Food and Environment Protection Bill [H.L.]

HL Deb 05 February 1985 vol 459 cc1014-32

8.20 p.m.

Lord Belstead

My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales that they, having been informed of the purport of the Food and Environment Protection Bill [H.L.], have consented to place their prerogative and interest, so far as they are concerned on behalf of the Crown, the Duchy of Lancaster and the Duchy of Cornwall, at the disposal of Parliament, for the purposes of the Bill.

Bill read a third time.

Clause 1 [Power to make emergency orders]:

Baroness Birk moved Amendment No. 1: Page 1, leave out line 8 and insert ("Without prejudice to any provision in any other enactment if a designating authority, of its own motion or on the application of a local authority, is of the opinion that—").

The noble Baroness said: My Lords, I shall be as brief as I possibly can at this time of night. In the last episode of what is rapidly becoming a local government soap opera without the sex and violence of "Dallas" or "Dynasty", may I say that I first raised the point on Second Reading of the lack of mention of local authorities anywhere in the Bill, I then moved an amendment in Committee; and I think I moved a better amendment on Report. At that point we were awaiting a meeting which had been arranged between the officials of the Ministry of Agriculture, Fisheries and Food and representatives from the local authorities. This meeting took place three days after Report stage on the 25th January, and at that meeting were officials from the Ministry and representatives of the Association of County Councils, the Association of District Councils, the metropolitan authorities and others. These representatives were all united on the principle that the involvement of local authorities should be on the face of the Bill.

I shall outline briefly what happened at that meeting. It can be summed up in this way. First, there was unanimity regardless of the political colour of the various associations or people present. Secondly, it was agreed that no administrative arrangements, such as circulars or regulations, can make up for the lack of mention of local authorities in the Bill. Thirdly, there had been an extraordinary lack of consultation in advance of the Bill being drafted. I think that was accepted by the Minister during the progress of this Bill through this House. I believe that if there had been consultation, then something would have been worked out, and that would have been on the face of the Bill. I think that the whole thing was forgotten and overlooked, and hence we are faced with this reluctance.

It was readily accepted that Ministers should have the emergency powers which they have, and which are not taken away from them in any way or weakened by my amendment; but local authorities should have the right to apply and be seen to have that right in the legislation if they felt that the designating authorities should be alerted because there was the possibility of an emergency. The local authorities have a great deal of experience in the exercise of these functions, all of which were spelt out on Report stage. I shall not repeat that tonight.

The amendment recognises an essential and natural local government and MAFF partnership in spite of what has been said by the Minister. As I have pointed out before, what the Minister said in Hansard does not affect in any way what is in the legislation itself. It would appear that without this partnership that the Government are setting up a narrow, centralised structure.

Following the meeting with officials, I had a very amicable meeting with the Minister, Lord Belstead, last Thursday. At that meeting he was, as usual, as courteous and as helpful as he could be. But it did not seem to me that there was a question of principle involved here; that he was not against the principle of it. However, he said that there was difficulty in drafting the amendment, and that according to parliamentary counsel it might go to several pages. I find that rather difficult to accept. As I have said before, and as I say now, these are not insurmountable difficulties. The Minister raised some quite mild points which I think can all be answered.

He first of all said that local authority was not defined. This is not difficult to put in the interpretation clause of the Bill, Clause 22. The definition of the 1972 Local Government Act sets out local authorities; but I am quite aware that definitions vary depending on the function required of them. Here I suggest that there is nothing rigid about this. In the interpretation clause, considering the functions that local authorities will be asked to undertake, a local authority means in England and Wales, a county council, the GLC, a district council, London Borough Council or the Common Council of the City of London.

Then the Minister asked at which point do they come in. Is it for representation or consultation? The amendment asks for absolutely the minimum; that is, representation—just applying to the designate authority to declare an emergency; but it is still up to the authority which comprises the Ministers of MAFF and the Department of the Environment to make the decision. The power and the action still rests with the Government.

He then raised the point that it would jeopardise the rights of others to make representations—what I believe is known as expressio unius est exclusio alterius which means that if local authorities are specifically mentioned, then by implication the right would he exclusive, so that others would not have the right. This assumes a scenario of sophisticated legal interpretation by someone confronted with a possible emergency situation. In reality, is the farmer, or whoever, really going to consult a number of law books? Is he not going to get in touch immediately with the local authority or possibly with the Ministry?

Then the point was raised: is the local authority supposed to be able to make application for another area? This would probably be an adjoining area. Local authorities already co-operate within an emergency situation, and they are being encouraged by the Government to do so in other situations, whatever they may be and not just in emergencies. Therefore it seems to me that the arguments raised against the amendment are really, with great respect, quite insubstantial. I do not think they contain one iota of principle; and with respect, the difficulties that have been raised rather scrape the bottom of the barrel. There is not anything of any great moment in them. We believe that these can be easily overcome, and the legal advice that I have had at a very high level finds no problems with this amendment.

At this late stage the Government could still accept it as it stands or redraft it, and then insert it when the Bill goes to another place. I am aware that at this late stage the Government may not want to accept these words though they still seem to me the simplest and the best way of dealing with the situation. By putting in the words. "Without prejudice to any … other enactment" one gets over one of the points that again was raised by the Minister. It would do a tremendous amount to make local authorities feel that they are accepted as partners in a situation where they could be badly needed and their expertise and experience will be seriously called upon. The answer that we have had all the way through—that this is so, that they will be called upon, and that they will be able to exercise their experience and expertise, but that they do not need to be mentioned on the face of the Bill—is, if I may say so, quite wrong and quite unreasonable and will upset local authorities quite unnecessarily. I repeat what I have said before—I cannot believe that the Government are setting out to do this. I beg to move.

8.30 p.m.

Lord Belstead

My Lords, although the effect of the amendment is to enable local authorities to make representations about the making of emergency orders, I notice that the main case which the noble Baroness has been putting forward in the past few minutes is that it is important simply that local authorities should be mentioned on the face of the Bill. I think there is an underlying reason which the noble Baroness and those who were with her and, as the noble Baroness very generously said, came to talk to me, have mentioned. I should first of all like to deal with this reason. It arises from a worry that powers already provided under another Act of Parliament might in some way be diminished by the Bill which is before us. On that issue I can be brief. Powers which exist under one Act are not affected by another, unless another Act specifically amends those powers. The first part of this amendment is therefore unnecessary.

However, your Lordships might say to me that there is surely a contradiction between the new provisions, which we find in Schedule 1 to the Bill, which would enable the Government to prohibit the supply of any food which is thought to be at risk, and the existing powers of local authorities under the Food Act to condemn unfit food. I can give an absolute assurance that the power to condemn unfit food will remain exactly as it is. The difference between the present position and the new position will be that the Bill will simply strengthen the power to protect the public by providing that, in the case of a major emergency, Ministers could impose safety-first restrictions throughout a designated area on the movement and supply of any food which either is contaminated or might have been contaminated. That is something which the local authorities cannot do.

Perhaps I may come to the specific and main purpose of the amendment, which is that local authorities should be able to ask Ministers to make an emergency order. With respect, again, the amendment is needless, since any responsible body or person could ask Ministers to make use of their powers. It might be a site operator, where an emergency has suddenly started; it might be a member of the public who notices that something is amiss. I really cannot emphasise too strongly that Ministers would be bound to hear any reasonable representations—and at very high speed, because we would be dealing with an emergency situation and not some long-winded consultation procedure.

I therefore say that it is needless to add more words to the Bill. Perhaps the noble Baroness will ask me whether it would not do any harm to put these words into the Bill when we are dealing with the absolutely crucial position which local authorities hold—there is nothing between the noble Baroness and me on this—in the affairs of this country, not least when things are amiss in an area and, in this case, when there is an emergency. Before she possibly asks that, I should like to say that it would not make any difference, but we are here to pass a Bill; we are making law; and the law really has to state precisely what it means. An amendment specifying the right of local authorities to make representations would have to define "local authorities" and would have to link the right to make representations to the appropriate area of responsibility of the local authorities. It would have to cover representations not only about the making of an emergency order but also about its operation, amendment and revocation.

An amendment should avoid any implication to the courts that the duty of Ministers to listen to the representations of local authorities lessened their duty to listen to the representations of others. As the noble Baroness has expressly mentioned this point, perhaps I may do so, too. It is a particularly difficult one and I would join the noble Baroness in remembering the latin tag of my noble friend Lord Renton: expressio unius est exclusio alterius, which means simply that if one starts giving a particular expression in the Bill to one interest, then one runs the danger of excluding other interests.

I conclude therefore with what I have said privately to the noble Baroness. What we have here is a short but unnecessary amendment and it would take, if one really wanted it, a very long but still unnecessary amendment. It is for these reasons that I do not agree with the noble Baroness in the case that she has put forward. May I add just one last thing? The noble Baroness—I was grateful to her for saying so—made the point that there had been a meeting between the Government and the local authority representatives about this part of the Bill. I think it was a valuable discussion and we shall ensure that contact is maintained.

I very much hope that what I have tried to say in the past few minutes will allay any uneasiness among local authorities about either their existing powers or their right to ask Ministers to use the powers proposed in Part I of the Bill. But for the reasons I have given, although the noble Baroness makes a persuasive case, I think that it would not be right to include the amendment in the Bill.

Lord Mackie of Benshie

My Lords, I have followed the arguments and I must say that I appreciate the point of the noble Baroness that local authorities play an enormous part—in fact, the major part—in initiating the investigations or the complaints which can arise. Throughout the consideration of the Bill the Minister has stressed that he appreciates the part that local government must play and he has stressed today the inevitability of the Minister listening to any local authority or any other source that comes forward. But we are in this case dealing with a major national emergency and with powers not normally given to a local authority. While I accept the importance of local government in any emergency, I think that the Minister has made his case for rejecting the amendment. I feel that he is probably right in this case.

The Earl of Radnor

My Lords, I should like briefly to say that I cannot really see why the local authorities should, so to speak, he written into the Bill. We must remember, as the noble Lord, Lord Mackie has said, that we are dealing with emergencies—I think that my noble friend said it actually—and we are dealing with speed. If I may quote the words of the noble Baroness, she said—and she did not like it very much—that we are dealing with a narrow and centralised structure. I think that in these emergencies this is just the structure that one wants. One wants a very efficient, narrow structure which will listen to the local authorities. I feel quite certain that in the kind of emergencies about which we are talking information will come very quickly and it will come from the local authorities. I cannot see the point of writing it into the Bill in this way.

Baroness Birk

My Lords, in spite of what both noble Lords have said about this, I still find it unconvincing. The Minister has said that there is a difference of opinion about whether it should be mentioned on the face of the Bill. My noble friends and I as well as the local authority associations consider that it should be so mentioned. Today I received a letter from the ADC saying that it supported this proposal. But it is not just a Labour Party or political move.

When the Minister said that powers in other Acts of Parliament were not to be breached, that is quite true. The Minister may recall that in the amendment I put down at Report stage, I did not include the words "without prejudice". It was almost a belt and braces job to include them in this amendment. If those words do not need to be included, then I shall be quite happy. I inserted those words in order to add strength, in answering the points that have been made against the amendment.

The Minister said that powers would remain exactly where they are. He was as aware as I was that at one of the meetings which he and I attended with councillors and an environmental health officer, they were not at all clear. They genuinely thought that their powers were being diminished and that they were not really included in this Bill.

The Minister said also that the amendment is needless because anybody could get Ministers to listen and they would be bound to hear. That is true, but local authorities are largely in a position that is very different from that of the individual. Local authorities already have powers for dealing with these sanctions in their own areas. All one is trying to do is involve local authorities, knowing that they have a locus in this matter.

As to the point about giving particular expression to one interest, in this case it does not work that way. We are talking about emergency situations. If something happens and a farmer feels that there is some great danger, then he or anyone else will certainly alert the local authority or the Ministry. The Government are being extremely obdurate. The Minister may make out a plausible case, but it is not strong enough to exclude local authorities from being on the face of a Bill in regard to which the Minister himself has agreed they will be expected to play, and will play, a large part. In the circumstances, I should like to test the feeling of the House.

The Earl of Onslow

My Lords, before the noble Baroness does that, I should like to say that I myself have been totally convinced by the Minister's argument. This Bill has been the subject of much to-ing and fro-ing and a lot of cross-party support one way and another. The Minister has listened with great care to arguments from all sides of the House, and we have managed to deal with this Bill with intelligence and with no Divisions. I hope that we can avoid Divisions, because I would venture to suggest to the noble Baroness—for whom I have great admiration—that she will lose a Division. I would equally venture to suggest that a Division will hold up the proceedings in your Lordships' House.

8.44 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 32; Not-Contents, 74.

DIVISION NO. 2
CONTENTS
Ardwick, L.	Irving of Dartford, L.
Barnett, L.	Jeger, B.
Beswick, L.	John-Mackie, L.
Birk, B.	Kilbracken, L.
Bottomley, L.	Llewelyn-Davies of Hastoe, B.
Carmichael of Kelvingrove, L.	Lockwood, B.
Cledwyn of Penrhos, L.	McIntosh of Haringey, L.
Collison, L.	Molloy, L.
David, B.	Nicol, B.
Dean of Beswick, L.	Oram, L.
Denington, B.	Parry, L.
Elwyn-Jones, L.	Phillips, B.
Gallacher, L.	Ponsonby of Shulbrede, L. [Teller.]
Galpern, L.
Graham of Edmonton, L. [Teller.]	Ross of Marnock, L.
	Underhill, L.
Hatch of Lusby, L.	White, B.

NOT-CONTENTS
Ampthill, L.	Margadale, L.
Avon, E.	Marley, L.
Aylestone, L.	Marshall of Leeds, L.
Bauer, L.	Masham of Ilton, B.
Belhaven and Stenton L.	Mersey, V.
Beloff, L.	Monk Bretton, L.
Belstead, L.	Montgomery of Alamein, V.
Boyd-Carpenter, L.	Morris, L.
Brabazon of Tara, L.	Mountevans, L.
Brougham and Vaux, L.	Munster, E.
Bruce-Gardyne, L.	Northbourne, L.
Cameron of Lochbroom, L.	Onslow, E.
Campbell of Alloway, L.	Orkney, E.
Carnegy of Lour, B.	Peel, E.
Cathcart, E.	Peyton of Yeovil, L.
Chelwood, L.	Portland, D.
Coleraine, L.	Radnor, E.
Cork and Orrery, E.	Rankeillour, L.
Cox, B.	Rawlinson of Ewell, L.
Craigmyle, L.	Reay, L.
De La Warr, E.	Renton, L.
Denham, L. [Teller.]	Rochdale, V.
Faithfull, B.	Sandford, L.
Glenarthur, L.	Skelmersdale, L.
Gray of Contin, L.	Stanley of Alderley, L.
Grimstone of Westbury, L.	Swinfen, L.
Hailsham of Saint Marylebone, L.	Swinton, E. [Teller.]
	Teviot, L.
Hampton, L.	Thomas of Swynnerton, L.
Henley, L.	Tranmire, L.
Home of the Hirsel, L.	Trefgarne, L.
Hood, V.	Trenchard, V.
Inglewood, L.	Trumpington, B.
Lane-Fox, B.	Ullswater, V.
Long, V.	Vaux of Harrowden, L.
Lucas of Chilworth, L.	Whitelaw, V.
Lyell, L.	Wynford, L.
Mackie of Benshie, L.

Resolved in the negative, and amendment disagreed to accordingly.

8.52 p.m.

Lord Belstead moved Amendment No. 2: Page 2, line 9, leave out ("the designating authority to whom it so appears") and insert ("that designating authority").

The noble Lord said: My Lords, this is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Lord Stanley of Alderley moved Amendment No. 3:

Page 2, line 29, at end insert— ("( ) Where any person has inurred loss or damage in consequence of the application of an emergency order which is subsequently found to be unnecessary, the designating authority shall pay full compensation for loss or damage.").

The noble Lord said: My Lords, I am not sure how your Lordships would like to deal with the series of amendments concerning compensation, but as I hope this amendment has a simple answer I prefer to move it separately.

This amendment follows the question of the noble Lord, Lord Walston, at Report stage, to which I do not believe my noble friend Lord Belstead gave a clear answer. The position is simple. What happens if an area is scheduled by the Minister as an area that cannot produce or sell foodstuffs because of a disaster and then it turns out that no pollution whatever had occurred? I accept that this may be a rare occurrence, but it is your Lordships' job to make provision for such rare happenings and the provision suggested in this amendment is that the Government, which stopped food production, should be responsible. I am sure that the alleged polluter, who has in this case not polluted, should not be liable. I beg to move.

The Earl of Radnor

My Lords, I wish to speak in support of this amendment, as I put my name to it. My noble friend, Lord Stanley, has a very strong point, and it is one to which, as he says, there has not as yet been given a clear answer. It is one to which, I feel, there is no clear answer to be had, though I should like to think that I am wrong.

If an order for a pollution area turns out to be unnecessary for any reason that one can think of—perhaps the Government or the designating authority have been very careful, as we talked about previously, and have created an area round a truly polluted area and have put it within the designated area but it has subsequently been found to be not actually harmed—that would be one situation. Another would be if the authority concerned merely made a mistake and as quickly as possible rectified it, during which time real loss, as was pointed out on Report by the noble Lord, Lord Walston, could easily have been incurred by the farmer; for example, if he were growing strawberries on a pick-your-own basis.

We have, therefore, two situations which could easily arise, and as far as I can see there are two if not three ways—because one is compensation—in which the farmer can be protected from what we must realise could be very severe financial loss. It is not a matter to be lightly put aside. The remedies would be, first, the law. As my noble friend Lord Stanley said, you cannot chase the polluter if the area is subsequently found to be not polluted: it is a complete contradiction in terms. I therefore suggest to my noble friend that that avenue is blocked and that the farmer who has suffered loss cannot get his money back in that way.

The second way is the path of insurance, about which we also had some debate on Report. My information, as my noble friend knows because we have corresponded about it, is that such a risk as this is totally uninsurable and it is just not possible. I think my noble friend the Minister feels that that is an exaggeration, or is not correct. My informant is sticking to his guns. My noble friend told us that he was having conversations with the insurance world. Conversations will not help the farmer in this predicament, and it would be very useful to know just what is going to happen to the farmer if he is in this awkward position of having had his land designated, has suffered very severe loss, and then it is suddenly found that there was nothing wrong at all.

The third option is that the Government, who have told the farmer to destroy his crops, to stop production, or whatever, should pay proper compensation. As noble Lords will know, this is not entirely without precedent in the farming world. I support the amendment most strongly.

Lord John-Mackie

My Lords, I take it that we are discussing the three amendments in the noble Lord's name.

Noble Lords

No.

Lord John-Mackie

The noble Earl, Lord Radnor, has certainly spoken on the three amendments as far as I can see, and he appears to be nodding his head in agreement.

I very much appreciate what the noble Lord, Lord Stanley, said. There could easily be a situation today, where there is so much publicity about chemicals, and so on, in which an ordinary citizen could get frightened about something quite harmless and report it to the local authority or the Ministry (whichever happens to have the job at the time) which then has to take action that could result in a farmer suffering a delay in his harvest, or something of that nature. It is only reasonable that the authority concerned should pay compensation for that. Therefore, we support this amendment. I shall stick to Amendment No. 3, as we are not supposed to talk about the others.

9 p.m.

Lord Mackie of Benshie

My Lords, I, too, should like to support the amendment. The Minister, with his usual thoroughness and courtesy, has in writing given various reasons for the provision, and he has done so again in this House. As I understand it, the argument against the amendment is that, if a mistake is made, it is possible to sue the Government. If the alleged polluter is not the polluter, he can sue the Government, but suing the Government takes a great deal of money and is extraordinarily difficult. I understand that it requires a minimum of £5,000 before one can start. That is surely most unjust.

I think that there is a suggestion that the farmer could insure. I must say that one of the things that no sensible insurance company would ever take on is an insurance against mistakes made by Government. That is totally uninsurable, I should have thought. The other insurance which we are coming to later, of course, applies to the polluter.

I cannot see that the arguments which we have had presented so far are very compelling. As my noble kinsman said, it is quite possible in a situation such as we have experienced of enormous tragedies occurring through pollution that any Government might quite rightly have to cover up in case pollution was occurring or had occurred. But if it has not occurred, obviously the Government must be liable. I think that it would be sensible for us to get some assurance that there is another recourse apart from going through the civil courts at enormous expense to obtain redress from the Government.

The Earl of Onslow

My Lords, may I ask my noble friend one question on the subject? Let us assume that a man has a raspberry crop, which has to be picked within a very short space of time, as your Lordships are well aware. Let us then assume, for the sake of argument, that there is a perfectly justifiable pollutant scare, the Government make an order, and that pollutant scare then turns out to be unjustified, yet nobody has acted in any way negligently or improperly, but totally for the public good and without negligence or regard to what he was doing. Under those circumstances—and I totally admit that this is only a very small segment of what could happen—I should not have thought that the farmer has even a case against the Government. I think that one has to have a case for negligence, lack of duty, or whatever else it may be. Can my noble friend possibly help me on that point?

Lord Monk Bretton

My Lords, these cases are likely to be rare, I am sure, but they could be serious for an individual farmer or grower. I remain concerned about the position of farmers whose crops are affected by emergency orders and where we find that the remedies which they would normally have do not function properly, as in this case. I should like to say just those few words in support of the amendment.

Lord Belstead

My Lords, of course I understand the concern of my noble friends that innocent people should be protected from financial loss in the event of an emergency order being made. They have the absolute right to raise what is a very important point which, indeed, concerns noble Lords in different parts of the House at this stage of the Bill. They chide me with not giving a clear answer, and so I think that what I must now do is try to give an answer which is absolutely clear.

First of all, let us go to what the amendment says. The purpose of the amendment is that the Government should compensate fully where an emergency order is found to be unnecessary. How do we define "unnecessary"? It is in the nature of emergencies that action must be taken quickly to protect the public against the risk of contaminated food, and measures are likely in the first instance to be precautionary. In such circumstances it would only be responsible to act upon the worst estimate of what could be a very difficult and fast-moving situation, rather than trust the lives and the health of thousands and thousands of people to pure chance. It might afterwards well turn out that Ministers can safely reduce the level of the precautions. Indeed, that is specifically provided for in Clause 1(10), and the precautions can all be lifted after a day or two days. That is one way in which the raspberry crop envisaged by my noble friend Lord Onslow could be saved.

Would all that mean that the initial caution and care had been unnecessary? If that is what is in the minds of my noble friends in moving this amendment, and if these really are the circumstances under which the amendment would compel Ministers to compensate those who have been affected by their action, it would be a permanent legal deterrent to the taking of adequate and vital safety measures, and I suggest that it would not be a necessary provision, either. With respect, the Government do not agree that the polluter would not be liable. As I ventured to argue at Report stage, once the Bill becomes an Act, my advice is definitely that the courts will assume that a polluter knows of the existence of the Act and appreciates that emergency orders may cause loss to people who would not otherwise have suffered, so that the polluter could be held responsible not only for pollution caused but also for the cost of safety measures under an emergency order; and that is a second way in which the raspberry grower envisaged by my noble friend could find just recompense.

I know that in moving this amendment my noble friends are thinking of the case where safety measures are such that they are found to be not merely greater than would have been necessary had there been full prior knowledge of the facts but have clearly been grossly excessive and unreasonable. I have already explained that in such an unlikely case the courts already have power to deal with the matter and Ministers could most certainly be found liable under such circumstances.

May I, in finishing, go back to what is absolutely fundamental in this Bill? We are not trying to do something which is utterly different. All that we are trying to do is to see that, with the co-ordinating power of central Government, everybody pulls together as they always do in an emergency in this country and that precautions and other emergency measures are taken in just the way that they would normally be in an emergency, but with this extra power in Schedule 1 of being able to prevent the movement of crops as they are growing. Secondly, I remind my noble friends that if this amendment were to be made, it would mean once and for all that in the circumstances that they envisage the polluter would simply get off scot-free.

Lord Mackie of Benshie

My Lords, before the noble Lord sits down, may I ask for clarification on his first point? Did I understand him to say that, if an emergency order was made, then automatically the person who is alleged to be polluting would be liable? That appears to me to be very curious and unjust if the emergency order was subsequently found to be unnecessary. However, did the Minister actually say that?

Lord Belstead

My Lords, with the leave of the House, I did not say "automatically". I said that my advice was very clear on this: that the courts will assume that a polluter will have known of the existence of the Act and will appreciate that emergency orders may cause loss to people who would not otherwise have suffered. Therefore, the polluter could be responsible, not only for pollution caused but also for the cost of safety measures under an emergency order.

Lord Mackie of Benshie

My Lords, may I raise a question on that? If it was a mistake, the polluter could not possibly be responsible?

Lord Belstead

My Lords, I do not think I can add to what I have already said.

Lord Stanley of Alderley

My Lords, I am sure we still have not got this matter quite right. I take the point made by the noble Lord, Lord Mackie of Benshie, which differs from that made by my noble friend. For example, supposing that there is a case where there has been no pollution but the Government have taken perfectly correct steps where they thought there was going to be pollution. As I understand my noble friend Lord Belstead, one would not have a case against the Government because their action obviously was necessary in the circumstances. So, as a farmer, I am left on a limb at the end of it. I am sure I am. I cannot go against the Government because their action at that time was legally necessary—or the courts would say so. I agree with the noble Lord, Lord Mackie of Benshie, that I cannot go against the polluter because there has been no pollution. I have not polluted; I have done nothing.

I am really worried about this situation. I am certainly not going to provide the House with an answer because I do not think we have the right answer. As my noble friend has pointed out, my amendment is not right; it is defective in many ways. It says, "necessary" and the Government can always argue that it was necessary. I accept that point. What I am asking my noble friend to do is to take this particular problem away and think about it. I know it is a very real problem.

I would suggest (and this is the sort of comfort that comes to me) that if we do have a disaster such as we have in mind—and I pray to God that we do not—the Government will have to move in anyhow because it will not be only farmers who are in trouble; it will be many other people also. I ask my noble friend to take this away and think about it for consideration in another place. Meanwhile, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

The Earl of Radnor moved Amendment No. 4:

Page 2, line 29, at end insert— ("( ) Where any person has incurred loss or damage in consequence of the application of an emergency order in respect of a release of a substance where the person responsible cannot be traced the designating authority shall pay full compensation for the loss or damage.").

The noble Earl said: My Lords, we have had a good debate on Amendment No. 3 covering matters of insurance, law, and so on and so forth. As your Lordships will know by now, this is a similar kind of amendment, yet it is very different. This is asking for compensation in a situation where there has been pollution but the polluter is unidentifiable. There is no law here. There is no one to pursue in law because he, she or the company cannot be found or identified.

Once more my advice is that insurance would be as awkward, if not as impossible, as it would be for the situation considered in the previous amendment. It might well be levelled at me that this is a fairly unusual amendment and that one has to stretch one's imagination to think of unidentifiable polluters to fit in with this Bill. But, as I think I have probably said before in some form or other, we should legislate for the future and not only for the past or the present. There are little signals that such a pollution could well take place. I think last time I cited acid rain. If acid rain, or something like it, was considered to be a pollution which would force the designating authority to take some action, causing the farmer to destroy his crops or whatever, then it would be virtually impossible to trace anyone responsible for it.

I think, in a different context, that on Report we had a short debate about anti-fouling paint. If anti-fouling paint caused some trouble over which the designating authority felt it had to take action, relative to shellfish farming or cage farming salmon, how would that situation be dealt with if there were thousands of yachts present, all with anti-fouling paint upon their keels?

There was an account of an even more unusual case in the newspapers the other day. It was reported that in parts of the Mediterranean fish have become inedible because of lead poisoning. This arises from the fact that it is a tideless sea (which, fortunately, is not the case in this country) and from the effect of exhaust fumes from thousands of Italian motorcars. It is therefore not beyond the bounds of possibility. It is not likely to happen often; but, nevertheless, it could happen. I do not think that there is any way that the offended person who loses can possibly get his money back except through compensation. It would not cause the Government too much trouble. I believe that it should be included in the Bill for the sake of the future, although I hope that it never happens. I beg to move.

9.15 p.m.

Lord Belstead

My Lords, I understand my noble friend's concern. It is wholly reasonable to ask the Government what one does if one cannot trace the origin of a particular emergency. However, I would say to my noble friend that, in a comparatively small country, as ours is, it is very unlikely. It is conceivable, and therefore this is a serious amendment: but, again, I urge the House not to put the cart before the horse.

This amendment, I envisage, would deter the Government from taking quick or sufficient action in an emergency. At least, it would make them hesitate for quite a long time when time would be of the essence. Surely, the first essential in any emergency is that proper safety precautions should be taken immediately. If those involve costs and the polluter cannot be found, I agree that the polluter's insurance is obviously of no use. I would, however, remind my noble friend Lord Radnor that the insurance of the person affected by the pollution would still be valid.

We have heard some veiled references to pollution in the last ten minutes or so, because we have not come to the third of my noble friend's amendments, which deals with insurance. However, I have to lay it on the line that I do not accept my noble friend's contention on the previous amendment that dangers of this sort are uninsurable. Insurers do insure against the consequences of fire and explosion. Clearly, the sort of situations with which we are dealing in the Bill would be caused by events of that sort. Much depends on the terms of individual policies. But, really, those are for the insurance companies and for their clients in the light of the Bill once it becomes law. Here, again, I would be highly reluctant simply to say that, in a case where the polluter cannot be traced, there is no responsibility at all on anyone to think about precautionary insurance and that the Government would simply foot the whole bill.

Lord Parry

My Lords, may I perhaps be helpful and draw the Minister's attention to the Milford Haven Conservancy Board Act and the provision it contains whereby the designating authority is also the statutory authority having responsibility for clearing up spillages of any obnoxious substances, most likely, in the Milford Haven waterway, to be spillages of oil? Is the noble Lord aware that there already exists within that Act a responsibility for the designating authority, the statutory authority—the Milford Haven Conservancy Board—to act at once in the emergency and to take whatever precautions are necessary? If it is not possible to trace the instigator of the pollution—an individual ship carrying an obnoxious substance can often cause spillage below the water level and cannot be individually identified—responsibility is given to the designating authority, to the statutory body, to pursue all those carrying similar substances on the waterway and to apportion among them the cost of the damages, the recovery and the insurance, thereby relieving the statutory body of the cost.

Lord Belstead

My Lords, with the leave of the House, may I thank the noble Lord, Lord Parry, for giving that example. In all seriousness, it is an interesting and important one. I should like to take away and consider what the noble Lord has said. But the noble Lord will be the first to recognise, I am sure, that the specific responsibilities of the Milford Haven authority working within its own statutory area are not the same as the responsibilities over an enormously wide geographical area that this amendment tries to place upon the Government. I say that as a precautionary note. Nevertheless, I should like to study what the noble Lord has said.

The Earl of Onslow

My Lords, may I challenge my noble friend the Minister on one matter? For the Minister to suggest that the Government led by my right honourable friend would shrink from doing something that was necessary for public safety because of the potential cost involved strikes me as not the best defence produced against an argument by Ministers in this Government.

Secondly, they have never shrunk from providing compensation in the event of an outbreak of foot and mouth. The Government just do not think, nor do the Ministry of Agriculture, "Oh, it is going to cost another 7s. 6d. if we find foot and mouth here". They immediately go in and institute a slaughter policy and the cost never enters into the Government's thinking.

Lord Mackie of Benshie

My Lords, the noble Earl has raised an interesting point. It occurs to me to point out that the noble Lord the Minister perhaps does not have the same belief in the permanence of this Government as does the noble Earl.

Lord Belstead

My Lords, with the leave of the House, I should like to reply to one point which my noble friend has put to me because it is important. It is not just a question of cost; it is also a question of seeing that the responsibility should lie with the polluter, and that if the polluter cannot be found, there should also be a responsibility on people to see that they take proper precautions so far as insurance is concerned.

The difficulty about this amendment is that we have not yet come to the insurance amendment, which is the next one. However, I have to lay it on the line that the one thing on which I absolutely disagree with my noble friend Lord Radnor is that these matters are uninsurable. Every advice that I have had and all our contacts with the British Insurance Association—although I point out that, of course, there have been no undertakings from that association—indicate that what my noble friend is asserting in that particular regard is not the case.

The Earl of Radnor

My Lords, I have no intention of pressing the amendment. Quite obviously I want to have another word on the contentious point that lies between myself and my noble friend. I was very interested to hear Lord Parry's arguments in favour of making other people pay for trouble. But in truth it must be easier in a restricted area such as the noble Lord described. I do not think that there is any point in saying any more at this stage. Perhaps it would be better to move straight on to the next amendment. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Radnor moved Amendment No. 5:

Page 2, line 31, at end insert— ("( ) The Ministers shall ensure the availability of appropriate facilities for insurance against losses which may be incurred in consequence of the application of emergency prohibitions under this section.").

The noble Earl said: My Lords, the point raised by this amendment is the point that lies between myself and my noble friend Lord Belstead. My noble friend believes that the person, the farmer, or whomsoever, can insure against all these risks. He has had conversations with the insurance associations and so on and I have had no doubt briefer conversations with an individual who is very immersed in the insurance business. I cited an example which could easily arise on land on my farm or on my fish farm. My noble friend said, "No, these sort of risks are virtually uninsurable". He would not even go on to say that not only are they uninsurable, but if they were insurable, they would be far too expensive for the farmer to indulge in.

I do not know how we can get round this point. I should like to refer to the remarks of my noble friend the Minister about explosions and fires. He described the situation like this. The insurance world really does not mind insuring against those things because they can fix a rate. What they do not like is insuring against the Government telling you to do something because something else has happened, which seems to be the situation that is going to arise in the cases which we have been discussing.

So it seemed to me entirely fair and reasonable, if the noble Lord says that these things are insurable—and some of us, at least, believe that they are not insurable—to ask the Government to ensure that they are insurable, though by quite what means I am not sure. I rather feel that they might have to run their own little insurance business and I hope that the premiums will not be as great as I suspect they would be if one went into the market and tried to look for such insurance, if it were obtainable.

This is an important matter. It hinges entirely on a point which is the difference between us; there is no doubt about that. I think there is no sensible way of insuring against these risks, and my noble friend thinks there is. I beg to move.

The Earl of Onslow

My Lords, I might actually fall out with my noble friend Lord Radnor on this. I should like to quote to your Lordships two reasons why that is the case. First, the wording of the amendment really is extraordinary vague, and I think any lawyer would have a fit if he saw it in a statute. Secondly, it is possible to insure against loss of profits, for instance, in the case of foot and mouth. You get compensation, as your Lordships are aware, in the event of a slaughter being instituted; but you can then insure in the open market for loss of profit as opposed to loss of carcase value. You can do that with any reasonable insurance company.

A friend of mine had his fish farm ruthlessly polluted by some local council workers over-filling a swimming pool with chlorine; it destroyed his fish farm. He eventually received compensation, but admittedly very late, because the insurance company protracted the matter and delayed, and he nearly went bust in the process. I think this particular amendment is not suitable. I am pretty certain that, if the insurance market were asked, it could find proper insurance. Certainly I have insured my fish in a special way. It is a question of going to the market and asking for it. I believe the market would be able to find some form of insurance to cover this.

The Earl of Radnor

My Lords, surely my noble friend has not insured his fish against the circumstances we are talking about now, because they have not occurred yet.

Lord John-Mackie

My Lords, I would agree with the noble Earl, Lord Onslow, that this is not a particularly good amendment, but I think the noble Earl, Lord Radnor, has a point. The cost of insurance makes it almost uninsurable. I do not know what rates he was quoted, or what the circumstances were, but he has a point there. There is a precedent for insisting on insurance; that is, the motor-car. You must cover your motor-car with third party insurance so there is a case there. I wanted to make those two points. Probably the amendment is not suitable for this Bill, and I think we are going to hear that in a few minutes from the noble Lord the Minister.

Lord Mackie of Benshie

My Lords, I do not particularly want to support the amendment, but I should like to ask the Minister to think again about this. Perhaps this might be an appropriate time to discuss the wider question of insurance as well, unless the Minister would like me to put it off until we discuss the Question, Whether the clause shall stand part of the Bill. I would simply say that the whole thing needs looking at. It is all very well to say that you can insure against loss of profits, but it is extremely expensive and extremely complicated, as a lot of us know from personal experience. If it is not a straightforward case, the insurance companies take a tremendous time to look into it. There are enough expenses in farming without piling on a whole lot of extra ones.

On the wider point of the polluter being able to pay, the noble Lord was kind enough to point out in a letter, again with his usual thoroughness, that it was very easy to identify nuclear establishments but very difficult to identify any establishment which may cause pollution. I think this is possibly true. On the other hand, the Government force everyone who drives a lethal vehicle, such as a motorbicycle or a car, to insure against third party damage, and I see no reason why this should not be brought in to ensure that polluters can pay. Wherever they are, however small they may be, anyone who is at risk of causing pollution could be made to insure. In that case you create a market within which the industry can work. The insurance should not be placed on the farming industry; the cost of insurance should be placed on the polluter, or possible polluter. I ask the noble Lord the Minister to look seriously at this again. It appears to me to be a flaw in the otherwise excellent way in which he and the Government have handled this particular Bill in this House.

9.30 p.m.

Lord Belstead

My Lords, I know that your Lordships have given me something of a hard time on the last two amendments. The arguments have been penetrating, though I like to think that the Government's replies have been convincing. As both the noble Lord, Lord John-Mackie and the noble Lord, Lord Mackie of Benshie, have indicated, I do not think that this amendment is going to deal with a situation which, before I go any further, may I say we shall continue to look at carefully, as has been the case while this Bill has been going through the House. All your Lordships have been at pains to see that this will be a good Bill when it leaves the House. Therefore, as the Bill goes to another place—as I hope it will at the end of today—I owe it to your Lordships to say that this important point will continue to be looked at from the point of view of the Government.

This amendment has the implication that Ministers would be financially liable if someone were found not to have been properly insured. That would mean that the Government would have to make certain that everybody in Britain who might possibly at some time be responsible for emitting harmful substances, or might conceivably be affected by such a release, had taken out the necessary insurance policies beforehand. That would be impracticable. It would be unlike the insurance of a motor car where one can simply say that someone either has or has not a car. This would be a question of a judgment as to whether there might be an emission of harmful substances or whether somebody might, or might not, be affected.

This brings us back to the need for responsibility on the part of both those who might pollute and those who might be affected. It will mean that when the Bill is law it will be necessary for potential clients to discuss seriously with insurance companies what are the chances for insurance under the Bill. It is to that end that we have been conducting negotiations and discussions with the British Insurance Association, and we shall be continuing to talk to the insurers to try to see that the best possible prospects under the Bill are available for people who need insurance. We can do no more than that. At the end of the day it has to be a matter for the insurers and the insured. One thing I am certain of, with respect to my noble friend: I do not think that this amendment is the way to solve the problem.

Lord Parry

My Lords, before the Minister sits down may I ask one question? Has not there been from the discussions so far on all the clauses an admission of the discipline that would be involved in the compulsion to insure by a likely polluter? Would not someone having to bear a heavy premium in respect of insurance make certain that his undertaking was much more carefully run than he might otherwise do?

Lord Belstead

My Lords, that may well be. I think that that underpins the case I have been endeavouring to make.

The Earl of Radnor

Perhaps my noble friend and the noble Lord, Lord John-Mackie, are right in that this is not the most perfect of all amendments. In all probability I shall withdraw it at the end of the day. Before I do so I must again emphasise that somewhere down the line, or at the end of the day, the person who has been polluted and who has to destroy his crops, his animals, or what have you, is going to pick up a possibly monumentally large bill which possibly he cannot pay, and that will lead to his financial ruin.

Therefore I hope that my noble friend will see that in another place this matter is pursued so that a more satisfactory answer is found than has so far come out of this interesting debate, which has still left, for me at least and I think for other noble Lords, a somewhat grey, and expensively grey, area at the end of the day.

My noble friend Lord Onslow cited the fact that we could insure against foot and mouth, but if my memory serves me aright—I have had it on my boundaries but fortunately never on my farm—I would have been paid compensation and would have insured against the gap before I could return to animal production again. This was the precedent I had in mind when I spoke to a previous amendment. My noble friend I am sure will see that this matter is not dropped. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Licences]:

Lord Belstead moved Amendment No. 6:

Page 10, line 17, leave out from ("licence") to ("towards") in line 20 and insert (", on making his application, to pay a reasonable fee in respect of the administrative expenses of processing his application. (6A) A licensing authority may also require an applicant for a licence to pay a further reasonable fee").

The noble Lord said: My Lords, I shall speak to Amendments Nos. 6 and 7 together.

Amendment No. 7: Page 10, line 31, at end insert— ("(7A) Fees under this section shall be determined on principles settled by the Ministers with the consent of the Treasury and after consultation with organisations appearing to the Ministers to represent persons who are likely to apply for licences.").

This amendment is a response to a concern voiced to my noble friend Lord Nugent of Guildford on behalf of the water authorities about the lack of provision for consultation about fees under Part II. My noble friend is unable to be here, having done a long stint in the chair during the Committee stage earlier today.

This amendment will require the Government to consult organisations representing those who apply for licences about the principles on which fees will be set. It is necessary for consultation to be undertaken on a broad general level since it would be impractical to consult on each and every individual fee, as the fees for individual licences will vary according to many factors bearing on each case. I beg to move.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 7:

[Printed above]:

On Question, amendment agreed to.

Clause 13 [Duty of licensing authority to keep register of licences]:

Lord Belstead moved Amendment No. 8:

Page 13, line 39, leave out from ("containing") to ("and") in line 40 and insert—

1. ("(a) in respect of each licence issued by the authority for an operation such as is mentioned in section 55(a), (b), (c) or (e) or section 6 above, the particulars specified in Part I of Schedule 4 to this Act; and
2. (b) in respect of each licence so issued for an operation such as is mentioned in section 5(d) or (f) above, the particulars specified in Part II of that Schedule,").

The noble Lord said: My Lords, I should like to take Amendment No. 9 and Amendment No. 33 together with this.

Amendment No. 9: Page 13,line 41, leave out ("particulars") and insert ("entry").

Amendment No. 33: Leave out Schedule 4 and insert—