HL Deb 24 January 1974 vol 348 cc1653-700

7.45 p.m.

House again in Committee on Clause 24.

THE EARL OF COURTOWN moved Amendment No. 141E:

Page 33, line 25, at end insert— ("Notwithstanding any order made in pursuance of the preceding subsection, subsection (1) of this section shall not apply to any discharge to controlled waters for a period of 5 years commencing on the date on which that subsection comes into force.")

The noble Earl said: I beg to move Amendment No. 141E. The object of this Amendment is similar to that which your Lordships discussed before the adjournment, to draw attention to the size of the problem involved by the transitional period. Many discharges into coastal waters, whether a local authority or industrial, are large in volume; indeed it was because of their large water usage that many industries were originally sited on estuaries. Moreover, a large number of discharges into these waters are at present uncontrolled. If these discharges are to be altered or treated differently, it is likely to necessitate extensive plant and machinery. The same applies to local authority and industrial discharges.

When the installation of an inland sewage works is being considered a five-year period is often needed to cover planning, design, construction and commissioning. The same might well apply in the case of the treatment of discharges into coastal waters. There is likely to be need for treatment which may present acute problems to local authorities and industrial operators. Five years seems a long time, but a period such as this would be necessary to cover all contingencies. To apply subsection (1) to all discharges before that period had elapsed might be inequitable, impracticable or inefficient. It may be the intention to take account of this matter by orders made under Clause 24(2), and I should welcome an undertaking from the Government to this effect, and if it is forth-coming I will withdraw my Amendment.


The effect of the Amendment would be to exempt discharges into controlled waters from being an offence for five years after the provisions had come into force in relation to other waters. There is one fairly considerable disadvantage in this Amendment, which is perhaps unintended by my noble friend: it would free from control the large number of discharges to estuaries and waters like the Solent and the Wash which have either started or been substantially changed since September, 1960, for such discharges were brought under control by the Clean Rivers (Estuaries and Tidal Waters) Act 1960. It would also give exemption to other discharges to controlled waters for five years even though they might otherwise have have been brought under control within that period by order under Section 6 of the Rivers (Prevention of Pollution) Act 1951. In these respects the Amendment would make a step backwards.

Even however if it were designed only to prevent further controls from being applied to discharges to coastal and other tidal waters for five years the Amendment would be unacceptable. It is a main purpose of the Bill to bring such discharges under control. It is of course true that tidal waters do not have the same sort of value to the nation as fresh waters—we do not drink them, or use them for watering cattle or irrigation, for example. But that does not mean, and I do not think that noble Lords would suggest, that it does not matter if we poison them. The Third Report of the Royal Commission put that matter beyond doubt.

I cannot think that it is acceptable to the House to defer for five years the start of the process of bringing discharges to tidal waters under control so that in due course we can bring those waters to the condition and quality that we should all like them to have. I cannot therefore advise your Lordships to accept the Amendment. With that explanation I hope that my noble friend will be willing to withdraw it.


As I have said, the object of this Amendment was to draw attention to the great deal of work, planning permission, and the like, that has to go on before many of these discharges can be altered. In view of the remarks of my noble friend I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


I beg to move Amendment No. 142. This Amendment brings the penalties for discharging trade or sewage effluent without consent into line with those for the general offence of polluting water under Clause 23. I beg to move.

Amendment moved— Page 33, line 31, leave out ("of an amount not exceeding £400") and insert ("not exceeding £400 or imprisonment for a term not exceeding three months or both.").—(Lord A berdare.)

On Question, Amendment agreed to.

7.52 p.m.

BARONESS WHITE moved Amendment No. 142A: Page 33, line 33, at end insert ("or in the case of a continuing offence punishable on summary conviction, £50 for each day on which the offence continues after conviction for the offence").

The noble Baroness said: This Amendment also has been put down with a view to bringing the penalties under this clause in line with those of Clause 23. If there is any reason why this should not be done perhaps I could be told what it might be.


The Amendment of the noble Baroness provides for continuing penalties, and although in the River (Prevention of Pollution) Act, 1951, there is provision for continuing penalties I am advised that it is very unlikely that the courts would regard repeated offences against the prohibition of discharges made without consent as constituting continuing offences. Certainly we have no record of any continuing fines imposed by the courts under existing water pollution legislation. If someone who has been convicted of making an illegal discharge carries on making it and is taken back to court, the courts have treated discharges made after conviction as constituting a distinct offence—even if a more serious view might be taken of them—since the succeeding offence was committed in full knowledge of its illegality.

It is true that the threat of a penalty building up day by day could be a deterrent against the persistent polluter; on the other hand, if the offender continues the discharge for any length of time we would expect the water authority to use their powers under Clause 39 to take emergency action to prevent or mitigate that discharge. Furthermore, the water authority have the option, if they are dealing with a serious offender, to initiate action to indict him. On conviction on indictment, the fine is unlimited and the offender can be sent to prison for up to two years. We feel that the Amendment that I have just moved is sufficient in this case, and we do not think that the noble Baroness's Amendment is likely to have great advantage.


May I add just a word on this occasion in support to the noble Lord who has just replied. I would say that it is most important that courts who have to deal with this matter should be able to say straightaway what the maximum penalty is, and it should be clearly prescribed. If this Amendment were made to the Bill, it would be very difficult for them to know what was the maximum fine they could impose. I personally do not believe that if this amendment were made that they could possibly impose a fine of more than £50 without proof of pollution on every day subsequent to the first conviction on which it was alleged to have taken place. I do not think that could be done. Therefore, although I see what is behind the Amendment, it is one which I do not think should be accepted.


Could one or more noble Lords explain to me just why, therefore, one can have precisely that penalty at the top of page 32? Why is it appropriate "in the case of a continuing offence punishable on summary convictions", that one should be able to impose a fine of "£50 for each day on which the offence continues after conviction for the offence", but not in this case?


If I might answer the noble Baroness, I would say that it is wholly inappropriate in that case, too, but I did not spot it. I think the tendency has been (it certainly was at the time I held office) to get rid of these continuing offences because of the difficulties encountered in applying them.


If I may answer the noble Baroness, too, my advice is quite different from that of the noble and learned Viscount. I am advised that a continuing offence may occur under Clause 23, when someone is required by regulations under subsection (4) to take certain precautions to prevent accidental pollution and refuses to take such precautions even after he has been convicted. Continuing not to take precautions could be regarded by the courts as a continuous offence. The same possibility might arise in regard to offences against subsection (5).


Yes. But supposing he refuses to stop discharging effluent and that fact can be proved? Surely that is also an offence, and a continuing one in the same sort of sense. I cannot see why not. I should not mind so much if the suggestion of the noble and learned Viscount were carried out, that it be eliminated from Clause 23(7). If it is regarded as completely undesirable to have this concept of continuing offences, it seems to me that the difference between the two types of offence is not so significant as to make it appropriate in one case and not in the other.

While I am on this matter of penalties, I have had more letters about the inadequacies of the proposed penalties in this Bill even though they are considerably higher than in previous legislation. Many people write to me to say, "Cannot some arrangement be made for these penalties to be reviewed and increased?" With the process of inflation continuing as it is almost bound to do, people are anxious that maximum penalties should be higher than they are in this Bill. This process need not necessarily be applied in all cases. But there is quite considerable public interest in this question, especially when large enterprises are getting away with it, as they are said to do, because it does not really cost them that much. Fifty pounds a day may not amount to very much, but at least it means that if one persists, one does so at a price. There is no dubiety about it. I would really feel happier if we had the penalty either in both cases or in neither case. Perhaps the Minister could take the Amendment back and ask the Department to have a look at that aspect.


I should just like to add something. I should like the Minister to take it back and to bring some consistency to these two provisions. I am on the side of the noble Baroness in the criticism of Clause 23(7) which we have passed. The noble Lord's answer with regard to that did not convince me at all that it was right. My recollection is that for years we have tried to gel rid of penalties which depended upon the number of days on which an offence had continued. I think that this is a retrograde provision. You get prosecuted for an offence and you get convicted of that offence. You may commit another offence afterwards; but once you have been convicted of the first offence, that offence does not continue, and that is that. You may do it again, and you may do it yet again, but before you can tot up the total amount of the penalty, under what they call a "continuing offence" (which does not continue), you have to find out exactly the number of days on which it has been committed. That is a very tiresome exercise, and is quite unnecessary. I suggest and I hope that the noble Lord will look at it. It is much better to apply a larger maximum fine than to require the courts to enter into calculations which are often wrongly determined.


Naturally, I listened with interest to what the noble and learned Lord has said. But I think there is a very considerable distinction between these two particular offences. The continuing offence arises when someone is required to take certain precautions to prevent accidental pollution. If they do not take those precautions, then there is a continuing offence while they do not take them. But somebody who is making an illegal discharge can do so on the Monday; then somebody can find that on the Thursday he is still making an illegal discharge. But that is a slightly different affair because he might not have been making an illegal discharge on the Tuesday and the Wednesday. All I can say to the Committee is that this is the way so far that the courts have considered it, as a distinct offence. But I will look at the continuing offence side because the noble and learned Viscount has drawn attention to it.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 24, as amended, shall stand part of the Bill?

8.1 p.m.


I am sorry to have to rise to my feet again on this clause, but I feel I must do so because when I drew attention to an omission from Clause 23, of the provision in Section 2 of the Rivers (Prevention of Pollution) Act 1951—of the deeming provision, whereby local authorities were deemed to cause or knowingly permit pollution in polluting matter which they were bound to receive or had consented to receive into their sewers or sewage works was discharged into a stream"— I was told that that was fully covered by Clause 24. I have now had a chance of considering Clause 24 and, so far as I can see, that is not the case. I do not accuse the Minister of doing so deliberately; he no doubt said what he did on the advice that he received, but I think he was misinformed. Clause 24(1) makes it an offence to cause or knowingly permit any trade effluent or sewage effluent to be discharged (i) into any relevant waters". That does not apply to a discharge into a sewer which goes into a sewage disposal works. Then, under paragraph (b): any matter other than sewage effluent to be discharged into relevant waters from a sewer …". That is a discharge from a sewer. Looking at that, I wondered how sewage effluent was defined, because this is only an offence if you discharge something which is not a sewage effluent. So I turned to the relevant clause, which is Clause 48, where sewage effluent is defined. It is on page 56; and it is defined as including, any affluent from the sewage disposal or sewage works of a water authority". In view of that definition, what is the "matter" which is referred to in Clause 24(1)(b), "other than sewage effluent", when the effluent is discharged from a sewer or sewerage works of a water authority and the water authority is responsible, we are told, for all sewage and sewage disposal works? I ask the noble Lord to give me a positive answer to that because I find it very puzzling.

I hope we shall not be given the answer that we can leave it as it is because the courts will sort it out. I think it would be quite impossible for the courts to sort out this, to me, incomprehensible language. But so far let us assume that there is some other matter than the sewage effluent which can be discharged from a sewer into relevant waters. That still does not touch the point I made, which was this. If all you discharge is sewage effluent, then you will not come within Clause 24; you are thrown back on Clause 23—sewage effluent from a sewer. Then you come back again to the need for a deeming provision. Supposing that the polluting liquid is discharged into a sewer and goes through the sewage disposal works and out. Unless you have a deeming provision, it seems to me (it appeared in the 1951 Act) that you can have the person in charge of the sewage disposal works, be it a local authority, water authority, or anybody else, saying, and saying truthfully, "I didn't cause, and didn't knowingly permit, this pollution"; and you are thrown back then on trying to find out who tipped it into the sewer. If you do find out who tipped it into the sewer, and you prosecute him, he will have the answer, "I didn't discharge it into the river or any stream. I merely put it into the sewer. I relied on the water authority or the local authority, or whoever was dealing with sewage disposal, to purify it before it was put in the river."

I feel, therefore that there is a real gap here which requires to be remedied. The answer I was given was that there was no need for any provision of that sort because it was all covered by Clause 24. I do not think it is. So I have two points so far which I hope the noble Lord will deal with. First, in view of the definition of "sewage effluent", what is the content of the word "matter" in Clause 24(1)(b) where the effluent is discharged by a water authority? The second is as to the need for the inclusion of that deeming provision.

The third point, which I think is very important, and which one does not see in this Bill, is this. Supposing there is pollution from a sewage works—take, for instance, Northallerton, just by chance; I do not know whether there is or is not, but supposing there is. Who is the right person against whom to start proceedings in relation to such pollution from a sewage works? Is it the intention that proceedings should be instituted only against a water authority for the area—the water authority which can consent to polluting discharges, and indeed make polluting discharges itself; or is it proposed that you shall be able to issue a summons against someone in the locality because the water authority may be many, many miles away? Before we leave this Bill we ought to have some guidance upon that.

I find it difficult to know what a water auhority can or cannot do. It is perfectly clear from the Bill that the water authority can make discharges from a sewage disposal works, as they are in charge of sewage disposal. But when we come to a clause such as Clause 47(1), we find, in relation to this, what is to me a really astonishing provision. It is this: This Part of this Act shall have effect with prescribed modifications in relation to discharges by a water authority in its area. So this Bill is to have effect in relation to discharges by a water authority with modifications as prescribed by regulations. We are not told what those are.

But I thought that for many years Governments of all complexions had set their face against amendment of Acts which have gone through Parliament, and have been considered by Parliament, being made by regulations against which you could only pray. It seems to me—and I am mentioning it now because it is related to what I am saying under Clause 24—that this raises a Constitutional question of considerable importance in relation to Parliament. I cannot remember for years seeing a provision such as Clause 47(1). I can only think that the reason for its inclusion in this Bill in this form is that no one has at yet thought out what modifications—that does not mean extension; it means a reduction of the powers in the Bill—are desirable in relation to discharges of effluents by water authorities.

Before we give water authorities these extensive powers I think we should be told what checks and controls there are over their exercise of the powers; and we should not remain content with being told, "Oh well, they will be prescribed by regulations which you will not see until this Bill is enacted." I think that is quite wrong. I am not asking the noble Lord to reply in detail now, because I know full well the difficulty there is in replying in a debate on the Question. That a clause shall stand part of the Bill, to important questions which are raised, and which have to be raised, without notice. I have mentioned that now—and I hope I have not been out of order in doing so—for the simple reason of giving advance notice that unless something is done about that the Government may find that, to put it at its lowest, a little time is occupied on that matter.


Perhaps it might be helpful if I were to give the noble Lord a little longer to ponder the points that have been put to him.


No, it is quite all right.

8.12 p.m.


I wish to raise a quite different point. I do not think we should allow Clause 24 to pass without at least a reference to what is here referred to as the "Dumping at Sea Act 1974". Of course this has not yet been enacted; it is still going through your Lordships' House. We discussed it on Tuesday evening, in the interval between our deliberations on this Bill, and the point that I feel one ought to make here is that if one looks at Clause 24(3) one sees that the Dumping at Sea Act (when enacted) will take precedence over this clause of this Bill. In other words, if a discharge has been authorised, including a discharge into tidal estuaries or coastal waters, by the Dumping at Sea Act, then the provisions of Clause 24(1) of this Bill, the Protection of the Environment Bill, will be of no effect.

The difficulty, as some of us saw during the proceedings on the Dumping at Sea Bill, was that that is regulated by the Secretary of State, whereas under this Bill the water authorities will have the prime responsibility for the condition of water in the tidal estuaries, more particularly, but also in the territorial waters. Therefore it means that there will be two different authorities, each of which will have responsibilities for the discharge of matter into these waters. This appears to us to be not a very satisfactory state of affairs and on the Dumping at Sea Bill we tried to secure that there should be at least consultation: the actual Amendment mentioned "agreement", but we made it clear that we would be satisfied with consultation. We feel that there should be some consultation between the two sets of authorities in these circumstances, and I thought it only right to draw your Lordships' attention to the fact as the Dumping at Sea Act is referred to specifically in Clause 24.

It might perhaps be helpful if I were to mention something that we learned during the proceedings on the Dumping at Sea Bill. That was that under Clause 24(1)(ii) the pipes through which discharges may be made into the sea outside controlled waters appear not to be subject to the Dumping at Sea Act, although one would have thought they would be. They are under the control of the water authorities, as I understand the position. As there was considerable misapprehension about that in our discussions on Tuesday under the Dumping at Sea Bill, I thought it might be helpful if I made that cleat in referring to this clause.


Like my noble friend, I am no lawyer and I should find it difficult to cross swords with the noble and learned Viscount. But my simple mind does not quite understand his difficulties. As I read Clause 24(1)(a) of this Bill it refers to "sewage effluent", and as he has himself said, this is defined in Clause 48 as including: any effluent from the sewage disposal or sewerage works of a water authority". So there is the control on any sewage which may be discharged into all the "relevant waters", and so on.

With regard to Clause 24(1)(b), which the noble Viscount also asked about, I understand "other matter" to refer to surface water, rainwater, and so on that gets into the sewers and or—this is subsection (1)(c)—into highway drains.


If it is rainwater that gets into the sewers and comes out in the relevant waters from the sewer, why is it not "sewage effluent" within the definition laid down?


It may not have gone through the sewage works. I will certainly have a look at this point, but from a simple man's point of view it seems to me that everything is covered by this Clause 24, as it should be.

The other point raised by the noble and learned Viscount concerned the question of proceedings. As I understand the position these would normally be taken against a water authority because it is the authority who are responsible for giving the permissions. The noble Viscount also raised the question of Clause 47, but I should like, if I may, to reserve my remarks on that until we come to that clause. However, in general I think Clause 47 is of some assistance to him in the case he was arguing the other day, namely that the water authorities would be both gamekeeper and poacher. In other words, they had too many hats; they were both sewage disposal authorities and water authorities, and he was suggesting that this might tempt them to give permissions for certain discharges which they ought not to give or that they would not impose sufficiently severe conditions. Clause 47, which we can debate more fully when we come to it, is intended to give the Secretary of State a general oversight over the actions of the water authorities in granting consents or making conditions to ensure that they do not act in that way.


I will not prolong the debate unnecessarily, but there are two points that I should like to raise. With regard to the first point, as to who shall be sued, of course the Government are not in control of that. What may well happen is that the local sewage works manager may find himself prosecuted. Is that contemplated? I suppose it is as the Bill now stands. The noble Lord has said that he thinks the water authorities will be prosecuted; I should think myself that someone who suffers from a polluting discharge in the river will go for the chap who is near to him in his locality if he can be said to have caused it or knowingly permitted it.

With regard to the second matter, which I regard as being more important, namely, the effect of Clause 47, I am afraid that it does not help me in the least in the argument which I advanced before because as the Bill now stands there is no control over the discharges made by the water authority. We are told that the Bill can be modified by regulations, but I should be very doubtful whether giving the Secretary of State power to do what the noble Lord said could amount to modifying the contents of a Bill which does not contain any power for him to exercise control over disposals by the Secretary of State. The noble Lord has said that he is going to look at that point. As the Bill now stands it does not satisfy me to be told that something under a clause can be done which under the clause as it now stands I do not think could be done. This is something which ought to be in the Bill, and I hope that a new clause will be tabled.

Clause 24, as amended, agreed to.

Clause 25 [Control of sanitary appliances on vessels in England and Wales]:

8.20 p.m.

VISCOUNT ST. DAVIDS moved Amendment No. 142B:

Page 33, line 45, at end insert— ("(2A) Nothing in subsection (2) of this section shall apply to commercial freight-carrying vessels.")

The noble Viscount said: I want to speak both to this Amendment and to Amendment No. 142C, because they are in fact alternatives. I have tabled both of them and am offering them to the Government to see which of them they like best. They are both taken from various other regulations and I believe they both have much the same effect. If the Government think one has a better effect than the other, we will have that one.

The simple purpose of the Amendments is this. There are a number of seaports where craft will not be controlled in regard to their sewage effluent, but there are certain seaports where under this Bill they will have to control their sewage effluent. These seaports are those which are up waterways outside the tidal areas; the largest is Manchester, at the top of the Manchester Ship Canal. Among quite a number of others is Gloucester at the top of Gloucester and Sharpness Canal. There is considerable argument that these ports will be at some disadvantage because if a ship is to go to these ports, it has to be fitted with equipment which will make sure that its sewage does not go straight through to the water, but stays within the vessel, and is either discharged ashore somewhere or at sea. A number of ports feel they will be hit badly because vessels will not go to them if they need to have this additional equipment.

There are ships which go regularly from one port to another and where there are regulations on a certain route. One can expect those ships to be fitted with whatever equipment is required for that route. There are, however, a great many other ships, tramp steamers in particular, which trade hither and thither, wherever the traffic takes them. If they are offered a cargo for one of these up-river or up-canal ports, they may well have to refuse it, or may well have to say that they will drop the cargo, say, at Liverpool instead of Manchester, so as not to have to go up the Manchester Ship Canal, simply because they are not fitted with the right equipment. This puts certain of these ports at a disadvantage.

If this were only a matter of one port against another, I should not myself feel very strongly about it. It might be thought better for the country that ships should not go up these waterways. But that is not at all the position. These internal ports, those which are up waterways, have a particular value, because in general they are the ones which are closest to the manufacturers, closest to the places where vessels take on cargo and to the eventual destination of the cargo. They are thus performing a valuable job because cargoes are carried further in a ship, and not so far on, for example, the roads. When one considers the number of lorry loads carried in a big ship, if one takes that cargo in a ship another 10 or 20 miles inland, one is saving many, many thousands of lorry miles. This is valuable for several reasons. One is fuel-saving; the ship uses far less fuel than would lorries. There is also the very considerable pollution angle. Whichever way one looks at the matter, the ship is less polluting than the lorries. If we stop a ship going up these waterways because her sanitary arrangements are not the same as those of inland craft, we are possibly causing far more pollution by polluting the air than we would be saving by not polluting the water. Therefore, there is a considerable case for one of these two Amendments to be moved into the Bill.

There are a number of bodies interested in this question—the British Waterways Board, the Chamber of Shipping and so on. I am not asking too much because in fact these clauses are already to be found in a number of regulations. For example, the East Suffolk and Norfolk River Authority has a clause which exempts vessels which ordinarily voyage to seaward beyond the port of Great Yarmouth. There are a whole number of others—the Severn River Authority, the Lancashire River Authority and the Trent River Authority, for example, have similar clauses. So there it is. Do we want to encourage these inland ports or not? Surely we should look to some extent to the future. In the future we will need to have our ports spread further inland. We are hoping to build great cargo-carrying canals, particularly in the North-East, to take inland cargoes from the Continent. If we are going to do this sort of thing, how will the craft need to be fitted? That is a question we must face. Are we going to carry on with the exemptions which these various authorities have made, or do we think we must stop this pollution, possibly at the risk of other pollution, by discharging our cargoes further to seaward at the coastal ports, thus, to my mind, having the greater pollution of heavy lorries on our roads? I think it would be a good idea if I moved the first of the two Amendments and left it to the Government spokesman to say which he would like. I beg to move the first Amendment.

8.28 p.m.


I should like to support my noble friend in the Amendment which he has moved. There is little I can add to the extraordinarily cogent argument which he advanced to the Committee. But if one looks at Clause 25, the position at first sight is a little complicated. Under subsection (1) water authorities may make by-laws applying both to streams and controlled waters. A stream does not fall within the definition of controlled waters, but tidal waters do; so one has, as it were, the conflict between streams and tidal waters. It is from that that the problem arises.

If one looks at subsection (2) one finds that, as from the end of 1978, all streams are to be subject to this provision, that one must not use upon streams a vessel which contains water closet facilities. Then it is still further complicated by the fact that if one looks at subsection (3), one finds that the Secretary of State, together with the Minister of Agriculture, can make regulations which will supersede any by-laws made under subsection (1).

As I understand it, the net result of all this is that, as from the end of 1978, there will be a prohibition extending over the whole country from using vessels with these facilities upon any streams. My noble friend described them as inland waterways, and that would seem to be the effect of the definition of "streams" in Clause 48 of the Bill. Therefore streams will be out for the purpose of vessels fitted with these facilities. I suppose it is always possible that before the end of 1978 water authorities will have made by-laws relating in their case both to streams and to controlled waters, and after the end of 1978 the Secretary of State and the Minister may have made regulations with regard to controlled waters, in which case one will have the control applicable not only to streams but to controlled waters as well. "Controlled waters" for this purpose really means "tidal waters". I should have thought that my noble friend had an extremely powerful argument when he advanced the proposition that it really was against the public interest to discourage cargo-carrying vessels from taking their merchandise up inland waterways so as to be able to unload at any available port nearest to the manufacturers who wanted to use that merchandise. As he pointed out, there is a pollution advantage: there is a saving of oil, and these days the saving of extra congestion on roads, and it would be very unfortunate if in those circumstances cargo-carrying vessels could not use inland waterways.

But there is disadvantage. The provision may operate extremely unfairly against at any rate one public authority concerned, the British Waterways Board, which my noble friend mentioned. They have the Gloucester Severn ports under their jurisdiction. In their case there is the additional complication that Clause 48 provides that tidal waters include enclosed docks abutting on tidal waters, and it has been pointed out in correspondence which I have received that that gives rise to doubt as to the meaning of "enclosed docks" in that context. At any earlier stage of this Bill we discussed what was meant by "tidal waters" in that context when referring to "an enclosed dock". It is, so I understand from the correspondence, arguable that the Gloucester Severn dock area could be said to constitute an enclosed dock which abuts upon tidal waters. If so, then the prohibition against using these vessels on streams would not be applicable. But the British Waterways Board are after all a public authority responsible for the use and investment of substantial sums of public money, and they feel hesitant about making investments of that sort when there is this uncertainty about what is meant by an enclosed dock which abuts upon tidal waters, and for the reasons which I have given I hope that that doubt will be resolved by Ministers.

I am also told in the correspondence which I have received that Goole Harbour comes within the same area. There is doubt as to whether or not Goole Harbour could be said to come within the definition of "tidal waters", and that doubt also ought to be resolved. For those reasons I greatly hope that the Minister will be able to say either that he will accept the Amendment actually before the Committee—which I should have thought was more effective than the second Amendment in the name of my noble friend—and that he will be able to accept it here and now, or alternatively that he will be able to say that he will look at the matter more carefully and say that a change can be made at a later stage of the Bill.

There is only one other observation which I desire to make. The representations made to me, and I believe to other Members of your Lordships' House, come not only from the British Waterways Board but from a number of other private associations mostly, concerned with other types of vessels, notably associations concerned with pleasure craft. Is there any reason why pleasure craft should not be excluded from what is, in effect, the ban and should not be prohibited unless they have a sealed cistern installed relating to their water closet facilities. The argument is that after all they contribute, so I understand, very little to the pollution of inland waterways, and it is a serious disadvantage if they have to have seals superimposed before they may use them. My noble friend's Amendment would probably cover most of them. They differ, of course, in that some are propelled only by mechanical power, though some are propelled by the use of sails. But it is open to question, I would submit to the Committee, whether they should not also be excluded from the purview of Clause 25 on the ground that the difference that they would make is very small in relation to the general problem of pollution of waters that we are considering. I put that point before the Ministers for consideration, and I would be glad to have their observations.

I would add only one final comment: few by-laws have so far been made under existing powers to create restraints of the type that we are discussing in Clause 24. Inquiries have taken place at the instance of the Department concerned, and in two of the inquiries I believe I am right in saying that recommendations were made that the Minister should exclude craft of the type that my noble friend was referring to when he moved his Amendment, and also pleasure craft. In both cases the Minister concerned declined to accept the recommendatiion that there should be that exclusion. Obviously, therefore, the Department has given consideration to it and I would be most grateful if we could have reasons given to the Committee as to why the inspector's recommendation was not accepted. Speaking for myself and, I feel sure, for my noble friend as well, we should like to consider those recommendations in case we felt it was desirable in the interests of those who are immediately concerned to revert to this matter at a later stage of the Bill. I beg to support the Amendment.

8.38 p.m.


The noble Viscount, Lord St. Davids, invited me to say which of these two Amendments I prefer. I have to say to him that I do not like either of them, and I hope I will be able to satisfy the Committee that they should not be accepted. However, that is not to say that I do not agree with the noble Viscount, because I do agree that we have here to resolve a conflict between two desirable environmental objectives. One is to reduce the pollution being caused to our inland waters by the craft that ply them; the other is to secure the maximum commercial use of our inland ports and waterways. I hope I can leave the Committee reassured that we intend to pursue the second objective and that it will be practicable to improve the Bill by different Amendments to that end.

To revert to the first objective of reducing the pollution of our inland waters by the use of sanitary appliances which discharge straight into them, in doing this we are following the direct and specific recommendation of a working party on sewage disposal set up by the Party opposite and chaired by Mrs. Lena Jeger. They were quite specific that this practice of allowing craft of any kind to discharge their lavatories straight into the inland waters should cease, and the Bill provides for it to cease, as indicated in Clauses 25 and 26. I should like to put it to the Committee that it would be quite incongruous to apply that recommendation, as we intend to do, to small two-berth pleasure launches and at the same time to allow the much larger commercial craft with which the noble Viscount's Amendment is concerned to go scot-free. I think that would be unfair, illogical and unjust.

It does not seem to us to be unreasonable or unfair to require that the owners of commercial or other vessels working on inland waters should make the same sort of arrangements between now and 1978 as are being required of other pleasure craft, by fitting them with chemical closets or holding tanks for sewage, rather than discharging sewage into the water. If the boats are too small for alternative facilities to be provided, or the owner chooses not to provide them, then the sanitary stations that are to be provided under Clause 40 will be available on shore. So to put it briefly, it is my right honourable friend's view that it would be wrong to discriminate in favour of commercial vessels after that date and to allow them to continue to pollute inland waters.

On the other hand, it may well be right (I think this was the main purpose of the noble Viscount's Amendment) to discriminate in favour of certain inland ports. He mentioned the position of the Manchester ports at the end of the Manchester Ship Canal, and his noble friend mentioned Goole. The intention behind the provision in Clause 25 is to protect amenity, but it is not intended to impose the prohibition to achieve that for the sake of it on ports which are to all intents and purpose tidal ports, except that they are separated from the tidal waters by a lock or by a short stretch of canal, the protection of which in this way can serve little amenity purpose. So, subject to what I have said above—namely, that the Government are quite firm in their intention to adopt the recommendation of the Jeger Committee—my right honourable friend would be prepared to consider the question of such ports as the noble Viscount has mentioned, with a view to proposing an Amendment in due course which would clarify their position, and go, I think, as far as it is practicable to go in pursuit of the objective which the noble Viscount was pursuing in moving these two Amendments. I hope that, with that explanation of why we propose to go at it in another way, he will feel able to withdraw these Amendments.


I personally feel rather satisfied by that. I must say that, so far as the discharge of sewage into these waters goes, I am very keen that it should be stopped, and I was moving that it be allowed to commercial craft only because I thought we might have to bear this addition to the sewage in order to get the craft un to these harbours. If the noble Lord tells me that what I want to do can be done some other way, then I am happy indeed. I have no wish to have any more craft discharging sewage into the inland waters than necessary; let us get rid of as many as possible. But certainly we must look to the future. There are going to be more of these inland ports if we are to have a successful industry. The big canals on the Continent now can take 1,300-tonners. The day must come when these craft are able not only to arrive at our coasts but to move further inland, and if this is so we must have some way of allowing for the fact that these are largely sea-going vessels and will be equipped as sea-going vessels. Provided that there is some method of making sure that they can get to our inland ports, and that those inland ports are not discriminated against, then I am happy indeed to hear what the noble Lord says. If he does not like my two Amendments, let us wash both of them out; I am not in the least worried. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD SANDFORD moved Amendment No. 143: Page 34, line 38, after ("twenty-eight") insert ("or twenty-five").

The noble Lord said: I beg to move Amendment No. 143. If the Committee will allow me to be slightly out of order, may I take this opportunity of adding something which I ought to have added in my answer to the noble Viscount, Lord St. Davids? In answer to the request from the noble Lord, Lord Stow Hill, for details about why the Secretary of State disagreed with his inspector's recommendations, may I send him the decision letter.


Thank you very much.


Schedule 8 to the Water Resources Act 1963 prescribes an objection period for draft orders of 28 days from publication in the local paper or 25 days from publication in the London Gazette. As it stands, the Bill extends the period of 28 days to six weeks, but it omits to adapt the period of 25 days. The Amendment would provide a six-week objection period from publication in the London Gazette for the purposes we are at present considering. I beg to move.

On Question, Amendment agreed to.

8.47 p.m.

VISCOUNT ST. DAVIDS moved Amendment No. 145A: Page 35, line 10, leave out ("and").

The noble Viscount said: I beg leave to move Amendment No. 145A, and with it I should like to discuss Nos. 145B and 146B, which go with it. The purpose of these Amendments is to make some distinction between what goes down the lavatory and what is simply sink waste. The one is polluting in any sense; the other causes extremely little pollution. Personally, I had always thought it was rather polluting, but after reading the various reports of experts which I have seen it is quite clear it is not so; the amount of pollution produced by sink waste is remarkably little.

There is one further difficulty about trying to deal with sink waste in the same way as lavatories, and that is that it produces a much larger volume of water. If you try to put your lavatory effluent into a tank you do not need an enormously large tank, but if you try to put your sink waste into a tank you have to have a tank something like the size of your freshwater tank; and in a small craft that becomes a very considerable burden. It could indeed become dangerous, because a tank like that inevitably has to be free-flowing internally and that in a small craft starts to affect its stability. I see enough small motor cruisers moving about from my house on the side of the canal; I see them loaded with people on deck, and sometimes when I see all their crew and passengers up there I wonder how much stability the vessels have left. To put a sink waste tank down below, reducing the vessel's stability by the free flow of water, would cause it to go from one side to another. You may even get some of them turning over. You may find that you have added a considerable danger.

Sink waste has been commented on in several quarters. One of the most authoritative comments recently was in Windermere where the Inspector concerned reported that the views of the Director of the Fresh Water Association at Windermere were sought on likely pollution. I will not read all of this report which is entitled Effect of Sink Wastes on Inland Waters. The Inspector wound up with a short conclusion, that the Director had concluded that although it was desirable to prevent discharges of urine and faeces into lakes and canals, there was no logical reason to ban the discharge of sink wastes; in other words, though some of us may have thought it polluting, in fact it is not.

This is all the more clear because we have some evidence of what happens when a waterway system is completely full with craft. We know that many of our inland waterways are under used at the moment, and we begin to wonder what it would be like if they were all fully used. We know, because there are some fully used ones. The Broads are fully used. So, for example, is the Welsh Canal at Llangollen. Somebody compared it to a motorway; it is rather like that at times. The Welsh Canal at Llangollen holds just about every possible craft and continues to work. It is also unusual in the fact that it is a water supply canal, providing water to a public water authority. It is filled from the upper waters of the River Dee, and it runs the waters of the River Dee into the public reservoirs of the Mid-Cheshire Board.

The Mid-Cheshire Water Board seem entirely happy with this arrangement. There the water comes down 40 miles of waterway past every imaginable cruising craft. At the moment their lavatories are not controlled. I hope we shall put an end to that, but they seem perfectly happy not only with the present position but also that sink waste should continue to pour into that waterway, and as a result go into their main reservoir. If that is so, and it is possible for a waterway like that to continue to receive sink waste, even though that waterway is accommodating every craft that it can hold, then I think there can be little objection to saying that really we do not need the enormous tillage tanks which would be necessary if we leave the Bill as it is. Let us certainly have chemical closets on the motor craft to prevent lavatory effluent from going into the waterway. But for sink wastes, the volume is large and to deal with them might be dangerous in some of these craft. It might certainly involve far greater expense than dealing with the much larger volume of liquid, and very little harm is being done anyway.

As I say, before I saw the report I personally would have felt more strongly about sink wastes. But, there it is; it seems the experts are happy. I see no reason why this Amendment should not be included in the Bill.


I support the noble Viscount's Amendment. I must declare an interest. I am a member of the Inland Waterways Association who have a concern in this matter, and I am also a boat owner using the canals and rivers of this country.

There may be some misunderstanding on this whole question. The rubric to Clause 26 reads: Control of sanitary appliances on vessels.… England is covered by Clause 25 and Clause 26 refers to Scotland.

Then when one considers the definition of a sanitary appliance, Clause 25(6) says: Sanitary appliance' means a water closet or other prescribed appliance which is designed to permit polluting matter to pass into the water on which the vessel in question is for the time being situated. There have been a number of investigations into this matter, and at a Public Inquiry in November, 1972, the Inspector involved concluded that no case had been made for a by-law to prohibit this discharge of sink waste. In October, 1973, the Secretary of State agreed with the Inspector's view. Furthermore, in the Government's consultation paper which preceded this Bill, and which dealt with pollution from boats, toilet discharges only were mentioned. The Inland Waterways Association were specifically told that sink wastes, etc., were not to be dealt with.

I want to make it quite clear that all of us are opposed to the direct entry into river or canal water of human excrement. The sea toilet in my view is quite out of bounds on our waters on the Thames. It should be out of bounds too on all the canals. But it is quite a different matter when one considers sink waste. I ought to mention that not only does the Inland Waterways Association take this view, but they are supported by the British Waterways Board, the Royal Yachting Association, the Ship and Boatbuilders Association, the British Hire Cruiser Federation, the Association of Pleasure Craft Operators, the Association of Waterway Cruising Clubs and ourselves.

Quite apart from the effect of discharging sink waste, other questions are involved. If it were a significant matter one would be entitled to ask boat owners to convert the apparatus in their cruisers to contain the tanks large enough to take sink wastes. They would need to be very large tanks; they would need to be at least as large as the water tanks. The point about the instability of craft has already been mentioned. This is particularly true of a craft which sails, for example, on the Norfolk Broads where you have the impact of wind causing the boat to heel, which causes the water to splash about in the tank. There is a real stability problem.

It would be invidious in view of the non-need for this thing, because sink water really is not polluting, to ask the many thousands of boat owners, and in particular the small boat owners to make unnecessary conversions. Cruising on our rivers and canals is now a pastime or sport for many people who could, to use an invidious phrase, be called members of the working class. It is a great pleasure to them, and the expense involved in converting unnecessarily would be an unwarranted burden. As I said just now, I have the feeling that there may be some misunderstanding about this matter. Was it ever intended that sink waste should be included? I do not want to waste the Committee's time, and it is late. If that is so I would be delighted to hear about it.

9.0 p.m.


I am grateful to the noble Viscount, Lord St. Davids, for giving me this opportunity of confirming categorically that it is not the intention of my right honourable friend to use this power to bring sinks or showers within the definition of sanitary appliances whose use on vessels would be prohibited. This is where there has clearly been a major misunderstanding, and I am glad of the opportunity to set it right. It perhaps arises from the fact that the Jeger Committee, which I have quoted, and on whom we have relied very much for the line we took on the previous Amendment, included kitchen waste among the things that they said ought not to be discharged from boats into inland waters. But the noble Lord is right, it has now been established that in fact these discharges are not, in themselves, polluting, and both noble Lords have quoted convincing evidence to that effect.

However, that is not to say that there is not a case for my right honourable friend to take powers in this Bill, which he does in this clause, to prescribe other appliances besides water closets which might in future need to be brought under the same sort of control. An example of that is an appliance which sometimes combines—not very generally, but it is in existence, as the noble Viscount will know—the functions of a water closet with that of pumping out the bilge. I think that it is conceivable that there might in future be such concentrations of boats on inland waters not moved by tides or by any substantial river stream that the discharge there of bilges by such a sanitary appliance would need to be brought under control.

It is for that purpose that I must advise the Committee to retain in the Bill the powers which the Secretary of State will have if this clause is left unamended. I am grateful to the noble Viscount for giving me this opportunity of assuring the Committee that, despite the recommendation of the Jeger Committee in this field, it is not my right honourable friend's present intention to prohibit the discharge of kitchen waste, sinks and showers, and so on, from small boats into inland waters.


It is not what my noble friend says on the floor of this House, it is the way the courts interpret something. I had not interpreted this clause in this way; nor had the two noble Lords opposite. Is the noble Lord entirely happy that this should not be clarified in the Bill itself?


This was the point that I was about to make. The noble Lord took it out of my mouth. I am happy to hear what the noble Lord has to say about his Bill. Nevertheless, everybody would be happier if he could allow this Amendment to go in, either at this stage or at another stage, and take the more limiting powers to do the more limited things he wants to do. The main trouble arises in the areas like marinas where a very large number of craft are all moored in a lake side by side, and where, if large quantities of bilge water, quite apart from lavatory effluent, went overside it might cause trouble. All sorts of things are found in bilges—oil, and so on.

There are already powers under other legislation to prevent the discharge into the water of, first, solids, and, secondly, noxious substances of other types. Perhaps the Minister does not consider this sufficiently applicable, but would it not be possible to produce an Amendment which said that powers should be taken to, deal with areas of great concentration of vessels—and these could surely be defined—without leaving this vague power strewn right across the face of our waterways? Must we have this strewn over all the waterways of the country simply so that, if necessary, powers can be taken in one or two tightly packed marinas? This does not seem right. Perhaps the noble Lord can tell us a bit more before we decide what to do.


I shall be glad to do that, and I think that I can say a number of things that the Committee will find reassuring. The prescribing of these other appliances under Clause 93 will require regulations to be made by the Secretary of State under Clause 92, and those are all subject to all the safeguards that I went through earlier in this Committee—that is, local inquiries and confirmation; advertisement of proposals, and so on. There is no question of the Secretary of State being given powers here which he could use without further reference to anybody and which would apply all over the country. That is on top of the assurance that I gave that there is no intention to restrict discharges from sinks and showers. I think that the misunderstanding has arisen from the Report in the original Jeger Committee, and I hope I have disposed of that. I will look at the possibilities of giving even more reassurances to your Lordships' Committee, but I hope that what I have said will be sufficient for the time being.


Can we possibly get to this point: if the noble Lord wishes for powers which are going to be used only in narrow areas of great concentration of craft, why cannot we include this Amendment? Sink waste would then be excluded in the general areas, which do not worry the noble Lord, but he could still do what quite obviously needs to be done in these very narrow marinas. Why must we have a regulation which covers the whole place, when all we want Ito cover is these very small areas?


I should be quite happy if the Bill referred to "polluting matter excluding sink waste."


That is the very least we must do. I mentioned the appliance which can be used not only to discharge sewers over the side but also to pump out bilges, and where craft are concentrated in marinas that might be necessary. I should be grateful if the Committee would allow me to consider this point further. Meanwhile, perhaps the noble Viscount will not press this Amendment because as it stands it restricts the Secretary of State too much.


There is a difference between the direct discharge of sink waste into the water in a marina, and discharge into a river or canal. It would not matter too much if sink waste went into a marina. There are some arrangements whereby bath water or shower water is discharged into the bilges and the bilges are then pumped out, but that is objectionable because oil is picked up in the bilges. A distinction ought to be made because it is the direct discharges which are harmless.


I am grateful to the noble Lord. That shows that this Amendment as it stands will not meet the case.


We have heard some very reassuring noises and I am sure that the noble Lord, Lord Sandford, will try hard to narrow down the wording before we reach the next stage. Meanwhile, we can continue to keep the point in mind. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.10 p.m.

VISCOUNT ST. DAVIDS moved Amendment No. 15C: Page 35, line 14, at end insert ("and vessel" includes any houseboat however propelled but does not include any other craft for which the principal means of propulsion is otherwise than by mechanical powers.")

The noble Viscount said: In this Amendment I am concerned with sailing vessels which are in some difficulty, because if the Bill becomes law as it stands they will be asked to do the impossible. And that seems a very strong argument for excluding them. I wish to declare that I have no interest in this matter, although I have just had a sailing vessel built, for the simple reason that my sailing vessel is a trimaran and sails upright. When I had her designed I specified that she should be fitted with a chemical closet. I seem to have made myself into the ultimate expert on this very limited subject, because when the designer looked at what I wanted he asked, "Is this not impossible?" I replied that with an old-fashioned sailing craft, such as the Prime Minister uses, it would be impossible because such a craft heels over too much, but a trimaran sails upright.

Of course there is a saving in weight with a chemical closet which is important to trimarans, and it is also somewhat cheaper. So we sat down to consider at what angle a sailing vessel could sail before a chemical closet became unusable, and we discovered that a trimaran heels so little that she could use a chemical closet, whereas keel boats could not. Being one of the few people who have sat down and done the sums on the heeling angle at which a chemical closet would spill itself, I can possibly claim to know more about this subject than anybody else. You cannot put a chemical closet in a sailing vessel. I beg to move.


I am afraid that I cannot agree with the noble Viscount, because if he bought a Porter Potty Continental, as I have done, he would find that even if it is quite full of liquid it is possible to pick it up like a handbag and walk ashore with it; and it is perfectly clean and without any smell. So the noble Viscount has bought the wrong article. Furthermore, if one applies the noble Viscount's Amendment to the situation as it might be, I can see some young fellow buying a great big old sailing boat, which will hold six or eight people, putting the mast down, putting a wee outboard engine on the back and using it as an ordinary sailing cruiser.


If the noble Lord will excuse my interrupting him, in that event he would be caught by the Bill, because the fact of the matter is that under the Bill the boat would then be a motor craft.


It will be a sailing boat, but the principal means of propulsion will be the engine because he never intends to sail it. Furthermore, I think, quite seriously, that any sailing boat, if it is big enough to sleep on, will have an auxiliary motor of some sort, because otherwise it will not get back to port, and it will therefore become a sailing cruiser. Previously, my noble friend said he intended to apply this Bill to small two-berth pleasure, launches. I could not agree with him more: that is quite right. I have sympathy with the noble Viscount; but I am not certain about one point. Under this Bill the ordinary little day sailor need not have a toilet at all, and the answer to the small sailing Graft, I think, is, "Don't put in any toilet at all"; and that is what happens in the case of a great many boats now sailing on the inland waters.


I think the noble Lord is wrong, because to begin with my Amendment says, for which the principal means of propulsion and so on. I think that defeats the first argument that he put forward. Secondly, most day sailors are in open boats, which do not have lavatories. As a matter of fact there are very few sailing boats with cabins on our inland waterways. The only concentrations of them that I know of are a fairish number on the Broads and one or two small concentrations on the Lakes. There is just the occasional one on our great rivers; but in general there are very few of these sailing boats. However, they do have this special problem. So much so that, for example, the Norfolk Broads by-laws in fact exempt these sailing boats. The Norfolk Broads are an area which is as crowded as any area can be with boats. Again, we cannot look to the future and say, "There are very few boats here; what will happen if we have fifty times more boats?", as you could, for example, in relation to the canal system. You could not have fifty times more boats. You can hardly get one more boat on the Broads. So the problem cannot get worse. Yet the Norfolk Broads authorities are prepared to exempt, and do exempt, sailing craft—that is cabin sailing craft, not day sailing craft. Since they are not worried—and they are the people with the greatest concentration of craft of all kinds, and the greatest concentration of sailing craft—I do not see that this small Amendment would cause any trouble.

As to any form of chemical closet which can be used on board and will not upset if a vessel heels, I do not personally know of one. Admittedly, presumably one could have things that one could take on shore—though I am not quite sure where. But the only practical thing in a sailing vessel is the old-fashioned right-through closet, which empties out into the water. I do not like it myself—as I say, I have fitted a chemical closet in my boat—but these people will have keel boats and I suppose they must have these things. Perhaps the ultimate is to abolish the keel boat, but that does not seem likely to happen for a while.


I should like to ask the noble Viscount only one question on his Amendment, and that is whether the words any houseboat however propelled are intended to include houseboats which are not propelled.




I felt sure that the noble Viscount was underestimating the capacity of your Lordships' House to deal in an expert way with matters such as this, and I think my noble friend Lord Craigton has proved that I was right. He also, I think, if I may say so, underestimates the capacity of the small-boat industry and the small-boat owners, given four years' notice, to solve the technical problems involved here in both securing and sealing an Elsan on board a sailing boat before getting under way. I do not think these problems are insuperable, and my noble friend Lord Craigton has proved that already. Nor can we accept that any boats, whatever their business, whatever their form of propulsion, should be allowed to continue on inland waterways—or particular coastal waters, if it comes to that—to discharge raw sewage into the water.

It is true that an exemption on the lines proposed in the Amendment has been made in the by-laws applying to the Norfolk Broads which are crowded. They were confirmed four years ago. But the Severn and Lancashire by-laws relating to the same subject, confirmed far more recently, do not make an exemption and we do not feel bound by the precedent created four years ago in respect of the Norfolk Broads. The provisions in Part I dealing with the control of sanitary appliances on boats are intended to increase the amenities for all those, including sailors, taking recreation on and by the water. The prohibition on inland waters of boats with sanitary appliances discharging direct into the water does not take effect until 1978. The owners and manufacturers of sailing boats have until then to devise a method of temporary storage for sewage, or of sealing and securing their Elsans, if that is the thing to do, or following the advice of my noble friend or of noble Lords who have resisted this Amendment with me, or opting to use alternative facilities on shore. For those reasons and for other reasons that have been given. I must ask the Committee to refuse to give them the licence to continue to pollute which the noble Viscount's Amendment would do. So far as the reference to houseboats is concerned, I am firmly advised that it is unnecessary in the definition in the Bill to make specific reference to them. They are vessels. I hope that the noble Viscount will not feel it necessary to press his Amendment.


I do not want to see any lavatory waste going into our inland waters. It was put to me that this was a problem in these small craft. It certainly is in the present state of the art, as one might call it. I quite agree that, given four years, the trade may well manage to think up something. But if we are leaving the Bill as it stands, we must face the fact that we are legislating for a state of affairs which at the moment does not exist. I agree that, given ingenuity, all sorts of things may be done. I am not going to try to force this Amendment on the noble Lord. The only thing we can do is to cross our fingers and hope that the trade will think up some device which can be fitted to vessels which does not include large storage. Whatever anyone may think, you cannot get large storage into a small sailing vessel. Most of these Norfolk Broads vessels have no room under the floor-boards for a tank. I do not know where you could put it. There are no bilges. There is no space anywhere on such vessels. You must have something very small if you have anything at all. But let us leave it as it stands, if the noble Lord wishes, and see what the trade comes up with in the course of the next four years. Let us hope that they think of something. That is all that I can say. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 25, as amended, shall stand part of the Bill?


May I ask one question? On page 33, at line 41 and on page 34 at line 4, the expression is used of possible offenders as a person who "keeps or uses a vessel". Presumably both the hirer and also the owner of the hired boat would be responsible. I wonder whether it is intended to include the hirer, because in Clause 41 on page 52 in line 7, in referring to the making of by-laws, the words are used, … a person who causes or knowingly permits a vessel to be on a stream in contravention … et cetera.

This lets the hirer out. I will not ask my noble friend to reply now but I shall ask hint the same question again on the Question, that Clause 41 stand part. Personally, I prefer the Clause 41 phrase to that in Clause 25.

Clause 25, as amended, agreed to.

Clause 26 [Control of sanitary appliances on vessels in Scotland]:


I beg to move Amendment No. 146.

I have already spoken to this on a previous Amendment.

Amendment moved— Page 36, line 9, after ("twenty-eight") insert ("or twenty-five").—(Lord Sandford.) On Question, Clause 26, as amended, agreed to.

Clause 27 [Consents for discharges of trade and sewage effluent etc.]:

9.26 p.m.

VISCOUNT DILHORNE moved Amendment No. 146A: Page 37, line 25, after ("to") insert ("give or").

The noble and learned Viscount said: Subsection (2) of Clause 27 provides that it shall be the duty of a water authority to which an application for consent is made in pursuance of this section— (a) to give the consent either unconditionally or subject to conditions or to refuse it; and then it goes on expressly to provide in (b)— not to withhold the consent unreasonably. That prompts me to ask whether Her Majesty's Government regard a water authority as a responsible and reasonable body. If they do so regard them, that particular statutory provision would appear to be wholly unnecessary. So far as one can see from this, the Government think it is an essential provision in order to make the water authority act reasonably, with regard to the withholding of consent.

I would ask the Committee to consider the implication of this as it now stands. It is that they can give consent unreasonably but they must not withhold it unreasonably—because there is no requirement that they shall not give consent unreasonably but only not to withhold it unreasonably. I very much doubt myself whether any provision such as that is in the least degree necessary, but I assume this has been inserted in the Bill only after prolonged and careful consideration by Her Majesty's Government and the draughtsmen, and that it is intended to serve some good purpose. Therefore, I think it should apply equally to the giving of consent and to the withholding of it. The Amendment I propose would make this subsection read: not to give or withhold consent unreasonably;". I hope Her Majesty's Government will not think it an unreasonable Amendment, and I beg to move.

9.29 p.m.


At first sight this Amendment seems eminently reasonable, and it was put forward by the noble and learned Viscount most persuasively. But the difficulty arises because the wording as it stands could lead to possibilities of appeal to the Secretary of State under Clause 32 as it at present stands. If one considers the two proposed instructions to the water authority as proposed by the Amendment, they start from two very different positions. Section 24 of the Water Act, 1973, requires each water authority, among other things, to prepare a plan as to action to be taken"— over the next 20 years— for the purpose of securing more efficient management of water in their area, including … restoring or maintaining the wholesomeness of rivers and other inland or coastal waters in their area. Thus water authorities are directly charged with securing the restoration or maintenance of the wholesomeness of the waters for which they are responsible and must be assumed to start with a disposition to keep as much liquid waste out of them as possible. That disposition will be fortified no doubt by the water authority's own interest in clean water as a source of public supply. On the other hand, in a densely-populated and highly-industrialised small island like this there is no alternative to the use of the rivers and streams as a means of disposal. To hold the balance between the fortified general objective of making and keeping the rivers and streams clean and the inescapable need to use them as a natural resource for the disposal of waste, it has been necessary to provide the would-be discharger with a right of appeal to the Secretary of State against unreasonable refusals of consent; and the provision that consent shall not be unreasonably withheld is primarily part of the mechanism for getting the issue to appeal under Clause 32.

The question then is whether similar provision should be made for other people—perhaps the public at large, or perhaps only people with a specified interest in the water into which the discharge is to be made to be able to appeal to the Secretary of State if they consider that consent has been given when it should not have been. We do not think that this would be right. The fact that in exercising their control over discharges water authorities have no power to give consents which conflict with their general duty to maintain or restore the wholesomeness of the waters, means that those others whose interests lie in safeguarding natural waters already have, as it were, an assured ally and a minimum safeguard.

It is of course always possible that a water authority will err in giving a consent for a discharger which is damaging to the stream or to its flora or fauna; in that case there are already several remedies in the Bill. Not the least of these, immeasurably strengthened by the new access to information about discharges, is the simple force of public opinion. But, more specifically, there are provisions in Clause 30 for the variation and revocation of consents, including provision enabling a person with prescribed rights in the waters to ask the water authority to exercise those powers and, if he is dissatisfied with the outcome, to take the matter to the Secretary of State who can direct variation or revocation; and there are default provisions in Clause 86 if it is thought that the water authority are failing in their duty. Finally, the Government propose to strengthen substantially the provisions in Clause 39 so as to make it a duty for the water authority to vary or revoke a consent given after the provisions come into force if the discharge made in accordance with it causes damage, and to restore the damage so far as practicable as soon as possible thereafter.

It is therefore considered that the Bill will provide ample safeguards to ensure that consents are not given unreasonably. That being so, and as the provision to give a right of appeal to the Secretary of State is in the Bill at the moment, I hope that the noble and learned Viscount will not press his Amendment.

9.35 p.m.


We have been led to suppose that the purpose of this Bill, which is called the Protection of the Environment Bill, was to tighten up existing restrictions. I am not wholly happy that so much power is left with the water authorities, among whom there is a small majority of the local authorities. The worst polluters of our rivers over the past many years have been the local authorities.

The river authorities have not been able to resist the pressure of the local authorities who, in most cases, are the chief polluters of our rivers because of the small majority of representatives of the local authorities upon them. I always felt some doubt whether this Protection of the Environment Bill would be effective in cleaning up our rivers so long as there continues to be this slight balance of power on the water authorities, similar to that which there had been on the river authorities, in favour of the largest polluters of rivers. In these circumstances, I cannot regard it as satisfactory that this clause should be drafted so as obviously to give a special bias in favour of granting the consent.

The people who are seeking consent to discharge effluent into the rivers obviously are anxious that the rules for cleaning up the rivers should not be pressed unduly strongly. If Parliament passes this clause and says that the water authorities are not to withhold the consent unreasonably—it does not say that they are not to grant the consent unreasonably—it obviously is inclined to give a bias in favour of granting the consent. I thought the purpose of this Bill was to tighten up the provisions and to ensure that consents were not given too easily. We all know (it has been admitted by the treasurers of the local authorities) that more than 50 per cent. of the local authorities are discharging into the rivers effluent from their sewage works which is not up to the standard that is required by the consent. This is not a matter of controversy; it is frankly admitted. One of the main weaknesses of the Government's legislative proposals is that so much of the power in the water authorities still remains with those who are chiefly responsible for pollution and not with those who are concerned with the purification of our rivers and the ensurement of an improvement in the purity of our water supply.

I should have thought that, on a purely logical basis, it was quite impossible for the Government to resist the Amendment that has been advanced by the noble and learned Viscount. If there is to be an appeal to the Secretary of State, why should not that right of appeal apply equally to those who are against the consent as to those who are anxious to have the consent? That I should have thought was equity and justice and fairness. When we look at the exact composition of the authorities concerned, I think it is extremely important that this principle should be established. I hope that the Government will not resist this Amendment, which I believe is right in principle and is certainly justifiable on the general principles of equality as between two litigants.


This subsection, as I understand it, deals with a situation where a water authority is asked to consent to a discharge. Under paragraph (a) the water authority can give its consent or, I suppose, can refuse it; and I suppose we all assume that the authority will act reasonably. If the matter were left there, it would be all right. But we now come to paragraph (b). It is going to be assumed that the authority acted unreasonably. If so, it can act unreasonably in two ways: it can act unreasonably by withholding consent, or it can act unreasonably by giving it. Surely, if we are going to consider the situation in which the water authority acts unreasonably, we must deal with both cases. What is more, when we come to Clause 32 we ought in both cases to give a right of appeal to the Secretary of State. I ask the noble Lord to look at this matter carefully. This clause is completely slanted, as my noble and learned friend said—slanted very much with the idea that consent should be given and not withheld. It is an important matter.


I just wish in a few words to say that on the principle of the matter I am with the noble Lord, Lord Molson, on this issue. Apart from the noble Lords whose names appear over the Amendment, the reasons given by Lord Molson particularly appeal to me.

9.42 p.m.


I am grateful to my noble friend Lord Molson for what he has said. I think I said much the same at earlier stages of the Bill and I am glad to have his confirmation of the view I formed of it. The noble Lord who replied to this Amendment began his speech by saying that at first sight the Amendment was entirely reasonable. I was glad to get that concession.


"Seemed", I said.


"Seemed", yes. He then went on to explain that this extraordinary provision was put in to give the person who wanted to discharge, and was refused permission by the water authority, a right of appeal. In fact, as I understood it, the right of appeal was taken on this provision. He then referred to Clause 32. Of course Clause 32 is linked to some extent with this provision. In moving the Amendment, I did not refer to the other provisions, but in the light of what the Minister has said it is necessary that I should do so and draw the Committee's attention to the position of an objector to the consents being given.

We are asked to accept that a water authority will look after the interests of all those down stream of the point of discharge, whether they are persons who are interested in fishing and have rights in connection with the fishing; whether they are angler co-operative societies, or whether they are people engaged in bathing, boating or anything else. We are asked to say that they can safely leave their interests entirely in the hands of the water authority. It reminds me rather of something that was said in the past in the political field and could be said in the future by the water authority: "We are the masters now." I do not think the public, when they realise what is proposed, will be content with this. What is to be the position of someone who objects to an application for consent? He will know of it only if he reads the London Gazette or happens to spot the notice of the application published one week in one local newspaper in the area. If he misses that and does not get to know of it, all his rights are gone; there is nothing left for him to do. Under a later provision of the Bill, for reasons we shall later explore, the water authority need not even give notice of an application to anyone. They need not advertise it.

Let us assume, however, that he sees it and objects. His objection goes before the water authority, and that is the end of it as the Bill now stands. He cannot complain; he cannot appeal to anyone. Why should he not appeal if he has an interest in the water? Why should he be required to leave it to the discretion of the water authority? The Minister has not dealt with that. It is only after he has suffered the discharge for a year that he has any right of recourse to the Secretary of State, and then he can ask that the consent should be withdrawn.

I agree entirely with my noble friend Lord Molson that this is a slanted provision. I am astonished that the Government are not prepared to make it an evenly-balanced one. I should be perfectly happy if they gave a person who had an interest in the water, who could establish that the water was likely to be affected by the discharge, who could establish that a loss would be inflicted upon him by the discharge, a right of appeal to the Secretary of State from the decision of the water authority, just as in the case of an application for consent which is withheld. That being so, we now see, in the light of the Minister's reply, that this Amendment is much more important than I had perhaps realised when I moved it, and if noble Lords will join with me I shall not be prepared to withdraw this Amendment.


There is not very much I can say in reply to that very strong speech. The noble and learned Viscount has gone over other clauses of the Bill as well as this one, but perhaps I could just say a few words in reply to what he has now said. First, I should perhaps draw his attention, as he is such a firm defender of the 1951 Act, to the fact that this provision is similar to the one contained in Section 7(1) of that Act, which also refers only to consent not being unreasonably withheld. Indeed the same phrase is used in the 1961 Act. In Section 1(1) of that Act it says, which consent shall not be unreasonably withheld". So this is a provision which has appeared before and it is not very fair to blame the Government for being one-sided when we are merely following something which has appeared in a previous Act.


If I may interrupt my noble friend for one moment, we have been led to suppose that this Bill for the protection of the environment was going a little further than previous legislation. To be asked to justify the provisions of this Bill by what has been enacted years ago does not seem to me to be an entirely satisfactory argument.


It goes a good deal further than what we had before, because it brings into operation the regional water authorities, which are new bodies with distinct responsibilities, as I hope I made plain in my preliminary speech. There is just one thing that I might say to my noble friend Lord Molson. I think there is a slight distinction now so far as the local authority members of the water authority are concerned, in that now any work that is done for the improvement of the river or for better sewage disposal will not of course fall on the rates. Hitherto there has been a feeling among local authorities that the cost of any work they did to improve matters had to fall on their ratepayers. Now of course, with the regional water authorities having their laid-down responsibilities, the cost will be found out of charges rather than out of the rates and I would suggest to him that this might be one way in which the present Bill would improve on the situation as it is now.

The only other thing that I can say to all of your Lordships who clearly are not with me in my reaction to the Amendment is that if I may be allowed to look at it again I certainly will do so, especially with the object of looking at the point made by the noble and learned Viscount, so that this would be restricted to those with a specified interest in the water and not to the public at large. I think he made that point and I would think—


That does not arise on this Amendment; but arises on a later one.

Resolved in the affirmative, and Amendment agreed to accordingly.

9.59 p.m.

LORD CRAIGTON moved Amendment No. 147: Page 37, line 33, leave out ("refused") and insert ("given").

The noble Lord said: We had a delightful debate about this matter on a previous occasion so I will not speak for more than a minute. I felt that if an application was made and it was turned


It arises on a later Amendment, but it can restrict the right of appeal, I would hope, of those people who have a specific interest in the water.


That would be the effect.


I am quite willing to look at it again if the noble Viscount will allow me to.


I am afraid that on this occasion I am not satisfied in view of the speech we have heard from the Minister and the statement that he will look at it again. I think I must press this Amendment. The noble Lord will have opportunities, despite my pressing it, to look at it again between now and Report stage.

9.51 p.m.

On Question, Whether the said Amendment (No. 146A) shall be agreed to?

Their Lordships divided: Contents, 21, Not-Contents, 18.

Bledisloe, V. Garnsworthy, L. Mountevans, L.
Boothby, L. Greenwood of Rossendale, L. St. Davids, V.
Conesford, L. Kennet, L. Shackleton, L.
Craigton, L. Llewelyn-Davies, L. Shepherd, L.
De Ramsey, L. Middleton, L. Stow Hill, L.
Dilhorne, V. [Teller.] Milner of Leeds, L. White, B.
Energlyn, L. Molson, L. [Teller.] Wynford, L.
Aberdare, L. Elles, B. Mowbray and Stourton, L. [Teller.]
Alexander of Tunis, E. Ferrers, E.
Amherst of Hackney, L. Gowrie, E. Sandford, L.
Colville of Culross, V. Hailsham of Saint Marylebone, L. (L. Chancellor.) Sandys, L.
Courtown, E. Terrington, L.
Cowley, E. Lyell, L. Young, B.
Denham, L. [Teller.] Macleod of Borve, B.

down, the least the authority could do would be to send the applicant a postcard to say that the application was rejected. I beg to move.


I was forewarned about this matter because, as my noble friend rightly said, he brought it up on Part I. I have been into it carefully and I am sure that this will be done to his satisfaction. The sort of thing he has in mind, which we think is the way it would work, is that when somebody puts in an application for consent his application would be acknowledged in the normal way and, in the course of that acknowledgment, there would be drawn to his attention the fact that there was deemed refusal after three months and, of course, this gives rise to an appeal to the Secretary of State. I think this is what my noble friend wanted to know, but if there is anything else I will be pleased to go into it.


Did I hear my noble friend say that he would see to it that that was done?


Yes, we will consider whether we need give guidance to that effect to the authorities.


In that case, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 27, as amended, agreed to.

Clause 28 [Reference to Secretary of State of certain applications for consent]:

10.2 p.m.

VISCOUNT DILHORNE moved Amendment No. 147A: Page 38, line 45, after ("authority") insert ("or by any person who has an interest in the water into which it is proposed to discharge the effluent or other matter")

The noble and learned Viscount said: This may take a little time, but it is an important Amendment. We have been dealing with consents for discharges, and we are now turning to the reference to the Secretary of State of certain applications for consent. This is not an appeal provision; this is a provision which enables the Secretary of State to give directions to the water authority under subsection (1). Subsection (2) is the important one here. It reads: Before determining an application transmitted to him by a water authority in pursuance of this section the Secretary of State may if he thinks fit, and shall if a request to be heard with respect to the application is made to him in accordance with regulations by the applicant or the authority, cause a local inquiry to be held into the application or afford to the applicant and the authority an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.

This is another instance of the scales being tilted against anyone who has a riparian interest or an interest in the water below. If a request is made to be heard in accordance with regulations, the Secretary of State is bound to cause a local inquiry to be held. But the only people who can compel a local inquiry to be held are the applicant for consent or the authority, and no objector to the consent being given has any such right. Therefore, I have tabled this Amendment, which is restricted, as I think the noble Lord was aware when we were discussing the last Amendment I moved, to insert after "authority" the words "or by any person who has an interest in the water into which it is proposed to discharge the effluent or other matter". If those words were inserted, a person who has an interest—and by that I mean, and I think it is not necessary to say so expressly, a legal interest—will be put on the same level as an applicant or the water authority, who can have the matter referred to the Secretary of State. This is in line with the last Amendment. It is correcting a slant. I hope that the Government will recognise the equity of making this alteration and will agree to the Amendment. I beg to move.


The noble and learned Lord has accurately described the effects of this provision. Clause 28 gives the Secretary of State power to call in for his own decision an application for consent to discharge. This power is analogous to the call-in power in planning legislation. We expect that it would be used relatively rarely only when a particular application raises important new issues of principle or issues of national importance wider than the competence of a single water authority to decide. Once he has called in the application, the Secretary of State then has to decide whether to hold a local inquiry. He must do so if the water authority or the applicant so requires. He would generally do so in other cases. This follows the usual procedure in parallel planning cases under planning applications.

Following the same usual procedure, when an inquiry is held, everybody, including third parties, who have a serious interest in the matter concerned, and a contribution to make, will be able to put their case forward. But this is a different matter from giving third parties a right to demand an inquiry once an application is called in. It seems to us reasonable to give these rights to the principal contenders concerned—the applicant and the water authority. But we do not think it appropriate to give them to anyone who can prove that he has an interest in the water however slight that interest may be. To do so would inevitably complicate the procedure. It would lead to a risk of abuse by objectors whose strict interest was in reality very slight.

Of course, there will be responsible, well-informed people, both those with an interest, as the noble Lord said, in a legal sense in proposed discharges, and those with a more general interest in the conservation and enhancement of the environment who will want to make their views known on a particular application.

We are not saying that they should not be heard. A wise authority or Secretary of State will consider their request for particular issues to be taken to inquiry before they are determined. But we do not consider it appropriate to give a particular class of third party a special procedural right to compel the holding of an inquiry in these comparatively few, rare cases where the Secretary of State calls in a matter for his own decision, just as he does in the case of planning consents. I really do not think, therefore, that on this occasion the noble and learned Viscount's case is as strong, and I hope that though I will look at it again if he would like me to, he will not consider it necessary to press this Amendment as well.


My noble friend has made a reasonable case against putting this into the Bill, but I welcome—and he should note—the assurance he has given that people who have some interest in this matter will in all reasonable cases be heard. I do not want wearily to repeat to your Lordships matters that I have drawn to your attention again just recently. However, these applications are broadly analogous. I know that they are not the same as those which arise in connection with Private Bills and Special Procedure Orders in the case of the two Houses. But there is a certain analogy, and it is important to realise that under the procedure of Parliament at the present time it is not always easy for amenity societies, or people concerned with the preservation of the countryside or ensuring the purity of water, to be heard in connection with the applications that are made.

At the risk of wearying your Lordships, I would repeat what I said the other day, that in the case of Private Bills your Lordships' Committee have always been very broadminded about whom they allow to appear and to petition against a Private Bill. In another place it was decided by, I think they are called, the Examiners, and there are strict rules as to locus standi. Amenity societies, or people who are interested in the preservation of amenities but who did not happen to own land directly affected, were refused a hearing in another place because it was held that they had not locus standi.

The noble and learned Viscount has moved an Amendment in order to ensure that people who are not perhaps directly affected could be heard in matters of this kind. If I understood my noble friend Lord Aberdare aright, he said that he would not wish to accept an Amendment of that kind, but he gave an undertaking that the Bill, when an Act, will be administered in a way so that it will be possible for people interested in these matters to be heard. Provided that that assurance is carried out—and I am quite sure that it will be—I think that probably meets the point made by the noble and learned Viscount. But it really is extremely important that, in matters of this kind, those people who are not directly and financially affected—which is the kind of criterion which is adopted by another place—should not be barred in the case of this Bill, but that a broad and tolerant line should be adopted so that those who are concerned with the improvement of our waters, and the preservation of amenities, should be heard in cases of this sort.

10.13 p.m.


The noble Lord, Lord Molson, has again taken very much the line that one would expect him to take, and it is one that I strongly support. I am not for one moment disputing that there are others who may have more direct interests—for instance, persons who are interested in angling, or who may have land further downstream from the place where the discharge might be made—but it is true that the amenity societies, using that term in a very broad sense, take an interest in these matters, and they sometimes find it difficult to make their voices heard.

I hope it will be understood that where there are inquiries of this sort, there should be no difficulty about such organisations, if they so desire—and if they can afford it—appearing. I think I understood the noble Lord, Lord Aberdare, to indicate that that was so, but one or two sentences that he used made me doubt this a little. I should be glad if he could confirm it.


The discussion on this Amendment, short though it has been, has served a useful purpose. One thing I have been concerned to do is to make sure that someone who had a valid ground for objecting had the right of getting the matter called in by the Secretary of State, and then of obtaining a local inquiry; and the same right of obtaining a local inquiry as anyone else. But I have not been quite so ambitious as my noble friend Lord Molson would have liked me to be, because I deliberately restricted this Amendment to persons with an interest in the waters which would be affected. I thought if I went wider than that I might be said to be going too wide.

This discussion has shown the desire of this Committee that not only persons with riparian interests and things of that sort, but also all the amenity societies concerned—and I support that view—should have the right to ask the Secretary of State to call in an application. It may be that they can do it, and that the Secretary of State on receiving a communication will do it. But as the Bill now stands, I do not think there is anything expressed to indicate that they will be entitled. I would ask the noble Lord, Lord Aberdare—and I was grateful to hear him say that he will consider this matter further—also to consider whether it would be an improvement to this Bill to say that these societies should have a right to make representations to the Secretary of State and other persons with legal interests, to ask him to call in an application; not leaving it just to the water authority and then, a year later, being able to take the matter to the Secretary of State.

It is one of the defects of the Bill that where there is a case—I am not talking about frivolous objections by persons who are just being tiresome and who have no real interest—of an application for consent which is thought. rightly or wrongly, to be of a very damaging character so far as pollution is concerned, and where people perfectly sincerely think that it ought not to be left to the determination of a water authority, they do not have a right under the Bill to ask the Secretary of State to call it in. I should like to see that expressed. Then, if we got to that stage, I wanted to see the same treatment—though I do not think it is a matter of so very much importance—of objectors, applicants and a water authority with regard to a local inquiry. There may be a case where an applicant or a water authority should have an absolute right to request a local authority, and where there should be a duty on the Secretary of State to give it. I should have thought it would have sufficed to leave it to the Secretary of State's discretion in all cases whether he granted a request. I do not think it is worth bothering about that, but I would ask that it be made clear. Clause 85 gives a general wide power, but I should like it to be made clear as a matter of drafting in this clause that there will be a right to an objector, be it a society or an interested party, to ask for an inquiry, and that the Secretary of State will have discretion to grant it. But having regard to what the noble Lord, Lord Aberdare, has said, I beg leave to withdraw the Amendment.


Before the noble and learned Viscount withdraws his Amendment, may I assure him that there is nothing to stop anybody making representations to the Secretary of State about holding an inquiry. But the water authority and the applicant are in a special position, and if they ask for an inquiry the Secretary of State must hold one.

Amendment, by leave, withdrawn.


Perhaps this would be a suitable moment at which to resume the House.

House resumed.