requires a very heavy burden on the defence and one which, I would suggest your Lordships, has not been sufficiently clearly thought through. The mere fact that the noble Lord, Lord Hacking, says that it overrules Rowlands—which is not the advice that I have been given—in itself shows that there is still an area of dispute whether the noble Lord is right or whether I am right on this particular matter.
LORD HACKING: My Lords, it clearly must overrule Rowlands v. Hamilton for the very good reason that it divides the offence from the proof of the offence. The difficulty of Rowlands v. Hamilton was that the previous legislation did not do so, and it became merged

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into the two; hence their Lordships in the Judicial Committee were forced to make the decision in Rowlands v. Hamilton.
VISCOUNT COLVILLE OF CULROSS: My Lords, I think that this becomes another lawyers' paradise and the whole object of the exercise is to avoid such splendid excesses and banquets for lawyers. As we have a laboratory test and a specimen which has been taken after the person has had, first of all, the amount of alcohol in his blood, if any, which he had when he was driving, and secondly, the amount of alcohol in his blood as a result of having taken a drink after he stopped driving, and there is only one laboratory test and you are not allowed to apportion between the two, I still do not understand how the defence works. That shows the complication of this particular matter and we think that it goes too far.
I can see that there is a problem here, but what I cannot at the moment devise is a satisfactory mid-point between something of that sort which goes a very long way to make this a strict offence—to which there is virtually no defence at all—and the present law; and I cannot do it without attempting to construct the whole of the breathalyser offence. For the sort of reasons I have given, I think that this particular Amendment is defective and it would, on its wording, give rise to yet another series of major legal battles.
The noble Lord's third new clause deals with the question of driving. Here again we have a situation where the noble Lord, in his Amendment, has gone a good deal further than the law at present goes. I know that there are anomalies and that where a person is seen to be drunk or thought by a plainclothes C.I.D. man to be drunk, and is stopped and held in the driving seat until the arrival of a uniformed constable (who alone can administer the breathalyser), he is held to have stopped driving by the time the breathalyser is applied, so the law does not catch him. That was the case of Edkins v. Knowles. Equally, if the person is prevented from driving, as in the Bates case, by somebody else, a member of the public, for a period of time until the policeman
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arrives, he has stopped driving and so he is no longer in a position to be caught under the Act as it stands.
Those cases are one end of the scale. But what about the situation which would arise under the wording of Amendment No. 6? I shall give two examples. If I remember rightly, my noble friend Lord Mansfield suggested to your Lordships the other day the example of a party being attended by a husband and wife who made a pact. The husband was to drive there and the wife was to refrain from alcohol and drive home again—of course, it might be the other way round. Whoever drove to the party drove rather fast and the police were apprised of the situation. They found the couple at the house where they were having dinner. By that time the person who was driving had been released under the pact from abstention from alcohol and had had a considerable amount of drink. There was more than the prescribed minimum amount of alcohol in his blood. But he was not going to drive home; his partner was going to do so. Yet under this legislation, as drafted in the Amendment, there would be a power to arrest the person who had driven perfectly soberly to the party at any time in the course of the evening. This is absurd. I am afraid that that is the effect of the Amendment.
I need not go quite so far as that. Supposing that I, perfectly sober, drive to dinner and drive too fast because, as usual, I am late, and upon arrival, I have several drinks. I can be breathalysed by the police halfway through dinner, by which time they have caught up with me and at which time I have more than the prescribed amount of alcohol in my blood. But I am staying the night, I am not going to drive home. I have committed no offence. The noble Lord's Amendment does not take account of these things, and again it goes too far. I cannot see the midway point between, unless you take what may be a sophisticated but is nevertheless a fairly common-sense attitude about what is and what is not the state of driving, such as the noble and learned Lord the Lord Chancellor took in the Saklwja case.
Incidently there is not a gap in the law under Section 6(2) and (3), as the noble Lord, Lord Hacking thought. It was specifically provided under Section

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6(3) that a person who thought he had too much alcohol in his blood should be able to relinquish the effect of driving the car by some means until he had sufficiently sobered up to be able to drive home. It is a fairly complicated procedure; but there is no gap in the law which was created by some mistake. This was put in on purpose. The noble Lord may say that there is no power to enforce Section 6(2), but in fact there is in a rare number of occasions. It follows that it will be rarely used. Those two subsections are there on purpose and they are not, as the noble Lord considers, a gaping hole.
LORD FOOT: My Lords, the only illustration the noble Viscount has given of the way in which Amendment No. 6 might work out wrongly is the illustration of somebody who goes sober to a dinner party and who has a drink after he has arrived there. Has not the noble Lord overlooked the proviso which the noble Lord, Lord Hacking, is proposing: the requirement that the breath test is taken as soon as is reasonably practicable after that person ceased driving or attempted to drive. Supposing somebody drives perfectly sober to a dinner party, takes drinks and then police officers go into the private house and breathalyse him. If he was brought before the magistrates on this charge is there any magistrates' court in the world that would regard that as taking a sample as soon as was reasonably practicable after he had stopped driving?
VISCOUNT COLVILLE OF CULROSS: Yes, my Lords. I have been into this in great detail. I can explain to the noble Lord exactly why. Let me give an illustration. On my way to lunch I was driving fast and badly. My car number was taken by somebody, maybe a policeman, who did not stop me at the time. My car registration number is traced through the registration authority, which will very soon be based in Swansea and computerised. The police, having discovered the name and address of the owner of the car, telephone or visit my house and find that I am out to lunch. They go immediately to the place where I am having lunch and breathalyse me. What could be more than "as soon as reasonably practicable" than that? Nobody could be quicker, more efficient or more off the mark than that.
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The noble Lord wags his head and the noble Baroness wags her head, too. Very well, if noble Lords wish to avoid a ridiculous situation of that sort, so be it. I do as well. But I say that the proviso does not have that effect. This is the difficulty about law under pressure. This is the point that is going to be taken one way or the other unless we get it right. I suggest that when you have this type of proviso, and it is defended on those grounds, the Amendment is not right.
LORD HACKING: My Lords, I am sorry to interrupt again, but I should draw to the noble Viscount's attention the fact that the proviso is in almost identical language to the proviso that has been in the Act from the outset concerning paragraph (b).
VISCOUNT COLVILLE OF CULROSS: My Lords, whether or not my arguments are accepted, I cannot go on for much longer in this matter. I am sorry that I have already done so for so long, but I know that it is an important matter. I have tried to concentrate my arguments.
May I go on to the third group, Amendments Nos. 7 and 8. This is the question of what happens when somebody is arrested. I appreciate—and the noble and learned Lord, Lord Stow Hill, mentioned this—that there are circumstances in which if you are drunk when driving a car and a policeman stops you you can punch him on the nose and get arrested, and by the technicality of having been arrested for that offence and not for an offence under the Road Traffic Act, you cannot be breathalysed and disqualified as a result of a conviction. But I think that by this time the police know that, and although it may require a certain presence of mind, if you are a police officer and are punched on the nose, to arrest somebody under the Road Traffic Act before you also arrest him for punching you on the nose, it is something which is capable of being dealt with under police procedure. If the policeman gets it right the person is breathalysed and disqualified. There are practical methods of avoiding that difficulty.
The noble Lord, Lord Hacking, also said that there were circumstances in connection with a theft where somebody who had burgled a house, or something of that sort, had been driving a car with

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more than the prescribed amount of alcohol in his blood. I grant that these are circumstances that can arise, but we have one or two points about this, one of which is of some substance. First of all, under the Criminal Justice Act if somebody has used a car in the course of a criminal expedition he can be disqualified. Secondly, we have the case of Weir, which was heard in the Liverpool Crown Court, where a man was being questioned regarding stealing a car. After he had been taken to the police station somebody smelt alcohol on his breath and decided that they would also try to get him for driving the car with too much alcohol in his blood. Your Lordships can imagine all sorts of similar circumstances where burglars who come in a car or van are caught red-handed and the police wish to prosecute them also for driving under the influence of too much alcohol.
I suggest that we are getting some way from the direct nexus of driving a motor vehicle and having alcohol in the blood and a subsequent arrest. If you can arrest somebody for anything, and after that say "Incidentally, he came here by car, and I think he has too much alcohol in his blood," we are going a long way from the direct connection between driving and alcohol which is the basis of the present law in the Road Traffic Act. It may be right; perhaps we ought to have less close a nexus between the two. But if we do then we are getting into the area of a much looser application of the whole question of breath testing and alcohol testing in the blood. We are getting into the area of random testing for people who are picked up for any offence, or indeed for no offence, but simply because they are stopped at random. I believe we should consider the principle, and I believe that this House and another place would wish most seriously to consider the principle, because it was very seriously considered when the 1967 Bill was being debated.
When we come to this secondary charge, which arises out of an arrest for some other offence, we are getting into a much wider field altogether, a field which is inevitably entrenched upon by this last group of Amendments by the noble Lord, Lord Hacking. It is being done—I do not in any way suggest that the noble Lord has done it on purpose,
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but this is the effect—without anybody being told or given a chance to consider the full consequences of where we are heading when we do it this way.
My Lords, this has been a very long speech; I am sorry. I accept that this is an important subject. I also suggest to your Lordships that it is an extremely difficult one, and it is one that we ought to be very careful to try to take on board this way with the best will, the best drafting, the best endeavour in the world. I am afraid that I think all these Amendments are faulty, and I would still suggest to the House that we must look at the whole matter, keep it permanently under review. This is not the right time, nor the right way, to set about making an amendment.
LORD FOOT: My Lords, before the noble Viscount sits down, and since he has now made it perfectly plain that the Government are not prepared to accept Amendments of this kind to the breathalyser part of this Bill, I wonder whether I might ask him what he meant when on three occasions on Report he said that the matters which have been raised here have been very usefully raised because they provide a basis for discussion in the other place. May I ask him in particular what he meant us to understand when, after asking the noble Lord, Lord Hacking, not to press his Amendments, he said this:
"I hope the noble Lord may think it has been worth while to do it in this way, to make his speech, to produce his erudite comments and allow us more time to consider the matter when the Bill goes to another place in due course."?—(OFFICIAL REPORT, 17/12/73, col. 141.)
What did the noble Viscount intend us to understand by that?
VISCOUNT COLVILLE OF CULROSS: My Lords, what I intended the House to understand by that was that before I heard the very careful speech of the noble Lord, Lord Hacking, I had not had an opportunity fully to analyse this matter and to see what were the implications of what he was putting forward. It may have been an over-promising reply, but my ambition in this House in speaking from the Front Bench is not to turn down, out of hand, helpful and constructive Amendments such as the noble Lord has put forward. I hope that is the right

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attitude and one that will be supported.
I have now had the opportunity to look at this matter, and I find the prospect most unpromising for the reasons I have attempted to describe. I do not in any way suggest that the noble Lord, Lord Hacking or others who have supported him have been foolish in pursuing this matter, Far from it. It continues to be helpful and to give us ambition. But looking at the implications, as I have attempted to do briefly this afternoon, I am afraid I am now convinced that we have something too difficult to take on board in this Bill, and so I have to be less encouraging than I was previously.
3.54 p.m.
LORD CHAMPION: My Lords, I seek eventually to enter paradise, but not into a lawyers' paradise. In any case, I would have no standing there. I have listened with very close interest to all that has taken place on these Amendments, both on Report and to-day. I have listened to the noble Lord, Lord Hacking, to the noble Lords, Lord Stow Hill and Lord Foot, the noble Lord, Lord Chorley, and certainly to the noble Viscount who argues always so persuasively. I am bound to say that since 1967 we have had six years' experience of what was a new departure. The 1967 Act was introduced by the Government of which I was then a member. That Act was not perfect; nor were the clauses dealing with the breathalyser. I believe that the six years that have passed have given us sufficient time to make up our minds that some Amendment is necessary. I believe that although Lord Hacking's Amendments may not be perfect, they certainly seem to me to be a step in the right direction and would do something to remove some of anomalies which the noble Viscount has said definitely exist.
My Lords, the noble Viscount said that the Act has not failed. I do not think it has failed. He went on to quote figures of convictions to prove that that is the case, that it has not failed. But he was unable to quote any figures to indicate that there may have been very many more prosecutions if it had not been for the gaps in the Act itself. He said that the anomalies have been thrown out. My Lords, ought we not to deal with anomalies in the law as and when we can, and as and when they are brought to our attention? I believe that that, surely,
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is our position in relation to this matter because the Bill that is now before us seems to me to be a suitable vehicle for just the kind of Amendment which the noble Lord, Lord Hacking, is proposing. The noble Viscount certainly conceded that there were anomalies, and I feel that we ought to deal with them now in the Bill that is now before us. I think I ought to say that we do not regard this in any way as being a Party matter. I would not from this Box ask my noble friends behind me to accompany me into the Lobby in support of these Amendments as though it was something I would urge upon them as a Party matter. I must say that I have no hesitation at all about going into the Lobby in support of these Amendments. If the noble Lord, Lord Hacking, decides to go to a Division, I certainly hope that some of my friends behind me will accompany me.
3.57 p.m.
LORD HACKING: My Lords, may I begin by expressing my gratitude to all the noble Lords who have taken part in this debate, and not least the noble Viscount, Lord Colville of Culross, for the contributions that he has made. He thanked me for the hard work that I had put into the case. Quite clearly, my learned friend (if I may refer to him as my learned friend) has gone to a great deal of trouble before coming to your Lordships' House to-day. He was kind to me and I am going to be kind to him. Of course, all barristers, whether they be in Government or out of Government, from time to time receive a bad brief; and that is exactly what has happened to the noble Viscount to-day. He has received a thoroughly bad brief from those who advise him. I did not wish my Amendments to result in a debate on legal points between barristers or lawyers. Indeed, I was most grateful to the noble Baroness for intervening and approaching the matter from common sense. That is precisely how I am now inviting your Lordships to approach this matter. I propose to divide the House—and for this reason: the present law does not match up to common sense; more than that, it defies common sense.
In dividing the House I am putting only one question to your Lordships: has the present breathalyser provision efficacy? If it has not, now is the time to start to improve it. In the words of the noble

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Lord, Lord Champion, let us take a step in the right direction. I do not pretend, and have never pretended, that my Amendments are flawless or perfect. I have never pretended that they cannot be improved. Indeed, at the Second Reading and the Report stage I precisely said that when this Bill goes into the other place improvements can be made. But let us
start the ball rolling. Let us pass these Amendments, whether they are perfect or have imperfections. It is upon that basis that I divide the House.
4.0 p.m.
On Question, Whether the said Amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 59; Not-Contents, 84.

CONTENTS

Amherst, E.

George-Brown, L.

Roberthall, L.

Amulree, L.

Greenway, L.

Rochester, L.

Archibald, L.

Hacking, L. [Teller.]

Saint Edmundsbury and Ips-which, Bp.

Ardwick, L.

Henderson, L.

Arran, E.

Henley, L.

St. Davids, V.

Balogh, L.

Hoy, L.

Segal, L.

Birk, B.

Hughes, L.

Shackleton, L.

Brockwuy, L.

Hylton, L.

Shannon, E.

Buckinghamshire, E.

Hylton-Foster, B.

Shepherd, L.

Burntwood, L.

Janner, L.

Shinwell, L.

Champion, L.

Kennet, L.

Simon, V.

Chorley, L.

Kinloss,, Ly.

Stocks, B.

Clwyd, L.

Leatherland, L.

Stow Hill, L.

Davies of Leek, L.

Llewclyn-Davies of Hastoe, B.

Strabolgi, L.

Erskine, of Rerrick, L.

Lloyd of Kilgerran, L.

Summerskill, B.

Faringdon, L.

Loudoun, C.

Taylor of Mansfield, L.

Fiske, L.

Peddie, L.

Walston, L.

Foot, L. [Teller.]

Phillips, B.

Wells-Pestell, L.

Gaitskell, B.

Rea, L.

White, B.

Garnsworthy, L.

Rhodes, L.

Winterbottom, L.

NOT-CONTENTS

Aberdare, L.

Drumalbyn, L.

Merrivale, L.

Aldenham, L.

Ebbisham, L.

Mersey, V.

Alexander of Tunis, E.

Eccles, V.

Milverton, L.

Alport, L.

Effingham, E.

Mowbray and Stourton, L. [Teller.]

Amory, V.

Elliot of Harwood, B.

Balerno, L.

Emmet of Amberley, B.

Northchurch, B.

Belhaven and Stenton, L.

Exeter, M.

Nugent of Guildford, L.

Berkeley, B.

Ferrers, E.

Onslow, E.

Brookeborough, V.

Fortescue, E.

Platt, L.

Brooke of Cumnor, L.

Gage, V.

Rathcavan, L.

Brooke of Ystradfellte, B.

Gainford, L.

Redesdale, L.

Camoys, L.

Gowrie, E.

Ruthven of Freeland, Ly.

Chesham, L.

Grenfell, L.

St. Aldwyn, E. [Teller.]

Clancarty, E.

Gridley, L.

St. Helens, L.

Clitheroe, L.

Grimston of Westbury, L.

Sandford, L.

Coleraine, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Sandys, L.

Colville of Culross, V.

Selkirk, E.

Conesford, L.

Harvey of Prestbury, L.

Sempill, Ly.

Cottesloe, L.

Headfort, M.

Stamp, L.

Courtown, E.

Hill of Luton, L.

Strange of Knokin, B.

Cowley, E.

Hood, V.

Strathspey, L.

Craigavon, V.

Howe, E.

Sudeley, L.

Craigton, L.

Ironside, L.

Teviot, L.

Crathorne, L.

Jessel, L.

Tweedsmuir of Belhelvie, B.

Daventry, V.

Kilmarnock, L.

Vivian, L.

Davidson, V.

Kinnoull, E.

Ward of Witley, V.

de Clifford, L.

Limerick, E.

Windlesham, L. (L. Privy Seal)

Derwent, L.

Macleod of Borve, B.

Young, B.

Digby, L.

Mancroft, L.

Resolved in the negative, and Amendment disagreed to accordingly.

House adjourned during pleasure, and resumed by the Lord Chancellor.
Clause 25 [Authorised insurers required to be members of Motor Insurers' Bureau]:
4.9 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, on behalf of my noble friend Lord Aberdare, may I say that this is another of the Northern Ireland Amendments which results from the change in the law under the Constitution Act. I beg to move Amendment No. 9.
Amendment moved—
Page 30, line 31, leave out subsection (4). —[Viscount Colville of Culross.]
On Question, Amendment agreed to.
Clause 26 [Variation of penalties for certain offences]:
4.10 p.m.
LORD JANNER LORD JANNER moved Amendment No. 10:
Page 31, line 35, at end insert—
("() For the purposes of sections 26, 28, 109 and 110 of the Magistrates' Courts Act 1952, section 19 of the Criminal Justice Act 1948, sections 4 and 12 of the Criminal Justice Act 1961, section 24 of the Criminal Justice Act 1967, section 15 of the Criminal Justice Act 1972, section 7 of the Children and Young Persons Act 1969, and sections 60 and 67 of the Mental Health Act 1959, an offence under sections 2, 3, 5(1), 6(1), 9(3), 25(4), 29, 143, 164(1), 167, 169(1), 170 or 171 of the Road Traffic Act 1972, sections 233, 234 or 235 of the Road Traffic Act 1960, or 31(3), 42(4), or 86(2) or (3) of the Road Traffic Regulation Act 1967 shall be deemed to be an offence punishable on summary conviction with imprisonment.")
The noble Lord said: My Lords, in rising to move this Amendment I must frankly admit that I just cannot believe that the Government are really serious about retaining the clause as it stands at present. It would be fantastic, for many reasons. If we look at the Amendment we shall see how many penalties the magistrates' courts can impose to-day, and the clause is designed to take those away from the magistrates' courts in dealing with motor offences leaving the magistrates literally devoid of any possibility of action other than the imposition of a fine. That is sheer nonsense, and for the life of me I cannot understand why the Government did not themselves move this Amendment, which indicates what has
862
been tried out over the past 15 years. Your Lordships will observe that the Acts to which this Amendment refers extend over a period of 15 years. There are eight Acts which have been in operation from various dates during that time, and they have contributed in no small measure towards making the magistrates' courts effective. Now, all that is to be swept aside on the assumption that fewer people would be sent to prison.
Our Judiciary is admired throughout the world. This applies also to our magisterial system, and the fact that it has been operated in accordance with certain rules, which I call the "Westminster rules" and which have been improved from time to time, has indicated that the opportunities which have been given to magistrates to help in the removal of crime, so far as that could be done, have in fact been put into proper practice by reliable persons who, in many instances, have given the greater proportion of their lives to helping in the administration of justice. They have felt that it is a social duty on their part because of their particular abilities. Today, they are being told that all that has been done before is sheer nonsense so far as motoring offences are concerned, and that in future when a motoring offence comes before them all they can do is to impose a fine of £400. Apparently it is thought that that is not serious; it is a triviality, and that it is not necessary to send a person to prison. Obviously, if the prosecution decide that the case is serious they can take it to another court. The magistrates' court itself may impose a fine of £400, and apparently the offence may or may not be considered as serious. This is an absurd state of affairs. There are cases where a fine of £400 could be imposed instead of putting into effect the processes of detention which this House and the other place had thought necessary in order to provide for effective justice.
I know that the noble Viscount, Lord Colville of Culross, and the noble and learned Lord the Lord Chancellor, are convinced that they are right. The question is, how can I persuade them that they are wrong? I am convinced that they are wrong, and that if they persist in their attitude it will deal a serious blow—and I mean a serious blow because this is not a trivial matter—to our judicial

863
system. This is something which is beginning to undermine the whole edifice of the Judiciary in this country and it cannot be treated in a flippant manner. It is in fact the commencement of an operation which is destined to have very serious consequences because it is undermining the powers of the court of first instance—which after all is an important court—and frustrating the magistrates, who are anxious to do their best.
The magistrates are convinced that by the clause as it stands the Government intend to move in a disastrously wrong direction. They are supported in this view by the justices' clerks who serve their courts; and in an humble way may I say that they are supported by myself as well. The noble Baroness, Lady Phillips, and other noble Baronesses and I have endeavoured to show that the removal of imprisonment as a penalty for motoring offences from the jurisdiction of the magistrates is a grave error. When we come to examine its effects, as I shall endeavour to do in moving the Amendment (and I hope your Lordships will forgive me if I take somewhat longer than I ought to take, because I feel that one has to explain this, particularly to those who are not themselves magistrates), I hope and believe that your Lordships will give this Amendment your approval.
As I have indicated, this Amendment refers to 38 sections of eight Acts, passed at various times over a period of 15 years, and while I appreciate that the clause refers to road traffic offences only, nevertheless its passage without amendment would certainly be the thin end of the wedge and would remove the methods which the magistrates have been required to use over so many years. I have it from a reliable source that many magistrates, particularly in juvenile courts, are considering resigning from the Bench if the clause is passed in its present form.
VISCOUNT COLVILLE OF CULROSS: Oh!
LORD JANNER: Yes; that is so, my Lords. I would not say it unless I had been told by a reliable source; and the reason is that they feel it would be useless to attempt to deal at all effectively with road offenders. The magistrates would be absolutely frustrated in their work.
864
Is it not ridiculous that fines of as much as £400 may be imposed for some offences where a magistrate is called upon to give a decision where the prosecution is not prepared to consider the case sufficiently serious to be sent to a higher court, and to have no other course open to them? If a fine is imposed it is practically impossible to enforce its payment.
As I have said before, I hold the noble Viscount and the Lord Chancellor in very high esteem but I should like to draw the attention of the House to the speech made by the noble and learned Lord the Lord Chancellor at cols. 568 and 569 of Hansard for December 20, 1973. He said—and this is at the bottom of column 568:
"…the answer to the noble Baroness, who asked what we are to do with a man who has not paid his fines and comes before the court again, is simply to send him to the Crown Court to get a proper sentence."
I do not want to re-fight a battle, but the noble and learned Lord the Lord Chancellor is incorrect if he implies that with drunken or dangerous driving there is a power to commit an offender to the Crown Court for sentence.
THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE): My Lords, the noble Lord is really barking up a wholly wrong tree. I do not want to reiterate what I said in the earlier debate, but it was perfectly plain that my intention throughout that debate was that if a person was charged with an offence which he had repeatedly committed before, he ought to be taken to the Crown Court on indictment. I said nothing at all about committing for sentence.
LORD JANNER: Well, my Lords, I do not want to enter into a long argument. If the noble and learned Lord the Lord Chancellor says that is what he intended to say, I can only say, with the greatest respect, that it was not the interpretation put on what he actually said; and if the persons who brought the matter to my notice have misinterpreted it, or if I have, I am sorry. I am glad that the noble and learned Lord has now put the matter right because it is obvious, if the clause stands as it is at present, that it cannot mean sending for sentence. I have the wording here, but am quite satisfied with the interpretation that the noble and learned Lord the Lord Chancellor has

865
given. It helps to prove my case, because obviously all one can do is to say, "Do not be a bad boy in future; pay a fine."—a fine which is not enforceable in fact; it may be in theory, but not in fact. Everyone knows there are a large number of people who have been fined but who cannot possibly be sent to prison in consequence of the fact that they have not paid the fine.
My Lords, may I say why I am concerned about this matter? What are these penalties?—Let me take some examples. Attendance centre orders of 12 to 24 hours for juvenile adults up to 21 years of age, the number of hours to be worked off in two-hourly periods, mostly on Saturday afternoons, usually on alternate Saturdays. This is decided by the warden of the centre. There are only two senior centres for offenders of 17 to 21 years of age, one in Manchester and one in Greenwich. Their use is mainly for persistent road user offences and they are also useful in preventing less serious hooliganism at football matches because they prevent the offenders from going to the matches. There are senior centres, but I do not want to go into great detail on those.
In practice, the two-hour periods are divided into approximately one hour's physical exercise and some cleaning chores, and one hour's constructive tuition. At Greenwich there is a course of car and motor-cycle maintenance, intended to appeal to men who persistently take and drive away cars, so that they can understand and take a proper interest in cars, for which they obviously have some sort of obsession. Then there are lectures in citizenship, and so on. The juvenile centre in London is run by the police. These are centres to which in future the courts will not be able to send an offender for a motor offence. In London the centre is something like a boys' club. There, too, they have physical exercises and are taught useful hobbies, basket work and so on. Experience has shown that several of those who have gone through juvenile attendance centres have now joined local youth clubs. There is opportunity for private talks with the warder and other instructors with whom the boys or men can discuss problems. The attendance centres have been used considerably by juvenile courts as they have the double effect on the youngster of providing an opportunity to do con-
866
structive work, and also some punishment in the necessity to give up some leisure hours at weekend.
I do not want to go into detail about the other penalties, such as the possibility of keeping a man for the day in charge in the magistrates' court, in cases which do not justify harder penalties. Even that is one of the penalties that will be removed; and so are the various other penalties or opportunities which are given by the Acts as they stand. I should imagine that those of your Lordships who are in the Chamber at the moment and are magistrates will understand that what I am saying is correct, and that this is the feeling of the vast majority, if not all, of the magistrates in this country.
My Lords, why should the Government be stubborn about not doing something which they have said they will consider? It is not suggested that the matter is one which does not require or justify consideration. The Government have said to the magistrates in various places—indeed, in this House—that they would consider dealing with these matters at a later stage. The whole idea of the various Amendments that we moved earlier to enable magistrates' courts to imprison was mainly on account of the fact that under the Bill as it stands all these methods would be taken away from magistrates' courts. I think this House will agree that this would create an impossible situation. I hope the Amendment will be carried and that the Government will see to it that in another place the clause is not revived in its present form. I beg to move.
4.28 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, I hope that the noble Lord, Lord Janner, and other Members of the House will forgive me, but I do not propose to go back over all the arguments of principle that have been raised in this House about this subject on the previous stages of the Bill. The noble Lord, Lord Janner, has made, and is entitled to make on Third Reading, what is in effect a Second Reading speech on this point. I do not object to that in any way. I understand that what lie is saying is largely a plea for, as it were, those powers in magistrates' courts which flow from the fact that the offences carry imprisonment, although they are not only custodial sentences. I do not know

867
whether any one remembers, but at cols. 540 onwards of Hansard on Report stage, I dealt with every single one of these points at considerable length, and argued, with great regret (and I think I made the regret plain at the time), that the Government could not see their way as a matter of principle and as a matter of practice, as it were, to reimport these non-custodial sentences so that magistrates could continue to use them. The noble Lord, Lord Janner, did not refer to the arguments I put forward—I do not blame him for that—but if noble Lords cast back their minds, they will rememeber that I argued this fairly fully. At the end of that particular argument the House divided, and the argument for which I was the proponent held the day.
I do not want to go over all this again, but to deal only with one thing. It is something I did not then cover, so therefore it is novel, and it relates to juvenile courts. I know there is a particular problem here. I do not know where the noble Lord got his information from that certain juvenile courts magistrates propose to resign. I am sorry to hear this and hope that perhaps on second thoughts they will not do so, but I do understand that there are problems for the magistrates who run the juvenile courts when one has to deal with youngsters, usually boys, who are persistent road traffic offenders, particularly in areas where secure community homes are not provided.
I appreciate that there are severe problems. I. wondered, therefore, what was the extent of the problem and what would need to be done about it. I assume that in these cases the juvenile court magistrates do not make much use of the power to bring parents along and bind them over or get recognisances from them, or indeed fine them. I have not got the figure, but I assume that this is not a popular course with the magistrates, although it is available to them under the law. They would rather deal with the juvenile himself. The noble Lord said that fines were not very effective; at any rate he said that they cannot be enforced. I must make it perfectly plain that there are goodness knows how many offences in the criminal calendar which do not carry imprison-
868
ment for which fines are available, for which fines are passed by juvenile courts and other courts, and they are, I assume, enforced, and the mere fact that we are taking away the power to imprison for certain road traffic offences really does not seem to me to make it impossible for fining to take place in cases where the juvenile court wish to impose it simply because of the removal of special powers of warrants to be issued in cases where somebody does not turn up. I am afraid I really cannot accept that argument, because there are certain other cases where imprisonment is not available and yet the magistrates satisfactorily impose fines.
What I really wanted to look at was the detention centre and attendance centre argument. Let me first of all make it plain that I accept that it is a very rare occurrence indeed for a juvenile—that is, someone from 14 to 17 years old—to be committed to the Crown Court for trial, because, as I understand it, it is only where he is tried with somebody else who is older that this happens. Indeed, I observe that in 1972 there was only one finding of guilt for a person of this age brought before the Crown Court for road traffic offences, and that person was fined, so the vast majority have been dealt with by the magistrates. May I look at the statistics. In 1972, there were just over 19,000 findings of guilt for persons between 14 and 17 for road traffic offences.
The noble Lord, Lord Janner, said that attendance centres are widely used. Well, they are not. Out of 19,000 findings of guilt, there were 184 attendance centre orders. I dare say the attendance centres are admirable, but they are not widely used. I do not know what the percentage is, but those are the figures. I look at the detention centre orders, which are at the moment available. Incidentally, I have seen to it that more junior detention centre places were made available recently although I do not think this applied in 1972. Of the 19,000 findings of guilt, there were 344 detention centre orders and 340 committals to borstal. So out of 19,000 juveniles, we have something in the region of 800 people who were dealt with in one way or another custodially. That does not seem to me to be a very large number. Included in that, although I think the numbers are fairly small, are a number where one or

869
other of these custodial orders was made for driving while disqualified. I have just been told that there were 39 orders against parents—fines, damages or compensation—and 8 orders for recognisances to be entered into; that is for road traffic offences. So I assume that that part of the 1969 Act has not been used.
I go back to my argument. There were a few of these custodial sentences where the sentence was imposed for driving while disqualified. That power remains. I want to see what is available to the magistrates and what is a typical case that comes in front of them. Take the road traffic case. First of all, let us remember that what used to be taking and driving away, which was a road traffic offence until the Theft Act, is now dealt with under the Theft Act and therefore is not involved in this. A frequent reason why a juvenile, particularly somebody who is persistently involved in meddling about with motor cars, comes before the juvenile court is for what used to be taking and driving away. That is not affected by the Bill. Power to send him to a detention centre remains; this is in no way taken away. Secondly, I should think that the juvenile courts—I would be surprised to hear to the contrary—are disinclined to send juveniles to detention or attendance centres on the first occasion when they appear for misbehaving in some way with motor vehicles. If the offender is between 14 and 17 there is a very strong probability that if he misbehaves with a motor vehicle he drives it without an adequate licence, and I imagine that on the first occasion he gets disqualified. The next time he misbehaves and comes back to the juvenile court he can be prosecuted—and indeed I would expect him to be—for driving while disqualified. In those circumstances, under this Bill the power to send the person concerned to a detention centre or attendance centre remains.
We are therefore left with the rest. After all, if you have a charge of dangerous driving or careless driving or tampering with vehicles, or whatever it is, and it is accompanied by a charge of driving while disqualified, there is still power to send to a detention centre. What we are taking away is what I should have thought to be a fair and a minimal number of cases for imprisonment. I have set this out time and again. The figures that I
870
have given to-day specifically relate to the juvenile offender, because this is something I am worried about. I do not say that the Government have stopped thinking about this, but I do not believe that we can deem this whole list of offences set out in the Amendment to be imprisonable for the purpose of applying all these non-custodial penalties in the setting of these road traffic offences by themselves.
My Lords, I hope I have been reasonable and that I have tried to argue this matter carefully to show that I have thought about it. I hope that the combination of what I said on Report, together with what I have said to-day indicates to the House that the magistrates are not in practice going to lose powers that they employ with any frequency. I hope also that I have been able to establish that in the case of adults there will still be the possibility in serious cases to indict and send to the Crown Court, where any sentence can be imposed, including imprisonment, and in the case of juveniles there are still powers for commoner sorts of offences. If fines against the persons concerned are considered by the courts to be inadequate, I just draw attention to the fact that parents can be involved. I hope that the noble Lord will realise that we do not do this in any sense, as he tried to put it, as beginning to undermine the whole edifice of the judiciary. I have made it pellucidly clear that we are doing no such thing. There is no onslaught upon the integrity or the power of importance of the magistracy. I have said this over and over again, and so has my noble and learned friend on the Woolsack. It comes very much more importantly from him than it does from me. But we have both said it and we both mean it—there is no question of undermining this edifice. Nor is there any question of treating this, as the noble Lord suggested, in a flippant manner. I treat it very seriously. I have attempted to argue it very seriously, and I hope that the House will be convinced by my arguments.
BARONESS PHILLIPS: My Lords, I will not delay the House very long because my noble friend Lord Janner has done so much research on this and has presented the case. But I should not like it to be thought that I have changed my views in any way since the early stages of the Bill.

871
I find the noble Viscount's arguments curious. They are skilful, as he is very practised, and very eloquent. But what he seemed to me to be saying, in essence, was that because the magistrates have not used the powers of imprisonment then they do not need them; so the powers should be taken away and the magistrates should deal with these matters simply through fines.
The mere fact that, from the figures given, magistrates have not necessarily used even the powers relating to attendance centres is not a true reflection of the situation, as I feel sure the noble Viscount knows. I know from sitting in court that there are many things that one would like to do but that in fact the facilities do not exist. I cannot speak for the juvenile court. There are many occasions when one would like to deal with offenders in a particular way, but we all know that many of the services written down on paper do not in fact exist when it comes to the actual carrying out. I do not think that the figures show a completely true reflection of the way these sentences would have been imposed had there been more attendance centres available.
While I have not heard of magistrates proposing to resign, I cannot give the noble Viscount, or the noble and learned Lord the Lord Chancellor any comfort on this matter. The feeling of the magistrates on this matter is quite strong. I am very proud to be a magistrate. Here is a group of people who work voluntarily to carry out this arduous and not very pleasant service, and if they, as the consumers here, feel that the Government are not handling this in the way that they would like, it is only fair that we should state their case in this House. I hope that when the Bill goes to another place they may be a little more fortunate in this matter.
LORD JANNER: My Lords, I listened with great interest to what the noble Viscount said, but I am bound to say that I
was not convinced. He has overlooked the fact that quite recently the London branch of the Magistrates' Association undertook a survey on this particular subject, and they drew up a report which strongly recommended that there should be more senior attendance centres opened.
VISCOUNT COLVILLE OF CULROSS: My Lords, I really cannot let the noble Lord get away with that. We argued interminably about this on the Criminal Justice Bill.
LORD JANNER: My Lords, what I am trying to do is to get the noble Viscount to see that there are people who are called upon to give a certain service, and who give that service, and know what they are talking about. The Magistrates' Association and the clerks to the justices feel very strongly on this point, and indeed the Government said to the committee of magistrates studying senior attendance centres that they would hold up the provision of more attendance centres until the community service orders scheme had been fully put into operation. How can he say at this moment that he is going to deprive them of all this? It is a ridiculous position. Is he saying that what has been going on all these years was all useless, that the operating machine has been futile, that it was not working, and that it should have been done away with before? Of course he cannot say that. If he is attempting to do away with it for one set of offences, what is there to prevent other steps from being taken to deal with other kinds of offence in a similar way? I do not think that that is an argument.
My Lords, this is a matter of great public interest, and is regarded as such by the public and by the magistrates. I am certainly going to ask that the House should divide.
4.45 p.m.
On Question, Whether the said Amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 29; Not-Contents, 89.

CONTENTS

Amherst, E.

Foot, L.

Janner, L. [Teller.]

Amulree, L.

Gamsworthy, L.

Leatherland, L.

Birk, B.

Hacking, L.

Longford, E.

Brockway, L.

Henderson, L.

Ogmore, L.

Burntwood, L.

Henley, L.

Phillips, B.

Champion, L.

Hoy, L.

Rea, L.

Chorley, L.

Hughes, L.

Rhodes, L.

Shepherd, L.

Stocks, B.

Taylor of Mansfield, L.

Shinwell, L.

Stow Hill, L.

Wells-Pestell, L. [Teller.]

Snow, L.

Summerskill, B.

NOT-CONTENTS

Aberdare, L.

Ebbisham, L.

Mancroft, L.

Aldenham, L.

Eccles, V.

Merrivale, L.

Alexander of Tunis, E.

Elliot of Harwood, B.

Mersey, V.

Alport, L.

Emmet of Amberley, B.

Milverton, L.

Amory, V.

Erskine, of Rerrick, L.

Molson, L.

Atholl, D.

Exeter, M.

Mowbray and Stourton, L.

Balerno, L.

Ferrers, E.

Northchurch, B.

Belhaven and Stenton, L.

Fortescue, E.

Onslow, E.

Berkeley, B.

Gage, V.

Platt, L.

Brookeborough, V.

Gainford, L.

Redesdale, L.

Brooke of Cumnor, L.

Gowrie, E.

Roberthall, L.

Brooke of Ystradfellte, B.

Greenway, L.

Ruthven of Freeland, Ly.

Caccia, L.

Grenfell, L.

St. Aldwyn, E. [Teller.]

Clithcroe, L.

Grimston of Westbury, L.

St. Helens, L.

Clwyd, L.

Hailes, L.

Sandford, L.

Coleraine, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Sandys, L.

Colville of Culross, V.

Selsdon, L.

Conesford, L.

Harvey of Prestbury, L.

Sempill, Ly.

Cottesloe, L.

Hawke, L.

Strange of Knokin, B.

Courtown, E.

Headfort, M.

Strathcona and Mount Royal, L.

Cowley, E.

Hood, V.

Craigavon, V.

Hylton, L.

Strathspey, L.

Craigton, L.

Hylton-Foster, B.

Sudeley, L.

Crathorne, L.

Killearn, L.

Tweedsmuir, L.

Daventry, V.

Kilmarnock, L.

Tweedsmuir of Belhelvie, B.

Davidson, V.

Kinloss, Ly.

Vivian, L.

de Clifford, L.

Kinnoull, E.

Wakefield of Kendal, L.

Denham, L. [Teller.]

Limerick, E.

Ward of Witley, V.

Derwent, L.

Loudoun, C.

Windlesham, L. (L. Privy Seal.)

Digby, L.

Lucas of Chilworth, L.

Young, B.

Drumalbyn, L.

On Question, Motion agreed to.

LORD ABERDARE: My Lords, I beg to move the privilege Amendment.
Moved, That the privilege Amendment be agreed to.—(Lord Aberdare.)
On Question, an Amendment (privilege) made.
4.53 p.m.
LORD ABERDARE: My Lords, I beg to move that this Bill do now pass. In doing so, I should like very briefly to take the opportunity of thanking all of your Lordships who have contributed to the passage of the Bill. We have a considerable number of experts in this House on the matter of road traffic. We have had some extremely useful debates on the subject and have made some very important Amendments, particularly on the subject of road safety. We have included a very significant new clause enabling the wearing of seat belts to be made compulsory, about which we had a wide-ranging debate and on which your Lordships' views will be very useful to
874
the Government when making decisions in the future.
I should like to thank my two noble friends Lord Colville of Culross and Lord Mowbray and Stourton, who have done most of the work on this side of the House; I am very grateful to them. I should also like to thank the noble Lord, Lord Champion, and his helpers for their co-operation. We have not agreed on all matters that have come before us, but we have conducted our debates amicably, and I thank the noble Lord, Lord Champion, for his co-operation in many of the administrative arrangements that have been made in connection with the Bill. My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Aberdare.)
LORD CHAMPION: My Lords, this is undoubtedly a useful measure to which we are bidding goodbye today. As I said on Second Reading, it is something of a hotch-potch, but it is none the worse for that. I very much regret that the Government did not accept some of the excellent Amendments that the

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Opposition moved in an attempt to improve the Bill, but it is always the fate of Oppositions in this House and in the other place that we so seldom manage to persuade the Government that they are wrong. But I was glad that the right reverend Prelate the Bishop of London managed to persuade the House that the Government were wrong, and that we passed the new Clause 7 which deals with parking on pavements. Clearly, the Government were not in favour of the Amendment and it will now be interesting to see what they do in another place, when they consider this Bill and, in particular, that Amendment.
The Opposition are very grateful to the Government for starting the consideration of this Bill in this House, and for enabling us to take a first look at it in times when we are not under particularly heavy pressure. We see the Bill on its way, hoping that it will bring about improvements in road safety and in certain other aspects. I cannot let the Bill pass without thanking individual Ministers who have been in charge of this Bill for the care which they have brought to the consideration of all the Amendments and for their unfailing courtesy to the House. This is my first opportunity to congratulate the noble Lord, Lord Aberdare, upon the step up which he has taken during the period when this Bill has been going through the House. I cannot imagine that that step up has been made because of anything arising out of this Bill, but we are happy to see it and we certainly congratulate him. I end by hoping that this Bill will prove to be the source of improvement for which the Government hope.
On Question, Bill passed, and sent to the Commons.

PROTECTION OF THE ENVIRONMENT BILL [H.L.]
4.58 p.m.
THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (BARONESS YOUNG): My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
Moved, that the House do again resolve itself into Committee.—(Baroness Young.)
House in Committee accordingly.
[The BARONESS EMMET OF AMBERLEY in the Chair.]
Clause 2 [Preparation and revision of waste disposal plans]:
LORD HENLEY LORD HENLEY moved Amendment No. 12:
Page 3, line 20, at end insert—
("(vii) the local planning authority where this is not the disposal authority.")
The noble Lord said: The first Amendment to-day deals again with the question of who shall be consulted by the disposal authorities in making their plans. This is the point at which we left the Bill in December, when I moved an Amendment to the effect that owners and occupiers of sites for disposal were suitable people to be consulted. The noble Baroness, Lady Young, was kind enough to say that she thought there was some sense in the Amendment and promised to look into it. She also said that one must be careful not to bring too many people into consultation, as one might well defeat one's end and make matters too complicated, but promised to see what she could do.
The Amendment which I am now moving deals with the consultation of the National Park planning boards. Under the Amendment, it shall be the duty of a disposal authority in preparing the plan and any modification of it, to consult
"(vii) the local planning authority where this is not the disposal authority."
In most cases, the local planning authority and the disposal authority are one and the same thing and we know that they cannot be required to consult themselves. We had this same problem with regard to highway authorities. Nevertheless, provision needs to be made for consulting National Park planning boards about disposal sites in National Parks, and I think that it needs to be said.
The noble Baroness may argue that it is unnecessary because it is covered at some other point in the Bill, possibly in one of the clauses dealing with planning. Nevertheless, I should like to hear what she can say to assure me that in fact there is no question of National Park planning hoards not being consulted about these disposal sites. I beg to move.
BARONESS YOUNG: I have listened with great care to what the noble Lord, Lord Henley, has said on this Amendment. I must confess that when I first looked at it I assumed that by the words,
"the local planning authority where this is not the disposal authority",
the noble Lord in fact meant the local planning authority where this was the district authority. That being so, I should have thought that the point he was trying to make was in fact met within the terms of the Bill. The local planning authority in England may be the district council or the county council, depending on the planning functions (whether these are development planning or development control) allocated to each. If this were the meaning attached to it, it could create problems of definition to require consultation in the way in which the Amendment is drafted. The district council in England will already be consulted in its capacity as collection authority, and in Wales and Scotland the county council and the council of the region will be consulted respectively by the disposal authority, which is the district council. Subsection (3) provides that all the bodies with planning responsibilities will in any case be consulted on the waste disposal plan, although not explicitly because of their planning functions.
However, having heard the noble Lord's argument, I can see that what he is really concerned about are the National Park planning boards. In this connection, I should like to say that this is a matter I should like to take away and think about. I think there is something in this point, and I therefore hope that the noble Lord will accept that I will consider it, and will feel able to withdraw the Amendment.
BARONESS WHITE: Before the noble Lord withdraws the Amendment, if he is disposed to do so, I should like to say that I am very glad that the noble Baroness has agreed to look at this because I think it is a very real point. Plainly, the wording of the Amendment did not convey its full meaning to the noble Baroness, or presumably to her Department, but this really is a matter of substance in a National Park area and I very much hope that she will come back with an Amendment which will cover the point made by the noble Lord, Lord Henley.
LORD MOLSON: I was very glad to hear the sympathetic reply that my noble friend gave to the noble Lord's Amendment. There are, I think, only two National Parks which have planning boards. One is the High Peak, in which my old constituency was located, and that has been extremely successful in acting as a planning authority. I think it would be most unfortunate if by (as I think it would he) an oversight the Peak Park Planning Board were not consulted about the disposal of refuse. I think the same probably applies in the case of the Lake District. They also have a board, although unfortunately they have not a planning officer; they operate through the planning officers of the two county councils. In any case, I was extremely glad to hear my noble friend's sympathetic reply, and I think it might be more intelligible if in any Amendment that she brings forward she referred explicitly to the National Parks and did not use this form of words, because I am not at all surprised that she did not exactly understand the point that the noble Lord, Lord Henley, was trying to establish.
LORD HENLEY: I am very much obliged to the noble Baroness, and I am very glad that other noble Lords feel, as she does, that there is a point of substance here. May I apologise straight away for having presented your Lordships' Committee with an Amendment which did not make it at all clear on the face of it that it was dealing with National Parks. I agree with the noble Lord that if the noble Baroness does come up with a Government Amendment it should be couched in a form which makes it quite explicit what it is aimed at. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.6 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 13:
Page 3, line 22, leave out from second ("modification") to ("to") in line 24 and insert ("which is so insignificant that it would be unreasonable to require publication")
The noble Lord said: I beg to move Amendment No. 13 which, although it may seem at first sight to deal with a matter which is little more than drafting, does, I submit to your Lordships' Committee, raise a matter of principle. As

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the Committee know well, Clause 2 imposes on the disposal authority the duty to make a plan and also, if it comes to another conclusion on further investigations, which it is also obliged to carry out, to make modifications to that plan. When one looks at paragraph (b) of subsection (3) one finds that the disposal authority is enjoined by the wording of that paragraph,
"before finally determining the content of the plan or modification",
to take certain steps: first, to give publicity and, secondly, to
"provide persons appearing to the authority to be concerned with the plan or modification with opportunities of making representations to the authority about it".
Then it is obliged, by the succeeding wording of the paragraph, to consider any representations that are made; and "consider" means to consider them bona fide—to give proper attention to them and to give proper weight to the arguments which they contain.
Now the wording which I submit is objectionable in the paragraph as it is at present drawn is the wording in the brackets, which reads:
"excluding a modification as to which the authority considers it unnecessary to comply with the provisions of this paragraph".
I submit to the Committee that it really is highly undesirable that the disposal authority should be, as it were, made a judge in its own cause. For the legislation to say, "You, the disposal authority, must take certain steps unless you choose not to", is surely a rather novel, and certainly undesirable, way to draft the provisions of a Statute. One would have thought that any disposal authority which thought that publicity and listening to representations was necessary would do so even without being told to do so by the Statute; but for the Statute to say, "You are to do so unless you choose not to", is a form of drafting which I should have thought was novel—it may be that I am entirely mistaken about that. but I do not know of any other example—and undesirable.
The way in which those of us who have put our names to this Amendment seek to remedy the situation is to strike out the words to which I have taken objection and substitute:
"which is so insignificant that it would be unreasonable to require publication".
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The big difference between the wording at present in the paragraph and the wording which it is sought to substitute is that the new words would impose an objective, external test. If the matter came before a court which was considering whether it would impose a prohibition against further proceedings by the disposal authority the court would have objectively to ask itself, Is the modification in question so insignificant that it would be unreasonable to require publication? "That, I submit, is a very much more desirable form of wording than a form of wording that leaves a decision almost to the whim of the disposal authority. Under the existing wording, a disposal authority may say, "In the exercise of our judgment, which is not to be subject to any inquiry or supervision by anybody, we choose not to give persons affected the opportunity of making representations to us."
I submit that this is a change which ought to be made. It is a point not susceptible of great elaboration, and that is the substance of it: that the Government should say they will give consideration to imposing some objective test with which the disposal authority has to comply. I hope that I shall not be told that there are examples in other Statutes because, even if there are, it does not mean that they are good: it means that the other Statutes are bad. Quite often I have been told that when I was Solicitor General a quarter of a century ago I approved something of the sort. I hope the Committee will agree that that simply proves that I was a bad Solicitor General, and not that I was right to give my approval. I hope that there will not be quoted cases when I did. If there are cases, I have quite forgotten them; but if I did I apologise, and I hope the Committee will not think it right to follow the recommendations that I then made, if I made them.
THE PARLIAMENTARY UNDERSECRETARY OF STATE FOR DEFENCE (LORD STRATHCONA AND MOUNT ROYAL): I do not think that there is a very serious difference of opinion here between the noble and learned Lord, Lord Stow Hill, and the Government. There are some points of detail between us, I believe. I certainly am not going to try to cite examples against the noble and learned Lord, and in no circumstances

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would I question his very distinguished tenure of office as Solicitor General.
There is a basic problem which it would be as well to get out of the way because it will crop up again a couple of times later. The Government's basic attitude about waste disposal authorities is that, having set them up and given them powers, we want if possible to trust them and to help them get on with the job without too many unreasonable impediments. I accept that what we are arguing about here is finding the right balance between safeguarding the public interest and allowing a local authority to get on with its job.
The acceptance of the Amendment would mean that the authority could exclude from the stages of public participation set out in subsection (3)(b) only those modifications which were merely insignificant, rather than those which the authority thought did not require publicity. Here there is an aspect which we must welcome; that the Amendment seeks to impose a common measuring stick to determine whether a modification should be publicised, instead of leaving the decision entirely to the discretion of the authority. There are obvious advantages in this proposal, but one must approach it rather carefully. The Government have given some thought to this matter in drafting the Bill, and the Amendment is clearly designed to ensure that the authority does not abuse the present discretionary duty of publicity for modifications by too extensive a reliance on the phrase, "unnecessary to comply".
The suggestion of changing the criterion to "insignificant ", rather than the authority's judgment, raises problems. Here I have to say that our legal advice is somewhat at variance with the noble and learned Lord in that the lawyers are not entirely happy about the definition of "insignificant" or the definition of the word "minor" in this respect. It would bring some loss of freedom of action to the disposal authorities; and as I have said, we are anxious to create a climate of opinion in which the authorities being set up to do a difficult job are trusted to inform the public so far as is compatible with their duties. We hope that these new larger W.D.A.s (I must apologise for using those initials, but I suspect that will be done several times before we are through with our business to-day) will get
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on with the job and that they will make reasonable use of the powers we give them.
There may be occasions and instances when important modifications may be thought necessary but not of particular interest to the public. For example, there are technical issues involving the siting, or the design of transfer stations and on-site plant or equipment, and therefore we do not think that significance is quite the right test. I think that the way we should deal with this is to reconsider the point with a view to substituting the right words to make clear that the authorities should refuse to publicise modifications only in cases where, in the opinion of the authority, the modifications are of insufficient substance to require it. This is what counsel has been asked to consider already. I hope that I have satisfied the noble Lord by that explanation that the Government want to help so far as possible.
BARONESS WHITE: The noble Lord, Lord Strathcona and Mount Royal, has done his best with a Departmental brief. As my noble and learned friend Lord Stow Hill made very plain, the point is that we are not happy about this provision, or the one which is referred to in a later Amendment, whereby the bias is entirely in favour of the disposal authority and against public participation. It is all very well for the noble Lord to say that some of these matters might be technical and therefore the public would not be interested; but the public may include persons very knowledgeable about such things. A number of noble Lords are associated with various organisations which include in their membership not only those who take a general interest in environmental matters but also those who have a very close professional knowledge of them. It is precisely persons of that kind who can make the appropriate comments on what is going on, and on whether an authority, for one reason or another, is not likely to observe the best possible practice. I am very much concerned that professional people—scientists, architects and the rest—should have an opportunity, as citizens, of taking a critical interest in what is going on. That is what participation really means. We can go back to Socrates; it is the person who has knowledge who should be asked to comment on these things.

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I thought it a particularly unfortunate reference when the noble Lord, Lord Strathcona and Mount Royal, said there might be something rather technical and therefore the public ought not to have any opportunity to hear anything about it. It is precisely in those cases that there may be a member of the public who knows something about the subject and who ought to be put in a position where he can cross-question or query some proposition put forward by the disposal authority. I do not wish to quibble over words. If the Government are prepared to bring forward an Amendment of their own and use an expression like "insufficient substance", instead of "significant", as a form of words, I do not suppose that my noble and learned friend would wish to quibble. But it is a point which should be taken seriously; it is not just a drafting point. I do not know what my noble and learned friend wishes to do. But we have had at least some offer of co-operation from the noble Lord, Lord Strathcona and Mount Royal, and at this stage I think that we ought to see what the Government are able to do.
LORD STOW HILL: If the Committee will allow me I will certainly follow the advice given by my noble friend. Before asking permission to withdraw the Amendment may I make this one point? If I correctly follow what the noble Lord said, he had it in mind, in the changed wording that he was going to consider with his advisers, to leave the judgment about whether or not the sub-paragraph was to be complied with as a judgment of the disposal authority itself. I hope that, when he has considered the matter with his advisers, he will be able to substitute what I describe as an objective test. It should not be for the authority to say whether or not it proposes to comply with the paragraph; the authority, I submit, should have to comply with some objective test. I would ask the noble Lord, when he considers the matter further, to bear that point in mind. Having said that, may I say that I am most grateful to him for his reply which I found extremely helpful, and if the Committee will allow me I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.21 p.m.
LORD GARNSWORTHY LORD GARNSWORTHY moved Amendment No. 14:
Page 3, line 28, after ("provide") insert ("the collection authorities or other").
The noble Lord said: In moving this Amendment, I think it may be for the convenience of the Committee if I speak at the same time to Amendments Nos. 18, 19, 20 and 21, since they all have a common theme in the emphasis which they place on the role of the collection authority in the proposed new system of waste disposal. I think we need at all times to bear in mind that when the term "collection authority" is used it really means the new district councils so far as England is concerned. Every time we mention "collection authority" we really mean the district council. Because the district council has very important functions indeed as the planning authority in its own right, being charged with important environmental health functions, it is surely desirable that it should be informed of the contents of the waste disposal plans before they are finally determined. I appreciate that the clause provides for consultation with the collection authority as laid down in subsection (3)(a)(ii) at the formative stage of the plan. Surely it ought to be similarly named when it comes to the obligation of the disposal authority to provide opportunities to make representations before the final determination of the contents of its plans for waste disposal.
Amendment No. 14 would provide this. A district council is not just another person, and its role should be recognised and given appropriate status and rights. While in normal circumstances it can be expected that co-operation between collection and disposal authorities will be close in the formulation of a waste disposal plan and that mutually acceptable arrangements will be made, nevertheless it is wise at this stage to recognise that there is the possibility of disputes on certain actions. May I give an example? Under the Bill, the plan must include information as to the sites which are to be provided for disposing of controlled waste. I refer to subsection (2)(f) of this clause. It is conceivable that the collection authority might disagree. They might well take the view that the disposal

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authority, the county council in England, because, they might claim, of operational efficiency, sought to concentrate disposal at one particular point in the country. Further, it is reasonable to anticipate that many changes in disposal arrangements are going to be made.
I am sure that no one imagines that the reorganisation that will follow this Bill will mean that things will continue as they are at the present time when collection authorities are also responsible for disposal. It could well be that a new county council might seek to accelerate the use of a controlled tip which a defunct district council had established and pour in waste from a greatly extended area. I live not too far from a controlled tip that was acquired and is being used by an authority which will become defunct at the end of March. If there was this acceleration, it could mean a tremendous increase of traffic, a dramatic intrusion into the local environment and considerable local resentment. Any proposal to concentrate disposal at one particular location could give rise to acute feelings of dissatisfaction.
I should like to quote from the Consultative Document entitled Waste Disposal Proposals for a New Framework, and I turn to page 16, paragraph 5, which reads:
"Objections to the disposal plan. The waste disposal plan ought not to be a highly controversial document but some aspects of it, particularly the location of tips and treatment plant, may give rise to objections from the public or disagreement with other public bodies and there will need to be procedures for considering these."
Then I go to the last sentence of that paragraph, leaving out what is in between:
"In the special case where two authorities are in substantial disagreement about the objectives of a disposal plan the case might need to come to the Secretary of State or to another arbitrator for adjudication, but the object would be to keep such cases to a minimum."
As to whether such cases can be kept to a minimum, experience will reveal. I have to say that the Urban District Councils Association regards the Bill as being defective in that it fails to provide machinery for the settlement of disputes except as laid down in Clause 2(4) where a disposal authority refuses consent to the taking of waste by another authority into its own area.
Amendment No. 18 is intended to secure that where a collection authority refuses its consent, the Secretary of State is called upon to decide the issue. I hope that the Government will feel they can recognise the anxiety of collection authorities as their concern has been represented to me through the Urban District Councils Association. I trust that the Minister will be able to go a very long way to satisfy that concern. I beg to move.
5.29 p.m.
BARONESS YOUNG: In the complex society in which we live, one of the "in" words, if not "participation" is certainly "consultation", and quite rightly so. It will be seen I think from studying Clause 2 that very extensive proposals are made within the Bill for consultation between the waste disposal authority—that is the counties in England—and various other authorities. For example, the waste disposal authorities must consult the collection authorities in England—that is, as the noble Lord, Lord Garnsworthy, has said, the districts; the regional councils and county councils in Scotland and Wales respectively where, for reasons already given in relation to local government reorganisation, collection and disposal will be an integrated service at district level; and water authorities throughout and also any other disposal authority where the plan provides for waste to be taken into its area.
There are further provisions. Under subsection (3)(b), the disposal authority must then publicise its proposals and invite and consider any representations from persons that it considers to be concerned. Subsection (4) then goes on to require the specific consent of any other disposal authority consulted before final determination and, in the event of disagreement, the consent of the Secretary of State.
I think it may be helpful to go into some detail about this consultation, because clearly this concerns the other authorities. The collection authorities would need to be consulted on such general matters as location of sites in relation to the nature of wastes, the range and rate of their movement and the nature and size of collection vehicles. There might also need to be consultation on more detailed matters such as the nature, availability, possible separation

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and suitable collection methods of particular wastes and covering materials. Beyond this, the collection authorities might have some local environmental health issues to raise, but there would be no need for a collection authority to consider itself as a mouthpiece for local opinion. Subsection (3)(b) makes provision for direct public participation and in such a flexible manner that a disposal authority may approach any persons particularly representative of public interest in its area and consult them. Similarly, serious pollution risks would be matters for the disposal and water authorities to assess together.
Provision for the specific consent of any other disposal authority consulted over the "export" of wastes to its own area before final determination is necessary to ensure that there is harmonisation of related disposal plans wherever necessary. Final recourse to the Secretary of State is then necessary to avoid any danger of deadlock which would either prevent final determination of a plan or make slim its chances of successful implementation. But the issues with which the collection authorities will be concerned do not appear likely to give rise to such differences of opinion as to prevent successful implementation of the plan, and there appears no reason for preventing the disposal authority from being the final arbiter on these matters.
The noble Lord, Lord Garnsworthy, said that he felt there would be very few instances in which a dispute between the disposal and collection authorities would be such that it could not be resolved. He said he was concerned to keep the number of such cases to a minimum. We believe that by making the consultative procedures as we have, this is precisely what we shall be doing, so that in effect if by Statute a further power is given to the collection authorities to be consulted on any alteration of the plan, and in the end to take the dispute to the Secretary of State, this could well have the reverse effect of the one hoped for by the noble Lord. I myself, like the noble Lord, was in local government for a very king time, and on many occasions I used to argue for more power and responsibility for local authorities. In this Bill new powers are conferred on county councils, who become the waste disposal
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authorities in England, and these are powers which they have not had before. The question of refuse disposal was closely argued when the House was debating the Local Government Bill.
If this Amendment were carried as proposed, county councils would have to secure the consent of the districts, having already consulted them, before being able to determine their plans. Then, if they were unable to reach agreement, the matter would go to the Secretary of State and we should have a situation in which, far from the counties having more power, decisions would be taken by the Secretary of State on what I believe to be local matters. I find it very difficult to believe that this is really what local government would want. It would inevitably mean more interference from the centre. It would mean the Secretary of State intervening in these local disputes. I should have thought there must be continual consultation between the disposal authority (the county council) and the collection authority. If the scheme is going to work, it would be most unfortunate to have to bring in the Secretary of State, and I would hope local government would be able to resolve its own problems.
I hope I have said enough to convince the noble Lord, Lord Garnsworthy, that this is a matter to which we have given a great deal of thought. We believe the Bill represents the right and proper thing to do in this relationship between central and local government, and I must therefore resist the Amendment.
LORD GARNSWORTHY: I am very grateful to the noble Baroness for the care she has taken and for the length of her reply. Let me say right away that I think this difference pinpoints the difficulties caused by not having unitary authorities. If we had unitary authorities we should not now have to face these difficulties. We may—although I hope we do not—have a situation of tension between the two tiers of local government, so that we shall have to have further reorganisation before many years have passed. For the life of me, I cannot understand why, if it is acknowledged that there should be consultation with the collection authority at the formative stage of the plan, there should not also be consultation with the collection authority

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at the final stages of determination. The noble Baroness, as I say, has replied at length and I think perhaps she may well have made one or two points that I did not fully grasp. I shall read with great interest what she has said. At this stage I would not wish to press my Amendment this evening. I shall read very carefully what the noble Baroness has said and shall take advice as to whether the interpretation she has placed on the position is agreeable to those who are vitally concerned with this matter.
I, too, hope that local government will be able to resolve its problems, but I feel there is going to be continuing concern if the collection authorities are not conceded the right, if they cannot agree with the disposal authority, to take the matter to the Secretary of State. I should not have thought the possibility would involve a great many authorities—the number would probably be minimal—but there is a case for providing for such a situation rather than allowing a situation to develop which would bring with it a feeling of frustration. I am grateful to the noble Baroness, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.39 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 15:
Page 3, line 28, leave out from ("provide") to end of line 29.
The noble Baroness said: I beg to move this Amendment standing in my name which reflects the same attitude of mind as Amendment No. 13; in other words, we are somewhat disturbed by the way in which it is suggested that only the authority itself should decide upon the persons who might be allowed to make representations to it. We regard this as too autocratic. After all, there may well be individuals or organisations with very valid points to make on the proposed plan, but the authority for one reason or another might think that it was perhaps beneath them to pay any attention to such people.
Again, we have no idea of the criterion which would be adopted to decide whether the persons involved are concerned with the plan. What does this mean? Does it mean that they must have some property in the vicinity of places
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where it may be suggested that rubbish may be disposed of, or not? It seems to us much more satisfactory if it is put quite simply in the Bill that the authority, having given adequate publicity in its area to the plan or modification, should then provide opportunities for making representations to the authority about it without suggesting that it is the authority which should have some exclusive right as to who should or should not be permitted to comment upon the plan. This seems to me to be a perfectly straightforward matter and I hope very much that the Government may be disposed to accept our Amendment.
LORD MOLSON: I feel that this Amendment would be an improvement in the drafting of the Bill. If these words
" … persons appearing to the authority to be concerned with the plan…"
are retained, we are introducing into this matter something analogous to the locus standi which obtains in this Palace when Private Bills or Special Orders are considered by Committees both of the House of Commons and of this House. I do not want to go into that matter beyond saying that this has been a difficult problem and there has been in the past a difference between the practice of the other place and that of this House as to what bodies were entitled to be heard in Petitions against a Bill. In the other place the Examiners held that amenity societies had no locus standi for petitioning against a Bill. It was considered to be necessary that individuals should be personally affected if they were to be heard in opposition to a Private Bill.
I do not want to press this analogy too far, but if one looks at the Amendment as it has been moved by the noble Baroness it does not in any way alter the sense of this paragraph; it merely provides that representations may be made to the authority, and it excludes the limitation relating to Persons appearing to the authority to be concerned. I hope very much therefore that the Government will be prepared to accept this Amendment because I cannot see that it would be in any way disadvantageous, and it would prevent the problem arising as to whether local amenity societies or persons who were interested in the preservation of amenities but did not happen to own land in the district or to be living exactly in that vicinity, might be held not to

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have a locus standi for making representations.
BARONESS YOUNG: I have listened very carefully to the points that have been made by the noble Baroness, Lady White, and the noble Lord, Lord Molson, and I should like to begin by assuring the Committee that there is nothing at all sinister in the framing of this particular part of this clause. It is accepted, as will be seen, that the waste disposal plan will be of interest and concern to other bodies besides those specifically listed—obviously to the district councils, the regional water authorities and to the public. Clause 2(3)(a) requires the waste disposal authority to consult these bodies in the course of the preparation of its plan, and goes on to require adequate publicity for it. Some of the difficulty that arises for those who have been concerned about whether or not other people can make representations to the plan is that this is something which is quite new—a waste disposal plan—and clearly what will be contained in it will vary from county to county. For example, in a highly industrialised area obviously the kind of things that the waste disposal authority has to deal with will be quite different from those of a predominantly rural county, and therefore the kinds of disposal problem will vary. It may well be that, for instance, tipping could be regarded as a very bad neighbour in one place but perhaps a modern incinerator might be viewed differently. I cannot say. That too might be regarded as a bad neighbour, or indeed any other kind of disposal arrangement that may be thought of.
My understanding of this clause is that it would be the duty of the waste disposal authority to consult those persons who would be concerned, and that would vary from area to area. It would be very difficult, therefore, to lay down precisely, and in detail, just who those particular persons in each place might be. But may I go on to say that, having gone through the waste disposal plan, there will, of course, be the second stage where planning permission will have to be given in regard to the individual incinerators—or whatever there may be—and at that stage all the procedures for consultation on planning will apply once again. So that to feel that at no stage
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could those who had something to say, say it, would be to misunderstand what is the purpose of the Bill. It seems to me, therefore, that it is quite reasonable to accept that, given that we wish to see this freedom of local government to determine its plan, it should naturally consult the statutory authorities and, depending on the circumstances of its case and the situation that arises, consult those other people who it thinks will be affected by it. That is the reason why this clause has been drafted as it has.
LORD SHINWELL: Before this matter is finally disposed of I should like to ask the noble Baroness a question. Could she define more accurately, more specifically, what is meant by "provide persons appearing to the authority to be concerned with the plan or modification", and so on? Could it be defined in this fashion: could it mean a body known as a—I must be very careful not to bring in any political allusion—conservation trust? The reason I ask that is because, strangely enough, I have had instructions from some persons associated with these matters in my old constituency. Whether they have got the idea that I am still a Member of another place, I do not know, or whether they think the mere fact that I am a Member of your Lordships' House would justify me making representations to Her Majesty's Government, I do not know; but in any case they are rather concerned about it.
In my old constituency of Easington there happens to be a place called Castle Dene. It is a wonderful beauty spot and the flora and fauna abound in great variety. I do not want to become lyrical about it, although I have seen the place myself; but I do not suggest that lyrics are of very great value in your Lordships' House, your Lordships are more concerned about the facts. If the noble Baroness could satisfy me that bodies concerned with—again I must get the right term—conservation are included in this clause, then I shall be satisfied, and I shall be able to inform my old constituents that I have justified my existence in your Lordships' House.
LORD MOLSON: I hope that my noble friend Lady Young will forgive me for being a little persistent about this. I am not quite sure that she has followed the

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point I was seeking to make. If this Amendment were to be accepted, this paragraph would read:
"…provide opportunities of making representations to the authority about it".
The wording, as it is at present, limits the right of making representations to persons appearing to the authority to be concerned with the plan or modifications.
The analogy I sought to draw was this. In the case of Private Bills in another place they have strict rules of locus standi, and in the Melden Reservoir case, for example, it was held that the Dartmoor Preservation Association had no locus standi for objecting to the Melden Reservoir scheme. In your Lordships' House the question of whether or not Petitioners have locus standi is determined by the Committee itself and they had always taken a much more generous view of who had locus standi. In the case of the Melden Order the Labour Government of the time had made representations on the subject and, quoting promises made by the late Arthur Greenwood, withdrew the Order. The rules of the locus standi in another place were modified in order to enable people and bodies who had previously been held to have no right to petition against a Bill or a special Parliamentary Order, an opportunity of being heard. I ask the Government to drop these limiting words and leave it so that representations may be made and not limit the right of making representations to persons appearing to the authority to be concerned.
LORD CRAIGTON: I should like to support what my noble friend and others have said. I am sure it is right to make it clear beyond a shadow of doubt that those interested in conservation can have a say at this stage rather than wait far too long and spend a great deal of money in making objections at the later stage. I am sure that that is right and I hope that the noble Baroness will take this matter away and think about it again.
LORD HUGHES: I should like briefly to support my noble friend and other noble Lords who have spoken in support of this Amendment. The noble Baroness referred to the way in which the local authority would act in providing persons concerned with opportunities of making representations. I was a member of a local authority for more than 25 years
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and I found—and I am sure the noble Baroness has had the same experience—it most extraordinary the way in which a local authority, believing it has given the opportunity for every person or authority that might be concerned to make representations, then discovers there is a body with a close interest in the matter who can be helpful and has a strong point of view to express. They have not excluded them deliberately but because it did not occur to them that the body might be interested. I cannot see why these words should be in the Bill. In fact, a previous paragraph requires the giving of adequate publicity. It is obvious that such a body or person as I have indicated will come to know of it. There is nothing in the Bill which will stop that individual or body making representations. All they have to do is write in and express their point of view.
But having regard to the matters about which the noble Lord, Lord Molson, has spoken, and the rather peculiar way in which legal advisers to local authorities sometimes operate, it might well be said: "You have these representations, but you must not do anything about them because the section goes on to say that you will only consider representations made in pursuance of sub-paragraph (ii), and sub-paragraph (ii) limits your consideration to those parties that you have provided with opportunities of making representations. You have not provided these people with an opportunity and therefore it would be wrong for you to consider it."
It may seem to the lay person that it is most unlikely that a reasonable authority would do such a thing; and I agree that it is most unlikely. But even the most reasonable authority sometimes get the most extraordinary advice from legal advisers and they feel it is unsafe not to accept that advice. I cannot therefore see what would be lost to any reasonable authority by doing what my noble friend and others have proposed, because if people are sufficiently interested to make representations about a plan or modification then most reasonable authorities will wish to have the opportunity of considering these representations.
LORD SHINWELL: May I put a further point on this matter? I am a little confused, probably because I have no great knowledge of the subject. Let us

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suppose that a waste disposal authority prepares a plan that is involved in the clause under review concerning some beauty spot or a foreshore, or any particular piece of land which is regarded as sacrosanct to some people. Suppose they find that the plan prepared by the waste disposal authority is likely to be ineffective and does not go far enough to satisfy those persons who want to retain the original nature of the location, surely a body of people in any particular area concerned have a right to express an opinion. If that is so, I should prefer to leave the clause as it is; but perhaps we could have further enlightenment on the subject.
LORD HYLTON: Before my noble friend replies, I should like to express support for the Amendment and ask my noble friend whether, within paragraph (a)(vi), amenity societies and voluntary conservation bodies will be prescribed persons. If she can give that assurance we shall all be very much happier.
5.57 p.m.
BARONESS YOUNG: I should like to take this opportunity of explaining further what it is we have in mind. I thought I said in my original remarks that it depends on the circumstances of each particular area; each county will be different. In a sense, the noble Lord, Lord Shinwell, has answered one of the points I made because he referred to what a waste disposal authority would do in particular circumstances in an area of outstanding natural beauty or perhaps of special scientific interest because there were particular plants in that place. Obviously, if that is the case, the particular people with whom the waste disposal authority would consult would undoubtedly be the local naturalist society or amenity societies that were involved. I hope that meets the point of my noble friend Lord Craigton who asked about the conservation societies. There is no intention whatever to preclude amenity societies or conservation societies from consultation in the course of this plan.
In a metropolitan county however the circumstances might be entirely different because we are not obviously concerned with an area of special scientific interest, and the people to be consulted might well be the local residents' association. They might have very strong views on some-
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thing which is being done precisely next to them. To give another example, if it is decided to use a worked out gravel pit or a tip in order to reclaim the land and use it for something, another, different group of people would need to be consulted.
I said at the beginning of my remarks that there was no intention to preclude public consultation on all these points, but it is left to the disposal authority to exercise its judgment. It would be a pity if we believed that they were not capable of doing it in the particular circumstances of the case.
My noble friend Lord Molson said that I had not understood the point he raised and had not answered it in my reply. If that is so, I apologise. I cannot accept that there is a complete analogy between a Private Bill and a waste disposal plan. Obviously, a Private Bill is going to concern all sorts of quite specific interests and, when it becomes law, it is a law of the land likely to affect all sorts of people. We are talking about a waste disposal plan which has, in any event, to go through the normal planning procedures, and each particular site has then to be licensed. So the whole of the circumstances of the case are, I think, completely different in that not only is there consultation at the stage of the waste disposal plan but there would be consultation at the stage of planning permission, and further consultation on the question of the site licence. I hope, therefore, I have said enough to assure the Committee that there is no intention whatever not to meet what I think is a completely justifiable claim today, to have consultation with all the appropriate bodies.
6.1 p.m.
BARONESS WHITE: I am so very sorry that the noble Baroness on this occasion has not even offered to have a further look at this matter. She must have realised that there is considerable feeling in all quarters of the House about it, for those of us who have great experience in these matters are not always in such enlightened areas as Oxford. There are other local authorities who are by no means so forthcoming in their consultations. I have an example in mind, not of course of disposal, because we have not as yet got disposal authorities, but of another sort in a certain area in Wales, one of the most sensitive landscape areas, with a greater concentration of nature

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reserves perhaps than any other part of the world other than Snowdonia, where the people concerned did not consult the Nature Conservancy, which is a statutory body, the Countryside Commission, which is a statutory body, the Tourist Board, and, far less, any amenities society, with absolutely disastrous results. I mean, they were utterly beyond the pale. Therefore, I am afraid I do not share the complete and utter faith of the noble Baroness in the willingness of local authorities to consult people who have a point of view which is not necessarily constant with that of the local authority and who should be heard.
We are not for one moment asking that there should be a complete catalogue of those who should be consulted. I entirely agree that that would be most unreasonable because, as she very properly said, circumstances vary and what would be appropriate in one area would be quite inappropriate in another area. All we are saying is that if you are going to have adequate publicity in the area, it is, by definition, publicity to the public at large; it is not consultation with particular persons or bodies on a sort of quasi-private basis, but is publicity at large. This is what we understand by subsection (3)(b)(i). If one is giving publicity at large, as I think one should, then the public at large, if they are sufficiently interested, should be allowed to make representations. I am, of course, quite well aware, as the noble Baroness has quite properly reminded us, that there may be later opportunities, when it comes to planning permission and so on. But again, one does not need to have vast experience in public administration to know that the sooner you can get in the better; that once a matter has really been decided effectively by the officials it is very difficult indeed to get it altered. Therefore, in pursuing a particular plan rather than another, it is at this formative stage that so often some type of consultation may be far more valuable than at a much later stage, when things may be more hardened and crystalised and various interests have developed. We all know this, we are all experienced in these things.
I had not meant to make a mountain out of what I thought was no more than a molehill, but the fact is that the noble Baroness does not seem fully to have taken on board the feeling of people with
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very great experience on her own side of the Committee as well, that it would be much better to leave an open door. We are not insisting that any particular body should be consulted or anything of that sort, but that if they show sufficient interest then at least they should have the opportunity to do so. That is really all that we are asking. I would ask the noble Baroness to think about it again. I do not want to divide the Committee, but the point is being reached where one feels most unhappy at the situation.
LORD CRAIGTON: Of course I accept what the noble Baroness says and what my noble friend has said. We are concerned only with what the Bill says. For the life of me I cannot see every local authority reading the interests of the conservation society in the words "…persons appearing to the local authority to be concerned…". The decision is that of the authority. I hope my noble friend will look at this again.
BARONESS YOUNG: I feel I ought to say just one more thing in defence of local government. I am very glad that the noble Baroness, Lady White, thinks that Oxford is an enlightened authority. Certainly we used to have a lot of public consultation with a highly articulate population. I think it is true to say, and I would say this to the noble Lord, Lord Hughes, that in fact local government has moved very far in the direction of consultation. This is a relatively new thing. I think each year local government in fact accepts the need for this on an ever increasing scale. I am sure we should all agree on that.
I have listened with great care to what has been said, and in the circumstances I feel that I ought to offer to look at this matter again. This I will do, to see whether we can meet these points. But in doing so I should like to say that it has never been the intention that those interested bodies should not have the opportunity to make representations.
BARONESS WHITE: I am extremely grateful that the noble Baroness has taken the feeling of the Committee in this matter. I hope she will look again at this matter constructively. In those circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.6 p.m.
LORD HENLEY LORD HENLEY moved Amendment No. 16:
Page 3, line 36, at end insert—
("Provided that before making any such change the authority shall consult any water authority who was previously consulted under paragraph (a) of this subsection.")
The noble Lord said: This Amendment is another with the intention of trying to prevent any slip-up in the process of consultation, and in this case to try to strengthen the position of the water authorities. Under the Bill it is of course the duty of the disposal authority, in preparing the plan, or any modification of it, to consult the local authority. I feel that there is a danger further on, under subsection (3)(b) at the bottom, where the alteration of a plan at the request of a collection authority might produce a situation in which a modification or change of plan did not go back again to the water authority for reconsultation. That is why I have put down this Amendment to try to strengthen it.
The effect of the waste disposal on water can be devastating. It is bad enough to put something into a river. In the course of time, although that does very great damage, the river cleans itself. But if you put something, by seepage, into underground aquifers it may never come out. This is why it is so vitally important that the water authorities should, I feel, have very nearly the last say in this kind of thing. The interest of the water authorities is so great that it might have been argued in the first place that the power to control this should have been given separately to them in the first place. For administrative convenience, that was not done, but in return for that administrative convenience I feel that the fullest possible consultation and liaison must be given, and be seen to be given, beyond any possible slip-up, to the water authorities. Formerly, ministerial directions and circulars could be issued in this respect, but not under this Bill. Local arrangements between the bodies concerned have nearly always been very satisfactory, but not always in areas of very heavy pressure for development. Very often things have been granted in ways which were not in the public interest, at any rate as seen from the point of view of the water authorities.
A difficult situation will arise in local government with the new district councils. They are going to be extremely short of expert opinion, particularly in regard to the very complex problems of water. It seems to me that, because they are going to be under pressure, there will inevitably be decisions which some of us will deplore. In my view, the danger under the Bill as it stands is that the disposal authority will be left with complete and unfettered discretion when it comes to revising these draft plans, in spite of what is said in subsection (3)(b). My Amendment tries to prevent this and to strengthen the position.
I took note of what the noble Baroness said on the last Amendment about our taking the view that disposal authorities and local authorities were not capable of managing their own affairs. I should be the last to wish to suggest this. But it would be a pity that the uncontrolled last word here was left with the disposal authority, because I think, as I have said before, the question with regard to water is probably more important than anything else. I agree that the best consultations are those which are agreed locally by both sides. I feel that this facilitates local exchange of views. The number of plans and applications for licences which are going to be required is not so great as to put much extra burden on the disposal authorities; and even if it did, it seems Ito me that it should be disposed of by agreement. I beg to move.
BARONESS YOUNG: As the noble Lord, Lord Henley, has said, there is provision in this clause for consultation with the water authority in the preparation of the waste disposal plan. What I think he is suggesting is that if there are any representations there should be further statutory consultation, and I think he went so far as to say that in his opinion the water authorities should have the last word on the plan. We all accept that consultation with water authorities is of enormous importance. This is why this requirement for statutory consultation is written into this clause. I should have thought it would be very unlikely that disposal authorities, having consulted the water authority, and having listened to the points they wish to make, would not continue informal consultation throughout their consideration of the waste disposal plan. It seems to me that

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if the water authorities were given this statutory right to further consultation it would be difficult to deny this to the collection authorities, or indeed to other statutory authorities where rather similar arguments might well apply.
I hope that the noble Lord, Lord Henley, will accept these arguments. In the first place, there will be consultation with the water authorities. There must, I believe, of necessity be a continuing informal consultation. But if the water authority is still not satisfied at this stage, the disposal authority will be required to consult the water authority at a later stage on the issue of the individual disposal licences. It is at this stage, again, where the water authority, if it felt that the conditions which ought to be met were not being met, would be in a position to study the licence in detail and, if it disagreed with the licence, could take this matter to the Secretary of State. I hope that Lord Henley will feel that this explanation meets his points and the fears expressed by water authorities. They will have consultation, and in the question of the licences they could, if they felt strongly, take the matter to the Secretary of State for a decision. I hope that this assurance will meet the noble Lord's points and that he will feel able to withdraw the Amendment.
LORD HENLEY: I am satisfied to some extent by the assurances given me by the noble Baroness. In the last resort it is a matter for consultation, back and forth, between the disposal authority, the collecting authority and the water authority. I hope, and indeed expect, that everybody will be very sensible about it; if not, then we are in trouble indeed. My Amendment is perhaps merely a dotting of i's and crossing of t's to make doubly sure, and I think the noble Baroness has gone some way to making me feel that that is not necessary. I said that formerly a good deal of advice came by way of direction direct from the Department, and I hope that appropriate advice will be given in the form of circulars, even though it is not laid down in the Bill, and that the Report of the Sumner and Kenny Working Parties will be noted. I am not entirely happy, but I am some way towards being happy and therefore beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.16 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 17:
Page 3, line 38, after ("it") insert ("in a case falling within paragraph (a)(iv) of the preceding subsection except with the agreement of the county council whose area includes that of the authority or, if the county council withholds its agreement with the consent of the Secretary of State or").
The noble Baroness said: This Amendment refers exclusively to the Welsh county councils which are referred to in paragraph (a)(iv) of subsection (3). As your Lordships will by now be fully aware, the position in Wales is different from that in England, in so far as in Wales it is the district councils which are the disposal authorities as well as the collecting authorities. We had a discussion on this matter at our last Sitting on this Bill and considered the principle on an Amendment moved, I regret unsuccessfully, by the noble Viscount, Lord Amory. He proposed a somewhat different way of dealing with the anxieties which beset us as to the results of this allocation of functions in Wales. I do not wish to rehearse the arguments I put forward on that occasion. One does not propose in this Amendment, any more than one did in the previous Amendment moved by the noble Viscount, to alter the functions of the district councils. They will remain the disposal authorities as well as the collection authorities. I tried to explain how it was that there was a difference of approach in Wales for reasons of history and, one might say, psychology—with the districts which had formerly been counties in their own rights. Whereas in the rural areas I thought the position would be reasonably satisfactory, in the heavy industrialised areas of Wales we anticipate very real trouble. Therefore one is endeavouring to find a method by which one can improve the situation without altering the actual functions of the district councils.
It seemed to me that in this particular Part of the Bill, where we deal with waste disposal on land, one ought at least to put the county, as the senior planning authority, in a position where it could, if it felt gravely disturbed about any proposals in the plan, have some final say. The difficulty is that although there is a statutory right of consultation, it goes no further than that. The county has no sort of appeal to the Secretary of

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State or anybody else if it is very much disturbed at the way in which the various districts within its area may have failed, for example, to consult one with another, as suggested by Lord Amory, or where disposals of waste might be proposed by the different districts which, taken in totality, would provide a very unsatisfactory pattern. It is for that reason that it seemed to me and some of my advisers, particularly as the Government have not felt in a position to accept Lord Amory's proposals, that this Amendment would at least provide a method whereby we could bring in the county council to a position where it had some kind of definitive right. A mere obligation on the district councils to consult the county council does not necessarily get one far enough.
It is perfectly open to anybody on the Government Benches to say to me, personally, "Surely you are being in consistent in taking this attitude now. If this is how you really felt, why did you not speak up on the Local Government Bill?" I entirely accept that situation. My explanation is that since then I have studied waste disposal in far greater depth and I have come to realise that it is a much more complex matter than I had supposed. In fact the Government themselves, in arguing against some of their own supporters on the Local Government Bill, when pleas on behalf of the English districts were put forward, emphasised the complexity in modern life of waste disposal. Also, of course, the Sumner Report came down strongly in favour of making waste disposal a function of the larger authorities.
I do not for one moment suggest that one should go back on that constitutional decision, but if one is considering waste disposal in a heavily industrialised area, where it really matters, the whole subject is becoming more and more complicated and sophisticated, and especially when one is coming towards the part of the Bill, to which we were looking forward with very great interest, on account of the Amendments, which the noble Baroness, Lady Young, promised to bring forward, on recycling and reclamation. This is something which an individual district council will probably be quite incapable of carrying out, and there might well be a situation in which
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one ought to decide where, in a county, would be the appropriate place for carrying out certain processes of dealing with waste matter of different types. One district authority would be quite incapable of doing it. There would be various considerations of traffic, or transport and so on, as to whether the place in a county would be more desirable than another for certain types of possibly very sophisticated processing, which might well be highly desirable in the national interest. For that sort of reason it seems to me that, in the particular circumstances of the Principality, we ought now to be statesmanlike and to look at the position not only as it is now but as it may well develop over the next few years.
I have been much impressed by some of the scientific research which is going on into this whole question of dealing with various aspects of waste processing, and not least, as I think I said in our earlier debates, at our University College in Cardiff, where we have a very strong unit on this subject. If we are going to move into really modern methods of treating waste it will be impossible to do it if one looks exclusively at a small district area. Therefore it seems to me that the larger planning authority should have a distinctive voice when its final plans are being determined. It is not just a matter of putting waste into holes in the ground. There is much more to it than that, and for this reason I think that we ought to look at the situation in the industrial world as clearly as we can. I may say that I have had consultations not only with some individual industrialists but also with the C.B.I., who tell me that they share my anxieties on this matter so tar as the industrial waste is concerned, and I think there are others who would very much welcome something to strengthen the synoptic examination of this problem on a basis which is wider than that of individual district councils.
For those reasons I hope very much that the Government may feel able to accept this Amendment. I have been asked that we should save time and consider with it Amendments Nos. 62 and 64, which refer to page 12, where the situation, though not quite the same, is cognate. As your Lordships will appreciate, Clause 9 refers to the special provisions for land occupied by the disposal authorities themselves.

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It is obligatory for them to refer their proposals and statements to water authorities and to collection authorities in each area which includes any of the land in question. It appeared to me that also in Wales one should include the county council, which naturally would take a broader view of the total situation in the county than one could expect any individual district council to do. The circumstances are slightly different from the clause that we are examining at the moment, but the general principle and the reasons for it are the same. I beg to move Amendment No. 17.
VISCOUNT AMORY: I hope my noble friend has listened carefully to what the noble Baroness, Lady White, has said. I cannot claim, like her, to have spent the Yuletide Recess in exploring waste disposal in depth—at first sight a not frightfully attractive occupation at that time of the year, but I honour her for having done so.
As the noble Baroness said, this question arises from the Government's decision in the local government reform Act to split the planning powers between the county and the district but leaving the more important part of planning to the counties. That being so, I should have thought that, as the noble Baroness has said, there was a cause for making sure that the counties are brought into consultation with some authority to express their views in a matter which may well involve planning going beyond a particular district. As the noble Baroness has said, what I am suggesting now is rather what I suggested in an earlier Amendment, and at that time I was not wholly satisfied with the advice given to us by my noble friend although in the circumstances at that time I decided that I would accept it and would not press the matter to a Division.
6.28 p.m.
LORD ABERDARE: I am grateful for my noble friend's valuable advice, but I always listen with the greatest attention to every word that the noble Baroness says, and on this occasion particularly. I was pleased to hear her repeat what she said on the last occasion when we were discussing these matters in Committee, that she continued to take the view that responsibility for refuse disposal should remain with the district councils and that she did not want to
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upset that decision, which was part of the decisions of Parliament in the Local Government Act of 1972. I certainly think this is right, especially as we have as yet had no experience of how this proposed division of functions would work in practice. I must say to her that her Amendment goes very close to a change in the division of functions, because it gives what is in effect a power of veto to the county council, subject only to an appeal to the Secretary of State. What I believe she is seeking, and what I am quite sure my noble friend Lord Amory is seeking, is to ensure that the waste disposal powers of the districts are used consistently with the counties' planning responsibility. I am satisfied in my own mind—and we have looked into this very closely during the Recess—that there is in fact very adequate provision already for full consultation of waste disposal proposals between counties and districts. In the first place, they will have had detailed discussions within the framework of the planning Acts on the question of land use planning during the, preparation of the structure plans or development plans. But to make quite clear the extent of this consultation and of the counties' oversight of land use planning after reorganisation, I should like to explain, if I may, in a little more detail what the county planning authorities' powers are.
Clearly under Schedule 16 to the Local Government Act 1972 the granting of planning permission would be the responsibility of the district council. But there are four very important exceptions where this decision would lie with the county planning authority. The first exception is if the land is within, or partly within, a National Park. The second exception—and this is an important one in the case put by the noble Baroness—is if the proposal would conflict with, be inconsistent with or prejudice the implementation of fundamental provisions of the new structure and local plans, or the old style development plans, or firm proposals for them. The third exception is if the proposal would be inconsistent with any statement of planning policy adopted by the county planning authority, or with any proposals of others for development, in which either case had been notified by them to the district. The fourth exception is if the

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proposal is for the disposal of mineral waste.
In all these cases, the decision lies with the county planning authority. Furthermore—and this I hope gives even more reassurance to the noble Baroness—the county planning authority may give directions to a district planning authority as to how the district is to determine any application in any case where it appears to the county that their interests as local planning authority may be substantially and adversely affected. So it seems to me that in the planning and land use sense, the powers of the county are considerable, and that it is in this sphere that detailed consultation and co-operation is needed. We have gone slightly further in the Bill by additionally making provision for consultation during the preparation of waste disposal plans. This is what we were discussing on the last occasion. This comes under Clause 2(3)(a)(iv). It is this statutory requirement of consultation with the county that will ensure that the county authority has an early opportunity of looking at and assessing the land use planning implications of the disposal authority's proposals, and of using its powers to intervene on planning grounds if that is necessary.
The noble Baroness has already mentioned the difficulties of industrial districts, and small districts in particular. There is nothing at all to stop collaboration between districts within a county and, of course, as the noble Baroness mentioned on the last occasion, between Flint and Cheshire there is quite an exchange of waste in both directions. Under the provisions of the Local Government Act 1972, a group of district councils who felt unable to resolve problems of toxic waste disposal could enter into an agency arrangement. I hope I have gone some way to convince both the noble Baroness, Lady White, and my noble friend Lord Amory, that without changing the responsibilities of the districts, which we have already decided in the previous Bill, there are plenty of adequate planning powers in the control of the county which would avoid any difficulties brought about by the fact of the district doing something not in the general interest of the country as a whole.
BARONESS WHITE: I must admit that I am disappointed with that reply,
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although the noble Lord, Lord Aberdare, is absolutely right when he says that there are various safeguards, fall-backs and so on. But I am still worried. The Government have had some time to consider this during the Recess. They know quite well that this is something on which a number of us who are concerned with the Principality are not happy, shall we say. However, in the light of what the noble Lord has said, it does not appear to me that the Government are disposed to modify the Bill in the sense that I hoped they might be willing to do. I do not wish to waste the Committee's time in going over the arguments again. We have put the position fairly, that we are much concerned about what does happen. We can only hope that the diplomacy of the county councils will be such that with the limited duties of consultation on the part of the districts, if included in the Bill, they will be able to get satisfactory systems of waste disposal into operation. I think it will be a challenge to all the local authorities concerned in the highly industrialised areas, and we can only wish them well. In the circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 2, as amended, agreed to.
Clause 3 [Prohibition of unlicensed disposal of waste]:
6.37 p.m.
LORD GARNSWORTHY LORD GARNSWORTHY moved Amendment No. 22:
Page 4, line 10, after ("land") insert ("or water").
The noble Lord said: I beg to move Amendment No. 22. If the Committee is agreeable, I wish to speak at the same time to Amendments 23 and 24 which happen not only to have a common theme, but to be in identical terms and are intended to serve identically the same purpose as Amendment No. 22.
We have now come to that Part of the Bill which provides for a licensing system by which the disposal authorities will be able to regulate disposal operations, and to attach operating conditions to them. Clause 3, to which I am now moving this Amendment, provides for the prohibition of unlicensed disposal of waste. I am seeking to secure that we should make it abundantly clear that there will be prohibition not only with regard to

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unlicensed disposal on any land, but that there shall also be quite clearly the same prohibition applying to water as well except, of course, where there is a licence which may permit it. The Committee will have listened with considerable interest to what the noble Lord, Lord Henley, had to say about the deposit of waste in water. I do not wish to repeat the points he was making with regard to that. I have taken note of what is set out in subsection (6) of this clause and I have taken note of what is set out in Part II of the Bill. But it seems to me that the acceptance of this Amendment would provide a safeguard that could serve a very useful purpose, and certainly would make clear beyond any doubt that not only does the prohibition in regard to the unlicensed disposal of waste apply to land, but it equally clearly applies to depositing such waste in water. The Amendment is tabled with a view to being helpful, to make the Bill clearer than it might otherwise be, and I hope that the Minister will feel disposed to give kindly consideration to it. I beg to move.
LORD SOMERS: I should like very strongly to support this Amendment. I feel that it is important to remember that when regulations for the disposal of waste on land are tightened up, very naturally people who wish to dispose of it will seek other places where they can get rid of it; and the first thing that will occur to them, if they happen to be near water such as the Broads or the canals, or anywhere like that, is to get rid of it there. It seems to me most important, if we are going to keep these amenities in the same state as our land, that they should be equally protected.
LORD STRATHCONA AND MOUNT ROYAL: Perhaps I should begin by reminding the Committee of the rather strange anomaly that the definition of "land" in this Bill in fact includes lochs, lakes or ponds which do not run into streams. But that in fact does not alter the substance of what we are talking about. This is an instance where the Government have given further consideration to the matter since the Bill was drafted and are disposed to change their mind on their original thoughts; we feel that here the points being made should certainly be borne in mind. Part II, as the noble Lord, Lord Garnsworthy, pointed out, really deals with this point,
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but there is no harm, and there might possibly be a positive advantage in emphasising the point if we quite simply say that there is to be no tipping except on a licensed tip. So we would certainly want to give favourable consideration to this Amendment, although I think we might want to adopt it in a slightly different form at a later stage.
LORD HAWKE: Could the noble Lord set my mind at rest on this point? We are dealing with controlled waste, which means household or industrial or commercial waste. Can it be said that the produce of broiler houses and the like is commercial waste?
LORD STRATHCONA AND MOUNT ROYAL: I think it would be rather wise for me to give an off the cuff answer to that, but I will certainly write to the noble Lord or deal with it later on in the Bill.
LORD HAWKE: I do not think that mswer by the noble Lord will be good ough, because this Bill will have very ide repercussions if indeed broiler house and chicken refuse in general is controlled waste. I think we ought to and out the answer more quickly.
BARONESS WHITE: Could the noble Lord tell us what happens if a car is pped into a stream?
LORD STRATHCONA AND MOUNT ROYAL: I believe that last one is rather easier. That is definitely an offence, is it not? With regard to broiler waste—and I am speaking now completely without having had notice of this question—the question is really whether it is agricultural waste or strictly commercial waste. That, I would guess, is one of the problems here. I do not think I can give an official reply without going more deeply into the point. I am sorry not to be able to satisfy the noble Lord.
LORD MOLSON: Arising out of that answer, is agricultural waste covered by this Bill or not? Broiler waste is not the only kind of concentration which can be very harmful and noxious. I think we ought to know whether agricultural waste is covered or not. But if it is not convenient to give the answer at this moment I do not wish to press my noble friend.
LORD STRATHCONA AND MOUNT ROYAL: Agricultural waste is certainly dealt with, but I am not sure whether it is dealt with at this stage and under this heading. It is something that I would like to let the noble Lord know later, if I may.
LORD GARNSWORTHY: I would thank the Minister for the reply he gave. I gather that if I withdraw this Amendment he and his friends will consider tabling an Amendment to meet the point at a later stage. Do I have that quite clear?
LORD STRATHCONA AND MOUNT ROYAL: Yes.
LORD GARNSWORTHY: In that event, I have no more to say beyond that I think at a later stage we shall have an opportunity to return to the point raised by the noble Lord, Lord Hawke. So far as this Amendment is concerned, I beg leave to withdraw the Amendment.
LORD STRATHCONA AND MOUNT ROYAL: I should like to confirm that. I think this would provide us with an admirable opportunity of answering the two questions which I am afraid I have been unable to answer off the cuff. If the noble Lord would agree, that course would be an ideal one.
Amendment, by leave, withdrawn.
6.47 p.m.
VISCOUNT AMORY VISCOUNT AMORY moved Amendment No. 24A:
Page 4, line 23, at end insert—
("(1A) For the purposes of this Act, a person is to be treated as depositing waste if he deposits any thing or substance (whether solid, semi-solid or liquid) in such circumstances, or for such period, that he may reasonably be assumed to have abandoned it where it is deposited or to have brought it to the place where it is deposited for the purpose of its being disposed of (whether by him or others) as waste.")
The noble Viscount said: I beg to move Amendment No. 24A standing in my name, and if it is agreeable to the Committee I should like at the same time to speak to no fewer than 19 other Amendments. In case your Lordships get rather alarmed about that, may I say that I feel permission is more likely to be given if I assure your Lordships I do not intend to speak for more than two and a half minutes on the whole 20 taken together. The sole object of this group
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of Amendments is to bring within the present Bill the remaining provisions of the Deposit of Poisonous Wastes Act 1972 and certain relevant provisions of the Civic Amenities Act 1967; namely, Sections 18 and 23. Without these Amendments which I have ventured to put down, it would remain necessary to look outside and beyond the terms of Part I of this Bill for provisions which relate to waste disposal. It would therefore seem sensible to take this opportunity to consolidate all the relevant provisions in one Bill. So far as I know, no reason has been given for not doing so.
In the case of the Deposit of Poisonous Wastes Act 1972, it was said, I understand, at the time of its enactment that it was interim legislation pending subsequent enactment of comprehensive legislation; and I take it that this Bill represents the comprehensive legislation that was in mind at that time. These Amendments do not alter in any way either existing provisions of those two Acts or the objects of this Bill; they are purely and simply a measure of consolidation. In these circumstances I hope that my noble friend will agree that the Amendments seem to be sensible.
LORD MERRIVALE: I should like strongly to support the Amendment moved by my noble friend Lord Amory. The prohibition on disposal of wastes on land without a licence or without complying with the conditions of the licence is what we are discussing in Clause 3, as I understand it. It therefore seems to me a little illogical that this clause does not deal with the general prohibition contained in the 1972 Act, to which my noble friend referred, on depositing waste. As I understand this Bill which we are considering to-day, it is a reformulation of the law on the collection and disposal of waste, and therefore it seems to me to be somewhat regrettable, if only in the interests of clarity and neatness, that this Bill does not incorporate those provisions of the 1972 Act which are not to be repealed.
The 1972 Act consists of eight sections, and quite a number of them are to be repealed by this Bill. In fact, the major sections of the 1972 Act are

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Sections 1 and 2, and I think that one should applaud my noble friend for bringing into this Bill the provisions of those two sections of the 1972 Act, for I feel that otherwise the remaining provisions of the 1972 Act—those that are not to be repealed—could easily be overlooked when this Bill becomes an Act. Not only does the 1972 Act work in practice but it also contains clear definitions which are equally applicable to this new legislation—in other words, regarding the depositing of waste. I hope that my noble friend will see her way to accepting this Amendment.
BARONESS WHITE: I should like from this side of the House strongly to support the noble Viscount, Lord Amory, and also to put the Committee on notice that when we have time to take advice—and assuming that our labours are not in vain, as they may well be in the political circumstances of the day—we shall hope to bring in also the vestigal remnants of the Rivers (Prevention of Pollution) Act 1951 and the Rivers (Prevention of Pollution) Act 1961. It seems quite absurd that in a Bill of this kind we should not have subsumed what is left of these two enactments, which is a very small part of them indeed. They are very short Acts, and almost all of them stands to be repealed when we reach the Schedule on page 105 of this Bill. To a lay person there seems to be no reason whatsoever, beyond pressure of work or mental sloth, according to how one looks at it, why they were not brought into this Bill anyway.
It must be irritating for the people who have to deal with this legislation—not only local authorities but the legal advisers to the water authorities, and so on—to have to fiddle around with small remnants of Statutes which are very closely related to the Bill that we have before us and which surely, in the interests of sound legislation, ought somehow to have been brought into this Bill. Therefore I strongly support the noble Viscount on the principle of this matter. If time is vouchsafed to us to go any further with profit on this Bill, 1 hope to do a similar exercise on these two Acts, though I must admit that I have not yet had time to take advice from my noble and learned friend or
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any other legal adviser as to how best this is to be done.
VISCOUNT AMORY: May I ask the noble Baroness whether she would be good enough to put her criticism on the grounds of pressure of work rather than on mental sloth?
BARONESS WHITE: Having been guilty of mental sloth from time to time, I have great sympathy with others who may suffer from the same trouble.
LORD MOLSON: I am a little surprised at what the noble Baroness, Lady White, has said—if indeed it is the case; and such is my mental sloth that I have not done all the homework on this Bill that I should have done. If noble Lords will turn to the Explanatory and Financial Memorandum on the first page they will see this statement:
"This Bill extends existing statutory provisions dealing with certain aspects of public health and pollution control. It relates particularly to:

(i) waste on land—replacing the provisions of the Public Health Act 1936.

(ii) pollution of water—replacing the Rivers (Prevention of Pollution) Acts 1951 to 1961.

(iii) noise—replacing the noise nuisance provisions of the Public Health Acts and the whole of the Noise Abatement Act 1960;"

When we discussed this Bill on Second Reading I said that I understood it consolidated all the existing provisions dealing with these special matters. If it does not in fact do so, I would certainly join with the noble Baroness in asking the Government to make all necessary Amendments in order to ensure that it does. It is a great disadvantage of our inevitably piecemeal legislation that people concerned with particular subjects have to turn to a number of different Acts in order to understand the law upon the subject until, at long last, consolidation takes place. Consolidation is long delayed, partly because of the lack of Parliamentary time but chiefly because of the tremendous burden upon the Treasury Counsel who draft the Bills. I was under the impression that in this Bill we were in fact consolidating the existing legislation concerned with waste on land, pollution of water, and noise. I should be glad if the Government would either confirm that that is so or, if not, would undertake to do what the noble Baroness has requested and see that this Bill, when it is enacted, in fact contains the whole of

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the legislative provisions these subjects.
6.57 p.m.
BARONESS YOUNG: I listened with great care to what the noble Viscount, Lord Amory, had to say in moving these Amendments. As he rightly said, they are a measure of consolidation. The new clause after Clause 3 would incorporate Sections 1 and 2 of the Deposit of Poisonous Waste Act 1972 into this Bill, and allow the whole of that Act to be repealed. The Act was intended as a temporary measure to deal with the immediate problem of dumping of toxic waste, and it was envisaged at that time that it would be replaced by more comprehensive legislation on waste disposal, which is now embodied in Part I of the Bill. The notification procedure in Sections 3 and 4 of the Deposit of Poisonous Waste Act will be replaced by the more comprehensive authorisation procedure laid down in Clause 16 of the Bill. The Government are entirely in sympathy with the object of these Amendments, which would have the effect of making the law much easier to understand. Therefore, I shall be glad to take these away and consider them. However, I have to add a proviso to this—and it is only fair to the Committee that I should say this now—that it will very much depend on drafting time.
I also listened carefully to what the noble Baroness, Lady White, had to say about this and the other Acts to which she referred. I too should like to add a word to what the noble Viscount, Lord Amory, said about this distinction between mental sloth and pressure of time, and say that I think that this was not a question of just being lazy about the Bill at all. The Bill now has 97 clauses, and it would have been made a very long Bill. Many of these matters have been looked at. This is a somewhat complex measure, and there is no question of anybody trying to get out of doing something. We want to get the Bill right and we will certainly look very seriously at these Amendments, but I add that proviso about the need for drafting time.
Similarly, the Amendments which my noble friend Lord Amory has proposed to Clauses 12 and 15 appear designed to bring the relevant parts of Sections 18 and
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23 of the Civic Amenities Act into the framework of the Bill. That would have the highly desirable result of bringing more of the law relating to waste disposal into a single Bill, and the Government undertake to consider these Amendments. We hope at some future date to consolidate the Public Health Acts and it may well be that we should leave this consolidation until that time; but that, again, is a matter for consideration.
The noble Baroness, Lady White, and the noble Lord, Lord Molson, mentioned two Acts referred to in the Explanatory and Financial Memorandum. The noble Baroness was right in saying that they are not dealt with under the Bill and I can only apologise for that fact. The Explanatory and Financial Memorandum certainly gives the impression that they are so dealt with but they, together with the Deposit of Poisonous Waste Act, were left out of the Bill. I have given an assurance that we will look at these points and I hope that we shall be able to make some amendment to the Bill, but at this stage I can only promise to consider them.
THE EARL OF COURTOWN: I should like to emphasise the importance of this legislation to many thousands of small companies. Large companies have specialised staff and departments which examine all these problems, but this Bill will affect many small companies which do not have them. That is a very strong reason why the noble Baroness, Lady Young, should do her best to get draftsmen's time and ensure that these various Acts are consolidated in this Bill.
LORD MOLSON: I am not quite sure that I fully understood what my noble friend Lady Young has said. Am I to understand that what the Explanatory and Financial Memorandum states about the Bill—that in respect of the pollution of water it replaces the Rivers (Prevention of Pollution) Acts 1951 to 1961, and that in respect of noise it replaces the noise nuisance provisions of the Public Health Acts and the whole of the Noise Abatement Act 1960—is not correct? Does the Bill not do what the Memorandum says it does?
LORD MERRIVALE: Before my noble friend decides what to do about this matter, I should like to make one point about the Deposit of Poisonous Waste

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Act 1972. I believe I am right in saying that the Confederation of British Industries has had lengthy discussions with the Department concerned, and that the problem is mainly one of finding drafting time. But if I understood my noble friend aright, she said that the Amendments of my noble friend Lord Amory incorporate Sections 1 and 2 of the Deposit of Poisonous Waste Act 1972, which would enable the entire Act to be repealed. So that if the Amendments of my noble friend which are relative to the 1972 Act are correctly drafted, it seems to me—perhaps I am naïve—that very little drafting time would be involved and the 1972 Act could be repealed in its entirety.
BARONESS WHITE: I would urge noble Lords to look at Schedule 4 on pages 104 and 105 and compare it with the remainder of the Bill. What is left of the Rivers (Prevention of Pollution) Acts 1951 and 1961 is so little in extent that it should not take a competent draftsman long to work out a method of consolidation in this Bill, without waiting, till goodness knows! when, for a very large measure consolidating the Public Health Acts.
VISCOUNT AMORY: I should first like to thank my noble friend for what she has said. But I am not absolutely clear where we are. My noble friend seemed to me to be saying that she agreed in principle that these provisions ought to be consolidated in this Bill, but she then said she would consider the point and made the proviso about drafting time. She did not say that my 20 Amendments are nonsense, and I am sure that the Committee would be sorry if the immense labour that it is clear I put into their drafting were wasted. Like the noble Baroness, Lady White, I cannot believe, as the substance of these Amendments is merely lifted from the other Acts, that it will take very long to correct any faults.
Also, I would remind the Committee that we are still at a relatively early stage of the passage of this Bill, so I hope my noble friend did not seriously mean that it will not be found possible to improve my Amendments, if such improvements are called for, before the Bill leaves this House. I should be grateful if my noble friend would add a few words to what she has said, be-
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cause it would not be very satisfactory to me if the matter were left to be considered further by my noble friend, with a big question mark against whether time could be found for the inclusion of these Amendments. If the matter were left like that, I would sit down again and redraft these 20 Amendments and see whether I could improve them still further, but I should like my noble friend to give me a hint as to the respects in which they are less than perfect.
LORD SHEPHERD: The noble Viscount is an old-enough hand to know that an even easier solution is to put these Amendments as they now are into the Bill and, if they are imperfect, I am quite certain that the Parliamentary draftsman will soon put them right.
BARONESS YOUNG: I should like to assure my noble friend Lord Amory that we shall consider these Amendments. I would not think of suggesting to him that his drafting is defective, because I am not a lawyer. Drafting is a matter on which I must accept professional advice, and that advice is that the drafting must be looked at again. I hope the noble Lord, Lord Merrivale, will realise that we take these matters seriously and intend to consider them.
VISCOUNT AMORY: I wonder whether my noble friend can repeat what she said earlier, which was that, in principle, she thought a case had been made for the inclusion of these Amendments in the Bill. If she could say that, instead of just saying she will consider them, it would comfort me a great deal.
BARONESS YOUNG: I am very glad to confirm what my noble friend has said. We entirely accept the principle and are sympathetic to the desire to make legislation easier for everybody to understand through consolidation. But I can only repeat the clear-cut advice I have been given, which is that the drafting must be looked at. I am very happy to take up the suggestion of my noble friend Lord Amory that he will attempt to improve the drafting, and it may well be that he can do that in co-operation with someone else. So I would not in in any sense want to turn down that offer.
VISCOUNT AMORY: The offer is made only on the condition that my noble friend gives me some hint as lo the respects in which my drafting is faulty,

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because it is difficult for me to imagine that that could be the case.
BARONESS WHITE: I am serious about this. I, too, have had very strong representations from the C.B.I. and other quarters on this matter. There is great disappointment that the Deposit of Poisonous Waste Act (which was hurried legislation, as we all know) is not dealt with in this Bill. What is there seriously against the Committee accepting the Amendments of the noble Viscount, Lord Amory, as they are now and then the Department taking advice as to possible amendment of them? I cannot believe that they would want to amend them all, but there may well be some points which they would wish to amend. That, surely, is the constructive way to consider this: not taking it all out again, but leaving it in the Bill—subject, of course, to Government amendment at a later stage, to which I would suppose your Lordships would listen very sympathetically.
BARONESS YOUNG: If I may give just one example, suppose that in fact we took the first Amendments as they stand and merely incorporated them in the Bill. They interact with other parts of the Bill, and I am advised that they need further examination. This is the kind of point I was referring to when I talked about drafting points; and when the advice is that no one has had the time since these Amendments were put down to go through the Bill completely to make sure that everything is in order, I think one must accept that we should have the opportunity to do so. This takes drafting time, and I hope I am being as fair and as frank with the Committee as I can be in giving the reasons for this.
If I may answer the question which has been raised about the Explanatory and Financial Memorandum, I should make it absolutely clear that the Noise Abatement Act 1960 is wholly replaced and that the relevant parts of the Public Health Act 1936 are wholly replaced. When I apologised to the noble Lord, Lord Molson, it concerned some parts of the Rivers (Prevention of Pollution) Acts which have been left over; and there are, of course, these sections of the Deposit of Poisonous Waste Act, which we have been discussing.
VISCOUNT AMORY: If my noble friend is assuring the Committee that she
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agrees in principle that these provisions should be included in the Bill and that she will see how that can be done, I would then be prepared to withdraw my Amendment; but in the light of that assurance I really should expect that at the next stage of the Bill we should see the Amendments on the Marshalled List. If they were not there, then I would have to say that I would myself have to produce fresh Amendments giving effect to this consolidation—improved, if possible, on the present ones. On that understanding, which I think comes out of my noble friend's speeches, I beg leave to withdraw this Amendment.
LORD MOLSON: Before the Question is put, may I say, on a matter which has also been raised—that is, the pollution of water—that I hope that by the time we get to the part of the Bill dealing with the pollution of water it will be possible to replace completely, as the Explanatory Memorandum says, the Rivers (Prevention of Pollution) Acts 1951 and 1961, in order that the legislation dealing with that matter may all be contained in one single Statute.
Amendment, by leave, withdrawn.
7.14 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 25:
Page 5, line 5, leave out paragraph (c).
The noble Lord said: I beg to move that paragraph (c) of subsection (3) of Clause 3 be omitted. I do not know whether it would be for the convenience of the Committee if, in moving this Amendment, I also gave the reasons which I shall seek to advance in support of the next Amendment, No. 26, because those reasons are not dissimilar and really the argument forms one piece. In the hope that your Lordships will think that that is convenient, I shall follow that course.
As your Lordships know, Clause 3 says that you must not deposit controlled waste on land unless you do so on the authority of a disposal licence. If you transgress, you are liable to very severe penalties. If one looks at subsection (2), one finds that a person who disobeys that injunction is liable, on summary conviction, to a fine not exceeding £400, and on conviction on indictment to imprisonment for a term not exceeding two years or an unlimited fine, or both. I think that the

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Committee will accept it as being elementary that where legislation creates a serious offence that offence must be precisely spelt out in the terms of the legislation. It is utterly contrary to our tradition, and very bad in principle, if offences are created and it is not possible from the terms of the legislation to discover exactly what the offence is and is not.
Looking at subsection (2) one would have thought that the offence consisted simply in the act of depositing controlled waste without having the authority of a disposal licence. That would be simple enough, if that was how the matter were left. But when one looks at subsection (3) one finds that that is not the offence at all, because certain defences are provided in subsection (3); and if a person charged can establish any of those defences he must be found not guilty and acquitted; in other words, must be found by the court not to have been guilty of an offence.
One then looks to see what those defences are. That set out in paragraph (a) is perfectly clear; likewise, that set out in paragraph (b). If you are an employee or you rely upon information given to you, then in the circumstances described in those paragraphs you do not commit an offence. But when one gets to paragraph (c), I submit that one really is brought into an area of the greatest possible uncertainty. Paragraph (c) provides that it shall be a defence for a man to show,
"that he took all such steps as were reasonably open to him to ensure that no offence under this section would be committed".
One immediately asks: Well, what is an offence as described in paragraph (c)? It is not the action of depositing waste without a licence, because it is no offence if you take steps to try to avoid doing that thing. Then you ask yourself: is it an offence to deposit waste without taking all reasonable steps not to deposit waste? The answer is: No, that is not an offence, either, if you took all reasonable steps to avoid depositing waste without taking steps not to do so. It is rather like a dog running after its own tail: one goes round and round in a circle until one becomes absolutely dizzy.
I submit that this is extremely bad drafting, and that the Government ought to give a firm undertaking that they will take this language back and reconsider
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it. It is (I hope I am not being repetitious) utterly elementary that an offence must be clearly spelt out in the terms of the legislation which creates that offence—and here that is not done. Nobody can tell what the offence is. One can add almost ad infinitum the proviso about taking steps reasonably open to you not to commit the offence. It is never an offence if you have taken reasonable steps not to commit whatever is the offence and you are never told what the offence is. That is the case that I make on the first Amendment, No. 25, and I ask the Government to give an undertaking that they will take it back and look at the language very carefully, and spell out clearly what the subject must not do and what, if he does it, amounts to an offence.
With permission, I will shortly make the case on the next Amendment, No. 26. It is quite simple. It is perfectly reasonable, I submit, that you do not commit an offence even if you deposit waste on land without a licence, if you do so in an emergency. But I submit that it is desirable that you should nevertheless not be excused unless you give notice that you have done so. The case I make for that is a purely practical one. If you do not commit an offence when you act in an emergency, and you do not tell anybody to begin with, the prosecuting authority may prosecute you; time will be wasted; you will remain liable to prosecution for a considerable period of time. You will be in a situation of uncertainty and the prosecuting authority will not know whether or not it should prosecute you. That is a situation which could be so easily cured by adding the words in Amendment No. 26 which require you, if you are to have this particular defence available to you, to give notice of what you have done. Those are my reasons for these two Amendments. The Amendments are both designed with the same objective. Paragraphs (c) and (d) are defective compared with paragraphs (a) and (b). Paragraphs (a) and (b) are perfectly clear. Paragraph (c) is a prodigy of mystery. Paragraph (d) will lead to grave inconvenience, in my submission, unless the change which I venture to propose is made.
LORD MERRIVALE: Although I hate to cross swords with the noble and learned Lord, Lord Stow Hill, in view of his extensive legal knowledge, I hope that

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my noble friend Lady Young will not give way to him. As I understand it, paragraph (c) is an important defence available to a person charged with an offence under this clause, which deals with the unlicensed disposal of waste. To remove the paragraph would in my opinion create an absolute offence, and I hope that that would not be in line with Government thinking on the matter; for in Clause 23 (2) (d) there is a similar provision regarding pollution of water and control of entry of polluted matter and effluent into water. I hope that my noble friend may agree that certain considerations in factory legislation are much the same as in environmental legislation. I should like to bring to the attention of the Committee a report produced by the Confederation of British Industry not very long ago regarding pollution legislation. I think it relevant to the Amendment we are considering. In this Report the C.B.I. say:
"We believe that it is important to get the philosophy of our environmental legislation right and that there is no place in enlightened U.K. legislation in this field for the absolute offence. The case against the absolute offence may be summarised as follows:

1. If a person, including a company, has done all in his power to avoid pollution, he ought not to be made a criminal when pollution occurs as a result of an accident or some other cause which he could not have avoided.

2. When pollution does result following an accident or some other unavoidable cause it will sometimes be desirable for the controlling authorities to be alerted without delay so that remedial steps can be coordinated. If disclosure is going to lead automatically to unfair criminal conviction, some people will tend to conceal the fact of the accident and serious environmental consequences may follow.

3. If a conviction does not necessarily imply blame of some sort, the currency of a conviction becomes debased. The law should be such that a person convicted in this field should regard the conviction as a real blot on his record."

I think that that quotation is relevant to the matter we are now considering. I would also bring to the attention of the Committee the conclusion reached by the Law Commission, in their Working Paper No. 30, Strict Liability and the Enforcement of the Factories Act 1961. Their conclusion was:
"For accident cases and other serious breaches of the law, criminal proceedings are appropriate but liability to criminal sanctions
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should be subject to a general defence of due diligence."
I am a layman in these matters, but I hope that what I have said makes sense; and if it does, I hope that the noble Baroness will not accept the Amendment.
7.27 p.m.
BARONESS YOUNG: Like my noble friend Lord Strathcona and Mount Royal, I am always extremely hesitant about picking an argument on points of law with the noble and learned Lord, Lord Stow Hill. But in this case I shall have to take a great deal of courage from what my noble friend Lord Merrivale has said. I think he put the case clearly on what I believe is now regarded as quite a standard form of defence of no negligence in these matters. If I correctly understood the argument of the noble and learned Lord, Lord Stow Hill, he was saying that the offence was not defined in the Bill and therefore this clause was not very clear. What we had in mind was the sort of case where, for example, the conditions of a site licence had been broken, but the licensee could show that it was not intentional on his part; that he had taken every precaution he could to meet the conditions, but pollution had nevertheless occurred. This would be the kind of situation in which he could well argue that in fact he had not been negligent and therefore this would be a defence in law.
It might also be the case that waste had been deposited illegally on an unlicensed site. The defence would not perhaps be so relevant in that case. It is situations of this kind that we had in mind. I hope that I have explained the kind of offence which could be created and which this defence is designed to meet. For reasons which I think were well stated by the noble Lord, Lord Merrivale, I feel that I cannot accept this Amendment and that this is a necessary part of the clause.
LORD STOW HILL: May I say to the noble Lord, Lord Merrivale, that I was not for one second arguing in favour of creating an absolute offence. I was simply trying to make clear that my objection to this language was its complete obscurity. May I say to the noble Baroness, Lady Young, that I am sorry she has adopted such an obdurate attitude? If she has in mind that a person should not be guilty of an offence if he infringes the conditions

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of the licence, having taken all reasonable precautions not to, I should be perfectly content if the language so said; or if the language so chosen indicated that that was the sort of thing the Government had in mind. My objection to the language is that it gives no kind of indication as to what the Government have in mind. I am all in favour of ensuring that transgression against the terms of the licence, or any other prohibition, which is involuntary or takes place despite reasonable precautions to prevent it should not result in rendering the person who transgresses liable in a criminal court, especially to such a severe penalty.
If the noble Baroness were to say that she would take the language back and, with her advisers, look further into it, so that she gave some indication as to what was the defence which is being afforded, I should be perfectly content. But I shall be glad if I may have the permission of the Committee to withdraw the Amendment. I hope that she will be able to go as far as that and that she will reconsider language which in my submission is obscure, and objectionably obscure.
BARONESS YOUNG: I am sorry that I should have sounded obdurate because I hope that I shall always listen with sympathy to what the noble Lord has to say.
LORD STOW HILL: May I please withdraw the word "obdurate"?
BARONESS YOUNG: I hope the Committee will feel that throughout these proceedings we have tried to be as reasonable as we can on all the points that have been raised. If I feel unable to take this point back it is not, I can assure the noble Lord, because I am trying to be difficult about this but because my understanding is that to reconsider this in any way at all would be to weaken a defence which is a common form in legislation to-day and which I would have thought means that the case which I put, and which I understood, from what he said, the noble Lord, Lord Stow Hill, accepts, is the kind of case that ought to be met by this kind of defence. The purpose of Clause 3 is to deal with the prohibition of the unlicensed disposal of waste which is the offence; and, as I tried to explain, this particular part is put in to deal, as a very necessary defence, with circumstances where a condition or conditions of the
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disposal licence have been broken but the licence holder considers that he has taken all necessary care. I am sorry that I cannot undertake to look at this wording again, but this is such an important part that I feel it would be quite wrong of me to mislead the Committee in this respect.
LORD STOW HILL: In view of the reply given by the noble Baroness I ask permission to withdraw the word "obdurate", and may I now ask your Lordships' permission to withdraw the Amendment, but also to consider whether perhaps I ought not also ask your Lordships to restore the word "obdurate".
Amendment, by leave, withdrawn.
LORD STOW HILL: I beg to move Amendment No. 26:
Amendment moved—
Page 5, line 9, at end insert ("and that notice was given to the disposal authority immediately afterwards.")—(Lord Stow Hill.)
LORD STRATHCONA AND MOUNT ROYAL: I am placed in the fortunate position that the noble Baroness passes over to me the rather easier Amendments where I can afford to be much less obdurate perhaps than she is. We believe that it is, in principle, a sensible suggestion to strengthen the exceptions procedure in this way, and we certainly accept the principle underlying the Amendment. There is, of course, the additional specific merit that this procedure would inform the local authority when somebody had had to exercise an emergency procedure so that it would not be unaware of something having been done under this clause, which is very desirable in itself. However, we should like to consider the detailed wording of this Amendment because it fits in with the spirit of a future Amendment to be moved by the noble Lord, Lord Craigton—I think it is Amendment No. 52—which is the reverse side of this particular Amendment. We should like to consider these two Amendments together, to get harmonious wording between the two.
VISCOUNT AMORY: I am glad to hear that my noble friend has agreed in principle with this Amendment. It seems to me to be reasonable that if action had to be taken in an emergency,

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the authority should be notified at once rather than wait until proceedings were taken later when the facts might be more difficult to discover. We take it that having accepted it in principle, my noble friend will find some way of introducing appropriate words into the Amendment which the noble and learned Lord has proposed.
LORD STOW HILL: I am most grateful to the Minister for his reply and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.36 p.m.
LORD MER RIVALE LORD MER RIVALE moved Amendment No. 26A:
Page 5, line 9, at end insert ("or damage to property.")
The noble Lord said: I feel that there will be occasions when the removal or depositing of waste is essential to avoid damage to property rather than simply to avoid danger to life or health. Such circumstances are recognised, I think, in the Deposit of Poisonous Waste, Notification of Removal or Deposit Regulations 1972. Section 4(2) of those Regulations reads:
"In this regulation any reference to circumstances of emergency is a reference to a case where a person removing or depositing waste has reasonable cause to believe that circumstances exist which are likely to endanger life or health or cause damage to property unless the removal or deposit is carried out without delay."
Damage to property has been considered important. That is why I think it would be only right if it was also incorporated in this Bill. I am trying to see that these circumstances are recognised in this Protection of the Environment Bill—for example, waste which reacts with construction material of plant or building with which it is in contact. I have particularly in mind a plant manufacturing man-made fibres. There could be a strike or some other action that would mean that you would get this viscous material which might possibly be or have a corrosive content. It may be a continuous process which would stop and therefore there may be damage to property. That is why I think it is important that damage to property should be within the provisions of this Bill. I beg to move.
BARONESS YOUNG: The effect of the Amendment of the noble Lord, Lord Merrivale, is to extend the definition of "an emergency" and to provide a further defence for a person charged with an offence under Clause 3(1) who acted in an emergency in order to avoid damage to property. I am glad that in the course of his remarks he gave an example of what he meant. If I have understood him aright, he is saying that an instance would be in a continuous process in which there might be an emergency in which property might be damaged. He is, of course, quite right in saying that this definition was used in the Deposit of Poisonous Waste Act Regulations, and to include it in the Bill would be simply bringing this Bill into line with that Act. We have been trying to obtain a reasonably broad definition of "an emergency". If it is felt that the present definition is unduly restrictive I should be prepared to consider this further point. However, we must be careful not to enlarge the definition too much so that we throw open the position to abuse by the person committing an offence. While we must be careful not to go too far, in view of what my noble friend has said I will undertake to consider this point.
LORD MERRIVALE: I am very grateful to my noble friend and I am also very glad that she is well seized of what might happen with a continuous process, an example of which I have just given. I am grateful to my noble friend for her assurance that this matter will be looked at further, and in view of that I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.41 p.m.
BARONESS BARONESS WHITE moved Amendment No. 27:
Page 5, line 15, leave out ("one year") and insert ("six months").
The noble Baroness said: I beg to move this Amendment which is really a probing Amendment. We wished to satisfy ourselves that the period of one year suggested by the Government really was the right period. It worries us that this particular subsection has meaning only if there is something unsatisfactory about the disposal licence, because it refers to the end of that period where—
" … an appeal is pending in pursuance of Section 8 of this Act against a rejection of an application for a disposal licence …'.

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Then one has to wait not only for one year but until an appeal has been determined.
The Amendment which the noble Baroness proposes, which is about conditions and not merely concerned with rejection, scarcely alters the position. Bearing in mind the slowness of legal processes in these matters, there could be a very long period during which disposal would have been carried out in circumstances which were not satisfactory, or so it seems to us. That is why we thought it might be sensible to try to reduce the initial period from 12 months to 6 months because one would still, if conditions were unsatisfactory, have to wait until the appeal procedure had been carried out. As I say, that might take a very long time; so one might find the situation where unsatisfactory waste disposal was going on for quite a long time. I would therefore ask the noble Baroness whether she thinks that a period shorter than one year would not really be better.
LORD MERRIVALE: I should like intervene very briefly, if I may. The noble Baroness referred earlier on to the feelings of the Confederation of British Industry in relation to a previous Amendment. My understanding is that the C.B.I. feel that a period of at least one year is necessary to enable disposal authorities to deal with applications for site licences for existing disposal facilities. Too short a period, it is felt, could result in a spate of appeals reaching the Secretary of State. This fear may be groundless, but it does exist. I am quite sure that my right honourable friend would not welcome that, and so I hope that my noble friend will resist this Amendment.
BARONESS YOUNG: I hope that I can give the noble Baroness, Lady White, the answers to the questions she has raised. I very much sympathise with the intention behind this Amendment, which is, I am sure, that the whole procedure for settling the plan and getting the site licence should be speeded up. However, we feel that the time allowed ought to be one year rather than six months, because the new county councils will come into being only on April 1 this year. They will be undertaking new functions and will have many new jobs to carry
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out in their first year. It therefore seemed to us much more reasonable in this context to give them a year rather than six months. The second reason, to which my noble friend Lord Merrivale, referred, is that it may well be some time before private operators are fully aware of the detailed provisions relating to the disposal of waste and it would not be fair to expect the waste disposal authorities to cope with what in some areas might amount to a large number of applications for site licences within such a relatively short period of time—again bearing in mind the fact that they will have many new powers and duties to carry out under the Act.
BARONESS WHITE: I thank the noble Baroness very much for that explanation. I think on balance that she is probably right in believing that 12 months would be better. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD STRATHCONA AND MOUNT ROYAL LORD STRATHCONA AND MOUNT ROYAL moved Amendment No. 28:
Page 5 line 19, after ("land") insert ("or against a decision to issue such a licence which specifies conditions").
The noble Lord said: On behalf of my noble friend, Lady Young, I beg to move this Amendment. As the noble Baroness, Lady White, said just now, it probably does not make a great deal of difference to the situation. It is largely a technical point. The present arrangement allows for a period of one year plus a period of appeal against refusal. The purpose of this Amendment is, analogously, to extend the period in case of an appeal against the conditions attaching to the licence.
7.47 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 29:
Page 5, line 22 after ("of") insert ("a building which is in use as").
The noble Baroness said: I beg to move Amendment No. 29. The reason for this modest Amendment is that I was somewhat concerned that one might have deposits of household waste within the curtilage of a house which is a private dwelling and could not be described as anything else, but which may have been abandoned as a private dwelling for a number of years. I have in mind the

931
particular case of a house in one of our South Coast towns which has remained empty for many years. There is a large garden which is now a wilderness, and it is really one of the most disgusting areas I have seen for many years, because it has become just a dump; yet it is within the curtilage of a domestic dwelling and it is what once was a garden.
It seemed to me that one ought to confine this particular exemption to a building which is in use as a private dwelling. I realise that this may be a slightly tricky legal point, and if the noble Baroness says that we may need some firmer definition I shall be happy to leave it with her. But there is a real point here: when a house has been abandoned, so far as I can make out, it is perfectly legal for anyone to throw what he likes into its backyard. Of course it might be a public health nuisance, in which case the public health authorities could intervene; but if it could not be said that the dumping had a bad effect on health but was just hideously unsightly, then I am not sure that under the Bill as it is now such a situation could be dealt with. If I am wrong I shall be most happy to be corrected.
BARONESS YOUNG: I am extremely grateful to the noble Baroness, Lady White, for having explained exactly what she meant by this Amendment. I must confess that it was slightly puzzling at first, because, as she will know from the definition clauses, a private dwelling is defined and it covers the case of a caravan—so I realised that the noble Baroness was not referring to that. The intention behind this is that a private household may have a compost heap, or something of that sort; but the intention behind the waste provisions is that it is an offence to dump waste anywhere except on sites licensed for the purpose. I must admit that the particular case cited by the noble Baroness is one on which I should not like to give an off-the-cuff definitive answer. I find it difficult to imagine a house which has been abandoned for some considerable time and which presumably no one ever expects to live in again since its garden is being used, in effect, as a piece of waste ground. I should have thought, therefore, that it would probably be covered by the gen-
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eral provisions of the Bill. In view of the uncertainty of this matter, however, I had better look at it, and perhaps I could write to the noble Baroness and let her know what the situation is.
BARONESS WHITE: I should be most grateful as I have this picture so vividly in my mind of the horrors I witnessed in this particular garden. In the circumstances, I am happy to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.51 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 30:
Page 5, line 27, leave out from ("on") to ("seashore").
The noble and learned Lord said: The object of Amendment No. 30 is really twofold: partly it is probing, and partly it is designed perhaps to extend the scope of the existing subsection (6) of Clause 3. The Amendment seeks to leave out in line 27 the words "on any part of the seashore", and the result would be that the land which is referred to in Clause 3 would include any land as defined in subsection (6). That would bring in these words
" … and to tidal water above low water mark of ordinary spring tides."
May I address myself to the first object which I described, that is to say, to probe. Is it designed by the Government that, for example, land above low water mark in the tidal stretches of a river should or should not be included within the definition? Supposing one looks at Clause 48, which is the definition clause relating to the next Part of the Bill. One finds that in that definition there is included the following:
"'tidal waters' includes the waters of any enclosed dock which adjoins tidal waters".
I would suppose that with the language as it at present stands in subsection (6), the land upon which an enclosed dock stands would not be included within the definition unless the dock in some way abuts upon the seashore. Is that intended? I submit that the words which I seek to leave out, "on any part of the seashore", import a limitation which first I ask the Government whether they intend; and, secondly, which I submit perhaps it would be better to remove.
The River Thames I believe, although I am not sure, is tidal up to Teddington.

933
But with the language as it stands, the land above low water mark, say at Teddington, or of the River Thames up to Teddington, would, I should have thought, be excluded. It would be excluded as a result of the words "on any part of the seashore". Similarly, if one looks at the London Docks—I do not know whether they are enclosed docks within the meaning of Clause 48, or not—they are to a large extent in the tidal part of the River Thames. Is it intended that the land on which those docks stand, to the extent that they are enclosed docks, should or should not be included? That is what I have to say with regard to the probing objective. I want to know what is intended and what is the result of the language used.
With regard to the second objective, namely, that which is designed to extend the scope of subsection (6), I would ask the Government, is it not desirable to include within the scope of subsection (6) all land above low water mark right up the tidal stretches of a river—in the case of the River Thames, for example, right up I think to Teddington—and to include enclosed docks like the London Docks which, I think I am right in saying, are in the tidal stretches of the River Thames? I may have got it wrong and if so I apologise, but I simply give that by way of example to illustrate my meaning. I should be grateful if the noble Baroness, Lady Young, would be so kind as to indicate first, what does the language result in; and, secondly, would it not be better to extend the scope of subsection (6) by omitting the words which I apprehend at any rate would import a limitation which I submit is not a desirable limitation? I beg to move.
LORD HAWKE: I, too, am in some slight doubt, as is the noble Lord opposite, because I am not sure whether the term "household waste" includes sewage. If it does, I am very well acquainted with one of the principal beaches in the West Country where at high tide a man appears with a key and opens a lock and the entire previous 24 hours' sewage for the district is let out into the sea. The end of the pipe, of course, is well above low water mark and when the tide goes down, although in theory it has washed it out to sea, in practice there are milky pools among the
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rocks there and you find little children paddling and bathing in them. I tell them that it is sewage but they take no notice and go on playing there.
If sewage is included here, the local authority are going to have a nasty shock because if they are refused a licence to do this, I do not know what is to happen to the sewage until they have built an expensive plant. Perhaps they are in the process of doing so. Further up the local river, a local authority town discharges all its sewage into the tidal river somewhere between high and low water mark. Therefore it is just as important to discover whether "household waste" includes sewage as to discover whether "commercial waste" includes the effluent from broiler houses or not, to which I hope I shall have an answer shortly.
VISCOUNT AMORY: Before my noble friend sits down, will he tell us where this beach is where the small children take no notice? We may.
LORD HAWKE: I can see that my noble friend has disguised his real purpose. Of course he wants to go shrimping there.
7.58 p.m.
LORD STRATHCONA AND MOUNT ROYAL: I nearly said that we were getting into deep waters; but it is shallow waters we are trying to deal with here. We were in some doubt as to exactly what the noble Lord was seeking with these Amendments, and now that we are clearer on what exactly was involved, I will deal with them as best I can. The short answer is to say that under this Bill the intention is to prevent the deposit of waste anywhere in the country except on licensed sites; and these include the shore, the docklands and the banks of estuaries, not necessarily under this Part of the Bill. I suppose that I may be accused of evading the issue of having to answer all the definitions that the noble and learned Lord, Lord Stow Hill, was asking for, but I would say that if the definitions in the Bill at the present time are inadequate as they apply to this clause, the matter is covered by other Parts of the Bill. By the way, if I may just take what we rather thought was the point that the noble Lord was going to take, anything dumped further out to sea is dealt with by the Dumping at Sea

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Bill which fairly recently passed through this House.
BARONESS WHITE: No, it has not, yet.
LORD STRATHCONA AND MOUNT ROYAL: —which is in the process of passing through this House.
My noble friend Lord Hawke made reference to the disagreeable occurrence which goes on at his favourite bathing spot. There is no doubt that if sewage is being dumped above the low water mark (and may I say, in passing, as an ex-sailor, that we always used to refer to the mean ordinary spring tides, though I hope we do not add that particular word) something will have to be done about it, and the local waste disposal authority will have to bring this into its plan.
My noble friend also referred to a point that we were unable to deal with a little earlier in the debate, and perhaps it might be useful if I tried to clear it up since we have now been able to take advice. I am advised that broiler waste is definitely a farm waste, and though farm waste is at present excluded from the definition of controlled water, there will be opportunity to bring it under control by regulation under Clause 17. Under Part II of the Bill it will in any case be an offence to deposit broiler waste in a stream. I hope therefore your Lordships will see that we believe this Amendment is not necessary, since all the points, I hope, are covered in the way that I have attempted to describe.
LORD HAWKE: My noble friend referred to depositing broiler waste in a stream. The particular waste I had in mind was when I crossed a river of chicken manure roughly three yards across and one foot deep which was making its way towards a stream. The owner of the broiler house was not depositing the waste in the stream; gravity was doing it and his chickens were doing the rest. Is that an offence under the Bill or is it not?
LORD STRATHCONA AND MOUNT ROYAL: Surely that is depositing a waste on land under Part I of the Bill.
LORD HAWKE: The noble Lord says that chicken waste is not a controllable
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waste. That is the point. But he goes on to say that to put broiler waste in a stream is an offence. It is not an offence to deposit it on the land round the chicken house, but presumably it might be an offence by the time the river of chicken manure that I mentioned reached the stream.
LORD STOW HILL: Can the noble Lord answer the question about enclosed docks?
LORD STRATHCONA AND MOUNT ROYAL: I have to confess that in a sense I evaded answering that question. If the docks were not part of the tidal waters they would become part of the land, and the land includes the sea-shore, docklands and banks of estuaries. So it is covered either way.
BARONESS WHITE: I am sorry to press this matter, but I feel unhappy about the wording of this subsection. No-one reading it could come to the conclusion that it included the shores of tidal rivers away from the sea. On the point made by my noble and learned friend about the Thames up to Teddington, and the Humber up to a considerable distance of its length, I have had a question raised by those concerned with the present river authorities as to what is the position regarding the shores of tidal rivers which could not by any means be called seashores. Although by careful examination of the Bill one might be able to find some other clause in which the shores of tidal rivers would be included, it would be more satisfactory for everybody concerned if it were plain from this clause that they were included. This is one of the reasons why my noble and learned friend put down this particular Amendment and mentioned simply tidal water without the seashore. I wonder whether this point could be looked at again. Even if one could find reference to it somewhere else in the Bill, surely this is the place in which one would like to see it.
LORD GARNSWORTHY: I am most grateful to the noble and learned Lord, Lord Stow Hill, for moving this Amendment. He did it in a manner which I could not at any time hope to emulate. The matter raised by the Amendment is one of some concern to the Association

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of Municipal Corporations. The use of the words:
" … to tidal water on any part of the seashore above low water mark of ordinary spring tides."
is not the best description that could be used to specify the land which is to be made subject to control. I should like to add my voice to the request that this point might be looked at again. I appreciate what the noble Lord said when he replied to my noble friend, but it seems to me this provision could be looked at again with a view to improving the wording. There is a point of some substance here.
LORD STRATHCONA AND MOUNT ROYAL: I am grateful to noble Lords. The general intention is perfectly clear: whatever happens, we do not want to see these areas excluded. The point being made is that the Part of the Bill in which these matters come may be obscure. Our feeling is that this particular Amendment does not help to clarify that point. We ought to have another look to see whether there is another way in which the point could be clarified. I hope that will satisfy noble Lords.
LORD STOW HILL: I am grateful to the noble Lord, and I ask leave to withdraw the Amendment.
BARONESS YOUNG: If I may add one further point of clarification, at an earlier stage in the proceedings the point was made in discussing sewage that this was part of controlled waste. In fact sewage would not be controlled waste, but its discharge would be regulated by the Regional Water Authorities under Part II of the Bill.
LORD HAWKE: Would the noble Baroness put something in the Interpretation Clause to make sure that it does not include sewage, because "household waste" is rather an all-embracing term.
Amendment, by leave, withdrawn.
VISCOUNT AMORY VISCOUNT AMORY had given notice of his intention to move Amendment No. 30A:
Page 5, line 28, at end insert:
("(6A) The presence of waste on any land is to be treated as giving rise to an environmental hazard if the waste has been deposited in such
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a manner, or in such quantity (whether that quantity by itself or cumulatively with other deposits of the same or different substances) as to subject persons or animals to material risk of death, injury or impairment of health, or as to threaten the pollution or contamination (whether on the surface or under ground) of any water supply; and where waste is deposited in containers, this shall not of itself be taken to exclude any risk which might be expected to arise if the waste were not in containers.
(6B) In the case of any deposit of waste, the degree of risk relevant for purposes of subsection (3) above shall be assessed with particular regard—

(a) to the measures, if any, taken by the person depositing the waste, or by the owner or occupier of the land, or by others, for minimising the risk; and

(b) to any likelihood of the waste, or any container in which it is deposited, being tampered with by children or others.")

The noble Viscount said: While it is extremely painful for me to find myself withdrawing one meticulously drafted Amendment after another because my noble friend has hinted that it may be possible to improve my drafting, the mere thought of which is very wounding to me indeed, I do so again, but with the confident expectation that my noble friend may find that my drafting is perfect, in which case I shall expect to see these excellent Amendments down again one after another. I therefore do not move Amendment No. 30A.
8.8 p.m.
On Question, Whether Clause 3 shall stand part of the Bill?
THE DUKE OF ATHOLL: May I draw attention to the first four words of this clause:
"Except in prescribed cases …."
I should like the Government to say what cases they anticipate will be prescribed in this way. Presumably they will be prescribed by regulations to be made under the Bill. It seems to me these words might to some extent militate against the objects of the Bill if too many exceptions are prescribed. I should like some enlightenment on what my noble friend has in mind in regard to what will be covered by these four words.
BARONESS YOUNG: The intention lying behind this clause, and indeed this Part of the Bill, is that all sites that will be used for the the disposal of waste will require a site licence. These words I are put in because there could be cases

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which would be exempt by regulations: for example, there might be small tips of industrial waste on an industrialist's own land which might be prescribed. There might possibly be household waste which could be deposited on a householder's own premises. We have already referred to this in the sense of compost heaps, but I suppose it is possible that in certain circumstances something else might be deposited. In effect, these words are written into this clause because there may well be instances where something should be omitted and this gives a freedom of choice. I should like to confirm that it is the intention of this Part of the Bill that every site should be licensed and a large number of cases should not be omitted.
THE DUKE OF ATHOLL: I am very grateful for my noble friend's assurances, but I feel guilty because I did not put down an Amendment and it is much more difficult for her suddenly to spring something like this on her. I am worried when she says that industrialists may make a tip on their own lands—a "small tip", I think she said—and that they can be exempted from getting a licence. It seems to me that dangers could attach to that. I wonder whether my noble friend could possibly look at this again, and perhaps at some future stage give an assurance that that would not be the case.
Perhaps I had better put down an Amendment at the next stage of the Bill to try to clarify these four words.
Clause 3, as amended, agreed to.
Clause 4 [Licences to dispose of waste]:
8.12 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 31:
Page 6, line 5, at end insert ("or serious detriment to the amenities of the locality").
The noble Baroness said: I beg to move. The point of this Amendment concerns that part of Clause 4 which provides
"Where a disposal authority receives an application for a disposal licence for a use of land … for which … planning permission … is in force, it shall be the duty of the authority not to reject the application unless the authority is satisfied that its rejection is necessary …"
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for two purposes as the Bill now stands: pollution of water or that it would be a danger to the public. We feel that for the Bill to make any pretence whatever to live up to its Title, then the least one can do is to include another condition, namely, that this particular permission, if given, would result in serious detriment to amenities of the locality. A planning permission might have been given some time back, and the local circumstances might have changed—a house might have been built, for example, quite close to the place where the disposal might take place. One has heard of one or two quite horrific stories of circumstances of precisely this kind where life has become very difficult indeed. Therefore we feel it only proper that while the disposal authority is more or less compelled to give a licence unless certain circumstances are satisfied, if it felt there was going to be serious detriment to the amenities of the locality, even though not necessarily an actual danger to health, it should have a possible option.
It has been suggested that with this Amendment we should look at the comparable Amendment, No. 57. That is at page 10, line 39. In a sense that is consequential. If the Amendment which I am proposing should be made, then one would need to amend subsection (3) of Clause 8, because this provides for appeals to the Secretary of State against decisions to withhold licences or to impose conditions which are regarded as inappropriate. There the local authority might have refused the licence on the ground that to grant it would involve the possible pollution of water or some danger to public health. If this third condition were accepted, then it might have given as its reason for not granting the licence on these conditions that to do so would be seriously detrimental to the amenities of the locality.
I think the Bill is defective as it stands in that there are two reasons only that would justify a disposal authority not giving a licence if planning permission were in force. But planning permission, I repeat, having been given in somewhat different circumstances sometime back, we think the disposal authority should have this possibility of taking into account serious detriment to amenities. There is a provision for appeal in Clause 8, so the decision is not absolute. If the Secretary

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of State in his wisdom decided that it was not reasonable to invoke this particular condition, then of course he could act; so there is a safeguard. As I said, at least in order to justify the Title of the Bill, I think our Amendment is a reasonable one.
VISCOUNT AMORY: There seems to me to be one possible objection to the Amendment the noble Baroness has moved: that the planning permission already in force can be modified or revoked on payment of compensation. Would not the effect of the Amendment's proposal to permit the withholding of a licence for essentially planning reasons be that in such a case the planning permission would be revoked without payment of compensation and in some cases might not that be unfair?
LORD MERRIVALE: I agree, with respect, with my noble friend. It seems to me the purpose of site licencing is to institute controls that are inappropriate under the planning legislation. Therefore it would seem that the amenity consideration, on the other hand, should be regarded at the planning stage. I know the noble Baroness, Lady White, referred to "changed conditions", but I think the point was covered technically by my noble friend Viscount Amory. It seems to me definitely wrong that amenity considerations should be considered under site licensing. I hope that my noble friend will consider it again.
BARONESS YOUNG: I think the important point in this Amendment is that it would add another reason for rejecting the licence application, and the important point is that once the planning permission is in force, as has been very well explained by the noble Viscount, Lord Amory, and by the noble Lord, Lord Merrivale, this Amendment would confuse the two purposes of planning permission and site licensing. Planning decisions, of course, take into account the amenities of the locality and a great many other matters which are rightly the concern of planning authorities. But once planning permission has been given it is not imagined that site licensing would be refused, except on grounds of public health or some kind of danger of pollution in this context. Therefore it would be very unfair to take away a site licence on grounds which in effect are not appro-
942
priate to the licensing provision at all. I think they are appropriate grounds for determining planning applications, but I think it would not be right to take this into account when giving a licence for the site. It is for that reason that I feel unable to accept this Amendment.
BARONESS WHITE: I can quite see the logic of the argument. But I wonder whether the noble Baroness can say anything about the time factor. Is planning permission for purposes of this kind more or less indefinite?—because it is the changing circumstances in the neighbourhood that are worrying us. We can see perfectly well that this is more a planning matter than a site matter, but we feel that there should be some safeguard. If a planning permission had been given a considerable period beforehand, and the circumstances had changed, something really very obnoxious might take place which had not been foreseen at the time when the original planning permission was given. I wonder whether the noble Baroness could enlighten me on that point.
BARONESS YOUNG: It is always somewhat difficult when there is a very long-standing planning permission on something, but certainly there is no reason why planning permission cannot be limited Ito a given period of time. I should have thought in this connection that when a waste disposal authority draws up its plan it would obviously be looking at existing sites and any other sites it considered suitable. And, of course, when it considered giving planning permission to something it would obviously, I should have thought, take into account precisely this kind of point, which is a planning point. It is also, as Lord Amory said, possible for it, by giving compensation, to extinguish the use, or revoke the planning permission in this way. So it is not impossible for it to deal with this situation. I should have thought, although I believe this is not specifically stated in the Bill, that when the waste disposal authority and the planning authority were considering the planning application for new sites they would certainly take into account the fact that waste disposal is, as it were, a changing world—that new processes take place and new things cone up which cannot necessarily be thought of in advance—and would write something into

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the planning conditions on these lines. Therefore they would be taking this point into account.
BARONESS WHITE: It is not the new permissions we are thinking of; it is the possibly long-standing planning permissions which under the new dispensation of waste disposal plans and so on might never have been granted. However, I do not wish to press the point. I can see that there are difficulties, but the matter worried us and I thought it right to draw attention to our concern. In the circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.22 p.m.
LORD CRAIGTON LORD CRAIGTON moved Amendment No. 32:
Page 6, line 13, leave out ("twenty-one") and insert ("twenty-eight").
The noble Lord said: It may be for the convenience of your Lordships if I refer to this Amendment and at the same time to No. 63, which is on the same point. Perhaps the noble Lord, Lord Henley, would also be prepared to discuss his relevant Amendment at the same time. It is a short point. I put the Amendment down just after Second Reading so that the noble Baroness might think about it. Under this particular Amendment the disposal authority, when it proposes to issue a disposal licence, must refer its proposal to three different interests: the water authority, any collection authority, and any other prescribed person. All those interests have, in spite of difficulties concerning Her Majesty's G.P.O., and other difficulties, to put up their representations within 21 days. I felt it was rather a short time and that 28 days would give them more opportunity to get the job done properly. I beg to move.
LORD HENLEY: If I may speak now to my Amendment, to save time, it seems to me that even 28 days is not quite long enough. It might be all right in a straightforward case, assuming that plenty of staff were available. But where geological and other scientific investigations are probably going to be necessary, it will not be long enough. My Amendment, following Lord Craigton's,
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is rather wider. What my Amendment suggests is the inclusion of:
"or such longer period as may be agreed in writing between the disposal authority and the other authority concerned".
This would give some flexibility regarding the time within which another authority—probably a water authority—has to make representation on a licence application.
We already have the same sort of thing in Clause 4(9), so I should have thought there would be no great difficulty in giving this latitude here. I do not know whether the Government have it in mind to accept either the Amendment of Lord Craigton or mine. I think mine is the better Amendment because it leaves greater latitude. Would the noble Lord, Lord Craigton, be of mind to withdraw his Amendment in favour of mine?
LORD CRAIGTON: I prefer my own Amendment, but I am grateful for small mercies.
LORD HENLEY: Perhaps we had better hear what the noble Baroness has to say about both Amendments before either of us withdraws his Amendment.
BARONESS YOUNG: The noble Lord, Lord Craigton, wondered whether we had had time to consider his Amendment. I would make quite clear that my Department has given very considerable thought to the question of how long a period should be allowed for comment by the authorities consulted on this question of a licence. It is all a question of fitting it into what must be regarded as a reasonable timetable in order to get the question of the licences resolved. The original pre-introduction proposal was 14 days and this was extended to 21 days—the present provision—to give water authorities, in particular, more time to carry out their investigations. But the fact is that in the case of a licence application the waste disposal authority has only two months in which to decide whether to accept or to reject it, and to extend to 28 days the period of making representations might impose too tight a schedule in the processing of applications.
In both cases, however—both private applications and the waste disposal authority's own sites—the question is to a certain extent academic because the waste

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disposal authority must be concerned with the water authority's points—especially to protect itself from the possibility of causing water pollution by its own disposal operations if it has not secured the support and advice of the water authority. So in practice we are likely to see a flexible arrangement. In the last resort, as I said earlier, if there is not an understanding, and there is a serious disagreement, the water authority's position is safeguarded by an appeal to the Secretary of State.
I have explained this timetable in some detail because, although I have some sympathy with the suggestion of Lord Craigton, I would turn to the more general Amendment put down by Lord Henley. If I have understood it correctly, what he is saying is that the 21 day period for consultation could be extended if there were an agreement in writing between the waste disposal authority and the water authority or the other authority concerned. I think that there is some merit in this point and it is one that we should like to consider further. One
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must consider it in the light of the kind of circumstances that are likely to prevail. I would therefore give the assurance that we will look further at this second Amendment—that is, Lord Henley's Amendment—and I understand Lord Craigton is happy to accept that.
LORD CRAIGTON: I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
BARONESS YOUNG: I think it has been agreed that we should close our proceedings at 8.30 p.m. It is nearly that time now, and there is not time to deal with another Amendment effectively. I therefore beg to move that the House do now resume.
Moved, That the House do now resume.—(Baroness Young.)
House resumed.
House adjourned at half-past eight o'clock.