§ 3.26 p.m.
§ LORD ABERDARE
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Lord Aberdare.)
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 33 [Transitional provisions relating to consents]:
LORD ABERDARE moved Amendment No. 156D:
Page 46, line 3, after ("this") insert ("Part of this").
§ The noble Lord said: This is a purely drafting Amendment. The provisions dealing with appeals connected with applications for consent, revocation or modification of consents and so on are to be found in Clause 32. Other provisions dealing with appeals about other matters—for example, site licences for waste disposal under Clause 8—are to be found in other Parts of the Bill, and it is appropriate to make clear in Clause 33 that the appeal provisions in Part II of the Bill are those which are referred to. I beg to move.
§ On Question, Whether Clause 33, as amended, shall stand part of the Bill?
§ THE EARL OF COURTOWN
I should like to ask the Government why they are proposing in this clause to make transitional arrangements by regulation, rather than by putting a general provision in the Bill. The fact that the Government propose to deal with transitional arrangements in this way causes additional uncertainty among those who have consents to discharge under existing legislation. I shall be grateful if the noble Lord will consider this point in order to make sure that this uncertainty is set at rest.
§ LORD ABERDARE
I certainly undertake to do that. The clause provides for transitional arrangements for consents that have been granted by river authorities 186 or by water authorities after April 1, 1974, under powers contained in the Rivers (Prevention of Pollution) Acts 1951 and 1961, or Section 72 of the Water Resources Act 1963 or, in Scotland, the Rivers (Prevention of Pollution) (Scotland) Acts 1951 and 1965. I hope that there is no cause for concern here, but I certainly undertake to look at the point and will take into account what my noble friend has said.
§ BARONESS WHITE
I should like to ask a question about subsection (3), which states that consents,… pending immediately before the relevant day shall be treated on and after that day as an application for consent in pursuance of section 27 of this Act.They will presumably be consents under the 1961 Act, or perhaps under other legislation. Can the Minister indicate how many such applications are likely to be outstanding because I am told that there is a considerable backlog? I wonder whether leaving the provision open like this, without any limit on the time that that they should be regarded as applications for consent under this Bill, would be sensible or good administration. Can the noble Lord tell the Committee whether the difficulty which has been drawn to my notice is as significant as I am led to believe it may be?
§ LORD ABERDARE
I am afraid I am not informed on that point, but I do take the point. Perhaps I could go into it and let the noble Baroness know what the answer is. Then, if she wishes, we can return to it on Report stage.
§ Clause 33, as amended, agreed to.
§ Clause 34 [Registers]:
§ 3.30 p.m.
BARONESS WHITE moved Amendment No. 156B:
Page 46, line 7, leave out ("may") and insert ("shall")
The noble Baroness said: This is a very important clause because, as your Lordships will be aware, it provides for registers which are to be maintained by the authorities, and for them to be open to public inspection. But the curious thing about it—and I have had a considerable
number of letters about this from interested parties—is that the opening sentence of this clause says:
Provision may be made by regulations for the maintenance by water authorities of registers containing particulars",
and then the details of the various particulars follow. This has induced an impression, which seems to be extraordinarily widespread, that the Government are not really firm in their intention in this matter. There seems to be a discrepancy between that first phrase,
Provision may be made by regulations",
and that in subsection (2) of this clause, where it says categorically,
It shall be the duty of a water authority … to secure that registers maintained are open to inspection",
and so forth. This is leading to a considerable degree of misunderstanding. I would therefore suggest that there should be a redrafting of the first part of this clause so that it will be perfectly plain that the Government have every intention to make such regulations.
§ How far the regulations should include all the matters appended to this opening phrase could be considered. It may be necessary to have a further rephrasing; this particular Amendment goes possibly only part of the way. But it seems to me that if so much misunderstanding has already arisen as to the genuineness of the Government's intentions in regard to this clause it would be desirable to draft the Bill in such a way that there could be no doubt. I myself have every confidence that the Government intend to activate this clause, but I am sure the noble Lord will appreciate that there is an apparent discrepancy between the permissiveness of the first part of it and the mandatory nature of the second part of it. It was for that reason that it seemed desirable to put down this Amendment in order to draw attention to the situation. I beg to move.
§ LORD ABERDARE
I can give the noble Baroness an absolute assurance that the Secretary of State will be making these regulations. It is really only a matter of drafting. I understand—and it is so in other parts of the Bill—that it is normal phraseology to use the word "shall" (for example, in subsection (2), 188 to which the noble Baroness drew attention) where an immediate duty is imposed; whereas "may" is not necessarily as strong, but it leaves a little bit of flexibility, for example on the question of timing. If one were to say that the provisions "shall" be made by regulations, then for a short period after the Bill was passed and before the regulations were in effect it could be held that the Secretary of State was in default. This is so right through the Bill. Wherever it is a question of regulations, the word "may" is used in various other clauses—Clauses 16, 17, 44 and 45—and this is so in other legislation, too. So I hope the noble Baroness will be satisfied with my absolute assurance that these regulations will be made, rather than changing this word here, which would entail a great many other changes in this Bill and conceivably in other Bills, too. I assure her that regulations will be made by the Secretary of State and that they will be made as soon as possible.
§ BARONESS WHITE
I am still not quite convinced that consistency is as essential as all that when people are going to misunderstand the proposed legislation. I should have thought one could say,Provision shall be made by regulations for the maintenance by water authorities of registers which may contain particulars"—putting the permissive part of it at the end of the phrase rather than at the beginning. Of course, timing does not really matter in this particular Bill because, as I am sure the noble Lord is well aware, the very last clause, Clause 97, provides:This Act shall come into force on such day as the Secretary of State may by order appoint; and … different days may be appointed … for different provisions of this Act and for such different purposes of the same provision as may be specified in the order".Therefore, if the Secretary of State is not ready to make his regulations he does not need to activate this particular clause. But that he must do it at some point of time is what people want to be assured about.
I do not propose to press this Amendment at this stage because I recognise that it may be incomplete. I had hoped that the Government might have looked at it again and had their own form of 189 words properly vetted by their draftsman, in which case I do not intend to take the Amendment any further. This is a point which, as I say, is causing a great deal of misunderstanding. I have had more letters on this particular Amendment, I think, than on almost any other in the entire Bill, because people cannot understand why it should look as though this was purely permissive and not a firm intention. I will not press the Amendment at this moment, but I should be grateful if the Minister would look at it again because in its intent, at any rate, it is a serious Amendment. In the circumstances, unless other Members wish to say anything—
§ VISCOUNT DILHORNE
I would hope that the Minister would not alter this language, which is common form in a very large number of Acts. The argument is put forward that people misunderstand it by reading it with "shall" in subsection (2) and by contrasting the two. One imposes a duty, and where you impose a duty you must use the word "shall". But here, in the first part of this clause Parliament is giving the Secretary of State power by regulations to do certain things. It would be inconceivable that the Secretary of State should ask for those powers unless he intends to exercise them. I feel it is really hopeless to seek to achieve the avoidance of all misunderstandings of a Bill by all people, and that that really is not a very good argument for making this change. I would take it as absolutely clear that in any Act where there is a provision that regulations may be made the intention is to make regulations dealing with the matters in respect of which power is given to make them. I think that that has been common form for a very long time indeed, and I myself certainly am not aware of any case where a power has been taken and not exercised. Therefore, I hope the Minister will stick to the form which has been recognised for so long.
§ BARONESS WHITE
If I may say so, that is a good legal argument, which is one of the reasons why the public so much distrust laws and lawyers. It goes against all common sense. In the circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.190
§ 3.39 p.m.
BARONESS WHITE moved Amendment No. 156 C:
Page 46, line 13, leave out ("(except section 33(4))").
§ The noble Baroness said: This Amendment concerns the exemption of consents given under Clause 33(4), the preceding clause, from the regulations regarding registers. It is quite true, of course, that under Clause 33(4) the discharges concerned are such that one might regard them as being of not very great importance. But, nevertheless, they are discharges, and it appears to those of us who are very much interested in this question of registers that if you are to have a register at all it should be a complete register, and that one should therefore know that authority has been given for discharges whether they are under the other provisions of the Bill or of the particular kind which are described in Clause 33(4). It is really to ensure that there is a comprehensive register, so that one can have a full picture of the watercourse concerned, that one is very hesitant to agree to the exception made in Clause 34(1)(b). I should be grateful to have the Minister's comments on that matter.
§ LORD ABERDARE
I am grateful to the noble Baroness for drawing attention to this point which is one we should like to consider. The deemed consents in Clause 33(4), as she has pointed out, are deemed to have been given to existing discharges which, before the coming into force of the consent provision in the Bill, did not require consent. These provisions are purely transitional. In order to obtain a deemed consent the discharger has to put in an application giving details of the discharge before the new controls come into force. If he does so he gets deemed consent to continue the discharge unaltered until the notice of the application has been published and finally determined. The details of the application will be entered in the register by virtue of Clause 31(1)(a). Deemed consents are not really proper consents and we do not think it appropriate that they should be entered in the register as consents.
My right honourable friend accepts, however, that it is right that details of applications under Clause 33(4), which automatically engender deemed consents, should be kept separately. This would 191 have the merit of identifying applications in respect of existing discharges, drawing attention to the deemed consents covering those discharges until the applications have been fully examined and a considered consent, issued, and maintaining a running record of the water authorities' backlog of cases. I think that this will meet the noble Baroness's point. Certainly we should like to have a look at it. We believe that what I have suggested can be achieved simply by drafting the regulations to be made prescribing the forms of the registers so as to provide for applications having deemed consent to be kept separately from other applications. If that is so, I will let the noble Baroness know. If we do need an Amendment, I will undertake to introduce it at the next stage.
§ BARONESS WHITE
I am most grateful. Can the noble Lord reassure me entirely, as I am not quite clear about how many existing discharges are covered by Clause 33(4), whether any existing discharges escape this registered provision? It is plain that applications for consent made in pursuance of this part of the Act are caught. The noble Lord has explained deemed consents under Clause 33(4). Are there any other discharges now going on which would escape this register, or are they all included?
§ LORD ABERDARE
So far as I know they are all included, but I should like to check that to make absolutely certain, and to reassure the noble Baroness.
§ BARONESS WHITE
That being so—and, of course, I rely on the noble Lord to tell us whether further consideration indicates the need for other Amendments—I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD ABERDARE moved Amendment No. 157:
Page 46, line 14, leave out from ("conditions") to end of line and insert ("to which the consents are subject").
§ The noble Lord said: Clause 34(1)(b) requires particular consents to discharges to be entered in the water authority's register together with any conditions subject to which consent was given. As it is drafted at present, there is no requirement for any modification of the conditions to be entered. What we want in the 192 registers is an account of the current conditions of consent and, if amended as suggested, that is what the paragraph will require. I beg to move.
§ 3.45 p.m.
§ LORD CRAIGTON moved Amendment No. 157D:
Page 46, line 24, at end insert—
("(e) certificates issued by the Secretary of State under section 35 of this Act.").
§ The noble Lord said: In moving Amendment 156C the noble Baroness, Lady White, said that if you are to have a register, it should be a complete register. This Amendment adds to the particulars recorded in the water authority's register a certificate issued by the Secretary of State under Clause 35 which gives power to the Secretary of State to exempt applications, consents and conditions, et cetera, from publicity. While the security of the Realm and trade secrets must be protected, it seems desirable that some publicity should be given at least to the fact that the Secretary of State has issued a number of such certificates and, where appropriate, the names of the persons and places concerned.
§ LORD ABERDARE
The noble Baroness, Lady White, has down two Amendments which cover very much the same point; they are Nos. 157C and 159A. There she suggests that the name of the applicant and the place of discharge should be entered in the register in cases where a certificate has been issued by the Secretary of State under Clause 35 and, therefore, the discharger is exempt from publicity requirement. We agree that this is a sensible requirement and the sort of information that should be made available. Therefore, I am prepared to accept these Amendments when we come to them. I am not sure whether the drafting is absolutely right, but I will accept the Amendments which seem to me to meet the point made by my noble friend. I hope that in those circumstances my noble friend will withdraw his Amendment.
§ LORD CRAIGTON
I am grateful to the noble Lord, Lord Aberdare, and I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.193
§ 3.48 p.m.
BARONESS WHITE moved Amendment No. 157A:
Page 46, line 29, after ("charge") insert ("at its own offices and those of the relevant county council").
§ The noble Baroness said: The point about this Amendment is that, welcome as these registers are—being open to the public free of charge at all reasonable hours—the use which may be made of this provision will for many people depend on how far they may have to travel in order to inspect the register. If I may take the position in the Principality, with which I am closely familiar, the office of the Welsh National Water Development Authority will be at Brecon. There are no trains of any kind to Brecon from any direction. There are buses, of course, but they are not always convenient, and we do not know what is going to happen to our petrol. Unless some arrangement is made for these registers to be available in certain other places, it seems to me that there will be considerable hardship for people who wish to inspect them.
§ For example, so far as I know, there will be no register on public view in the capital City of Cardiff. It would be improbable that the water authority will have an office at Cardiff as well as at Brecon. There are those in North Wales, but I do not know what offices will be established in North Wales. There may be some, but again they may not be in very convenient places because the counties, and the river authorities now existing, cover wide areas. In Wales we have the peculiar situation that the whole of the Severn catchment comes under the Severn-Trent authority and the headquarters, I would suppose, would be at Stoke, or some such place. This is not very convenient, Therefore, it appears to me that there is some sense at least in looking at the proposition that there should be copies of these registers available. It is purely a matter of inspecting them at the county council offices as well as at the offices of the water authorities. I would not press this Amendment in its present form, if the Minister feels that some slightly different arrangement is desirable. But I am sure he will appreciate that it may be very difficult to take advantage of the registers if they are confined to the offices of the water authorities.194
§ VISCOUNT DILHORNE
Despite what the noble Baroness said a moment ago, on this occasion I should like to support her Amendment which has all the sense that her last Amendment lacked! What is the point of having a complete register—and it is very desirable that there should be a complete register—if it is really inaccessible to the people who want to see it? There are to be only eight water authorities. It is quite unreasonable to expect that a complete register kept by a water authority should have copies in every office of every county council, but it should be possible for persons interested to find out what is in the register relating to a particular area.
In order to meet the request of the noble Baroness, I would ask the noble Lord to suggest that the part of the register which relates to the area of a county council should be available for inspection in the county council's offices. That would meet the point the noble Baroness has made, and it is a very valid point. However, I certainly do not think it is necessary, or indeed desirable—and the cost would be very high—to have a complete copy of the register covering the whole area of the water authority in all water authorities' offices and in all county council offices. I do not think this Amendment would provide for copies of the relevant parts being kept in the offices of the county council, but I hope that the Minister will give an assurance that he will consider introducing an Amendment to bring that about. Unless something of that sort is done, keeping a complete register will serve little useful purpose.
When the Minister considers this matter, will be also consider that there is a country, with which I am slightly connected, called Scotland? We are about to abolish counties altogether. I would imagine that the appropriate wording in our case would be "district councils".
May I put this point to the Minister? It is very important that if registers are to be kept they should be complete; in fact, registers of all samples. All too often nowadays we have cases of recurrent intestinal disorders. The general public ought to have access to the registers to see what is shown in the samples which have been 195 taken. In fact, the general public do not altogether trust the authorities not to suppress samples which show some deleterious microbes and other things. They want to be sure that all the samples are listed in the register.
§ LORD ABERDARE
This is an Amendment with which we have great sympathy and I am very grateful to your Lordships who have contributed to the short debate we have had on it. I can assure your Lordships that the points which have been made will be taken into consideration. We do not think it right to require copies to be kept at the county council's offices for the reason which has been given by my noble friend Lord Hawke—that these registers are of no value unless they are kept absolutely up to date. The county councils have no direct responsibility for keeping them up to date; nor do we think that they should be given this responsibility. But that does not detract from the importance of having information from the registers available at the point where the public can conveniently see it. But there is still a good deal of work to be done on the way in which these registers should be kept. For example, it will clearly be desirable to relate new applications to discharges already taking place in the particular river or stretch of river; to relate samples and their analysis to the relevant consent, and so on.
Much of the work done in connection with the organisation of the River Pollution Survey should help in this respect. The old forms of date-order "book" registration may serve for registering applications, but consent would better be kept in some geographical order in relation to the receiving water. It may be, for example, that the solution will be to have two sets of registers, both in the hands of the water authority, one complete and kept at a single location; and the other split, say, into river catchments, with each part kept at the water authority office most conveniently central to that particular catchment.
These are really only ideas. I am only thinking aloud, because the water authorities have only recently been established and they have not yet had time to consider this extremely important organisational arrangement. I am grateful, therefore, to the noble Baroness for drawing 196 attention to it. I can give her the assurance that I will certainly take note of her views and those of the noble and learned Viscount and others of your Lordships who have spoken. We shall pursue the issues she has raised when we join in discussions with the water authorities in order to make administrative arrangements which will ensure that the correct and relevant part of the register is available to those people who wish to consult it.
§ BARONESS WHITE
This brief debate has been worth while because it has drawn attention to something which is of importance in making the clause really effective. In view of what the noble Lord has said, it may be that it is not necessary to insert anything into the Bill itself. I can appreciate the position of the water authorities. They are still not fully operative. It is obviously desirable that there should be some consultation with them. Therefore, my own feeling about, this matter, having drawn attention to it and it having received support from all quarters of the Committee, is that I should now beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 34, as amended, agreed to.
§ Clause 35 [Power of Secretary of State to exempt applications, consents and conditions etc. from publicity]:
§ 3.55 p.m.
BARONESS WHITE moved Amendment No. 157B:
Page 47, line 6, leave out from ("be") to ("contrary") in line 8.
§ The noble Baroness said: I have no expectation whatsoever that the Government will accept this Amendment, but I put it down because, as one noble Lord said yesterday—I think it was the noble Viscount. Lord Bledisloe—one has the feeling that the interests of the polluter are being carefully looked after in this Bill. There is no suggestion anywhere in the Bill that there are instances where it would be in the public interest to publish certain information even though it might on occasion be held to be damaging to the interests of a person or an enterprise. I do not propose to press this Amendment, but simply again to give voice to letters which I have received, particularly from organisations 197 of which young people are very enthusiastic members, in which they say it is all very well to protect something because it would be contrary to the public interests if it were published; that is understandable but there is no provision in the Bill for saying "Look, it really is in the public interest that this should be published."
§ There is quite a strong feeling among young people who are intensely interested in environmental and conservation matters. I have been very impressed by some of the organisations that I have dealt with since I became interested in this Bill. It is partly because of that feeling that I felt it was only right to draw your Lordships' attention to this matter. I am speaking of people who are not what one might call "cranks", or anything of that kind, but who spend a tremendous amount of their time and energy—some of them giving up very good jobs in order to do so, I may say—because of their intense concern with these environmental matters. They feel that this Bill as a whole, while it has many good things in it, tends towards protecting the private interest rather than putting the public interest first. That is why I put down this Amendment, though I repeat that I have no great expectation that the Government's attitude to society will make them likely to accept it.
§ 4.0 p.m.
§ VISCOUNT DILHORNE
I gave notice as is shown on the Marshalled List, that I intended to move to leave out this clause. I put down that Amendment for much the same reasons as prompted the noble Baroness to move this Amendment. I think I can say on this Amendment—and it will probably save time—all that I desired to say on the Motion, That the clause stand part without getting out of order. I am very puzzled by this clause because I cannot find in the Rivers (Prevention of Pollution Acts of 1951 and 1961 any corresponding clause entitling discharges to which a consent has been given under those Acts to be kept secret. It rather astonishes me to find, after those Acts have been in force for so long, that this is thought to be required. I have made some search, and although I may have missed it I cannot find a provision in the earlier Acts which is being replaced by this clause. If I am right, I ask: what are the grounds for such a provision?
198 I have criticised this Bill during our earlier discussions because it seems to me to make inadequate provisions for notifying persons likely to be affected by a consent given to a pollutant discharge and to give inadequate rights to such persons to object to and prevent such discharges. Under this Bill, despite the clauses we have considered for advertisements to be inserted in the London Gazette, and so on, we find that power is being taken to keep applications for consent to discharge secret, to keep the consents secret and to keep the samples secret. Why? If disclosure is unreasonably damaging", as the clause provides, "to the interests of the person aforesaid"—and "the person aforesaid" is the person concerned with the discharge—the Secretary of State may issue a certificate. What is meant in this context by "unreasonably damaging"? It always will be damaging to the interests of the polluter to have to incur expense in order to try to cure the pollution in every single case.
I wonder therefore what content can be given in this context to the word "unreasonably", particularly as the clause does not require the Secretary of State to consider what unreasonable damage that discharge will cause to those whose legal interests and rights will be affected by the discharge. It has no regard to the other side of the coin at all. The words "contrary to the public interest" are of the widest possible context, and if this provision is new I wonder very much on what occasions it can be said that the publication of the sample of water is contrary to the public interest. Is there any prohibition on other people, if they wish, to take a sample and have it analysed? If that is so, how can it be in the public interest to try to keep secret something which anyone is free to find out for himself?
Again, how can it be contrary to the public interest—I am very puzzled about this—to keep secret the fact or the character of a discharge? Are you going to be able to find out that a particular discharge is taking place or that any particular activity is going on—or an activity which it would be contrary to the public interest to reveal? Are you going to be able to ascertain the content of trade secrets by examining the effluent from a factory? That does not seem to me in the least likely. So I do press the noble Lord in his 199 reply to give the justification for this provision if, as I think, after looking at those two earlier Acts to which I have referred, this is an entirely novel provision.
I would go a very long way with the noble and learned Viscount but I would not go quite so far as he does regarding the public interest. Having been brought up on a diet of Bulldog Drummond, James Bond and so on, one realises that some extraordinary things can go on in this world and that the clue to them may well lie in the examination of effluent coming from places like this. I can well imagine that there may be defence establishments in respect of which it might be highly inconvenient to publish to the world that a certain type of pollution was occurring, and giving, moreover, details of the analysis. But I should like to ask my noble friend to tell us how he can justify the protection of the private individual. If the private individual is engaged in defence matters and so on, he will obviously be covered by questions of the public interest, but I cannot conceive of any other form of interest which it would be advisable to cloak in the way the Bill seeks to do. Undoubtedly if people hear of certain types of effluent being put into a stream it could stir up the "anti-effluent society", if I may so call them. That would be highly inconvenient to an individual, but I do not think it would be highly undesirable.
§ THE EARL OF COURTOWN
Quite often it is not the inconvenience of the private individual that is intended to be referred to this clause, as I understand it. The Royal Commission, in paragraph 8 of their Second Report, say that there will be instances, though comparatively few, where genuine confidential or trade secrets should be protected by not disclosing information about an industrial discharge, which is covered by this clause. I have some examples of these, but they are highly technical and I hope it will not be necessary to give them to the Committee. However, there is nothing particularly secret about the ones that I have.
§ LORD ROBBINS
Could the noble Earl be induced to specify the sort of cases he is referring to, because to the lay ear it seems to be almost incredible that these cases should be actually occurring?
§ 4.9 p.m.
§ LORD ABERDARE
I can certainly justify this Clause 35, though I am afraid I could not recommend to the Committee that they accept the Amendment of the noble Baroness on this occasion. The very short answer, as my noble friend Lord Courtown has explained, is that first of all there is nothing new in the effect, at any rate, of this provision. Secondly, it is based firmly on paragraph 5 of the Second Report of the Royal Commission—I believe my noble friend referred to "paragraph 8", but it is actually paragraph 5 of the Second Report of the Royal Commission on Environmental Pollution.
Clauses 29 and 34 of the Bill contain entirely new arrangements for advertising discharges, and for public registers to be kept of details of all consents to discharges and all samples taken of discharges. This provision for publicity is completely new. Under existing legislation—and I think this is the answer to the noble and learned Viscount—it is a criminal offence to disclose, without permission from the applicant, information obtained in connection with an application for consent. Registers of consents are open only to a person appearing to the river authority to be interested in the land, premises or outlet concerned. The reference is in Section 7(7)(a) of the Rivers (Prevention of Pollution) Act 1951, and on applications and results of samples, et cetera, being confidential, the reference is in Section 12 of the 1961 Act. So the difference is that now there will be publicity for applications, consents and for samples. These provisions follow the Second Report of the Royal Commission on Environmental Pollution. Unless there are strong arguments to the contrary, the intention is that information about applications and consents for discharges made to rivers, estuaries and the sea, should be available to anyone who wants it. We think it is necessary to make provision for the very exceptional case, and this is the point of Clause 35.
The Royal Commission were of the opinion that as a rule the legislation which protects secrecy over industrial effluents and wastes no longer safeguards genuine trade secrets; that is, operations and knowledge which have a real financial value in that they give an advantage over a competitor or could be licensed for royalties. They felt that, whatever 201 reasons of this kind existed in the past they were less valid now because in large industrial complexes effluents from many processes are mixed. Even so, this is simply the general rule, and the Commission go on to say—and I think this is the answer to the noble Lord, Lord Robbins—that of course this is not always so and that confidentiality may sometimes be important where there is a single chemical operation on a single site, but nowadays such cases are relatively uncommon.
§ LORD ROBBINS
Would the noble Lord enlighten us on his attitude concerning what I thought was ultimately the telling point made by the noble and learned Viscount concerning the accessibility of this information? The noble and learned Viscount said that it was open to anybody to take samples of the water in question. Is not that a conclusive argument in his favour?
§ VISCOUNT BLEDISLOE
Supposing there is a secret discharge into my river, am I or am I not entitled to take a sample to find out what it is and to tell the world what it is? So far as I can see I am not prevented from doing that.
§ LORD ABERDARE
If I may answer my noble friend's question first, certainly his legal rights are unchanged. Under Clause 36 he can apply for an injunction or damages, or anything of that kind.
§ VISCOUNT BLEDISLOE
That was not my point. If I take the sample and discover what the secret effluent is, I can have it analysed and publish the answer, can I not? Then the secrecy has gone.
§ LORD ABERDARE
I should have thought that by the time the sample had been taken from the river it would have been altered from what it was when it went into the river. I do not want to go into too much detail here because these are very exceptional cases; there may be none of them at all. All one is saying—and this is following exactly the Report of the Royal Commission—is that it is conceivable that there could be a case, either of a defence contract, which was mentioned by my noble friend Lord Courtown, or of a specific operation where a secret process was involved. There we think there should be an exception available.
202 Even if the Secretary of State is satisfied that confidentiality is justified in a particular case, the discharge will still be subject to the full measure of control by the water authority, and the exemption from the publicity clauses also carries with it the fact that the, discharger would not have the benefit of Clause 36 as it is at present restraining the issue of an injunction. These will be very exceptional cases; they will be fully controlled by the water authority; riparian owners and others will have their full legal rights. I hope that your Lordships will agree that this is a wise provision to make in view of the recommendation of the Royal Commission.
§ VISCOUNT DILHORNE
In view of what the Minister has said, I would not seek to challenge the view of the Royal Commission. But the provisions of this clause are unnecessarily wide. He says there may be exceptional cases. I hope that it will only be in exceptional cases that this clause will operate. The clause as such does not provide that it shall be only in exceptional cases; it indicates that it can be operated when it is unreasonably damaging to the interests of a person. I do not know what those words are meant to mean, what they are intended to signify. If the noble Lord means that in cases where disclosure would reveal, or be likely to reveal, an important trade secret this clause should spell it out and not use vague language. Every person engaged in trade who wants to keep his discharge secret will say (and there may be some substance for doing so) that disclosure would be unreasonably damaging to him. That is not the test in accordance with the argument we have listened to from the Minister.
The point put by my noble friend Lord Bledisloe indicates to the Committee that this is a rather pointless clause, because any riparian owner is at liberty to take a sample at the actual point of discharge of effluent into his river if the point of discharge is on his property. That being so, he will get the sample without any dilution to speak of; he may be able to discover the alleged trade secret from analysis of the sample and he will be free to publish it to the world, or give the information to anyone who desires it.
I do not think there is very much to this clause, but I should like to ask the 203 noble Lord to look at the wording again and to narrow it, and make the wording conform more precisely than it does at the present moment to the intention which he says lies behind the clause.
§ LORD ABERDARE
I am very ready to do that. At Second Reading there was a good deal of discussion on this clause. A number of noble Lords suggested that Clause 71, to which we shall be coming later, should be brought more into line with Clause 35. We looked at this after the Second Reading debate. We are of the opinion, as the noble Viscount pointed out, that perhaps Clause 71 is rather more tightly drawn than Clause 35. Clause 71 refers to prejudicing to some unreasonable degree some private interest by disclosing information about a manufacturing process or trade secret. This might be a better expression to use in Clause 35, as it is much more tightly drawn. I should like to consider this further. If, by making it tighter, that seems a better alternative, I will undertake to do so.
§ BARONESS WHITE
I am afraid that if the noble Lord is going to put into Clause 35 information about the manufacturing process, we shall be much more unhappy than we are, because virtually any information about effluents or emissions from a place of manufacture could be taken to refer to some manufacturing process. I can see the point made by the noble and learned Lord about the difficulty of interpreting what could be regarded as "unreasonably damaging to the interests of the person aforesaid" in Clause 35. However, if he wishes to have it tied to a manufacturing process—
§ VISCOUNT DILHORNE
I was not suggesting any form of words. I would be content with the emphasis being placed on "trade secrets," and having that put in. I did not put forward the words, "the manufacturing process. "What I suggested was that the present words in Clause 35 are far too wide and too ill-defined.
§ BARONESS WHITE
I am glad to have that assurance, because this reference to the manufacturing process" I found entirely unacceptable. I am not sure whether, when we reach it, the noble and learned Lord is going to move to 204 leave out the entire clause. If he is, I shall be most happy to support him.
§ VISCOUNT DILHORNE
I say straightaway that I have said what I have to say in this debate. I put down "leave out Clause 35" to indicate that I was going to raise questions in regard to it. I have no intention of dividing upon it despite the encouragement, on this occasion, that the noble Baroness has given me.
§ BARONESS WHITE
For once I might have been very happy to have marched into the same Lobby as the noble and learned Lord. However, as he is not prepared to lead the troops on this occasion, perhaps that is a rather empty gesture.
I can see that one may not be able to press this particular Amendment, but I am unhappy about it. I am glad to learn from the noble Lord, Lord Aberdare, that it is the intention of the Government that such exemptions should be very few and far between. I think I have some of the same information as the noble Earl, Lord Courtown. It refers to trace elements and things of that nature which are said to be insignificant in relation to the quality of the water, but they might possibly be of some use to rivals in the same field of manufacture. I am prepared to ask leave to withdraw this particular Amendment, although with very great reluctance because I take the same attitude towards this entire clause as the noble and learned Viscount, Lord Dilhorne, and wish that it were not in the Bill. However, for the moment, I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 4.23 p.m.
§ BARONESS WHITE moved Amendment No. 157C:
Page 47, line 14, at end insert—
("Provided that the name of the applicant and the place of the proposed discharge shall in all cases be made public in the register referred to in subsection (2) of the preceding section.")
§ The noble Baroness said: I think it would be for the general convenience if the Committee considered this Amendment and Amendment No. 159A, which makes exactly the same point. I understood from what the Minister said that the Government are prepared, in principle at any rate, to accept these Amendments 205 which simply secure that if this clause is maintained in the Bill the register shall include reference to these reserved discharges, or whatever they might be called, so that they cannot be entirely shrouded in secrecy. At least the world will know that a secret discharge is being made at a certain place and by a certain person or enterprise. That will at least get them a little nearer to what I believe is the general intention of the Royal Commission on Environment and Pollution. I beg to move.
§ LORD ABERDARE
I am prepared to accept these two Amendments in principle. I agree with the noble Baroness that where there is a discharge that the Secretary of State has seen fit to allow to be on the register without full details because it would either be to the detriment of the discharger giving some trade secret away, or not in the public interest, that nevertheless the discharge should be entered on the register. I think that the name of the applicant and the place of the proposed discharge are the two matters that should be listed. I accept the noble Baroness's Amendments. I would like to be able to look at the drafting, because we are not quite certain whether the name of the applicant concerned with the discharge may not be the right one to put in the register. But I will certainly accept it at the moment. We can always make alterations later on.
§ BARONESS WHITE
I am very much obliged to the noble Lord. However, when he is considering re-drafting this clause, I wonder whether he could also take this point. What he has said about the discharges being subject to the control (which applies to all discharges) is perfectly accurate, but nevertheless I am still concerned about public opinion in these matters. I think it would be very helpful if, when the Secretary of State agrees that there should not be disclosure of these details, it should be regarded at any rate as common form that there should be some indication that the discharge is regarded as not inimical to health or something of that sort. There is an intense suspicion that, for reasons of private gain which could be to the detriment of the public people will escape the provisions which this part of the Bill seeks to provide. I assume that the Secretary of State would not in fact agree 206 if he thought there was any serious danger or detriment to the public. In any case, the water authority would have the information and would have to take steps, presumably, of seeing that the right thing is done in such a way that so far as possible the public would understand that this is so. If there is any method whereby that could be secured, that would help us with this awkward and difficult clause. But since the noble Lord wishes to look again at the drafting, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.27 p.m.
LORD ABERDARE moved Amendment No. 158:
Page 47, line 22, leave out ("(a)") and insert ("(b) or (c)").
§ The noble Lord said, With the Committee's consent, I will speak to Amendments Nos. 158 and 159 together. After the passing of the present Bill, there will be no more applications under existing Acts. For that reason, the reference to subsection (1)(a) of Clause 34 is incorrect. The references should be to (1)(b) and (1)(c) which deal with information about consents, with conditions attached to them, and about samples which it may be appropriate to exempt from publicity. The Amendment makes this correction.
§ I beg to move Amendment No. 158.
Page 47, line 24, after ("subject") insert ("or any sample of effluent taken from a discharge to which the consent relates or any information produced by analysis of such a sample ").—(Lord Aberdare.)
§ Clause 35, as amended, agreed to.
§ Clause 36 [Publicised discharges not to be restrained]:
§ 4.30 p.m.
LORD ABERDARE moved Amendment No. 160:
Page 47, line 41, leave out ("contract or agreement") and insert ("agreement or undertaking").
§ The noble Lord said: Clause 36 provides that publicised discharges which are made in accordance with consent and any 207 conditions attached to the consent may not be restrained by injunction, or in Scotland by interdict. Subsection (2) goes on to say that this shall not affect any remedy in respect of a breach of a covenant, contract or agreement. The deletion of the word "contract" is a drafting Amendment since the terms "covenant" and "agreement" will subsume all cases of contracts; while the insertion of the word "undertaking" provides in effect for a unilateral promise as well as for the bilateral agreements that are already covered. I beg to move.
§ On Question, Whether Clause 36, as amended, shall stand part of the Bill?
§ VISCOUNT BLEDISLOE
Some years ago I had the honour of being appointed by the then Minister of Agriculture, my noble friend Lord Amory, to be Chairman of a Government Committee to advise on fishery legislation. That Committee reported on March 1, 1961. The Report was unanimous, and I think I can say that it was very well received by the fishing community. By far the most important problem which that Committee had to consider was the question of river pollution, and with your Lordships' leave I propose to refer to certain parts of the Report. It is the Report of the Committee on Salmon and Freshwater Fisheries (Cmnd. 1350).
We dealt with pollution at page 41, paragraph 149. We said—and I quote:It became increasingly evident to us, when we received and heard evidence from organisations and individuals concerned with the preservation and improvement of our inland fisheries, that the pollution of our rivers, streams and estuarial waters was, together with the allied problem of water abstraction, the most serious question affecting fisheries. We have been told that for general purposes the term 'pollution' is very hard to define though the condition itself is easily recognisable. Fortunately a criterion to meet our needs is readily available in Section 8 of the Salmon and Freshwater Fisheries Act, 1923, which reads as follows:'8. (1) No person shall cause or knowingly permit to flow, or put or knowingly permit to be put, into any waters containtaining fish, or into any tributaries thereof, any liquid or solid matter' "—this is the important point—'to such an extent as to cause the waters to be poisonous or injurious to fish or the spawning grounds, spawn or food of fish, and if any person contravenes this subsection 208 he shall be guilty of an offence against this Act'.On page 42 of the Report, we continued:When, therefore, in this report we use the term 'pollution' we mean the putting into any waters of any matter to such an extent as to cause the waters to be poisonous or injurious to fish or the spawning grounds, spawn or food of fish.150. It was pointed out to us that it would be largely a waste of time to consider such problems as close seasons for fishing, provision of fish passes and penalties for poaching, unless and until the dual threat to our inland fisheries caused by pollution and water abstraction was brought under effective control.151. In view of the wider aspects of the problem we were fortunate in that a review of legislation affecting pollution was undertaken by a sub-committee (the Armer Committee) of the Central Advisory Water Committee, which began work under the chairmanship of Sir Frederick Armer, K.B.E.. C.B. M.C. shortly before our Committee was set up. Their report was published in January, 1960. We consider that if the recommendations of that committee are implemented the reduction of pollution, which has been in progress ever since the setting up of river boards, will be accelerated, and this must clearly be for the benefit of the fisheries of the country. We welcome the report whole-heartedly.Remedies Available152. The remedies available against the polluter are two, namely:Then comes our recommendation:
It is, we think, essential to distinguish clearly between these two separate and distinct classes of remedy. The former is a civil remedy available to persons with proprietary rights and enforceable in the civil courts by the granting of injunctions and the award of damages, whilst the latter is a criminal remedy depending on the commission of a statutory offence punishable by fine or imprisonment.
- (i) the ancient common law rights available to riparian owners and others with proprietary rights in the fisheries concerned, and
- (ii) the statutory powers conferred on river boards and others."In our view these remedies are, and ought to remain, complementary to each other."We continued, at paragraph 153:Whilst we would agree with the members of the Armer Committee that there is a general desire amongst those discharging effluent into rivers to co-operate in securing their improvement' … we apprehend that there are some who would not hesitate to take advantage of any relaxation or loophole in the law relating to the prevention of pollution, or who might be careless when introducing a new process or when modifying their plant.154. In this connection we recall the words of Lord Evershed, M.R., in the case of Pride 209 of Derby and Derbyshire Angling Association Ltd., and another—v.—British Celanese, Ltd. and the Derby Corporation and another, 1953, Ch. 149 in which case at page 162 he said:'But Sir Andrew Clark (who appeared for the Derby Corporation) … went to the length of arguing, if it were necessary, that no injunction ought ever to be granted against a local authority in any circumstances, at any rate in regard to its sewage works. He argued further that an injunction, though negative in form, being mandatory in substance was a means of bringing, as I understand him, some sort of improper pressure to bear upon the Minister in the exercise of his duties in granting licences and so forth, and further it was a wrongful interference with the Corporation's own right to deal with their own problems in such order as they thought fit'.That argument did not commend itself to the Court of Appeal and an injunction was granted against the Derby Corporation who were discharging, and arguing that they were entitled to continue to discharge, inadequately treated sewage into the River Derwent.155. In the case of Martell and others—v.— Consett Iron Co. Ltd., 1955, Ch. 363, the Defendants were seriously polluting the waters of another River Derwent. Rather than take steps to cease polluting the river the Defendants attempted to stifle the proceedings by arguing at great length both before Danckwerts J. and the Court of Appeal a highly technical legal point. It was only when this very artificial plea had failed that the Consett Iron Co. Ltd. gave an undertaking to the Court to cease polluting the river and paid substantial damages to the Plaintiffs. In fact the Consett Iron Co. Ltd. ceased polluting immediately thereafter and installed a closed circuit system.156. That bodies will still exist who would welcome and presumably use any relaxation in the law relating to pollution became evident to us during the examination of witnesses who gave evidence before us, for example:
- (i) The British Iron and Steel Federation advanced the view that both the common law and the provisions of Section 8 of the Act of 1923 ought to be relaxed in view of the Act of 1951.
- (ii) The National Coal Board also wished to modify both the common law and Section 8 of the Act of 1923 for the same reason.
- (iii) The Federation of British Industries wished to see Section 8(1) of the Act of 1923 repealed for the same reason.
- (iv) The Gas Board also wished to modify both the common law and Section 8 of the Act of 1923. In addition they asked that the provisions of paragraph 32 of the Third Schedule to the Gas Act, 1948, re-enacting the Gas Works Clauses Act of 1847, should be modified in favour of the particular type of discharge involved in the manufacture of gas.157. Whilst calling attention to the above evidence it is only fair to record that, generally 210 speaking, we formed the view that industry and many local authorities were anxious to co-operate in lessening the pollution of our rivers, streams and estuarial waters, and we acknowledge that very large sums of money have been expended to that end.Paragraph 158 reads:The majority of the witnesses who gave evidence (either written or oral) before us, however, were unanimous in considering that it was of fundamental importance that the common law remedies should be preserved intact, not least because the right of a fishery owner or riparian owner is a right of property and it would be unusual if this particular kind of right were not protected by the civil courts.Paragraph 159—and this is our recommendation—reads:"We would unhesitatingly endorse the recommendations of the majority of the Armer Committee (to the same effect as the recommendations of the Hobday Committee embodied in Section 11(6) of the Rivers (Prevention of Pollution) Act, 1951), namely, that no alteration should be made in the common law relating to river pollution.We go on to say:160. Generally speaking it is, we think, a sound principle to keep civil and criminal remedies and punishments in their own separate and distinct categories. If, for example, one's car is damaged owing to the action of a dangerous driver of another car, damages are recoverable in the civil courts and the dangerous driver can be prosecuted in the criminal courts, and in that way the individual's rights are protected and the dangerous driver is punished for his offence in the interests of public safety. Valuable as the common law remedies against the polluter undoubtedly are they are not, and cannot, constitute the sole remedy. In this connection we would quote from the speech† of Lord Forbes during the debate in the House of Lords on 3rd December, 1959 on the Pollution of Rivers and Estuaries when he said: "From time to time some riparian owners have brought actions against polluters in an attempt to clean up our rivers. Surely, however, the battle of the rivers should be fought not by a few riparian owners, but by the nation". We unanimously endorse this viewpoint. Whilst we welcome wholeheartedly the part played by riparian owners, the duty of protecting our inland fisheries from the activities of the polluter must in the long run rest squarely on the shoulders of the river boards.161. The common law remedies against the polluter suffer from the following limitations:I apologise for reading at some length from that Report, but your Lordships will see that three separate Committees—my Committee, the Hobday Committee and the Antler Committee—reached the same conclusion; namely, that no alteration in any circumstances should be made in the common law relating to river pollution.
It would, in our view, be equally erroneous to say that the statutory remedies could safely be relaxed owing to the existence of the common law remedies, as it would be to say that the common law remedies could safely be relaxed owing to the existence of the statutory remedies.
- (i) They are only available if and when a riparian owner or other person with proprietary rights sees fit to institute what may well be very expensive proceedings, and, even if he does so, he may be content to accept damages and allow the pollution to continue.
- (ii) The common law remedy of an injunction is more appropriate to a continuing than to an isolated or temporary pollution.
- (iii) The common law remedy is not available to protect public rights such as exist in most estuaries.
This Bill is entitled, somewhat cynically, I think, the Protection of the Environment Bill, and Clause 36 is designed to do away with the right of a fishery owner to obtain an injunction to stop pollution, in direct conflict with the recommendations of all three of those Committees. A curious feature of Clause 36 is that while its purpose is to do away with the right of a fisherman to obtain an injunction (or interdict in Scotland), it purports to preserve the rights to damages. That appears to contemplate a situation in which legalised pollution destroys fish and allows the fishery owner or members of a fishery club to obtain damages. But the truth of the matter is that fishermen do not want damages; they want to catch fish. I suggest to your Lordships that fishing is a healthy recreation, and it is one enjoyed not only by the salmon and trout anglers but by our coarse fishermen; and I am told that they number over 2 million. Their interests are well looked after by the National Federation of Anglers, who gave most useful evidence before my Committee.
These common law rights to obtain injunctions (or interdict in Scotland) have in the past been by far the largest factor in cleaning up our rivers. In the majority of cases that have come before the courts an injunction has been granted against a polluter, but he has always been given time—and plenty of time—to treat his effluent so as to render it harmless. What happens—and I have been engaged in many of these cases—is that the court grants the injunction and gives the polluter anything up to a year or more to put things right.
212 What this Bill appears to contemplate is that pollution which damages a fishery (otherwise why preserve the right to damages?) should be permitted. Generally speaking, I think it is true to say that there are two types of polluters: there are the industrial undertakings and factories, and there are local authorities who are discharging untreated or semi-treated sewage into the rivers. Why should our rivers be polluted so as to enable industrialists to save money for themselves and their shareholders by not treating their effluent properly, or to allow the local authorities to refrain from installing proper sewage treatment plants?
But there is another way of looking at this matter. This right of a fishery owner to obtain an injunction to prevent pollution is simply one example of the ancient common law right belonging to every individual to prevent a nuisance. Let me give an example. If you like in a flat and somebody in the flat above plays loud "pop" music all night, you can get an injunction to stop him. You want a night's sleep: the award of damages is no good to you. Similarly, a fisherman or fishing club or riparian owner wants to catch fish; it is no consolation to him, when he gets no fish, that the fishery owner gets damages. Take, for example, the coarse fishermen. What comfort is it to them if some riparian owner who has let the fishing to them gets maybe a considerable sum in damages? The fishing is ruined; no more fish, no more sport; and, incidentally, the owner cannot get any more damages because once the damage is done there are no fish and there is no more damage. Why should the normal common law rights—very ancient rights—to obtain injunctions against nuisances, against torts, be taken away in the special case of polluted rivers? In my submission this is a very serious inroad into our ancient and well-established common law rights, and I cannot believe that it would commend itself to our judges and lawyers.
In this connection I have a letter from the Lord Chief Justice, who unfortunately cannot be here this afternoon. What he says is this:I doubt if I shall be able to get down to the House of Lords … but I shall be with you in spirit.I was in one of the Anglers' Co-operative Association cases when I was at the Bar, and I know what good work they did in preventing 213 the deterioration of the rivers which was then going on. They established that the private rights of the riparian owner were paramount, and were to be maintained despite arguments to the contrary based on so-called public interest. The present Bill makes it perfectly clear that if a consent to pollute is given by one of the appropriate authorities, the riparian owner will have no right to seek a remedy by injunction, though he can get damages for what they are worth. At a time when our rivers are getting cleaned up and are I believe, very much better than they were when the A.C.A. started their campaign, it seems to me to be a retrograde step to take away one of the most effective weapons which has contributed to the clearing-up. I wish you well.That is a letter from the Lord Chief Justice, Lord Widgery. I have a similar letter from the Master of the Rolls, Lord Denning, who I rather hoped would be here this evening, but it is difficult for him to get away.
What I say is that Clause 36, if it is allowed to become law, will constitute a serious inroad into our common law. There have been three Committees who have considered this matter, and all three have recommended that on no account should this right be taken away. The Government are flying in the face of the recommendations of all three Committees, and I ask your Lordships to leave out Clause 36.
§ 4.52 p.m.
§ VISCOUNT DILHORNE
The noble Viscount, Lord Bledisloe, has made a powerful speech in relation to this clause, and with his experience as Chairman of the Committee whose Report he quoted he speaks with authority. Some days ago, in the course of some observation on an earlier Amendment, I ventured to express the opinion that this Bill weakens the existing law. At that time I had particularly in mind this provision in Clause 36.
I have already complained of the slanting, as it seems to me, of the Bill against riparian owners and others with legal interests in rivers. In referring to that I have not been thinking only of those with fishery interests because the provision goes far wider than affecting merely those with fishery interests. I am not against the water authority having all the powers it should have and all the duties imposed upon it which this Bill suggests. But this Bill seeks to put a water authority over and above the law in relation to a consent which the water authority, in the exercise of its discretion, has given for the discharge of polluting matter. For that I can 214 see no justifiable reason at all. Why should the rights of individuals—and not only of individuals—be restricted because a water authority has given a consent to, say, an industrialist to make a polluting discharge? I can see no reason for it. When I say "not only the rights of individuals", I say it for this reason. I have received communications—I hasten to say that they were entirely unsolicited—from the British Waterways Board severely criticising this decision and saying that if it is carried into effect it will considerably inhibit them in their efforts to keep canal waters clean. They have found—and it is no doubt the case—that an injunction is a very effective weapon.
I have myself had experience on both sides. I remember years ago being in a court where the Thames Conservancy, who are not concerned only with fisheries, were prosecuting in respect of very serious pollution in a river which flows into the Thames. They were prosecuting the local authority in the borough magistrates' court. I am sorry to say that on that occasion—and it is many years ago now—there was a very considerable miscarriage of justice. The Thames Conservancy, although they made two attempts which ought to have succeeded, did not succeed in obtaining a conviction at all. It was then left to a riparian owner to bring proceedings in the civil court for an injunction. The application was strenuously fought. I was in the case, and it lasted, according to my recollection, 31 days. In the end, the injunction was obtained and the pollution, which in those days the Thames Conservancy had failed to achieve, was prevented. I have been on the other side, defending a borough corporation for causing pollution—and on that occasion not unsuccessfully. So I agree with my noble friend that one really ought to have both these remedies.
I think it is true to say that the industrial polluter is more frightened of an injunction than he is of a prosecution. He may be fined as a result of a prosecution, and if he likes, he can run the risk of being fined again. It may be far less expensive for him to pay the fines than it is to put the matter right and stop the pollution. In the same way, he may much prefer to pay damages and go on polluting. This particular clause preserves the right of the riparian owner to obtain damages. But the one thing the 215 polluter hates is to be told that what he is doing in polluting our rivers and our waters has got to stop. I really do not understand why this Bill, which is concerned with the protection of the environment, should take away the right of those with proprietary interests to seek to obtain an injunction.
It is not everyone who can go along to the courts and ask for an injunction. It must be requested by someone who has a legal interest, such as the British Waterways Board, or a private individual, or an angling club. That person must be able to show that damage will be suffered by him because of the discharge. So it is not just anyone who can go along and ask for an injunction. Proceedings for an injunction are expensive and are not lightly undertaken. At the end of the day, the granting of an injunction is a discretionary remedy. Even though the court is satisfied that pollution is occurring and has occurred, it does not follow that it will then grant an injunction. The court has discretion as to whether to do so or not, and I venture to think that where a water authority, which I assume will be and is entirely responsible, has been given consent to a discharge of polluting matter it will need a strong case to induce one of Her Majesty's judges to the conclusion that it would be right to grant an injunction. But such cases may occur. And the fact that it requires a strong case to bring about that result is no argument for taking away that power from the court, as this clause proposes.
Let us consider what happens. The injunction, if granted, is, in my experience, always suspended to give a polluter time within which to operate and put the matter right. It may be suspended for 12 months. If at the end of the 12 months the polluter has done nothing he may expect very serious consequences. If he shows that he has made a real effort but has not quite completed the task, then I have no doubt—and it has happened—the suspension of the injunction will be continued. I see no reason why the powers of the court in this respect should be limited as this clause proposes. I cannot think why the clause is in the Bill at all. I do not think I need add anything except to say that I hope we shall succeed this afternoon in removing 216 it; and if the Minister does not agree to its being removed, I hope that on this occasion the noble Baroness will not feel embarrassed in accompanying me into the Division Lobby.
§ 5.1 p.m.
§ LORD STOW HILL
My name is down to the Amendment to leave out Clause 36. Had it not been, I would not have presumed to take the time of the Committee by offering any observations after the two most powerful speeches to which we have just listened. I will endeavour to be very brief. This, clause, in my submission, is a most extraordinary clause in principle. I speak in the presence of three extremely distinguished judges. We are to put them in the position of hearing a case, finding on the evidence and the argument that the case is established, that the rights of some private individual or possibly a body like the British Waterways Board have been infringed, that there has been a breach of the law and a civil wrong has been established. Having come to that conclusion they are then to say, "Certainly we can award damages here. Our own view is that justice requires that we should in addition grant an injunction. Damages is not, in our view, in the circumstances of this case a sufficient remedy. But we cannot grant an injunction." They look with some dismay and puzzlement through this Bill to try to discover why, what is behind it. I should have thought that their researches in that regard could only lead to growing bewilderment on their part, as it certainly does on mine.
It seems to me this is a completely topsy-turvy clause without any kind of justification in principle that I can possibly think of. It is not as if learned judges automatically granted injunctions when they found that some civil right had been infringed. As the noble and learned Viscount, Lord Dilhorne, has pointed out, they consider very carefully, in the circumstances of each case, whether in addition to any damages which they feel they ought to award it would be appropriate, and justice would require, that they should grant an injunction. Very often an injunction—and I speak with hesitation before them, in view of their very great experience—is the only really effective remedy which is appropriate to the circumstances of a 217 given case; damages would be quite inadequate. Nevertheless, they cannot proceed to do what they think in the circumstances is just. They have to say to themselves, "No, we are to be inhibited by a completely unintelligibly worded clause", or section, as it would be at that time.
I do not want to take up the time of the Committee further, but I very respectfully urge upon your Lordships that in principle and as a matter of justice and common sense this clause cannot conceivably be justified. If the assumed polluter has obtained consent, he is excused from a risk of any criminal proceedings being taken against him so long as he acts within the terms of the consent. But if, besides that, he infringes somebody else's rights, for some reason he cannot be ordered by the courts to do what justice requires and submit to an injunction to stop him from continuing the unlawful action upon which he has been shown to be engaged. I beg to support this Amendment.
§ THE EARL OF COURTOWN
I speak with diffidence in the face of so much legal eminence. I have no legal training myself, and I speak only with such common sense as I believe I have. This clause has to be looked at in relation to the whole Bill. Here we now have water authorities with great powers to deal with the polluter. The water authority have indeed the main responsibility of seeing that all emissions are of an acceptable standard of purity. The applicant for consent has to make his case, and the water authority can call on various sorts of technical knowledge to help them make a decision. Others who think they may be affected have ample opportunity to make submissions. In my opinion to allow them also to seek injunctions would duplicate the safeguards which the water authority exercise, without deploying the equivalent technical expertise.
If the clause is deleted, a man who is running a business, who has gone through all the procedures of obtaining a consent, has been subject to all the tests which have had to be met, and has put in whatever plant is necessary or is regarded as necessary by the water authority, may find his whole livelihood and those of his employees put at risk—this in spite of the fact that he has taken all these precautions. This seems most 218 inequitable. I hope the Government will strongly resist this Amendment.
§ LORD DENNING
May I say one word? I think it is over twenty years now since we had the Pride of Derby case, and we granted an injunction to prevent the pollution of our rivers by sewage, which was claimed to be justifiable. We gave the particular corporation opportunity, over a period of time, to remedy it, but we did grant an injunction and I think it succeeded. Ever since that time the remedy by injunction has been one of the most powerful remedies for ensuring the cleanliness of our rivers.
As I understand it, the point in this Bill is that the remedy of injunction is to be taken away from our courts. It is said, "Well, all the tests will have been gone through. The consent of the water authority will have been obtained". That is to put the ultimate decision not in the hands of the judges but in the hands of an executive authority. It is not as though the judges would exercise this power unwisely. If the consent is produced, they will certainly take it into account. If it is a case in which damages would be an adequate remedy, the court can certainly take that into account and award damages in lieu of an injunction. But this Bill would go further. It would take away the remedy of the courts in respect of an injunction. I see no necessity for it whatsoever. The consent certainly will be taken into account, the remedy by damages will be taken into account; but ultimately the power of the courts to award an injunction should, and I suggest must, remain in the judges, to maintain the cleanliness of our rivers.
VISCOUNT ST. DAVIDS
I am not a lawyer, nor am I a fisherman. I am a representative, perhaps, of the other users of the waterways, of whom there are many. I myself am a navigator, but there are far more numerous users of the waterways, who are not navigators but who are walkers, campers, all sorts of people who enjoy these waterways in all manners. Over all these years, we have, however, been at a disadvantage compared with the fishermen.
We have not been able to protect our waterways with an injunction because we have had no visible rights for which an injunction could be granted. However, 219 we have been perfectly aware that our waterways have been protected by the army of fishermen that we see sitting along the banks. While the fishermen are where they are, we are aware that there are fish, and that the water is therefore of a certain standard of purity. In this manner, the fishermen are in fact the front line fighters. They have the weapon in their hands, and they protect the waterways. More strength to their rods, say I. I will certainly go into the Lobby to remove this clause from the Bill.
§ 5.11 p.m.
§ LORD ENERGLYN
I should like to support the noble Lords who have placed a very powerful case before the Government. It cannot be too often repeated that this clause has the effect of removing the common law rights of a riparian owner to take proceedings in the courts for an injunction. I am aware that the Report of the Royal Commission on the Environment and Pollution suggests that this might be a safeguard against unwarranted common law actions, but I am very reluctant to see this well based type of attack disappear. As has been said, it was all due to the initiative of the Pride of Derby Anglers Association in taking common law proceedings in 1954 against the Derby Corporation and Celanese that largely cleared up the River Derwent, in spite of the apathy on the part of the local authorities at that time.
At a recent meeting of the Nottingham University Environmental Studies Group, which was founded by generous grants from Allied Breweries, the subject of this clause was discussed in great depth. I was impressed by the evidence that I heard from such professors as Professor Lees and Professor Garner, concerning this very clause. This afternoon all this evidence has been endorsed, and I should like to join with the three noble Lords in pressing their plea to the Government to remove this clause.
§ VISCOUNT DILHORNE
May I say one word in reply to the noble Earl, Lord Courtown. The industrialist he instanced who has gone to all the trouble of getting in the consents and everything else, runs no risk at all of proceedings for an injunction unless, at the end of the day, he discharges a polluting liquid.
§ LORD BALFOUR OF INCHRYE
May I plead for one moment, as a practical riparian owner who has had fishing which has been enjoyed by charabancs full of men from Northumberland, Durham, and the Lowlands of Scotland. It is not the riparian owner wanting fishing for himself; it is the riparian owners' wish to preserve the cleanliness of our rivers. The decision Parliament has to come to will affect many millions of ordinary common folk's enjoyment.
I had knowledge of the three committees the noble Lord, Lord Bledisloe, spoke about. I was appalled when I saw this clause in the Bill, because really it is making it the polluters' charter. As a riparian owner, I am not interested in receiving damages once, and then the polluter being able to go on week after week, month after month, year after year; I am interested in the river remaining clean. So long as this clause remains in the Bill, I fear that that remains in doubt.
§ BARONESS WHITE
The noble Lord, Lord Aberdare, has my sympathy. So far he has had only one articulate friend in the House. I realise that the Government probably have a stronger case than has been admitted in the debate so far, and I suspect that the new clause which is to be substituted for Clause 39 was drafted partly with a view to meeting the kind of criticism which the Government were well aware was going to come on Clause 36.
It is not customary from this side of the House to support landowners of any description, and normally I should be one of the last persons to do so. However, I have been impressed by the arguments put forward on two counts. First is the undoubted record of the riparian owners, whether acting for themselves or on behalf of others, in the sense of persons who have interests in the fishing, and the undoubted success of their activity in the past few years in cleaning up the rivers. This is an historic fact, and no one would wish for one moment to dispute it. The other aspect which moves me is that, although the Government in the other provisions of the Bill have very significantly altered the context in which all these matters must be considered, nevertheless they are seeking to take from a citizen a right which has subsisted not quite from 221 time immemorial but for a very long time.
It may seem a little odd that from this Bench we should take a rather unradical view of the law, but it appeals to me that here is the right of an individual to seek an injunction which the courts can, in their discretion, grant or not grant according to the circumstances, as has been eloquently explained to us. It seems to me contrary to the whole spirit of the rule of law in this country, that in this instance we should, even for quite good administrative reasons, which I grant, remove from the citizen a right which he now enjoys. It is for those reasons that, unless in their wisdom the Government recognise the feeling that has been abundantly displayed in the House and accept the proposition put before them, I should certainly advise my noble friends to support the noble Lords who have moved that this clause be deleted from the Bill.
§ 5.18 p.m.
§ LORD ABERDARE
I have listened with great attention and interest to all that has been said in this short debate on Clause 36. To begin with I should like to give your Lordships the reasons for this clause being included in the Bill. It is impossible to do so without considering other provisions in Part II of the Bill and the whole range of new proposals for the control of water pollution contained in the Bill. That is the reason why I do not think that it is a valid argument for my noble friend Lord Bledisloe to bring up as a complete answer that three committees have recommended in a certain direction, because in fact the situation is completely altered by this Bill, and the new situation will be quite different from that which obtained when those committees were sitting.
I shall not detain your Lordships very long. May I summarise the control measures which were put in the Bill to control pollution and to replace the injunction power which has existed hitherto. In the first place, anyone seeking consent to discharge will have to advertise the fact, and will have to give other interested persons the right to object. This is a completely new provision. Secondly, a consent once given will be registered by the regional water authority and will be available to the general public together with details of any conditions attached to the consent and 222 analyses of samples of effluent discharged. As we have already mentioned this afternoon, all that information has hitherto been confidential and the task of the plaintiff in a civil action under common law has been made more difficult as a result. In future, full information will be available on the registers and this will be of substantial help to any plaintiff.
In the third place, should any third party have cause for complaint about a particular discharge they can, of course, approach the regional water authority who have a statutory duty to ensure the wholesomeness of their waters. If they agree with the complaint, then they have ample powers under Clauses 30 and 31 to revoke their consent or to alter the conditions of their consent. A fourth provision is that a third party also has legal remedies even if Clause 36 remains in the Bill. In the first place, they could seek an injunction against anyone discharging without consent or discharging in breach of the conditions of consent. In the second place, there is no change whatever in their right to apply to the court for damages caused by a discharge. However, it would clearly be undesirable that someone with a valid consent could go on causing pollution even if he is paying periodically for the damage caused. That is the reason why, as the noble Baroness, Lady White, correctly stated, we are proposing to amend the Bill by the new Clause 39 which will give a regional water authority powers to forestall and remedy pollution of water. This, I think, is the answer to my noble friend Lord Bledisloe that the pollution would not be allowed to continue because the regional water authority would have a duty to remedy it.
Finally, the sixth provision in this Bill that I would mention as a longstop, is Clause 30(2) by which the Secretary of State has powers to direct the regional water authority to vary or revoke a consent, and he has default powers under Clause 86. We felt that here was a formidable armoury of new weapons against water pollution but—and I have listened with great interest—a number of your Lordships who are very experienced in the law have argued that this is still not right and sufficient and that the right to an injunction should remain in the judges' hands, as the noble and learned Lord, Lord Denning, put it. The difficulty is that there are two sides to the equation in Part II of the Bill. The first side is 223 the need for strong action to curb pollution; the second, as mentioned by my noble friend Lord Courtown, is the need for industry and others to use our waterways to discharge their effluent. Much as we may deplore it, the second requirement is essential and it is important that we should recognise it. Already the Bill lays strict conditions on industrial discharges. Is it really fair to go further and say that even though he has to reveal publicly the exact nature of his discharge, even though he gets consent from the regional water authority, even though he abides rigidly by the terms of that consent, he may yet find that his discharge will be halted by an injunction in the courts?
The Second Report of the Royal Commission on Environmental Pollution recognised that confidentiality as it exists at present protects industry,against the risk of common law actions of against misconceived or ill-formed allegations that the environment is being dangerously polluted. We fully agree that those industrialists who are concerned to abate pollution are justified in wanting some safeguard against risks of this sort",and it suggests that one safeguard would be for the courts to accept the defence that a water authority has given consent for the discharge to be made. That is how the present Bill is drafted and that is the reason why we included Clause 36. We followed the recommendation in this respect of the Royal Commission.
Having said that, I must recognise the force and the weight of the opinions that have been expressed in this House this evening, that it would be wrong to remove this common law right from the individual. At the same time, we are concerned to protect industry against unnecessary interference with a consent which has once been granted—and I took note of what was said by the noble and learned Viscount on that point, that if a consent had already been given by a regional water authority this could well influence the courts in deciding whether or not to grant an injunction. In these circumstances, I am prepared to advise the Committee to omit Clause 36 on the understanding that we shall be allowed to look at it very closely again, and perhaps to amend the Bill when it goes to another place in order to see whether it is necessary to introduce some restriction on those who might seek an injunction 224 for this purpose. We would only wish to be sure that there is no loophole, no chance of a frivolous application for an injunction being granted. I do not know whether perhaps it could be limited to a person who can show that he has suffered damage as a result of the discharge. I am only asking your Lordships, if we take the clause out here, to reconsider it to see whether, in order to reassure those industrialists who have real worries about this matter, we could draw it a little tighter. In general, and subject to that proviso, I am convinced by what your Lordships have said to-night that it would not be right to continue with this clause.
§ VISCOUNT DILHORNE
I would say thank you to the noble Lord for what he has said. I have no objection at all to his saying that he would like to consider the matter to see whether it is necessary to insert a provision to stop frivolous applications for injunctions and to stop injunctions being granted almost automatically. I am perfectly certain that when he takes proper legal advice as to the situation he will find that there is not the slightest possibility of what he might call a frivolous application for an injunction being granted by the courts. The only persons who can apply are people who rightly think that their legal interests will be damaged or who have suffered damage and then, as I said before, it is a discretionary remedy which the court is not bound to grant. I know that there are fears by industrialists that this will be abused, but I think those fears are totally unfounded and I am grateful to the noble Lord for what he has said.
§ VISCOUNT BLEDISLOE
I should like to endorse what my noble and learned friend Lord Dilhorne has said. As I understand the Government's attitude, it is this: that with all the powers given to the river authorities there will be no need for civil actions or injunctions. That may or may not be so, but if that is so nobody would be more pleased than the fishing community, but it is one thing to say that actions by people with interests in fisheries will not be necessary because certain statutory bodies will look after things. All the better if they are not necessary. It is quite another thing to take away an old-established common law right to get an injunction against 225 a nuisance unless there is some overriding reason to take it away. There is no reason to take it away. It may simply be a long-stop, but to take away an old-established principle of our common law without any overriding reason would be disgraceful.
But having heard what my noble friend Lord Aberdare has said, I think we can leave the matter where it is. As I have always understood the law, no court will grant an injunction unless some harm is done to a river. Let me take the case of Pride of Derby, to which my noble and learned friend Lord Denning has referred. They were polluting a river with sewage, and an injunction was granted which was upheld in the Court of Appeal. They were then given time to put the matter right. What they were putting back into the river was still a foreign substance, but it was doing no damage so the injunction did not bite at all. An injunction is meant to prevent harm being done to a river. That is all it does, and it will not be granted when no harm is being done. So if that is what my noble and learned friend is worried about, I do not think he has any cause for concern.
§ Clause 36, as amended, disagreed to.
§ Clause 37 [Control of discharges into sewers]:
§ 5.32 p.m.
THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT OF EDUCATION AND SCIENCE (LORD SANDFORD) moved Amendment No. 161:
Page 48, line 26, after ("and") insert ("to").
§ The noble Lord said: This is no more than a drafting Amendment. Section 55 of the Public Health Act 1961 relates to charges which may be made for certain discharges into public sewers, and Section 59 relates to conditions which may be imposed as to the permitted temperature of the effluent and other matters. "Charges" and "conditions" are distinct subjects and each is entitled to its own proposition. I beg to move.
LORD SANDFORD moved Amendment No. 162:
Page 48, line 28, leave out ("date aforesaid") and insert ("appointed day").
§ The noble Lord said: This Amendment makes a small change to Clause 37(2). As subsection (2) is drafted, deemed consent is given on the appointed day for the discharge in the form in which it was lawfully made immediately before the date of passing of the Act, and subject to the conditions, if any, then in force. The result is that an interval is left between the date of passing of the Act and the appointed day, during which charges and conditions could not effectively be imposed or varied under the powers of Sections 55 and 57 of the Public Health Act 1961. By substituting "appointed day" for "date aforesaid" in line 28, the Amendment ensures that the clause remains subject to the relevant 1961 Act provision up to the appointed day. I beg to move.
§ 5.34 p.m.
LORD CRAIGTON moved Amendment No. 162A:
Page 50, line 1, leave out ("such") and insert ("the").
§ The noble Lord said: Under subsection (10) of Clause 37 the appointed day could be delayed indefinitely. This clause is only a machinery clause, but its effect is that the longer the appointed day is delayed the longer it is before records of discharges are kept. I see no reason for delaying the implementation of this provision, and I shall be glad to hear what the Minister has to say, I beg to move.
§ LORD SANDFORD
I am glad to respond to my noble friend, and to explain why this subsection needs to be related in this way to the appointed day for the coming into force of the whole Act. The Committee will see that the Royal Assent to this Bill will start the whole process of the serving of the notices concerned in relation to those discharges which have hitherto been exempted since 1937. But the Royal Assent does not govern the coming into force of the Act itself, the timing of which is left to the judgment of the Secretary of State through the operation of Clause 97(2); and I notice that my noble friend Lord Craigton is not objecting to that aspect. From the point of view of the water authorities, the process of taking action under Clause 37 and converting the deemed consents into actual consents, in respect of the discharges which have been exempted 227 since 1937, must be phased in relation to all the other duties under this Bill; that is, in relation to the date of the coming into force of the Act as decided by the Secretary of State, rather than in relation to the fixed date of the Royal Assent. It is for that reason that the subsection has to be related in this way to the appointed day.
§ LORD CRAIGTON
The Committee will realise that I put down this Amendment because some concern has been expressed in some quarters. I am grateful to my noble friend for his explanation. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 37, as amended, shall stand part of the Bill?
§ 5.36 p.m.
§ BARONESS WHITE
I should like to ask the noble Lord, Lord Sandford, to enlighten us on the question of Private Acts. I gave notice of this question earlier when we discussed Clause 23. I am sorry if the noble Lord has not been briefed on this subject, but I referred specifically to it and to the clause on which I proposed to raise it again. I do so because it has been brought to my notice that there are Private Acts which deal with discharges of trade effluent into public sewers, and it appears to me that under the Bill the position will remain just as it is to-day. If the control of discharges of trade effluent into a public sewer is subject to the provisions of a Private Act, it will be possible for it to continue and this Bill will make no difference. If I am wrong, I shall be glad to be told so, and told precisely what will happen.
Under a Private Act, industrial effluent in the very important industrial city of Huddersfield can be discharged into the public sewers, and the present authorities have no control over toxic waste that may enter the sewers. Equally, so far as they can see, the new regional water authority will have no control over toxic waste, because the dischargers will be able to say, "We are doing this under Private Act legislation." The Huddersfield Act was passed in 1906 and it allows industry in Huddersfield virtually unrestricted access to the sewers for the disposal of their trade wastes. It is suggested by my correspondent that this is likely to be a major problem in the 228 control and treatment of the sewage of Huddersfield, and he queries whether anything in the proposed legislation is likely to affect such a Private Act.
I understand that a similar situation has arisen in neighbouring industrial areas. There was an occasion last year, in 1973, when Spenborough fought a court case. Also I think there was a separate action by Beverley, about a tannery effluent, where they fought the action and won. In our earlier discussions it appeared to us that the Government had not given much thought to the problem of these Private Acts and did not seem to have any scheme for dealing with them. As we said at the time, they are, of course, a very difficult area of legislation, because some of them are of very long standing, many of them cover many subjects other than sewers and sewerage, and to have to go through every one of them to see whether by any chance it said anything about trade effluent being discharged to sewers would be a most laborious job. But it does not seem to me beyond the wit of man, nevertheless, that in legislation we should find some method to ensure that those who wish to discharge into the public sewers, even if they are covered by private legislation at the moment, are brought into the general system of consents; because it really is nonsense to have a Bill of this sort, which purports to control pollution of this kind, and to leave certain places—I have given a couple of examples of really very important towns with a good deal of industrial activity—outwith the legislation.
I am told that the matter of charges, which was referred to, can be altered, that there are arrangements for dealing with that, but that the quality of the discharge is not at present amenable to regulation by the authorities concerned Therefore, before we add this clause to the Bill I think this is the appropriate place to inquire just what the Government think they are going to do to meet the situation I have described.
§ LORD SANDFORD
I am glad to have this opportunity. The noble Baroness is quite right when she says that this is not covered in Clause 37, but there is provision which will enable what she wants done to be done by the Secretary of State under Clause 96(3). I apologise to the noble Baroness and the Committee, 229 because I could perhaps have made this clear when I referred to this same clause and subsection when dealing with her Amendment No. 136B. She raised a query then about how local Acts were to be dealt with, and it is this same clause which is operative in both cases.
§ BARONESS WHITE
Is the noble Lord satisfied that there will be adequate information available for the Secretary of State to take action? I think the noble Lord said on the previous occasion that he thought that probably the water authority could cope with it.
§ LORD SANDFORD
Of course, it is perfectly true, as the noble Baroness herself said—and I think I said it on the previous occasion—that there is an enormous number of these Acts, and it is because of the uncertainty about which ones allow what effluents that it is not possible to go into more detail than we have here; but there is sufficient power here to deal with the problem that the noble Baroness has outlined. When it is found that there is some discharge of polluting matter going on and that the explanation for it is that it has been authorised by some earlier local Act which is still in force, that is the point at which the Secretary of State can take the action which he is empowered to take. I should be glad to go into the particular cases which the noble Baroness has mentioned and to reassure her that this provision would be adequate to deal with those cases, if that would help.
§ BARONESS WHITE
But I am sure the noble Lord will appreciate that what he is saying is that action can be taken after the event. As I understand it, there is no need for notification by persons who are relying on the local Act. I quite appreciate that the knowledge that Clause 96 is in the Bill would have some deterrent force, but it seems to me to be unsatisfactory that no notification whatever need be given of a new effluent. It will presumably be left for somebody to complain about it before the regional water authority find out about it; but, meanwhile, the effluent will have occurred and will be able to go on until the Secretary of State takes action under Clause 96. I must apologise; perhaps I did not make 230 myself clear enough, because we have discussed this before and I should have mentioned Clause 96, to which the noble Lord had drawn my attention on the previous occasion.
It is this element about it that it must be retroactive which worries me; and what I should have made plainer is that I would hope that nevertheless the Government might be able to find some way to make it necessary for anyone who wished to introduce any fresh discharges, at any rate under private legislation, to notify the appropriate authority that it is going to do so. I should have thought that something on those lines would at least make certain that we would not get any new discharges. The old ones are presumably rather well known already, but there is this loophole, that some kind of noxious waste could be discharged and it might take quite a little while before it could be dealt with. So I should be grateful if the noble Lord would look at that aspect again.
§ LORD SANDFORD
Yes, I will look at it. I do not think the problem lies with the new discharges. There will be ample opportunity for my right honourable friend to look at local Acts in the course of their passage through Parliament and to object if there is not a sufficiently stringent provision to bring any discharges there might be relating to them under control. But I agree with the noble Baroness that the problem is the existing, old local Acts under which fresh discharges may be made under authority which has been given in the past. I assure her that this is a problem which we are not satisfied we have satisfactorily concluded. The problem remains in the case of these older Acts in a way that it does not remain in the case of the discharges exempted by the 1937 Act. The noble Baroness is perfectly right: there is a problem here which will run on until the authority to make these discharges has been discovered. How we can make further progress meanwhile is a matter on which we are still working, and if I have any more information to give the noble Baroness during the course of the passage of the Bill I will see that that is done.
§ Clause 37, as amended, agreed to.231
§ Clause 38 [Early variation of conditions of discharges]:
LORD SANDFORD moved Amendment No. 163:
Page 50, line 25, after ("required") insert ("—(a)").
§ The noble Lord said: I beg to move Amendment No. 163 and I should like at the same time to speak to Nos. 164, 165 and 166, which are all linked. This group of four drafting Amendments merely matches the drafting provisions in Clause 38, dealing with the obligations on a water authority, with similar provisions in Clause 31, dealing with another lot of consents to discharge to relevant waters. This is purely a matter of drafting, and I beg to move Amendment No. 163.
Page 50, line 26, leave out ("including") and insert ("which may include").—(Lord Sandford.)
§ LORD SANDFORD
I beg to move Amendment No. 165.
Amendment moved—Page 50, line 30, leave out ("which").(Lord Sandford.)
§ LORD SANDFORD
I beg to move Amendment No. 166:
Amendment moved—Page 50, line 31, at end insert ("and(b) otherwise than in consequence of consents for discharges given after the beginning of that period;").—(Lord Sandford.)
§ Clause 38, as amended, agreed to.
§ Clause 39 [Powers of water authorities to forestall and remedy pollution of water]:
§ 5.50 p.m.
THE EARL OF COURTOWN moved Amendment No. 166A:
Page 51, line 26, leave out ("that person satisfies") and insert ("the water authority fails to satisfy").
§ The noble Earl said: I beg to move Amendment No. 166A and, with the leave of the Committee, I will speak also to 232 Amendment No. 166B. The Government have down a replacement clause for Clause 39, but the same general point emerges as in the old Clause 39. I am not quarrelling to any material extent with the content of this clause, but to exercise its functions under Clause 39(1) the water authority needs to compile information on what operations to stop any pollution which is going on were necessary and the costs. The object of these two Amendments is to place on the water authority the onus to justify its action and the cost thereof. At present, it is placed on the person. That person has to satisfy the county court that the operations were unnecessary for the purpose for which they were carried out.
§ The water authority must have gathered together all the information necessary for it to take the action which it decided was required. Therefore there is no great difficulty in the authority coming to the county court and stating the reasons for that action. It is much more difficult for the person affected to find out what were the reasons and to try to assess whether or not the action was necessary. I would add that the person affected is much more likely to be a small firm than a larger firm with greater resources. The effect of the Amendment would be that the water authority, having compiled all the information, would go to the county court to claim on the person affected for the cost of the operations that it had decided were necessary to be carried out. This seems to me much more sensible and fair.
§ BARONESS WHITE
I am afraid that I do not feel entirely convinced, at any rate so far, about the merits of this Amendment which, as the noble Earl has rightly pointed out, would apply equally to subsection (6)(a) of the substituted clause. As I understand it in the circumstances described at somewhat greater length in the proposed substituted clause, it would be regarded as the normal thing that costs should be recovered. Therefore it seems to me that the Bill has got it right: that the normal thing is that the person should pay the costs and if he contests them as being unjustified, because the expenditure incurred was unnecessary, surely it is up to the person appealing against the normal procedure to make his case. The fact that the water authority may have fuller information 233 would not necessarily affect the position of the person putting his point of view to the county court, because the court would appreciate that it might not get such full technical details from the person appealing as from the water authority. But that does not seem to me to alter the balance of the intention of the clause. I do not know what is the Government's view, but my view is not in favour of the Amendment.
§ LORD ABERDARE
That is my view, too. This Amendment is not one that I could recommend the Committee to accept. As the two Amendments stand, they would have the effect—which I am sure is unintended by my noble friend—of obliging the water authority to go to the county court every time it wished to recover casts, whether the person concerned was contesting liability or not. That is only a matter of drafting, I admit. But there would still remain the human difficulty. If you say to a man, who knows that he is liable for some pollution damage which the water authority has put right, that he need not pay the costs, unless he wishes, unless the water authority goes to the county court and proves to the court's satisfaction that all the operations it had undertaken were necessary, you are almost inviting the man to postpone payment in the slight hope that the water authority will not perhaps trouble to go to the court. I do not think we should go so far as that to help someone who has caused pollution. We do not expect the water authority to invoke this provision except in an emergency. We think it right that when authorities do invoke it there should be the presumption that their costs would be met by the person causing the pollution, unless he can show that an authority has carried out work unnecessarily. This seems fair and right to me. I am sure that it is something which would happen only on rare occasions, but when it does I think that we should stick to the general principle that the polluter pays.
§ THE EARL OF COURTOWN
I am sorry to hear that the Government will not accept this Amendment, and that it does not receive any support from noble Lords opposite. I would not in any way quarrel with the idea that the polluter pays. The question is really, what is the most convenient way to collect the money from him. I would have thought 234 that it would be much easier for the water authority to put the information before the county court. Indeed, it is not at all clear how the person affected would gain the information why the water authority had taken the action that it took. There is no obligation put on the authority, so far as I can see, to give this information to the person affected. But having made that point, and after hearing the remarks of the Government spokesman, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.0 p.m.
§ LORD MOLSON moved Amendment No. 166E:
§ Page 51, line 29, leave out paragraph (b).
§ The noble Lord said: We have had a discussion about polluting water which may come from an abandoned mine. My noble friend Lord Sandford explained to us, in what I thought was quite a convincing speech, that the extremely difficult problem of a mine abandoned in the past, for which there might be no obvious owner at the present time, made it impossible for him to accept the Amendment on the subject moved by the noble Baroness, Lady White. He undertook that there would be further consideration of this general problem. I see no reason, however, why we should have postponed indefinitely the right of a water authority to obtain from any ascertainable owner of an abandoned mine the cost of carrying out necessary works for dealing with the effluent from that abandoned mine.
For the sake of simplicity, I have written out the words that would be operative if this Amendment of mine were accepted:
Where it appears to a water authority that any poisonous, noxious or polluting matter is likely to enter … any relevant waters in the area of the authority, the authority may
§ My noble friend Lord Sandford pointed out that in the case of a long-abandoned mine the only person apparently in possession of it might be a farmer who was running sheep, and there would be no justification whatsoever for trying to 235 make him liable for the cost of dealing with polluting water.
This Amendment avoids that difficulty because any dispute as to liability of the person to pay shall be determined by the county court, and also it is covered by the earlier provisison
who caused or knowingly permitted the matter … to enter the relevant waters".
I see no reason why we should indefinitely delay requiring those who are ascertain-ably responsible for polluting water coming from an abandoned mine—after the county court have tried the case—to pay to the water authority for those works which are necessarily carried out to deal with this continuing nuisance.
§ LORD ABERDARE
I am grateful to my noble friend for drawing attention to this problem. I will certainly study what he has said. He did mention that he found convincing the speech of my noble friend Lord Sandford. I am afraid that my speech is really modelled on the same lines as that my noble friend, and that we find a point of considerable difficulty here although we realise that water overflowing from disused mines may cause considerable pollution. Indeed, the cost of preventing it can be heavy. We are up against this difficulty, which my noble friend has mentioned, that the person now owning the disused mine may have bought it for quite another purpose and may be using it for grazing sheep or for some other agricultural object. It really would not be right to saddle him with the cost of taking whatever measures are necessary to prevent the pollution. I realise that this is an extremely difficult problem, and of course the Bill takes the first step of enabling the water authorities to investigate these problems in Clause 42.
I would suggest to my noble friend that it is better to leave the Bill as it stands, and when we have a better idea of what can be done, what the likely costs will be and what the benefit will be, we can then decide what arrangements should be made and who should pay for this remedial work. Meanwhile, we think it right to leave water authorities with the power under Clause 39(1) to prevent or remedy pollution from this source if they see an urgent need in a particular case to anticipate any general arrangements 236 that may in due course be made. It would not, in our view, be right to expose the owner or occupier for the time being of disused workings to the liability to meet the cost of such operations, but I should like to have a further look at what my noble friend said about the possibility of being able to charge a person, if one could find him, who had been responsible for that mine when it was in operation.
§ BARONESS WHITE
I have listened with interest to the speeches by both noble Lords. I wonder whether the Government would look at this in a wider context altogether than simply the prevention of pollution under this Bill. As the noble Lord, Lord Aberdare, said, in most instances any remedial action is likely to be very costly indeed, whoever pays for it. That is what worries me, because one has the problem which we discussed on my Amendment where, as noble Lords may recollect, I tried to limit the exemptions from payment to mines which had been abandoned before the coming into force of this Bill. That was not acceptable to the Government, but in all circumstances, whoever has to pay for an abandoned mine is, as I say, going to have to meet a very heavy bill.
Is it sensible, therefore, in the conditions in the mining areas to adopt this approach? I am sorry, I really do not feel sympathetic this time to the noble Lord, Lord Molson, because I do not think it is practical. The people who have abandoned mines, other than the National Coal Board in fairly recent times, are probably not in a position to meet the sort of costs that might well be involved, because at the time when they may have owned the mines—I am thinking of a number of South Wales mines which have been abandoned over the years—they were a great deal less profitable than they have now become. Anyway, with the change in the value of money and the lapse of time this approach would be quite impracticable.
When one looks to the water authorities, are they going to be any better placed to meet this kind of cost? And will they not hesitate to take action, except in the most dangerous situations, to deal with effluent which might still be damaging because they would say it is going to cost them too much and that they have to 237 balance their books? The water authorities will have to pay their way. Therefore it seems to me that there will be a strong temptation for them to leave as long as possible any matter of an abandoned mine, because they would say that this was something which was not positively going to improve the water supply. It would limit the damage, but if it was not too bad the chances are that they will let it go on until they have to do something about it; but it would be nowhere near the top of their priorities. This affects us in the mining areas; and it is causing a good deal of concern, as I know, to scientific advisers and other similar people in the area.
Among the interesting suggestions in the report—not a public report, of course—of the investigations by the noble Lord, Lord Zuckerman, into propositions for possible mining in North Wales, in Snowdonia, was the suggestion that problems of this kind should be dealt with on a national basis. We have the Derelict Land Unit in the Welsh Office, for example, which is financed directly out of general taxation. It is not financed by the National Coal Board because mostly the dereliction happened before the Board came into being, although not exclusively so. Ought we not to treat this business of pollution from abandoned mines on a similar basis? Ought it not to be dealt with under national financing, as something for which we really cannot now pin the responsibility sensibly on anyone?
I would seriously ask the Government to look at this point. Noble Lords will know that I have a special interest in these areas. I have had representations made to me by those who are working there. I would suggest that this business of abandoned mines as dealt with in the Bill is not likely to lead to satisfactory results. I do not know what the noble Lord, Lord Molson, proposes to do with his Amendment, but I would plead with anyone concerned with this matter to look at it again, to see whether it cannot be raised to a national level rather than trying to deal with it under the normal arrangements provided under the Bill.
§ LORD ABERDARE
I was thinking about that, because in fact the landowner has to pay for the capping of a shaft of a disused mine, as I found to my cost recently; so I have every sympathy with what the noble Baroness says. In these circumstances I hope that the Committee will leave the Bill as it stands and that my noble friend will be prepared to withdraw his Amendment.
§ LORD MOLSON
I think that the proposal made by the noble Baroness, that derelict mines should be dealt with under the same system as for derelict land, is of great interest and I hope that my noble friend will see that it is considered in the context of this Bill. Having said that, and having heard the reply of my noble friend, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.12 p.m.
§ LORD ABERDARE moved Amendment No. 166F:
§ Leave out Clause 39 and insert the following new clause:
§ Operations by water authorities to remedy or forestall pollution of water
(".—(1) Where it appears to a water authority that pollution injurious to the fauna or flora of a stream in its area has been caused in consequence of discharges made by virtue of a consent given by the authority in pursuance of section 27 of this Act after the date when this section comes into force or discharges made by virtue of a variation of a consent in pursuance of that section which was made by the authority after that date, then, subject to the following subsection, it shall be the duty of the authority—
(2) If it appears to a water authority that injurious pollution of a stream in its area has been caused in consequence of discharges made as mentioned in the preceding subsection but that further discharges so made after such a period as the authority considers reasonable in the circumstances will, after the carrying out of such operations as are mentioned in paragraph (c) of that subsection, not cause injurious pollution of the stream, then—
(3) The duty imposed on a water authority by virtue of subsection (1)(a) of this section shall be performed notwithstanding anything in section 31 of this Act but no compensation shall be payable by a water authority in pursuance of that section in consequence of the performance of that duty; and nothing in this section shall be construed as restricting the powers conferred on the Secretary of State by section 30(2) of this Act.
(4) Where it appears to a water authority that any poisonous, noxious or polluting matter is likely to enter, or is or was present in, any relevant waters in its area, the authority may, without prejudice to any duty imposed on it by virtue of the preceding provisions of this section, carry out in its area or elsewhere such operations as it considers appropriate—
(5) Where a water authority carries out any operations in pursuance of this section the authority shall, subject to the following subsection, be entitled to recover the costs of doing so—
(6) Any dispute as to the liability of a person to pay costs to a water authority in pursuance of the preceding subsection or as to the amount of the costs shall be determined by the county court; bu tno such costs shall be payable by a person—
(7) In determining the damage which a person has suffered in consequence of pollution in respect of which operations have been or may be carried out in pursuance of this section, account shall be taken of the extent to which it is shown that the damage has been reduced by operations in pursuance of this section and of the extent to which it is shown that the damage is likely to be so reduced.
(8) In this section—
§ The noble Lord said: I beg to move this Amendment: it is the new Clause 39 which we have been referring to on and off throughout the afternoon. I should like to apologise, as I did yesterday for other Amendments that had been put down at fairly short notice. This was put down only on Friday. It is a large new clause, although it contains much of the content of the previous Clause 39. In this case we thought it of great importance that your Lordships should have in front of you the new clause when discussing earlier clauses such as Clause 36.
§ It has always been our intention to include these sort of provisions in the Bill 241 because we recognised—or at least we recognised at the time when we thought Clause 36 was going to stand—that if there are to be restraints against publicised legal discharges, then there must be corresponding duties placed on water authorities to take action themselves to make sure that where a legal discharge causes damage it is stopped as soon as reasonably practical and the damage made good. These provisions have been difficult to draft satisfactorily, however, and I am sorry that the Amendment has been put down at a fairly late stage.
§ What the new Clause 39 proposes in relation to the powers already contained in the Bill is that where consent to a new discharge or a variation of an existing discharge results in a discharge which causes pollution and injures the flora or fauna or the stream, then the authority has a duty immediately to serve notice that the consent has to be varied or, if necessary, revoked so that the injury will cease. As soon as favourable conditions are re-established the authority will have to restore the flora and fauna, so far as is practicable, to the state they were in before the pollution occurred. It will not always be practicable or reasonable to stop or vary the polluting discharge immediately. It may be that new equipment would be needed, or alternative arrangements need to be made to dispose of the effluent. In these cases the authority will specify a period before the variation or revocation takes place, in order to give time for these works to be carried out or for alternative arrangements to be made. In the meantime, the authority must take such action as it considers appropriate to mitigate the effect of the discharge. For example, this could entail pumping oxygen into the water.
§ Subsection (2) of the clause makes similar arrangements to those in subsection (1) but deals with the rather special situation where a two-stage consent has been granted. Two-stage consents are given where a discharge is expected initially to reach a certain standard but later, when the necessary bacteria are present to digest the effluent, to meet higher standards. Even the first, inferior, stage should still not cause damage to flora or fauna but, if it does, it still should not be necessary to vary the consent because it already contains 242 its own variation in the second stage. A duty to vary as provided in subsection (1) would therefore be inappropriate. The authority would still have the same duties to mitigate the pollution while it continues and to restore the stream when it ceases. The cost of these operations under subsections (1) and (2)—as under subsection (4) which replaces the first part of the present Clause 39—are recoverable from the discharger or polluter.
§ We believe that this is a useful new clause and that it will add to the colourful armoury (as I believe I described it in connection with Clause 36) of weapons in the fight against water pollution.
§ LORD CRAIGTON
I should like to give an unqualified welcome to this new clause, not from a legal point of view but because of everything implied in the wordsrestoring the flora and fauna of the stream.This is something to be welcomed by people all over the country. If I ask some questions now, they arise because it is difficult to put down Amendments, so I hope that my noble friend will note the few points that I have to make and, if anything needs to be done, to take the necessary action. First of all, as to restoring the flora and fauna, nothing is said about the natural flora and fauna. If one looks at the first three lines at the bottom of page 6—I should like it to read there, though I am sure it cannot—… where it appears to the water authority that pollution injurious to the natural flora or fauna of the stream and its area has been caused by or built up to such a degree that in consequence of the discharge …".There are two points there. The stream will almost certainly be, as nearly every stream is, polluted to a certain extent. Pollution is cumulative: we are not going to have an absolutely pure stream suddenly polluted. When the pollution has reached the stage in a cumulative manner when damage is being done, or is beginning to be done, to flora or fauna, there may be other people who are guilty of discharges which, but for the final discharge, would not have done a great deal of damage. It may be that the final discharge did no more than break the camel's back. This is a very difficult problem, but it is going to be there and it may be necessary, in restoring the flora and fauna, for people other than 243 the last discharger to have to take some action—and of course all this has to be found out as having happened after the consent has been given in Clause 27.
Another problem is the flora and fauna on beaches. It is a problem which arises in connection with oil on the beaches. It is grand to say to the oil companies: "You are the polluter and you must pay to restore the natural conditions of the beach." But nobody knows what the natural condition of the beach was before it was polluted. So the problem is to know what was the natural state before the pollution took place. Should, for instance, Clause 27 impose on the applicant the necessity for a survey—perhaps a scientific one—of the water that is to receive the discharge, or should the water authority do it? Unless someone can take some reasonably intelligent record of what the water was like before it was polluted then no one will know what flora and fauna to restore.
Finally, may I mention one small point. Under the clause, as I read it, the authority alone can carry out any work of cleaning up and restoration, though the offender, quite rightly, has to pay the bill. Is it implied that the authority can, if they want to, require the offender to clear this up himself or to contract with the offender to do it, provided the offender does the work to the authority's satisfaction? I understand that it is only the authority who can do the work. With those few words, I welcome the clause.
§ BARONESS WHITE
I am sure we are all extremely grateful to the noble Lord, Lord Craigton, for his helpful analysis of certain points in this new clause. I was particularly interested in what he rightly said about the need to know the original state of the water. This is something which has very much exercised us in Wales. I referred in our recent discussion to the proposals at one time which Rio Tinto Zinc made to mine in the Snowdonia National Park. Had it been decided to carry out this operation, this would undoubtedly have resulted in the pollution of streams and of the Mawddach Estuary. Efforts have been made, but on a relatively modest scale, to prepare for any such eventuality by studying the nature of the waters as they are now and various academic exercises have been going on with that in mind.
244 But if one takes the country as a whole this is a big problem, and although it is incumbent upon the water authorities to do all this it may take them a very long time: it may be impossible for them to do it adequately before some of the provisions of this new clause are due to come into effect. This is largely a matter of directing and co-ordinating research and paying for it. If we are serious about this new clause it will not be effective unless, as the noble Lord, Lord Craigton, pointed out, money is spent quickly in the early stages of the responsibility of the water authorities in studying the waterways which are under their control. We do not have the current levels for many possible pollutants. Such research has to be carried out over a period. It is not something which one can do in a few weeks or months because of varying conditions, water flows, and so on.
One would be reassured if one had some feeling that the Government have not only put down what I freely grant is an attractive new Clause 39, but that they were prepared again to regard this as something which it might be difficult for water authorities to do adequately with the kind of money that might be available to them in the early years. One would expect them to be able to plan their financial arrangements as time went on to take matters of this kind into account. I speak subject to correction, but I suppose in the areas of a good many of them there are considerable gaps in the scientific knowledge available.
I do not like crash research programmes because they can go badly wrong, but at least there should be an energetic attempt to deal with these problems. I hope that this could be supported by Government, not necessarily by grants to the water authorities themselves, but to the Science Research Council or the Natural Environment Research Council, as might be appropriate. I should like to suggest to the noble Lord. Lord Aberdare, that it would be helpful if he could make some comment on that aspect. Otherwise we, so far as we can understand it, welcome the new clause.
§ LORD MOLSON
I am sure we welcome this clause, so far as we understand it, for what it does. I do not think I have ever seen a clause which is so verbose 245 and where so many words are used to convey so little and with such an obscure meaning. But I am sure we welcome the clause for what it does. The first point that I should like to make to my noble friend is this: in the Second Reading debate my noble friend Lord Nugent of Guildford (the Chairman Designate of the National Water Council) mentioned a extraordinarily interesting case of damage done to a crop by the use of water for which consent had been given. That is extremely important. If I had spoken in the debate on Clause 36 I should have given that as a classic example of where it was important to retain the power of an injunction.
My noble friend spoke of the interesting incident which occurred this year of the heavy mortality of the tomato crop in Essex. An intensive horticulturist in Essex, with his tomatoes being grown under glass and entirely dependent for their irrigation on the main water supply, suddenly found that the tomato crops were stricken and were dying at a terrifying rate. Nobody could discover the cause. After intensive investigation, which lasted for months, it was eventually discovered that the source of the mortality of the tomato plants came not from a river in Essex, but from the Great Ouse near Cambridge. There was a factory manufacturing plant herbicides and discharging effluent into the Great Ouse which was acceptable to the river authority there.
The Great Ouse has a magnificent water transfer scheme to Essex (which is a very dry county), and the Great Ouse water had been transferred into the Essex rivers and then into the pipe system and it then went off to supply the horticulturist. Because his tomatoes were entirely dependent on the piped supply, there was just enough of this dangerous chemical in the water—although it was in infinitesimal amounts—to cause destruction of the crop. I should like to know whether a case of that kind is covered by this new clause and who would have to pay for carrying out any necessary works which might be extremely expensive in this case under the provisions of this clause?
My second point is this. I was asked to put a question to the Government by the noble and learned Viscount, Lord Dilhorne, who is not able to be in his place. He wished to know why subsection 246 (7) has been put into this Amendment:In determining the damage which a person has suffered in consequence of pollution …Then it goes on to say how the damages are to be assessed. The noble and learned Viscount says that this is only a repetition of the existing law upon the subject and he wonders whether it is either necessary or desirable to incorporate it in this Amendment.
§ 6.30 p.m.
§ LORD ABERDARE
I am grateful for the general welcome that has been given to this new clause. It has been extremely difficult to draft, and it is no doubt for that reason that your Lordships have raised various points about it. My noble friend Lord Craigton suggested that the word "natural" should be inserted before "flora or fauna". I was not clear why he wished to put that word in. It might be slightly more limiting than an unqualified use of the words "flora or fauna". I am not sure what "natural" really adds to the words, if anything. It could mean the flora or fauna that existed at the creation of the world.
§ LORD CRAIGTON
I should put my noble friend right. I meant flora and fauna that were there before the pollution started.
§ LORD ABERDARE
That is covered by the clause as it stands. Going on to that point, it is a difficult one because there are considerable gaps in our knowledge of the biology of individual streams. It is doubtful whether a central research effort would help very much because each stream needs separate consideration. A start was made in the River Pollution Survey of 1970 and 1972. We shall certainly continue to encourage the development of biological classification of streams. On the whole I think we shall have to rely on the regional water authority to determine what the state of the river was before the action took place which triggered off this Clause 39. I should like to have a look at what he said about whether the water authority could contract with a person who had caused the pollution. I should hope that this was so, but I should like to check the actual legal wording of it.
The noble Baroness, Lady White, also asked me about the state of the streams. 247 I have done all that I can to answer her. I will see whether I can go any further later. For the moment, I have said all that I can.
My noble friend Lord Molson asked me two questions, to which I should like to give him the answers later. So far as his first question is concerned, the case that Lord Nugent of Guildford mentioned on Second Reading, I doubt whether Clause 39 would cover this matter because it begins:Where it appears to a water authority that pollution injurious to the flora or fauna of a stream in its area …".I very much doubt whether it would cover that case.
§ LORD ABERDARE
On the other hand, Clause 30(1) gives the water authority and the Secretary of State power to revoke consents and to impose conditions. If there was a factory which was causing a difficulty, as in the case mentioned by my noble friend, I should have thought that the local water authority had ample powers to revoke or alter the consent in that fashion.
§ BARONESS WHITE
May I intervene for a moment before the noble Lord leaves that point? It had not occurred to me until the noble Lord, Lord Molson, raised it. We are dealing with charges (are we not?) in the new Clause 39. Though there may be a change or revocation of a consent, who pays to put that damage right? It does not seem to me that the people who made the pesticides which killed the tomatoes would be caught. This situation is surely going to arise more frequently if we are going to have these fantastic transfers of water from one part of the country to another. One would hope that this situation might never arise, but it is conceivable. I have not had time, I admit, to read the Final Report of the Water Resources Board. However, in its strategy for water supply in future it does make suggestions for a water grid. I would suppose that that principle will be carried out on a smaller scale in many parts of the country, as indeed it is between the Great Ouse and the Essex rivers. But this whole point of who pays seems to me to be a very important one. If polluting effluent happens to go into 248 your neighbouring stream, you pay: but if the effluent from your enterprise finds itself travelling many miles throughout the country, though it may be just as damaging and noxious you escape payment. I am not at all clear how we are going to deal with this situation.
§ LORD ABERDARE
Are the two cases similar? What happens under this clause is that pollution is caused by a discharger, and the water authority move in and put it right. They charge the cost of putting it right to the person who was causing the pollution. This is quite a distinct matter from that which the noble Baroness is talking about, which, as I understand it, is damages to the person who suffered from the pollution. Nothing in this Bill prevents anybody who has suffered damage from going to the court and seeking to recover from the person who caused the damage. That, I would think is the answer. But if the noble Baroness is not satisfied with that answer, we can look at it again.
On subsection (7), which my noble friend mentioned, the intention is clear that when a riparian owner seeks damages at common law the subsection requires the court to take account of the restoration undertaken, or to be undertaken, by the water authority under the new clause. Otherwise, the riparian owner might, in effect, be given compensation twice over. I will, if I may, write to the noble and learned Viscount who asked this question, I understand, when I have had a chance to go into the legal side of it.
§ Clause 40 [Duty of water authorities to deal with waste from vessels etc.]:
§ 6.38 p.m.
VISCOUNT ST. DAVIDS moved Amendment No. 166C:
Page 51, line 38, leave out from ("which") to ("collection") in line 39 and insert ("needs").
§ The noble Viscount said: This Amendment concerns quite a simple matter. It is a matter of adding a little more weight to the requirement on the water authority to provide facilities to collect waste. It is very important that these facilities should be provided all over the place, and quickly, if this Bill is to be effective as regards waste collected from boats. I 249 have been concerned with this particular matter for quite a number of years. Long before anybody thought that wastes should be collected from boats, I wrote a textbook on how to navigate the inland waterways. Among other things, I put in my textbook quite a long passage on what one should do with one's wastes—there being at that time no collecting points whatever. It is true that at that moment there was no legal responsibility for anybody to do anything with the wastes other than dump them in the water. However, as a good boy scout, I did not consider that adequate. I included what I thought should be done.
§ Nevertheless, it is intensely difficult to get rid of wastes from boats unless there are regular collecting points, well spaced and not too far apart; and they must be there before it is possible to start carrying out the requirements we are now considering—and "there" means not merely at one or two spots, but at regular intervals all along the various waterways. If the collecting points are not at any one place that will be just the place where a boat has to get rid of something, or it overflows, and we shall be back in the old state of affairs, with the water being treated in the way most people treated it—which was rather roughly. My own method of dealing with the problem—taking out the residues and burying them some way from the waterway—while better than standard practice, was not very good practice. Unless there are not merely places where somebody thinks that some stuff ought to be collected, but regular places along all the navigable waterways, the law will simply not be obeyed. There will be no possible way of obeying it. It is a small point. The Amendment is put up simply because one would like to hear a little more about what the proposals are. I beg to move.
§ LORD CRAIGTON
I have sympathy with the noble Viscount's Amendment. I am not sure he is quite right in saying it is a good idea to bury waste anywhere, but that concerns another Amendment altogether. I was going to ask him and the Minister this question. The noble Viscount referred to wastes, but of course the way this Bill is drafted, as I read it, means that the waste is really only sanitary waste. I wonder whether he and the Minister are satisfied, and whether we ought to be satisfied, that there is no provision for an adequate 250 number or positioning at regular points of dustbins. Cartons, cans and bottles are from the æsthetic point of view the worst waste on any enclosed water. There should be dustbins, and separate dustbins for bottles, adjacent to sanitary facilities and at public moorings where people tend to stop and shop. This is perhaps something upon which we should have put down an Amendment. It is not too late to raise the matter, and so I support the noble Viscount in what he has said.
§ LORD SANDFORD
In response to the noble Viscount I would make a few preliminary remarks and remind the Committee of something we were doing when we were enacting the Water Bill, in which it was provided that the water authorities—the same water authorities as we are dealing with to-day—had among their duties the duty of making plans for the recreational use of their waterspace and the development of the waterspace for recreational purposes. It will fall to them in doing that to decide where this kind of provision should be made: to consider the kind of points the noble Viscount has just been putting before us—that these waste disposal points should be properly spaced—say, down a canal or along a river bank—and to decide who is going to provide what; because in the towns there may already be conveniences provided by the urban district council. There may in other places be marinas with these facilities provided by private boat hirers or boat builders. All this is taken into account in drawing up these plans, and particularly the recreational plans.
I understood from what the noble Viscount said that he is not proposing to press his Amendment and is just probing the Government's intentions. Against that background, it is obviously necessary for the discretion as to where these facilities should be, and from what points it is necessary to collect waste, to rest with the water authority. If this Amendment were to be imported into the Bill, then the question of which waste needs to be collected from what vessels, and where, would be, in the last resort, a matter for the courts. I think the noble Viscount and the Committee will agree that that would be going too far. As the matter stands, the discretion rests with the water authority as to precisely what provision they make, which areas vessels are likely 251 to congregate in, and, for considerations of that kind, from what points the waste should be collected. Everything that I am saying applies of course to sanitary waste—waste which would be emptied from Elsans, for instance—and solid waste, though the solid waste is a matter dealt with in the first Part of the Bill. The same considerations as I have just been mentioning apply in both cases. I hope that that explanation satisfies the noble Viscount.
VISCOUNT ST. DAVIDS
I am glad to have that further statement from the noble Lord. It is the kind of information we want. In answer to the noble Lord, Lord Craigton, I quite agree with him that rubbish and such things as he mentioned are waste which most urgently needs collecting. The sheer mess which was collecting along some of the waterways was terrible. One of the difficulties with rubbish, if it is not adequately collected, is that it tends to attract animals who injure themselves on it. Cows that swallow plastic bags are not improved. Creatures get these things on their hooves or cut their mouths on tins—all sorts of trouble occurs. I quite agree with him that burying is not the best that can be done. The best would undoubtedly be what this Bill provides for. One of the troubles in burying was that the animals came and dug up the stuff again. My remedy for that, given in my book, was that one first of all buried the solid waste and then put the lavatory waste on top of it; that kept the animals from doing it. But undoubtedly this is only a second best, and one can only welcome with joy all the splendid facilities we are now to have. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.48 p.m.
§ VISCOUNT ST. DAVIDS moved Amendment No. 166D:
Page 51, line 40, at end insert—
("(1A) A water authority shall reimburse any navigation authority or other person or body the reasonable cost incurred by that authority, person or body in providing and maintaining facilities (including the cost of maintaining facilities provided before the coming into force of this section) for the collection and disposal of waste from vessels being facilities which it is or would (had they not been otherwise so provided) have been the duty of the water authority to provide under subsection (1) of this section; and any dispute as to
whether or on what terms of reimbursement is to be made under this section shall be determined by the Secretary of State.")
§ The noble Viscount said: This is a matter to which the noble Lord referred a moment ago. The new authorities are going to provide a number of places to collect waste of all kinds. The question then arises: Who is going to pay for those places? Where the water authorities provide them themselves, naturally they are paying for them. But there are already a great many such places which have been provided because various private and public bodies have found themselves compelled to provide them. Under previous legislation there was power to make rules (which were made) by various water authorities preventing rubbish and lavatory wastes and other things from going into waterways. But although these rules were made, there was no provision in many cases for these waterway authorities to have power to provide anywhere to collect this stuff. The result was that numbers of boatyards had to provide places to protect themselves. On the British Waterways Board's waterways of course the Board has had power to erect sanitary stations, and so on, and has done so, and it has also appointed rubbish collection points. All these are in existence.
§ The question is: If the duty falls on the new water authorities to do this job, what is going to happen to the existing rubbish and sanitary collecting stations? Are they going to be paid for by the new water authorities? They have a duty to do this job. If somebody is doing the duties for them should these stations be handed over to the new water authorities? The British Waterways Board is now to continue in existence, but will the water authorities pay the British Waterways Board for running the existing sanitary stations which it is now the duty of the authorities to run? Supposing the British Waterways Board closed its stations, would the water authorities under this Bill have the duty to provide them? Would they be compelled to buy them from the British Waterways Board? What is the position?
§ The same applies to the number of privately owned rubbish and sanitary stations in the hands of boatyards and similar places. These also are performing a function which it is now the duty of the water authorities to perform. Should the water authorities be paying 253 for these? What is the position there? We have tabled this Amendment for the simple purpose of finding out. I beg to move.
§ LORD STOW HILL
May I add just one word to what my noble friend has put before the Committee in his full and clear speech? It is simply this: it is anticipated that it is probably the intention of the Government that there should not be, as it were, duplication; that the water authority should be in a position to avail itself of existing facilities which have already been provided. I gather that the British Waterways Board has already provided something like 150 such stations, or is in course of providing them. I infer that from the wording of subsection (2) of Clause 40, namely,arrange for the provision of facilities by way of water closets,and so on. Clearly, therefore, the Government intend that what is already on the scene should be incorporated into the general programme and be made use of, and if I may respectfully say so that would seem to be an eminently sensible approach.
What is rather in the minds of those who have already arranged for these facilities and have gone to considerable expense over the years, not only in installing them but in maintaining them so that they are now in use and usable, is that the wordsarrange for the provision of facilitiesleave very uncertain the financial implications as between a water authority and those who have provided the facilities. I hope that it would be the intention of the Government by those words to give power to the water authorities to make reasonable financial payments to those who have installed existing facilities. I suppose that in the first place there is the original capital cost of installing them. Then, over the years, there is the cost of maintaining them and improving them or extending them from time to time. It is submitted that it would be a matter of fairness that the water authority, being relieved of the obligation pro tanto themselves to provide these facilities because of the fact that they are already there, should make some fair reimbursement to both public authorities, like the British Waterways Board, and private individuals like those who hire boats on the Norfolk Broads, to recompense 254 them for what they have done and, by so doing, lightening the burden which this clause rightly puts upon the water authority.
In moving this Amendment I think my noble friend largely had the purpose of probing the Government and ascertaining from them in somewhat more precise terms what their intentions are in this particular regard. I would respectfully submit to the Minister that it is desirable in terms to spell out that there is to be a duty on the water authority to pay reasonable compensation, and that duty should be supplemented by a right for any claimant to ask that the decision of the Secretary of State should be invoked in the event of a difference between the water authority and the person who has installed the facilities. Your Lordships will see that this Amendment provides that right. In those circumstances, I hope the Government will be able to indicate that their intention goes the full length of the proposal put forward by my noble friend, and that they will be able to say that they will either accept in terms this Amendment or at least put something in the clause which makes it perfectly clear that the measure of responsibility on the water authority is no less than I have sought to spell out.
§ 6.56 p.m.
§ LORD SANDFORD
I am glad to respond to another probe, first, by saying that if the Amendment was thought to be necessary in order to enable water authorities to pay someone else to collect waste I can assure the Committee that it is not necessary because they can do that; but I would suggest that if the Amendment was intended to oblige the water authorities to pay everyone who makes provision for waste disposal, that is not reasonable and what in fact will happen will lie somewhere between those two. I do not myself believe it is practicable—as the noble and learned Lord, Lord Stow Hill, was perhaps tempting me to try to do—to spell out in the Bill the co-operative arrangements which need to be made by the various authorities concerned in this particular field. If the total range of facilities for individual boat owners is sensible and effective and sufficient, that is really all that is needed. Our object in the Bill has been to make the provision sufficiently flexible to permit such sensible arrangements to be 255 made, and that is exactly what the noble and learned Lord, Lord Stow Hill, surmised. It will be for the water authorities, the British Waterways Board, the boat yard owners and any other bodies concerned to get together and to make sure that sufficiently comprehensive facilities are available on appropriate terms and at appropriate stages along the river which is being used for recreation.
Going back to where I began, this cooperative action is something on which the water authorities have a duty to take the initiative and to prepare plans under duties laid upon them by the Water Act which we enacted last Session. I hope with that assurance about what the water authorities can and will do, and what it would not be reasonable to expect them to do, the noble Viscount will be content to accept my assurances and will not press his Amendment.
§ LORD STOW HILL
I should like to add one word which arises out of what the Minister has just said. He has indicated the broad intention of the Government. Would it be his view—because I would submit that there may be some doubt about it—that the water authority, if it thought it appropriate and fair, would be able, in the compensation that it provides under the powers given to it by the wording "arranges for the provision of facilities", to include some measure of reimbursement for the actual capital cost that has been incurred? A number of those who have already provided the facilities, as I have said, have put them there on the ground and they are now in operation. If they had not done so, it would mean that the water authority would be under a duty to incur the capital cost of now doing so. They are relieved from that obligation, and I would submit to the Committee that the justice of the case requires, in such circumstances, that the water authority should at least have power, if it seemed fair in the circumstances, to reimburse to some extent the actual capital cost which may have been incurred a considerable time ago by those who installed the facilities, measured against relieving the water authority of incurring a capital cost not necessarily commensurate, I agree at once, in restoring new facilities.
I submit that is fair, and I also submit to the noble Lord the Minister, that it is 256 somewhat doubtful as to whether the words "arrange for the provision of facilities" would confer the power to pay such compensation. I submit that the words "arrange for the provision of facilities" seem to look to the future. They do not seem to apply to an existing situation. They seem only to empower the water authority to enter into a new arrangement with some outside person to install and provide, in the very near future, the relevant facilities. If that is all they do provide, I submit that is not quite a fair result. The water authority should be able to go further and make some reimbursement provision for the capital cost already incurred, the incurring of which relieves them of the obligation of incurring a capital cost on their account. I ask the Minister to be so good as to say that he will look at these words, to see whether he is satisfied that they are wide enough in scope to encompass the Government's intention.
§ LORD SANDFORD
I can certainly confirm that the power provided in the clause as drafted, to arrange for the collection and disposal of this waste, does include the power to pay for it, but it does not go so far as to lay a duty upon a water authority to pay everyone who is collecting and disposing of waste, in every case, their full expenses for doing what the water authority would otherwise have to do. But clearly, in so far as the work that other people are already doing, or intend to do in the future, relieves the water authority of the duty of doing it, there is scope for negotiation and adjustment on a financial basis between the two parties. But I fall back on what I was saying in my first remarks. I do not believe it is feasible or even desirable to go further than that in the terms of the Bill itself.
VISCOUNT ST. DAVIDS
I am sure the Committee would not wish me to press this Amendment, but nevertheless I think one should make some remarks on what has been said. In the matter of the capital costs I cannot say (because I am not a lawyer) whether my noble and learned friend Lord Stow Hill is right. But one point I am sure of is that the running costs of clearing the waste are a considerable burden either on a boatyard or, even more so, on the British Waterways Board. If the water authority 257 is compelled by law to provide these facilities, and if these various people already providing facilities are not paid for the work they are doing, then they are quite likely to stop doing it because they are under no legal obligation to collect this waste. If they do stop collecting it, then the cost of collecting the waste will inevitably fall on the water authority, whether they like it or not.
Indeed, I conceive that those people who are collecting waste may even get back part of their capital cost simply by saying that they do not see why they should do this work. As the Bill stands they may indeed be in a position largely to compel the water authority to pay them part of their capital cost. I do not know whether this is right or wrong, but that seems to me to be the position. It looks as if the water authority may find themselves, whether the noble Lord thinks it right or wrong, in a position where they have to do it. We cannot take this matter further to-day, but it seems to me that this is a point where some further amendment ought to be made to the Bill, though in quite what sense I am not sure. It needs looking at further, but for the moment, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ LORD SANDFORD
May I intervene to move that the House do now resume for other business. I beg to move that the House do now resume.
§ House resumed.