HL Deb 28 January 1974 vol 349 cc115-60

8.16 p.m.


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

Moved, that the House do again resolve itself into Committee.—(Baroness Young.)

House in Committee accordingly.

[The Lord Champion in the Chair.]

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

THE MINISTER WITHOUT PORTFOLIO (LORD ABERDARE) moved Amendment No. 148: Page 38, line 46, after ("held") insert ("in pursuance of section 85 of this Act")

The noble Lord said: On behalf of my noble friend Lady Young, I beg to move this Amendment, which makes it clear that any public local inquiry held into an application for consent to make a discharge which is called in by the Secretary of State will be governed by the general arrangements for inquiries which are set out in Clause 85. I beg to move.

8.18 p.m.

BARONESS WHITE moved Amendment No. 148B: Page 39, line 9, at end insert ("and to notify the applicant, the authority and any person who made written representations of his decision and of the reason for it")

The noble Baroness said: As I think is plain from the Amendment, the real point of this is to ensure that if a case is called in and the Secretary of State makes a determination on it then the reason shall be given not only to the applicant and to the authority but also to any person who made written representations. When we were discussing this at our last sitting the noble Lord, Lord Aberdare, made clear that under Clause 28 he would not expect that the Secretary of State would avail himself frequently of the power to call in an application for consent.

The noble Lord went on to say: 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."—[OFFICIAL REPORT, 24/1/74, col. 1696.] If this is so, then it seems to us that it is of particular importance that any person or organisation with a close interest in such matters should be able to obtain not merely the decision, which would presumably be a public matter anyway, but also the reasons for it. I beg to move.


I can give the noble Baroness the assurance she seeks, particularly because this is the established way of behaving in the case of planning decisions. These will be fairly rare cases, as I indicated—and the noble Baroness has quoted from what I said—but certainly what would normally happen would be that the Secretary of State would write to the water authority conveying his decision, giving the reasons for it and his direction as to whether they are to grant or refuse the application. Normally he would send copies of the letter to the applicant and to anybody who had made substantial representations at the inquiry, if there had been an inquiry, or, if there had not, to those who had represented to him in writing. I hope that the noble Baroness does not feel it necessary to include a specific reference to this in the Bill. As I say, it has never been considered necessary in legislation dealing with planning decisions. There is also the difficulty that on occasions something is done without specific legislative requirement and it may be undesirable to make it mandatory because of the possible implication that it need not be done where it is not specifically required. But I can assure the noble Baroness that this will be the normal procedure that will be followed.


In the light of those assurances I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.22 p.m.

LORD MOLSON moved Amendment No. 148D:

Page 39, line 11, at end insert— ("( ) If the Secretary of State causes a local inquiry to be held under the provisions of subsection (2) of this section he may require the water authority or the applicant if he is the person who requested the inquiry to deposit such a sum of money as the Secretary of State may think fit; and if he is satisfied after the inquiry that any person or persons taking part has or have been necessarily put to expense for the proper explanation of the matters in issue, he may direct that part or all of the sum so deposited may be applied towards such expense.")

The noble Lord said: The purpose of this Amendment is perfectly simple. We are becoming increasingly accustomed to local inquiries into all problems of controversy arising in all sorts of matters of local administration. In this clause it is provided in subsection (2) that, … the Secretary of State may if he thinks fit, and shall if a request to be heard with respect to the application is made … by the applicant or the authority, cause a local inquiry to be held. … The effect of having a local inquiry is to throw a very considerable burden of expenditure on people concerned who wish either to oppose or secure some substantial amendment in the Order. The purpose of the Amendment is to provide that those who have called for the public inquiry to be held should deposit a sum of money out of which those who have been put to expense as a result of the proceedings at the inquiry may be reimbursed either the whole or part of their expenses. I think that a very reasonable proposal to make.

We are all committed to the idea of participation. The increasing approval by Parliament and local authorities of local inquiries is due to the fact that we all wish that local people who are affected should be able to make their representations heard. That is why I have put down this Amendment. I hope the Committee will not think that the two cases to which I shall refer are irrelevant because, although they do not bear on water legislation, they deal with exactly this kind of matter. The First Report of the Joint Committee on Delegated Legislation which was ordered by your Lordships to be printed on July 23 last year referred to the great burden of expenditure which is imposed upon petitioners against Special Procedure Orders. At page 15 of their Report they say: Your Committee think that consideration might be given at least to the question whether a large share of the cost or indeed the whole of the cost of the transcript should be borne by the promoters or by Parliament or be shared between them. It appears that the only way in which the expense of employing counsel and agents can be reduced would be by providing some form of financial aid to petitioners similar to the legal aid which is granted in respect of court proceedings.

That is not exactly in point in this Bill, but it is an illustration of what a Joint Committee of both Houses thought necessary in order that people concerned with these inquiries should not be expected to bear the whole of the cost of being represented at the inquiry.

I had thought that my noble friend Lord Sandford might be replying, in which case I should have said that what I am going to put forward now is an argumentum ad hominem or perhaps an argumentum ad dominum. I raised with him in correspondence on July 19 the question of an amenity society's costs at public inquiries and pointed out that amenity societies and persons who are, or think themselves to be, adversely affected by proposals are put to very heavy expense in being adequately represented. In his reply dated July 7, 1971, he said this: You are perfectly right; the existing powers in Section 290(5) of the Local Government Act 1933 enable the Secretary of State to make orders as to costs in respect of any parties at a statutory inquiry. This, of course, would include third parties in general and amenity societies in particular. That was the general proposition which he made. He went on to give what I thought were good reasons why it has been very rare that costs have been awarded under this provision—though naturally, I shall not weary the Committee with a long and complicated argument. But here is a definite statement that under the Local Government Act 1933 the Secretary of State can make orders as to costs in respect of any parties at a statutory inquiry. This burden is a very serious one, and when we are legislating for the future about water and there is this special provision for local inquiries which could be called on as of right by the water authority, who are people of substance, I think it is reasonable that we should incorporate in the Bill a provision which in suitable cases would enable persons affected by local inquiries to have their expenses refunded.


I wish warmly to support the Amendment. On two occasions in the last couple of years I have raised in your Lordships' House this question of the costs of those appearing at public inquiries. The more recent one was in connection with the hydroelectric scheme in Snowdonia. Prior to that we had the Anglesey Marine Terminal Bill, which brought considerable expense to the local community, particularly because immediately thereafter there was a major public inquiry into the landward arrangements for that marine terminal. I have also raised with the noble Earl the Lord Chairman of Committees the point from the Report of the Joint Committee on Delegated Legislation quoted by the noble Lord, Lord Molson. That is a separate matter. It is a question of the cost of the transcript, which in the case of a local inquiry is not provided except at private expense. I regard that as monstrous.

The noble Lord, Lord Molson, was absolutely right to raise this question on this Bill. If we are to have these inquiries, as I reminded the Committee a little while ago, according to the noble Lord, Lord Aberdare, these hearings would be inquiring into matters of more than local interest: they would undoubtedly have some national importence, so that in a situation of that kind major amenity interests would wish to make their views known. It seems to me wrong that they should not be in a position to receive any assistance at all. Whether the proposal here is one which will commend itself to the Government, I do not know; but if the existing legislation, dating I think from 1933, is hardly ever used, it appears that there is a good case for finding some other method of seeing that some contribution is made towards the costs of those who are performing a public duty. One would not suggest that the entire cost should be met—I think that would be improper—but it is in the public interest that such people are acting, and not for personal profit or gain. Therefore I hope that this Amendment, or something like it, will find favour with the Government and that we shall be able to set some kind of precedent in this Bill for meeting at least a proportion of the expenses of those concerned with the protection of the environment. And, after all, we are told that that is the purpose of the Bill.


I should like to support what has been said by the last two speakers. Even if my noble friend the Minister does not feel (and I fear he may not) that so major a project should be launched in this Bill, the Amendment gives the Government notice that this is a very serious point and that if we do not get our way to-day this is something which I am sure we shall all be urging the Government to tackle in the immediate future.

8.33 p.m.


I take to heart what has been said by the noble Lord, Lord Molson, by the noble Baroness, Lady White, and by my noble friend Lord Craigton; but I think it is evident that this raises an issue of very general importance and one which is by no means confined to this particular Bill. In fact, as my noble friend has anticipated, I would argue that it would not be at all appropriate to include in this Bill a provision of this sort. It raises issues of what happens under our Special Orders Procedure, what happens with Private Bills and in the case of planning inquiries, where all these considerations are equally evident. Nor, I think, is it particularly appropriate to this Bill, because in the particular instance we are discussing it is the Secretary of State who has called in the application, and therefore if one were to be logical about it it is probably the Secretary of State who ought to foot the bill or contribute to the costs incurred by the people objecting. It is not really the water authority, nor the applicants, although of course it is they who have the right to demand a public inquiry once the application has been called in by the Secretary of State.

Another point which is worth making is that although an inquiry of this sort can involve many technical matters, and people who wish to object might find themselves incurring heavy expenses, it would not, I think, be quite so important in the case of these inquiries, because the water authority are there to consider and put the case for maintaining and restoring the wholesomeness of the water for which they are responsible. That is their statutory duty, and they have the technical expertise necessary to help in such cases.

The noble Lord, Lord Molson, made one or two particular points. He mentioned the cost of the transcript. Of course, in the sort of inquiries referred to in this Bill the place of the transcript is taken by the inspector's report, and the cost of that is borne by the Department.


I am sorry to interrupt the noble Lord, but is he saying that there will be a detailed report of the actual hearing, or will it be just the conclusions of the inspector at the end of it?—because in planning inquiries all we get are the conclusions of the inspector. There is no record of what has been said.


No; it would be exactly the same procedure as for planning procedures; it would be the inspector's report that would be given.


Is there any reason why we cannot adopt the proposal made by the noble Lord, Lord Molson, and in this Bill at least make it possible for people putting their case to have a trans-script of the evidence at public expense? Surely that is something we ought to be able to do within this Bill.


I should not like to undertake that, if only because it is not what happens in the case of planning inquiries. These inquiries run side by side with planning inquiries, and I do not think it would be advisable for me to undertake to do that without looking at the matter further. However, I will certainly consider the point made by the noble Baroness.

My noble friend also referred to the power to award costs in the Local Government Act. This is repeated in Section 250 of the Local Government Act 1972, which is applied to inquiries of this kind by Clause 85 of this Bill, so that in fact that power still remains available for use. The last point I should like to make to my noble friend is that in inquiries of the kind mentioned in the Bill there is no obligation to employ counsel, whereas Petitioners to Parliament are virtually compelled to do so.




In any case, from that point of view less expense could be involved. In general, I have a great deal of sympathy with my noble friend's suggestion, but I do not think it would be appropriate at this moment in this Bill, and I hope that my noble friend will not press his Amendment.


I have listened with interest to the noble Lord's reply and I must say that I did not like some of his arguments very much—particularly when he said that it was unnecessary to employ counsel in these inquiries. It really is not so in the majority of them—not that I am myself at all concerned nowadays. The water authority almost certainly is bound to be legally represented; the applicant for the discharge is almost certainly bound to be legally represented also, and it really does not carry much weight when the Minister says that others who are objecting can appear on their own behalf and without legal representation. I do not think that is a very good argument. But I am delighted to hear that in appropriate cases there is power to award costs for those who appear at such local inquiries.

I cannot go with the noble Baroness in supporting her claim that transcripts should be made available. Transcripts of what is said during an inquiry which lasts for a considerable time can be extremely expensive to obtain. My experience of planning inquiries is that the inspector's report starts with a very long and accurate summary of the evidence he has heard. Provided that is given, so that it can be seen on what materials he based his conclusions, I myself think that should suffice.


I am obliged to my noble friend for his reply. This is a general issue which is going to come up more and more in the next few months and years. The fact that the Joint Committee over which my noble friend Lord Brooke of Cumnor presided has suggested that this matter should be further looked into by another Committee, shows that we have established our case that it is intolerable that individuals and small amenity societies should be left to carry the whole of the costs of representation, whatever those may be. As my noble and learned friend Lord Dilhorne has said, it is true that Petitoners may appear in person if they wish to do so. But in point of fact everybody knows that when the powerful corporations on the other side employ skilled counsel and are able to call expert witnesses, and so on, it is only on the very rarest occasions that a lay individual representing himself or a small amenity society, will be able to stand up to experienced arguments of that kind.

I am grateful to my noble friend for the sympathetic tone in which he replied. I entirely agree that in this particular Amendment it would be inappropriate to take a step forward in a large and complicated matter of this kind in a single Bill of this sort. I am glad that my noble friend has replied in a sympathetic way, and I am sure that the Government will have noted the general support that has been shown for an approach which will bring some financial assistance to those people who serve the public by representing interests of this kind at public inquiries. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 28, as amended, agreed to.

Clause 29 [Provisions supplementary to ss. 27 and 28]:

VISCOUNT DILHORNE moved Amendment No. 148A: Page 39, line 21, after ("Gazette,") insert ("in four successive weeks").

The noble and learned Viscount said: I beg to move the Amendment in the names of my noble friend Lord Bledisloe and myself. This is a small Amendment, and I hope it is one that the Government can swallow without any indigestion. The provisions in this clause are for making sure that those likely to be affected by a consent get notice of the application. That must be the object of the clause. If it is, I suggest it could be improved a little; to provide only for publication of the application in the London Gazette, which has not the most extensive circulation in many parts of the country, and people do not read it for light amusement, and only once in a newspaper circulating in the local area is not a sufficient advertisement to bring the matter to the attention of riparian owners, and others, who are likely to be affected.

The Amendment that I have put down is that the publication in the local newspaper should take place in four successive weeks. That provision is modelled on a provision in an Act passed more than 100 years ago, the Highways Act 1835. That provided, among other things, that in relation to any application to close a public footpath there must be publication for four successive weeks in a local newspaper. In those days I do not think people had anything like as much to read as they have at the present day. One publication in one local paper may be so easily missed. The requirement ought to be for publication in more than one issue. There is a precedent for four issues, but for the sake of peace and friendship I would settle for two issues. One really is not enough.


I have very great pleasure in accepting the noble and learned Viscount's compromise suggestion—two issues would be quite agreeable to me. I agree entirely with what he said: one is not sufficient. If the noble Viscount will accept an Amendment for the application to be published for two weeks in a local paper, I should be prepared to agree to that. The Amendment may need looking at; I gather that as worded it could mean that first of all we have to advertise for two weeks in a local paper, followed by an advertisement in the London Gazette. I do not see any reason why these periods should not run coterminously so that the advertisement in the London Gazette could appear at the same time as the first advertisement in the newspaper, followed a week later by another one in a local newspaper. I am glad that I do not have indigestion and am able to help the noble Viscount.


Such is my spirit of compromise, I will settle for that; I agree that the first publication of the application in the local newspaper might be at the same time as the publication in the London Gazette. As my Amendment is drafted, the advertisement in the local paper would precede an advertisement in the London Gazette. I will leave it to the noble Lord to table a suitable Amendment at Report stage and ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.47 p.m.

VISCOUNT DILHORNE moved Amendment No. 148C: Page 39, line 26, at end insert ("and in a newspaper or newspapers circulating in such areas as the Secretary of State may specify, being areas which may be affected by the proposed discharge;").

The noble and learned Viscount said: This is another narrow point, but a not unimportant one. As I understand it, the Bill provides that the advertisement should be in a paper circulating in the area where the proposed discharge will be made. The proposed discharge may affect waters a considerable distance below the point of discharge; it depends upon the nature of the discharge and its volume. The provision in the Bill does not go quite wide enough, and I have tabled this Amendment which gives a discretion to the Secretary of State. He can, if he thinks it desirable and if the matter comes to him, specify that notice should be given in areas which he thinks will be affected by the proposed discharge. This Amendment is modelled on a similar provision in the Pipelines Act 1962, in paragraph 3 of Schedule 1. That is rather a good precedent for this. Again, it is to ensure that the object of this clause is achieved; that notice has a chance of reaching those to whom it is directed. I beg to move.


I am afraid this Amendment does give me indigestion. The problem here is one of deciding just what areas should be considered as those that would be affected by the proposed discharges. Obviously, these will be areas downstream of the point of discharge—but how far downstream must publication reach? The noble and learned Viscount, Lord Dilhorne, recognises the problem: he provides, on the precedent of the Pipelines Act, that the Secretary of State should specify what areas should be covered. This however is hardly practicable. By the nature of the problem it would not be possible to formulate satisfactorily general rules: each discharge will be different in the distance its effect may persist. The water authority, however, can hardly come and ask the Secretary of State each time what areas are specified for each discharge.

We feel that it is sufficient to advertise locally. Most discharges, if properly controlled, should not in fact have a significant affect at a great distance downstream: the conditions attached to the consent should ensure that. Certainly people or bodies with special interests in the quality of water, whether they be fishermen or extractors of water or a society concerned with the protection of the amenities, will be able to keep a check on proposals through the publication in the London Gazette. Although the noble and learned Viscount, Lord Dilhorne, has rightly pointed out that it does not have a great circulation, at least it is studied by those who have a particular interest. I think it would be a very difficult practical matter to try to do what the noble Viscount is suggesting. I really think that the publication in the London Gazette and the local newspaper should suffice.


I gather from what the Minister has said that the objection is to leaving it to the Secretary of State to decide in what further areas advertisements should be made. I see the force of that point. It is really not sufficient, I think, as the Bill now stands. I would ask him to consider this point. We are dealing here with an application for consent. He says that there is no need to worry because conditions will be imposed to ensure that discharges do not affect waters further down stream. We have not got to that stage. We have reached the stage of notifying people who may wish to make objections to the applications to the discharge taking place at all. That is the object, as I see it, of this clause. The imposition of conditions will come later.

Would the noble Lord consider this: that the water authority should be required to make the advertisement in a newspaper or newspapers circulated in the areas below the point of discharge which they, in their discretion, think might be affected by the discharge? That again is a compromise. It is not open to the main objection to which the noble Lord referred on this Amendment. I think if he did that, it would give a wider power to the water authority and would meet the case.


In this atmosphere of sweet reason and light, I have no hesitation in undertaking to do that. It seems to me to be a sensible solution that it is left to the water authority to decide which newspapers would cover areas downstream of the discharge.


It being recognised, under the wording, that if they think it is likely, if the discharge is of such volume or such character, that it will affect water a good way down, they will take this step, I shall be content. In those circumstances, I ask leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

8.53 p.m.

LORD ABERDARE moved Amendment No. 149: Page 39, line 27, leave out from second ("to") to ("each") in line 29.

The noble Lord said: I beg to move Amendment No. 149. I would also speak to Amendments Nos. 149 and 150. The Amendment restricts the class of applications, and certain instruments of consent, to be copied and sent to the Secretary of State and the Minister of Agriculture to cases where a discharge to tidal waters or the sea is in question. The provision for copying applications was inserted at the request of the Minister of Agriculture because of his fisheries responsibilities. There is no need for this to be forwarded on applications relating to discharges in fresh water. I beg to move.


I think perhaps we should have a little further explanation of this Amendment. This again touches on the Dumping at Sea Bill, which I mentioned last time. We are considering that Bill again to-morrow. The argument being used on the Dumping at Sea Bill is that the Minister of Agriculture is responsible for fish; and that where one is concerned with controlled waters, or the sea outside controlled waters, that is a matter for the Minister of Agriculture. I am assuming that the Secretary of State is the Secretary of State for the Environment not the Secretary of State for Scotland. If what we are dealing with is controlled waters, or the sea beyond the controlled waters, I am not quite clear why we should bring in the Secretary of State when in the Dumping at Sea Bill the Minister of Agriculture is the Minister involved. I wonder whether the noble Lord, Lord Aberdare, can explain that to me? I am also not quite clear how, under the clause that we have just passed, the Secretary of State will know whether or not there is an application which he ought to call in if he has not been informed about it?


The noble Baroness is a much greater expert on the Dumping at Sea Bill than I am. All I can say is that the object of this Amendment is that wherever a discharge is into tidal waters, or into the sea, those are the areas in which the Minister of Agriculture is interested by virtue of his responsibilities for the fishing industry. It is in those cases where he will receive a copy of the application; and not, as the Amendment is drafted would cause him, to have copies of applications for discharges into fresh water, which his responsibilities do not cover.


I quite understand that the Minister of Agriculture does not want to be bothered with all the freshwater applications over which he has no jurisdiction. What I am interested in is that in this Bill, for the controlled waters and the sea outside the controlled waters, one is joining with him the Secretary of State. I am entirely in favour of this. My difficulty is that in regard to the Dumping at Sea Bill I cannot get the representative of the Ministry of Agriculture to see the point.


I do not think I have very much to add. If there is anything else, perhaps I could clear it up in correspondence with the noble Baroness. I think that might be the easiest way to cover the matter.


I beg to move Amendment No. 150.

Amendment moved— Page 39, line 32, at end insert (", in the case of an application or instrument relating to controlled waters or an application relating to the sea outside controlled waters, to the Secretary of State and the Minister of Agriculture, Fisheries and Food; and").—(Lord Aberdare.)


Amendment No. 150A, Lord Boothby. If this Amendment is moved I shall have to put it as: Page 39, line 32, after the words last inserted, insert the new paragraph as printed on the Marshalled List.

8.59 p.m.

LORD BOOTHBY moved Amendment No. 150A: Page 39, line 32, leave out ("and") and insert— ("(c) if the place at which it is proposed in the application that discharges should be made or, as the case may be, at which discharges are the subject of consent given by instrument is within a sea fisheries district, to send a copy of the application or instrument to the local fisheries committee for that district; and").

The noble Lord said: It is quite unnecessary at this late hour of the night for me to delay your Lordships with a speech. The purpose of this Amendment is self-evident. The sea fisheries committees have played a great part in the past in the campaign against pollution. I think it would be convenient for your Lordships to combine my present Amendment with the one to come. I am anxious only for one thing, and I can express it in a sentence: that the sea fisheries committee involved in any scheme should be fully consulted before the scheme is finally approved. That is very important. I want to impress upon your Lordships that the sea fisheries committees have done very good work on pollution, that they are really essential, and that consultation with them would be essential. I beg to move.


I certainly agree with the noble Lord's tributes to the sea fisheries committees. But if I may say something about these two Amendments, I cannot advise the Committee to accept them, for the reasons I shall try to explain. The water authority will have a duty under the clause as it stands in the Bill to advertise applications in both the London Gazette and a local newspaper, to send copies of applications to local authorities, and to send copies of applications relating to controlled waters to the Secretary of State and the Minister of Agriculture, Fisheries and Food. Fisheries committees will be consulted as a matter of course by the Minister about applications to discharge within their districts, and he will take account of their views on the applications. Constitutionally, sea fisheries committees are committees of the local authorities, and the local authorities, or joint committees of local authorities, are already entitled to receive copies. At least half their members are appointed by those authorities. A further member is appointed by each river authority, which in future will be the water authority, which has jurisdiction within the sea fisheries district; and the remaining members are appointed by the Minister of Agriculture who also will receive copies of applications. So the situation is that the sea fisheries committees are committees of the local authorities and all their members will have received copies of the applications in their other capacities.

We recognise the importance of pollution control to sea fishing, but we do not think that the sea fisheries committees should be given this special position. Local authorities whose committees they are, and who have a far wider interest covering amenity as well, can of course consult the committees or arrange to provide them with copies of all applications or of applications of particular kinds, if they so wish. If the sea fisheries committees consider that their parent authorities are not making sufficient use of their special knowledge, or will not press their special case sufficiently strongly, they can keep track of all applications themselves through the official gazettes. Also, of course, they will have the same rights as anyone else to inspect the full applications on the register as required under Clause 34.

However, in view of the noble Lord's deep interest in this particular subject I would say a little more about the Government's proposed arrangements to ensure that sea fish and sea fisheries are adequately protected. We intend to recommend that the water authorities should work in the closest informal collaboration with the Ministry of Agriculture in administering the control of discharges to coastal and other tidal waters. We hope and expect that such collaboration will do everything that is necessary. But we have also provided a long stop. The Ministry of Agriculture are to receive copies of all applications for consent for such discharges, as I have already said, and my right honourable friend wants to make it clear that he will be ready to call in for his own decision under Clause 28 any application which the Minister of Agriculture considers it desirable to deal with in that way; and in that case my right honourable friend would expect his right honourable friend to nominate a fisheries assessor at the local inquiry which would normally follow, and they would in any case confer about the decision to be given on the application.

If we are to consider also Amendment No. 150B in the name of the noble Lord, Lord Boothby, the Government do not feel that this would be right. It would give the fisheries committee a unique right which not even the applicant, and certainly not the committee's parent authorities, the local authorities, would have. In fact, we propose to end the sea fishery committee's pollution functions, by withdrawing their by-law making powers so far as these relate to pollution prevention. This will be done by the repeal in Schedule 4 to this Bill of Section 5(1)(c) of the Sea Fisheries Regulation Act 1966. Instead, the Ministry of Agriculture are to be more closely and directly concerned in this field by the administrative arrangements which I have explained. These and the Bill's own provisions will enable the committees to make representations to the water authority and to the Ministry of Agriculture, and will enable the Minister of Agriculture to ensure where necessary that an application for consent for any particular discharge is the subject of Ministerial consideration and decision. The committees themselves will of course be entitled to be heard at any local inquiry into a called-in application. So I hope the noble Lord will agree that we have made plenty of provision for sea fisheries committees to receive all the information they should have, and for them to make representations where necessary.


In view of the assurances that the noble Lord has given, which are very satisfactory in all the circumstances, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

9.5 p.m.

THE EARL OF COURTOWN moved Amendment No. 150H: Page 39, line 35, leave out ("six weeks") and insert ("25 days").

The noble Earl said: I beg to move Amendment No. 150H. When an application is made for a water abstraction licence under the Water Resources Act 1963, 25 days, from the date on which the application was first published in the London Gazette, are allowed for representations to be made. This Amendment is designed to allow the same period for representations to be made about the discharge of used water. In practice I understand that the 25-day period has been found to be quite satisfactory for representations about an application for an abstraction licence.

There would seem to be little justification for a longer period when applications for consent to discharge have been published. A period of six weeks might cause unnecessary delay in dealing with an application. In view of the Government's undertaking in answer to the Amendment of the noble and learned Viscount, Lord Dilhorne—as I understand it, they have agreed to inserting in the Bill that the notice will be put in the local paper for two weeks and following that in the London Gazette—it seems to be even more important that this Amendment should be accepted; otherwise there will be a period of undue delay. I would also mention that one usually sees something in the London Gazette or in a local newspaper within a few days of its publication. One is unlikely to see it five or six weeks after. Therefore it seems to me that 25 days is quite enough. I beg to move.


I listened most carefully to what the noble Earl, Lord Courtown, said, but he did not advance a single reason, apart from conformity with the abstraction of water notice, for reducing the time within which a possible objector can make his objection. I think that the noble Earl got it wrong about what the Minister has accepted. As I understand it, the first publication in the local newspaper will take place at the same time as publication in the London Gazette and the next publication will take place a week later. If we are only to have 25 days it will give someone who has only seen the second publication in the local newspaper very little time indeed to consult with his advisers and with other interested parties as to the line he should take.

The noble Earl said that there may be a delay if people have six weeks in which to consider their position. I suggest that may not be the case and that giving them more time to consider what is proposed and what they should do about it may in fact lead to fewer objections being put forward. The noble Earl has not really advanced a single reason for cutting down the opportunities for an objector to make an objection and I hope the Government will resist this Amendment.


In this case I again agree with the noble and learned Viscount. There is really no magic about the period of six weeks but on balance we think it is the right period. It conforms to the kind of standard period which exists in other legislation for periods in which people are given time to object. It seems a fairly reasonable length of time to choose, given that the water authority has to reach a decision on the application, or at least if it does not reach a decision the application will be deemed to be refused after three months. The six weeks splits that and it is a reasonable period. For the reasons given by the noble and learned Viscount I think that the period of 25 days tends to be a bit short whereas six weeks is fair to everybody. I do not think it would result in delay, given that there is the three month period for the authority to make up its mind. So I hope my noble friend will not press this Amendment.


I should like to have an understanding about the thinking of the Government with regard to the two weeks in the local newspaper. The announcement in the London Gazette will be at the same time as the first week's announcement in the local newspaper, I understand. If that is so, I accept what the Government have said and I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

9.11 p.m.

VISCOUNT DILHORNE moved Amendment No. 150D:

Page 39, line 38, at end insert— ("(d) to give within the period of three months beginning with the date when it received the written representations, to the person who made them notice of the authority's decision with regard to the application or instrument and if the person who made the written representations is dissatisfied with the decision, and within the period of twenty-eight days beginning with the day on which he received notice of it, requests the Secretary of State to exercise the powers conferred on him by section 28(2) of this Act, it shall be the duty of the Secretary of State to consider the request and to notify his decision to the person who made the request;").

The noble and learned Viscount said: I think perhaps this is a more important Amendment and I hope that it will receive a favourable response. Under the clause as it stands there is first a duty on the authority to publish, and to send copies of the application to various Ministers and each local authority; and, under subsection (1)(c), to consider any representations which are received from any person within the period of six weeks beginning with the date on which the notice of the application or instrument is published in the London Gazette. But the clause is silent as to what is to happen after that. The water authority considers the application; it is not required to do anything except consider it. This is quite a different point from that raised by the noble Baroness, Lady White, on Clause 28, where the Minister could give an undertaking that people would in fact be told of the Secretary of State's decision without the requirement of putting that into the Bill. But the Minister and the Secretary of State cannot give an undertaking that will bind every water authority, and with the greatest respect it seems to me that it is a defect in this Bill not to require—and it is not a heavy burden to ask them to do so—the water authority to notify its decision to any person who has objected and made representations. In support of this I may say that it has been brought to my notice that in the past those authorities which have the power to grant consent caused considerable dissatisfaction by not notifying persons who had objected of the results of their consideration of the objection.

But this Amendment does not stop there. It goes wider than that, and I would ask the Committee to contrast this Amendment with the wording of Clause 30(3)(b). Clause 30, "Revocation of consents and alteration and imposition of conditions", says in subsection (3): … it shall be the duty of the authority … to consider the request … and any such representations and comments and, within the period of three months … to give the person who made it notice of the authority's decision with respect to the request. … There you have a precedent for putting on the water authority giving the consent the obligation to give the person who made the request for a review notice of the authority's decision. It seems odd to me that before the discharge takes place, when the application is there for the original consent and someone objects, the water authority need not tell the objector what it has done. Its only duty is to "consider" a request by the objector.

A year later, under Clause 30, the objector can come along to the water authority and say, "With regard to the consent you gave a year ago, I can now ask you to review it, and having had my request you are now under the duty to tell me the result of your further consideration of this matter". But it does not stop there. Your Lordships will see that subsection (3) of Clause 30 goes on: and if the person who made the request is dissatisfied with the decision and, within the period of twenty-eight days beginning with the day on which he received the notice of it, requests the Secretary of State to exercise with respect to the consent the powers conferred on him by the preceding subsection, it shall be the duty of the Secretary of State to consider the request. So we have here an express provision whereby a riparian owner or fishery club who have suffered the effects of a discharge for a year can request a review, and if dissatisfied with the decision of the water authority in relation to their request, can get the matter considered by the Secretary of State; and it is his duty to consider the request.

What I do not understand about this Bill is why, when the question of a consent to a discharge initially is being considered, private individuals, and clubs, should not be given exactly the same rights as they will have under the Bill after suffering the discharge for a year. It seems to me very odd. When they had suffered the discharge for a year it would probably be more difficult (particularly when one looks at Clause 31; but I will not anticipate what I propose to say on that), to get the discharge varied or stopped than it would be to get the consent refused in the first place. I am not talking now about frivolous objections and stopping discharges which are necessary in the national interest. I am seeking to press the Government to give better opportunities than are now provided by this Bill for an objector to appeal from the decision of the water authority to the Secretary of State; to ask him to consider the matter, to give objectors the equivalent rights to those which they will have after a year has elapsed. Indeed, I think your Lordships will see that the last part of the Amendment No. 150D follows very closely the last part of Clause 30(3), although the powers concerned which the Secretary of State must be asked to exercise are the powers under Clause 28(2).

The Amendment I propose puts no more duty on the Secretary of State than the duty to consider the request and notify his decision to the person who made the request. If this Amendment is accepted the water authority will have to notify the objector of their decision. At present it is under no obligation to do so. If the authority grants the consent and the objector does not like it, he will be able to ask the Secretary of State to consider the matter; and the Secretary of State will then be bound to consider it and to notify his decision to the person who made the request. This seems to me an entirely reasonable Amendment. I think it is important. If the Government say that it will not do on the grounds that it goes too far, I am prepared to consider any modification. If they want the Bill to stay as it is, I hope that we shall have a satisfactory explanation of the difference in treatment between an original objector to a consent and an objector who objects after suffering the discharge for a year. I beg to move.

9.21 p.m.


I should like very strongly to support this Amendment. This is another example, as I see it, of the way in which this Bill is slanted in favour of the would-be polluter. The would-be polluter is to have a right of appeal to the Secretary of State, yet the person whose water is polluted is to have none of these rights. Under Clause 30 he can take any action after his water has been polluted only after a period of a year. In that time the whole of the fish in the river may have been killed. Supposing lie is successful and the pollution is stopped, it may take years before that fishery is restored. I think this is a very important point and I ask the Government to give it very serious consideration.


The noble and learned Viscount's Amendment really falls into two parts. He is asking, first of all, that there should be a duty laid on the regional water authorities to inform objectors, when they make their decision, what that decision is. I must say that that seems to me to be an entirely reasonable request. I would imagine this would be an automatic action on the part of the regional water authorities. May I undertake to look into that particular point to see whether it is really necessary to put it in the Bill? I will endeavour to ensure that this does in fact happen because, as I say, it seems to me perfectly reasonable.

So far as the Amendment goes, it, unfortunately in my view, is linked with the second part of this proposal, which gives a right of appeal to the Secretary of State. We feel that this is not appropriate in the context of the present Bill. When my noble friend Lord Bledisloe asserts that the Bill is slanted in favour of a would-be polluter, we have to remember, as I have tried to point out before, that the regional water authorities themselves are slanted against a would-be polluter. They have a statutory obligation to see that the water is wholesome. They are providers of drinking water. They have a built-in slant against the polluter. That is why the present Bill is quite different from the situation that obtains at the moment. We feel that this proposal would give an inappropriate status to third parties in the procedure for considering applications.

To give 28 days to an objector to request the Secretary of State to intervene would delay still further a decision on the application. The call-in procedure is expected to be used only rarely to reserve cases of special importance for the Secretary of State's decision, and it is not intended as a variant on the appeal procedure, which this Amendment would make it. We feel that in most cases discretion must be given to the water authorities, who will consider such representations as are made to them and should be able to make their own decision and carry it into effect. They will be responsible public bodies with the job of controlling the whole water cycle, from supply through to effluent disposal, and of protecting and enhancing the quality of our rivers, estuaries, and coastal waters, and they should be able to consider fully, but then give the applicant an answer as quickly as is practicable. I have certainly no desire in any way to belittle the efforts of those bodies and responsible individuals who protect the cleanliness of our rivers by the means open to them, but I do not believe that it would be appropriate to give anyone with an interest, however slight, the right to delay the effect of the water authority's decision for 28 days while he considers whether he is going to appeal to the Secretary of State.

So far as the noble and learned Viscount's reference to Clause 30 is concerned, this is not a good precedent. It is a provision for a review of a discharge which damages a person who has a prescribed right. The Amendment seeks to give a right after a consent has been given by the water authority (implicitly, in view of their general duty, a consent which they consider will not lead to damage to the stream), to seek to get that consent countermanded with no further evidence that damage will be caused. I think that the two clauses are quite separate, and I cannot advise your Lordships to accept what the noble and learned Viscount is asking for, which is an appeal from the original decision of the regional water authority.

9.28 p.m.


I am bound to say that I am disappointed by my noble friend's reply to the Amendment that has been moved. Of course we all hope that the water authorities are going to discharge the responsibilities imposed upon them in this Bill extremely well, and we naturally hope that there will not be occasion for appeals to the Secretary of State. However, we have been disappointed in the past by what has happened in the case of the river authorities where the largest polluters of their rivers have been the local authority, who have a majority of representatives on the river authorities, and yet they are still going to have a majority of representatives on the water authorities.

I am not at all convinced that there is to be a complete change, and that a cleaning up of our rivers, which has not proceeded at the speed that Parliament hoped in the past, will necessarily be speeded up to the necessary extent in the future. I should have thought that it was extremely desirable that persons who are dissatisfied with the consents given by the water authorities should have a right of appeal to the Secretary of State. If the Government feel that the Amendment is too wide—I am not quite sure of my noble friend's words, but he said something about appealing to the Secretary of State about some minor pollution—I am sure that that could be taken care of. There may be really serious pollution to which consent is given by the water authorities, and it is most unsatisfactory that there should not be a right of appeal to the Secretary of State by those who are to be adversely affected by the continued pollution of our rivers.

I think it also desirable that some attempt should be made to ensure a general standard of uniformity throughout the whole country. I recognise that some rivers are much more polluted than others and it will take very much longer to purify them, but there may well be cases of rivers running through industrial areas where, because of the pressure brought by local authorities and by industry, consents are given by a water authority for continued pollution of that river which would not bring it up to the standard which I am sure Parliament and the nation hope will take place. I should have thought this was the kind of Amendment to ensure fair and equitable treatment of those who are concerned with purifying the rivers, and I see no reason why there should not be a right of appeal in this case. I hope the Government will consider this matter again before the Report stage. I am not at all convinced that the Bill is not unduly slanted in favour of the polluter, and I think this would be a way by which the Secretary of State could ensure that a satisfactory improvement is made in all rivers throughout the country.


The noble Lord the Minister, in replying to what I said on this Amendment, accepted that it might be desirable, and that he would look into the question, to insert a provision to say that a water authority should give to the person who has objected notice of the authority's decision in regard to the application or instrument I welcome that so far as it goes, but it does not go very far. That is linked with giving the objector a right, not to a rehearing or anything like that, but a right to appeal to the Secretary of State to consider the matter. It is no more than that. What are the arguments advanced by the Minister against that? He said that it is not appropriate in the context of this part of the Bill. That is a flat statement, but no reasons for it are given.

The Minister then went on to eulogise the water authorities. I feel sure that when river boards were set up the hopes that river boards would prevent pollution were as high as the noble Lords' hopes that water authorities will be effective to do that. But I do not think that hopes, however high, are sufficient justification for removing the safeguards which should exist against things going wrong.

Let me put this sort of case to the noble Lord. Let us suppose that the water authority has an application before it for consent to a discharge of polluting liquid of a serious character, and that is what it has to give consent to. The case for giving that consent may be a strong one, of a new development or a new factory or something like that. Some difficulty has arisen. Indeed, the Bill seems to recognise that, because it provides that where someone does make a discharge without consent and breaks the law in that respect, nevertheless without his applying for consent at all the discharge can be approved of by the water authority.

We are told that the water authority will not be slanted in favour of polluting discharges. Let us suppose that it has such an application for a bad discharge of polluting liquid which people below the point of discharge, rightly or wrongly, think will ruin their fishing, will ruin the river, ruin the flora and fauna and convert the river in the space of a year into nothing less than a sewer. Does the noble Lord say that it really is sufficient merely to say that they should have the right of asking the water authority to consider their objections without any right to ask the Secretary of State to deal with the matter The noble Lord has not justified, or indeed sought to justify, the difference between the rights of an objector after one year's discharge and the rights he has before the discharge takes place. He has objected to the period of 28 days. That is the period provided under Clause 30. I cannot see why it is wrong for one and right for the other. As the noble Lord has given no hope of further consideration of this matter, and it is one to which I attach importance, being one in line with the other proposals in this Bill which take away rights from private individuals without any compensation, I feel disposed to press this Amendment if my noble friends will support me.


I hope that the noble and learned Viscount will not press this particular Amendment until we have debated a number of other Amendments at later stages which are concerned with Clause 30, to which he has already drawn attention, and the new Clause 39 which again allows the water authority to take action to deal with "poisonous, noxious or polluting matter". We have tried very hard in the Bill to make sure that the type of people he has in mind have a proper opportunity to have any of their causes for grievance properly investigated and taken care of. Where I think we differ thoughout our consideration of this Bill at the moment is in the responsibility of the regional water authority. We believe that these will be effective public bodies with the wide duties laid upon them and with their particular membership, and that there are plenty of safeguards for the person who is affected in any way by pollution.


My noble friend refers to their membership. Is it not the case that there will still be a majority of local authority representatives on them?


A very bare majority. I know it is a majority, but it is a bare one and these are very big authorities. They cover a number of local authorities and they are financed from charges and not from the rates. I see no reason at all to suppose that they are not going to act responsibly and fulfil their statutory obligations. I do not feel that it would be appropriate at the moment to give third parties, whoever they may be—and they may be anybody, however important or however frivolous their objection—an automatic right of appeal to the Secretary of State. They have plenty of other built-in rights under other clauses of the Bill, as the noble Lord knows.


No, I do not know, I am afraid. I do not accept that. I have looked at the other clauses. I can see the new clause tabled which gives wider powers to the water authority. I have read the rest of the Bill and simply do not accept that. The riparian owners are the ones with whom I am concerned; I am not concerned with the frivolous objector. All you need do with him is to put his application in the wastepaper basket and say that the Secretary of State is not prepared to consider it. The noble Lord must recognise that the Amendment asks only that the Secretary of State should consider the request. It does not mean an appeal in the way of a rehearing, nor does it under Clause 30. It means that they can ask him to look at the matter, and that is all it is. He will not do anything about it if he thinks that is is unwarranted.

The noble Lord asks the Committee to accept that the water authority will always know best, far better than anyone else concerned with the river. When the noble Lord says to me that the subsequent clauses of the Bill provide adequate protection to people who have interests in that river—fishing clubs, riparian owners and so on—I can only say to him that I profoundly disagree with him; and when you read a clause that expressly provides that the right of a private individual to obtain an injunction to prevent a discharge is taken away, I do not see how the noble Lord can say that this Bill contains adequate protection for the private riparian owner. I do not think that this Amendment has been fully considered. I am sorry that the noble Lord cannot give me proper assurances that he will look at this matter very sympathetically. In the absence of those assurances I feel that I must press this Amendment, but I shall not finally decide until I hear what the noble Baroness has to say.


I would not lot one moment stand between the noble and learned Viscount and a Division, if that is what he wants, but I should be much happier if we were in the position of having studied this important and very long new clause which has been put down extremely late in the day. It has not been possible to study it and to consider its effect on, for example, the Amendment which is now before us.

I so often agree with the noble Lord, Lord Molson, that I find it an unhappy state of affairs when on this occasion I cannot agree with him in his criticism of the local authority members. As the noble Lord, Lord Aberdare, has pointed out, the situation is entirely different from what it was hitherto, especially on the matter of finance, which is such an important consideration. Therefore, I was not so much convinced as I normally am by what the noble Lord, Lord Molson, said. We do not feel able to support the noble and learned Viscount on this Amendment, but of course it is entirely up to him whether he presses it to a Division.


I sympathise with what the noble Baroness said about the new clause, Amendment No. 166F. It is a very long clause, but if she has read it I am sure she has not failed to notice that it does not give a single right to the riparian owner; it merely imposes duties and obligations on a water authority. This new clause cannot be used as a shield in answer to this Amendment, because it does not at all touch the same sphere. What I am concerned to see is that people who have legitimate objections shall have a chance of having them properly considered.

If the Minister thinks that there is anything in Amendment No. 166F which gives increased rights to private individuals—and I am concerned here with the rights of individuals—as distinct from duties and obligations on a water authority, I shall be grateful if he will draw my attention to it. But so far I have not been able to see anything of that sort in that Amendment. Nor have I been able to find the provisions to which he referred, which he said give rights to and protect private individuals. It is because of that absence that I tabled this Amendment. If the noble Lord would like a further opportunity to consider the Amendment I shall not press it on this occasion and will come back to it at Report stage, unless he can satisfy me before then that my fears are unwarranted. Perhaps he can answer that question.


I hope that as we go through the Bill the noble and learned Viscount will see that we are trying to provide every sort of opportunity for fairness to be shown and to be seen to be shown. However, the position is rather different from what it has been hitherto. What we are arriving at is the nub of the disagreement between us. The noble and learned Viscount is fighting for the legal rights of individuals on which, to a very large extent, we have hitherto had to rely for restricting the pollution of our rivers. What we are trying to do in this Bill, as that system has notably failed, is to produce a new system under which the regional water authorities have very distinct responsiblities laid upon them for the wholesomeness of the rivers. They, in their turn, will lay considerable burdens on other people, such as industry and other dischargers, for publication of the forms of their discharges. There will then be a great deal more publicity, consent has to be given and the terms of the consent have to be published, so the whole concept of the Bill is very different from the present position. I hope that the noble and learned Viscount will not press this Amendment now, because we will come to many other Amendments of this sort and if he wishes he can return to it at Report stage.


I must express disagreement with the noble Lord when he says that the efforts of the private owner to prevent pollution have notably failed. They have notably succeeded. We start with the Pride of Derby case, and we go on to the Consett iron case and other cases. There is not the smallest doubt that it has been the efforts of the riparian owners and people who have brought similar actions in the courts that have done an enormous amount to clean up our rivers. I cannot let that remark of the noble Lord go unchallenged.

9.46 p.m.


Would the Minister be so good as to refer me to any subsequent Amendment (he referred to subsequent Amendments and I have studied them, I think very carefully) which would answer the point that the noble and learned Viscount was putting to him: that the private individual, the riparian owner, as distinct from the water authority, is to receive any further assurance from those later Amendments that his objection is going to be taken into account and seriously considered—and considered, really, by the Minister if he has not had satisfaction from the water authority? I have searched those further Amendments to try to find some reinforcement of the point of view of the individual. I dare say it is my own fault, but I have not found any. But when the noble and learned Viscount was addressing him the Minister said to us, in effect, "Look at further Amendments. Look at the new Clause 39, and you will find somewhere in them what you are asking for; namely, that the private individual is to have the reassurance that the noble and learned Viscount is seeking for him, that his objection has really been taken into account". I should be most grateful if the Minister would point out any such further Amendment. I have certainly not been able to find one.


Perhaps I misled the noble Lord, in which case I apologise. What I was trying to say was that there are certain rights left with the individual. In the first place, there is the right under Clause 30(3) if damage has been caused to him after the expiration of one year. We can argue whether one year is correct or not, but there it is; that is one protection for the individual. Then there are the legal rights of the individual if he has suffered damage to go to the court and seek compensation for that damage. There is the further legal right that if a person has discharged illegally or without consent, again an individual can go to the court. There are these rights. Then, when I was referring to a new Amendment I was referring to the new Clause 39. That I admit is not, strictly speaking, a power given to the individual, but it is a duty laid upon the water authority to make sure that no individual suffers from poisonous, noxious or polluting matter, even though there may be a consent for its discharge.


Perhaps I may just say that the noble and learned Viscount has already answered what the Minister has just said. The new Clause 39, as the Minister concedes, gives no right to the individual. As to the right to come back after a year, that has been in the Bill; that is not an Amendment. The Minister referred to Amendments. With regard to the right to claim damages, what Clause 36 does in its present form is to take away a right which he would normally have to ask for an injunction, which I should have thought was absolutely indispensable for any effective recourse to the courts. I hope that the Minister will now be prepared to say, "When I referred to subsequent Amendments I was speaking under a misapprehension." No further Amendment gives any further help to the private individual. Any help that he gets must be found in the wording of the clauses as they stand now, amended, I would hope, in the way the noble and learned Viscount has asked that this one should be amended.


I am grateful to the noble and learned Lord, Lord Stow Hill, and to my noble friends Lord Molson and Lord Bledisloe, for their support. The noble Lord, Lord Aberdare, stressed the duties imposed on water authorities, but that is not the point of this Amendment. I do not object to the duties and the obligations being imposed on water authorities. The noble Lord has been silent about what sanctions there are in the Bill to secure that the water authorities discharge these statutory duties. My memory goes back to the creation of the river boards and I am sure I am right in saying that at that time, high hopes were held that they would stop pollution. The noble Lord says that the existing remedies have broken down, but it was the non-exercise of the powers which the boards had that was the trouble. Had it not been for the rights of private individuals to which my noble friend has referred, a great deal of pollution which has been stopped would now be continuing.

I must tell the noble Lord, Lord Aberdare, quite frankly, that I am not in the least content to be told, "It is all all right. We can leave it to the water authorities". To be told that does not seem to me to be any justification for depriving private individuals of their rights. There is no Amendment which gives them increased rights, and I think that the noble and learned Lord, Lord Stow Hill, was right about that. When you look at the subsequent provisions of this Bill, for reasons which I hope will be explained later, you will see that the Bill deprives them of rights that they now have and which they have had over the centuries; and for no good reason. In the hope that the noble Lord will reconsider this carefully, and bearing in mind that he recognises that I may put down this, or a very similar, Amendment on Report, when we have studied the later provisions in the Bill, I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.53 p.m.

LORD MOLSON moved Amendment No. 150 J: Page 40, line 18, at end insert ("with the applicant's consent").

The noble Lord said: The clause at present provides that where a consent has been given it will not apply solely to a single individual. It provides that a consent for any discharges which is given in pursuance of Section 27 of this Act is net limited to discharges by a particular person and accordingly extends to the discharges in question which are made by any person". This is really a probing Amendment. I am not clear in what circumstances another person can discharge in pursuance of a consent under Clause 27 of this Bill, but it appears to me that it is only right that the applicant's consent should be obtained.

As I see it, if an applicant has had consent to the discharge of a certain quantity of effluent and somebody else adds to the discharge of that effluent and claims that his discharge is permitted under the consent given, it might well mean that the original applicant for the consent would find (the consent having been limited to a certain amount of polluting matter) that if somebody else without his knowledge or consent added to the discharge of polluting matter at the same place, this might result in a breach of the consent. Therefore it seems to be only right that before anybody else seeks to avail himself of the applicant's right to discharge, he should obtain the consent of that applicant. I beg to move.


As my noble friend has said, this subsection provides that a consent to a discharge of trade or sewage effluent is not to be limited to a particular person but shall extend to the discharges made by any person. No new principle is involved here: the best view of the existing law is that consent runs with the land. Under existing legislation, consent is required both for bringing into use an outlet and for making a discharge from it. In the Bill, these two separate controls are combined in one and the authority has power to attach conditions. Generally, the discharge will be made through a pipe and nobody unauthorised will be able to get his effluent into the pipe without connivance or neglect by the applicant. But I suppose there may be cases where an applicant is making a discharge in some other way—perhaps through an open channel—to which anyone can gain access, and in that case it is up to him to take proper precautions against this sort of trespass against his right to discharge. I think it would rightly fall on his shoulders to see that is done. Probably the main use of a non-personal consent is that it is available to a successor discharger: for instance, if one person took over from another a going concern, that consent would apply to him. But I do not really think the consent is necessary, though I will certainly have another look at it. Before my noble friend explained his Amendment, I was a little uncertain as to what he had in mind.


In view of my noble friend's explanation and his promise to look at the matter again, I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 29, as amended, agreed to.

Clause 30 [Revocation of consents and alteration and imposition of conditions]:

LORD ABERDARE moved Amendments Nos. 150L and 150M: Page 40, line 22, after ("and") insert ("subject to the following section"). Page 40, line 28, at beginning insert ("Subject to the following section").

The noble Lord said: May I first apologise for the fact that these Amendments were put down only last Friday, which may have led to some inconvenience However, I can assure your Lordships that they are purely drafting Amendments, designed to make clear that the provisions in subsections (1) and (2) of Clause 30, which give power to the water authority to revoke or vary a consent to discharge and to the Secretary of State to direct them to do so, are subject to those in Clause 31. Clause 31 provides that revocation or variation shall not normally take place for a period of not less than two years specified in the consent. If a consent is varied or revoked before this period has expired, compensation is payable in certain circumstances; so the general power to vary or revoke in Clause 30 is subject to these arrangements in Clause 31. I beg to move.


I was going to raise a question with regard to the relationship of these two clauses, but perhaps it would be more convenient to do that when we get to the Motion, That Clause 31 stand part, rather than discuss it on these Amendments. I am a little doubtful as to how the two fit together.

10.0 p.m.

VISCOUNT DILHORNE moved Amendment. No. 150E: Page 40, line 40, leave out ("a prescribed") and insert ("any").

The noble and learned Viscount said: Subsection (3) of Clause 30 says: If a person having a prescribed right connected with a stream … considers that discharges … have caused damage … can take the action so set out. "Prescribed right" means right prescribed by regulations. We have not seen any regulations, and I do not know why it should be limited to a prescribed right. By my Amendments I have sought to make the clause read: If a person having a right or interest connected with the water … By that one means a legal right or interest. I do not like the idea of prescribed rights, which means some rights which may be less than the legal rights now held. I cannot see the need for any such restriction. I beg to move.


I should like to support the noble and learned Viscount. I found great difficulty in understanding who the prescribed person would be in relation to my Amendment which follows. I hope my noble friend will agree to this Amendment.


I should like to support my noble and learned friend. Surely what you have is a person who has a legal right—it may be the riparian owner, or the lessee—but it is that person who has the legal right, not the person who has some unknown prescribed right which we apparently do not yet know about. That must be common sense.


Could the Minister explain what is meant by "prescribed right"? What has the Minister in mind? What kind of persons who do not have legal rights would have prescribed rights?


The idea was that the people who had these rights should be prescribed in regulations, as the noble and learned Viscount has already said. The categories of people who have rights connected with streams or stretches of controlled water are somewhat diverse; they include people who own one or more banks of a stream or who, in certain circumstances, lease property or who own fishing rights. We found it difficult to spell out in the Statute exactly who is concerned, and to say anyone with a right connected with water suffers from the disadvantage that people and the water authorities could be in doubt about which categories of persons are involved. The intention of the clause is to enable the Secretary of State to prescribe in regulations what rights connected with water attracted the benefit of the provisions in the subsection. It is not the intention that the regulations should be restrictive but rather descriptive, and to help both the water authorities and the people involved. If noble Lords with their legal knowledge feel it would be better done by sticking to those with legal rights, I do not have a closed mind on the subject and would be delighted to consider it.


I personally would prefer it to be legal rights. This wants re-wording. By "right" in my Amendment I mean "legal right". I think that the word "connected" is an unfortunate one. It ought to read: … in relation to a stream or controlled waters. I do not think then you have to make a list in regulations of persons or try to define classes of persons who have legal rights. They will have to establish that they have a legal right to bring themselves within the subsection. That would be a great improvement and would save making regulations which are always tiresome to find. That would meet what the Minister wants. The only criticism about that is it would prevent the various soceties, like the Anglers Co-operative Association, from invoking the provisions of this subsection. I should like to know what the Minister's views are on this matter. As I read the subsection, it was not intended to give bodies of that sort theses kind of rights. In that case it would be better drafting and perfectly effective if the Amendment was changed to read in much the way that I have suggested. The word "connected" is unfortunate, and if the noble Lord will accept the Amendment in spirit and look at it before the next stage, I will ask leave to withdraw this Amendment.


What worries me slightly is the word "interest". I do not know if this is widening it beyond—


I am not wedded to the word "interest". I am merely suggesting that if you have an interest it must mean a legal right or interest. The noble Lord may like to put "legal right or interest" I do not think "interest" makes very much difference, but perhaps it is a more useful expression.


I entirely agree with what my noble and learned friend says. "Legal right or interest" is a very usual expression. You find it in a vast number of Statutes. It is a well understood phrase. I think it would be well to adopt it.


For those of us who are not legally minded, perhaps the noble Lord could write to me about this before the next stage, because there must have been something further in the minds of those who drafted this Bill when they used the word "prescribe". If existing legal rights were all they meant there is no need to insert "prescribed" at all. I am puzzled about it, and should like to have a letter on it.


"Prescribed" may mean all legal rights and interests, it may mean more than legal rights and interests, it may mean less than legal rights or interests. But we shall no doubt learn in due course. I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

10.9 p.m.

LORD CRAIGTON moved Amendment No. 150K: Page 41, line 1, leave out from ("and") to ("requests") in line 2.

The noble Lord said: I am seeking to delete the words at the top of page 41: after the expiration of one year beginning with the day on which the consent was given".

Lord Bledisloe, in speaking on Amendment No. 150D, has really made my speech for me. The point is a short one. If the result of a consent to discharge turns out to be even worse than expected, it seems to me it would be unfair to keep the victim waiting for a year before he can apply for relief. I had in mind a valuable fishery which could be permanently ruined in that time. I wondered whether the owner of the fishery was prescribed, but am happy that that point has been settled. I beg to move.


I have to support this Amendment. It comes back to what we were discussing earlier on an Amendment of my noble and learned friend Lord Dilhorne. Clause 33 presupposes, as I understand it, that there may be a case in which the water authority has given a consent yet the river is damaged. The answer is that the water authority has made a mistake. My noble and learned friend Lord Dilhorne was saying that in those circumstances there ought to be a right of appeal to the Minister. But once you assume that the water authority may make a mistake—and they are all human—then surely it is better that that mistake should be rectified by an appeal to the Minister before the damage is done. If you wait a year, as my noble friend said, the fishing may be ruined and it may take a great many years to resuscitate it. If we cannot have Lord Dilhorne's Amendment, I think this matter needs very careful attention.


This subsection is designed as a special alternative remedy for a particular set of people. The procedure is modelled on that devised to deal with a very similar situation in the Water Resources Act 1963, where someone who considers that his fishing rights have been damaged by the grant of certain licences to abstract water may, after one year, apply for the licences to be revoked. In both cases a period of one year is stipulated before representations can be made because a minimum period is thought to be appropirate before the lasting effect, if any, of the discharge or the abstraction can be assessed.

In some cases discharges settle down after a short while and their long-term effect is much less than to an outside observer seemed likely when they started. Moreover, it can make a difference if the discharge started at a time of abnormal conditions, of droughts or flood. Of course, anyone can ask the water authority at any time to use its power to revoke or vary a consent, and equally, as I have already mentioned, a riparian owner's rights to civil damages are not affected. But it seems reasonable in making this special procedure available, which also has specific provision in this instance for reference to the Secretary of State, to follow the precedent in the Water Resources Act and allow time for a discharge to settle down and for its lasting effect to become apparent before a formal request has to be considered by the water authority. But once again I am quite sure that, if things went badly wrong, a responsible water authority would immediately take action on representations being made to it by a riparian owner or the owner of fishing rights.


I hope the Government will reconsider this whole matter between now and the Report stage. We have had two explanations from my noble friend. So great is the Government's confidence in the foresight and wisdom of the water authorities which are to come into operation, that where some riparian owner has reason to object to a proposed consent for the discharge of pollution into a river the Government think it is unreasonable and unnecessary that that riparian owner should retain the right of appeal to the Secretary of State. They obviously contemplate the possibility that their complete confidence in the wisdom and foresight and strength of purpose of the water authorities may on some occasion prove unjustified. Somebody then suffers serious damage because unwisely this pollution has had consent from the water authority. He then has to wait for a year during which he is being damaged by this undesirable pollution, and after that time has elapsed he then has a right of appeal to the Secretary of State.

I hope the Government will reconsider the whole of the structure of this Part of the Bill between now and the Report stage. Why should there not be the right of appeal for which the noble and learned Viscount appealed in the original case? Why, after a mistake has been made, should the riparian owner be expected to wait for the period of 12 months? What is the particular sanctity that attaches to 12 months of pollution before the appeal can be heard? I think the arguments of the Government against an appeal in the first instance, and their arguments in favour of an appeal after 12 months in the second case, are not wholly consistent; and I hope that before the Report stage they will make up their mind what they think about it.


In view of what my noble friend has said I think probably the Government are now seized of the fact that we are not too happy about the last few Amendments. I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 30, as amended, agreed to.

Clause 31 [Restriction on variation and revocation of consent and of previous variation]:

10.15 p.m.

LORD ABERDARE moved Amendments Nos. 150N to 150S: Page 41, line 25, leave out ("or (2)"). Page41, line 33, leave out ("or (2)"). Page 41, line 35, leave out ("either of those subsections") and insert ("that subsection"). Page41, line 43, leave out ("or (2)"). Page 42, line 3, leave out ("in pursuance of the said subsection (2)") and insert ("served by virtue of subsection (2) of that section"). Page 42, line 18, after ("and") insert ("not by virtue of the said subsection (2) and").

The noble Lord said: If I have your Lordships' permission I should like to move Amendments 150N to 150S en bloc. These are all drafting Amendments. Once again, I apologise that they have been put down at very short notice. The reason for them is that notices revoking consents or varying the conditions attached to consents to discharges are always served under Clause 30(1). Even where the Secretary of State, under Clause 30(2), serves the notice himself because the authority has failed to follow his direction to do so, he serves the notice on behalf of the authority and subsection (2) makes clear that in these cases the notices, for the purposes of this Part of the Bill, are to be regarded as having been served by the authority, that is under subsection (1).

It is unnecessary therefore and incorrect, in Clause 31 to refer, as the present draft does in subsections (1), (2) and in the second line of subsection (3), to notices served in pursuance of subsections (1) and (2) of the preceding section. I beg to move.


I am not rising to oppose these Amendments in the least, but I think your Lordships' attention should be drawn to the fact that this is a Government Bill. The Government have tabled over 100 Amendments already and at this late stage we get some more. I really think it is time that the Parliamentary draftsmen learned to do their job.

LORD ABERDARE moved Amendment No. 152: Page 42, line 22, leave out ("including") and insert ("which may include").

The noble Lord said: With respect to my noble friend Lord Bledisloe, this is a drafting Amendment. The change in circumstances which would make necessary the revocation or modification of a consent before the period set during which it would not normally be modified may include a change in scientific knowledge, but it does not have to. I beg to move.

LORD ABERDARE moved Amendment No. 153:

Page 42, line 39, leave out subsection (5).

The noble Lord said: This subsection was included to deal with a situation where a discharge was to finish before two years had elapsed, and therefore the provisions of subsection (1) requiring consents not normally to be altered for at least two years was inappropriate. On further consideration it has the undesirable effect, as it is drafted, of not allowing any emergency alteration of consents running for less than two years, except by written agreement. As it does not really matter as the undertaking required by subsection (1) is given even in cases where the discharge is expected not to run for two years, it is proposed to dispense with this subsection. The effect of doing this is that discharges expected to run only for a short while will be dealt with in exactly the same way as longer term ones. Consents will not normally be modified within less than two years, but they may be unnecessary with compensation payable in accordance with arrangements made under subsection (4). I beg to move.

On Question, Whether Clause 31, as amended, shall stand part of the Bill?

10.20 p.m.


I must say that I do not think I have appreciated the full effect of the numerous drafting Amendments which have been made to this clause in this very short space of time, but I have not risen to my feet to ask for an explanation of them. This is a very important, and I think a very curious clause, and if the noble Lord will be good enough I should like him to explain in some detail the relationship of this clause to the preceding clause, Clause 30. We have had Amendments made this evening to Clause 30 to say it shall be subject to Clause 31, so Clause 31 takes priority. Am I right in thinking that once the water authority has given consent to a polluting discharge, the effect of Clause 31 is that the polluter who gets the consent to the discharge acquires a right to continue that discharge for a reasonable period of not less than two years, beginning the day on which the consent takes effect? If I am right in that, I am not quite sure how the provisions giving the Secretary of State power under Clause 30(2) to cause the water authority to review a consent really will operate.

Under Clause 30(3) one could have a riparian owner objecting at the end of a year. What can the Secretary of State then do? There is a vested right in the polluter who has the consent to discharge for a reasonable period of not less than two years. Has the poor riparian owner to suffer another year before anything effective can be done, or can the Secretary of State override the power? I am inclined to think from reading the clause that the Secretary of State is given power to override the period specified, which is not less than two years, and there is no upper limit. It may be a period sanctioned for, say, ten years. I am inclined to think the Secretary of State has power to override that when he considers it necessary to serve the notice in order to provide proper protection for persons likely to be affected. I do not know what those words mean in the context that the discharge to which consent is given must be a polluting discharge and will affect the rights of persons who are riparian owners and entitled to receive unpolluted waters.

My Lords, may I also ask whether, if this right is exercised, and exists, this clause means that in every case where the consent is terminated in less than a stipulated period, which might be much in excess of two years but at any rate has to be two years, compensation will have to be paid to the polluter unless the case comes within subsection (4)(a) or (b), which are very complicated provisions? Am I right in thinking that as a general proposition, compensation will ordinarily be payable if the consent is terminated in less than the period to which the notice relates? Because if that is so, I can see the considerable reluctance on the part of a water authority, or on the part of a Secretary of State, to terminate a consent which they have granted which, in itself, would indicate a confession that they have made a mistake. It then has to be accompanied by the payment of compensation by them. It may be that I have not understood this complicated clause correctly; it is very complicated. I would ask the noble Lord whether there is any precedent for it. I am not myself aware of one.


This is indeed a very complicated clause. I am not sure whether I can really satisfy all the questions the noble and learned Viscount has asked, but I will certainly write to him and ensure that I do. For Clause 31 there is a precedent; it follows Section 5 of the Rivers (Prevention of Pollution) Act 1961 and the 1965 Scottish Act, in requiring consents to specify a period of not less than two years within which they may not be varied or revoked except with the agreement of the person holding the consent. But it goes further than that—and this is where it breaks new ground—by permitting an earlier variation or revocation of the consent with payment of compensation unless there has been a change of circumstances which could not have been foreseen when the consent was granted.

Subsection (3) enables a water authority to serve notice of revocation or modification within the specified period if they are satisfied that is necessary to provide proper protection for people likely to be affected by the discharge, or in the case of a consent under Clause 27(3) if they consider it to be appropriate as a result of representations made under Clause 29. Subsection (4) makes the water authority liable to pay compensation when a consent is modified or revoked within the specified period except in the two instances under paragraph (a) and paragraph (b). I hope that goes some way to satisfy the noble and learned Viscount, but I will most certainly make this clear to him in writing.

Clause 31, as amended, agreed to.

Clause 32 [Appeals to Secretary of State]:


I think this is consequential on the Amendment we had the other evening on which we had a Division. I beg to move.

Amendment moved— Page 43, line 9, after ("unreasonably") insert ("given or")—(Viscount Dilhorne.)

10.28 p.m.

LORD ABERDARE moved Amendment No. 154: Page 43, line 24, leave out ("or direction").

The noble Lord said: With your Lordships' permission, I should like to speak on Amendments Nos. 154, 155 and 156. The effect of these Amendments is to establish a right of appeal to the Secretary of State where the Secretary of State, exercising his powers under Clause 30(2), has directed a water authority to revoke or modify a consent to discharge. The provision is necessary because otherwise a discharger could have a consent revoked without having an opportunity to put his case. There is no provision under Clause 30(2) for objections to be heard before the Secretary of State makes his direction, as there is in Clause 28 before the Secretary of State determines an application for consent which he has called in for his decision. Although normally he would no doubt make arrangements for objections to be heard, this would not always be possible because he must be able to direct an authority in an emergency to revoke or vary a consent immediately. We think, therefore, that appeals should be allowed against notices of revocation or modification under Clause 30(1) even if they are served after the direction of the Secretary of State in pursuance of subsection (2) of Clause 30. I beg to move.


I beg to move Amendment No. 155.

Amendment moved— Page 43, line 25, leave out ("or 30(2)").—(Lord Aberdare.)


I beg to move Amendment No. 156.

Amendment moved— Page 43, line 26, leave out ("or direction").—(Lord Aberdare.)

BARONESS WHITE moved Amendment No. 156A: Page 44, line 9, leave out from ("section") to end of line 14.

The noble Baroness said: The reason for putting down this Amendment is to inquire why consents given in pursuance of regulations made by virtue of Section 23(5) should be treated as unconditional while a reference is pending, whereas other consents are not so treated. We are not at all clear why this favourable treatment should be given to consents made under Clause 23(5), and we should like to have an explanation.


I think I can explain this to the noble Baroness. Clause 23(5) enables the Secretary of State to designate an area by regulations within which specified activities may not be carried out without the consent of the water authority. This control is somewhat different from other consents under the Bill inasmuch as it bites on activities which might lead to the pollution of water rather than discharges to water. In many instances the prescribed activities affected will already be practised in the area, so that the imposition of new conditions will require them to be stopped or modified. It does not seem reasonable that somebody pursuing activities which have not hitherto led to his prosecution for pollution of water should be stopped from pursuing them even before he has had a chance to challenge on appeal the need for the conditions attached to the consent.

Broadly, the same philosophy has been followed in Clause 33(4) to deal with discharges which are legal without consent until the relevant provision of the Bill is brought into force—until any appeal is determined they are to be allowed to continue in the same form and volume as those being made before the introduction of the Bill. I think this is the distinction: that these are activities already being perfectly legally carried on, and it is only right that they should be allowed to continue until an appeal has been determined, whereas in other cases, where the application is for a new consent, they should not be allowed until the appeal has been determined.


I am much obliged. It is useful to have that on the Record. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 32, as amended, agreed to.

House resumed.