§ 3.4 p.m.
§ Report received.
§ Clause 1 [Power to make emergency orders]:
§ Baroness Birk moved Amendment No.1:
Page 1, leave out line 8 and insert—
(" 1.—(1) If a designating authority, of its own volition or on the application of a local authority, is of the opinion that—").
The noble Baroness said: My Lords, in moving Amendment No. 1 perhaps it will be for the convenience of the House if I go briefly into its history. I moved an amendment on the first day of the Committee stage on 6th December 1984 to insert:
after such consultation as may be practicable with the local authority for the area".
with regard to the process being brought into being. The Minister was not happy with the amendment mainly, as he put it, because of the possible delay that might result and because it would be detrimental to the country if an emergency occurred. But in his reply at column 1459 he said:
It goes without saying that local authorities are, in practice, certain to be consulted and actively involved in these matters, if, which we trust will never happen, Part I is brought into effect".
Later, at column 1460, he said:
Local authorities would still be involved in matters unless there were simply not enough time".
§ At the end of the exchange I requested the Minister to have a meeting with local authorities and other interested bodies. He wrote to me during the Recess to say that the meeting would take place on 25th January, as that was the first date which suited all concerned. He also kindly offered to have a talk with me before the Report stage, and that took place last Thursday.
§ I should like to put on record how grateful I am to him for that opportunity. I think that it was a most productive meeting, as he was very generous with his time. Also present were one Conservative and one Labour councillor from the Association of Metropolitan Authorities committee and an environmental health officer. What emerged was, first, that certainly in the local authority world there was considerable confusion and disquiet. Secondly, they were concerned that powers which they already had were being taken away from them. Thirdly, there was a fear of duplication which would consequently result in delay, which was the very point about which the Minister was rightly concerned. The fourth concern was that there was no definition of "emergency".
§ The considerable confusion and disquiet were cleared up in the discussion, but they have not yet been cleared up in the Bill. The Minister made it clear that 113 the powers which the authorities already have were not being taken away; they were contained in previous legislation and were not stated in the Bill because that was not the practice when there was previous legislation. However, as we are now increasingly finding with legislation, more and more we have to wade through tomes of previous statutes to find out what are the rights, powers and duties.
§ So far as the fear of duplication and delay was concerned, it was crystal clear that some amendment was necessary. It is necessary to have something in regard to that in the Bill. I think that the Minister will agree with me that that concern was strongly and clearly expressed by the people present who are actual practitioners in the field.
§ So far as the definition of "emergency" is concerned, I cannot find any definition of it in other legislation. I am told that everybody knows an emergency when one occurs. I presume that we should smell, hear, feel or see the emergency, and that, of course, is the new element in this piece of legislation. It is still not clear enough in the Bill how the process would be triggered without befogging local authorities. It is essential to state in primary legislation the local authority role, so that the authorities are quite sure of their position.
§ The possibility which has been mooted, of a circular dealing with the administrative procedures, is certainly not enough in this case. The original amendment, which dealt with consultation, I now agree—and this was one of the useful parts of this meeting—was not right for this purpose. I believe—and I hope the Minister agrees—that the new amendment is far better than the old. The new amendment means that the local authorities will still be there as the most likely bodies to receive the first indication. As was pointed out to us by both the councillors and the environmental health officer, when there is anything wrong people telephone and immediately get in touch with their local authority because it is their nearest point of access and they often know who is there and to whom they should apply. The local authorities have a function of emergency planning and they have a DHSS hazardous warning system on what is known as the "Christmas tree principle"; that is, that one authority warns two, two then warn four, four then warn eight and so on.
§ This new amendment does not require consultation, and it allows the designating authority to act "of its own volition". But it also makes provision for the local authority to make application. In other words, it is a fail-safe procedure. With great respect, I would have thought that it is an improvement on the way it is worded in the Bill at the moment.
§ To sum up, the amendment recognises the paramount position of the Government in making emergency orders in circumstances of the kind envisaged in the Bill. Nevertheless, it writes local authorities into the primary legislation instead of leaving their role to administrative arrangements only, which really is unsatisfactory from every point of view. This would in turn recognise the traditional role of local authorities, particularly with regard to contaminated food and their fitness to exercise the 114 enhanced powers to be created. Although there will be cases where it is obvious that the Bill's provisions need activating, delay could arise in less obvious cases while it was being decided who would act; that is to say, local or central government. Giving local authorities, who are often the first to find out about such situations, a direct role would help greatly with this problem.
§ I am aware, and I know from my own experience as a Minister for the Department of the Environment, that once a Bill is before either House of Parliament and has been carefully drafted by parliamentary draftsmen there is a very curious sense of reluctance which seems to run in relation to all legislation, and it seems to be very difficult to get them to be prepared to change one word. However, I think in this case the amendment proposed is a very simple one. It makes it all much clearer. It also does the job of pleasing those concerned. I think it will commend itself to the local authorities, who will then know that their role is set out in the Bill. The Minister and the Ministries will not be faced with disgruntled, unsure local authorities—a situation which cannot do any good either to local government or, indeed, to central government, and could result in the very confusion and delay that the Minister and all of us are very anxious to avoid. I beg to move.
§ 3.15 p.m.
§ The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead)
My Lords, I am grateful to the noble Baroness for the generous way in which she recorded the discussions which she and I, together with representatives of the AMA, had between the last stage of the Bill and today. The view that I expressed to the noble Baroness on that occasion is that this kind of amendment is unnecessary because there is no doubt at all that a local authority could most certainly ask the Government to make an emergency order if that local authority believed that there was a need for it. But I should emphasise that Part I of this Bill is intended to deal with major emergencies, including emergencies at sea, where the help and the co-ordinating power of central government would be needed in addition to the authority and skills of local authorities and the police. This Bill is in no way intended as a substitute for the work done by local authorities, nor does it in any way detract from the legal powers that they already possess. Indeed, I should place on record that central government are more than grateful that in the vast majority of cases local authorities sort out problems in their own areas.
The basis of the noble Baroness's remarks this afternoon, I think, was that Part I creates some uncertainty for local authorities. However, as the noble Baroness has pointed out, discussion will take place on the 25th between local authority organisations and other organisations with an interest in the Bill and the Ministry of Agriculture. I am sorry it was not possible to arrange that discussion before today's debate, but it is taking place on the earliest date at which all the interested organisations could be brought together.
The noble Baroness said that she discerns a reluctance, which she thinks, from her own experience in government, is always there, to change one word of 115 legislation after a Bill has been introduced. I hope that in the next few hours, when we go through the amendments to which we shall come, I can prove that the noble Baroness is not right in that. But having said that, I should very much hope that at the meeting at the end of this week the position of the local authorities under Part I will be thoroughly discussed and, if there is any necessity for clarification, clarified as well. Perhaps we ought to await the outcome of those discussions.
I give an undertaking to the noble Baroness that I shall consider most carefully what is said by the local authority organisations on that occasion. While I must say my present view is that this amendment is not necessary, I will most certainly say to the noble Baroness that the Government will think again about it before Third Reading in the light of the discussions which will be taking place at the end of this week.
§ Baroness Birk
My Lords, I thank the Minister for his reply. I cannot say that it was very satisfactory from my point of view, but he did explain it again. What worries me is that it does not really help to have placed on record in Hansard their gratitude to local authorities or whatever is said about them. Hansard is not the legislation; nor can Hansard be referred to in the courts if any such occasion arose. It still does not deal with the main question that there does not seem to me to be any good reason why, if, as I accept, what the Minister says is correct, it should not be in the Bill.
The way this matter is drafted in this amendment does not take away the initiative from the Government in any way at all. I am sure the Minister must agree with me that what we heard last week indicated certainly the confusion, misunderstanding and disquiet among the people who would be having to operate this, or who would certainly be connected with it. Having this in the Bill certainly does not take away any action which the Government could undertake, because the first sentence says, "of its own volition"—and that is even put first, before "the application of a local authority".
However. I should put it to the Minister that something could arise from very small beginnings which the Government, the department, may not know about—that is to say, the designating authority—unless they were alerted by local authorities at a very early stage. It is these circumstances to which I am referring. I agree it may not happen, or that it may happen very rarely, but nevertheless there is that possibility.
What I am concerned about, frankly, is that when this meeting takes place on Friday it will be dealing just with the administrative arrangements, as to whether there should be a circular, or what regulations there may be. But there will not be on the face of the Bill anything of the kind that we are discussing now in this amendment. We on these Benches really believe it is extremely important that it should be there. Maybe I did go rather too far about the drafting because obviously amendments are carried sometimes and often accepted by Ministers—so I retract those comments. But if there is a way of not doing it, the Minister very often does not do it. The fact that so much is in previous legislation seems to make it even 116 more important that it should be quite clear in the Bill what is being done.
I am not suggesting that we are restating anything that is in previous legislation, because this is entirely new legislation. All I can do at this stage is ask the Minister whether he will ensure that the question of something being on the face of the Bill is discussed with local authorities and other bodies at the meeting on Friday, and not just the question of administrative detail.
As I knew that the meeting was going to take place after we had dealt with the Report stage of this Bill, I did not intend to press the amendment today and I assured the Minister that I would not be doing so. But I hope that he will come back and accept this amendment or something similar before Third Reading, otherwise we shall have to cover much the same point again on Third Reading.
§ Lord Belstead
My Lords, I must respond to the question which the noble Baroness has just put to me concerning the ability of those who attend the meeting at the end of this week to discuss the particular issue of putting something in the Bill. The official from the Ministry of Agriculture who will be chairing that meeting gave an undertaking to the noble Baroness—and I endorsed it—that the meeting will be reasonably flexible. That means that we shall be interested to hear what the local authorities have to say.
I ought just to make the point that now that the Bill is in your Lordships' House, it is a matter for my right honourable friend—and I on his behalf, in speaking in your Lordships' House—to say finally what it is that we feel we can and cannot do. Therefore, the meeting can only take on board what the local authorities are saying. The assurance that I should like to give to the noble Baroness is that I shall make it my business on behalf of my right honourable friend to find out how the discussion next Friday goes. I shall certainly communicate with the noble Baroness before the final stage of the Bill.
§ Baroness Birk
My Lords, I thank the Minister. I express the hope that this main point of principle, apart from the adminstrative details, will be looked at again. I hope that he will discuss that point once more with his right honourable friend, because I should not like this situation to be left as it is at present. The reason why I am not pressing this amendment further today is to give this matter another chance in the discussions which are to take place before Third Reading. I beg leave to withdraw the amendment.
§ Amendment, by leave withdrawn.
Lord Belstead moved Amendment No. 2:
Page 2, line 1, after ("is") insert ("or may be in the future").
§ The noble Lord said: My Lords, with Amendment No. 2 I would ask the House to take Amendment No.3:
§ Amendment No. 3: Page 2, line 5, after ("is") insert ("or may be in the future").'
§ These are drafting amendments. I beg to move.
§ On Question, amendment agreed to.117
§ Lord Belstead moved Amendment No. 3:
§ [Printed above.]
§ On Question, amendment agreed to.
§ Lord Belstead moved Amendment No. 4:
Page 2, line 21, at end insert—
("(2A) Food derived from any creature is to be treated for the purposes of this Act as also derived—
§ The noble Lord said: My Lords, I would ask that we might take with Amendment No. 4, Amendments Nos. 7, 8, 9, 10, 11, 12, 13, 58, 59, 61, 62, 63 and 64:
§ Amendment No. 7: Clause 4, page 5, line 17, leave out ("food") to end of line 18.
§ Amendment No. 8: Page 5, line 23, leave out from ("be") to end of line 24.
§ Amendment No. 9: Page 5, line 25, leave out ("or consumption by any creature").
Amendment No. 10: Page 5, line 26, at end insert ("or
(c) if he has reasonable grounds to suspect that there is present on or in it anything from which food could be derived—
§ Amendment No. 11: Page 6, line 8, leave out ("or feeding stuff").
§ Amendment No. 12: Page 6, line 9, leave out ("or feeding stuffs").
§ Amendment No. 13: Page 6, line 14, leave out (", feeding stuff").
§ Amendment No. 58: Schedule 1, page 25, line 13, leave out ("feeding stuffs") and insert ("anything from which food could be derived").
§ Amendment No. 59: Page 25, line 16, leave out ("or feeding stuffs").
§ Amendment No. 61: Page 25, line 28, leave out ("feeding stuffs") and insert ("anything from which food could be derived").
§ Amendment No. 62: Page 25, line 35, leave out ("or feeding stuff").
§ Amendment No. 63: Page 25, line 36, leave out ("or feeding stuffs").
§ Amendment No. 64: Page 26, line 10, leave out ("feeding stuff") and insert ("anything from which food could be derived").
§ Despite the length and number of these amendments, they would do no more than remove a drafting anomaly in the Bill. As currently drafted, the Bill refers in some places to anything from which food may be derived, and in other places it also refers to feeding stuffs. These amendments would make these references consistent and would make it clear that the expression "anything from which food could be derived" would include, for the purposes of the Bill, feeding stuffs. I beg to move.
§ On Question, amendment agreed to.
§ Lord Stanley of Alderley moved Amendment No. 5:
Page 2, line 30, at end insert—
(" ( ) Where any person has incurred loss or damage in consequence of the application of emergency prohibitions to food that is not, or does not become, unsuitable for human consumption, or to anything that would not have caused food to become unsuitable for human consumption, as a consequence of the release of the substances to which an emergency order relates, the designating authority shall be liable for the loss or damage.").
§ The noble Lord said: My Lords, I moved an amendment similar to this in Committee. There is one 118 small difference in that the amendment now makes it clear or clearer that it is food that is made unsuitable as a consequence of a disaster. My noble friend Lord Belstead offered at Committee stage to look again at the problem of the farmer who has restrictions placed on his operations because of an emergency order, and then those restrictions were later found to be unnecessary because his food or produce was not contaminated. In these circumstances, I thought—and many of our Lordships thought—that the farmer should be compensated.
§ My noble friend Lord Belstead sent me and I believe other noble Lords a detailed reply as to why the Government feel that compensation would not be appropriate. I shall leave him to explain why later. Before I pick two holes in the Government's approach, I should like to tell my noble friend how much I appreciated the trouble and care which he and his department have taken to shed light on this problem.
§ I now turn to the two problems that I wish to raise with my noble friend. First, the Government maintain that if the Minister put too large an area under restriction it would be possible to take redress in the courts against the Minister. Maybe the word "possible" is correct but in practice I suggest that such an action would be impossible. Secondly, my noble friend suggested that it would be the farmer's duty and job to insure privately against such a disaster. In his letter, my noble friend states that the Government have been discussing the practicalities of such insurance with the trade. I have been doing so, too, and so has my noble friend Lord Radnor. I have to say that I am experiencing considerable difficulty in getting an answer to this problem. If my noble friend can provide me with an answer to those two points, it might make me a happier person. I beg to move.
§ The Earl of Radnor
My Lords, I should like strongly to support this amendment in the same way that I supported the equivalent amendment in Committee. I shall start by saying that Part I of the Bill is to do with major disasters, and so we are really dealing with the kind of disaster that spreads over a large area and which could be of very serious importance to any farmer who is asked to destroy his foodstuffs, and so on.
My noble friend Lord Stanley has outlined the two real worries which both he and I have pressed to some extent. The first is the possibility of pursuing the Government themselves through the courts through their having been perhaps over-cautious—although it is rather unfair to say that—or through their having made a mistake. The polluter himself presumably would say, "That I have not polluted that particular crop or that particular foodstuff is quite evident". The second point concerns the question of insurance, which I have been into fairly thoroughly.
§ 3.30 p.m.
§ On the first point, the time involved and the money that might be involved for the farmer can easily lead to a financial failure. All of us know the time it takes for a case to go through the courts. This will be a difficult case whatever happens, because it will be new. I did my own consultation about insurance. I put to the insurers a hypothetical case that might arise from the 119 Bill. The result was that they could not give me any lurid tale of frightful premiums or anything of that sort because, having consulted the insurance world, they considered that the risk would be uninsurable. I am a fish farmer. They were happy to insure my fish against death, but they did not want to insure against the Government telling me to kill them. They would find that unacceptable.
§ In these kinds of cases it is only fair—I hope that my noble friend the Minister will see it as fair—that the offended party, the person who has to destroy what would be part of his livelihood for the year, though not all of it, should be compensated by the Government who have told him to destroy the foodstuffs. I hope sincerely that my noble friend will take notice of this and that he will be able to take action along the lines proposed in the amendment.
§ Lord Walston
My Lords, I hope that the Government will accept the amendment. It seems to me an eminently just one. I do not think that it is unreasonable to take an example which admittedly is not likely to arise very frequently. There might be a grower of strawberries, some readily perishable crop, who is close to a factory where there has been a suspected emission or leakage of some toxic chemical. It would be absolutely right for the Ministry of Agriculture, at that stage, to prohibit for a few days the picking of any more strawberries because they might be contaminated.
On further investigation it might be found that there was no emission or that, if there was, it was not an emission that came close to the crop in question. The grower, however, would have lost three days peak picking of a very valuable crop. It would not have been the fault of the chemical company which has been exonerated. It would not have been the fault of the Ministry of Agriculture or its officials who had acted in a prudent manner. However, it does not seem to me just that the grower should suffer what could be a very considerable loss owing to circumstances over which he had no control whatever.
I admit that such a situation is not likely to arise very often. I might have taken a rather extreme case, but it could happen. The fact that it is likely to happen only very rarely indeed goes a long way towards restricting any financial responsibility which the Government might have. I hope, therefore that the Minister will be prepared to accept the amendment.
§ Lord Stodart of Leaston
My Lords, this is an amendment on which I feel sympathy for both my noble friend Lord Stanley and my noble friend the Minister. I may be wrong, but I suspect that my noble friend the Minister will find considerable difficulty, no matter how great his powers of persuasion, in getting the Treasury to accept an undertaking of this kind. If I am wrong, and if my noble friend has secured the agreement of the Treasury and intends to accept the amendment, I say at once that he is a much cleverer and more persuasive Minister of State than I was. I had a case not unlike the one now being discussed.
The noble Lord, Lord Walston, has referred to what he has admitted is a hypothetical case. A case is actually going on in Scotland—I saw it reported in the 120 columns of the Daily Telegraph this morning—which is immensely relevant to the amendment and to the clause. It concerns a very large chemical firm in the centre of Scotland. A neighbouring farmer has admitted that at the moment he would not give the milk from his dairy cows to his cats. He believes—in fact, I think he more than believes—that it contains, to a great extent, dioxone. Almost certainly, once this Bill becomes law, this would immediately become a case for Clause 1 and for an order to be served. Presumably, my noble friend, or the Secretary of State for Scotland, would send an inspector who would inspect the milk and slap on an order; and rightly so.
It is strange to say, but, at the moment, there seems to be no power for anyone to refuse to take the milk. The local authority wants it stopped, but the Milk Marketing Board says that it has no power and is bound to take the milk in its present condition. Undoubtedly, if such an order was served and the milk was found to be polluted, the farmer would have a case against the chemical firm. Indeed, the newspapers report that he has already started an action in the Court of Session—this gives an indication of the magnitude of the sums involved—for damages of £2 million. How that sum has been arrived at I do not know, but it gives an indication of the sums that could be at risk in a matter of this kind.
I wish to ask my noble friend the Minister a question arising from the remarks of my noble friend Lord Stanley. Let us suppose that the Minister's officers decided, in view of what had been discovered on this farm, that he had better play pretty safe and slap on an order, and that as smoke had been belching out of the chimney—I think that it has now voluntarily stopped—he had better serve it a little further afield, casting his net over a distance of, say, two or three miles. What is the situation if, after a fortnight or three weeks, the milk three miles out is found to have been perfectly all right the whole time? In this respect I have sympathy with my noble friend Lord Stanley. Under the conditions of the legislation which we are considering there is no redress. Yet a considerable amount of milk, under powers that are going to be taken, would have been poured, presumably, down the drain or into a hole in the ground.
I should also like to say a few words about insurance. I agree profoundly with what both my noble friends have said. Again, this is based on my experience 12 years ago, at the Ministry of Agriculture. I was given to understand, indeed, I was assured, that in a case of paratyphoid in a herd of cows, insurance could have been perfectly possible. The matter lay entirely at the door of the owner of the cows. The Milk Marketing Board refused to take the milk because its staff refused to handle it for fear of getting the disease, and so every day the farmer was pouring thousands of gallons into the ground.
When I was told—again having been asked that the Government should intervene and pay compensation—that insurance had been available, I thought I was on an excellent wicket. But then, alas, 48 hours later, after going into it slightly more carefully, I was told that no insurance was in fact possible. Therefore, with all respect to my noble friend on the Front Bench, I hope that he really is on a pretty cast-iron wicket when he assures us that insurance is possible against the kind 121 of case that I have described. I am extremely doubtful that it is. If it is, then it puts a different complexion on the whole affair.
§ The Earl of Onslow
My Lords, there are one or two points which deserve further airing on this particular amendment. First, if the polluter cannot be traced, it is impossible to sue him. The point made by the noble Lord, Lord Walston, seems to be excellently valid, because there is then nobody to sue. Let us take the example of a chemical or pesticide fall-out across the border from Southern Ireland to Northern Ireland. If Mr. O'Higgins from one side of the border pollutes Mr. O'Higgins's crops on the other side of the border and a British order is made to stop, or for destruction of his crops, then I think it is going to be difficult to sue the man on the other side of the border. I am using this as a starting point. It is even perhaps possible that one could have trans-Channel pollution. I am not myself totally convinced of that, but I think that it is possible. Perhaps my noble friend could apply his mind to that and give us an answer.
§ Lord Gallacher
My Lords, I have considerable sympathy with the amendment tabled by the noble Lord, Lord Stanley, but I feel that in our consideration of it we need to go rather wider than the position of the grower, because if this kind of situation does arise there will be more at stake than our crops, which are within the control of the farmer. For example, the process of food manufacture and distribution is a fairly lengthy one, and if particular crops are thought to be contaminated then of course there will be consequential loss arising in respect of stocks held for processing or already processed by food manufacturers and stocks which are somewhere in the distribution chain.
This emphasises, first of all, the importance of dealing with the matter at this stage; and it also, I think, adds significantly to the problem of insurance against a contingency of this sort. It is not a problem which does not exist. Some of us have experienced, not in respect of home-grown food but certainly in respect of imported canned food, instances where the Ministry—not, I am happy to say, the Ministry of Agriculture, but the Department of Health and Social Security—having decided that there is something wrong with, say, a particular cannery in a certain country, brings together canned food importers, and after talking round the subject announces that at six o'clock, or whenever, it proposes issuing a warning to the public that canned goods from a particular cannery may be suspect because of a defect in the canning process, leaving the onus as to what to do on the food importers and on others who have the control of stocks in the distribution chain.
Sometimes the position of food importers, if they have not provided in commercial contracts for this kind of situation, is weakened by the unwillingness of the Ministry to quarrel with the food and drug administration of another country; and in consequence losses amounting to millions of pounds can very quickly pile up against food importers, distributors and retailers in a situation which is not of their making. I think really that the Ministry ought to 122 give a serious answer to this question. If insurance is thought to be the answer, then it ought to give some indication that insurance is both practicable and within the scope of those people who are likely to be affected.
§ 3.45 p.m.
§ Lord Belstead
My Lords, important points have been made by your Lordships, and each one requires an answer. If I may, I will as briefly as possible attempt to answer them. If I may intervene now, the first thing I want to say is that I understand and sympathise with both my noble friends Lord Stanley and Lord Radnor in the sense of fair play that lies behind both this amendment and, indeed, their next one on the Marshalled List. That is why I undertook at Committee stage to look very carefully at the arguments which your Lordships put forward in Committee. But I hope that the reasons which prompted the Government to be unwilling to accept amendments on this subject at the previous stage will become more evident if, just for a moment, we consider what I believe to be the three underlying purposes of these two amendments.
The first is the purpose which the noble Lord, Lord Walston, put forward in his speech: namely, that the Government ought to compensate for stuffs which are not, or do not become, unsuitable for consumption but which have in fact been affected by an emergency order and the measures taken under it. The noble Lord gave us the example of the strawberry grower who is told that he cannot pick his strawberries for a time because there is an emergency on, and the crop is lost. At Committee stage, on behalf of the Government, I argued that loss resulting from an emergency was the responsibility of the polluter; and I think, if I may say so, that that is a principle which the whole House would wish to see not in dispute, although of course we are at the moment trying to meet the various difficulties which flow from that. However, the noble Lord is clearly concerned that the polluter could not be, or might not be, held responsible for financial loss involving food which, in the event, was found to be suitable for human consumption.
§ Lord Walston
My Lords, if the Minister will give way for a moment, I should like to make a point. I agree entirely that the polluter should be responsible. The example I gave—the hypothetical example—was where in fact there was found to be no polluter; there was no pollution. The authorities had reasonable grounds for thinking that there might have been pollution, but in this case there was none.
§ Lord Belstead
My Lords, if I may go on for just a moment, I think I can answer the noble Lord. This point, although at first sight it appears to be one which should give us the greatest concern, in fact should not give us concern. Once the Act comes into force, the courts will assume that all those who may be directly affected by it will know of its provisions, and, since these provisions enable emergency orders to be made, the Government believe that the courts would be ready to hold that polluters, if they exist, appreciate that emergency orders may cause loss to people who would not otherwise have suffered.
123 It is in the nature of any precautionary measure designed to protect the public from possible danger, even before the full facts can have been established, that restrictions may be imposed upon food which turns out not to have been affected at all by the incident. I am advised that damage arising out of an emergency order would be held by the courts to be consequential upon the event which gave rise to it and that the person who is responsible for the pollution, even if that pollution did not happen to go in the direction of the strawberry fields, as it finally turned out, would be held responsible for the cost of the safety measures under an emergency order.
That leads to a second point which both my noble friends who are responsible for this amendment, and also the noble Lord, Lord Stodart, have spoken about. I am not quite certain, but I think maybe the noble Lord, Lord Walston, is talking about it as well; that is simply that Ministers might go much further than required for the purpose of dealing with an emergency and that the result might conceivably be that the person responsible for the release of any dangerous substances could not possibly be held responsible for the full costs resulting from the safety measures taken by the Government.
I am advised that measures taken under Clauses 2 and 3 would be subject under the law as it stands to scrutiny by the courts and, in the event of those measures being found excessive—an unlikely event, I hope—the courts could provide redress against Ministers. It is, therefore, I suggest not necessary to amend the present Bill to protect the citizen against the possibility that the actions of Ministers had gone further than was, in fact, necessary.
That leads me to the third point—a point about which all of your Lordships have spoken—that, despite what I have already said, there may be difficulty in obtaining compensation and that the Government should still take power to grant compensation in order to ensure fairness to those people who have suffered loss. The issue which arises from that is, of course, insurance. I hope that your Lordships will agree, despite the difficulties, that it really is vital that nothing should be done in this Bill which would discourage those who might be responsible for the emission of dangerous substances from insuring themselves in respect of their responsibility to other people, and that it is also important to avoid anything which would discourage those who might be at risk of suffering loss either from seeking to recover their loss from the party who is in fact responsible for it, or from insuring themselves.
I have to say that undoubtedly Amendments Nos. 5 and 6 would tend to discourage insurance because they amount to a proposal to introduce a form of noncontributory state insurance policy. Clearly that would take us into a very difficult field indeed, as the noble Lord, Lord Gallacher, explained in his remarks. In fairness I really must emphasise again here that the purpose of the new legislation is simply to ensure that the Government would, if necessary, take proper measures to safeguard the public—measures of the type which in any case one would expect to be adopted voluntarily by responsible people. It is the business of the people concerned to see that they are protected as 124 they ought to be, and legislation really must not interfere with that.
On the difficult issue of insurance, officials of the Ministry of Agriculture have been in touch with representatives of the insurance industry. The one thing which I have to say about that in answer to my noble friend Lord Radnor is that the word "uninsurable" has certainly not passed the lips of the insurance interests with whom we have been having discussions. Discussions are continuing, but I have no doubt that those who may be affected by this legislation will be taking careful note of its implications and of its opportunities for the insurance industry.
For the reasons which I have endeavoured to give in the last few minutes, and which I must admit I did not give at the last stage of the Bill, the Government conclude that it is not necessary to make provision for compensation to be payable in respect of food which is destroyed as a precautionary measure following an incident but which turns out to be safe. We are confident that the "polluter pays" principle would operate. If I may say so to my noble friend Lord Onslow, we would see no difficulty in a Northern Ireland farmer bringing an action in the Republic of Ireland courts. But if these amendments were to be made, it would discourage people from pursuing the polluter and from taking precautions through insurance. I am sure that those would be very undesirable consequences.
§ Lord Stanley of Alderley
My Lords, I am very grateful for the contributions which have been made from the Floor of the House on this amendment. I do not think that we have solved all the problems, but certainly my noble friend Lord Belstead has solved a great many of them. I was particularly pleased to hear the answer which my noble friend gave to the noble Lord, Lord Walston, concerning the fact that if an area is designated and certain parts of it turn out afterwards to be innocent or free from pollution, the polluter will pay as regards that area which the Minister has designated because he should be—and I think that these were the words which my noble friend used—"aware of this problem when he reads this Bill or when the Bill becomes an Act". I am grateful to my noble friend for that.
I should like to reinforce a point made by my noble friend Lord Radnor. If there were a disaster there could be a very serious situation. While this matter was wandering around the courts we could have a situation whereby a large number of farmers and, indeed, processors—as was mentioned by the noble Lord, Lord Gallacher—could become broke before they ever received an answer.
My noble friend did not actually answer the point about taking the Minister to court. I still say that he is quite correct in saying that it is possible for me to take the Minister to court if he over-schedules the area. However, I still say that it is more or less impossible so to do. Therefore, I do not think that that is quite the right answer.
However, the whole nub of the problem arises on the question of whether or not I as a farmer, or, indeed, as a processor, like the noble Lord, Lord Gallacher, can insure. It really is a chicken and egg situation. If I take the chicken side, I say, "I cannot find anybody 125 and neither can my noble friend Lord Radnor who will say that they will insure". My noble friend Lord Belstead, who takes the egg side, says, "Well, you won't until we force them to do so".
I am not going to put this matter to the House now because the question of which is the chicken and which is the egg is really a technical point which can be sorted out as the Bill goes through the House. I am sure that if my noble friend is right on the egg side, as I call it, and it becomes quite clear as the Bill goes through both Houses that there may be an insurable risk here, at the end of the day we shall know whether or not insurers are going to foot or cover the bill. Meanwhile, I thank my noble friend for the great care that he has taken over this matter, as well as Members of your Lordships' House. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ (Amendment No. 6 not moved.)