HL Deb 22 January 1974 vol 348 cc1395-432

House again in Committee.

Clause 23 [Control of pollution of rivers and coastal waters etc.]:

BARONESS WHITE moved Amendment No. 132B: Page 29, line 15, leave out ("specified").

The noble Baroness said: This seems to me to be an Amendment of some significance. It is a complicated one, but I hope that I shall be able to make it reasonably clear. The Amendment is to leave out the word "specified" in Clause 23(1)(a) where it refers to " any specified underground water ". The reason why we are worried about this provision will I think become clear to anyone who looks at the Water Resources Act 1963, Section 72. This section stands to be repealed under this Bill, and it was a much wider one because, instead of referring to "specified underground water" it referred to "any underground strata" within a river authority's area, and it was a function of the river authorities—which are now, of course, to be replaced by the water authorities—to control trade or sewage effluent and other poisonous polluting matter and so forth which might find its way into "any underground strata". This point was touched on at Second Reading by the noble Lord, Lord Nugent of Guildford. Because of his responsibilities as Chairman of the Water Council he feels perhaps a little inhibited in taking part in the detailed stages of our debates, but he expressed some apprehension that the narrowing of this reference in Part II of the Bill before us might have some unfortunate effects.

One cannot, I think, understand what is meant by "specified underground water" unless one looks at Clause 48, the Interpretation Clause, which tells us what exactly is meant by this term. Your Lordships will see that "specified underground water" means underground water specified in, (a) a report prepared by a water authority in pursuance of section 24 of the Water Act 1973". I have looked at that section and it does not seem to help us very much, it refers to periodical reviews plans and programmes. Then the definition goes on: (b) a report prepared in pursuance of section 14(1)(a) of the Water Resources Act 1963 … That also does not seem to get us very much further. Then it proceeds, water which is used and there is to be an Amendment which will make it read: or is or was expected by the authority to be used for any purpose". In other words, if an authority, in its wisdom, is not able to think of any pur pose for which the water might be used, then we have no control over the noxious and polluting matter which might get into it. Oddly enough, so far as Scotland is concerned (again I have to look forward to Amendments which are about to be made) at the top of page 57 one sees that in Scotland "specified underground water" is going to mean, when the appropriate Government Amendment has been made, "such underground water as may be prescribed". So one will not be obliged to signify any purpose for which it is going to be used; one has only to prescribe it. I am not sure what the criteria for prescription will be.

This is very far from being a simple matter. The reason why we are so concerned about it is that we have grave doubts as to whether at any one point of time it will be possible to indicate for what purpose underground water might be used. We do not know all that much about underground water. In some areas there is considerable knowledge and it has been carefully investigated, but there are other are as which were covered, as I understand it, when one was referring to "any underground strata" in Section 72 of the 1963 Water Resources Act, so that one was taking no chances. Anything which might get into any underground strata would be controlled. Now we say, "If you are going to discharge it into underground water which has been specified according to the definition clause then you have to get the necessary consents and so forth; but if it has nor been specified, and if the authority has not thought of any use to which it might be put, then it is not specified, and you can do what you like without any control and without any let or hindrance."

I am advised by those who are much more knowledgeable than I that there are undoubtedly areas with underground water which have not been fully explored or recorded, where one simply does not know, where noxious matter might find its way; and therefore it is dangerous to go back on the 1963 Act and legislate now for much more restricted conditions. It may well be that there have been difficulties over the administration of Section 72 and the immediate following Sections of the 1963 Act. If so, I think we should be told exactly what the difficulties have proved to be.

This section in the 1963 Act is to be repealed under the Bill and will have no further effect. We are substituting something which is less wide. We are substituting something which, I am advised, because it is not fully inclusive could lead to very serious difficulties in the future. This again to some extent ties up with my South Wales mining connections. I know that the scientists who are working in the South Wales coalfield area have very grave apprehensions as to the possible effects. This applies not only in South Wales but in other parts of Wales, and I have no doubt it applies equally to parts of England, but I am not very well aware of those. This again links up with what we were discussing earlier, the disposal of specially toxic wastes the effects of which are not fully known, and the desire on the part of the authorities to use abandoned mines or quarries in order to dispose of them. So often in these abandoned workings are underground waters which may go in directions which may change in the course of time, and which may not be fully known. So I feel we are entirely justified in moving this Amendment. Whether we press it or not depends partly, of course, on the explanation we have from the Government as to why they now wish to take narrower powers than were included in the 1963 Act, what difficulties have been encountered in administering that Act, and why in fact they propose to make this change. I beg to move.

8.30 p.m.

LORD SANDFORD

The Committee will be grateful, as I am, to the noble Baroness for moving this Amendment, because it gives me an opportunity to explain what was in my right honourable friend's mind in regard to the present wording. I would be the first to admit that this is wording which we hope it will be possible to improve upon, but perhaps not in the way the noble Baroness suggests. She is quite right in referring to Section 24 of the Water Act 1973, and Section 14 of the Water Resources Act 1963, to get at the meaning of "specified underground water". I cannot agree that the 1963 Act is wider than the present Bill. The 1963 Act related only to discharges by way of well, borehole, or pipe into underground strata. All those discharges will now be controlled under Clause 24(1)(a)(iii). Furthermore, that particular clause has been strengthened as indicated on page 102 of the Bill, where there is a requirement that the relevant material should be publicised and made available for inspection. That is rather a side issue.

Perhaps I could deal with this matter in two ways. First, may I indicate why the simple omission of the word "specified" cannot be accepted. If you omitted this word, it would be an offence to add fertiliser to an allotment in such way that it got into, and polluted the water which had fallen as rain, or a shower, a few hours before and had soaked through into the ground. It would make it an offence to permit polluting matter to enter any underground water, even though the water concerned was already in such a state, as for instance crude brine, as to make is unusable. It would expose everybody to the danger of prosecution for the pollution of underground water, without providing any means of enabling them to discover whether there was underground water under, or anywhere near, their property.

Those are some of the difficulties in accepting this Amendment as it stands. Nevertheless, my right honourable friend would be the first to admit that the qualification "specified", as defined in Clause 48 of the Bill and in the references that the noble Baroness mentioned and that I confirmed, still leaves something to be desired. For instance, it will be a year or two before the new water authorities will have completed their first surveys under Section 24(1)(a) of the Water Act 1973. The surveys under Section 14 of the Water Resources Act 1963 were not carried out with the purposes of this Bill in mind; on that the noble Baroness is quite right. In consequence, this Bill will initially probably provide rather less complete coverage than we should have liked. The noble Baroness is quite right there. But a comprehensive approach to the protection of underground water of the kind which we intend—broadly, underground sources which are already used, or for which some future use can be foreseen—is an entirely new feature in the protection of water. It is a large step forward, and we can only use the best method available to ensure that it does not have unintended and repressive effects.

It will be in the interests of the water authorities in their dual role as controllers of water pollution and providers of water resources—or rather, in their single role as the comprehensive managers of the whole water cycle—to ensure, as soon as may be, that all the useful underground water is identified and specified in reports of surveys. I hope that the Committee will agree that it follows from what I have said that the Government will be prepared to consider what the noble Baroness has said, and to consider any other suggestions that might be forthcoming between now and the next stage, for a more satisfactory definition of the underground water to be the subject of the general offence in Clause 23(1)(a).

I hope that I have said enough to satisfy the Committee that just to leave the term entirely unqualified would, for the reasons I have given, not be an acceptable solution. I hope that that will satisfy the Committee for the time being, and will encourage the noble Baroness and other Members of your Lordships' House to assist us to improve on what I admit is not an entirely satisfactory situation at the moment.

8.36 p.m.

VISCOUNT DILHORNE

I think that the noble Baroness, Lady White, has put her finger on a problem which this Bill at the present moment does not satisfactorily solve. I could not support her if she were to press this Amendment now, because I think the noble Lord has made it clear that there are good reasons for having some limitation and not leaving it as an offence to discharge "any poisonous, noxious or polluting matter" into any underground water without any limitation.

The real trouble is the definition in Clause 48. That does not give a free hand to the Secretary of State. It is a limiting definition. There have to be reports either under the 1973 Act or the 1963 Act (and a report of which a copy is kept available if it is under the 1963 Act), before any underground water can be treated as "specified underground water". I must say that I cannot see the object of having such a restrictive definition. I think it would be much better if you had, "underground water prescribed by regulations made by the Secretary of State", for this reason. Pressure could then be applied to the Government of the day if they over-prescribed or if they under-prescribed, and you would not have to wait to obtain one or other report from a body before you could bring that particular underground water within the purview of Clause 23 and have it protected from pollution.

I think one can leave this part of the clause as it now stands. The real trouble arises with the definition in Clause 48. This debate may perhaps serve a useful purpose, because if an Amendment is put down on the lines which I have suggested, and it is supported by the noble Lord, Lord Hughes, a joint effort on our part might get the Government to accept it when we get to Clause 48 and they will not just say that they will think about it.

LORD HUGHES

The noble Viscount must be reading my mind. It was in my mind to get up immediately he sat down; not on this aspect, but on the Scottish aspect. If he will look at the Amendment which the Government propose to make to the Scottish definition of underground water, this certainly will not be giving a wider discretion to the Secretary of State than what is proposed in Scotland. As my noble friend pointed out, the definition in Clause 48 for Scotland at the top of page 57 paragraph (b) reads: for the definition of 'specified underground water' there shall be substituted the following definition— 'specified underground water' means underground water specified in regulations as water which is used or expected by the Secretary of State to be used for any purpose. That is little wider than the English definition. The Amendment, which reads rather ridiculously but could certainly not be wider, is to alter that to, 'specified underground water' means such underground water as may be prescribed". So far as I can see, taking an ordinary reading of English, this simply means that specified underground water is such water as may be specified.

If it is accepted that there is sound reason for making this the definition in Scotland, then a somewhat similar definition in England would meet the purpose of the noble and learned Viscount. Therefore, I suggest to the noble Lord, Lord Sandford, that when the Government are looking at this point they should look at the reasoning which they found acceptable in the case of Scotland, and consider whether it is equally acceptable on this side of the Border.

BARONESS WHITE

I am extremely grateful to both noble Lords who have taken part in the debate, as well as to the Minister. I am in no way wedded to this Amendment, the purpose of which was to draw attention to what we thought was a significant problem, so I have no intention of pressing it. But I would respectfully agree with the noble and learned Viscount, Lord Dilhorne, that this point can probably best be dealt with when we come to the definition clause. It is very odd that there should be a discrepancy between England and Wales on the one hand, and Scotland on the other, which is not so much a legal question as a matter of common sense. In all the circumstances, we should leave the matter as it is for the moment, but ask the Government to look closely at this serious problem. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.42 p.m.

VISCOUNT DILHORNE moved Amendment No. 132A: Page 29, line 24, at end insert ("and for the purposes of paragraph (a) of this subsection a local authority shall be deemed to cause or knowingly permit to enter a stream any poisonous, noxious or polluting matter which passes into any stream or controlled waters from any sewer or sewage disposal works vested in them, in any case where either the local authority were bound to receive the matter into the sewer or sewage disposal works, or they consented to do so unconditionally, or they consented to do so subject to conditions and those conditions were observed.")

The noble and learned Viscount said: Clause 23 deserves very careful study, as I am sure the whole Committee will agree, and I do not profess to have spent as much time in considering it as I should have liked. But I have contrasted it with Section 2 of the Rivers (Prevention of Pollution) Act 1951 on which it is modelled, and I can say straight away that this Amendment is modelled on a provision in that section. In Section 2 of the Rivers (Prevention of Pollution) Act, there is a provision which specifies certain circumstances in which a local authority is to be deemed to cause or knowingly to permit pollution. It is a deeming provision, and a not unimportant deeming provision, putting a burden on local authorities who were, I am sorry to say, over the years some of the worst sources of pollution, with the no doubt desirable objective of saving their ratepayers a good deal of money. But that is the fact and one must not disguise it.

The circumstances in which pollution could be deemed to be a local authority's responsibility were where a local authority were bound to receive polluting matter into their sewer or sewage disposal plants, or where they had consented to receive it. They would then be deemed to have caused the pollution by that polluting liquid escaping into a river from their sewage works or sewer, or knowingly to have permitted it. So where those facts could be proved, and subject to no defence succeeding, a conviction would result. That had the advantage that a local authority could not say, if polluting liquid was traced to their plant "We are not responsible. We did not cause it. We cannot be convicted. You must find the people who tipped that polluting matter into our sewer, and if you can trace them you can go for them." Section 2 overcame that difficulty and it was an important provision in the 1951 Act. Clause 23 does not contain any similar provision.

I know—although I cannot claim to be very familiar with all the provisions of the Water Act—that overall responsibility for sewerage and sewage disposal now rests on the shoulders of the water authorities. But, as I understand it, responsibility may also rest on the district councils and London borough councils in relation to management for the water authorities of sewers and sewage disposal plants. If I be right about that, then I suggest that the need for the provision in the 1951 Act still remains. If I am told that if the effluent from a sewage plant in a borough is found to be highly polluting in character the people who should be prosecuted are not the people who are actually managing the sewage plant but the water authorities, I shall wonder whether that is right. But if it be right, may not the same or a similar deeming provision be necessary so that neither a local authority nor a water authority can escape a responsibility which should properly fall on their shoulders by being able to say, "We are not responsible, someone else has put that into our sewers; it has come to our sewage disposal plant and from there gone to the river. The persons you must prosecute are the people who put it in"—and of course they will be very difficult to trace.

As I said, the provision in the 1951 Act has been left out of the Bill and in some respects the existing law as created by the 1951 Act has been significantly weakened. I hope that this omission was not with that intention. I shall await with interest the explanation for this departure from the provisions of the 1951 Act, which must have been carefully considered. I beg to move.

LORD SANDFORD

I should like to start by assuring the noble and learned Viscount, Lord Dilhorne, that it is certainly not the intention to weaken in any way the provisions in the Rivers (Prevention of Pollution) Act 1951, which are to be repealed because similar provisions are now contained in this Bill. During the passage of this Bill through this House we must take great care to make sure that there is none of the loopholes which the noble and learned Viscount apprehends.

He was quite right in saying that this is a matter which is specifically dealt with in Section 2 of the 1951 Act. The last part of Section 2(1)—that is, the part of the text which follows paragraph (b)—and Section 2(2) are interrelated so that "any such case as aforesaid in Section 2(2), is the case mentioned in Section 2(1) where either the local authority were bound to receive the matter into their sewer or disposal works, or the matter was discharged into their sewer or works in accordance with their consent. The noble and learned Viscount and the Committee will know that the effect of those two provisions is that where poisonous, noxious or polluting matter is discharged into a stream via a local authority sewer or sewerage disposal works, then, if the matter was lawfully discharged into the sewer or works in the first place, the person who so discharged it will not be guilty of the offence of causing or knowingly permitting it to enter the stream, but the local authority which received the matter into their sewer or sewage disposal works are to be deemed to have caused or knowingly permitted its discharge into the stream.

The reason for this is that anyone who has a legal right to discharge sewage into a local authority sewer, or who discharges trade effluent into a sewer in accordance with a consent, ought not to be penalised if the matter so discharged eventually pollutes a stream. The local authority, on the other hand, can properly be expected to provide adequate treatment for all matter which is lawfully discharged into their sewer or sewage disposal works before discharging it into a stream, and they should not be allowed any opportunity to argue that it was not they but the person who discharged the polluting matter into their sewer or works who caused or knowingly permitted it to enter the stream via the sewer or works. By implication, where a person unlawfully discharges matter into a local authority sewer or disposal works—for example, where he discharges trade effluent without a requisite consent or in breach of some conditions—it is he and not the local authority who can properly be held responsible for causing the matter to enter a stream via the sewer or disposal works.

VISCOUNT DILHORNE

Is the noble Lord saying—I want to follow him—that that is the position now under the 1951 Act?

LORD SANDFORD

Precisely so. I should like to put it to the Committee that there appears to be no need for the inclusion of similar provisions in Clause 23 of the Bill because, as the noble Viscount says, responsibility now rests squarely upon the shoulders of the regional water authorities. My advice is that however the regional water authorities may arrange for their functions to be discharged, that is where the responsibility remains. I am grateful to the noble and learned Viscount for explaining his doubts about this, because it will mean that this matter is now carefully looked at again to ensure that that is so. That it my advice at the moment, but if the noble Viscount has doubts about it then certainly it needs to be looked into.

Clause 23(2)(f) as it is proposed to be amended by Amendment No. 38 will exclude from the scope of Clause 23 trade or sewage effluent discharged as mentioned in Clause 24(1)(a). Such a discharge will in future be governed entirely by Clause 24, where the question is not whether someone has caused or knowingly permitted the effluent to enter any relevant waters but whether someone has caused or knowingly permitted it to be discharged otherwise than in accordance with a consent. I entirely agree with the noble and learned Viscount that we must make quite sure that this provision, primarily contained in Clause 24, is no weaker than, or is at least as strong as, the provision in the Prevention of Pollution Act 1951. I am grateful to him for having raised this, and I assure him that it will be looked into to make quite sure that it will not be possible for the regional water authorities, by arranging for their functions to be discharged by some other authority, to shift their responsibility.

VISCOUNT DILHORNE

I am grateful to the noble Lord for his reply. I must say that I am rather puzzled about the number of different hats the water authority will have to wear. It is the water authority that will give consent to the polluting discharge being made, in which case it cannot be prosecuted for an offence under this clause. On the other hand, if it does not consent to its own discharge it will be responsible for the polluting discharge and will be liable to prosecution and conviction. It seems to me a very odd position.

Again, the noble Lord says that the water authority will be ultimately responsible. That may be, but the water authority may be a long way away from where the actual pollution occurs. I shall come back to this later, when we come to the Question, That the clause shall stand part. But I should have thought (I do not know whether the noble Lord will agree) that the people actually running the sewage farm would be liable to be prosecuted. There is nothing in the Act to say that only the water authority must be prosecuted. The person who commits the offence will be the person who causes or knowingly permits the pollution, so you can go for him. Under the law as it now stands, if you go for the local authority, and the local authority have allowed out of their sewer, without purifying it, an effluent which they were bound to receive, they are deemed to be guilty. As the Bill stands, I do not see that that will happen.

The noble Lord has referred to Clause 24. I shall be interested to hear exactly how that happens in relation to this matter. But are we not getting into a very odd position, with the water authority being the person, the noble Lord says, liable to be prosecuted and the water authority being itself the body which has to consider and determine—and finally determine for at least a year, unless the matter is called in before the Secretary of State—that a certain polluting effluent can be discharged, in which case it can exonerate itself, exclude itself, from all responsibility for the pollution and take itself outside the scope of this particular provision? It seems to me very odd, and I say frankly that I am not happy about it for the reason that, as one knows, the water authority must have on it a majority of persons appointed by local authorities, and I fear that after this we shall see very much what I fear we have seen over the years—a reluctance to take steps that ought to be taken for purifying our rivers.

In this connection, I think it would not be improper for me to say that I remember one instance, when I was Attorney General, when there was a great reluctance on the part of a river board (which also, I think, had local authority representatives serving upon it) to institute proceedings under the 1951 Act in a clear and very bad case. The person suffering from this pollution did all he could to persuade the river board to take action. He finally, I think as a last resort, wrote to the Attorney General, and I had to say to the river board quite firmly—and it did start things moving—"If you do not start proceedings I shall give my consent to proceedings being brought as a sort of longstop, and then all this delay which you have caused will come out. You had much better do it yourselves"; and I think it then happened. I am fearful that, despite all that may be said about the responsibilities of the water authority, when the water authority is so constituted we will still get the same reluctance to prosecute other people and we will still find them in the position of consenting to their own polluting discharges to prevent themselves from being prosecuted for an offence under Clause 23. That seems to me very odd, and I do not think it is right.

VISCOUNT BLEDISLOE

I find it very difficult to follow the answer given by my noble friend Lord Sandford because, as I understand it, he says that the last thing the Government want to do is to alter in any way the powers that were given under the 1951 Act, and for various reasons he does not think that is what is being done. We have grave doubts whether that is so; but the Amendment down in the name of my noble and learned friend Lord Dilhorne and I. as I see it, reproduces what was in the 1951 Act. My noble friend Lord Sandford says that that is what the Government want. The Amendment does it. Why not accept the Amendment?

LORD SANDFORD

If I may answer the two noble Lords, I think the answer to the last point is that what I said was that we do not want to weaken the provisions of the 1951 Act but we do have to fit them into a different frame-work, and that is what Clause 24 primarily seeks to do. The noble and learned Viscount, Lord Dilhorne, is anxious about the regional water authorities being judges in their own cause; but he will have noticed Clause 47, I think, under which regulations will be made whereby discharges by the water authorities themselves will require the consent of the Secretary of State. That, perhaps, will add to my assurances on that particular point. But certainly I am grateful to the noble and learned Viscount for having moved this Amendment. He having raised these doubts, we shall have to look into them.

VISCOUNT DILHORNE

I am very glad to hear that the noble Lord will look into them. I must say that I am very unhappy. I will make a further study of Clause 24, but I doubt very much whether it covers the same point as this deeming provision. Under Clause 24 the discharge is in certain cases "into any relevant waters" et cetera "from land" "or from a building" and "any matter other than sewage effluent"—and so on. That is the real question here which was covered by this deeming provision. The discharge was deemed to be that of the local authority. This is the question to which I should like an answer. Have you now to go back to find out who is the person who actually discharged into the sewer? If so, that is a retrograde effect of Clause 24. I do not want to press the noble Lord to go further into the matter to-night. I am grateful for his assurance that he will carefully consider this problem; and I ask leave to withdraw the Amendment on his understanding that, unless I am satisfied before the next stage, I shall be in order and quite entitled to put down an Amendment on the same lines and, if need be, to press it to a Division.

Amendment, by leave, withdrawn.

9.2 p.m.

LORD SANDFORD moved Amendment No. 133: Page 29, line 27, after ("by") insert ("virtue of").

The noble Lord said: I beg to move Amendment No. 133 and at the same time to speak to Amendments Nos. 134, 135 and 136. All four are drafting Amendments designed solely to achieve consistency of wording.

BARONESS WHITE

I wonder whether we may be told what is the virtue of "by virtue of"? Presumably the Amendment is put down for some purpose and not merely for elegancy of style.

VISCOUNT DILHORNE

It is not elegant.

BARONESS WHITE

I should be grateful to know whether in any sense it widens the significance of this part of the clause. We are referring not only to polluting matter but also to possible poisonous or obnoxious matter, so that the matter is extremely important. One wishes to know how specific this is to be. If an entry in question is authorised by the consent given by the Secretary of State, how is it changed it it is to be by virtue of the consent given by the Secretary of State? Is that something which is broader? This is not by any means a frivolous question. If you are dealing with poisonous substances it is important to be absolutely specific, and one should not allow a somewhat wider sphere of activity by bringing in some phrase which could be used as an element in a defence if some poisonous substance was introduced into the water in question. I do not want to make heavy weather of this, but presumably this Amendment has some significance, and if in any sense it widens, and therefore weakens, specific consents which might be given, we should be rather worried about it.

LORD SANDFORD

There is no reason for the Amendment beyond that which I gave, to provide consistency. An example of words already in the Bill may be found in Clause 24(3) at page 33, line 27. There is no other significance at all.

VISCOUNT DILHORNE

I thought that was so—there is no significance at all, You might just as well say "by" instead of putting down four Amendments to make three words do the work of one, It would be better to amend the Bill where you have the words "by virtue of" by taking out "virtue of". I do not know why there is this passion for inserting "virtue" in this Bill. It is bad drafting to push in these words. There is no significant change in the meaning. I suggest to the noble Lord that he had better think again, withdraw these Amendments and table an Amendment to take out the unnecessary words "virtue of" where they appear later. It really is bad drafting unnecessarily to insert this verbiage.

LORD SANDFORD

I shall be glad to consider that point. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD WINTERBOTTOM had given notice of his intention to move Amendment No. 134A: Page 29, line 29, leave out from ("State") to ("in") in line 30.

BARONESS WHITE

I am sorry that my noble friend Lord Winterbottom is indisposed and is not able to be present in the Committee to-night. I know that this Amendment is one in which he has a great personal interest. I cannot move it, but I thought that I should give that explanation to the Committee.

VISCOUNT DILHORNE

I think that I can move the Amendment, can I not?

SEVERAL NOBLE LORDS

No.

VISCOUNT DILHORNE

I think that the noble Baroness, Lady White, can move it.

BARONESS WHITE

I hesitate about this because I happen to know that my noble friend Lord Winterbottom has a very close personal interest in this Amendment and I think that he would wish to be here to speak on it. It could be brought up at a later stage. I am in that difficulty. Any noble Lord could have moved the Amendment on his behalf, but I happen to know that it is a matter in which he has long taken a personal interest.

VISCOUNT DILHORNE

I was not pressing the matter, except that I thought it might be of interest to get on the Record what the Government had to say about it. I can raise the points I wish to raise on the Question, Whether the clause shall stand part of the Bill?

BARONESS WHITE

I am not proposing to move the Amendment. If the noble and learned Viscount wishes to move it to obtain an explanation from the Government, that might be done. But I have no permission to move it.

THE DEPUTY CHAIRMAN OF COMMITTEES (VISCOUNT Hoop)

Amendment No. 134A is not moved.

9.10 p.m.

BARONESS WHITE moved Amendment No. 134B: Page 29, line 29, leave out ("or a disposal authority")

The noble Baroness said: This is an Amendment which I beg to move. The reason for it is that we are not at all happy that, when dealing with poisonous, noxious or polluting matter, we should rely on a consent given by a disposal authority. So far as we can understand it, a disposal authority, which is dealt with in Part I of the Bill and not in Part II, licenses the disposal of waste on land. In our opinion it is not part of the function of a disposal authority to given consent under Part II of the Bill. The disposal authority would have no particular knowledge of the conditions which would be applicable to consent under Part IL which relates to the control of pollution of rivers and coastal waters. Therefore it would appear to us to be far from satisfactory to confine the consent under this clause either to the Secretary of State or to the water authority, which is the responsible body.

We do not believe that the disposal authorities, as defined in Part I of the Bill, would have the necessary expert advice at their disposal and therefore we cannot see why they should be included among those who are apparently to be given power to, permit the discharge of poisonous, noxious or polluting matter into streams, controlled waters or underground water". I should be very glad to know from the Minister why it was thought necessary to include disposal authorities in this section. I beg to move.

LORD SANDFORD

I am glad to respond to the Amendment of the noble Baroness. I cannot see that there would be any difficulty or objection if I were to speak at the same time to the Amendment of the noble Lord, Lord Winterbottom (though it has not been moved) without prejudice to his putting it down at a later stage if he so wishes. Therefore, with the agreement of the Committee, I should like to speak to both these Amendments together. They limit the defence provided in Clause 23 (2)(a) against prosecution for causing or knowingly permitting polluting matter to enter water.

As the Bill stands, if the person concerned has a consent from the Secretary of State or a water authority or a disposal authority and the entry is in accordance with the conditions, then he is not to be guilty of any offence. The Amendment of the noble Lord, Lord Winterbottom, would leave no defence based on a consent by a water or disposal authority, and the Amendment of the noble Baroness would leave no defence based on the consent of the disposal authority. Consent will be given by the Secretary of State only in very exceptional circumstances, so the effect of the Amendment of the noble Lord, Lord Winterbottom, would be virtually to remove the defence altogether.

One of the points which may have prompted the noble Baroness to move her Amendment may perhaps be met when I say that disposal licences are to be issued by disposal authorities only after reference to the water authority. So there seems to be no justification for distinguishing, so far as the defence is concerned, between these two types of authority. In either case the person who may otherwise be prosecuted for the offence will have taken all the requisite steps to obtain authority to dispose of waste or to carry on a prescribed activity referred to in Clause 23(5); and I do not think that it would be acceptable if, having done all that and having observed all the conditions imposed, he still were to be subject to criminal prosecution for the consequences of his act. I would therefore suggest to the Committee that it is not equitable or fair to accept either Amendment. I do not think that the noble Baroness made this point, but she is quite right in taking exception to the word "consent" in this clause, because (as we have been hearing in Part I of the Bill) the authorities do not give consents but licences and certainly the Bill needs amendment in that respect. The Government will undertake to move such an Amendment at a later stage.

VISCOUNT DILHORNE

I think that the removal, at this particular stage, of the water authority would go too far, because it would put in the hands of a Government Department the licensing arrangements; and that would be too centralised. However, I must say that I support the noble Baroness in thinking that it really should not rest with the disposal authority to give consent, using the terminology of the Bill, and I am strengthened in that belief by the speech which we have just heard from the Minister. I have not seen this point in the Bill, but if it be the case that the disposal authority cannot give consent without referring to the water authority, would it not be much better to let the water authority do the whole thing and grant all the licences? They would then have full knowledge of what licences are given. Is it not possible, without infringing the dignity of the disposal authority, to say: "You must apply. No doubt the water authority will pay a great deal of attention to your application. You pass the application for consent straight on to the water authority who will deal with it."? There would be a lot to be said for that. I should like to ask the noble Lord to consider that, at least.

LORD SANDFORD

That is certainly a point that can be looked into.

BARONESS WHITE

I hope it might be looked into because there might be real difficulties in this respect in administering this Bill when it becomes an Act if one brings in a disposal authority into Part II of the Bill. I made the point about the difference between consent and licence. It is true that in Clause 7(1)(a) it is incumbent upon a disposal authority to ensure that the activities to which the licence relates do not cause pollution of water, among other things; so the disposal authority has that obligation as well as an obligation to consult, which I have not yet bean able to "track" in Part I of the Bill. I do not propose to press the Amendment at this stage, but I hope very much that the Government will look at this carefully and possibly write to one or two of us who are specially interested in this, so that we know exactly what their reasons are and can decide whether it would be appropriate to put down this Amendment or another one at a later stage. There may be great difficulty in administration if this Part of the Bill remains unamended. I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

9.16 p.m.

BARONESS WHITE moved Amendment No. 135A: Page 29, line 33, after ("a") insert ("necessary").

The noble Baroness said: This Amendment is not so significant, but nevertheless it appears to us necessary to put it down as at least a probing Amendment. We are not happy about it. We feel that some such word as "necessary" should be inserted because various things might be a consequence of something which has been permitted but not a necessary or desirable consequence. It has been suggested to me that one might have a consent to certain work, say in a tidal estuary, which would lead to the excavation of waste in a building construction. It might be as a consequence of that excavation that the waste was then thrown in the tidal estuary. It might be very undesirable. It would not be a necessary consequence, but it would be a consequence, and it could be used as a defence.

The Government may or may not feel disposed to accept the Amendment, but I am asking that they should look carefully at this because we do not wish to offer free defences to persons who may be doing things which are damaging to water courses but who could then say, "You said that we could do so and so, and this is a result of our doing so and so ", whereas they might have done something quite different. It is not a necessary consequence of the original consent. It may appear slightly niggling, but I can foresee circumstances in which we would be offering a defence which ought not to be allowed to persons who might be carrying out some activity damaging to our water courses. I beg to move.

LORD SANDFORD

I do not think that this is a niggling point; it is well worth discussing. The dictionary defines a "consequence" as a thing or circumstance which follows as an effect of or result from something preceding". Presumably the noble Baroness is seeking by the Amendment to underline that this relief is not to be enjoyed if, although a consequence, the entry was not an inevitable result of the authorised act but might, with some additional precautions, have been avoided, and was in that sense an "unnecessary" consequence. I am not unsympathetic to that intention; but I do not think that the additional word is needed to lead the courts to that conclusion. No doubt the noble and learned Viscount, Lord Dilhorne, could help us on that point.

I suggest that the word is not needed because if the polluting entry was the result of some negligent or malicious way of exercising a power given by Statute, then the courts could be relied upon to recognise that it was not a consequence of an act so authorised but of the way in which the person concerned had acted, In any event, the acts authorised by the Statutes and Instruments mentioned are either of a kind where there is little room for controlling what enters in consequence of the act (for example, if wow' is to be pumped away from an area on which some structure such as a dam is being erected, it has to be removed in the state in which it is found there); or, if there is scope for reducing the effects of the discharge, provision is likely to be made in the local Act or order, as is normally the case. This latter course is, I think, the proper procedure. If, however, acts are authorised by legislation, the person concerned ought not to be penalised because of their consequences. The legislation ought, where practical and desirable, to specify the precautions to be taken against undesirable consequences In brief, I do not think we need this word, and I think we can rely on the courts.

VISCOUNT DILHORNE

The noble Lord suggested that I might express a view, and I will express an unconsidered view. I must say I am not very happy about his explanation. One particular act may have a whole series of consequences. I think everyone recognises that in the ordinary use of the English language. It is recognised in this provision because it is "a consequence"; it is not "in consequence". If it were "in consequence", I do not think the word "necessary" would be necessary. But it is recognising it as "a consequence" which in itself suggests that there may be more than one consequence. I think if the noble Lord inserted the word "in" there, it would be totally clear. I must say that I do not like it being said, when drafting is imprecise, Well, you can rely on the courts doing what we want them to do", when the courts only have the imprecise drafting to look at. It is not satisfactory. The drafting really ought to be improved above its present standards.

BARONESS WHITE

I am greatly obliged to the noble and learned Lord for that admirable suggestion. I give notice that I will put the Amendment down for Report stage, so I give the Government plenty of time to think about it. Therefore, I beg leave to withdraw the current Amendment, which should have added the word "necessary".

Amendment, by leave, withdrawn.

9.22 p.m.

BARONESS WHITE moved Amendment No. 136B: Page 29, line 41, leave out ("local Act or ").

The noble Baroness said: The purpose of this Amendment is to delete the reference to local Acts in Clause 23(2)(b)(ii). This is a matter which I think we shall have to revert when we come to a question of sewers in Clause 37. Meanwhile, I should like to draw your Lordships' attention to the problems which can be raised by these various local Acts. I understand that the words "local Act" comprises not only Acts promoted by local authorities, but also by, for example, railways, canal authorities, harbour Acts, and so on. It can sometimes be very difficult to discover and find out precisely what the provisions of these Acts are—sometimes with considerable labour. But a number of them, I am advised, do in fact provide for rights to discharge in certain circumstances. Simply to say that if an entry is authorised by any provision of a local Act … which expressly confers power to discharge effluent into water …", and leave it at that, could surely leave us with a very unsatisfactory position in many places.

I should like to know what are the Government's intentions in this matter, because I think I am correct in saying that there is no other provision in the Bill—there may be, and if there is I would be happy to be told of it—whereby one can meet these local difficulties which, in a particular locality, might have quite serious detrimental consequences. After all, the condition of our water courses may be very different to-day from their condition when this local legislation was enacted, and what might have been of relative unimportance at that time may now become of considerable significance. In any case, we are far more conscious of the state of our water courses now than may have been the case quite a while ago when some of these Acts were passed. I should very much like to know the Government's attitude to this subject, and I beg to move.

VISCOUNT BLEDISLOE

I am puzzled by the noble Baroness's Amendment, though I have every sympathy with it. Simply striking out the words "local Act" will not do away with the local Act; it is necessary to repeal it. If there is provision for the local Act, I think one will have to go rather further than this Amendment.

BARONESS WHITE

I am sure the noble Viscount will appreciate that when one is dealing with a complex matter such as this the easiest way to have a discussion on it is to put down a general Amendment and leave it to the Government to work out how to carry it out effectively.

VISCOUNT BLEDISLOE

I entirely accept that.

VISCOUNT DILHORNE

Before the noble Lord comes to reply, I should be grateful if, in the course of his reply, he could say how this problem, which must have existed in 1951, was dealt with under the Rivers (Prevention of Pollution) Act of that year. I cannot recollect any express provision in that Act dealing with discharges of polluting liquid under local Acts. It may be that it is something that has been left out from 1951 to 1974, and if it has been left out for all that time without any ill-effects, it might be left out now. I do not know. But I hope that the noble Lord, when suitably briefed, will be able to throw some light on this problem.

If I may take up time until he receives his instructions, I do not think we ought, by a side wind, to take away any vested rights under a local Act to make a particular discharge into a particular water course. I do not think that that would be the right way to do it. I must say that I think it necessary, in view of the way some provisions get through in local Acts, to provide that a local Act should not override Clause 23 in the future. Otherwise we may find that Clause 23 is getting watered down by a whole series of local Acts.

9.27 p.m.

LORD SANDFORD

I am grateful for this opportunity to explain the position. I will start off by explaining the way in which this particular Bill is related to local Acts, and then do my best to deal with the question of how it was dealt with under the 1951 Act. I think we have to start from the proposition made by my noble friend Lord Bledisloe; that is to say, if Parliament in its wisdom, even though some time ago, has acceded to the petition of a person promoting a local Bill, including provision authorising a discharge, it would be wrong, at least without a special inquiry in each case, to render that provision null and void, thereby penalising the petitioner if he acts under authority which Parliament has given him.

We do not have a complete list of all these local Acts, and, as the noble Baroness, Lady White, implied, it would be an enormous task to prepare one of all the the instances where such authority has been given. It would not however be unexpected in, for example, a local Act authorising the construction of a new reservoir for provision to be made authorising water that has been muddied in the course of construction to be pumped out into the water course below the dam. But just to take an example of the kind of safeguards which are included in local Acts, the Welland and Nene (Empingham Reservoir) Act 1969 is a fairly recent case. The Act concerned provides in Section 45(2) that as little damage as possible should be done and where any damage was done compensation should be paid.

Subsection (3) of Section 45 requires all necessary steps to be taken to secure that the water discharged shall be as free as may be reasonably practicable of mud, silt, and polluting matter. Subsection (4) requires that in all instances, except an emergency, the terms and conditions of the discharge should be agreed with the river authority before it is made, and so on. So my right honourable friend feels that after Parliament has authorised this or that to be done by local Act, it cannot be rendered null and void at a stroke without an inquiry into each particular case. But we feel that the general principle to which I have referred, in the absence of any evidence of any undesirable consequences as a result of these, is insufficient justification for the continuation of the protection afforded under the earlier Act.

That is not the end of the matter, however. The noble Baroness is perfectly right when she says that some of these Acts were introduced a long time ago. They permitted things about which we are now more sensitive—for example, the protection of the environment—and which we should not want to see continued to-day. Provision for the tightening up of loopholes (if that is the right word to use) in such cases is contained in Clause 96(3) which reads: The Secretary of State may by order repeal or amend any provision of any local Act passed before this Act (including an Act confirming a provisional order) or of any order or other instrument made under an Act so passed if it appears to him that the provision is inconsistent with, or has become unnecessary or requires alteration in consequence of, any provision of this Act or corresponds to any provision repealed by this Act. I hope that that explanation is sufficient to satisfy the noble Baroness and the Committee, that the words "local act" ought to stay in, but that the defects in old local acts, which is what I think the noble Baroness was chiefly concerned about, can be made good by the exercise of the powers under Clause 96(3). I do not know whether the noble Baroness wishes to respond to that before I deal with the second point made by the noble Viscount, Lord Dilhorne.

BARONESS WHITE

I am indeed grateful to have my attention drawn to Clause 96(3) which I had not fully appreciated. That, so far as it goes, is a very useful provision. What worries me, however, is what possible guarantee have we that anybody will look at these Acts unless there is some scandalous situation somewhere which spurs the Secretary of State on to take advantage of Clause 96(3). I am thinking aloud here, but would it not be possible somewhere, later on in the Bill, to say that these people who make their discharges by virtue of private Acts passed a long time ago (the Empingham reservoir is a recent example, as the noble Lord himself freely admitted) should have to ask for consents like anybody else? I do not think that the long-stop provision in Clause 96(3) is likely to be activated sufficiently to take into account situations which may well be unsatisfactory. I am delighted to know that it is there, because it may deal, for example, with what I was going to raise under Clause 37, which is the local Act in Huddersfield. As a result of that local legislation, Huddersfield can discharge trade effluent of almost any description, so far as I can understand it, into sewers; and at the present time the local river authorities have no control whatsoever over what trade effluent emerges from the sewers of Huddersfield because they are covered by local legislation.

Although I am very grateful to the noble Lord for drawing our attention to Clause 96(3), and I shall not be pressing this particular Amendment, I think that we should exercise our minds to see if we cannot think of some method by which we can ensure that Clause 96(3) will be of real value.

LORD SANDFORD

The short answer to the noble Baroness is of course that the regional water authorities, where they find pollution going on through the exercise of some loophole in an old local Act, will be the people who in the first instance will ask for the Secretary of State to exercise his powers under that clause. If, on reflection, I can add any more detail to that by way of assurance to the noble Baroness I will certainly do so by correspondence before the next stage, and we can return to it if she is not satisfield. If I may take this opportunity to answer the question raised by the noble and learned Viscount about the 1951 Act, that dealt in Section 11(7) with local Acts in a similar way to the clause we have just been considering.

BARONESS WHITE

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.36 p.m.

THE EARL OF COURTOWN moved Amendment No. 136C: Page 30, line 4, at end insert ("or good quarrying practice.").

The noble Earl said: The object of this Amendment is to prevent a person from being guilty of an offence if— the entry in question is … in accordance with good agricultural practice or good quarrying practice. It is suggested that the operation of running quarries is similar to that of agriculture. The exemption from licensing is designed to cater for the need for mineral operators to deal with water and the excavating of minerals. Water is either pumped out of a quarry and disposed of straight away, or it may be used for washing the mineral on the site. In either case, once it has been pumped out it is discharged to a stream, to another quarry, or in some cases on to land. Up till now there has been no need to obtain consent for the disposal of such water. Under the terms of the Water Resources Act 1963 mineral operators were not required to obtain a licence in order to abstract water which interfered with mining, quarrying or other operations. This exemption from licensing still applies notwithstanding that the water is used for quarry washing.

The terms of Clause 23 are so widely drawn, however, that it would be possible to complain that an offence under subsection (1) had been committed if there were any element of polluting matter, however small, in the water pumped out of the quarry. This can cause considerable problems for an operator, because he needs to get licences or consent for all his de-watering operations owing to the varying conditions and the irregularity of the programme for de-watering. It appears to be recognised by river authorities that de-watering of this type does not produce harmful effects. In view of the exemption given to acts in accordance with good agricultural practice it is strongly recommended that a similar exemption be conferred on good quarrying practice, where the situation is largely comparable. It will still be subject to Clause 43 if the water authority finds that any relevant waters are likely to be polluted. I beg to move.

BARONESS WHITE

I am worried about this because although the noble Earl, Lord Courtown, used the word "quarry" I took him to mean mining operations as well. Supposing, for example, Rio Tinto Zinc had decided to proceed with mining operations in Snowdonia National Park, one of the apprehensions we had about the possible course of action was the effect that those mining operations could have on the streams in the National Park and on the Mawddach estuary. If I understand the noble Lord aright, he is saying that other than for the safeguards given in Clause 43 such operations should be allowed to proceed without any consent. I find it difficult to go along with that. There are other rivers in Wales where we have considerable lead content. We used to have considerable lead mining in parts of North and mid-Wales, and in the state of the world at the moment and the scarcity of one material after another it is not inconceivable that even lead mining might be resumed at some point in time and we might have serious pollution.

Therefore, I find it difficult to be happy about this Amendment. Besides which the noble Earl did not indicate who was to decide what was good quarrying practice. Under the reference to good agricultural practice, which is also an extremely wide provision, there is at least an arrangement whereby this must be consonant with the code laid down by the Minister of Agriculture, Fisheries and Food, and later in the Bill we are proposing to move an Amendment that it shall be in co-operation with the National Water Council. But I am not quite sure who is to determine what is "good quarrying practice". I should be happier if the noble Earl or his noble friend whose name also appears in connection with the Amendment could tell us about it.

LORD HENLEY

I am far from happy at this equation of good mining practice with good agricultural practice. I do not believe that in this context they are the same thing at all. In the old days very often a mining lease—

THE EARL OF COURTOWN

I said "good quarrying practice"; that is quite different from mining practice.

VISCOUNT BLEDISLOE

That raises a very difficult question: where does quarrying begin and end, and where does mining begin and end? I think that the noble Lord, Lord Henley, inadvertently put his linger on the spot when he spoke about "mining practice". Mining and quarrying are very much alike and it is difficult to say where one ends and the other begins. If we take the example mentioned by the noble Baroness—lead—or possibly copper in North Wales, and there is a lot of poison in copper; possibly tin in Cornwall and we speak about "mining tin"—or you may be quarrying it—I do not know. I think that this is a very big field. I am sorry to intervene like this.

VISCOUNT MASSEREENE AND FERRARD

Surely the difference between quarrying and mining is that quarrying is opencast whereas mining is underground, unless it is called "opencast mining".

VISCOUNT BLEDISLOE

Yes, but we have opencast mining in the Forest of Dean and there it is called "mining".

BARONESS WHITE

You can also have underground quarrying.

LORD HENLEY

It depends very much on what is the difference between quarrying and mining. To put it in a different way, very often old mining leases used the expression that something should be done "in a good miner-like way". Similarly very often the soldier's instructions were that he should behave "in a soldier-like manner". The two expressions, "a soldier-like manner" and "a miner-like manner", both have meanings and of course they are meanings which must be followed closely if you are to be a good miner or a good soldier, but they have no relation whatever to good agricultural practice in the context of this Bill. I do not want in any way to be offensive to the noble Earl but I feel that there is an element of trying to get on to the agricultural bandwagon, which I think would be a mistake.

LORD ENERGLYN

I should like to enter thtis debate. I think that what the noble Earl, Lord Courtown, means when he speaks about "good quarrying practice" in relation to water is that a quarry is run so that the quarry floor does not get flooded. If you are quarrying you are bleeding an aquafer into producing water; if that water is draining away naturally it is likely to lead to an artificial spring and it is questionable whether that artificial spring would be polluting the rivers. I think that this is what the noble Earl means by "good quarrying practice".

9.45 p.m.

LORD SANDFORD

I am sure it is necessary to try to raise the general standard of quarrying, but however successfully that is done I would agree with the noble Lords who have said it is not possible to regard quarrying and farming as though they were two very similar activities, both more or less equivalently related to water pollution. The special provision in the Bill has been limited to farmers for three good reasons. First of all, modern farming involves applying extensively to the soil substances which, in sufficient concentrations, would pollute water unacceptably. Secondly, agriculture still uses so much of the surface of the land, even in industrialised countries like ours, that in the aggregate farming is far more at risk than any other industry of inadvertently polluting water. Thirdly, it is still an industry in which a large number of people work in small units, on their own account. So I should like to put it to the Committee, as in fact noble Lords have already done, that the quarrying industry is different and does not satisfy any of the tests we have applied, and which have led us to conclude that farming should be treated in the way it is in the Bill.

It may be that extracting stone or other material by excavation has its special dangers for water; impermeable beds may be removed or fractured so as to allow polluting matter access to underground water. But this is something which should be capable of investigation, which the industry ought to investigate before it starts work on a particular site. The precise movement of, say, nitrate fertiliser after application to the soil presents quite a different sort of problem. Again, quarrying is not primarily an industry of one man, or of one-family units, and the bigger units can be expected to have a better capability of determining what water might be put at risk, what the risks would be in developing a particular area, especially as, compared with agriculture, quarrying occupies relatively little land.

Finally, I think the effects of quarrying are more likely to be sudden and irreversible than the effects of pollution by agriculture which, although they may be serious, build up over a period. It would be wrong, I submit to the Committee, once a threat to water has been identified, to allow quarrying to go on under the protection of a defence of the kind available to farmers and subject to those procedures. So for those reasons, and those raised by other noble Lords, I would hope that the noble Earl would not press this Amendment. If he can see any other way of securing rights for the quarrying industry which are not adequately secured by this Bill, we will be only too happy to consider them.

THE EARL or COURTOWN

I am sorry to hear that the Government will not accept this Amendment. It certainly did not receive a very favourable reception in the Committee. I believe there is considerable anxiety in the quarrying industry, particularly from the aspect that when one starts, having planning permission, to take out gravel from a place, one never quite knows to what extent that place will fill with water and where that water is going, where it has to be pumped to. But it is clear that this particular Amendment would not be acceptable to the Committee, and I therefore beg leave to withdraw it.

Amendment, by leave, withdrawn.

9.50 p.m.

LORD SANDFORD moved Amendment No. 136A: Page 30, line 6, after ("notice") insert ("which is in force when the entry occurs and which was").

The noble Lord said: I beg to move Amendment No. 136A, and to speak at the same time to Amendment No. 171A. We now come to the topic of good agricultural practice, and I would suppose we shall have a wider debate when we get to Amendment No. 140 in the name of the noble Lord, Lord De Ramsey. But just to speak to this particular Amendment at this moment, the general effect of Clause 23(2)(c) is to provide a defence against prosecution for polluting water if the act leading to pollution is in accordance with good agricultural practice and no notice has been served on the farmer under Clause 43. However, there may be circumstances in which the notice under Clause 43 ought to be cancelled, and Amendment No. 171A to Clause 43 would make this possible.

The purpose of the present Amendment is to make it plain that the defence of good agricultural practice is only removed while a notice is in force; the defence becomes effective again once the notice is cancelled and remains so unless a fresh notice is served and becomes operative. I think that is all I need say at this stage in view of the fact that the noble Lord, Lord De Ramsey, has down Amendment No. 140, when it will be possible to enlarge on that point if necessary. I hope I have said enough to make this Amendment clear. I beg to move.

BARONESS WHITE

May I make a little plea that we might be given some notice if the Government spokesman is going to take a very distant Amendment with the one he is moving. I have not been given notice so far of any grouping in Part II and I was quite unaware that it was going to be done.

LORD SANDFORD

I will certainly undertake to do that, and I offer my apologies for not doing it on this occasion. I hope the noble Baroness will agree that, although the whole idea is one that we should debate, this particular provision is quite a simple one.

On Question, Amendment agreed to.

LORD SANDFORD

This is a drafting Amendment. To be consistent with the rest of the subsection the verb should be in the present tense. I beg to move.

Amendment moved— Page 30, line 9, leave out ("occurred") and insert ("occurs")—(Lord Sandford.)

On Question, Amendment agreed to.

9.45 p.m.

VISCOUNT DILHORNE moved Amendment No. 137A: Page 30, line 14, leave out paragraph (d).

The noble and learned Viscount said: This, I fear, even at this late hour, I regard as an important Amendment. I will try to deal with it as shortly as I can, because I fear that at the next stage of this Committee I will not be able to be here owing to other duties, and I very much hope to finish the debate on this Amendment now. Paragraph (d) provides a defence to a person charged with the offence created by subsection (1) if the entry in question is attributable to events none of which that person could reasonably have been expected to prevent. The noble Lord will correct me if I am wrong, but I think I am right in saying that there is no similar provision in the 1951 Act. This is the kind of thing that makes me feel that the existing law is being watered down, and I wonder why.

In this connection, I feel I should draw attention to a decision of this House in another capacity, a case in which I had to sit, Alphacell Limited v. Woodward. The whole question was whether the company had caused or knowingly permitted a very serious pollution of what I thought was one of the most polluted rivers in this country, I think in Manchester. That was the question at issue; had they permitted that. It was held that they had. There was no question of having to prove that they had done it knowingly, intentionally, or that it had been negligently caused. The fact was that they had caused it. It was a curious case. They had installed a system under which a great deal of water re-circulated and was pumped round, and they had a spare pump in case of difficulties and settling tanks next door to the river. The day came when for some reason the roses which were supposed to stop debris getting into the pumps did not do so. Both pumps got blocked and out came this very highly polluted liquid straight into the river. As the law then stood, no defence like the one put forward by paragraph (d) would, I think, have sufficed. It was not there under the 1951 Act.

It is regrettable, in the light of the decision of this House, that an attempt is now made to water down the law as then declared. I think it regrettable for more than one reason. I can see the defence, "We could not reasonably have been expected to prevent that," being put forward in almost every case. It would be a very useful defence. Failure to anticipate the possible breakdown of a pump, leaves getting in when no one knew where the leaves came from, is the sort of defence that people could put forward. This is quite new and wrong. I hope that in the short time available the noble Lord will say that he will think it over again, and not be put off by the unkind treatment that the noble Baroness, Lady Young, received from doing that so courteously and so frequently.

LORD STOW HILL

May I add one word to what the noble and learned Viscount has said. I cordially support him, not only for the general reason that he gave that this was an undesirable watering down of what should be a strict prohibition, but also because this paragraph involves what is almost a contradiction in terms. No offence can possibly be committed unless the person charged can be said either to have caused, or knowingly to have permitted, the entry in question. One does not get anywhere near establishing that an offence has been committed unless the prosecution can affirmatively show either that the individual in question caused, or knowingly permitted, the entry. Both those are conscious acts of omission. You do not cause something just because you turn the other way and it happens behind your back without your knowing it. To cause something your will and mind must go with it. Equally, you do not knowingly permit something to happen unless your mind knows what is going on and you consciously permit it.

It seems to me—and I say this with great respect to the expert gentleman responsible for this language—rather sloppy drafting to say that it should be a defence if the entry in question is attributable to something which you could not have been expected to prevent. If it is attributable to something which you could not have been expected to prevent, how in the world can you have caused or knowingly permitted it? That language comes very near to being a complete contradiction. That is the second ground on which I hope the Government will agree that this paragraph should be omitted. It really is balderdash. It ought not to be in the clause at all. It reeks of loose thinking, and I ask the Government to say, not simply that they are going to think about it, but to say they are satisfied with the noble and learned Viscount's arguments, and that they will just put a pen through it and strike it out.

May I say one word on the succeeding Amendment in relation to this particular Amendment, because they go together. This seeks to introduce the words "without having taken all due care". There is a slight misprint in the Marshalled List; "the" should be "due". At least that seeks to import some reference to the conduct and conscious behaviour of the individual who is charged. You have at least to show that he did not take all due care. That would be a little more reasonable. This is a quite unjustifiable paragraph, and I very much hope that the Government will accede to the Amendment which has been moved.

LORD ENERGLYN

I too should like to support the two noble and learned Lords on this Amendment. In addition to the Alphacell case, I could recount a number of other similar instances which never reached the courts but which could easily have done so.

THE EARL OF COURTOWN

If my memory serves me aright, paragraph (c) in subsection (3) of Clause 3 is similar, and the Committee accepted it. I should have thought that this paragraph was essential. If someone has done all in his power to avoid pollution, he ought not to be made a criminal because of an accident or some other cause which he could not have avoided. If there is an accidental discharge from a works operated by a responsible company, it is the general practice for the firm concerned to inform the controlling authority as soon as possible. If such disclosure will lead automatically to prosecution for a criminal offence, is there not a danger that such discharges will be concealed and we shall be worse off?

LORD HENLEY

Am I right in thinking that there is a slight danger of creating an absolute offence if this paragraph is deleted, thereby weakening the whole of Clause 23?

VISCOUNT DILHORNE

If I may add a further word, I do not think the noble Lord is right. This matter of whether it is a criminal offence was discussed and considered in the Alphacell case, and it was there said that it is criminal only in one sense. It is like a public nuisance, as indeed it is if you put filthy water into a river. It will be a retrograde step if this provision is included, because I do not think that the 1951 Act had in it anything comparable. Under the 1951 Act, there were very few prosecutions indeed for many years, and it is only in the last year or so that the number has reached anything lke three figures. I do not want to see the door opened wider than it now is for the defence. The existing statutory provision is working very well and I should like to see it kept like that.

It is not an absolute offence, in the sense that you do not have to do anything. As my noble friend has said, you have to cause it or knowingly permit it, and in the Alphacell case it was caused by installing a system whereby the overflow was bound to take place unless it was successfully prevented. There has to be a causation under one head before there can be a conviction, and there has to be knowing permission under the other limb of the offence. That is all that is required, and once the issue is complicated by this new kind of defence it is making a tremendous relaxation.

LORD SANDFORD

I confess, as a layman, that on these legal matters I am in the rather uncomfortable position of being advised by the noble and learned Lord, Lord Stow Hill, to do one thing, and by the noble and learned Viscount, Lord Dilhorne, to do another.

VISCOUNT DILHORNE

No. I shall be very content if the Amendment is carried.

LORD STOW HILL

I should like to point out, in view of the obscurity of my Amendment, that I am trying to support the noble and learned Viscount, Lord Dilhorne.

10.5 p.m.

LORD SANDFORD

I will take the advice of the noble and learned Viscount and will certainly agree to consider the Amendment, though I shall avoid the temptation offered me by the noble and learned Lord, Lord Stow Hill, to accept it here and now. I should like to add only two points to the discussion which we have had. I find myself torn between the noble and learned Viscount, Lord Dilhorne, on the one hand, who advised us one way, and the Law Commission—another august legal body—which advised us another way. It is primarily on the advice of the Law Commission, who were consulted about this Bill (because in so many respects it is a consolidating measure) that paragraph (d) has been included, not to narrow the scope of the offence provisions as they have so far been interpreted by the courts, but because the potential scope of the offence is so wide that the saving in paragraph (d) was thought to be necessary. I must say that our advice so far is that paragraph (d), if it had applied in the Alphacell case, would not have provided them with a defence. All I should like to say in conclusion is that this is recognised to be a difficult and evenly balanced point. I shall certainly take away with me all the points which have been made, and I readily agree to consider the point which the noble and learned Viscount made.

VISCOUNT DILHORNE

I certainly could not agree with the advice which the noble Lord has received as to the effect on the Alphacell case, on which I sat, it this defence had been available. So far as the Law Commission are concerned, I would suggest to the noble Lord that he ought to ask the Law Commission to reconsider their view in the light of what was said in the Alphacell case, if they have not already done so. It may well be that the Law Commission have been very busy; and the judgments in that case came out later. I am content for the time being with the noble Lord's assurance. If we get no satisfaction at a later stage, I shall follow my noble and learned friend (if I may call him that) into the Division Lobby to try to get his point of view acceded to; but I hope that we may get that without any dis- agreement. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD SANDFORD

It is now five minutes past ten o'clock. I beg to move that the House do now resume.

Moved, That the House do now resume.—(Lord Sandford.)

On Question, Motion agreed to, and House resumed accordingly.