§ 3.8 p.m.
The Earl of Caithness
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(The Earl of Caithness.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
Lord McIntosh of Haringey moved Amendment No. 36 1M:
Before Clause 100, insert the following new clause:
("Restoration and maintenance of rivers
.—(1) It shall be the duty of the Secretary of State and the Authority to secure the effective execution of the provisions of this Chapter for the purpose of the restoration and maintenance of the wholesomeness of rivers and other inland waters.
(2) The duty to establish water quality objectives under section 102 below, shall be exercised subject to the requirements of this section.").
§ The noble Lord said: This is the amendment which I venture to call the Murdoch amendment. It arises partly from thinking on our part over many months and indeed a number of years. Specifically, we were encouraged to draft the amendment in this way by a leader in The Times on Wednesday 17th May which went further in attacking the Government's proposals for the privatisation of the water and sewerage industry than I have ever seen a Times 156 leader do in the past. I speak of "the Thunderer" which has normally supported a Conservative government through thick and thin.
§ Last week the Committee decided on a vote that vague timetables for the improvement of our drinking water quality were no longer acceptable. It decided that European Community standards for the improvement of drinking water should be met within a fixed period to be agreed with the Community—the Government are given until the end of the year by the Chamber to agree a timetable—or, failing such agreement, by 1st September 1993.
§ River water quality is a complementary issue. The two matters are closely linked. The water cycle involves both river water and drinking water. Unless we give our full attention both to drinking water quality and to river water quality then one or the other will suffer. We shall simply not achieve the objectives set by this Committee for the improvement of drinking water quality unless at the same time we set sufficiently strict objectives for the improvement of river water quality and see a reasonable and effective timetable for the achievement of those objectives.
§ River water quality objectives have been set for a very long time. What has been lacking is not objectives but achievement of objectives—actually getting things done. That was the impact of our amendment last week on drinking water quality. That is the thrust of our argument on river water quality this afternoon.
The Water Act 1973 contains the words that we believe should appear in this Bill. Section 1(2) of the Act states:
It shall be the duty of the Secretary of State to secure the effective execution of so much of that policy"—
that is the national policy for water in England and Wales—
as relates to the restoration and maintenance of the wholesomeness of rivers and other inland water".
§ That important and essential commitment is missing from this Bill. We shall be interested to have the Minister's views on the matter. According to The Times this is deliberate. The Times states that Ministers have privately conceded that the omission is not an oversight. Why is it not an oversight? Why are the Government consistently refusing to continue the policy which has been national policy for river water quality not only since 1973, when the Water Act was passed, also by a Conservative government, but also before that date? I suggest to the Committee that the Government are failing to do so because they do not want to commit themselves to an adequate programme, not only of objective, but also of achievement, to restore our rivers to a condition that should prevail.
§ It was 1968 when we started to monitor river quality on an effective basis. For the first time we had four classifications of river water quality—the first two, broadly "acceptable", the third "unacceptable", and the fourth "positively dangerous". I summarise them rather crudely. By 1980, that is, after 12 years of the classification system, there had been a certain improvement. Only 157 7 per cent. of our rivers fell into the fourth category of being positively dangerous. By 1987—the last year for which we have adequate data—the percentage of rivers in the fourth category had risen to 10 per cent. During the decade of this Government, our river water quality has become worse. That is not an acceptable basis on which to enter the experiment of privatisation.
If we are handing over responsibility for river water quality to a National Rivers Authority—and that is clearly right—and if we are handing over responsibility for our sewage undertakings, which are the biggest single polluter of our rivers, to private organisations, then we must have effective criteria, and effective enforcement of those criteria in order to overcome the worsening of river water quality experienced in the 1980s and to improve the situation. That is why we use in the amendment the words of the Water Act 1973:
the restoration and maintenance of the wholesomeness of rivers and other inland water".
It is not a revolutionary proposal. A similar phrase was included in the Salmon and Freshwater Fisheries Act 1975, which stated that the duty was to maintain, improve and develop the salmon trout fresh water and eel fisheries. That duty is not only found in the 1975 Act; it is transferred as a responsibility to the National Rivers Authority in Clause 137 of the Water Bill now before us. The Wildlife and Countryside Act 1981 used a similar phrase. The water authorities were charged with exercising their function with respect to the proposals—that is for discharging any of their functions—as to further the conservation and enhancement of natural beauty and conservation of flora and fauna.
§ There are plenty of precedents for saying that it ought to be the responsibility of the National Rivers Authority not simply to maintain the position as it stands and to prevent it becoming even worse, but to improve it and to restore our rivers to the quality that we deserve and of which we can be proud. At present we find that the water authorities—I shall come to this in more detail when we deal with later amendments—are using the setting of objectives, and are being encouraged to do so by the Secretary of State, in such a way as to encourage worst practice rather than best practice.
§ I admit that this amendment is in general terms. We are proposing a new clause which is designed to put an overriding responsibility on the Secretary of State and the National Rivers Authority. That overriding responsibility is supposed to govern Clause 102 and to say that the duties to establish water quality objectives shall be exercised subject to the requirements of the new clause. I believe that that is the right way to approach the matter. Experience has taught us that unless we establish a clear principle which is understood by all concerned, then there will be consistent efforts by those who have a financial interest to minimise the impact of the attempts to improve river water quality. If this new clause is agreed to, that will not be possible.
§ I commend the amendment to the Committee. I believe that it is a proper complement to the decision taken last week on drinking water quality. If the Committee were to pass it now, then the 158 commitment of this Chamber to the environment and the consumer at the time of the privatisation of the water industry would be apparent to all concerned. I beg to move.
§ 3.15 p.m.
§ Lord Renton
I should have thought that we could see no harm in the amendment, indeed I think we all agree with the objectives behind it. But if we look at Clauses 100 to 112 we find that they contain elaborate provisions for carrying out just what the noble Lord, Lord McIntosh of Haringey, would like to be done. Listening to his speech, it seemed to me that he has used the amendment as a peg on which to hang a discussion of the allegations which were made in The Times last week. In that connection, I expect that many Members of the Committee saw the letter from my honourable friend Mr. Michael Howard, the Minister of State, which appeared in The Times yesterday, and which refuted some of the allegations.
The fact is that there have been great improvements in the state of most of our rivers in the last 30 to 40 years. We can all speak with knowledge of particular rivers. I should say that the Great Ouse, which flows through my former constituency for some 30 miles, has been greatly improved over those years. So has the River Nene, in which I learnt to swim as a boy at school. However there are other rivers which undoubtedly need special attention. I myself asked a Question the year before last about the condition of the River Lea, which flows down through Hertfordshire into the London docks. When I went along it in August 1987 it was in a disgraceful state. I am told that it is not very much better now.
Having said that, let us not ignore either the achievements which have already taken place—about which I hope and expect we shall hear more from my noble friends on the Front Bench—nor what the Bill lays down. It is not for me to repeat to Members of the Committee the very lengthy and elaborate provisions which already exist. I do not think that we need to accept this amendment.
§ Lord Addington
We on these Benches whole heartedly support the amendment and the sentiment behind it. Effectively, as a Cabinet Minister the Secretary of State should have great responsibilities for the maintenance and improvement of the quality of our rivers in order to bring them back to the highest standard possible. It is altogether appropriate that the power is constituted at the very centre of government.
While there is, as the noble Lord, Lord Renton, has said, an improvement in the quality of some rivers, much of the information which I have received over the past year or so has suggested that that is not always the case and indeed the last river quality survey in England and Wales showed a net deterioration of our riverways over considerable distances. I cannot remember the exact figure, but it was in my speech on Second Reading.
§ Lord Renton
I should have added that it is a point in favour of what the noble Lord said, although it does not make his amendment any more necessary, that, however good the state of our rivers becomes, unfortunately we find them polluted from time to time by chemical discharges. There have been two serious discharges of aluminium chemicals in the West Country, causing a great deal of harm and consternation and making the water supply undrinkable. However, that there are such discharges does not alter the fact that there has been a general improvement in the state of our rivers over the years.
The Earl of Caithness
We begin today's proceedings with the pollution control provisions of the Bill, and the amendment by the noble Lord, Lord McIntosh of Haringey, goes to their heart. Before I respond to it in detail I must necessarily refer more generally to the present position of water pollution control in England and Wales and to what in this Bill we are seeking to achieve. In view of the programme before us today I shall endeavour to keep my comments short. But for the assistance of the Committee there are a few points I must make.
First, let me comment on the state of our water resources. The state of our rivers and estuaries is not as good as any of us would like. Of course it is not—it never could be. But let it not be forgotten that they are overall of good quality. The noble Lord, Lord McIntosh of Haringey, referred to the lack of achievement, the failure to get anything done. I have to remind the noble Lord and the Committee that we have the cleanest rivers of any country in the European Community, with 95 per cent. in good or fair condition. That compares with 75 per cent. in Europe. But of course I agree with the noble Lord, Lord Addington, that we wish to improve them even further. That is what much of the Bill is about.
Secondly, let no one claim that the Government are being miserly in this regard. It was after all this Government who initiated and are carrying forward the enormous investment programme to restore the Mersey, which, in its scale and significance, must have few parallels anywhere in the world. We have further announced a £1 billion programme to overcome decades of neglect in our sewage treatment works. Protecting our environment is expensive and we all know that it is only through the improvement in our economy that we have been able to commit such expenditure to resolving the problems.
However it is not only in that respect that this Government have, by comparison with many of their predecessors and particularly the last Labour Government, a proud record in this area. That record shows itself quite clearly in the area of legislation. It was, after all, this Government which, between 1983 and 1987, implemented Part II of the Control of Pollution Act, enacted by a Labour Government in 1974 but then left to moulder in the cupboard. In this Bill we now bring before the House perhaps the broadest and most substantial legislative measure for water pollution control ever undertaken.
What, then, are we doing? In implementing Part II of the Control of Pollution Act we did a number of important things. We made the coverage of effluent discharge consent controls more or less general; we 160 introduced public involvement in the setting of those consents; and we introduced public registers and the unrestricted right of private prosecution for pollution offences.
These were important steps forward. But we recognised then that when the legislative opportunity arose we should go further. That is what, after extensive consultation and debate, we are now doing in the Bill.
Four changes of great significance are involved. First, as noble Lords have discussed, in establishing the NRA we are for the first time establishing a national water pollution control agency, able to act independently of the conflicts of interest inherent in present arragements. Secondly, we are moving beyond a legislative framework based almost entirely on the control of effluent discharges to a broader framework for managing the quality of our water through the statutory quality objective system. Thirdly, we are strengthening that effluent discharge control system in a number of ways, most obviously perhaps with the new power for the NRA to impose conditions related to the processes and technology from which the discharges derive.
Finally, we are complementing these arrangements by far wider and stronger powers to deal with the new risks—particularly from accidental and diffuse pollution—to which the water environment is subject. In this way we are, through protection zones, regulations on storage, emergency works powers and similar arrangements, giving far stronger expression than before to the precautionary principle in this area. This, then, is the background to the first part of the proceedings today. Against it, let me now turn to the amendment proposed by the noble Lord, Lord McIntosh of Haringey.
This amendment would insert in the Bill a general duty on the Secretary of State, very much of the kind in the 1973 Water Act, as the noble Lord said. That duty was inadequate because it was vague and hung in air, unrelated to specific powers and obligations. The amendment is equally vague, confirming the gulf between us and Her Majesty's Opposition. They believe that central government control and ownership are more important than detailed regulations. The main intention of the new Bill's provisions is to remedy this. The Secretary of State's duty is no longer a disembodied abstraction: it is firmly built into the powers and duties in the Bill. This Bill does not simply state a general duty: it gives it firm operational force.
How does it achieve that? As my noble friend Lord Renton was just reminding us, the Bill is full of detail. For example, Clause 102 provides for the Secretary of State to set water quality objectives but to do so for the purpose of maintaining and improving water quality. Clause 103 then requires the Secretary of State and the NRA to exercise all the ensuing powers and obligations in this chapter of the Bill so as to achieve those objectives as far as it is practicable to do so.
So this part of the Bill is a carefully constructed whole. It sets out the duty—the maintenance and improvement of water quality. It makes clear how, through the quality objectives, that duty should be 161 given real substance and meaning. Finally, it requires all pollution control powers to be used to achieve these.
This is a complete and full framework providing the critical linkages which have been absent in previous legislation. In these circumstances I suggest that the amendment tabled by the noble Lord, Lord McIntosh, would simply introduce an undesirable element of muddle and duplication. The noble Lord said that we are experimenting with privatisation. We are not; we are seeking to sever the link between the gamekeeper and the poacher which has been the cause of so many of our problems.
The last Labour Government was the one which experimented. It experimented with the environment by cutting costs in real terms. Never has the environment been so neglected. That was perhaps not deliberate. It resulted from not having any sensible financial base thus necessitating our having to go cap in hand to the IMF.
The noble Lord, Lord McIntosh, tried to reinforce his comments by saying that river quality had declined under this Government. From 1980 to 1985 there was some marginal decline in river water quality. But, as the report of the Environment Committee in another place concluded, that was largely due to cutbacks in investment in sewage treatment works in the 1970s under the then Labour Government. That is pretty good, damning evidence. However, the latest evidence from 1985 to 1987 shows that any decline has been halted and appears to have been reversed.
We have a good record, but it is not good enough. We know that we must make improvements. That is why we have the Bill before us.
§ 3.30 p.m.
§ Lord McIntosh of Haringey
I am sorry that the noble Earl felt it necessary to return to general political accusations instead of responding more directly to the issue before us and contained in the amendments. As he has done on more than one occasion, he again seeks to make contrasts between the Labour Party approach, which he describes as central government control and ownership, and regulation. It is the first time I have heard Conservative privatisation philosophy described as a philosophy of regulation. At least it is honest. At least it recognises that in the pursuit of what I insist on calling the "experiment of privatisation" of the water industry—which has grown up successfully as a public rather than a private enterprise—it may be necessary to have literally hundreds of pages of regulation in a Bill with, no doubt, thousands of pages of regulation in the form of regulation by the Secretary of State, codes of standards and interference by Whitehall in private industry. I wonder whether that is the image which the Government wish to project. Certainly that is occurring.
As a result of this privatisation experiment we are having more detailed regulation, more detailed control from Whitehall and more detailed imposition of new controls than the water industry has ever known. That is what is actually happening 162 whatever may be claimed for the ideology behind privatisation. As for things becoming worse because of the Labour Government, I note that at least the noble Lord, Lord Renton, did not make that claim. Quite rightly he referred to the improvement of river water quality over a period of time. The period that he chose was one of 30 to 40 years. I agree. I believe that there has been an improvement of river water quality over that time. However, during the past 10 years of the 1980s there has been deterioration. Incidentally, it was not the Commons Environmental Committee which made the point about earlier investment; it was the Government's response to that committee.
I wonder whether Members of the Committee who feel in any doubt about the amendment have read the series of articles on the Warwickshire Avon which appeared in The Times last week. I know that the Minister was in Kenya representing valiantly, I am sure, our interests in the United Nations' environment programme conference. No doubt it has been difficult for him to catch up with everything that occurred while he was away but other Members will have read the articles. They will have seen that the Warwickshire Avon was chosen, not as an example of the worst of our rivers, but as a typical, average river. The Times makes that claim for its series of articles and Members must judge whether it is accurate.
The articles show that low standards at all stages of ingress into the river are responsible for the poor quality of the water of the River Avon. Above all they show that, although not responsible by any means for all the pollution, outdated sewerage works based on standards of the 1930s, 1920s or even earlier are the largest single cause of pollution. A particular example which I recall and to which I can refer is that of Rugby. There, the sewerage works were set up with a gravity-fed system rather than a pump system because at that time it was thought to be more economical.
The amendment proposes a general duty of maintenance and improvement of river water quality. We believe this to be the only way in which all those concerned—and we refer specifically to the Secretary of State and the National Rivers Authority—will be brought to recognise the seriousness of the situation. At the moment we are not reassured. As we know, Her Majesty's Inspectorate of Pollution has been suffering personnel problems which appear to be caused by the fact that senior staff believe that the inspectorate is under-funded and unable to carry out its duties to the extent that it would wish. There appear to be only five pollution inspectors responsible for policing the quality of water along the entire length of the River Avon which runs virtually across our country.
The funding of the National Rivers Authority is also of great concern. Unless it has an overriding duty not only to keep things as they are but to make them better, what effective argument will it have to ensure that Government provides the funds it needs in order to carry out those duties?
Members of the Committee have referred to the polluter pays principle. It is one we have very much in mind. We have not neglected the detail in the 163 following clauses. Amendments Nos. 366A and 366B refer specifically to the polluter pays principle. We are concerned with the detail of the Bill as well as with the general principles. However, we believe, as the Government, in earlier parts of the Bill, for example, in the relationship between general duties in Clause 7 and more detailed duties in Clause 8 have shown that they also believe—that a statement of general duty is essential if all concerned are to work together to give us the river quality which we deserve and which we believe this country needs.
On that note it is necessary that I seek the opinion of the Committee——
§ Lord Nugent of Guildford
I should like to say a few words before the noble Lord puts the Question. I apologise for not speaking earlier, but I did not realise that the debate would come to an end so soon.
I had the interesting responsibility of being the introducer of the first set of river quality objectives. That probably distinguishes me in this Committee and in most places elsewhere. When I was chairman of the National Water Council I knew that it had the responsibility in the 1973 structure. Not unnaturally the 10 regional water authorities were not hasty in setting up river quality objectives. By doing so they placed great obligations on themselves to observe the objectives. However, it was clear that it was implicit in the Bill and in the words which the noble Lord quoted in Section 1 of the 1973 Act that the machinery for implementing the river quality objectives was tenuous, to say the least.
I need not go into great detail but I had some difficulty in persuading the 10 chairmen who sat on the National Water Council with me that they should do that. I did persuade them that it was our obligation and they agreed to do that. We proceeded slowly, but they began to set river quality objectives for the rivers of this country. My mind goes back to when The Rivers (Prevention of Pollution) Act 1951 was first talked about. I must say that I thought that that would never happen. I was in a position more or less to make it happen, and it began to happen.
However, the point I am really making is that the 1973 Act, which was a very good Act and which included many excellent provisions for improving the conditions of our rivers, did not have a really effective machinery of enforcement. As chairman of the National Water Company, and with the independent members to help me, I could do something to persuade the 10 chairmen to carry it out. However, at the end of the day they are responsible for monitoring the rivers, reporting and observing the river quality objectives. Therefore, the machinery was very feeble.
The great distinction of my noble friend's enormous Bill, which is horrific in any state, is that he has set up a rational, powerful structure in the National Rivers Authority which is there to see that the regulations and river quality objectives are observed. I believe that that will achieve progress far quicker than ever before.
164 Perhaps I may just say a few words on a point made by the noble Lord; namely, that it is the regional water authorities, the water companies of the future and the sewerage works which are the main polluters. Of course they are, because it is common practice nowadays to persuade, almost to compel, all industry to discharge its toxic effluents into the public sewer because that is the best way of dealing with it. It is required initially to give pre-treatment, but normally, after pre-treatment, it is easier in combination with the urban sewage to extract the toxicity from toxic effluents than to discharge direct. That is common practice. Therefore, in that respect, the present regional water authorities and the water companies of the future are carrying the load for the whole community. Of course, we expect them to do that and to do it properly, but that is a tremendously expensive task and, as the noble Lord rightly says, a good many sewerage works in the country are not big enough or sophisticated enough to give us the kind of service which we want. However, that task is being proceeded with.
My noble friend Lord Crickhowell will put pressure on the defective water companies of the future which have inadequate sewerage works, to step up their programmes—and that will be very expensive and will cost millions of pounds—so that they are discharging effluents which are acceptable in terms of the water quality objective of that particular river. Therefore, there is a machinery; so my noble friend can rightly claim that undoubtedly we have the cleanest rivers in Europe, and that with this Bill we shall have the most effective machinery not only for keeping the rivers clean but for making them cleaner.
The noble Lord, Lord McIntosh, should recognise that, although his aims are absolutely right, the particular clause he wishes to insert will not add a great deal to the Bill. The Bill has it there, and for the first time it has a really effective machinery to see that the goods are delivered and that the standards really are observed. I thank the noble Lord for allowing me to intervene.
§ 3.45 p.m.
§ Lord McIntosh of Haringey
On the contrary, I am trebly grateful to the noble Lord, Lord Nugent of Guildford: first, because he has given us the benefit of his unrivalled experience in the water industry; secondly, because he has confirmed that the availability of a general duty on the water authorities under the 1973 Act was of assistance to him in persuading the chairmen of water authorities that they should act to improve river quality, thereby, in my view—and I am not putting these words into his mouth—confirming the necessity for a general duty to maintain and improve water quality; and thirdly, for rightly drawing attention to the value of an effective regulatory mechanism under the succeeding clauses of the Bill.
I do not disagree with a word he said. As is obvious from the amendments we have tabled, we are very much concerned not to dismantle the detailed regulations in Clauses 100 to 112, but to extend and improve them and to make them work more 165 effectively. We believe that the two must be complementary and that the general overriding duty must be the guiding light, if you like, of the Secretary of State and the authority, and that the detailed regulations are on the way to achieve that. That is why we are tabling amendments on water quality objectives, on the timescale for achieving them, on the consents required, on the consultation required and on all the many aspects which are important elements of this Government's concept of the regulation of river water quality. I see that I am required to give way again.
§ Lord Renton
The noble Lord said that he and his noble friends are anxious to ensure that the detailed provisions of Clauses 194 to 112 are carried out as a general duty. If he will look at Clause 103 he will find a general duty there expressed as strongly as any general duty could be expressed in relation to those clauses in almost the same words as his amendment.
§ Lord McIntosh of Haringey
I am grateful to all Members of the Committee who leapt to my attack! That contains general duties but does not refer to the important point so valuable in the 1973 Act and which is not available here; that is, that it is a duty not just to achieve and maintain the objectives, as the rubric to Clause 103 says, but to improve river quality. That is what we want to see, that is what has been in other legislation and that is what is missing from this legislation.
I agree with the noble Lord, Lord Nugent, about the role of the National Rivers Authority, and I agree that it is right that the National Rivers Authority should have this responsibility. I agree with the Government about the general thrust of the subsequent amendments in Part III of the Bill. However, in order to make them effective and in order to add the critical element of improvement of river water quality, we need this Amendment No. 361M. I commend the amendment to the Committee.
§ 3.48 p.m.
§ On Question, Whether the said amendment (No. 361M) shall be agreed to?
§ Their Lordships divided: Contents, 84; Not-Contents, 121.
|DIVISION NO. 1|
|Addington, L.||Bonham-Carter, L.|
|Airedale, L.||Boston of Faversham, L.|
|Amherst, E.||Bottomley, L.|
|Ampthill, L.||Broadbridge, L.|
|Attlee, E.||Brooks of Tremorfa, L.|
|Aylestone, L.||Bruce of Donington, L.|
|Beaumont of Whitley, L.||Callaghan of Cardiff, L.|
|Birk, B.||Carmichael of Kelvingrove, L.|
|Blyth, L.||Carter, L.|
|Cledwyn of Penrhos, L.||Mountevans, L.|
|David, B.||Murray of Epping Forest, L.|
|Davies of Penrhys, L.||Nicol, B.|
|Dean of Beswick, L.||Paget of Northampton, L.|
|Dormand of Easington, L.||Peston, L.|
|Elwyn-Jones, L.||Phillips, B.|
|Ewart-Biggs, B.||Ponsonby of Shulbrede, L.[Teller.]|
|Falkender, B.||Prys-Davies, L.|
|Fitt, L.||Robson of Kiddington, B.|
|Foot, L.||Ross of Newport, L.|
|Gallacher, L.||Sainsbury, L.|
|Galpern, L.||Serota, B.|
|Gladwyn, L.||Stallard, L.|
|Graham of Edmonton, L.||Stewart of Fulham, L.|
|Grey, E.||Stoddart of Swindon, L.|
|Hanworth, V.||Strabolgi, L.|
|Harris of Greenwich, L.||Taylor of Blackburn, L.|
|Hatch of Lusby, L.||Taylor of Gryfe, L.|
|Hayter, L.||Taylor of Mansfield, L.|
|Howie of Troon, L.||Tordoff, L. [Teller.]|
|Hunt, L.||Turner of Camden, B.|
|Hylton, L.||Underhill, L.|
|Jeger, B.||Vernon, L.|
|John-Mackie, L.||Wallace of Coslany, L.|
|Kilbracken, L.||Walston, L.|
|Lockwood, B.||Whaddon, L.|
|McIntosh of Haringey, L.||White, B.|
|Mason of Barnsley, L.||Williams of Elvel, L.|
|Mayhew, L.||Wilson of Rievaulx, L.|
|Milner of Leeds, L.||Winchilsea and Nottingham, E.|
|Molloy, L.||Winstanley, L.|
|Aldington, L.||Hailsham of Saint Marylebone, L.|
|Annaly, L.||Hardinge of Penshurst, L.|
|Arran, E.||Harmar-Nicholls, L.|
|Auckland, L.||Havers, L.|
|Balfour, E.||Henley, L.|
|Belhaven and Stenton, L.||Hesketh, L.|
|Belstead, L.||Hives, L.|
|Bessborough, E.||Hood, V.|
|Blatch, B.||Hooper, B.|
|Borthwick, L.||Hunter of Newington, L.|
|Brabazon of Tara, L.||Hylton-Foster, B.|
|Brookeborough, V.||Ironside, L.|
|Butterworth, L.||Johnston of Rockport, L.|
|Caithness, E.||Joseph, L.|
|Campbell of Alloway, L.||Kaberry of Adel, L.|
|Carnegy of Lour, B.||Killearn, L.|
|Carnock, L.||Kimball, L|
|Cawley, L.||Kinloss, Ly.|
|Clinton, L.||Lauderdale, E.|
|Constantine of Stanmore, L.||Long, V.|
|Cork and Orrery, E.||Lucas of Chilworth, L.|
|Cottesloe, L.||McAlpine of Moffat, L.|
|Cox, B.||McFadzean, L.|
|Cranbrook, E.||Mackay of Clashfern, L.|
|Crickhowell, L.||Macleod of Borve, B.|
|Cullen of Ashbourne, L.||Manton, L.|
|Davidson, V. [Teller.]||Marley, L.|
|Denham, L. [Teller.]||Merrivale, L|
|Donegall, M.||Mersey, V.|
|Dundee, E.||Middleton, L.|
|Effingham, E.||Monk Bretton, L.|
|Elibank, L.||Moran, L.|
|Ellenborough, L.||Murton of Lindisfarne, L.|
|Elliott of Morpeth, L.||Norrie, L.|
|Fanshawe of Richmond, L.||Nugent of Guildford, L.|
|Fortescue, E.||Orkney, E.|
|Fraser of Kilmorack, L.||Orr-Ewing, L.|
|Gainford, L.||Oxfuird, V.|
|Gisborough, L.||Pender, L.|
|Goold, L.||Penrhyn, L.|
|Grantchester, L.||Platt of Writtle, B.|
|Gridley, L.||Porritt, L.|
|Grimthorpe, L.||Quinton, L.|
|Haddington, E.||Radnor, E.|
|Rankeillour, L.||Strathclyde, L.|
|Renton, L.||Strathcona and Mount Royal, L.|
|St. Davids, V.||Sudeley, L.|
|Saltoun of Abernethy, Ly.||Swansea, L.|
|Sanderson of Bowden, L.||Terrington, L.|
|Selkirk, E.||Teviot, L.|
|Sempill, Ly.||Thomas of Gwydir, L.|
|Shannon, E.||Trafford, L.|
|Shaughnessy, L.||Tranmire, L.|
|Skelmersdale, L.||Trumpington, B.|
|Slim, V.||Vaux of Harrowden, L.|
|Somers, L.||Wigram, L.|
|Stanley of Alderley, L.||Wise, L.|
|Stodart of Leaston, L.||Wynford, L.|
|Strange, B.||Zouche of Haryngworth, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 3.56 p.m.
§ Clause 100 [Waters to which Chapter I applies]:
§ The Earl of Cranbrook moved Amendment No. 361N
§ Page 109, line 20, leave out ("three") and insert ("twelve").
§ The noble Earl said: The purpose of this amendment is to extend the relevant territorial waters to be coterminoused with our national territorial waters. The associated Amendment No. 361T therefore deletes subsection (1)(a) of Clause 100 that allows the Minister to exercise his choice, so to speak, and to make part of the relevant territorial waters coincide with our territorial waters.
§ The Territorial Sea Act 1987 is important. Section l(1)(a) with which that Act opens provides that the breadth of our national territorial sea shall be 12 nautical miles. As it is drafted, Clause 100 provides for the NRA to exercise its functions only over what are called "relevant territorial waters"; that is, waters that conform to the previous territorial limit of three miles. The Territorial Sea Act refers in annotations to the "territorial sea".
§ On Second Reading of that Bill the Minister of State at the Foreign and Commonwealth Office defined that as,
"a belt of waters adjacent to the coast within which a coastal state enjoys sovereignty".—[Official Report, 5/2/87; cols. 382–3.]
§ I consider that sovereignty is not merely a matter of enjoyment but also a duty and it is clear to me that we have a national duty to control pollution within these limits; in this case, controlling pollution which can arise in the water itself, which is the function of the NRA.
§ Pollution that derives from land-based sources can extend its polluting capacity beyond the three mile limit. Some of the discharges of our larger polluted estuaries—for example, the Humber—certainly are detectable at a range beyond three miles from the coast. The effects of dumping at sea may well extend beyond three miles from the coast, including the dumping of sewage from water works. We do not know how far the effects of long sea discharges of sewage from land are likely to be felt. That is where research is necessary. There is constant pressure at the moment to extend these pipes further out to sea, but as presently envisaged it is unlikely that any will 168 extend beyond the three mile limit. I consider that the NRA should have the capacity to consider and control pollution from such sources—that is, originating from the water industry—that extends beyond that range.
§ Therefore, I have proposed these two amendments which, taken together, will have the effect of extending the powers of the National Rivers Authority to the limits of the seas over which, as a nation, we hold sovereignty. I beg to move.
§ 4 p.m.
§ The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh)
This amendment proposes that the definition of "territorial waters" for the purposes of the pollution control provisions of the Bill should include all areas of the territorial sea to 12 nautical miles from the relevant base lines, rather than three. I recognise that under the Territorial Sea Act 1987, as my noble friend Lord Cranbrook mentioned, the United Kingdom territorial waters have been extended to 12 miles and we have considered very carefully whether the coverage of our pollution controls should be extended accordingly.
Twelve miles would take us some considerable distance into the high seas, where the very tight and detailed controls we have on pollution of inland waters would be of little relevance. Nor do we believe that with all its other tasks we can properly ask the NRA to take on what, if diligently performed, could prove substantial extra responsibilities. However I believe that I can reassure my noble friend Lord Cranbrook that for four reasons this extension is not in fact necessary.
First, the areas of the sea in question are already subject to the controls under the dumping at sea provisions of the Food and Environment Protection Act 1985. Secondly, our provisions in the Bill already require that in the case of any discharge from land to areas of the sea, to whatever distance, whether three miles or 12 miles or even further, that discharge shall be subject to control and require the NRA's consent. Thirdly, the NRA will be able to monitor the effect of these discharges on the sea at whatever distance. We have not given it a duty to monitor such areas of the sea, but it does have the power to investigate or monitor them pursuant to its powers to set and review discharge consents. Finally, as my noble friend is, I believe, aware, we do have power by order to bring other areas of the sea within territorial waters if the need should arise.
In the light of all these considerations, I hope that my noble friend will feel that the area of the sea to which he refers is already securely protected, and that to give the NRA the wider obligations in respect of it which he proposes we believe is not necessary.
§ Lord Renton
Before my noble friend Lord Cranbrook replies, I feel bound to express some anxiety in this matter. By having the 12-mile limit for which we negotiated very strenuously internationally, we are imposing on foreigners a duty not to come within our 12-mile limit. Thereby we are protecting our fisheries and placing an obligation 169 on foreigners. As regards ourselves, our government institutions and our own people, we are saying: "No, we are going to have a lesser standard than that which we impose on foreigners. We are only going to make them observe the right principles within three miles". That does not seem to be consistent or right. Therefore I very much hope that the Government will consider this matter still further.
§ Lord McIntosh of Haringey
I share the anxiety expressed by the noble Lord, Lord Renton. In his reply the Minister concentrated on the issue of the 12-mile limit. He may be right because I do not know the rights or wrongs of whether 12 miles is the best possible limit. The Minister made only a passing reference to the fact that the National Rivers Authority is only to have the power, rather than a duty, to control discharge within a smaller area of our coastal waters—perhaps three miles. I find it puzzling that whereas the NRA has a duty when it is a matter of inland, estuarial or tidal waters, it has only a power when it comes to coastal waters.
I think it is fair to say that the noble Earl, Lord Cranbrook, chanced on this anomaly in the drafting of the Bill at an earlier Committee stage. I understand that he has tabled these amendments with the intention of extending the responsibilities; namely, the duties of the National Rivers Authority. I find it disturbing that the Government have not responded to that part of his argument. Whether the 12-mile limit is the ideal, I do not know. I hope that the Government will be able to give to the noble Earl more reassurance than they have done so far.
§ Baroness White
As one of those who took part in the discussions with the noble Baroness, Lady Young, who was then in office, on the extension to the 12-mile limit, I hope very much that the Government will take this matter a little more seriously than they have done so far. I have considerable sympathy with the noble Earl, Lord Cranbrook. This was one among many reasons why it was desirable to extend the national limit from three to 12 miles in the first place. As my noble friend Lord McIntosh has indicated, I hope very much that the Government will reconsider the situation. I wonder whether we should impose a duty on the NRA to do something, if not to place on it the whole gamut of responsibility that it undertakes as regards fresh waters.
The Earl of Cranbrook
I am very interested in the response that my amendment has aroused on all sides of the Committee. I reiterate the point that I was making. In my view the duty should extend to the limits of our territorial waters. In response to the noble Lord, Lord McIntosh, it is not just any old limit; it is the limit of our sovereignty. The limit of 12 miles is a very clear one about which we debated. There was a very considerable amount of international action on this subject. It was a very important point. Our national territorial limits were extended enormously. If you add nine miles around the perimeter of an island nation such as ours, you add enormously to the national sovereign territory over which we acquire benefits. In my view, and 170 that of other noble Lords who have spoken, we also drew obligations on ourselves.
I understand that the dumping regulations are controlled by MAFF, and under the Food and Environment Protection Act I believe that MAFF may be the enforcement agency. I ask the Minister whether either of these circumstances oblige MAFF to have regard to pollution and to control pollution in these waters? I recognise that this is a question for which the Minister may require notice. In order to give him that notice, I beg leave to withdraw the amendment on the grounds that I may come back to it later after there has been clarification.
§ Amendment, by leave, withdrawn.
§ The Earl of Cranbrook moved Amendment No. 361NA:
§ Page 109, line 29 leave out ("inland") and insert ("fresh").
§ The noble Lord said: This amendment more closely follows the arguments that the noble Lord, Lord McIntosh, was referring to just now. The purpose of this amendment is to set in place a series of amendments that would reverse the rather peculiar arrangements at present in the Bill. It is perfectly obvious that in this respect the Bill has been cobbled together from existing legislation, rather in the manner in which those of us who have word processors cobble together long letters by taking bits of existing text and joining them on. We have already stumbled across this curious anomaly that, except in this part of the Bill, "inland" by definition includes coastal down to low water limits.
§ If we start at this point by using the word "fresh" to apply to fresh waters under what we might call the C.O.P.A. section of the Bill, we then lay the trail for a series of amendments that I hope will ultimately reverse the linguistic peculiarities of this Bill. So instead of the words "inland waters" having the meaning of the 1963 Act, which I maintain is obscure and confusing to the layman, when we are speaking of fresh waters we shall call them fresh waters and when we are talking about sea waters we shall call them sea waters. I beg to move.
§ Lord Renton
I feel difficulty on this occasion about what is proposed by my noble friend. He knows as well as I do that with the Great Ouse the fresh waters do not begin until nearly 40 miles inland, when you reach the Seven Holes Sluice at Earith; it is tidal until then. The River Thames is tidal until it reaches Teddington. Moreover, the Thames at high spring tides is largely salt water for a long way up; it is not fresh water.
If we are to replace the concept of "inland waters", strictly speaking we are getting into some sort of confusion with the second part of this paragraph, which refers to,so much of any relevant river or watercourse as is above the fresh-water limit".I am not certain whether paragraph (c) is really intended to cover places which are so far inland. "The fresh-water limits", strictly speaking, is where the tide ends. The term "inland waters" is a much broader concept than that. This is a matter of words rather than of principles. However, I am not certain 171 what effect the amendment would have upon the words of paragraph (c).
The Earl of Cranbrook
I think that before the noble Lord sits down I had better clarify the function of the amendment. The problem about which he is worrying does not in fact arise. I do not think that it is simply because I am a biologist rather than a lawyer that I understand the term "fresh water" to mean water which excludes salt.Therefore Clause 100(1)(b) defines "coastal waters" as waters,which are within the area which extends landward",and so on and,in the case of the waters of any relevant river or watercourse, as far as the fresh-water limit".That means to say that those waters of a river which are infused by salt as a result of tidal flow are below the fresh-water limit and are covered'by subsection (1)(b).
It is perfectly clear to me that subsection (1)(c) refers to those waters which are "above the fresh-water limit"; that is to say, are above the zone which is infused from time to time with salt water and therefore the brackish zone. Therefore, to use the term "fresh waters" is almost redundant because it almost becomes tautologous, as it then means that subsection (1)(c) says that fresh waters are fresh waters.
The Earl of Caithness
I believe that all of us can have some sympathy with what my noble friend Lord Cranbrook says. Indeed, the definitions in this area are unfortunately inevitably complex. But, as my noble friend appreciates, we cannot start wholly anew without regard for the definitions in other legislation. Moreover, we do not believe that what we have given will cause misunderstanding. First, we specifically make the point in the Bill that the definition of "inland water" in this chapter is different from elsewhere in the Bill. Secondly, and perhaps more important, the definition on page 109 makes clear that inland water extends only to the "fresh-water limit".
In contrast, we believe that my noble friend's proposal to use the term "fresh waters" would itself cause confusion. To the general public the category of "inland waters" covers a wide variety of cases including, for instance, brackish water in upland areas—which in the public mind might not be regarded as fresh—and even waters in reservoirs which equally may not be regarded as fresh. We therefore believe that the definitions which we have in the Bill as drafted are those most clear-cut and helpful for the general public, and even more so for the regulations.
The Earl of Cranbrook
I still feel that there is a serious confusion, especially when I look retrospectively at Clause 8. It would be preferable if we were able to replace the term "inland waters" in this subsection with the term "fresh waters". I must say that I cannot think of any inland upland lake in this country which is salty. If that replacement was achieved, we would then have a much clearer definition of "inland waters"; we would be allowed 172 to let inland fresh waters mean what they do mean throughout the Bill; and we would be able, if we do not want to meddle too much with existing legislation, to make the earlier definition of "inland waters", which included sea waters, the exception rather than the rule.
Such matters need to be looked at carefully. I also need the opportunity to read what my noble friend said. Therefore, for the time being, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.15 p.m.
§ Lord McIntosh of Haringey moved Amendment No. 361P:
§ Page 109, line 40, at end insert—
("(1A) For the purposes of the requirements of section 102(1A) below, the Secretary of State shall, within three months of the passing of this Act, publish a Schedule of all waters falling within the clauses specified in subsection (1) above.").
§ The noble Lord said: In moving this amendment I should like to speak also to Amendments Nos. 361V, 361W, 362AAB and 362DAB. These are the first evidence of our intention not in any way to disparage the regulatory mechanism proposed in this part of the Bill but to seek to make it as effective as possible in achievement as well as in prescription.
Amendment No. 361P would require the Secretary of State to,
publish a Schedule of all waters",
to which the regulatory procedures are to apply for the purpose of water quality objectives. Amendment No. 361V states that he shall make regulations under Clause 101. Amendment No. 361W says that in order to set water quality objectives the Secretary of State shall establish a classification system. Amendment No. 362AAB has two purposes. First, it states that there should be a date—the soonest practicable date—for compliance with objectives; in other words, objectives are not enough unless they are complied with. But, it also states—I shall not say more importantly—equally importantly, that it is for the authority to specify the date, not the Secretary of State. Amendment No. 362DAB is a consequential amendment which relies upon the fact that the objectives will become, under the Bill as amended, the responsibility of the authority and not of the Secretary of State.
§ I believe that these amendments are coherent in their approach. They seek to secure that objectives are not set in a vacuum, but that they go further and are enforced by a timetable for compliance. They also seek to secure that it is the National Rivers Authority, not the Secretary of State, which sets the quality of standards and imposes the timetable.
§ The matter was debated in another place but, unfortunately, the debate was mostly about the establishment of water quality objectives. We do not doubt here that the Government have the intention of setting water quality objectives; indeed, this part of the Bill is very much concerned with water quality objectives; and we have no dissent from that. However, what is required is that there should be a timescale and a sufficient enforcement procedure for actual compliance.173
§ We understand that the National Rivers Authority will begin a national river quality survey in 1990 which will be the basis of the new system. We certainly hope that the conditions to be imposed for river water quality will be no less stringent than existing standards. It is for that reason, above all, that we think it is the NRA, and not the Government, which should be responsible for setting such standards.
§ The history of this matter has not been good. Perhaps I may take the specific example of the River Rother in Derbyshire. The Yorkshire River Authority, which is responsible for that river, said in 1974 that the river would achieve its water quality objective—that is to be Class 2, fair—by 1979. When 1979 was reached, the authority said that it would be done by 1987. But, when the year 1987 was reached, the authority stated that the new target for achievement would be the year 2001.
§ That is not a very happy prospect; it is not one which chimes very well with the broad government statements which state that we have the best water quality in Europe and that every day, and in every way, things are getting better and better; that is simply not so. They are simply not getting better because our system for enforcing water quality objectives is not adequate. What actually happens, far too often, is that the standards are set not on any objective basis of what the river ought to be like, but on what those at the time think is actually achievable within a timescale and without too much upset.
§ Standards are designed down in engineering terms to what is likely to be achieved at an acceptable cost. Then the work done to improve river quality is designed down to fit those standards which have already been designed down. That means that whereas exceptions might have been a rarity in the past it becomes all too easy with everybody working to minimum standards rather than optimum standards for exceptions to be more common and for standards to be breached on a statistical basis more frequently. There is plenty of evidence not only that this is happening but that the Secretary of State is giving it its blessing.
§ I can give examples from the Thames Water area. The Secretary of State encouraged water authorities to apply for relaxation consents. That was done partly for the justifiable reason that in order to know when relaxation consents would have to be negotiated with the European Commission it was necessary to know from the water authorities which works were not complying and which rivers were being polluted in a way which the Commission would find to be inappropriate. By the closing date of last Friday Thames Water Authority had applied for 98 works to be allowed to relax their consent conditions. We have been able to discover this by looking at the registers of compliance and identifying the works which are failing or are likely to fail. No adequate publicity has been given to the compliance process or to the fact that so many water authorities are applying for relaxation on behalf of so many works.
§ Perhaps I may give a few examples from within the Thames Water area. One is Mogden works in Isleworth and another is Wargrave in Berkshire. The 174 effluent from Mogden was identified as a reason for the poor condition of the Thames when 10 million fish died after a storm in central London in 1986. The Wargrave works was prosecuted successfully by the Anglers Co-operative for non-compliance. Other works such as Crawley and Luton—those are the largest ones—are already discharging into rivers effluent which fails to meet the water quality objectives. Will relaxation be sought for them?
§ The truth of the matter is that the existing process is not working well enough. We will not get river water quality which will meet European Commission standards or indeed the standards we ought ourselves to have for river water quality. Because of privatisation and because of threats from Europe the Secretary of State is positively encouraging attempts to secure relaxation rather than encouraging attempts to secure compliance. Our series of amendments, which deals with the problem of identifying the waters, the problem of setting up a proper system of classification, the problem of who shall be responsible for setting the objectives—we think it should be the NRA and not the Secretary of State—and above all the problem of a date for compliance, proposes a regulatory mechanism preferable to that proposed by the Government. I commend the amendments to the Committee.
§ Lord Strabolgi
I should like to support what my noble friend has said. Reference was made earlier to recent articles in The Times. The first of those articles in particular brought to light an alarming state of affairs. At the top of the article is the caption:Today fish are dying and it is not safe to eat the eels".If the rivers of this country are as good as the noble Earl pretends, why are we being asked by the Community to improve our standards?
However, the most important point in the articles, and the reason for my venturing to intervene on this amendment, was the reference made to a quotation from the Friends of the Earth. An officer of Friends of the Earth says:If the new private water companies have to improve standards, it would cost them money and make them a less attractive investment for would-be shareholders. To get round this, the Government has decided to lower the standards so that works which at present fail will be deemed to pass".The articles goes on to say:A letter from the Department of the Environment to water authority chiefs in November last year confirmed this: up to 2,300 of the 6,430 sewage works in England and Wales will be eligible to relax standards until March 1992 while the new private companies raise funds for remedial work".I wonder whether the noble Earl would like to comment on that because it seems to me to bring to light a very perturbing state of affairs. The Government are trying to do two things. First, for their self-indulgent measure of privatisation, they are trying to make the assets as attractive as possible for the investors; and secondly, after privatisation they will be able to turn round and say how marvellous it is that the rivers are much cleaner than they were before.
§ Lord Howie of Troon
I should like to support my noble friend in general terms and to agree strongly with his description of the manner in which 175 standards in the technological world are achieved. He is quite right. The standards are not as a rule the optimum standards. They are achievable ones. I dissent slightly from what he went on to say about engineers. He said that the standards were designed down and then the engineers designed down to the standards again. I anticipate what he is about to say, and I shall let him say it.
§ Lord Howie of Troon
It may have been an analogy but, whatever else it was, it was not an engineering one. Engineers design to the standards and meet them as best they can. It is correct that the standards ought to be the best possible ones. The danger of their not being the best possible ones can be shown not in analogy but in an example drawn from a wholly different field.
Noble Lords will remember a controversy a year or two ago over the design of the Severn Bridge. It was felt that the bridge had been underdesigned, and it had to be strengthened at a substantial cost of £32 million. What had happened was that the bridge had been designed to a standard which was then raised. The standard being raised, the design was inadequate for the raised condition although it was adequate for the original condition. The point which is helpful to my noble friend is that it would have been better if the first standard to which that bridge was designed had been the second one, the optimum one, if the Committee follows my meaning. Now that my noble friend and I see eye to eye on engineering matters, I should like to support him in his search for optimum standards wherever they can be reached.
§ Baroness Phillips
I should like to support my noble friend Lord Strabolgi. We must keep in mind what the Bill is about. It is about handing over water to private companies. We can dress up the clauses but that is basically what is behind it all.
"By their deeds ye shall know them". A few years ago there was a terrific 24-hour rainstorm. I was travelling back from the Isle of Wight and saw rivers overflowing. In Surrey the three rivers that overflowed first were the Wey, the Mole and—I cannot remember the third one. I had with me my brother who is a surveyor. He worked in the Inland Revenue and understood these matters. He told me that these were privately owned rivers and that the owners never did anything with them. He said that the rivers were silted up, nothing was ever done and so they were the first to flood. Perhaps flooding is not very serious but it was indicative that it was the private rivers that first of all flooded and not the rivers controlled by the authorities. We have every reason to suppose that this will go from bad to worse. One cannot get away from the fact that once there is any activity where the first responsibility is to shareholders and profit everything else has to fall into place behind that.
I am very glad that my noble friend brought us down to earth, particularly with the excellent 176 quotation from Mr. Murdoch's Times. That is not exactly a socialist publication. The Government have to be careful when they put over the argument that they are actually going to improve everything. We have no confidence in the existing private water boards.
§ 4.30 p.m.
§ The Earl of Radnor
I believe that in the final analysis it is not entirely money that is needed for putting the sewerage plant right as quickly as the noble Lord, Lord McIntosh, suggested. I am told that there is a logistical problem and that there are not the resources of engineers and plant because so much of that type of labour and executive skill is taken up by the Channel Tunnel and will similarly be taken up by the fast rail link. It is not entirely a matter of money. There are very practical considerations to be thought of.
The Earl of Caithness
These amendments concern the establishment and operation of a system of classifying waters and associated quality objectives, providing the general framework for protection and management of water quality.
The purpose of Amendment No. 361P is the first stage in the process. The amendment requires the Secretary of State within three months of enactment of the Bill to publish a schedule of the controlled waters for the purposes of the setting of statutory quality objectives under Clause 102. There are several reasons why the amendment is impracticable, unreasonable and unnecessary. First, in respect of estuaries and coastal waters, it is quite unnecessary since the scope of these waters is self-evident, or at least will be with the deposit of the maps showing the fresh water limits of relevant rivers and water courses under subsection (2). I would remind the Committee that such maps have to be deposited before the transfer date.
In the case of inland waters and ground waters, the amendment is unreasonable and impracticable. Our starting point will be the 1985 river quality survey. We shall establish statutory quality objectives for all rivers and canals covered in that survey. We recognise that it may be appropriate to draw in some of the small upland streams which feed these rivers in view of the pressures upon many of them. However, which ones can only be decided by establishing the objectives and taking account of public consultation. The same applies to other inland waters such as lakes, ponds, and, even more so, underground waters where the process of setting objectives is some distance into the future. The amendment would entail a pointless diversion from the real task of getting on with the 1990 river quality survey and the process of establishing and consulting upon quality objectives which must accompany and grow out of it.
Amendment No. 361V proposes the deletion of "may" and substitution of "shall" in respect of the Secretary of State's duty with regard to classification of water quality. We have been round this course many times before, and particularly in relation to the Bill. I repeat once more that "may" is the ordinary formulation in matters of this kind involving the 177 Secretary of State, not only in this Bill but in modern legislation generally. Were the noble Lord's party ever again to be in government—a prospect which may seem remote—I have no doubt it would follow just the same conventions. The fact is that this was a non-point the first time it was made and is even more so now.
However, having pursued this non-point, I must say that the noble Lord has managed in the same clause to come forward with another. The Secretary of State is to set classifications for rivers and estuaries "as soon as reasonably practicable". As the Government have made clear they are already working on classification proposals which they expect soon to publish for consultation. I cannot say exactly when that will be, but it will be as soon as reasonably practicable. These classifications are a key feature in the new system we have designed for pollution control. Of course we shall have them in place as soon as possible but we shall need to ensure they will be sound and effective.
I object to the amendment for another reason apart from the adding of unnecessary words to the Bill which is already quite long enough. If we insert "as soon as reasonably practicable" for the two categories of controlled waters to which the amendment refers, the implication will be that in the case of others they need not be set as soon as reasonably practicable. But of course we want to do this, although on a necessarily longer timescale because of the research required and the new issues involved.
I turn now to Amendment No. 362AAB and to Amendment No. 362DAB which is related to it. These concern the setting of water quality objectives in Clause 102 and provide that the authority rather than the Secretary of State should specify the date by which they are to be achieved, that date being as soon as the objectives can be practicably complied with.
Although the NRA's views will be of great importance in setting the timetable it must ultimately be set by the Secretary of State. The rate of improvement of water quality can have significant implications because of the scale of resources involved. At the same time, the quality objectives and the timetable attached to them will represent the fullest expression of substance of national policy for the water environment. The NRA will have a key role in advising and helping to develop it as well as in its implementation, but the decision must ultimately be with the Secretary of State and the government of the day. Any other course would clearly be inappropriate.
As to the proposal that the date for achievement be the soonest by which the authority considers compliance can be achieved in each case, I suggest that that is quite inappropriate. "Soonest practicable" makes no allowance for finance, resources or other priorities. I believe it to be fundamentally irresponsible.
This Government are committed to quality objectives which provide for the maintenance and progressive improvement of our rivers, estuaries and other waters. The dates prescribed will reflect this, 178 but I would put to the Committee that to have to achieve those objectives as fast as practicable without regard for other considerations is wholly unrealistic and unreasonable.
The noble Lord, Lord Strabolgi, said that the European Community is asking us to improve the standards of our rivers. No, it is not asking us to do that; it is asking us to meet certain standards on pollution control in common with all other countries. Every other country in the European Community has problems with its water supply and sewerage services. I am glad to record that our problems are not as serious as those of most other countries. I repeat that our record on water quality is not bettered by any other European Community country. Ninety-five per cent. of the UK rivers are of good or fair quality.
There is the important point of the application for time limited consents for sewage treatment works to cover the period while improvements are being made. We have made it clear that all applications will be advertised and that representations will be considered by the Secretary of State. There is no secrecy; it is an open process. And there is no question of relaxing standards. We are regularising current discharges while improvements take place through the time limited consents.
§ Lord McIntosh of Haringey
I regret that that answer confirms our worst fears. Those fears led us to put down the amendments. The Minister describes it as irresponsible to suggest that the date by which compliance should be achieved should be the soonest practicable date. He says that a formula of "soonest practicable date" ignores other considerations—such as Finance—which ought to be taken into account. I suggest to the Government and to the Committee that what they are ignoring are the costs not of compliance but of non-compliance, the costs of having rivers which are below the standards which we are entitled to expect in terms of water quality. There is the example of the damage which was done to the River Avon and the costs that were incurred on the part of everyone living along the River Avon. It is not just a question of amenity; economic costs are also involved. That fact is totally ignored in the Minister's formulation.
Apparently the Minister is determined to keep in the hands of the Secretary of State, whose primary objective in these matters is to secure the financial viability of the water and sewerage undertakings—let us not forget that fact; that is what the Bill is about—not only the quality standards themselves, but the timetable for compliance with them. That is why I proposed to the Committee that we needed a general duty to maintain and improve the quality of our rivers. However, the Government rejected that idea. We are now seeing the effects of that rejection. It is now apparent not only that the standards are to be not objective but: political, but also that the timetable for their achievement is to be not objective but political.
The resolute rejection of the costs of non-compliance and the concentration only on the financial costs to the shareholders of the new companies of putting matters right, as they will be 179 responsible for that, is simply not acceptable to us. I believe that the Minister had some valid points about the detailed wording of the amendments and it is on that basis that I do not propose to pursue them. However, the fundamental point we are making is that the authority should be responsible for this matter and not the Secretary of State, and that there should be none of the relaxation of standards which, in effect, is taking place now. I noticed that the Minister did not deny any of the examples I gave. That is evidence that not all is well and that this matter will have to be debated again and put right when it comes before the Chamber on Report. In the meantime, I beg to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Addington moved Amendment No. 361Q:
§ Page 110, line 15, leave out ("subject to subsection (5) below)").
§ The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 361R, 361S and 361U. Effectively, these amendments seek to bring those landlocked water areas, that is ponds and lakes, within the same basic framework as a pond or a lake which happens to be connected to a free flowing river. At the moment, the landlocked ponds and lakes are excluded.
§ I wish to draw attention to the fact that landlocked ponds and lakes can be very important parts of the natural environment. Indeed they can provide a unique habitat for various types of fauna and flora and various types of aquatic and bird life. As they represent such a unique habitat, I suggest that it is not unreasonable to place them within the general responsibilities of the NRA and to give them the kind of protection to which they should surely be entitled.
§ Amendment No. 361R excludes such deliberately created refuse ponds as slurry ponds or pools and sewage tanks, so we shall not have the problem that certain kinds of ponds which are specifically designed for dispensing with effluent will be brought within the provision. Therefore, we shall avoid any completely ridiculous compensations.
§ If we are to give the environmental considerations their full weight, these landlocked water areas which form a very important part of our natural environment, especially for certain types of plants and animals which like to live within still waters, should be given as much protection as possible. I beg to move.
§ 4.45 p.m.
§ The Earl of Arran
On this particular amendment it is necessary to give the noble Lord, Lord Addington, rather a fulsome answer, the content of which I hope he will find agreeable.
The Bill, as drafted, brings within the definition of "controlled waters", and hence subject to the pollution controls in the Bill, those lakes and ponds which discharge into rivers, streams or other lakes. In other words, those which are part of the river system. Those lakes and ponds are subject to the full range of pollution offence controls in Clause 104.
180 Those lakes and ponds which are enclosed and do not discharge are not at present within the definition of relevant lakes or ponds and are not subject to certain of the offence provisions. It is an offence to discharge trade or sewage effluent into them, but they are not subject to the offence covering casual entries of polluting matter or solid waste matter in Clause 104(1)(a).
In dealing with ponds we really do approach the outer limits of what is reasonable and practicable in pollution control. The effect of this amendment would be to bring every small ornamental pond in suburban front gardens under the scope of these offence provisions in all respects—in particular spasmodic entries of polluting matter. More importantly, we would have the most serious problems identifying what the offences applied to because the boundary between a pond and a large puddle which comes and goes with the seasons is often hard to discern. This does not matter with the offence of discharging trade or sewage effluent, where we have included such ponds, because the same offence provision applies to discharges to land. But we would have serious problems in the case of spasmodic entries of polluting matter.
For these reasons, we really do not believe it is feasible to bring all ponds within the definition of "controlled waters", and subject them to the full array of offence provisions and pollution controls. Even the amendment points to some of the difficulties, in specifically excluding ponds constructed to receive agricultural wastes. But, there are very many categories of pond which are designed for the reception of industrial waste also, notably mining effluents.
Faced with these difficulties, we propose what we believe is the most realistic solution. The Secretary of State is given a power by order to bring any category or description of ponds within the definition of "controlled waters", and then subject them to full control. That is the flexible system which will allow us to apply the controls in this Bill selectively, as need requires and as practicality allows. I suggest that this order-making procedure will allow the proposers' basic objectives to be met, but without the severe practical difficulties which would result from adoption of this amendment. With those words, I hope that the noble Lord, Lord Addington, will feel able to withdraw the amendment.
§ Lord Addington
Although I appreciate that there would be considerable difficulties with this provision, I wish to point out that by a pond I mean something which contains a considerable ecosystem. I do not mean the glorified puddle with two carps sitting in it that occurs in many suburban back gardens. Although I accept that it is quite possible that this amendment may be drawn far too widely, I wish to press the Minister a little further. I hope that he can give me a more specific and possibly more direct assurance that these vital parts of the rural environment will be given more protection in future.
§ The Earl of Arran
I hoped I had given a sufficient assurance to the noble Lord. I do not think I can go further and add to the assurance I have given him. I repeat that the Secretary of State is given a power by order to bring any category or description of ponds within the definition of "controlled waters", and then subject them to full control.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 361R to 361U not moved.]
§ Clause 100 agreed to.
§ Clause 101 [Classification of quality of waters]:
§ [AmendmentsNos. 361Vand36IWnot moved.]
§ The Earl of Cranbrook moved amendment No. 362:
§ Page 111, line 1, after ("purposes") insert ("including nature conservation").
§ The noble Earl said: I note that Amendment No. 362 has been—quite correctly—grouped with others which other Members of the Committee are to move. They are all concerned with one issue; namely, to require the Secretary of State to consider biological criteria when prescribing a system of water quality classification.
§ Unless nature conservation is considered in the setting of water quality standards, wildlife will receive inadequate attention in the setting of such standards. Clean, good quality water is characterised by containing a rich and diverse wildlife. There are a great many important plants, animals and smaller organisms of high conservation value which can only be protected by the setting of appropriate water quality standards, and which themselves are of value in setting those standards and are key indicators.
§ It has clearly occurred to a number of Members of the Committee that there are different ways of requiring the Secretary of State to pay consideration to those important facts. The amendment which I propose is intended to have that effect. I beg to move.
§ Lord Addington
I wish to speak to Amendment No. 362ZA, which stands in my name and which is grouped with that of the noble Earl, Lord Cranbrook. The purpose of the amendment is to ensure that all those who have an interest in or knowledge of a particular waterway will be consulted. That would not be limited to those who have an interest in wildlife and the environment, although that is of prime importance, but would include sportsmen—those interested in yachting, boating or angling. They should also be consulted. I should like to support the amendment moved by the noble Earl.
§ Lord Moran
I should like to say a word about Amendment No. 362A which stands in my name and which is grouped in this series of amendments. Before I do so I should like to say that I fully support Amendment No. 362 moved by the noble Earl, Lord Cranbrook, and Amendment No. 362ZA in the name 182 of the noble Lords, Lord Addington and Lord Ross of Newport.
It seems to me to be very important that if one is to classify rivers one must do so not solely on the basis of chemical monitoring; one must also monitor the effect on the biota—namely, changes in species diversity and numbers. It is not just the chemical and physical content of the water that should concern us: we should also ensure that the quality of water in the field is satisfactory. We should monitor fish populations and invertebrates.
Fish are one of the most sensitive monitors of water quality. I listened at lunchtime to the news and heard a representative of South-West Water talk about the latest unfortunate incident which occurred about three weeks ago when, owing apparently to lack of proper supervision, five tonnes of aluminium sulphate were released into a tributary of the River Torridge at Bideford with veny damaging environmental consequences. The first sign of that was the appearance of dead fish.
The present water quality classification relies heavily on a limited set of water quality parameters which do not necessarily reflect the biological realities. We must consider the problem of the accumulation of pollutants in living organisms. I am told that, for example, the concentration factor for PCBs from water to carnivorous mammals may be as high as 10 million. It is therefore increasingly recognised that water quality standards for pollutants should be set mainly on the basis of the pollutant's toxicity, persistence and ability to accumulate in food chains. I believe that important pollutants such as nitrates and phosphates are not given the priority that they should be.
Some time ago the Nature Conservancy Council proposed criteria for phosphates, nitrates and suspended solids for a new classification and submitted them to the Department of the Environment. I should like to ask the Minister what has happened about the proposals.
I believe that all of us who are moving these amendments are agreed that biological criteria should be used. I hope that the Government will agree.
§ Lord Hesketh
These amendments are designed to allow the water quality classifications under Clause 101 to provide for the needs of nature conservation, thereby allowing the objectives, which will be set under Clause 102, to include conservation goals.
Clause 101 as drafted, already does what these amendments are designed to do. Thus, though Amendment No. 362 amends subsection (2)(a) to provide that nature conservation can be one of the purposes for a classification, that subsection as currently drafted in fact in no way excludes conservation, or indeed anything else, from the possible purposes to be covered by a classification. Again, Amendment No. 362A, by adding a new subsection designed to allow classifications to include requirements about the biological as well as the chemical characteristics of water and to take account of the needs of nature conservation adds nothing to subsection (2) as currently drafted.
183 Subsection (2) is already drafted in the widest possible terms. Furthermore, the use made by the Secretary of State of these wide powers to frame classifications will be subject to parliamentary approval. For those reasons we believe that these amendments should not be adopted.
However, behind these amendments I recognise a real and important issue. Will nature conservation be included as a goal in the statutory quality objectives which will be framed in terms of the classifications? The answer is yes. We have already had discussions with the Nature Conservancy Council on how best to do this. There is no simple method, as what may be good for one type of conservation site may be damaging for another. However, we have no doubt that our discussions with the council will produce a generally acceptable means of setting objectives designed to promote conservation.
An example of that is the matter which the noble Lord, Lord Moran, drew to the attention of the Committee concerning the criteria for phosphates, nitrates and suspended solids. We are looking carefully at the NCC's proposals for those criteria and we are sympathetic to them. However, we believe that they will have to be applied on a variable basis and we are now looking at how that should be done.
Whatever the detailed mechanisms we finally adopt, it is our firm intention that water quality classifications should take full account of flora and fauna and biological criteria. The Bill as drafted provides fully for this. In the circumstances I hope that the proposers of the amendments will agree to withdraw them.
§ Baroness White
Can the noble Lord indicate what objection the Government have to mentioning the Nature Conservancy Council specifically? It is all very well to say that they are having nice cosy talks at the moment, and I am sure that the present occupants of the Government Front Bench are on the closest and most friendly terms with the Nature Conservancy Council. That does not mean, however, that that situation will necessarily continue for the foreseeable future.
If I were the chairman or a member of the staff of the Nature Conservancy Council I should feel very much happier if there were some specific reference to consultation with the appropriate body, which in this case is the NCC. The Government may wish to add others or may say that to name one may look as if one is excluding others.
However, the Nature Conservancy Council has particular responsibility in the areas which have been of concern to the noble Lords who have spoken to this group of amendments. I do not believe that it is at all satisfactory simply to indicate that Clause 101 as now drafted does not exclude consultation or the inclusion of various desirable objectives or criteria. It is a fairly comprehensive and wide open clause. But that does not mean that it confers upon a body like the NCC the right to be consulted or the right even to make direct approaches to a Minister on the matter.
§ Lord Hesketh
I have tried to make it as clear as possible that the object of drafting subsection (2) in the widest possible terms was in order to exclude no one. It is a different approach to finish up with the same answer.
The Earl of Cranbrook
While my noble friend was speaking the first time, I made a mental note that not being excluded is not the same as being included. If we were to give a ball tonight there would be a rather different guest list. I do not see the harm of "including nature conservation", as proposed in my amendment, if it is already intended to be included in the broad range of points to be considered. I heard my noble friend say that, ultimately, the schemes on which the Secretary of State's criteria will be based will be subject to approval in Parliament. I thought that that was an important point. I hope that the Minister might consider that to put in the words "including nature conservation" is not impossible. Perhaps I should give him time to consider the issue. For the time being, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 362ZA not moved.]
§ Lord Moran had given notice of his intention to move Amendment No. 362A:
§ Page 111, line 10, at end insert—
("( ) Specific requirements may also take into account biological as well as chemical criteria, and also the needs of nature conservation.").
§ The noble Lord said: I am grateful for what the Minister has said and substantially reassured by it. I should like to study carefully what he has said in Hansard, but I shall not move the amendment.
§ [Amendment No. 362A not moved.]
§ Clause 101 agreed to.
§ Clause 102 [Water quality of objectives]:
§ [Amendment No. 362AAB not moved.]
§ 5 p.m.
§ Lord Graham of Edmonton moved Amendment No. 362BAB:
§ Page 111, line 19, at end insert—
("(1A) In establishing the water quality objectives for the purposes of subsection (1) above the Secretary of State shall first consult and take account of the views of all district and county local authorities in whose area the waters are situated in whole or part and of the Nature Conservancy Council.").
§ The noble Lord said: I rise to move Amendment No. 362BAB standing in the name of my noble friend Lord McIntosh of Haringey. This amendment provides that, in establishing water quality objectives, the Secretary of State shall both consult and take into account the views of district and county local authorities in whose areas the waters are situated. The consultation is also to be extended to the Nature Conservancy Council. We hope that the Government will have little difficulty in assuring the Committee that those consultations will be undertaken. If the assurance is given, there is no need for that provision to be written on the face of the Bill. In respect of the Nature Conservancy 185 Council, that provision will be of particular importance where water passes through or has an ecological impact upon sites of special scientific interest in relation to which it already has a role in Clause 9. The argument for local authorities is a general one in respect of planning issues regarding the general amenity of the area, local recreation and public health.
§ We heard some valuable comments from the noble Lord, Lord Nugent of Guildford, in an earlier debate about quality of river water, to the effect that, as great as the ambitions might be and as great as the powers might appear to be, there is still an enormous gap between the will to see that matters are put right and the ability of those with the power to put them right to do so. I do not wish to use pejorative phrases, but the sad fact is that if, even now, with objectives set and with a form of legal power, people can still deny, delay or defer, we should imagine what they can do without a Bill of this kind and the sort of powers that we are seeking to include in it.
§ We know that the river is part of our natural environment. The Minister certainly does not need any lessons from me in that respect. He is satisfied that, as concerns quality, however it has been achieved—he will take some credit for that—we are getting it about right. It is still not wholly right; there are still some steps to take. I believe that the public is more environmentally conscious now than it has been for a long time. That has been caused by government action—and sometimes by government inaction—by EC inertia, EC directives and the consequences of not being diligent, as for instance in the terrible tragedies in the South-West and other places.
§ We are therefore knocking at an open door in wanting to bring more people into the consultation process. We are certainly not talking about powers, vetoes or demands. As a local government man in a previous incarnation, I can assure the Minister and his advisers—if they needed to be assured—that, in a busy and full agenda, one will always find local councillors and local council officers willing to play their part in providing advice, intelligence and expertise. Local authorities are the repositories of a great deal of valuable data, history, background and, above all else, pride in their localities. With no disrespect to the Minister, I believe that no Minister in Marsham Street can possibly be as keen to ensure that a little local patch looked after by a council is well kept. The Minister can be proud of wanting to keep Britain green, or make it greener, but it depends upon people in the localities.
§ This amendment seeks to persuade the Minister that, if the words are not written on to the face of the Bill, steps can be taken to involve the little people at local level. I beg to move.
§ Lord Ross of Newport
Before the Minister responds, I am sure that, when the noble Lord, Lord Graham of Edmonton, pays tribute to the people who alerted us to the problems of the environment, he will include the voluntary bodies. They have done the major job of alerting us to such problems as those that exist in the noble Earl's homeland of Caithness. There are many problems all around the 186 country. There are problems with fish farming, particularly in Scotland, and problems in the heathland of Dorset. Those are the people who have alerted us to what is going on in the environment.
The Earl of Caithness
The noble Lord, Lord Graham of Edmonton, said that he was knocking at an open door. I suggest that he should come right in and join us because we are already going for the widest possible consultation procedures by requiring the Secretary of State to publish his proposals and consider objections. We want to take the views of local authorities and of the NCC into account, but I must reject the amendment because it does not go wide enough. We should prefer it to go much wider. Of course, those are important views, but other bodies also need to be included in order to play a full part in the procedure. That is taken care of in the Bill.
§ Lord Graham of Edmonton
Is the Minister saying that there is no need for the amendment, not only because it is not as comprehensive as it should be, but also because, even if it were more comprehensive, the matter is already taken care of in the Bill? We say here that, when the water quality objectives for the purposes of subsection (1) are created, the Secretary of State shouldfirst consult and take account of the views of all district and county local authorities".Is the Minister saying that the intention is already written into the Bill that the Secretary of State shall first consult not only with those people but with a wider tranche of bodies? If he speaks to me in those terms, I shall withdraw the amendment.
The Earl of Caithness
Yes, that is what I was saying—that procedures are written into the Bill which do exactly what the noble Lord wishes.
§ Amendment, by leave, withdrawn.
§ Lord Graham of Edmonton moved Amendment No. 362CAB:
§ Page 111, line 24, at end insert—
("and such requirements shall as a minimum—
- (i) specify that the existing water quality objectives shall be maintained; and
- (ii) if such objectives are not such that the waters of a description prescribed for the purposes of section 101 above are not capable of self-purification, leading to a measurable improvement of water quality, then those objectives shall be established as to achieve that end.").
§ The noble Lord said: I should like to speak to this amendment which is in the name of my noble friend Lord McIntosh. I am quite certain that the Minister will be able to pre-empt the spirit of this amendment. We seek to ensure that at least the existing water quality objectives should be maintained.
§ By way of background to this amendment I should mention that the Environment Committee of the House of Commons which reported on the pollution of rivers and estuaries identified a decline in water quality. The Minister told us in context that following that period there had been an 187 improvement. I remind the Committee that there are four classes into which rivers are graded on the basis of an analysis of a number of criteria, including the chemicals which they may be carrying. My noble friend Lord McIntosh gave the Committee a number of sad illustrations of the way in which existing river quality objectives have declined. More appropriately, perhaps I ought to refer to the remarks of the noble Lord, Lord Nugent—and I pay tribute, as do all other noble Lords, to his integrity and his determination to fulfil his responsibilities—that despite those objectives, although not impossible, it was becoming increasingly difficult to see them implemented and maintained.
§ Even the existing water quality objectives have not been maintained. There is some dispute over the extent to which we have been successful in achieving as near to 100 per cent. as possible. The figure that I have been given is 90 per cent. whereas the Minister gave a figure of 95 per cent., so the information that I have is not as complimentary as his. I am prepared to accept that my sources are not as up to date as his, but that is the figure that I was given.
§ We are aware the biggest problem comes from pollution which is mainly of an industrial nature and from sewage treatment works which in one way or another have failed to ensure that standards are maintained. If the Minister can assure me that the first aim of my amendment; namely, that the existing water quality objectives at least will be maintained—and my noble friend Lord McIntosh has said more than once that they should not just be maintained and implemented but should be extended and improved—then none of us will be silly enough to say that the aims of the Bill have to be implemented immediately. The Minister should address himself to the spirit of the measure. He should act in the spirit of the general fabric of our discussion on pollution. I beg to move.
§ Lord Norrie
It would appear that my amendment, Amendment No. 362AB, would have a similar effect and I therefore support the amendment tabled in the name of the noble Lord, Lord McIntosh of Haringey. I should like to make the point that we must not allow new objectives brought in by the Secretary of State under this legislation to be less stringent than those that exist already. The opening to the first sentence of Clause 102 reads:For the purpose of maintaining and improving the quality of controlled waters".That makes it clear that this clause is concerned with improving water quality. Clearly it would be very much against the spirit of the legislation if, for whatever reason, the Secretary of State was able to lower existing objectives. Even if they cannot be improved, current objectives should at least be met and maintained.
This amendment would have the effect of harmonising United Kingdom legislation with that of the European Community and in particular Article 8 of Directive 78/659 on the quality of fresh waters needing protection or improvement in order to support fish life. That article states that the implementation of the measures taken pursuant to 188 this directive may on no account lead either directly or indirectly to increasing the pollution of fresh water.
I am sure that this Committee will agree that it should be the objective of any legislation on water to strive to reduce pollution and improve the quality of all surface waters whether or not they are designated as fisheries under this directive. This issue is of particular concern to anglers who have a very close interest in maintaining and improving water quality. But all of us who are concerned about the environment should be keen to improve water quality. I hope that the Minister will carefully consider this amendment, which has not been put forward on any party-political basis.
§ 5.15 p.m.
§ Lord Addington
I should like to add my support for this amendment. Amendment No. 362ABA says virtually the same thing as the amendment that we are now discussing and I should like to follow the lead of the noble Lord, Lord Norrie, by entering the discussion at this point. Briefly, I too regard the present classification as being the acceptable minimum at the moment. Any change in the water standard should be a positive one. We should not allow any degradation in the levels of water quality.
The Earl of Caithness
I am grateful to my noble friend Lord Norrie for speaking to his amendment. Both these amendments, as he rightly said, cover the same point; namely, they seek to debar the Secretary of State from using his power to review objectives so as to replace an existing statutory water quality objective by a weaker one, specifying a lower class of water as the goal, and to require self-purification as an aim.
We agree wholeheartedly with the underlying motive for the amendment; namely, that the objectives should not provide for an actual deterioration in water quality and that the quality objective system should be used for the progressive improvement of water quality to which this Government—and I believe this Chamber—are committed. This is something which has already been secured by the opening words of Clause 102(1) which state that the power to set and review objectives is to be used:For the purpose of maintaining and improving the quality of controlled waters".However, I suggest to the Committee that the precise wording of the amendment is unrealistically rigid. Perhaps the Committee will permit me to give a few illustrations. Sometimes there may be major catchment improvement programmes. The massive current investment programme on the Mersey is a case in point where integrated improvement programmes for the overall catchment may entail that, as particular works are commissioned and de-commissioned, some short-term lowering of standards on particular stretches may be an inevitable step towards the achievement of longer term goals. There can be cases in which short-term lowering of objectives for five years for a particular stretch of river may be the inescapable consequence 189 of the effective management of a 10- or 20-year improvement programme for an overall catchment.
I suggest that it would be quite unrealistic to impose tight restrictions in the legislation which rules out occasional local variations of that kind. While we are on the subject of the Mersey, I think that it is worth reminding the Committee—and I hope that I am correct in using these figures since I speak without having the information to hand—that the Mersey project is a £4 billion project over some 25 years. So it is a massive long-term programme to improve the waters quite substantially. However, during that period there may have to be times—very short periods—when the objectives for certain stretches of water are reduced in order that the overall programme can continue and we achieve the result that we all want at the end of the day.
Pollution accidents may make an objective effectively unattainable over the period stipulated. Equally, hydrological conditions can change in unforeseen and unforeseeable ways. Frankly, there may be circumstances—although we would expect them to be very rare—where stated objectives for perhaps five years ahead may have inescapably to be adjusted downwards because of unforeseeable changes in circumstances while the problems are tackled. I do not think that that is totally unreasonable.
I suggest that we must not place on the Secretary of State and the NRA an impracticable straitjacket. It is surely the right approach to do what the Bill does: to require that the Secretary of State be guided in his setting and review of objectives by the overall aim of maintaining and improving water quality but to accept—and the amendments do not do so—that in cases it may be right and perfectly consistent with that overall objective to leave some scope for accepting lower objectives consistent with that general policy in special circumstances for particular periods of time.
On the objective of self-purification, we accept that that will usually be appropriate. However, the time taken to achieve it may not be capable of specification. We need to attach realistic time-scales to objectives if the system is to operate effectively. Further, I cannot give the Committee the assurance that it will in all cases be a practical objective capable of realistic achievement. For that reason, we should not add this obligation to the Bill. I believe that the terms we have in the Bill are right. The Secretary of State is required to exercise all his powers for the maintenance and improvement of water quality. That is already a formidable obligation on him.
I should like to refer to the point the noble Lord, Lord Graham of Edmonton, raised about the 95 per cent. The 95 per cent. is the UK figure; the 90 per cent. is the England and Wales figure. We were both right.
§ Lord Graham of Edmonton
I am always grateful for such acknowledgment. I know that the Minister is invariably right on questions of facts from the Ministry. However, he has certainly resolved a puzzle in my mind.
190 I am satisfied to withdraw my amendment on these grounds. The amendment seeks to strengthen the hand of the Secretary of State. However, the Minister is saying this. The Secretary of State has these powers. There will be times when he wants to give other people some flexibility to achieve the objective within the overall aims. The proof of the pudding will be in the eating. In five years' time, if this Bill becomes an Act in its present form and things go wrong as a result of people getting away with things or being lax, the public will not be looking ultimately to Acts of Parliament or to individuals. They will say that the Government—the Secretary of State—have failed to protect them.
I accept the point that the Minister is making. One can go only so far in such a massive Bill. The Minister has assured me that it is the intention of government and of the Secretary of State to ensure that the standards that were in place before the Bill becomes an Act at least will be maintained and improved. That is the objective. The Minister nods his head. I am satisfied with what he has said. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 362DAB, 362AB and 362ABA not moved.]
§ Clause 102 agreed to.
Lord Ross of Newport had given notice of his intention to move Amendment No. 362AC:
Before Clause 103, insert the following new clause:
("General duties in respect of controlled water.
§ The noble Lord said: This amendment is very similar to the one that we debated at the beginning of our proceedings today. I do not intend to bore Members of the Committee by going through that discussion again. I intend to study very closely in the Official Report what the noble Earl said.
§ On this occasion I merely say to him that if he will give as much attention to his duties to improve the quality of rivers as I am sure he will give to saving the African elephant, we shall all be very pleased. I do not intend to move the amendment.
§ [Amendment No. 362AC not moved.]
§ Clause 103 [General duties to achieve and maintain objectives etc.):
§ Lord Ross of Newport moved Amendment No. 362B:
§ Page 112, line 11, after ("state") insert ("and of the Director").
§ The noble Lord said: With this amendment, I speak to Amendments Nos. 362C, 362CA, 362CB and 362D. Amendment No. 362B seeks to include the director general as well as the Secretary of State 191 under the duties which they are both supposed to perform. Amendment No. 362CA replaces the negative duty of monitoring the extent of pollution with a positive duty to monitor for water quality, and in particular extends the duty to the consideration of natural contaminants—pollution being regarded as a man-made phenomenon—and to look at other changes in its quality.
§ Amendment No. 362D deals with the riparian owner who pollutes. Perhaps I may go into this in a little more detail. I am told that in common law a landowner whose land is situated on the banks of a river can discharge effluent into it. If he does so in the same way for more than 20 years he can acquire a legal right to pollute that river even if it adversely affects owners further downstream. These rights are subject to the statutory controls imposed by the Control of Pollution Act 1974, and now by Clause 104 of this Bill.
§ If a consent is granted for less pollution than he has been discharging, he must comply with it. His common law right will be no defence in a criminal case. Therefore many of these rights will have no effect. However, some still exist, either because they are not considered important or for some other reason. In these more environmentally conscious days, the existence of these rights is no longer relevant. It encourages people to pollute rather than to take pollution control measures. I suggest to Members of the Committee that these rights should be abolished. I beg to move.
§ Lord Gallacher
Amendment No. 362CB, standing in the name of my noble friend Lord McIntosh of Haringey, is grouped with these other amendments. It may be for the convenience of the Committee if I say a word about it now.
Amendment No. 362CB builds on the duty of the National Rivers Authority established in Clause 103(2) to monitor the extent of pollution in controlled waters after the objectives have been set for different classifications under Clause 102. The amendment suggests that in addition to monitoring pollution, the National Rivers Authority should also have a role in monitoring compliance in achieving these objectives within any time-limits set out in Clause 102.
The amendment provides a further opportunity for the Government to state their position as to the likely timetable for achieving water quality objectives. That is clearly as essential an element in a successful programme as the setting of the objectives themselves.
With this amendment the limited proposal is made that where any timetable has been established by the Secretary of State, the authority should have the day-to-day role of monitoring compliance with the deadlines under Clause 103. We believe that it is a logical way of strengthening Clause 103. The clause is intended to give the Secretary of State and the authority duties to ensure that the water quality objectives are achieved. The authority is given the day-to-day functions. There would seem to be little point in monitoring pollution, assuming that the 192 intention is to undertake a programme of improvement, without setting out some form of timetable within which such improvements are expected to take place. Where any such timetable is established by the Secretary of State, whether at the outset or in succeeding years as the need becomes more apparent, the amendment states that it should be clearly the authority that has the role of measuring its progress.
I believe that with those remarks I have said enough to elicit what I hope will be a sympathetic reply from the Minister.
§ 5.30 p.m.
§ Lord Somers
I am speaking to Amendment No. 362CA only. I believe that it is a reasonable amendment. We all know that, apart from pollution, water has contents which affect its quality; for example, calcium, magnesium and so forth. A proportion of those contents would affect the quality of the water, quite apart from any pollution involved.
§ Lord Hesketh
The amendment refers to Clause 103, which places a general duty on the Secretary of State and the NRA to use all their powers to achieve water quality and to monitor the quality of controlled waters.
Amendment No. 363B seeks to extend to the director the duty of the Secretary of State and NRA to exercise all their pollution control powers to secure, so far as it is possible to do so, that the water quality objectives set out under Clause 102 are achieved. Amendment No. 362C seeks to extend the powers to be used for this purpose to include not only the powers in Part I of Chapter 3 but all their powers in the Bill.
The two amendments are closely linked in that, since the director general has no pollution control powers, extension of the duty to him depends upon the widening of the powers in the Bill to be used for this purpose beyond those simply for pollution control. I will nevertheless deal with the amendments separately and on their merits.
Let me deal first with extension of the duty to the director general. I suggest that placing direct environmental obligations upon him would compromise the clear and balanced structure of the legislation. His role is to deal with the financial regulations of the companies and the protection of the consumer. Environmental standards and policies are for the Secretary of State and the NRA.
That is not to say that the director general is not involved in the implementation of environmental goals, but his involvement is indirect. He has to secure that the companies duly perform their duties and functions and are able to finance their performance. He must ensure that environmental costs are properly carried. The proposals in the Bill already secure this. There are appropriate environmental obligations for the director general but they are necessarily indirect and second-order.To give him direct environmental responsibility in parallel with the Secretary of State and NRA would cause muddle and confusion and weaken rather than strengthen the different but complementary roles of 193 all three. I could go so far as to say that it would muddy the waters!
Let me turn now to the proposal that the Secretary of State and the NRA should be obliged to exercise all their powers in the Bill to achieve the quality objectives rather than just those related to pollution. That possibility was the subject of long and careful consideration; but on balance our conclusion was that it would not be sensible or helpful.
The basic consideration is that we believe that it would cause distortions in decision-making. There are two aspects of this. First, the various powers related to the different functions of the NRA are there to achieve the purposes of those functions. Fisheries powers are for the improvement of the fisheries, land drainage powers for land drainage purposes, and so on. It could complicate the performance of those functions if the powers had at the same time to be used for the reduction of pollution; but in any case, the second consideration is that this position would be unsatisfactory in pollution control terms. We expect pollution control powers to be used to reduce pollution. If the NRA had an obligation to use the other powers for pollution control, it could well decide to avoid the vigorous use of pollution controls, which is the proper way to tackle pollution problems. The costs of controlling pollution could then be passed on to others rather than rest with those causing the pollution or benefiting from its control.
Our conclusion is that pollution should be controlled by the vigorous use of pollution powers. The NRA can, and no doubt will, exercise its other powers and functions in a manner compatible with effective pollution; but we believe that it would be inappropriate for the Secretary of State and NRA to have to apply their other powers and functions to this purpose, in spite of the importance that we attach to it.
Clause 103(2) places a general duty on the NRA to monitor controlled waters. This is a new obligation which is not included explicitly in current legislation in respect of the water authorities and we attach great importance to it. I shall deal with the two proposed amendments separately.
Amendment No. 362CA proposed that duty should be expressed as "monitoring the quality of controlled waters" rather than "monitoring the extent of pollution in". We do not accept this amendment because we believe that it could narrow the terms of the provision. Monitoring quality is vague and unspecific. By contrast, monitoring the extent of pollution will require the NRA to identify the presence of polluting substances and their degree of prevalence. That surely is what is required, as I believe the proposers will agree.
Amendment No. 362CB would require specifically that the NRA monitor compliance with time limits for achieving water quality objectives under Clause 102. This amendment is unnecessary.
The monitoring duty in Clause 103 is in respect of the authority's functions under the Bill. It is one of its functions to exercise its powers to achieve the quality objectives in Clause 102. An obligation on the NRA to monitor water to determine how far 194 the objectives are achieved is therefore already an inescapable aspect of Clause 103(2). So far as timetables are an essential aspect of the objectives, they are also covered. Moreover, so that their monitoring obligations can be discharged, Clause 101 provides that the Secretary of State may specify in the water quality classification regulation the sampling requirements for determining whether quality objectives have been achieved.
I turn finally to Amendment No. 362B, which raises a more general point. The purpose of the amendment is to provide that, apart from as provided in the Bill, no right to pollute water shall be lawful. The Control of Pollution Act now, and the Bill in due course, provides a full and effective framework for the regulation of pollution. Clause 104 contains a comprehensive list of offences to which Clause 105(1) provides limited defences. They are all cases where in one form or another the extent of pollution permitted is subject, or has been subject, to regulation.
I have listened with interest to what Members of the Committee have said. We shall look with interest at the points that they have made. In the light of the clarification and assurances that I have given on each of the amendments, I hope that the noble Lords will find it possible not to move their amendment.
§ Lord Gallacher
I thank the Minister for his response to Amendment No. 362CB. The gist of what he said appears to be that the amendment, as it stands, is unnecessary and that we should be well advised not to move it. In a sense, that is a reassurance. I hope that the Minister will not take it amiss if I say that I shall study his reassurance in the Official Report with a view to deciding whether it is a complete reassurance. If necessary, we can come back to it at a later stage. Meanwhile, I do not propose to move the amendment.
§ Lord Ross of Newport
I thank the Minister for his interesting and informative response. Like the noble Lord, Lord Gallacher, I want to study it. I believe that it was helpful. I also welcome the Minister's assurance on Amendment No. 362D (the role of the riparian owner) that he will look at the point to see whether there is a gap in the common law and that someone might have the right, despite all the controls in the control of Pollution Act and in the Bill, to evade the controls which we all desperately want to see imposed. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 362C to 362D not moved.]
§ Clause 103 agreed to.
§ Clause 104 [Offences of polluting controlled waters etc.]:
§ Lord Addington moved Amendment No. 362DA:
§ Page 113, line 9, at end insert, ("or (aa) the Authority in an emergency, has served notice on that person prohibiting him from making the discharge;").
§ The noble Lord said: The aim of the amendment is to give the authority power to make a rapid response to what it judges to be an emergency. The 195 reasoning behind it is that quick and comprehensive action can be far better than any cure. It would allow an authority, for example, if it found that a farmer had placed a large amount of raw silage on land and had dug a channel leading to a river course, to order the removal of the liquid from the silage. The provision would allow the authorities to make an immediate order stopping him from allowing the fluid to run into the water.
§ Under the current situation, the authority would have to give three months' notice. By then, even though an offence would have been committed under Clause 104(1)(a), the offence would still be committed, because nothing could have been done in time to prevent it being committed. I suggest that the amendment is designed to be helpful because it would give powers for quick action to prevent any damage occurring. I beg to move.
§ Lord Renton
I hope that my noble friend will give sympathetic consideration to the amendment, unless he can give very strong reasons for saying that it is not necessary. If Members of the Committee look at the earlier paragraphs of the subsection, they will see that:the Authority has given that person not less than three months' notice prohibiting him from making",the discharge or continuing it and certain other circumstances. For example, in paragraph (c) it says:the effluent or matter discharged contains a prescribed substance or a prescribed concentration of such a substance".In passing, perhaps I may say that it seems to me as though it ought to be "proscribed", which means "forbidden". That is what the Government are trying to do—to forbid particular substances from being discharged. Therefore I think that in any event that paragraph should be looked at. However, I realise that that is a point outside the amendment and I make it only in passing.
It would be absurd if the authority came to hear that it was intended to discharge something really damaging into controlled water and then found that it had to give not less than three months' notice to stop it. That would be absurd. So we must have some way of dealing with emergencies.
The Earl of Caithness
I have to say to my noble friend Lord Renton that I have no strong reasons for resisting the amendment. In fact, I think it is rather a good one and that the noble Lord, Lord Addington, had some good points when he moved it. If he will withdraw the amendment perhaps he will please accept my assurance that I should like to consider the wording of the amendment with a view to coming back at a later stage to meet the noble Lord's concern.
§ Lord Renton
Before the noble Lord replies to that splendid invitation, may I ask my noble friend whether he will bear in mind the sense of using the word "proscribed" rather than "prescribed"? I know that "prescribed" is something described in regulations, as a rule, but it also means "recommended", like a doctor's prescription. Here we really need "proscribed", I think.
The Earl of Caithness
I shall do more than bear it in mind. I shall ask those who advise me to look at it.
§ Lord Addington
As the Minister has given such a favourable response and his assurance that he will take action along these lines, I can do nothing other than to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.45 p.m.
§ Lord Ross of Newport moved Amendment No. 362E:
§ Page 113, line 39, at end insert—
("(6) For these purposes of subsection (5) above it shall be a separate offence for a person to contravene each condition of a consent that relates—
- (a) to any substance specified in List I or List II in the Annex to EC directive 76/464/EEC; or
- (b) to the temperature of the discharge; or
- (c) to the volume of the discharge; or
- (d) to the amount of suspended solids in the discharge.").
§ The noble Lord said: I think I would be better off if I left everything to my colleague on this Bench! The amendment takes a little further the principle of the polluter pays which I hope will also meet with a gleam in the eye of the noble Earl. I understand that in a recent case a polluter was charged with an offence under what would now be Clause 104 of the Bill. He breached a number of conditions in his consent, but in fact he could only be found guilty of one offence. The case I refer to was the Severn and Trent Water Authority v. Express Foods Group Limited. I gather it took place in the Divisional Court on 19th October last year.
§ The amendment sets out to remedy that situation, not—I hasten to say—by making the breach of each condition an offence, but by singling out the most important ones. We list four in the amendment. If the amendment were to be passed, it would mean that a polluter who breached, say, 10 conditions of his consent, five of which were within the list contained in the amendment, would be liable to fines of up to £ 10,000, instead of only £2,000 as at present. I beg to move.
§ Lord Swinfen
I am just wondering what the position would be if there were some serious change to the directive mentioned in the amendment. Perhaps it ought to be redrafted in such a way that it does not refer to a particular directive or annex to it. What happens if it is all changed?
The Earl of Caithness
When I first looked at the amendment, I thought it looked rather attractive. There may be a certain justice in the effect it seeks to achieve—that if a consent is breached in respect of a number of its terms, those separate breaches should be regarded as separate offences. But having thought about it a little more, I find it to be inconsistent with the way in which the offence provisions are structured, both in the Bill and in the current Control of Pollution Act 1974 and, I suggest, the way in which it is best structured to be understood and effective. That is in the legislation—in the Bill before us.
197 Under the Bill, the offence is to make a discharge, without a consent, or outside its terms. For the purpose of that offence it is irrelevant whether the discharge is outside the consent in one respect or many. The alternative, to which this amendment points, is to create a new and separate offence of breaking individual consent terms. But I suggest that this is quite unnecessary, and would complicate the legislation to no benefit. If the noble Lord's intention is to have the courts take account of the relative severity of a breach, or the number of aspects of it, then they can, and regularly do that in sentencing. While breach of any single aspect of a consent makes a discharge illegal, clearly a court should have regard for the number of such breaches. But I repeat, the creation of separate offences is unnecessary for this.
Moreover the amendment could be counter-productive. Our aim must be to have dischargers comply in all respects. That aim is better served by a simple, clear-cut line between legality and illegality, rather than introducing a situation of multiple offences where a discharge may be held to be illegal on only one criterion.
I think that the Committee might agree that it is a question of balance. We believe that the balance is in favour of the legislation before us and the existing enactments rather than the amendment.
§ Lord Ross of Newport
I thank the noble Earl for that reply. I am afraid I am unaware of the fine limit, so perhaps he could answer this question. Is there a fine limit of £2,000 for breach of these terms or is the limit open to the courts to decide? Personally, I do not know.
The Earl of Caithness
In a serious case it will always be open to the NRA or other prosecutor to proceed on indictment when, if convicted, an unlimited fine or imprisonment can be imposed.
§ Lord Ross of Newport
I hope that we shall not start putting too many people in prison. I am pleased to hear that there is that provision and I also accept the fact that the amendment could be criticised because the directive numbers could change and problems of that kind. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Earl of Cranbrook moved Amendment No. 362F:
§ Page 113, line 39, at end insert—
("(6) Where the Authority apprehends that a contravention of subsection (1) of this section (whether a new contravention or a repetition or continuation of one which has already occurred) is likely to occur, the Authority may apply to the Court and the Court (if satisfied of the matters complained of by the Authority) may make an order designed to prevent, remove or otherwise eliminate the grounds of complaint, or such other order as the Court thinks fit.").
§ The noble Earl said: This is a topic which I raised in my Second Reading speech. It can be summed up briefly by the word "injunction". It seems appropriate that it should be brought forward here. I am prompted to introduce the amendment by my experience in the Anglian Water Authority, but it is perfectly clear just from reading almost any 198 newspaper these days that similar events create difficulties in all water authorities. I therefore consider this issue to be very relevant indeed to the controls and powers of the future national regulatory authority; that is to say, the NRA.
§ An example from the Anglian Water experience is a major pollution incident in our rivers caused by pig slurry which polluted 40 kilometres of river and resulted in the death of thousands offish. The farmer concerned is liable to prosecution, but in this case he had already been fined for similar discharges by the courts on four separate occasions.
§ In such instances it seems unlikely that the fines are sufficiently deterrent to prevent the circumstances which allow pollution to occur. As in the amendment moved by the noble Lord, Lord Addington, we are trying to anticipate pollution rather than to control it. Nonetheless, it is an instance in which the National Rivers Authority will have good grounds for anticipating pollution.
§ The effect of the subsection which it is proposed to introduce at the end of Clause 104 would be to allow for an injunction from the courts. Clearly, it is essential that the use of the injunction should be restricted to appropriate cases and should be subject to careful safeguards. In this case, the ultimate decision on whether an injunction should be granted will be a matter for a judge.
§ At the moment the only recourse open to the water authorities is to bring criminal proceedings. They are often slow, sometimes taking six months or a year to come to court. Again, the fines imposed are apparently an inadequate deterrent and do not force the potential polluter to take the necessary remedial action in the form of constructions. It will be constructions to limit the possibility of effluent from, for instance, a pig slurry or a silage clamp. It is unlikely that such powers will be used other than rarely. Nonetheless, it seems appropriate that they should be available to the NRA in the future.
§ Moreover, I am advised that such powers are not new. Under Section 3 of the Rivers (Prevention of Pollution) Act 1951 such powers were within the capabilities of the previous river authorities. However, they were not carried forward by the Control of Pollution Act in 1974. I hope that my noble friend will also find this amendment attractive. I beg to move.
§ Lord Renton
I too hope that something will be done along these lines, for the reasons given by my noble friend Lord Cranbrook. Of course, there is a slight complexity due to two factors. First, we tend to keep our criminal and civil procedures entirely separate. However, there is a great deal to be said for those trying criminal cases to have the power to issue injunctions. The second problem is that under the general common law—which still prevails unless altered by statute—if there are both civil and criminal remedies which are concurrent the civil court cannot deal with the matter until the criminal court has done so. Therefore an absurd situation could arise in which, although an injunction is obviously necessary, the criminal court has no power to grant one and the civil court cannot deal with the matter until the criminal court has done so.
199 We need to look at this matter as a matter of practicality. While agreeing that something along the lines suggested in the amendment needs to be done, it needs to be considered in the light of the factors which I have dared to mention.
The Earl of Caithness
I understand the concern expressed by my noble friend Lord Cranbrook, particularly in the light of his experience with the Anglian Water Authority. However, I wonder whether he will be convinced that Clause 111 provides the necessary powers for the NRA to take emergency work measures to forestall or remedy pollution without recourse to the courts.
Having listened to my noble friend, I believe that we can rely on that clause for dealing with most of the cases which he has raised. Of course, my noble friend Lord Renton is right in saying that what my noble friend Lord Cranbrook is seeking to do goes much wider than the Bill. That is because it involves the whole of the criminal and civil law poceedings. As a result of my experience in the last department in which I had the honour to serve, I recall that issue as being most complicated. I know that if we were to try to alter what stands at the moment some very extensive consultations would be required.
The Earl of Cranbrook
I have had a quick look at Clause 111 and I see that it gives powers to the NRA to take remedial action and to recover the expenses reasonably incurred in doing so from any person, in this case the potential polluter. That is not exactly the same as requiring the potential polluter to take the action. In the circumstances, it might be effective but it is not exactly the same thing.
I bow to the greatly superior knowledge of my noble friend Lord Renton on matters of law. From that point of view I appear to be on shaky ground. I believe that the issue is still alive, but for the time being I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 104 agreed to.
§ Clause 105 [Authority for discharges and other defences for the purposes of section 104]:
§ The Earl of Cranbrook moved Amendment No. 362G:
§ Page 113, line 47, leave out paragraph (b).
§ The noble Earl said: The amendment relates to a different issue which was raised in another place on 22nd March by Mr. Tim Boswell; therefore I do not need to explain it at length. We are concerned with defences against allowing polluting effluents.
§ The defence contained in the Bill at present is that the polluter holds a valid waste disposal licence. In the view of the Anglian Water Auhority that is a large loophole in the legislation which enables an unscrupulous discharger to avoid the full implications of what he is doing. The site disposal licence is given by the local authority, not the water authority.200
§ The operator requires only a site disposal licence in order to run a waste disposal site. I could be a site for the disposal of a variety of wastes. However, as has so often been reiterated in debates on waste in this House, I remind Members that some of the most noxious effluents arise from perfectly "harmless" household wastes of the normal variety. Some of those extremely noxious effluents can have a damaging effect on the aquatic environment. More than the leachate which issues from an active pit is a problem of leachate which comes from a pit which has been closed.
§ Real problems can arise from waste disposal sites in such circumstances. Anglian Water Authority has experience of pollution not only of surface water courses but also of ground water supplies. It seems wrong that the site disposal licence should continue to protect a polluter from prosecution. I beg to move.
§ 6 p.m.
§ Lord Hesketh
In replying to Amendment No. 362G, I propose to speak also to Amendments Nos. 363 and 364. The effect of this amendment, No. 362G, would be to remove the exemption available in the Bill as drafted in respect of all pollution offences in Clause 104 provided by possession of a waste disposal licence under Part I of the Control of Pollution Act.
We believe this amendment goes too far. The following amendments coming before the Committee provide that such exemption shall not apply in respect of discharges of trade or sewage effluent or other matter on waste disposal sites. But we believe that an exemption should be available in respect of casual entries of polluting matter under Clause 104(1)(a), because these are essentially matters which will be covered by the site licence granted to a disposal site. The water authorities now, and the NRA in due course, are statutory consultees able to require, subject to the final view of the Secretary of State, inclusion in the licence of any particular conditions they consider necessary for preventing water pollution. If the amendment was accepted we would have the unsatisfactory result that a site licence holder could be prosecuted for pollution even though he was complying with conditions of a licence, agreed by the NRA, intended to prevent such pollution. That surely cannot be right.
By the following amendment we shall be asking the Committee to achieve half this amendment; that is, that a site licence should not provide a defence in respect of discharges under Clause 104(1)(b), (c) and (d). That will mean that the NRA will have direct control of all discharges on waste disposal sites and that the dischargers will need a consent under this Act. That is, I suggest, the right balance, and is consistent with the position in current legislation.
We recognise that there have been criticisms of the working of the pollution control arrangement for land waste sites, and that the water authorities do have concerns about them. These have of course been expressed recently in a report of the environment Select Committee in another place.
201 Nevertheless, we believe the present relation between water pollution and land waste to be basically sound, and that would be substantially reproduced if this amendment is not accepted but the following amendments are.
Amendments Nos. 363 and 364 are technical amendments to the terms of Clause 105.
Clause 105 provides the statutory defences to the water pollution offences in Clause 104. The intention of Amendment No. 363 is to remedy an unintended consequence of our attempt in Clauses 104 and 105 to provide a simpler and more coherent system of offences. This draws together, in Clause 104, the current polluting "entries" and polluting "discharges" offences of the present Sections 31 and 32 of the Control of Pollution Act, and brings together the various defences in Clause 104. This approach has the merit of removing certain doubts as to how the present offences and defences relate. However, in seeking to achieve this we have found that we have inadvertently widened the extent to which a waste disposal licence under Part I of the Control of Pollution Act provides a defence, so that it could cover point source discharges of effluent as well as site run-off and leachate. We do not believe that ordinary discharges to controlled waters should be exempted. They should always require a consent from the NRA. The defence should only apply to the casual pollution which should normally be controlled by the terms of the site licence under Part I of the Control of Pollution Act and for which the NRA will be a statutory consultee. That is the present position and the one we would like to restore.
Turning to Amendment No. 364, our purpose is simple. It is a defence to pollution offences that the action in question was permitted in an emergency to avoid danger to the public. However, we recognise that in some cases the risk may not be to members of the public but to employees of the company in question. They also should be protected, and we propose to achieve this by substituting a reference to danger to "life or health".
I hope that the proposers will feel that this outcome will give them the greater part of what they seek and that, in the light of what I have said, the noble Earl may feel able to withdraw his amendment.
The Earl of Cranbrook
Clearly I welcome the Government's initiative in this way. Equally clearly, it is necessary to look closely at what has been said. However, in the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Hesketh moved Amendment No. 363:
Page 114, line 5, at end insert—
("but nothing in any disposal licence shall be treated for the purposes of this subsection as authorising any such entry or discharge as is mentioned in paragraphs (b) to (d) of section 104(1) above or as authorising any act or omission so far as it results in any such entry or discharge.").
§ On Question, amendment agreed to.
§ Lord Hesketh moved Amendment No. 364:
§ Page 114, line 9, leave out ("the public") and insert ("life or health").
§ On Question, amendment agreed to.202
§ The Earl of Cranbrook moved Amendment No. 364A:
§ Page 114, line 15, leave out subsection (3).
§ The noble Earl said: Again, this is an issue which I raised in my Second Reading speech, and I thereby gave notice to the Government that I should be bringing forward an amendment. It concerns the discharge of polluting matter from vessels and, again, under the existing words of the Bill, an exemption is provided.
§ However, it seems to me that the owners of vessels who discharge polluting matters into our rivers should not enjoy immunity from prosecution. For the Anglian Water Authority and the Broads Authority, of which I have recently been appointed a member, this is a serious issue. The Broads Authority has the specific task of preserving and enhancing the environment in its very special waters in East Anglia. I hope that both the Broads Authority and the Anglian Water Authority will receive the support of the Committee on this matter and that the Government will agree to this amendment, so that, yet again, another loophole is plugged. I beg to move.
§ Lord Mottistone
It seems to me that the amendment would not only cover rivers but would also cover tidal waters. Yachts in tidal waters would be very seriously and unnecessarily inconvenienced by the width of this amendment. I am not speaking for rivers, but it is generally accepted by marine biologists that the amount of waste generated and discharged through sea toilets in tidal waters is so insignificant in volume as to have no effect whatever on the marine environment. The Southampton Harbour bylaws recognise that. Therefore, it seems to me that perhaps my noble friend may bring forward another amendment to cover rivers, but this is too sweeping an amendment because it also involves tidal harbours. I hope that the Government will not accept this amendment.
§ Lord Nugent of Guildford
I should like to support my noble friend Lord Cranbrook. I believe that this measure is necessary for rivers. There are certainly such regulations on the River Thames where, of course, there are many vessels. However, it is quite difficult to enforce the regulations. If there is placed on the river management authority the necessity of establishing sanitary stations so that vessels can discharge. That requires a lot of organisation. However, it is essential in the interests of the purity of the river that there should be a regulation of this kind.
§ Lord Renton
I tend to support my noble friend Lord Cranbrook on this matter. As for the point raised by my noble friend Lord Mottistone, I feel bound to point out that the pollution of the Norfolk Broads, which has caused such trouble and anxiety, was partly and, I believe, considerably due—and my noble friend Lord Cranbrook can say more about this, because it came within the area of the Anglian Water Authority—to discharges from yachts, motor boats and so on which were on the Norfolk Broads. I think that we must be most careful before we give carte blanche to the discharge of effluent from vessels.
203 There is the further point that in, I believe, 1961, we tried to protect the coasts of this country and of neighbouring countries from the discharge of oil from ships at sea. It really would be rather extraordinary if, having passed laws to make that illegal and, where possible, punishable, we were to give carte blanche to discharge of effluent from small boats in our own tidal waters.
§ Lord Mottistone
I suggest to my noble friend that it is confusing the issue to bring in the question of oil at sea. We are discussing tidal waters and yachts. My noble friend is suggesting that it is a new privilege, as it were, which is to be given; all we are seeking is to make sure that the status quo continues.
§ Lord Renton
All I can say is that pollution is pollution, whatever the cause, and we should try to be consistent in the laws that we pass.
§ The Earl of Radnor
I briefly support my noble friend Lord Cranbrook. I do not think that we want to keep a status quo. I recently read in the newspapers—as no doubt did other noble Lords—that the River Hamble, which is tidal, is no longer healthy. I think the papers gave the percentage of water to sewage. It is time the matter was tackled.
§ Lord Addington
I support the noble Earl, Lord Cranbrook. I live in Norfolk and one can occasionally see on the Broads some unpleasant messes appearing in the wake of cabin cruisers. That cannot be helping the environment. There is not only the effluent but the materials, such as bleach, used to clean the toilets on board the boats. I suggest that such unpleasant cocktails going into a natural water environment should be stopped as soon as possible.
§ Lord Ross of Newport
I do not wish to cross swords with my noble friend Lord Mottistone—if I may call him that across the Floor of the Committee—but I should like to ask about our canals. It is a long time since I took my family on the canals, and they kept falling in. More and more people are taking cruising holidays on canals. I believe that it is prohibited to excrete into the canals but I cannot see us putting toilet facilities of one kind or another at one-mile intervals.
I believe the noble Lord, Lord Nugent, struck the right point, in that we do need the provision of these facilities. They should be available at regular intervals on our inland waterways every bit as much as for yachtsmen and others.
§ 6.15 p.m.
§ The Earl of Arran
Very simply, this amendment, by deleting subsection (3) of Clause 105, would make it a criminal offence for any boat to discharge effluent into any controlled waters, which includes the sea up to three miles out.
When the full practical implications of this amendment are considered I think it becomes clear that it should be rejected. There are, for example, 204 many thousands of small boats containing sanitary appliances which discharge directly into water. The flushing of a lavatory on a boat well out to sea is hardly something which should constitute a criminal offence. Nor would it be other than a bureaucratic nightmare to require the boat owner to secure himself against a prosecution by obtaining a consent from the NRA to flush his lavatory while at sea.
Of course, there are coastal and inland waters where the last thing one would want would be boats discharging their sewage into the water. These waters are best protected by by-laws. Accordingly, Clause 110 empowers the National Rivers Authority to make by-laws prohibiting or regulating the keeping or use on any controlled waters of vessels provided with sanitary appliances which discharge direct to water. For good measure the by-laws can also prohibit or regulate the washing or cleaning of boats or any other things in controlled waters.
This system of dealing with effluent from boats is a proven success. Vessels are regulated by by-laws which currently afford protection to such waters as the Norfolk Broads, Lake Windermere, the Lancaster Canal, and part of the Severn River. Existing by-laws will be preserved by paragraph 26(1) of Schedule 23 to the Bill, and supplemented where necessary by new by-laws made under Clause 106.
Finally, as Members of the Committee may be aware from the introduction to the notes on Clause 110, we are repealing provisions in the 1974 Act which banned from all lakes and rivers boats with sanitary appliances which discharge into water, and at the same time required the water authorities to provide on-shore facilities for the pumping out of non-discharging facilities. These provisions have never been brought into force as they would have entailed disproportionate burdens and costs on boatowners and authorities compared with the environmental benefits which might have occurred. As we said in our 1986 consultation paper, The Water Environment: The Next Steps, the adequate use of by-laws could achieve the same results at less cost. It may be worth noting here that, where by-laws do make on-shore pump-out facilities necessary, the NRA will have the power to provide them under Clause 8(4).
It is for those reasons and arguments that I ask my noble friend not to press his amendment.
The Earl of Cranbrook
It is of course by the use of by-laws that the Broads—which were disgusting at one stage—have been cleaned up. However, I do not feel that there should be a general freedom for yacht owners to defend themselves or even to claim an ancient right to pump ship anywhere within controlled waters. I believe that under MARPOL V that the North Sea is now declared a protected area and it is in fact contravening the MARPOL regulations to throw waste overboard from any vessel whatever in the waters of the North Sea, which, after all, covers a considerable proportion of the coast.
We are attacking this problem and it is a very real problem. Considerations of this sort reinforce my previous conviction that 12 miles is a reasonable zone to have under consideration. Nonetheless, I 205 recognise that the provision of by-laws, widely applied, can meet this problem. I hope my noble friend will say that he will forcefully encourage the use of by-laws; as, indeed, I hope the NRA will take forceful steps to encourage by-laws under such circumstances. In that case, the anxieties that led me to propose this amendment would appear to be met and I therefore ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
The Earl of Radnor moved Amendment No. 365:
Page 114, line 20, at end insert ("so long as such mine is not used for the disposal of waste.").
The noble Earl said: This is a simple amendment. In a sense it is a probing amendment. Clause 104 outlines the discharges which are not acceptable and which create an offence. Clause 105 outlines the exceptions. Among those exceptions is water from an abandoned mine. It is probably important to clarify exactly what is an abandoned mine. My understanding is that an abandoned mine is a mine from which the relevant minerals are no longer extracted.
§ My noble friend will realise that any hole in the ground is worth a lot of money these days. Holes are frequently used for storing waste—often toxic waste. Therefore, it is important to be absolutely certain what is meant by an abandoned mine. If a mine is abandoned because it is no longer being mined, and that is the definition, surely there is a danger that it will be filled with rubbish and the water running from it will create a danger. Therefore, my amendment would make sense. I beg to move.
§ The Earl of Arran
I hope to be able to reassure my noble friend on this amendment. We consider that it is unnecessary for this reason. If the mine is being actively used for the disposal of waste, those operations would be subject to control under Part I of the Control of Pollution Act 1974. In any event we consider that the mine may not be said to be abandoned in those circumstances. Therefore, we believe that my noble friend's concerns are already fully covered and nothing would be added to the clarity or effect of the Bill to adopt the amendment. I ask my noble friend not to press his amendment.
§ The Earl of Radnor
Indeed, I do not intend to press the amendment. I am at least partially reassured by the Control of Pollution Act but I am not so sure about the other reason given. However, I take my noble friend's word that all will be well and ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 105, as amended, shall stand part of the Bill?
§ Lord Renton
Perhaps I may detain the Committee briefly on this matter. This lengthy clause contains a very wide sweep of exemptions from prosecution in cases that would otherwise be offences of pollution and contamination under the Bill. Can my noble friend tell me whether there is any power given to the Secretary of State to amend this clause by 206 regulation? It seems that in the light of experience we may be taking some risks in granting such wide exemptions. If we are to have fresh legislation to cover a situation in which the clause has been seriously abused, and not in minor ways, it would be an awful nuisance to have to wait until we get legislation through both Houses. Normally I would never recommend it, but there should be a power on the part of the Secretary of State to amend this clause by reducing the degree of exemption
§ Clause 105, as amended, agreed to.
§ Clause 106 [Deposits and vegetation in rivers etc]:
§ The Earl of Radnor moved Amendment No. 366:
§ Page 115, line 32, at end insert—
("( ) Subsection (1) above shall not apply to the management of ditch irrigated water meadows or in the proper management of fisheries.").
§ The noble Earl said: This clause makes it an offence to clear silt and vegetation down river. If you try to get it out, that is all right. I must confess an interest in that I am concerned both with a fishery and with an estate that has some of the very few remaining water meadow farms. I must also confess to a mistake that I hope will be forgiven me. I should have put in my amendment subsection (2) as well as subsection (1). I failed to do that, but I hope that I shall be able to mention the vegetation side of the question. It is very closely wrapped up with silt, if only because vegetation grows on silt and in turn attracts silt.
§ Perhaps I may start with the fisheries end of the amendment. It is, and has been, a part of good river management, certainly on those streams that grow weed which is for the most part the chalk streams, to clear silt and also from above sluices and hatches. As Members of the Committee will know, the chalk streams of the South are full of hatches. Funnily enough, they are left over from the days when there were a large number of irrigated water meadows.
§ I feel that it would be totally wrong to put this prohibition on what is in point of fact good and not bad river management just for the sake of a little mud (which is a much simpler name for it) going downstream. What is more, because people look after their rivers and fishing properly, they will continue to do so. There will then be ample opportunity for prosecution by people who feel that they have been offended by the transient cloudiness in the water.
§ Perhaps I may touch now on the question of vegetation, because the two go together. If you are moving silt you are also moving weed and very often vice versa. Those same streams grow a lot of ranunculus and various other weeds. Not to cut such growth and to let it go would be a very grave mistake. It would ruin the fishing. It would be quite wrong to stop the riparian owners from exercising what they have seen in the past to be good river management practice. That observation would apply also to fishing clubs and organisations of that kind.207
§ I now turn to the ditch-irrigated water meadows. I have given them this name because the name "water meadows" has been abused in recent times. It seems to have become related to any old wetland. These water meadows are very rare now. I believe that there are probably no more than a dozen farms in Wiltshire and Hampshire that operate them. The whole operation is concerned with clearing out silt and vegetation on a fairly massive scale. To pretend that it is not likely to go down stream is absolutely ridiculous. There are one or two farms on which the whole livelihood depends entirely on water meadows. I know of one at least. There is an exception of one dry meadow.
§ To prohibit this kind of activity would have the same effect concerning the fisheries. The owner or tenant of the water meadows would have to go on doing what he has always done. He would lay himself open to being prosecuted by someone further down river. There is one further interesting point. As I have said, these water meadows are rare. On the particular estate to which I have referred, quite a large block of them has been made into a site of special scientific interest. I believe that there is a statutory requirement to continue operating them in the way in which they have always been operated. Therefore I can see here a definite conflict occurring.
§ It is no good pretending (because it would be a pretence) that these ditches—or carriers or drawings, as we call them—are for drainage. They are for irrigation. The carriers which are the ditches that bring the water in, sometimes double with the drainage ditches according to how you set the hatches or sluices. The drawings take the water away.
§ It is a small matter, but I do not believe that when we are making laws we should ignore minorities of any kind. The fisheries question is certainly not a minority one. A huge number of people would be very upset if the rivers cannot be kept as they should be. I believe that there is a real problem here in both areas. The only thing to do is to take the whole matter out of this section and exonerate it, so to speak, from subsections (1) and (2). I beg to move.
§ Lord Moran
I support what the noble Earl, Lord Radnor, has said, particularly as regards the cutting of weeds. I wish to mention one problem that seems to raise a general issue. It has been represented to me concerning weed cutting in the deeper waters of the River Frome in Dorset. I made inquiries because I was told that riparian owners found that Wessex Water would not cut the weeds, so that they grew all over the river and effectively prevented people from fishing. In addition, the water authority would not allow riparian owners to cut the weeds. I inquired about this through the Water Authorities Association and, after making inquiries with Wessex Water, I was told by the association that in the deeper waters weed cutting takes place in the autumn, which is reckoned to be the most cost-effective time. That is the point I wish to ask about. Wessex Water said:While the fishing might be affected, the fishery is not. . . The implications of transferring weed cutting to the NRA budget are substantial in financial terms especially if cutting had to be done twice to accommodate fisheries and land drainage requirements".208 To take the line that it is all right to cut the weeds in the autumn, and that this preserves the fishery but not the fishing, seems to be inconsistent with the authority's obligation to maintain, improve and develop fisheries. This is my main point. If the Government are not able to answer it now I should be grateful if they would look into it and write to me.
§ 6.30 p.m.
§ Lord Ross of Newport
I have great sympathy with what the noble Earl, Lord Radnor, had to say. He said it with great knowledge, which I do not possess. However, in his amendment he refers to,the proper management of fisheries".What exactly does he mean by that? I know from my role as a chairman of Wildlife Link that there is growing concern about fish farming in Scotland and in England too. There are problems in some of the rivers. In the Tess, trout farming is causing problems to ordinary fishermen on the river banks. It is causing pollution. I assume that by,the proper management of fisheries",the noble Earl means that fish farming should be properly controlled and kept clean. Perhaps the noble Earl will answer that point.
§ The Earl of Radnor
Perhaps I may clear up that matter. As the noble Lord probably knows, I am a fish farmer. By "fisheries" I mean a sport fishery and not a fish farm.
§ The Earl of Arran
This amendment seeks to provide that the offence of removing deposits from the bed of inland waters shall not apply to the management of ditch irrigate water meadows or in the proper management of fisheries. However, I understand my noble friend to have in mind also the offence, in the same cause, relating to cutting of vegetation, and my remarks will cover that also.
We recognise that this issue can be a matter of concern to those involved in agriculture in certain of the chalkland areas of southern England. We cannot accept the amendment but I hope that what I am able to say can offer some reassurance.
It should be clear that the water meadows themselves, which may be covered by water only a very few days each year, do not fall within the term "inland waters", and nothing done within these meadows will be caught by Clause 106. The ditches which serve the meadows are, however, inland waters, and it is the Government's view that they should be subject to the offence provision, for the disturbing of mud in such ditches may harm fisheries in rivers when the ditch water flows into the rivers. However, the consent of the NRA can be sought for these operations, and depending on the circumstances of the case we believe that the authority will not want to interfere with acceptable practices carried out with due care. But it seems to us right that the NRA should be able to regulate these matters.
We see some difficulty in the proposal that the offence should not apply to anything done in the management of fisheries. The fact is that the main 209 purpose of Clause 106 is the proper protection of fisheries. One would hope therefore that nothing done by anyone involved in the management of fisheries would cause damage to other fisheries further downstream. But that possibility remains. We believe therefore that it would not be appropriate to exclude things done in the management of fisheries from the scope of the offence. I emphasise again that the NRA's consent can be obtained in relevant circumstances.
In the light of this explanation, I hope that my noble friend will not feel it necessary to press his amendment.
§ The Earl of Radnor
I certainly do not intend to press the amendment but I am not immensely impressed by the reply which my noble friend has been able to give me. Perhaps I may start at the other end this time with the water meadows. It would be quite wrong if anyone whose livelihood depended on the water meadows had to go to the NRA to see whether he could support himself in that way. That would not be right.
I appreciate the point about irritation downstream but I do not appreciate that fisheries are harmed downstream by shifting silt and weed. So often when water auhorities take weed out a nasty position arises. The water authority puts out a boom, it catches two-thirds of the weed and the rest is left to cause just as much nuisance as all of it did before. It is then put in a great heap on the bank. Then, much to everybody's surprise, it makes silage. The silage makes silage effluent which is right on the edge of the river. There must then be work to deal with it. This point worries me. I shall certainly withdraw the amendment but I reserve my position for another stage of the Bill in case I can think of some way to get round what is still an unsatisfactory position.
§ The Earl of Arran
I understand my noble friend's point but we consider that it is within the good sense of the NRA to regulate in such matters. I should like to answer the point of the noble Lord, Lord Moran. I can tell him that Wessex Water has a policy of not cutting weeds in spring because it is thought severely to affect fish spawning.
§ Amendment, by leave, withdrawn.
§ Clause 106 agreed to.
§ Clause 107 [Requirements to take precautions against pollution]:
§ Lord Gallacher moved Amendment No. 366A:
§ Page 116, line 13, leave out from ("be") to end of line 15 and insert ("a continuing offence the maximum penalty for which shall not exceed £ 1,000 daily.").
§ The noble Lord said: This amendment seeks to introduce a system of penalties for pollution offences which reflect the damage done to the environment and the cost of remedial works. The amendment is tabled because of the low level of fines which are 210 currently being levied in certain courts. At present the maximum fine for pollution offences is £2,000 per occurrence, which is low enough in itself, yet the average fine actually levied is sometimes only a few hundred pounds. In the case of North- West Water v. Derbyshire County Council the water authority was fined £750 per offence. In the case of large industrial concerns it may even be cheaper for the company to pay fines on a regular basis than to undertake the level of investment necessary to resolve the problem. By contrast, the damage done by a single pollution incident may run into many thousands of pounds especially if extensive fisheries are wiped out.
§ The amendment seeks to introduce a system which is now used in certain other countries whereby polluters are fined on a daily basis if the offence is a recurring one, thereby providing an incentive for the polluter to remedy the problem as soon as possible. I beg to move.
§ Lord Addington
I should like to speak in support of the amendment and also speak to Amendment No. 366B which stands in my name. My amendment seeks to do the same job. It seeks to ensure that the fines imposed bite more heavily than those imposed at the moment. As the noble Lord has suggested, on some occasions it may be more economically viable, because of the low fines, for someone to carry on incurring fines and not do anything about the problem. That is unacceptable and something must be done extremely quickly if we are to have any impact on people who are deliberately making money out of breaking pollution regulations.
The Earl of Caithness
We have already announced our intention to introduce regulations under Clause 107 to govern construction standards for silage and slurry stores, which are the two most common causes of pollution from farm waste, and also oil storage facilities. Under the regulations the NRA will not only be able to require new facilities to meet satisfactory design standards but will also be able to serve improvement notices on farmers and others with existing installations which are thought to pose significant pollution risks. Contravention of the regulations will be an offence, subject to the normal maximum penalties for pollution offences set out in Clause 104. Thus, the maximum fine on summary conviction would be £2,000, or a term of imprisonment not exceeding three months. It would also be open to the NRA to take the case to a higher court where unlimited fines are available, or terms of imprisonment not exceeding two years.
However, the important point to stress here is that these penalties relate to failure to take action designed to reduce pollution risks, rather than causing pollution to take place. Of course, in cases where failure to comply with the regulations leads to a pollution incident—for example, a leak from a slurry lagoon pollutes the local river and kills the fish—the farmer is also open to prosecution by the NRA for a pollution offence under Clause 104. Indeed, in those circumstances, he can be prosecuted on two counts: both for the pollution offence which he has committed, and for the failure to comply with the regulations under Clause 107.
211 It is also a mistake to concentrate simply on the fines involved since an important part of the polluter pays principle is that those who pollute our rivers and harm aquatic life, in the case of pollution incidents, should pay for the cost of clearing up the results. Such costs can often be very much greater than the penalty itself and together they can act as a major deterrent to would-be polluters. I am sure that that is a provision which the noble Lord, Lord Addington, would wish to remain in the Bill.
I believe that these amendments should be rejected on three counts. First, I believe that it is wrong in principle to have higher penalties for breaching regulations designed to reduce pollution risks than for actual pollution of the waters concerned. For that reason I believe that there should be consistency between the maximum penalties which apply under Clause 107 and those which apply under Clause 104, in relation to actual pollution of controlled waters. Otherwise, under these amendments, we would have a situation in which someone who had not caused any pollution, but who had taken some days to bring his storage facilities up to standard, could end up paying fines many times higher than those which an actual polluter who had damaged the river would be liable for. I wonder whether the noble Lord, Lord Gallacher, can justify that in equity terms. I cannot.
Secondly, those who breach regulations designed to reduce pollution risks are at risk of prosecution, not only in respect of contravention of the regulations themselves but also in respect of any pollution which occurs as a result of their failure to bring their facilities up to the required standard. In such cases the NRA may well choose to prosecute on two counts.
Thirdly, and finally, in cases where a particular series of breach of regulations has occurred, the NRA may well want to take the case of indictment to a higher court where unlimited penalties are available.
§ Lord Gallacher
I thank the noble Earl for the reply which he made to Amendment No. 366A and also, I take it, to Amendment No. 366B. The assurances he has given about the provisions which the National Rivers Authority will have under Clauses 104 and 107 are good. To that extent we are grateful to him for giving such assurances.
However, I think that the Minister skirted around the unsatisfactory position at present where courts, according to our best intelligence, are not making full use of the penalties that they could impose. Moreover, for reasons best known to themselves, they appear to be levying fines which in certain instances, having regard to the nature of the offenders—for example, a regional water authority—could be regarded as derisory. I am not sure that that problem is entirely covered by the assurances which the noble Earl gave us in reply to the amendment.
Also left out of the noble Earl's response was the question of time. It seems to us that where these problems arise time is of the essence. While the detailed provisions which the noble Earl described will undoubtedly deal with the problem in time, they 212 will not, so far as I can see, deal with certain problems speedily. They will also not deal with such problems in a manner which we think is necessary in order not merely to deal with a particular incident but also to ensure that it is not prolonged by reason of discussion and by reason of proposals which, although they may eventually solve the problem, may take time to do so. In consequence, the principle of the polluter paying would to some extent be frustrated. Moreover, the noble Earl did not explain why the concept of a daily fine is not acceptable in this country, whereas it is apparently acceptable in certain other countries.
However, in the light of all the Minister has said in reply, I shall undertake to look in detail at his reply and reserve the right, if I am so advised, to return to the matter at the next stage of the proceedings on the Bill. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 366B not moved.]
§ Clause 107 agreed to.
§ 6.45 p.m.
§ Clause 108 [Water protection zones]:
§ Lord Hesketh moved Amendment No. 367:
§ Page 116, line 17, leave out ("any poisonous, noxious or polluting matter from entering") and insert ("or controlling the entry of any poisonous, noxious or polluting matter into").
§ The noble Lord said: In moving Amendment No. 367 I wish to speak also to Amendment No. 371 A. These are two small technical amendments to Clause 108, which provides powers for the establishment and operation of water protection zones for the regulation in designated areas of practices likely to cause pollution.
§ The effect of Amendment No. 367 is simply to provide a wider formulation of the purposes which the zones may serve—not only to prevent but also to control the entry of polluting matter. The practical effects of the amendment are unlikely to be substantial, but we believe a wide formulation is desirable.
§ Amendment No. 371A is also a technical amendment. Schedule 7 provides that copies of notices establishing protection zones shall be served on relevant local authorities, who obviously have an interest in the matter. This amendment simply secures that copies of any notices modifying such zones shall also be served on the authorities. I commend the proposals to the Committee. I beg to move.
§ On Question, amendment agreed to.
§ Lord Ross of Newport moved Amendment No. 367A:
§ Page 116, line 19, after ("activities") insert ("including planting of conifer forests and operations in abandoned mines,").
§ The noble Lord said: I think that the amendment which has just been moved may possibly cover the point that I wish to raise, which is purely a probing one. We are talking about water protection zones which are mainly designed, as I understand it, to stop 213 pollution by nitrates. What we seek is an undertaking from the Government that when they are prohibiting or restricting the carrying on of a particular area of activity (although I think the wording has been slightly amended) they are looking at the possibility of pollution from dumping in an abandoned mine and possibly—I know this is controversial to some Members on the other side of the Committee—also from the planting of coniferous forests. I think that this point was raised earlier by the noble Earl, Lord Radnor. I believe we received some sympathy from the Government earlier on this matter. It seems that there is evidence to show that acidity is also causing problems in our rivers in some parts of the country.
§ All I seek is an assurance that such matters are taken into account when the Secretary of State is considering taking action under Clause 108(1). I beg to move.
§ The Earl of Arran
I can assure the noble Lord, Lord Ross of Newport, that neither of the activities to which he has referred are precluded by this definition.
Coniferous afforestation is in fact a practice to which we had given consideration in this context, as it can certainly give rise to pollution in certain circumstances. In practice we think it is unlikely that the powers will need to be used for these purposes—partly because of the changes to policy on coniferous planting in upland areas introduced by my right honourable friend the Secretary of State and the Forestry Commission last year, and partly because of the guidance on avoidance of water pollution already provided by the Forestry Commission. But the powers are available for use if necessary.
It is more difficult to identify the activities within abandoned mines—short of bringing them back into use, in which case they may cease to be "abandoned"—which would both cause pollution and be susceptible to controls. Nevertheless, the powers are wide and flexible, and the Government recognise that abandoned mines can remain a source of pollution. Anything done in relation to them which is likely to cause, or exacerbate, pollution could therefore be open to control through these powers. I am sure that that is a possibility which the NRA will keep in mind. It is in those circumstances that I ask the noble Lord to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Hesketh moved Amendment No. 367B.
§ Page 116, line 39, at end insert—
("( ) provide (subject to any regulations under subsection (4) below) for anything failing to be determined under the order by the Authority to be determined in accordance with such procedure and by reference to such matters and to the opinion of such persons as may be specified in the order;").
§ The noble Lord said: This is a technical amendment related to the powers of the Secretary of State in making, and Parliament in confirming, 214 orders for the establishment of protection zones. Clause 108(2)(a) provides that the NRA may be given discretion in the order establishing the zone as to the activities which are to be restricted and the circumstances in which the restriction is to apply. The amendment will allow the order to impose requirements as to the way in which that discretion is exercised.
§ Clause 108 provides for substantial and wide-ranging powers to be conferred on the authority, and it is surely right that the Bill should enable requirements to be laid clown as to how these powers are to be exercised. I beg to move the amendment.
§ On Question, amendment agreed to.
§ Lord Addington moved Amendment No. 367C:
§ Page 116, line 44, at end insert—
("( ) Any area designated as a 'water protection zone' under this section shall be designated as an 'environmentally sensitive area' under the Agriculture Act 1986.").
§ The noble Lord said: The amendment is designed to give powers of a permissive nature which will require an agreement to be reached between farmers and the authorities to set up environmentally sensitive areas under the Agriculture Act 1986. That can be done only if the farmer agrees. It will enable there to be greater co-operation in the way the farm is run after the farmer has given his agreement. Bearing in mind the fact that compensation will be available under the ESA procedures, I suggest that the amendment is not unreasonable. I beg to move.
§ Lord Hesketh
The amendment seeks to provide that protection zones be designated as environmentally sensitive areas.
That cannot be right. The objective of designating a water protection zone is to prevent the pollution of controlled waters which may or may not involve pollution from agricultural sources which could be controlled by restrictions or prohibitions on agricultural activity. By contrast the purpose of ESA designation is to secure the protection and enhancement of the natural beauty, wildlife and historic interest of an area where that can be achieved by the adoption or maintenance of specific agricultural measures. The criteria for designation are based on the existence of areas of sufficient environmental quality which are threatened by agricultural change and which can be protected and enhanced by the adoption of agricultural measures.
The objectives and criteria for designation of the two zones are therefore different and not likely to be co-terminous. In particular, most WPZs involving agricultural restriction are in intensively farmed areas of insufficient environmental quality to merit ESA designation.
A further consideration is that the arrangements that flow from designation are markedly contrasting. In one case it is legal prohibitions and in another it is voluntary agreements. Clause 108 could not therefore be reconciled with Section 18 of the Agriculture Act, which enables the Minister to control agricultural activity within an area by entering into agreement with individual farmers who 215 agree to manage land in a prescribed way in return for payment. It does not create any free-standing obligations on farmers in an area. In the light of that explanation, I hope that the noble Lord, Lord Addington, will feel able to withdraw the amendment.
§ Lord Addington
Having heard what the Minister has said, I see that the two measures are not necessarily compatible, although the greater enhancement of the environment was the objective behind the amendment. It is an objective that should not be ignored. I accept that the amendment is inappropriate, and thus I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 368 and 369 had been withdrawn from the Marshalled List.]
§ The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington) moved Amendment No. 369A:
§ Page 117, line 18, at end insert—
("5) The reference in subsection (1) above to the entry of poisonous, noxious or polluting matter into controlled waters shall not include a reference to the entry of nitrate into controlled waters as a result of, or of anything done in connecton with, the use of any land for agricultural purposes.").
§ The noble Baroness said: I should like to speak also to Amendments Nos. 369B, 371C, 390E, 391A and 441 A.
§ The main purpose of this new clause and schedule, and the associated amendments, is to provide powers for the establishment of nitrate sensitive areas in England and Wales in which the Government would introduce controls over agricultural activity in order to reduce the amount of nitrate leaching from agricultural land into water sources. The areas would be jointly designated by the Secretary of State for the Environment and the Minister of Agriculture, by means of an order.
§ Subsections (2) and (3) of the new clause would empower the Minister of Agriculture or the Secretary of State for Wales to enter into voluntary agreements with farmers in NSAs under which farmers would be required to follow prescribed agricultural practices in return for a payment. Where the agreement is with someone other than the landlord, the landlords's consent would be required. The agreement would be binding on successors in title.
§ Subsections (4) and (5) would empower the Minister and the Secretary of State for the Environment or the Secretary of State for Wales to introduce compulsory restrictions on agricultural practices in NSAs, for which payments may be made. Powers are also available for the Minister and Secretary of State to determine the circumstances in which compulsory restrictions would or would not apply within an NSA. The normal provisions for breach of those restrictions are also set down.
§ The remainder of the clause specifies how ministerial responsibilities would be distributed between the Minister of Agriculture, and the Secretary of States for Environment and for Wales, 216 and also provides for consent procedures to be operated which would enable farmers to carry out work generally prohibited in an area with the consent of the Minister or Secretary of State.
§ Subsection (7), taken together with Part I of the new schedule, provides that NSA orders may only be made when the NRA has notified the appropriate Ministers that nitrate levels in water sources are in excess, or likely to be so, of acceptable limits and that any provisions already in place are not achieving the desired reduction in nitrate leaching.
§ Part II of the new schedule sets down the procedures to be followed for the publication and notification of draft orders for compulsory restrictions—whether or not payments are to be made—and provides for a public inquiry to be held at the discretion of Ministers if objections to the proposal are received.
§ The amendments associated with the new clause and schedule are minor technical amendments which have the effect, first, of taking the control of agricultural activity giving rise to nitrate pollution outside the general provisions fort water protection zones; and, secondly, providing consistency between the two clauses. For example, Amendments Nos. 390E and 391A provide for the Minister and Secretary of State jointly to direct the NRA in relation to NSAs. Such directions might include criteria for the selection of NSAs.
§ Finally, an amendment to Schedule 24 includes an amendment to the Agricultural Holdings Act 1986. That would ensure that a tenant could not be open to the charge that he or she had breached the tenancy requirement to farm in accordance with the rules of good husbandry by complying with the requirements of an NSA scheme. We considered it appropriate to introduce this amendment because it is possible that agreements could last for a considerable time and there is therefore more scope than under other agricultural schemes for a change of landlord during the life of the agreement. The amendment would ensure that, having secured the agreement of the first landlord to entering the scheme, the tenant would continue to be protected for the life of the agreement. It would also afford protection to tenants if a compulsory scheme had to be introduced.
§ In summary, I hope the Committee will agree this new clause, schedule and series of amendments, which give the powers necessary to give effect to the Government's commitment to introduce controls over agricultural activity in order to help tackle the problem of high nitrate levels in water sources. In particular, provision is made for the use of voluntary as well as compulsory measures. Initially the intention is to use voluntary measures, retaining the compulsory powers as a fallback.
§ Also, in accordance with our views that farmers should be compensated where restrictions are substantial and go beyond good agricultural practice, there is provision for payments to be made. In the case of compulsory restrictions farmers will also have an opportunity to object to or comment on draft proposals which might give rise to a public inquiry.217
§ The Committee will appreciate that on the important question of nitrates in water the Department of the Environment and of the Ministry of Agriculture will be working jointly to achieve the desired objectives. Allow me to say that, if the amendments are accepted, the Government's intention is to establish a sample of pilot NSAs covering a range of different circumstances in which the effectiveness of various agricultural measures can be tested. I beg to move.
§ On Question, amendment agreed to.
§ Clause 108, as amended, agreed to.
§ 7 p.m.
§ Baroness Trumpington moved Amendment No. 369B:
After Clause 108, insert the following new clause:
("Nitrate sensitive areas.
(1) Where the relevant Minister considers that it is appropriate to do so with a view to achieving the following purpose, that is to say, preventing or controlling the entry of nitrate into controlled waters as a result of, or of anything done in connection with, the use of any land for agricultural purposes, he may by order make provision designating that land, together with any other land to which he considers it appropriate to apply the designation, as a nitrate sensitive area.
(2) Where any area has been designated as a nitrate sensitive area by an order under this section and the relevant Minister considers that it is appropriate to do so with a view to achieving the purpose mentioned in subsection (1) above, he may, subject to such restrictions (if any) as may be set out in the order, enter into an agreement under which, in consideration of payments to be made by the relevant Minister—
accepts such obligations with respect to the Management of that land or otherwise as may be imposed by the agreement.
- (a) the owner of the freehold interest in any agricultural land in that area; or
- (b) where the owner of the freehold interest in any such land has given his written consent to the agreement being entered into by any person having another interest in that land, that other person,
(3) An agreement such as is mentioned in subsection (2) above between the relevant Minister and a person having an interest in any land shall bind all persons deriving title from or under that person to the extent that the agreement is expressed to bind that land in relation to those persons.
(4) Where it appears to the relevant Minister in relation to any area which is or is to be designated by an order under this section as a nitrate sensitive area that it is appropriate for provision for the imposition of requirements, prohibitions or restrictions to be contained in an order under this section (as well as for him to be able to enter into such agreements as are mentioned in subsection (2) above), he may, by a subsequent order under this section or, as the case may be, by the order designating that area—
- (a) with a view to achieving the purpose mentioned in subsection (1) above, require, prohibit or restrict the carrying on or in relation to any agricultural land in that area of such activities as may be specified or described in the order; and
- (b) provide for such amounts (if any) as may be specified in or determined under the order to be paid by the Minister or the Secretary of State, to such persons as may be so specified or determined, in respect of the obligations imposed in relation to that area on those persons by virtue of paragraph (a) above.
(5) Without prejudice to the generality of subsection (4) above, provision contained in an order under this section by virtue of that subsection may—
- (a) confer power on the Minister or the Secretary of State to determine for the purposes of the order the circumstances in which the carrying on of any activities is required, prohibited or restricted and to determine the activities to
218 which any such requirement, prohibition or restriction applies;
- (b) provide for any requirement to carry on any activity not to apply in cases where the Minister or the Secretary of State has consented to a failure to carry on that activity and any conditions on which the consent has been given are complied with;
- (c) apply a prohibition or restriction in respect of any activities to cases where the activities are carried on without the consent of the Minister or the Secretary of State or in contravention of any conditions subject to which any such consent is given;
- (d) provide that a contravention of a requirement, prohibition or restriction contained in the order or in a condition of a consent given in relation to or for the purposes of any such requirement, prohibition or restriction shall be an offence the maximum penalties for which shall not exceed the penalties specified in subsection (5) of section 14 above;
- (e) provide for amounts paid in pursuance of any provision contained in the order to be repaid at such times and in such circumstances, and with such interest, as may be specified in or determined under the order; and
- (f) provide (subject to any regulations under subsection (8) below) for anything falling to be determined under the order by any person to be determined in accordance with such procedure and by reference to such matters and to the opinion of such persons as may be specified in the order.
(6) An order under this section may—
- (a) make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and
- (b) contain such supplemental, consequential and transitional provision as the relevant Minister considers appropriate.
(7) The power of the relevant Minister to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament; but the relevant Minister shall not make such an order except in accordance with any applicable provisions of Schedule (Orders designating Nitrate Sensitive Areas) to this Act.
(8) The Secretary of State and the Minister, acting jointly, may, for the purposes of any orders under this section which require the consent of either of those Ministers to the carrying on of any activities or to any failure to carry on any activity, by regulations make provision with respect: to—
- (a) applications for any such consent;
- (b) the conditions of any such consent;
- (c) the revocation or variation of any such consent;
- (d) the reference to arbitration of disputes about determinations on any such application;
- (e) the imposition of charges where such an application has been made, such a consent has been given or there has been any act or omission in pursuance of any such consent; and
- (f) the registration of any such application or consent.
(9) In this section and in Schedule (Orders designating Nitrate Sensitive Areas) to this Act "the relevant Minister"—
(a) in relation—
means the Secretary of State;
- (i) to the making of an order in relation to an area which is wholly in Wales; or
- (ii) to an agreement with respect to land which is wholly in Wales,
(b) in relation to the making of an order in relation to an area which is wholly in England or which is partly in England and partly in Wales, means the Minister and the Secretary of State, acting jointly;
(c) in relation to an agreement with respect to land which is wholly in England, means the Minister; and
(d) in relation to an agreement with respect to land which is partly in England and partly in Wales, means the Secretary of State or the Minister.").
§ The noble Baroness said: I beg to move.219
§ Lord Stanley of Alderley moved, as an amendment to Amendment No. 369B, Amendment No. 369C:
§ In the proposed subsection (4), line 9, leave out ("(a)").
§ The noble Lord said: Before addressing my remarks to this particular set of amendments—that is, 369C to 369E—I should like to make a few general points. The first is to thank my noble friend for explaining the scheme as described in government Amendment No. 369B and in the schedule.
§ The first and vital point is that, although I support the efforts of the Government in getting the scheme off the ground, the Committee and the public at large must be made aware that, if the current proposals of the European Commission are accepted in full and this scheme is enforced to its extreme, a very substantial part of the United Kingdom could be made to grow grass only and just cut it. That is why I believe that it is the Committee's duty to discuss Amendment No. 369B and my amendments to it.
§ I am very pleased that Sub-Committee D is about to publish a report on nitrates. I hope that my noble friend Lord Middleton will speak on his views. It is a pity that we have reached this amendment before the sub-comittee has reported, but that is a fact of life.
§ With that background of most of the United Kingdom being obliged by law to grow grass for cutting only—no allotments, no gardens, no golf courses—I ask my probing questions. I put them in no particular order of priority; it is as they came into my head.
§ First, I am concerned about the possible effect that voluntary, not compulsory, participation in an NSA could have on the landlord-tenant relationship. I wonder whether my noble friend could say whether voluntary as well as compulsory participation in a nitrate-sensitive area will be a factor that will be taken into account by the arbitrator in a rent negotiation. I wonder also whether my noble friend could state whether such participation will be inherited by a succeeding tenant. That has been suggested, rightly or wrongly, in the farming press.
§ Secondly, I should like to know for what scientific reason the EC chose the figure of 50mg per litre as the safe limit, and whether the figure will be arrived at in the various areas by a series of tests at different times, or whether, as I suspect the EC are trying to say, it will be sufficient for just one test to activate an NSA.
§ Thirdly, I should like to ask my noble friend to give the Government's view on the effectiveness of having NSAs to control the level of nitrates in our aquifers. Might there be a case for using other methods rather than using an NSA, which might be ineffective, particularly if the level of nitrates in a particular aquifer was already extremely high? Bearing in mind that in East Anglia 40kg of nitrate per hectare fall from the heavens and it is necessary to get down to 20kg to get below the 50mg per litre limit, it sounds as though we have a problem.
§ Fourthly, my noble friend's amendment speaks of "any other land". Could this include gardens, allotments and golf clubs? I understand that on the 220 Continent the highest level of nitrate in water is to be found in towns or just round the edges of towns. Can gardeners, allotment holders and, indeed, golf courses, which also use nitrogen, be told to limit their nitrogen use? Of course, that includes farmyard manure and compost, which is exactly the same.
§ Fifthly and lastly, can my noble friend give me a definition of "good agricultural practice"? As she will realise, that vitally affects the compensation provisions. Does it mean a practice that produces maximum profitability?
§ Those are my general queries. Subject to the Committee's wishes, it might be helpful if I now formally move my Amendment No. 369C so that other noble Lords and my noble friend on the Front Bench may comment on the general points before I deal in detail with my amendments to my noble friend's amendment. If that is the Committee's wish, and I think it is the right way to do it, I now formally move Amendment No. 369C.
§ Lord Middleton
My noble friend Lord Stanley has raised some extremely interesting and technical questions in moving his amendment. It might be appropriate now if I speak to the Government's amendments—that is, Amendments Nos. 369B and 371C.
The powers given to the relevant Minister to make orders under this new clause which is set up under Amendment No. 369B arise from obligations imposed on the Government by European directives. Because those directives raise matters of importance to this country concerning public health and environmental matters, and because the water quality standards set by the Commission directly affect our water industry and agriculture, the House of Lords Select Committee decided to inquire in depth into the nitrate problem.
Sub-committee D, which I have the great privilege of chairing, was given the job and we have been taking evidence for the last six weeks. I have no doubt that when our report is laid before this House there will be the opportunity for a debate. I certainly do not wish to open up the subject now, except to say that if anybody thinks that the problem of nitrates in water is a simple one and that the solutions are easy to prescribe and to operate, he is under a delusion.
To start with, you have to look at the medical evidence to see just what danger to health is posed by nitrates in water. Fortunately in this country the danger is not very great, but my view is that the Community and this Government are right to take it seriously. The European Commission's limit of 50 milligrammes per litre of nitrate concentration in water is, according to the evidence that we have had, playing safe by a generous margin. My committee is taking steps to obtain the best scientific evidence available. Whether the Commission did that is to be examined. The deeper we delve, the greater the complexity.
There are other sources of nitrates, but from evidence that we have so far received it is broadly true to say, as does the Ministry of Agriculture's consultation paper, that the principal source of nitrate in water is nitrate leached from farmland as 221 a result of agricultural activity. Hence this new clause which gives the Government power to create nitrate sensitive areas within which agricultural activity may be restricted.
The Water Research Council has told us that in areas where aquafers are extensive—and my noble friend Lord Stanley referred to this—such as East Anglia, the vulnerable zones could cover very large areas indeed. The Water Research Council says that the effectiveness of the measures proposed is not without question. In terms of drinking water, the use of fertilisers and the spreading of manure may not be key elements in nitrate leaching, although they are undoubtedly contributory factors.
So it is quite obvious at this stage of our inquiry, because of the complex issues involved and the need for more research, that—this is my opinion—the Government are right to take a gradual approach and not to rush in with ill thought out measures. To put an immediate ban on chemical fertilisers containing nitrates, and to restrict livestock on huge tracts of our most productive farming country, runs the risk of endangering the nation's food supplies without necessarily reducing the health risk.
To illustrate some of the problems, most of the nitrates in the soil are derived not directly from fertilisers, most of which are taken up by the plants, but by the breaking down of organic matter such as ploughed-in grassland, and the rate of leaching of nitrate is infinitely variable according to the underlying geology and to the climate. In deep chalk formation, nitrate may take 40 years to reach the ground water. The delineation of sensitive zones will not be all that straightforward. A professor, who is also a civil engineer, was quoted to us as saying that in some cases you could not be sure within 50 kilometres where nitrates in water had actually been derived from at the surface.
There are more ways than one of treating water to remove nitrates, such as the blending of supplies or using denitrification units. In some areas these, or a combination of these, would be more cost-effective than restricting agricultural activities. In other areas agricultural restrictions would be better. In no case would it be cheap.
On the cost of water treatment alone—this has nothing to do with the cost of paying farmers; it is just the treatment of water—an estimate made for the DoE indicated that compliance with a limit of 50 milligrammes per litre would require immediate capital expenditure of £50 million and a further £150 million within 20 years. This is just to deal with nitrates. We shall be taking evidence from the Water Authorities Association tomorrow and I believe that these figures may be revised upwards. So it is vital to protect the purity of our water supplies, but we should make progress treating simple and perhaps popular prescriptions with caution. That, I believe, is the intention of the Government.
§ 7.15 p.m.
§ The Earl of Radnor
Perhaps I may comment first on the new clause of my noble friend Lady Trumpington and, secondly, on the amendments to 222 that new clause of my noble friend Lord Stanley, since he has formally moved them. I shall be quite brief. I have no questions to ask, but I should like to make a few general comments on the clause.
The whole of this question has to be seen in the context of the EC directive and the drama that it could cause among the farmers of this country, to the farmland and to the farm workers. It could—I say that advisedly—ripple on and cause all sorts of trouble so far as importing food and the balance of payments are concerned. It would be very difficult indeed for everyone.
When I speak about a drama, I mean it. In a farmer's life it would be dramatic. If someone was farming on, say, Humberside, which has beautiful rich arable land and is probably one of the spots where nitrate leaching would cause trouble, you would not want to be told after working in one way for a very long time that you had to do something totally different.
I am extremely grateful to my noble friend for bringing this clause forward. Perhaps she noticed that I withdrew my own few words on nitrates and compensation. Her schedule and clause are about three-and-a-half pages long. Although I realise that my amendment was not quite as it should be, I dealt with the situation by altering one word and adding four to the Bill. But I feel that somehow we must weight this clause more in favour of the farmer. Matters such as compensation are so dramatic and—to come on to the amendment of my noble friend Lord Stanley—they cannot be allowed to be permissive. The poor farmer who might be threatened must know that he will be compensated.
It has been admitted in the nitrate consultative document that the polluter pays principle just does not apply here. We are dealing with a situation that started before most people were fanning and they can hardly be blamed for it. They will be told that perhaps they must alter their life style and that they may be compensated. I do not think that is good enough. Following on from that, there must be proper recourse to the Lands Tribunal in case—
§ Lord Stanley of Alderley
Will my noble friend give way for a minute? I shall move that amendment in one second, plus all the others, and it might be easier if we just stick to the main point.
§ The Earl of Radnor
I apologise for treading on my noble friend's toes. I thought that he had formally moved the amendment. I do not want in any way to pre-empt what he might say. Perhaps I may finish by saying that at least this clause must be weighted more towards the farmer and away from regulations made in Europe which many people feel are quite unreasonable. I hope that my noble friend at some stage or other will be able somehow to strike a balance. On one side there are the risks to health, which it would seem are very slight indeed. The last known blue baby case was in 1972, and the other example of cancer of the stomach is suspect and very much in doubt indeed. On the other side there is what could be a very awkward situation for farmers and farmland in this country. I hope: that in some 223 way the farmer will be given more hope than he has at the moment within this new clause.
§ Lord Monk Bretton
I wish to make one point and ask one question about the main amendments moved by my noble friend the Minister. I am quite sure it is right to press on with this pilot scheme because that is the only way in which we shall learn more about this very complex problem. However, I wish to consider the situation that will arise after that scheme. It appears that there is no power for the Minister to charge the costs of these nitrate sensitive areas to the water plcs.
If by any chance the NSAs were very successful, particularly in certain areas, they would absolve plcs from the work of purification or blending that they would otherwise need to resort to. Where that was the case and the designation of land as a nitrate sensitive area was a cheaper remedy, should not the plcs pay something towards the costs? If there is no provision for the plcs to pay something, I have a feeling that they will continually press for nitrate sensitive area designation to save themselves from having to pay for purification and blending.
We should ensure that the plcs are motivated towards the most economic overall solution, rather than simply the most economic solution for them. If setting up NSAs costs them nothing, they may be motivated by that solution. It could be tiresome for the Ministry of Agriculture and for agriculture itself to have the plcs continually on their backs about this matter. We should continue to bear in mind the expensive and bureaucratic nature of NSAs, and also their uncertainty in effect. I do not know how much my noble friend can say about this now. I wish, however, to reserve my position for Report stage.
§ Lord Walston
I am in great difficulty over these amendments. I believe they are necessary and, on the whole, good. Obviously, however, certain parts of them could be improved. It is no fault of the Government, but it is unfortunate that in this case we are discussing an enormously complex problem with very wide ramifications simply as an amendment to a Bill which deals essentially with water supplies and sewage disposal. This matter embraces a very far-ranging, technical, scientific as well as agricultural and social problem.
I have great sympathy with the point which I believe was made by the previous speaker as regards who is responsible for pollution by nitrates. As I understand it, a great deal of the nitrate pollution stems from actions taken over 40 years ago or more. Any action taken now will not have any immediate effect in certain areas. The ploughing up of grassland during the war released a lot of nitrates which are slowly finding their way into the water supply. That is one of the complexities.
There are also the problems to which the noble Lord, Lord Stanley of Alderley, referred, of urban areas, gardens and, particularly in East Anglia, of rainfall. Those problems have nothing to do with farming practices as such. This scheme of nitrate sensitive areas will have no impact whatever on those problems.
224 Further, there is what one can call the economic problem of how recompense can be worked out for farmers. I agree that if their farming methods are interfered with by legislation or by Government edict they should be compensated. But how can that be worked out? I shall give the Committee an example of that. At the present time, farmers are busily engaged in dairying and grassland areas with making silage. I know of two farms that are adjacent to each other. One of the farms is a farm which the fanner inherited from his father many years ago. That farmer has no mortgage interest to pay and no rent charges of any kind. I shall not say whether that farmer is a good farmer or a bad farmer. He grows beautiful buttercups which look very pretty in among his grass. He applies very little fertiliser and he takes one cut of silage. Nearby is a farmer who has recently acquired his farm and has very heavy mortgage interest charges to pay. He farms in the best way that he was taught at agricultural college with plentiful applications of fertilisers. He already has one cut of silage. He has already applied his second dose of nitrates and will shortly be taking a second cut. He will then apply more nitrates and take his third cut.
That farmer would be very seriously affected by any restrictions on the use of nitrates which may quite rightly be imposed. He would be hurt very much by the restrictions and he would require considerable compensation. In certain cases the landlord would require compensation as the rent would have to be reduced. The first farmer I referred to will not make any changes in his fanning methods. He will require no compensation of any kind as he will continue in his old comfortable ways and farm moderately profitably.
That is simply one example of the kind of difficulties which will arise. We cannot discuss these in any detail when we are dealing with a Water Bill, but they must be discussed before we come to any final conclusion about what kind of control should be exercised over agricultural land which is contaminating the water supply. We should discuss what kind of control should be exercised and what kind of help will be given to the farmers and to the landowners who will be affected by this kind of provision, and how the whole thing is to be administered in an equitable and efficient manner.
I simply wish to bring out into the open just some of the problems which this whole attack on nitrates will create, and which it is already beginning to create. I accept that some form of amendment to this Bill is necessary in order to make it possible for the Government to control the noxious effluents which stem from the kind of farming we are used to today. One must admit however that we have been used to it for very many years.
§ Baroness Trumpington
We have rambled a little. However, now I shall return to answering Amendments Nos. 369C, 369D and 369E. Those amendments are interrelated and would affect the compensation arrangements for a nitrate sensitive——
§ Lord Stanley of Alderley
I am sorry to interrupt my noble friend, but I have not spoken to those amendments. I thought we came to an agreement that the Minister would answer the general questions before I moved those three amendments. I have not moved them yet.
§ Baroness Trumpington
I shall answer the general questions as asked by various Members of the Committee. I believe the first question that my noble friend Lord Stanley of Alderley asked me concerned participation in the NSA scheme affecting the rent of a holding. I must be forgiven because we have strayed a little during the course of this mini-debate.
Only the courts can give an authoritative interpretation of the legislation. However, at a rent arbitration under the Agricultural Holdings Act 1986 an arbitrator must take account of all relevant factors and certain specific ones. In our view the relevant factors would include the fact that the tenant had entered the scheme, and the restrictions, which he had therefore accepted and the payment for income forgone which he was receiving under the scheme.
The noble Lord asked whether a new tenant would be bound by his predecessor's decision. The answer is, no. An agreement to participate in voluntary measures under an NSA scheme would bind all persons deriving title from or under the person entering the scheme. A new tenant would not be bound because he would have derived his title from the landlord rather than from the outgoing tenant.
My noble friends Lord Middleton and Lord Stanley of Alderley spoke about the Government basing nitrate policy on the 50 mg per litre limit. The government policy is based on that limit in the drinking water directive because that is the maximum limit which, on both legal and medical advice, I am told we must aim to meet. The Commission proposal for an EC nitrate directive is still at a very early stage of consideration in Brussels. The Government have already made it clear, however, that any policy must take account of natural seasonal fluctuations in nitrate levels in rivers. We should be opposed to designating such catchment areas where the surface water exceeds 50 mg per litre only temporarily in the autumn but where nitrate levels are on average through the year below that figure.
The Government also believe that the 50 mg per litre nitrate limit in the drinking water directive should be met by agricultural restrictions, or by water blending or purification, or by a mixture of measures depending on what is most effective in local circumstances.
How can the Government be sure, scientifically, that the measures they will adopt in the pilot NSAs will work? The measures taken in the pilot areas will be based on the best scientific advice available at the time. We realise that the understanding of nitrate leaching is incomplete, and that is one of the reasons for proceeding initially with pilot schemes. The result of the schemes will be monitored carefully, mainly by taking samples of the water leaching from the surface using lysimeters or porous cups and by analysing their nitrate content.
226 Both my noble friend Lord Stanley and the noble Lord, Lord Walston, spoke about the restrictions also applying to other polluters—golf courses, allotments etc. I cannot say in advance whether measures applied to farmers will apply to others because that will depend on, among other things, whether other polluters are making a significant or major contribution to the problem. However, the Government are taking powers to control other polluters in water protection zones through Clause 108 of this Water Bill. Clearly the aim will be to adopt a policy that is fair to all concerned.
In general, good agricultural practice is the practice one should reasonably expect farmers to adopt, given the need both for a viable and profitable enterprise and for the avoidance of pollution. It will not, however, be easy to define good agricultural practice in detail, and that is one of the points on which the Government are currently seeking the views of interested parties in our consultation document on the nitrate sensitive areas scheme.
My noble friend Lord Monk Bretton asked me about power to charge NSA charges to water plcs. There will be no such power because it would not be right to compel water plcs and consumers to finance compensation to farmers.
I am very grateful to my noble friend Lord Middleton for his words. These are new schemes which inevitably contain an element of experimentation. We are therefore proceeding cautiously, but I hope the Committee will agree that it is a start, and a good one, in very difficult circumstances.
§ Lord Stanley of Alderley
I am sure that I shall be out of order, but first of all I should like to thank my noble friend very much for those very good answers. At least we now know where we are. We may not like the answers, but that is another matter.
Perhaps to be in order, I may now speak to my Amendment No. 369C and also to Amendments Nos. 369D and 369E, which go together. This will not take very long.
§ Baroness Trumpington
This is a matter for other channels, but what are we going to do about food? I have to answer my noble friend. Perhaps we could continue after dinner.
§ Lord Stanley of Alderley
I am perfectly happy to do so, but it is a matter for the noble Lord the Deputy Chairman.
The Earl of Dundee
Perhaps the Committee will agree that we have a break now and return to the Committee stage in an hour's time, at 8.35 p.m. I beg to move that the House do so resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.