Environmental Protection Bill

HL Deb 02 July 1990 vol 520 cc1933-2006

5.20 p m.

Lord Reay

My Lords, on behalf of my noble friend Lord Hesketh I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Reay.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Lord Graham of Edmonton moved Amendment No. 314A:

After Clause 94, insert the following new clause: ("Amendment to procedure in connection with registrations and a authorisations . In subsection (1) of section 11 of the Radioactive Substances Act 1960 (referred to in this Part as "the 1960 Act") (procedure in connection with registrations and authorisations), for the words "may afford to such local authorities or" there shall be substituted the words "to any local authority within whose area the keeping, use, disposal or accumulation takes place (or is expected to take place) or which is otherwise affected by such an activity, and may afford to".").

The noble Lord said: I beg to move Amendment No. 314A standing in the name of my noble friend Lord McIntosh of Haringey. The purpose of this amendment is to insert a requirement into the 1960 Act for local authorities to be given the opportunity of a hearing as regards applications for the keeping or disposal of nuclear material and other such matters in their areas before the Secretary of State makes a decision.

At present under Section 11 of the Act the Secretary of State has discretion on whether to involve a local authority. The issues raised by the amendment have already been discussed on previous occasions. The Dudley case will be well known to the Minister. The problem encountered by Dudley Metropolitan Borough Council is paramount, stark, real and relevant. In summary, Dudley Metropolitan Borough Council took the Secretary of State to court and won. The subject of the case was an incident where the Secretary of State had granted an application under Section 6 of the 1960 Act for a waste disposal plant to treat radioactive substances on a local industrial estate close to residential development.

The issue was pursued in the House of Commons by my honourable friend Ms. Joan Walley MP, who subsequently set out the issue in a letter to a Minister. A reply to that letter has now been received. The letter from Ms. Walley of 15th May pointed out that a revised authorisation to dispose of radioactive waste at the Peartree Lane site was issued after the court case, again without the council being afforded the opportunity of a hearing.

The particular concern in the Dudley case related to the authorisations under Section 6 of the Act, which covers disposal of radioactive waste or material. This amendment has been drafted so that a hearing would be required for a local authority in the following instances of consents under the 1960 Act. A hearing would be required for the registration of premises on which radioactive materials are kept; the registration of mobile radioactive apparatus; the disposal of radioactive waste; and the accumulation of radioactive waste with a view to subsequent disposal.

I move this amendment at this stage to test the principle of the involvement of local authorities in a decision as representatives of the local community on this sensitive matter. It would be helpful if the Government could give any indication of their attitude to Section 6 applications. This is a probing amendment. I do not intend to press it. We may or may not come back to the issue on Report.

The Minister may well say that he has taken steps to secure that local authorities are notified of applications that have been granted in the various kinds of cases that are covered by the 1960 Act. However, that is like slamming the stable door after the horse has bolted. Notification after the event does not meet the basic objection encountered in the Dudley case, which is that if the local council has no voice, the local community is effectively deprived of any involvement in such applications.

We contend that the state of the law is highly unsatisfactory. In the Dudley case the Secretary of State conceded in court that he had not directed his mind to the question of whether the council should be afforded a hearing before he made his decision. The interpretation by the Department of the Environment of the Act had in practice been to consider whether to give a local authority a hearing only in the case where the applicant himself had chosen to take up the opportunity of a hearing. In the Dudley case the applicant did not seek a hearing and the first that Dudley heard of the authorisation was when it received a copy of it after it had been granted.

This is a serious matter. I remind the Committee that the incident at Dudley could happen anywhere else. I am indebted to Dudley Metropolitan Borough's legal officer for giving me the basic facts. The matter arose on 9th November 1988 when, without any prior consultation or discussion, the council received from Her Majesty's Inspectorate of Pollution a copy of an authorisation issued to Waste Incineration Services Limited permitting the disposal of solid and liquid organic radioactive waste at the Peartree Lane site. The accompanying letter stated: low level solid, liquid or gaseous waste within the limits set out in the authorization might be safely discharged to the environment … no special measures need be taken by the Council. That is highly contentious. Certainly the right of a local authority at least to state its case before such an application is granted is, at the very least, eminently sensible.

When that letter was received, the council replied and objected to the authorisation on three grounds. First, it objected to the lack of consultation and, secondly, to the fact that the disposal plant was not yet fully commissioned. Thirdly, the council stated that the waste disposal licence had not yet been agreed or finalised. In reply to that letter, the inspectorate responded to those objections by stating that it remained satisfied that the authorisation should take effect.

When the appropriate committee of the local authority met, it became extremely concerned at the authorisation to dispose of radioactive waste without any prior consultation or discussion with the council. I hope no one in the Committee thinks the council was being alarmist, unduly pessimistic or unduly anxious in wanting some discussion. It was not asking for the right to make a decision but merely for some discussion on the authorisation that affected the borough. The legal officer of the authority informed me that its committee considered that the Secretary of State's action had been "highhanded, cavalier and unreasonable". The Committee was most anxious to pursue the possibility of challenging his action by way of judicial review. That right was granted and a hearing took place. The council was delighted when its application was successful. The court granted the declaration sought; namely, that the Secretary of State was under a duty to consider whether he should afford the Council the opportunity of a hearing under Section 11(1)(c) of the Radioactive Substances Act, 1960 before issuing an authorisation to dispose of radioactive waste to Waste Incineration Services Ltd.". At the hearing an undertaking was given on behalf of the Secretary of State that he would give proper consideration to this point before issuing a fresh authorisation under the Act.

I wish to refer briefly to a letter which my honourable friend in another place, Joan Walley, received from Mr. David Heathcoat-Amory. It stated: On the general issue, you propose that local authorities should have an automatic right to a hearing. I cannot agree. For at least thirty years the control of radioactive substances has been and should remain a central government responsibility". I hope the Committee will agree that local authorities should have an automatic right to a hearing. No one is arguing that it should be other than a central government responsibility. We are arguing that a local authority should have a right to state a case before that responsibility is discharged.

The Minister went on to say: It is a matter for local authorities only where the proposed disposal has a significant effect on the locality".

Who is to decide whether it will have a significant effect on a locality? He continued: or where the local authority must take special precautions as the result of a disposal. In such cases the existing requirements of RSA60 quite rightly require the proper consultation with a local authority and other public authorities concerned". I hope that I have indicated, in a sober manner, the seriousness of this small point in this massive Bill. The opportunity to raise the matter has been presented because the Government are quite rightly doing a great deal to strengthen the protection of the environment. I believe that it is a matter of principle and not one of party animus. It is a matter of interpretation, but I can assure the Minister that the Association of Metropolitan Authorities which has briefed me in this matter looks upon it as a very serious matter indeed. I beg to move.

5.30 p.m.

Lord Reay

The effect of the amendment would be to oblige the Secretary of State to give the opportunity of a hearing in respect of every registration and authorisation to the local authority in whose area the activity occurred and to any other such authority affected by the activity. Under the Radioactive Substances Act 1960 at present a hearing must be given on request to any person refused a registration or authorisation or who has been granted one subject to conditions. The Secretary of State must consider whether to afford a hearing to such local authorities or other persons as he considers appropriate. Following the outcome of the Dudley case to which the noble Lord, Lord Graham of Edmonton, referred, the Secretary of State specifically considers affording a hearing to the local authority and others regardless of whether the recipient does or does not request such a hearing.

I am afraid that we do not agree with the amendment proposed by the noble Lord. In many cases, particularly regarding registrations in respect of the keeping and use of radioactive material, local authorities will have no role to play nor action to take. We can therefore see no case for giving them an automatic right to a hearing in such circumstances. In cases where local authorities play a role in the relevant activity, for example where the disposal would take place on a local authority site, that will be taken into account by the Secretary of State in considering whether to grant a hearing.

I must, however, draw the attention of the Committee to the changes which we are introducing to the system in the Bill. The hearing system is being retained but only in respect of the larger operations involving the United Kingdom Atomic Energy Authority or premises with a nuclear site licence—for example, a nuclear power station. In those cases local authorities are required to be consulted and that fact will be taken into account when considering the issue of a hearing.

The vast majority of applications—there are at present nearly 9,000 as opposed to the 30 major operations—will in future, under the provisions of paragraph 10 of Schedule 5, be subject to an appeals procedure to the Secretary of State against the decision of the chief inspector, who is taking over the power of authorisation and registration. Once again, where a local authority is required to take some action, for example, where disposal to the local authority disposal site arises, the local authority will be consulted.

The details of the appeals procedure will be the subject of secondary legislation but it is the Government's intention that where there is an appeal to the Secretary of State local authorities which have been consulted because they are required to take some action will be able to make representations.

Finally, I should mention that under the provisions of the Bill, as part of our move to more openness, copies of all applications will be sent to the local authorities in whose area the proposed activity will take place. In referring to the copies of the Section 6 applications, the noble Lord, Lord Graham, suggested that this was a question of shutting the stable door after the horse had bolted. Applications will be passed to the councils before an authorisation is granted, thus giving the authority the necessary opportunity to comment.

The overall effect of the provisions is that local authorities will be kept fully informed of all proposals for keeping, using, accumulating or disposing of radioactive substances. They will be consulted where they have a role to play, and where they have such a role they will have the opportunity to make representations.

Lord Clinton-Davis

With respect, I believe that the noble Lord's answer to the case which was presented very reasonably by my noble friend Lord Graham indicates a somewhat high-handed attitude on the part of the department, not simply about local authorities. As my noble friend said, the Secretary of State has the discretion to determine in this instance whether the local authority may have a locus in the matter. It also indicates a high-handed attitude towards the local populace.

One of the difficulties that has constantly confronted local government and people involved in the disposal of waste, particularly in such a sensitive area as radioactive waste, is that local people feel cut out of the decision-making process. It is surely not a good thing for many people to feel disenfranchised. They then frequently become very hostile to the objectives which are being pursued in terms of disposal. I should have thought that a somewhat less rigid attitude on the part of the department would have been reasonable in these circum stances.

To what extent does the noble Lord who has spoken for the Government suggest that this would be an impediment to the decision-making process? If local authorities have no locus in the matter they will not wilfully interfere. They want to carry out their responsibilities to the local electorate. They frequently find that this is an area which is particularly sensitive. It is an area which, if that sensitivity is not recognised, can so frequently give rise to unjustified hostility. Therefore, in the interests of making decisions which are seen to be democratic, it is probable that the purposes which the Government want to put forward will be advanced rather than hindered.

To that extent, therefore, I find the Government's response not only disappointing but also foreign to their own purposes. Therefore, I join with my noble friend in asking the Government to reconsider the statement that has just been made so that when we come to the Report stage of the Bill we might hear something rather more positive from them than has been the case this afternoon.

Lord Graham of Edmonton

Like my noble friend Lord Clinton-Davis, I am baffled as to what impediment to progress or the speed of the planning process would result if a local authority is given the right to state its case. It does not necessarily follow that given the right to state a case the authority will wish to state it on every occasion. The rules provide that the Secretary of State will have the discretion to decide whether or not to provide a local authority with the opportunity to state a case. That is all very well, but this is a question of whether the man in Marsham Street knows better than the man in Dudley town hall or any other town hall.

I repeat what I said earlier when I made my substantive case. There is no question of challenging the right of central government and its agencies to make the decisions. The Chamber is full of people who have experience of serving on local, metropolitan, London borough or county councils. Mistakes can happen and when something dreadful occurs, whether it relates to an obnoxious smell or is a danger or whatever, people turn first to the local council and ask, "What did you say or do?" It is bad for democracy if the answer of the local council is, "Well, we wrote a letter. That is all that we could do. We sent for the Member of Parliament and he tried to do something. But our powers were limited".

The Minister said that they—the Government—will decide in circumstances in which they consider that the local authority has no role to play. I cannot envisage any application in which the local authority has no role to play, though I can well imagine it not being actively involved in giving planning permission and oversight, etc.

The Minister and, I believe, his advisers entirely misjudge the raison d'être of a local council and councillors. They are responsible for what happens in their communities. They may not be legally responsible. However, most people look to their town hall for some protection and assurance. We believe that the local authorities should have an automatic right.

The Minister tried to fob off the charge by saying that in future copies of all applications would be submitted to the local council. I can imagine that causing even more aggravation. Copies of applications will be sent to the local council but it will not have the automatic right to put a case against them. Its views may very well be sought but it will not be able to attend a hearing.

I am afraid that the Minister has been less than fair to what is a community point of view although it is a non-political point of view. I intend to withdraw the amendment but before doing so I wonder whether the Minister has anything further to say on this matter.

Lord Reay

I do not have much to add to my original reply to the amendment. I reject the charge that the Government are being high-handed in this matter. Following the outcome of the Dudley case and as a result of the decision on that occasion, the Secretary of State specifically considers affording a hearing to local authorities and others regardless of whether such a request for a hearing is made by the recipient.

I believe that the noble Lord recognises our position. Where a local authority is required to take some action then the local authority will be consulted; but in other cases we do not believe it appropriate that the local authority should have an automatic right to be consulted.

Lord Graham of Edmonton

That is a disappointing response. The Minister in effect is again saying that—to use the clumsy phrase—the men in Marsham Street know better than the people in the local town hall about the depth of feeling and anxiety of local councillors. Those who serve on local councils will no doubt take careful note. This is not a tuppenny-ha'penny affair. A great deal of damage can be done to public confidence in the absence of the local authority (of whatever political persuasion) being given the opportunity to go back to the community and say, "At least I told the inspector or the man from the Ministry what we, the local representatives, think".

The Minister has done nothing at all to allay the natural anxieties of people in the local areas. We listened carefully to what he had to say. We shall certainly come back to this matter at the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Clause 95 [Fees and charges under 1960 Act]:

The Earl of Strathmore and Kinghorne moved Amendment No. 315:

Page 102, line 43, leave out ("sections") and insert ("section").

The noble Earl said: In moving this amendment I should like to speak also to Amendments Nos. 320 and 323. Amendments Nos. 315, 320 and 323 are designed to simplify the drafting of the Bill. Amendment No. 323 removes from Clause 95 the separate new provision on fees and charges for Scotland, but the effect of that provision is retained by Amendment No. 320. As a result of these changes, the effect of the clause will remain unaltered but the clause will be a little shorter. I beg to move.

On Question, amendment agreed to.

Lord Reay moved Amendment No. 316:

Page 103, line 5, leave out ("for varying") and insert ("in respect of the variation of").

The noble Lord said: This is a group of minor amendments designed to clarify the Government's intentions in Clause 95, which provides for the introduction of a charging scheme. It is our aim that fees and charges levied under the scheme should cover the cost of administration of registrations and authorisations at all stages. That includes consideration of applications and the issue of the registration and authorisation documents; related inspections; assessments of existing and new plant and sites for the purposes of registrations and authorisations and the effects that they might have on the environment; and monitoring the environment for compliance with registrations and authorisations.

The new Section 15A(4) as currently drafted enables the recovery of expenditure relating to registrations or authorisations effected or granted under the provisions of the 1960 Act. This wording would allow charging for the work involved in approving the registration or authorisation but does not make it clear that it would enable recovery of costs such as inspection and assessment work nor the costs of monitoring radioactive discharges.

Amendment No. 321, by referring to the functions relating to the registrations and authorisations, clarifies the scope of the clause to embrace the full range of costs which the Government are seeking to recover.

Amendments Nos. 316, 317 and 318 are technical amendments, designed to ensure consistency of drafting within Section 15A(1). Section 15A(1)(a) refers to fees payable in respect of applications, and these amendments provide for the same phrase to be used when referring to fees payable for varying registrations and authorisations (in paragraph (b)) and charges payable for the subsistence of registrations and authorisations (in paragraph (c)). I commend these amendments to the Committee. I beg to move.

On Question, amendment agreed to.

Lord Reay moved Amendments Nos. 317 and 318:

Page 103, line 6, leave out ("for varying") and insert ("in respect of the variation of").

Page 103, line 11, leave out ("consideration") and insert ("respect").

On Question, amendments agreed to.

Lord Lucas of Chilworth moved Amendment No. 319:

Page 103, line 14, leave out from ("and") to end of line 16 and insert ("if it appears to the enforcing authority that the holder of an authorisation has failed to pay a charge in due consideration of the subsistence of the authorisation, he may, by notice in writing served on the holder, revoke the authorisation.").

The noble Lord said: In moving this amendment I should like to speak also to Amendment No. 322 but not, as the grouping suggests, to Amendments Nos. 324 and 325 because Amendments Nos. 324 and 325 deal with notices while the former amendments deal only with charges.

The first amendment largely seeks to bring Part V into line with the rest of the Bill, particularly Part I. The replacement section which forms the core of this amendment comes directly from Clause 8(8) of the Bill. I suggest to the Committee that it provides some continuity and indeed consistency where fees and charges are concerned. Surely the conditions of an authorisation should relate solely to the running of a plant. It cannot be said that charges relate in any manner or form to the operation of that plant. Hence they should be excluded from the conditions of an authorisation.

A charging scheme should run independently of an authorisation procedure so that charges can be recoverable as an ordinary debt in the usual way. I understand that that is so in the case of cost recovery charges which are made currently by the nuclear installations inspectorate to site licences. It is also likely to be of value to the authorities since they will be able to alter the structure of a charging scheme without the authorisation; and to do so more easily if it is not fixed in legislation.

The way that the Bill is currently framed means that industry may be asked to pay twice for the same thing. Without Amendment No. 322, I can see very little discipline being applied to a control authority to avoid any duplication of effort and thereby cost. The nuclear industry is particularly vulnerable to double charging; so also are other industries since many carry out their own monitoring procedures. Industry can carry out monitoring and produce results. Why cannot those results be deemed acceptable to a control authority if that control authority has already agreed the criteria? Otherwise, we shall see a control authority producing its own monitoring. That may well have a greater expense attributed to it. It may also encourage industry to reduce its own efforts in monitoring. Therefore something can slip through the net.

Why cannot we have a co-ordination of monitoring so that we have the same criteria? I can see no such provision in the Bill. We could thereby reduce both effort and costs. That is the substance of the two amendments. I beg to move.

Lord Reay

Amendment No. 319 would remove from the conditions of authorisation the requirement that arty applicable charge must be paid and proposes instead to give the chief inspector the power in cases of non-payment to revoke the authorisation.

It is our view that the current drafting is more effective in the context of this part of the Bill. By making payment of prescribed charges a condition of authorisation, it gives the chief inspector greater flexibility in his response to non-payment. Instead of having to make a choice between doing nothing and revoking an authorisation—which could be the effect of my noble friend's amendment—he has other options open to him such as issuing an enforcement notice or initiating a prosecution. That would be particularly relevant where the chief inspector wished an authorisation to continue; for example, in a university or hospital where perhaps more than one activity might be covered by a single authorisation and where it would be inappropriate therefore to revoke the authorisation.

In Amendment No. 322 my noble friend proposes that where an operator is required as a condition of his authorisation to carry out monitoring, he should not be required to meet the cost of monitoring carried out by the control authority. I am afraid that we cannot agree with the intention of the amendment. In accordance with the polluter-pays principle, we intend to recover from operators the costs to government of undertaking their duties under the Radioactive Substances Act 1960. This intention was clearly set out in our recently published consultation document on the proposals for the amendment of the 1960 Act, and was strongly supported. None of the respondents raised objections to the principle involved.

I believe it is quite right that as a condition of an authorisation an operator can be required to carry out certain types of monitoring; and that if a chief inspector regards it as necessary that other monitoring should be carried out by him, then those costs should also be borne by operators. Where monitoring is carried out by both parties, that carried out by the control authority will not duplicate that carried out by the operator; rather it will supplement it, as necessary.

Lord Lucas of Chilworth

I am grateful to the Minister for his response. On the first amendment, I do not believe that it gives the inspector flexibility; I believe that it gives him a much greater leverage. If he can close down a plant by the somewhat punitive tool of the charge, that does not seem to show much flexibility. I shall wish to consider what my noble friend has said at rather greater length. I may wish to come back to it later.

On Amendment No. 322 my noble friend misunderstood my intention a little. There is no intention to escape the now generally accepted principle that the polluter should pay. It is a question of whether the polluter should pay twice. He gives me no encouragement in his answer to suggest that there should be a proper and joint consultation to ensure that there is no overlap between the monitoring process undertaken by the company's own inspectorate and the control authority. Again I shall wish to consider the matter further. I may wish to bring it back at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Strathmore and Kinghorne moved Amendment No. 320:

Page 103, line 31, at end insert ("and different schemes may be made and revised for different areas.").

On Question, amendment agreed to.

Lord Reay moved Amendment No. 321:

Page 103, line 37, leave out from ("Food") to end of line 39 and insert ("in exercising or performing their functions under this Act in relation to registrations and authorisations").

On Question, amendment agreed to.

[Amendment No. 322 not moved.]

The Earl of Strathmore and Kinghorne moved Amendment No. 323:

Page 103, leave out from beginning of line 43 to end of line 9 on page 104.

On Question, amendment agreed to.

Clause 95, as amended, agreed to.

Clause 96 [Enforcement powers of chief inspector]:

6 p.m.

Lord Graham of Edmonton moved Amendment No. 323A:

Page 104, line 21, at end insert ("or (c) is keeping, using, disposing of or accumulating radioactive material, or using mobile radioactive equipment, in a manner which is causing, or which in his opinion may cause, harm to the environment or to human health").

The noble Lord said: I beg to move Amendment No. 323A which stands in the name of my noble friend Lord McIntosh of Haringey.

The purpose of the amendment is to insert a criterion under the new provisions on enforcement notices, whereby the chief inspector may take action where he considers that there is damage to environment or health. The amendment also draws attention to disparities in drafting between the new Sections 11B and 11C contained in Clause 96 whereby the environmental issue is addressed in the latter.

New Section 11B, inserted into the Radioactive Substances Act 1960 by the first part of Clause 96, is intended to set out the grounds on which the chief inspector may serve an enforcement notice on a person operating under licence within terms of the Act. Under the new section as drafted, the criteria which the chief inspector may use are limited to a failure to comply with a limitation under the authorisation, or a likelihood of such failure to comply. A notice once issued must state the chief inspector's opinion, specify the matters constituting the failure (or likely to constitute a failure) and specify the steps to be taken. These provisions in subsections (1) and (2) of the new section fall short of enabling the chief inspector to issue an enforcement notice where damage to the environment or health is anticipated.

The first amendment would, therefore, give the chief inspector powers where he believed that radioactive material was kept, used, disposed of or accumulated (or such equipment used) in a way which was causing or was likely to cause harm to the environment or to human health, specifying steps to remedy the matter. The purpose of Section 11B, therefore, is to give the chief inspector a power to order a tightening up of standards, or a clean-up operation, as a means of limiting or averting harm while falling short of a full prohibition. The second amendment is a consequential amendment on this provision.

It might be considered curious that the approach adopted in these amendments is reflected in the second section, Section 11C contained in Clause 96. Under subsection (1) of that new section, the chief inspector has power to serve a notice where he considers that the carrying on of an activity involves an imminent risk of pollution of the environment or harm to human health. A notice under Section 11C may be served whether or not licence conditions are being complied with, and includes a requirement that the activity shall be suspended until specified steps to reduce or avert the harm have been taken. In other words, the power to go beyond the condition of the licence and to assess the damage to health or to the environment exists in respect of more serious cases which may lead to a prohibition notice but does not exist in cases where smaller steps only are to be taken.

The Minister may reply that Section 11B is intended to deal only with the enforcement of licence conditions and that serious cases involving a prohibition or cessation of activity can be dealt with under Section 11C. The problem with that interpretation is that small examples of damage to the environment or to health, which might not in themselves justify a prohibition notice, will fall between the two sections. Under subsection (3) of Section 11C there is a requirement that a notice shall direct that an authorisation shall cease at least in part while the notice is in effect. In other words, Section 11C can be used only where the inspector is prepared to suspend or revoke the licence. It appears that it will not be effective in cases where (perhaps as a result of the increased understanding of the technology) there is understood to be damage to the environment or to health, but not of such significance that a stop notice will immediately be justified.

I am asking the Minister to consider whether there is not a small but perhaps significant loophole in these provisions. And more generally, I ask him to explain the thinking behind the difference in the scope of these two new sections. I beg to move.

Lord Reay

Clause 96 introduces new enforcement powers for the chief inspector. These are the powers to serve enforcement notices and prohibition notices. The chief inspector may serve an enforcement notice if he is of the opinion that a person is failing to comply, or is likely to fail to comply, with any limitation or condition subject to which any registration or authorisation issued under the Act has effect. Should the chief inspector be of the opinion that the continuation of a register or authorised activity risks causing pollution to the environment or harm to human health, regardless of whether or not the conditions of the registration or authorisation have been breached, he may serve a prohibition notice. These powers reflect our determination to prevent pollution wherever possible. I am sure that they will generally be welcomed by the Committee.

The amendments proposed by the noble Lord, Lord Graham, on behalf of his noble friend, demonstrates his anxiety that effective action should be taken to combat pollution or the threat of it. I fully share his anxiety and for that reason we have introduced the two new enforcement powers. We believe that the amendments are unnecessary because we have already catered for his anxiety.

Amendments Nos. 323A and 323B would have the effect of empowering the chief inspector to serve an enforcement notice if he were of the opinion that a person was keeping or using radioactive material, or mobile radioactive apparatus, or accumulating or disposing of radioactive waste in such a manner as to cause or threaten to cause harm to the environment. The Bill as drafted already empowers the chief inspector to deal with those situations effectively.

Registrations and authorisations issued under the Act contain stringent conditions which prevent a registered or authorised person from acting in such a way as to cause harm to the environment or to human health. Should he do so he will be in breach of his conditions and Clause 96 enables the chief inspector to serve an enforcement notice on him. Should immediate action be needed—for example, if a person is acting in such a way that, in the opinion of the chief inspector, harm to the environment or to human health may be caused and such harm is considered to be imminent—that person may be served with a prohibition notice. Therefore, the two types of notice effectively complement each other. I hope that the noble Lord will accept my explanation and will not press his amendment.

Lord Graham of Edmonton

I am grateful to the Minister for the care that he took in stating his case and pointing out, perhaps fairly, that the amendments are unnecessary. I am used to being told by Ministers that my amendments are unnecessary and, aggravatingly, finding that they are unnecessary. I do not doubt that again the Minister is right.

We are dealing with sensitive issues. The Minister has told me that the chief inspector has the power to act quickly and arbitrarily in order to assure the public and to threaten someone who he may suspect of acting in a way which is ultra vices his permission. If the power is already contained in the Bill that will set at rest the mind of the Association of Metropolitan Authorities which represents many local authorities. The Minister's reply will be read carefully. I doubt that I shall need to return to the matter at a later stage but if necessary I shall. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 323B not moved.]

Lord Lucas of Chilworth moved Amendment No. 324:

Page 104, line 42, at end insert: ("(c) A person on whom an enforcement notice is served may appeal against the notice to the Secretary of State,").

The noble Lord said: I wish to speak also to Amendment No. 325. I am grateful to the Minister for dealing with the two amendments separately. They deal with enforcement notices and prohibition notices. As the Bill is drafted there is no right of appeal in the event of an enforcement notice or prohibition notice being served on an industrial company. In all fairness to industry there should be such a right of appeal. It would allow a company to put its case to the Secretary of State or to a person nominated by the Secretary of State if that were the wish.

One must bear in mind that in the industry dealing with radioactive substances a refusal without the ability to put one's case can be extraordinarily costly to a company in monetary terms and, more importantly, in terms of its reputation. In Part I, Clause 15 provides for appeals as respects authorisations and against variation, enforcement and prohibition notices. Although the subject matter in Part I and this part may be different, surely the natural justice element is precisely the same. It is on that basis that I beg to move Amendment No. 324.

Lord Reay

Amendments Nos. 324 and 325 seek a right of appeal for operators in respect of enforcement and prohibition notices. However, I am informed that that right is already given in Schedule 5(10) in the new Section 11D(2). It applies to any person. Therefore my noble friend can be reassured by that.

Lord Lucas of Chilworth

I am most grateful to the Minister for pointing that out to me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 325 not moved.]

Clause 96 agreed to.

Clause 97 agreed to.

Clause 98 [Application to Crown of 1960 Act]:

On Question, Whether Clause 98 shall stand part of the Bill?

Lord Renton

I have given notice to the Lord Chairman and to my noble friends on the Front Bench that I wish to refer briefly to Clause 98. It provides that, with the exception of MOD premises, those occupied by visiting forces and Her Majesty in her personal capacity, the Crown shall be bound by these provisions. It also provides that instead of criminal prosecutions where there has been a breach of the requirements of the Act, the High Court, or the Court of Session in Scotland, may on application from the enforcing authority make a declaration of non-compliance.

One welcomes this modification of Crown privilege. This point was raised at midnight one evening last week and my noble friends are considering the matter in relation to statutory nuisances. I hope that we have this right or nearly right now. However, one should bear in mind that, although subsection (1) of the new Section 14 of the 1960 Act is welcome—it states that the provisions of the Act shall bind the Crown—subsection (2) states that it does not apply to premises: occupied on behalf of the Crown for naval, military or air force purposes or for the purposes of the department of the Secretary of State having responsibility for defence". Nor does it apply: for the purposes of a visiting force". I cannot expect a reply on this point from my noble friend at present. However, we should be assured at a later stage of the Bill that visiting forces, being exempt from the provisions of this important Act, have given an undertaking that they will nevertheless comply with it, because we have very large visiting forces here. We welcome them. However, we expect them to co-operate in the protection of the environment and to join, I hope, with our armed forces in setting an example to the rest of the Community.

Therefore, at a later stage I should like to be assured that measures are being taken to ensure co-operation. I need say nothing further except that I hope that my noble friends will take on board this very gentle warning. We shall have to return to this matter on Report.

Lord Reay

I am grateful to my noble friend and I am extremely interested in what he said. I shall read carefully what he said, consider it and then take the matter from there.

Clause 98 agreed to.

Clause 99 agreed to.

Schedule 5 [Further Amendments of the Radioactive Substances Act 1960]:

6.15 p.m.

Lord Tordoff moved Amendment No. 325A:

Page 165, line 35, at end insert: ("( ) In subsection (3) (offences relating to the disclosure of information)

1. (a) for the words "relating to any relevant process or" there shall be substituted the words "whose disclosure is contrary to the interests of national security or which relates to any"; and
2. (b) the definition of "relevant process" shall be omitted.").

The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 325E and 325F. Members of the Committee who were involved in the passage of the Food Safety Bill through this Chamber may remember that I moved amendments stimulated by the Campaign for Freedom of Information on the question of manufacturing processes. After consultations with the Government, they were good enough to modify their original provisions, believing that, as we said, they were unnecessarily stringent.

I say straight away that the current Bill is welcome in that it goes a long way down the route of positive disclosure of information and nothing I say should detract from that. As we know, it extends the public's right to information in various areas by requiring public registers containing certain specified information to be available to the public.

Schedule 5 deals with amending the provisions of the Radioactive Substances Act 1960 which regulates the use of radioactive materials and disposal of waste. My amendments seek to modify the new disclosure provisions of the current Bill. Section 13(3) of the 1960 Act states: If any person discloses any information relating to any relevant process or trade secret used in carrying on any particular undertaking which has been given to or obtained by him under this Act or in connection with the execution thereof, he shall … be guilty of an offence under this subsection". That offence can carry a maximum penalty of two years' imprisonment. The current Bill increases the fines which can be imposed for this offence on summary conviction from £400 to £2,000.

The key to that section is the words: any relevant process or trade secret".

The Bill's disclosure provisions also steer clear, in other parts, of the phrase "relevant processes". No information about a relevant process or trade secret or information which the Secretary of State has directed must not be disclosed on national security grounds will be disclosed under the new disclosure provisions.

Relevant process is defined as: any process applied for the purposes of, or in connection with, the production or use of radioactive material".

That seems to us to be rather too wide. It is possible that that definition was inserted into the 1960 Act on the assumption that the use of radioactive materials was largely to do with atomic weapons production and that "relevant process" was an all-embracing way of saying "national security". One understands that that might have been the case. Civil nuclear power was in its infancy and some of the current uses of radioactive materials in consumer products such as smoke alarms or for food irradiation were unheard of. The use of radioactivity in medical research and treatment was not as well developed as it is today.

Incidentally, the secrecy clause does not directly impede disclosure about radioactive wastes. That is because "relevant process" is defined in terms of the handling of radioactive materials, and the definition of the latter specifically excludes radioactive wastes. On the other hand, there is no direct duty to disclose information about radioactive waste disposal. The amendment, if accepted, would be the only requirement.

The present situation therefore is that there is no duty to disclose information regarding problems relating to disposal of radioactive waste and there is a legal bar on the disclosure about processes which generate radioactive waste. That is out of keeping with the spirit of the Bill, which is generally positive. It inhibits disclosure; in other words, it inhibits an inspector from explaining why a problem has arisen or from trying to allay fears by explaining the precautions that have been taken. He cannot discuss anything relating to the process, otherwise he comes under the terms of these rather stringent gaol sentences.

The clause is excessive. Any necessary protection could be achieved by limiting the clause to trade secrets and to national security. It is redundant because the new Official Secrets Act also protects information relating to defence, including nuclear weapons and nuclear weapons research. However, for the offence under the Official Secrets Act the disclosure must be damaging, and no proof of harm is required for an offence under the Radioactive Substances Act.

To sum up, the three amendments leave in place the existing protection of trade secrets, which is important. In tabling these amendments, there is no intention to undermine people's trade secrets. The amendment removes the protection for "any relevant process" and deletes the definition of "relevant process" from the 1960 Act, as the concept would then be redundant. Instead, it would protect information the disclosure of which is contrary to the interests of national security. That is a phrase used elsewhere in the Bill and is one of the grounds for withholding material from public registers of pollution information.

It is not my intention to press the amendments today. I hope that the Government can give some indication of their immediate feelings; but it may be an idea that at some stage between now and the later stages of the Bill we hold discussions with the relevant Minister. It is in that spirit that I beg to move the amendment.

Lord Graham of Edmonton

This amendment is supported by those of us on these Benches. I rise simply to say that the noble Lord, Lord Tordoff, put the case very well. There is little more that I can add.

I hope that the Minister is seized of two points. First, that there needs to be full and frank disclosure of information; secondly, there needs to be access to that information by the public and those who are interested and affected. We are not simply speaking of the citizen or the consumer but commercial interests as well. There needs to be a sense of balance.

The Bill is part of a parliamentary process to open up access to information. The noble Lord, Lord Tordoff, rightly pointed out that above all else we need to protect national security and commercial confidentiality. The amendment being moved and the subsequent group achieve precisely that effect, and at the same time maintain those two protections.

Lord Reay

Amendment No. 325A seeks to amend the offence provision in Section 13(3) of the Radioactive Substances Act 1960 relating to the disclosure of information by removing the offence of disclosing information relating to a relevant process and replacing it with an offence of disclosing information contrary to the interests of national security. It also removes the definition of "relevant process" in Section 13(3) of the 1960 Act.

Amendment No. 325E would require the chief inspector to refrain from disclosing information contrary to the interests of national security, instead of refraining from disclosing information relating to any "relevant process". Amendment No. 325F would amend the powers of the chief inspector and, as the case may be, the Minister of Agriculture, Fisheries and Food, to direct local authorities that all or any part of documents sent to them is not to be available for public inspection. Instead of giving directions for the purpose of preventing disclosure of "relevant processes", directions would be given for the purpose of disclosing information contrary to the interests of national security.

I am afraid that the Government are not able to accept these amendments. I appreciate that under other parts of the Bill there are only two categories of information where public access to information is to be restricted; that is, information which is commercial-in-confidence, and information the disclosure of which is contrary to the interests of national security. Under the 1960 Act we have a third category, namely disclosure of information relating to any "relevant process". The noble Lord, Lord Tordoff, read out the definition of "relevant process" from the 1960 Act. It has been an offence to disclose such information since the 1960 Act was enacted; and given the very nature of radioactive substances, we consider it right that that situation should remain. There can be instances where information on radioactive material cannot be properly classified as "trade secret" or as having national security implications—for example, some university activities such as the operation of large irradiation sources—but where disclosure should rightfully be restricted. I would expect such instances to be infrequent, but in the interests of equity it is only right that there should be provision for them.

I ask the Committee to bear in mind the considerable amount of information which will become available to the public in respect of radioactive substances as a result of the provisions of the new Section 13A. All registrations and authorisations to discharge radioactive waste into the environment will be available to members of the public from relevant local authorities and Her Majesty's Inspectorate of Pollution. Details of what radioactive chemicals are authorised for discharge into sewers, for example, will be in the public domain for the first time. That demonstrates our commitment to greater openness while recognising that a balance must be struck.

I note the intention of the noble Lord, Lord Tordoff, not to press the amendment. I shall be happy to meet him at any time to discuss the issue further. Meanwhile, I hope that I have given him at least the initial reaction of the Government to the amendment.

Lord Tordoff

I am grateful to the noble Lord. It seemed to me that he was not quarrelling with the argument that I placed before the Committee, save that there might be processes which fall somewhere between the scope of the present provisions and the scope of the amendment that I moved; for example, certain university processes.

I do not believe that it is beyond the wit of everyone concerned to define those processes and include them in the Bill. That would exclude from this compendium phrase those matters which should be in the public domain in the interests of enabling the inspector to reassure the public in cases where things have gone wrong. That is something we shall need to consider further. I am grateful to the Minister for his offer to discuss the matter with me. On that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Tordoff moved Amendment No. 325B:

Page 166, line 31, at end insert: ( ) any report of an investigation which he has carried out into the effect on human health or environment arising from any activity which is or is required to be subject to an authorisation or registration under this Act.").

The noble Lord said: In moving Amendment No. 325B, I shall speak also to Amendments Nos. 325C and 325D. The amendment refers to paragraph 15 of Schedule 5 on page 166 of the Bill as printed. It contains a list of items of which the chief inspector shall keep copies. Those copies are kept partly to fill the filing cabinets of the people involved, but partly also to give the public access to them. The amendments extend that list; in other words, they extend the subjects on which we believe disclosure should be available to the public. For example, Amendment No. 325B requires a chief inspector to make available a copy of any report of an investigation which he has carried out into possible human health and environmental hazards arising from activities regulated under the 1960 Act. There is no precedent for that in the Bill. We also want to see some of the requirements introduced elsewhere.

Amendment No. 325C requires the chief inspector to disclose, on request, details of any convictions against any person under the 1960 Act. This mirrors disclosure provisions elsewhere in the Bill. For example, Clause 20(1)(f) requires convictions to be entered on registers relating to integrated pollution control so it does not seem unreasonable that they should be included in relation to this part of the Bill.

Clause 61(1)(f) requires convictions to be entered on registers of waste disposal.

Finally, Amendment No. 325D adds sampling results of the type of information which the chief inspector must disclose. He would have to say what action, if any, he has taken as a result of any sampling inquiry. This requirement is modelled on similar provisions in the 1989 regulations relating to the control of pollution registers which require the National Rivers Authority to keep public registers of water pollution sampling and to note any action taken as a result of any findings. The amendment is therefore a modest expansion of provisions already contained in the Bill. Nevertheless, we believe that these extensions are necessary in the interests of the general public. I beg to move.

6.30 p.m.

Lord Reay

The effect of Amendment No. 325B would be to require the chief inspector to send to local authorities, and to keep and make available to the public himself, any report relating to any investigation about the effect of any activity under the Bill on the environment or human health. This amendment is so widely drawn that it would place an absolute obligation on the chief inspector to make available almost all the written work of the inspectorate. Such a system would be counter-productive in that it would swamp the system and make it less effective in giving the public the opportunity to examine documents of real significance.

There are similar objections to Amendment No. 325D which would require every analysis of every sample to be sent to local authorities and kept and made available to the public by the chief inspector. We do, however, intend that summary data will be immediately available and that more detailed information will be available on request. The data immediately available would indicate that further information was available. In this way we aim to have a system that is easy to use while at the same time being comprehensive.

Amendment No. 325C would require the chief inspector to send to local authorities and keep himself a record of convictions under the Bill. The drafting of the amendment is flawed in that it would require records of convictions to be kept without any time limit, contrary to the Rehabilitation of Offenders Act 1974, but we are in sympathy with its aims. If the noble Lord will withdraw this amendment we will submit a correctly worded amendment for consideration on Report.

Lord Tordoff

I am most grateful. It is nice to have at least one sugar-plum in a short afternoon's work. I am not surprised at the reply on the other two amendments. I have some hesitation about them as drafted. The wise course for us to take is to consider the matter. I am interested in what the noble Lord said about having a summary kept of the information available. That sounds a useful facility. Again, this can be discussed, but I am grateful for the noble Lord's response to the amendments, particularly Amendment No. 325C. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 325C to 325F not moved.]

The Earl of Strathmore and Kinghorne moved Amendment No. 326:

Page 167, line 27, after ("Scotland)") insert ("— (a)").

The noble Earl said: In moving this amendment I speak also to Amendments Nos. 327, 328 and 390. These amendments make changes to the Radioactive Substances Act 1960 which affect Scotland only. Amendment No. 326 is a minor drafting change. Amendment No. 327 makes a change to the Scottish application of the 1960 Act which is consequential on the revision of Section 11 of that Act in Schedule 5 of the Bill, Amendment No. 328 updates the list of enactments contained in Schedule 1 of the 1960 Act, which has become somewhat dog-eared since 1960. Amendment No. 390 is consequential on Amendment No. 328. I beg to move.

On Question, amendment agreed to.

The Earl of Strathmore and Kinghorne moved Amendment No. 327:

Page 167, line 36, at end insert ("; (b) after paragraph (e) there shall be inserted the following paragraph— (f) in section 11, subsections (1) and (4) shall be omitted." ").

On Question, amendment agreed to.

The Earl of Strathmore and Kinghorne moved Amendment No. 328:

Page 167, line 36, at end insert: ("18A. —(1) In Schedule 1 to the 1960 Act (enactments, other than local enactments, to which section 9(1) applies)—

1. (a) paragraphs 9 and 11 shall be omitted;
2. (b) after paragraph 17 there shall be added the following paragraphs—

17A. Section 201 of the Local Government (Scotland) Act 1973. 17B. Section 124 of the Civic Government (Scotland) Act 1982." ").

On Question, amendment agreed to.

Schedule 5, as amended, agreed to.

Clause 100 [Purpose of Part VI and meaning of "genetically modified organisms" and related expressions]:

Lord McColl of Dulwich moved Amendment No. 328A:

Page 107, line 32, at end insert: ("( ) This Part shall not apply to organisms produced according to good industrial large-scale practice (GILSP) as agreed by the Organisation for Economic Co-operation and Development (OECD).").

The noble Lord said: In moving this Amendment I speak also to Amendment No. 328B. These amendments are concerned with genetically modified organisms (GMOs). The Committee will know that genetic engineering is used to put useful genes into bacteria, yeasts and other micro-organisms which can then be cultivated to produce such products as insulin, blood clot dissolvers and other products of use to man.

Clearly these production organisms are contained within culture vessels, so these practices are perfectly safe as they are embraced by what is known as good industrial large-scale practice (GILSP), which is a concept of minimal physical containment that has been applied to industrial large-scale uses of certain genetically modified organisms. These organisms have been determined by rigorous assessment to be of low risk. The assessment includes the criteria of limited survival in the environment without adverse consequences.

This good industrial large-scale practice is part of a much wider scientific framework developed by the Organisation for Economic Co-operation and Development for the safe use of recombinant organisms in industry and the environment. It has been widely adopted by national, European and United States regulators alike; in particular, the Health and Safety Executive's genetic manipulation regulations of 1989 and the European Commission's directives on biotechnology.

These good industrial large-scale practice organisms are widely used throughout industry, particularly in the food and antibiotic industries, for strain improvement purposes. There are three notable examples. The first is escherichia coli; a bacterium used in the production of human growth hormone and insulin. The second example is penicillium chrysogenum, which is a fungus used in the production of penicillin G. The third example is a saccharomyces species which is a yeast used in the production of beer.

Not only would it seem inappropriate on scientific grounds to include good industrial large-scale practice organisms within the scope of Part VI of the Bill, but I also believe that the commercial penalty would be too high a price to pay. The increased regulatory burden would reduce investment in these genetic engineering programmes.

As regards Amendment No. 328B, the recently-adopted European directive on the deliberate release into the environment of GMOs specifically excludes these natural recombinant techniques from its scope. Incidentally, that European directive was agreed by all environmental Ministers, including our own, on 23rd April of this year. The United Kingdom Genetic Manipulation Regulations 1989 also exclude techniques that occur naturally.

If such techniques were included in this Bill it would put the UK industry at a serious competitive disadvantage with its European counterparts in terms of the regulatory bureaucracy. The techniques are widely used in industry; in particular, mutagenesis accounts for most if not all micro-organisms used in the United Kingdom antibiotics industry. It would also follow from this amendment that Clause 100, line 25, should have deleted from it the words, or of mutation inducing agents". I beg to move.

Lord Clinton-Davis

I listened with care but not with total comprehension to the remarks of the noble Lord, Lord McColl. It is not because he did not explain the matter very well, but that it involves some knowledge of technology. I confess that that is beyond me. Perhaps I may turn to something a little more mundane. What worries me is that, as I understand it, the OECD is in the process of revising its guidelines. It has produced a draft paper which is currently being considered by government.

That being the case, is it not premature for the proposal made by the noble Lord to be moved at this juncture? It will be interesting to hear the Government's response to what the noble Lord has argued. I hope that they will say that it is premature to introduce this notion into the Bill. As I understand it, the definition is not static. Therefore, it may be inappropriate to include it in primary legislation. That deals with Amendment No. 328A.

I now turn to Amendment No. 328B, which is a somewhat dangerous amendment proposed by the noble Lord. It tries to narrow the definition of a GMO to an extremely narrow and confined extent. Effectively, it would neutralise the purpose of the section. This is an area that is changing with great rapidity. Therefore, is there not a strong case for saying that we need to have flexibility in order to control modified organisms? Consequently, it would be preferable to have a wide definition narrowed by regulation in this particular instance rather than a narrow, closed definition. I look forward to hearing what the Government have to say.

6.45 p.m.

The Earl of Halsbury

I take a different view to that put forward by the noble Lord, Lord Clinton-Davis. In the course of my professional career I have been involved in the fermentation industries. I know perfectly well that it is no good barring the front door and leaving the kitchen window open. These organisms are continually mutating; they are affected by wild strains, cross-fertilisation and so on. It is a long time ago but, in the 1950s or thereabouts, Professor Pontecorvo of Glasgow University came to me and said, "I have made a discovery; I wonder if I have made an invention".

He had discovered that if one takes yeasts that normally breed not sexually, but asexually, and dopes them with camphor and colchicine, they will breed sexually. Then one can cross two different species of yeast. I said to him, "I do not know whether you can make a patent application on that but I shall try on your behalf". That was in the context of the National Research Development Corporation, because at that time I was the managing director.

Curiously enough, we managed to persuade the Patent Office to grant a patent on the process. I remember reading the specification and taking a taxi round to the Royal Society and seeing there the father of my present noble friend Lord Adrian, who was then President of the Royal Society. I put him on notice that this was the beginning of genetic engineering. He said to me, "What can I do about it?" I said, "Nothing, except to keep your eyes open because there are potential hazards here if we by any chance cross mutagenic pathogens with something else that spreads very easily among human beings".

That is going to happen in any case. We are always having natural mutations. Is cancer research to be brought to an end because we want to find out whether mutagenic agents are also carcinogens? That has been going on for years and years. I believe that the only objection that can be made to the alteration proposed by the noble Lord's amendment—particularly the long list coupled with any forms of natural modification—is that it might possibly fall foul of the exclusio alterius rule, which is a legal doctrine that I only dimly understand. Therefore, I shall not try to expound it except to say that, if one gives a long list of things such as that in the amendment, it may be argued that exclusion of something that you have not mentioned was deliberate. The courts may have to deal with that.

The right attitude to a possible modification of its own rules by the OECD is to wait until it happens and then see what should be done about it. We do not have to violate its rules because it has made a new one. In the meantime, so long as what the noble Lord proposes is conformable to the rules that the OECD is currently working to, then I support his amendment.

The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran)

Perhaps I may say at the outset of Part VI of the Bill, that I feel somewhat humble in the presence of many Members of the Committee who are great scientists. I hope that it will not become too readily obvious that I am not a great scientist. I shall do my best to try to take the Committee through this particular part of the Bill. In this instance I shall endeavour to allay the fears of my noble friend.

Both these amendments seek to exclude certain organisms from the scope of Part VI. The effect of Amendment No. 328A would be to disapply Part VI to organisms produced according to good industrial large-scale practice (GILSP) as agreed by the OECD. Amendment No. 328B would extend the list of techniques which are not to be prescribed for the purposes of determining which organisms are to be regarded as genetically modified for the purposes of Part VI.

My noble friend adduces both scientific and commercial arguments in support of his case. I respect his arguments on both grounds, but do not consider that the Bill's provisions will lead to the outcome he fears. The Government accepts that good industrial large-scale practices are valuable. We acknowledge that they have been developed on a sound scientific basis. However, the fact that we may have some confidence about the effects on the environment—for example, of waste streams from some contained uses—of GILSP organisms is not sufficient to exclude them as a category from this Bill. Furthermore, the criteria for classification of an organism in the GILSP category may change over time and we should not be well advised to make exemptions such as these in the Bill itself.

Part VI is a good example of the precautionary approach at work, particularly as it seeks to control potentially new risks to our environment. On those grounds, I think it would be unwise to accept Amendment No. 328A. There is no reason, however, why necessary caution should result in damage to our biotechnology industry. The Bill provides for a regulatory response which matches the risks from particular GMOs as well as ample scope for appropriate exemptions where the risks are known and controllable. The Committee may be assured that GILSP GMOs will be treated in a way which takes full account of the confidence that their inclusion in the GILSP category gives that steps are being taken to protect the environment.

Similar arguments apply to Amendment No. 328B. My noble friend may be assured that care will be taken to ensure that initiative in the British biotechnology industry is not stifled when particular techniques are prescribed as "genetic modification". As I have made clear, the Bill provides for an appropriate hierarchy of control depending on the risks involved. The less the risk, the less the bureaucracy.

On the other hand, we must seek to establish a framework which can cope with as yet unknown risks. It is of course impossible to predict the advance of scientific knowledge and techniques. In summary, the noble Lord's amendment would remove recombinant DNA techniques from the scope of Part VI. If we accept the amendment we run the danger of holding hostages to fortune by saying that certain techniques we now believe to be safe will always be so.

As regards the noble Lord, Lord Cinton-Davis, and his reference to the EC and the OECD, I can tell him that the provisions of Part VI will allow the full implementation of the two EC directives on GMOs. There is a need for wide provision precisely to enable all contingencies to be covered. I hope that I have been able to persuade my noble friend not to press these two amendments.

Lord McColl of Dulwich

I should like to thank the Minister for his helpful and careful response, and also the noble Lord, Lord Clinton-Davis, and the noble Earl, Lord Halsbury, for their helpful comments. I reserve the right to come back on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 328B not moved.]

Clause 100 agreed to.

Clause 101 [Meaning of "damage to the environment", "control" and related expressions in Part VI]:

Lord Nathan moved Amendment No. 328D:

Page 108, line 34, leave out from ("environment") to end of line 38 and insert ("includes harm to the living organisms supported by the environment").

The noble Lord said: I beg to move the amendment standing in my name and that of the noble Lord, Lord Lewis. This is a short point but it arises from the insistence of the Government, which I well understand from earlier debates we have had, that each part of the Bill is to be treated separately in relation to the definitions to be applied. We are therefore permitted, and indeed bound, to look at the definitions in this part of the Bill separately from the definitions in any other part.

It seems odd to me, after the considerable care that I know has been extended in preparing this draft, that damage to the physical environment appears—I thought originally by accident—to have been excluded from the definition of "damage to the environment". The environment itself is defined in Clause 101(2): The 'environment' consists of land, air and water". Under the definition of "damage to the environment" appearing in Clause 101(3) it appears that damage to the physical environment is not included. I cannot believe that that was intended when one considers that micro-organisms can not only damage other organisms or adversely affect man himself but can be, and are, used to have an impact upon minerals and so forth. They are used for the purpose of oil clean-up, for instance.

As I understand that "land" must be interpreted in accordance with its normal interpretation in English law; it means not only the surface but all the minerals beneath it. It surely also applies to buildings, the stone from which they are built and, for instance, the limestone paving in national parks. Therefore, it seems to me that some attention requires to be given to that, and that is the purpose of this brief amendment.

The effect of the amendment would be, first of all, greatly to shorten the definition—which I think must be helpful because, frankly, it is a rather convoluted subsection—and merely to refer to the fact that damage to the environment includes (it is not exclusive), harm to the living organisms supported by the environment".

The Deputy Chairman of Committees (Lord Cullen of Ashbourne)

If this amendment is agreed to, I shall not be able to call Amendment No. 328C.

Lord McColl of Dulwich

I should like to support the noble Lord in his amendment. My quarrel with this is the suggestion that GMOs are dangerous, and the qualification comes later, which is a pity. When this amendment was discussed in another place the Minister made the point that controls must prevent damage rather than apply only after it has occurred. It would seem possible that he may have misinterpreted what the amendment seeks to achieve. We are not talking about grammatical differences between one version of a definition as against another, but trying to make the fundamental point that the present drafting of the description of "damage to the environment" implies that all GMOs are dangerous, and obviously this is not the case. I should like to support the amendment.

The Earl of Arran

Clause 101 defined key concepts relating to the protection of the environment from possible damage from GMOs. I endorse your Lordships' concern that we should be particularly sure that the definitions set out in the clause acheive their purpose. These two amendments in the name of my noble friend and the noble Lord, Lord Nathan, appear to risk losing the idea that damage to the environment should be defined as necessarily following from the presence of GMOs in it. It redefines the meaning of "damage to the environment" by putting the emphasis on the actual causing of harm as opposed to the capability to cause harm.

In our view, the existing wording of the Bill establishes the idea of anticipating damage very clearly. The definition of "damage to the environment" in Clause 101(3) stands on two distinct feet: that GMOs are present in the environment and that they are capable of causing harm. "Harm" is, in turn, defined at Clause 101(6). The noble Lord's alternative wording would introduce an element of imprecision since it might be seen to imply that damage to the environment must actually occur in order for GMOs which are capable of causing damage to come within the scope of the definition at Clause 101(4). This would be unacceptable as it would inhibit preventive action being taken against released GMOs where the risk of damage was high. It is for that reason that I ask the noble Lord not to press this amendment.

The effect of Amendment No. 328D would be to restrict the definition of "damage to the environment" to saying no more than that such damage includes harm to the living organisms supported by the environment. I can understand the noble Lord's concern to ensure that the concept of environmental damage is as wide-ranging as possible. However, his amendment is unacceptable again because it seeks to establish the scope of the meaning of "damage to the environment" without defining the term itself. As I have implied in relation to Amendment No. 328C, the notion of the capability of GMOs to cause damage—and the possibility of taking pre-emptive action, if necessary, to prevent damage—is fundamental to Part VI of the Bill. That notion must be covered in the definition "damage to the environment". If the noble Lord's amendment were accepted, it would be lost, so I urge him not to press the amendment.

7 p.m.

Lord Nathan

The Minister has made two points to which I should like to refer. He has not answered the point that the damage—as he would say, feared rather than effective—to the physical environment is not, as I understand it, included in the definition in Clause 101(3). That was the main point to which I wished to draw attention.

It is difficult to have a definition of "damage to the environment" which comprehends the danger of damage to the environment. If that is the concept which it is desired shall be incorporated, something quite specific to cope with that point should be stated. As a simple concept in itself, "damage to the environment" seems to me scarcely to require definition at all. However, we are dealing here with an intricate and complicated area and I entirely accept that the phrase can appropriately be inserted here, provided that it covers damage to the physical environment as well as other matters.

It seems to me that my amendment meets the case. I shall clearly wish to consider carefully what the Minister has said and read his reply in Hansard. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 328C not moved.]

[Amendment No. 329 had been withdrawn from the Marshalled List.]

Lord Hesketh moved Amendment No. 329A:

Page 108, line 41, leave out ("article or other substance") and insert ("other thing").

The noble Lord said: To avoid any confusion, there is a number to the amendment which does not appear on the Marshalled List. I believe that I am correct in saying that it is Amendment No. 329A. I hope that that helps by way of explanation. Although the amendment does not have a number against it in the Marshalled List, it has a number none the less. In moving this amendment, I wish to speak also to Amendments Nos. 330A, 330B and 333ZA.

Amendment No. 329A is a drafting amendment. The effect of Amendments Nos. 330A and 330B is to extend the definition of "harm" in Clause 101(6) to cover harm to the health of humans as well as other living organisms. Amendment No. 333ZA is a consequential amendment which prevents the Secretary of State from imposing consent limitations under Clause 106 in connection with human health and safety matters under the Health and Safety at Work Act 1974. I beg to move.

On Question, amendment agreed to.

Lord Nathan moved Amendment No. 330:

Page 109, line 7, leave out ("harm to the health of living organisms") and insert (", in the case of living organisms, harm to the health of those organisms").

The noble Lord said: This is another question of definition. It is not necessary for me to repeat the points that I raised earlier. According to the definition in subsection (6), "harm" means: harm to the health of living organisms". The definition does not include harm to the physical components of the environment which are defined. It is the same point again. The amendment is designed to effect the same cure that I mentioned previously; namely, that "harm" in the case of living organisms means harm to the health of those organisms. Under the terms of the amendment, as in the case of damage, "harm" would apply equally to harm to the physical environment, which seems desirable. I beg to move.

The Earl of Arran

The effect of Amendment No. 330 would be to alter the definition of "harm" to emphasise that in the case of living organisms it means harm to the health of those organisms. We consider that the present wording achieves the same effect but in plainer language. I therefore ask the noble Lord to consider withdrawing his amendment.

Lord Nathan

I am much in favour of plainer language. My amendment has the merit of being somewhat shorter. However, I understand that the noble Earl feels it impossible to accept the amendment and I therefore beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Hesketh moved Amendment No. 330A:

Page 109, line 7, after ("or) insert ("humans or other").

On Question, amendment agreed to.

Lord Hesketh moved Amendment No. 330B:

Page 109, line 9, leave out ("means") and insert ("includes").

On Question, amendment agreed to.

Lord Craigton moved Amendment No. 331:

Page 109, line 31, leave out ("deliberately causes") and insert ("fails without reasonable cause to keep it").

The noble Lord said: The question here is whether the words "deliberately" and "intentionally" mean more or less the same thing. Under the Wildlife and Countryside Act 1981, the word used in six different contexts is "intentionally"—not "deliberately"—destroys, injures, picks or uproots.

The Bill uses the phrase "deliberately" releases in a similar context. Under the 1981 Act, the Nature Conservancy Council, Bob Stebbings and many others were unable to secure convictions against offenders who deliberately destroyed bats or their roosts and who knew perfectly well what they were doing and that it was an offence. However, they pleaded to the court, "I'm sorry. I made a mistake. I didn't know. I didn't realise".

The word "deliberately" has the same weakness. The phrase that I suggest would prevent the offender from saying, "Sorry, I didn't know", because he should have known. The court can decide whether he failed to to keep control "without reasonable cause". I beg to move.

Lord Hesketh

The effect of Amendment No. 331 would be to change the definition of the circumstances when an organism is regarded to have been "released". Instead of referring to the deliberate act of releasing an organism, the amendment defines the term by reference to failure without reasonable cause to keep the organism concerned under control.

The effect sought—to cover the circumstances where a GMO is released because its owner fails to keep it under control—is already covered by the definition of "escapes" in Clause 101(10). That is why we resist my noble friend's amendment.

Lord Dean of Beswick

I rise in support of the amendment because recent history has shown us that when people are not obligated by law to carry out a function they often ignore it. One of the greatest sufferers has been the environment; for example, the wholesale pollution of some of the major rivers of Europe is supposed to have happened by accident, but I do not believe that. The noble Lord does us a service by drawing such matters to our attention on the basis that the obligation must be forceful and not as contained in the Bill.

Lord Craigton

I thank the noble Lord for his support. This particular point is causing us much worry as regards the 1981 Act. I have given the Minister notice of this and he knows exactly what are the arguments. However, if he is satisfied with the wording I must withdraw the amendment. Nevertheless, I remain rather unsatisfied and I very much hope that we shall not have a case in the future where someone says, "I am sorry, I made a mistake; but I did not mean to do it". In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

Lord Clinton-Davis moved Amendment No. 331 A:

After Clause 101, insert the following new clause:

("Advisory Committee on Releases to the Environment

.—(1) The Secretary of State shall as soon as practicable establish an Advisory Committee on Releases to the Environment, for the purposes of making recommendations as to releases of genetically modified organisms.

(2) The committee shall be composed of persons appointed by the Secretary of State.

(3) The committee shall advise the Health and Safety Executive and the Secretary of State on all matters relating to the releases of modified organisms into the Environment.

(4) The committee shall undertake the following activities —

1. (a) advising the Secretary of State on applications for consents under section 105 below, including any conditions to be attached to such a consent under section 106 below;
2. (b) the development of codes of practice and guidance for persons seeking to apply for consents;
3. (c) advising the Secretary of State on the possible categorisation of releases;
4. (d) advising the Secretary of State on the desirability or otherwise of research, in particular on matters relating to releases;
5. (e) reviewing on behalf of the Secretary of State the results of releases under consents granted in accordance with this Part;
6. (f) liaising as appropriate with relevant organisations in other countries;
7. (g) advising the Secretary of State as to any desirable changes to legislative provisions or to procedure;
8. (h) assisting the Health and Safety Executive and the Secretary of State in the event of any problems arising from the release or escape of a modified organism; and

(i) such other activities as the Secretary of State may specify.

(5) The committee established under this section shall submit an Annual Report to the Secretary of State on its activities, and he shall lay any such Report before Parliament.

(6) The Secretary of State shall publish any advice submitted to him by the committee, subject only to the exclusion of such matters as may be commercially confidential or confidential in the interests of national security.

(7) For the purposes of facilitating the exercise of its functions under this section, the Secretary of State shall ensure adequate information is available to the committee (and to such other advisory committees as may be appropriate) to enable any such committee to consider each application for consent over such period as may be reasonable, and to submit a recommendation to him, before that application is determined.

(8) For the purposes of subsection (6) above, the Secretary of State may determine that information is commercially confidential if its being published would prejudice to an unreasonable degree the commercial interests of a person, subject to the requirements of any current Directive of the European Community.").

The noble Lord said: I am moving this amendment which is tabled in the name of my noble friend Lord McIntosh of Haringey. He is unable to be here at present and has asked me to speak on his behalf. We have tabled this amendment because we are not satisified that the preconditions which exist for the committee, which the Government have introduced, will enable it to operate satisfactorily. We wish, at least, to test their views on the matter. We should like to see a committee which is able to carry out its work effectively; which will have an existence that is secure; which will have a definitive role and a right to be consulted on each case—that accords with the recommendations made by the Royal Commission—and which will also have minimum safeguards to secure public disclosure of information.

In our submission, the proposal we make in no way impairs the ultimate responsibility which the Secretary of State wished to underline in the course of debates in another place; namely, that he was ultimately responsible for such decisions. That remains inviolate so far as concerns this amendment.

We believe that the proposed advisory committee on releases to the environment which would be set up by the Secretary of State should be a statutory body. We propose that the main recommendations of the Royal Commission should be followed. Consequently, we are suggesting that the committee should be required as a matter of law to submit an annual report and that its advice should be published or at least publishable—leaving aside the important considerations, which we appreciate, that it may be necessary to exclude commercially confidential information or information relating to national security, so long as there is no abuse of that exception as is often the case at present. We also seek to ensure that the committee should have sufficient time and opportunity to consider each application for consent.

What then is the present position adumbrated by the Government? I do not know whether it is my fault, but the lights in the Chamber seem to be going out. Perhaps the lights are dimming all over the United Kingdom. Notwithstanding what has just happened, I want to try to cast some light on the situation.

The present position as perceived by the Government is that the committee should be a non-statutory body. Moreover, to make matters worse, it is a committee which can be replaced at any time at a stroke or on a whim by the Secretary of State. There is no requirement for the Government to consult the committee. Of course, it may be that matters will be referred to it by the Government, but equally the advice which it gives may well be put aside in a compartment of a drawer somewhere and completely bypassed.

The committee is not independent of the Government. There is no requirement for its advice to be published. I believe that, in a day and age when transparency is becoming—or, at least, it should be becoming—the norm, this is wholly unsatisfactory. Moreover, the Secretary of State is not required to indicate whether the committee's advice has been accepted or to give reasons for any decision he may make. Similarly, he has no obligation to consult the committee. I do not think that that is a very satisfactory situation.

The Royal Commission on Environmental Pollution made many pertinent recommendations. The amendment we propose addresses those recommendations which the Government seek to ignore. We suggest that the advisory committee should advise on the scope for categorising releases; advise on the need for research, especially on matters relating to releases; review the outcome of such releases, liaise with overseas organisations; advise on the possible need for changes in legislation and procedures; and produce an annual report on its activities, on developments in the subject and on the lessons which may be learned.

We also suggest that the Government should be under an obligation to consult the committee in the event of any problem arising from the release or escape of a modified organism. I do not think that any of those propositions is in the least revolutionary; notably they follow, as I said, the recommendations of the Royal Commission.

We also feel that it is appropriate that we should be following in this instance Article 19(4) of EC Directive 90/220, which concerns the deliberate release of GMOs into the environment. I put this question directly to the Minister: why should not that directive be followed in this legislation?

We seek to achieve by way of this amendment a real balance between the needs of commercial confidentiality and the requirements of public disclosure. We are in no way complaining about the composition of the Secretary of State's powers to set up the statutory committee in the way in which he thinks appropriate. Indeed, the Government have not failed that test and we make no complaint in that respect.

We also suggest that the advisory committee should have the role of drawing up codes of practice and guidance. That requirement is important at a time when, as has frequently been said during the course of our debates, we are facing a changing situation. Codes of practice need to take that fact into account so that industry can be guided, although it may not be possible to erect legal regulations in sufficient time to deal with the position. It would be helpful to receive from the Government some assurance that they see this role as being appropriate for the advisory committee. Should not the advisory committee also have a specific role in being able to draft regulations as well as codes of practice? I address that question directly to the Minister.

I have one complaint to make. The Royal Commission went to enormous trouble during three years of deliberations to consider the matter and to bring forward these substantive recommendations. However, the Government have sought to ignore them. The situation is even worse. The current advisory committees were not consulted before the Government issued a consultative paper on the introduction of modified organisms into the environment. They were not told of the conclusions reached by them following that consultation which have resulted in this part of the Bill. It is profoundly unsatisfactory that the situation should have evolved in this way. It means that one must in the future question the Government's attitude about the role of this particular advisory committee.

We know that as a matter of practice the Government have been somewhat cavalier about consultation. Why should we take them on trust in the future? It is with those—I hope that the Minister will agree—important points in mind which reflect upon the Government's future intentions about the committee, its scope and activities, that I raise this matter. I beg to move.

Lord Lewis of Newnham

I support much of what the noble Lord, Lord Clinton-Davis, has said. As Chairman of the Royal Commission, I am sure that many of his statements are right about the time we spent on that study, the intensity of our concern and the importance that the commission placed on the matter. I go so far as to say that the success of the application of GMOs would depend upon the release committee. It is important to give it good recognition. In addition, I am very much of the opinion that its work should be made public—a point to which I am sure we shall return on other amendments, as and when they come up—and that public access to information is important for success in this area of work.

The other important feature is that I should like to feel that if we were to give the committee more substance and standing, that would ensure a constant stream of applications to it. There would be no selection of applications. All applications for release would have to go before that committee.

Lord Addington

I give what support I can to the amendment. Much of what can be said has already been said by those who are expert in the field. Such a committee may not be necessary, but it would be useful. When it comes to those important issues, the Government cannot have too much advice, and the debate cannot be public enough. Too many decisions tend to be taken behind closed doors. There is always a danger of people looking for what they want to see from scientific advice rather than seeing what is actually there.

The Earl of Arran

We are sympathetic to the notion behind this amendment. Indeed, it conforms with the approach that the Government have already adopted on the provision of advice to the Secretary of State on the matters with which Part VI is concerned. Noble Lords will be aware that on 27th April the Minister announced details in another place of a single committee to advise on all aspects of the safety of the release to the environment of genetically modified organisms. Under the chairmanship of Professor John Beringer, the Advisory Committee on Releases to the Environment (ACRE) will advise on notifications and applications for consent to release GMOs and on research needs, proposals for regulations, written guidance and other matters. There is, however, no need for reference to ACRE on the face of the Bill since the Secretary of State can already obtain advice from whomsoever he chooses.

Perhaps I may expand on the points made by the noble Lords, Lord Clinton-Davis and Lord Lewis. The committee will be able to function effectively. Noble Lords can be assured that it will be secure. Its role has been defined in another place. An undertaking has been given that information will be made available while giving due respect to commercial confidentiality. The committee will give advice on categories of releases, on research and on guidance. Assurances have already been given on those matters. Nothing will be gained by making the committee statutory. The release of information will be adequate to meet the requirements of the EC directives. The committee will advise on codes of practice.

However, we can understand the view that a statutory committee would lend weight to the Secretary of State's views. We are therefore prepared to reconsider noble Lords' arguments without any commitment that the Government will bring forward an amendment to provide statutory backing for ACRE. On that understanding, I hope that the noble Lord will be able to withdraw the amendment.

Lord Clinton-Davis

We welcome the position taken by the Minister in his response. The fact that he is prepared, without commitment, to reconsider the point means that we shall clearly have to return to it on Report. I thank noble Lords who have spoken in support of the amendment. Above all, I thank the Minister. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Graham of Edmonton moved Amendment No. 331B:

After Clause 101, insert the following new clause:

("Duty to consult

.—(1) It shall be the duty of the Secretary of State before he makes any regulations in pursuance of this Part to consult such persons appearing to him to be appropriate and to take into consideration any representations made to him before issuing such regulations.").

The noble Lord said: The proposed new clause relates to the Secretary of State's duty to consult before making regulations. It provides: It shall be the duty of the Secretary of State before he makes any regulations in pursuance of this Part to consult such persons appearing to him to be appropriate and to take into consideration any representations made to him before issuing such regulations".

It is of great concern to many people that some of the most important parts of the regulatory system on GMOs will be settled by regulation and will not be debated during the passage of primary legislation. The Bill gives the Secretary of State a broad power to set down in regulations what should or should not be considered harmful for the purposes of the legislation. That power is designed to cater for those GMOs deliberately intended to cause harm; for example, those acting as pesticides which would otherwise be outlawed by the definition of harm.

It is obviously a power that should be used with great caution. There should be wide consultation with appropriate experts and interests before harm of any kind is exempted from the legislation. Other areas where the regulations will decide important issues of policy include the criteria for risk assessments, the circumstances under which a consent will be required, and the circumstances under which exemptions from any part of the system will be allowed.

Some of those matters will be determined by the requirements of the European directives on contained use and deliberate release; but as a general principle it is important that regulations receive wider debate than is possible under the usual system for laying statutory instruments.

The amendment is extracted from a parallel power in Section 50 of the Health and Safety at Work etc. Act. That proposal seems to be eminently sensible and reasonable bearing in mind the sensitivity that exists in respect of such matters. Without interfering with the power-making mechanisms, we believe that it is necessary, as a minimum, to consult such persons—that includes organisations—appearing to the Secretary of State to be appropriate. My advice comes from the Green Alliance whose members know a great deal about the issue. Their views should be respected. I beg to move.

7.30 p.m.

Lord Hesketh

The amendment would have the effect of imposing a statutory duty on the Secretary of State to consult before making regulations under Part VI. It comes, as the noble Lord pointed out, from Section 50 of the Health and Safety at Work etc. Act.

I can assure the Committee that the Secretary of State fully intends to consult on the full range of matters on which he has power to make regulations under Part VI. The Committee can be confident that consultations will be comprehensive and thorough; that the scientific community, both sides of industry, environmental groups and others will be included in consultations, and that all views will be taken into account. I believe that the noble Lord's amendment, though it parallels the commitment that I have given, would not surpass it.

Lord Graham of Edmonton

Again, I am sure that those outside the House will be obliged to the Minister, who said that the amendment is not necessary, not least because he intends that the Bill should do exactly what the amendment lays down. I am sure that he understands the anxiety of people outside the House who wish to make sure that they are consulted. The Minister has not said that every body that thinks it ought to be consulted will be. However I accept what he has said.

The Minister smiles and no doubt he and his advisers will have some idea of whom to consult. I do not mean that it will be a subjective, narrow list. It would be nonsense if the Minister did not include in his consultation the people with something sensible and useful to say. Not only should good relations be borne in mind but also the protection of the environment.

I am sure that those outside the House will read what the Minister has said. I earnestly believe that he has probably said much that may satisfy them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 102 [Risk assessment and notification requirements]:

Lord Graham of Edmonton moved Amendment No. 331C:

Page 109, line 39, after ("import") insert ("or export").

The noble Lord said: I wish to move Amendment No. 331C and speak to Amendments Nos. 331E, 331H, 331P and 331U to 331Y. These amendments all relate to the export of genetically modified organisms. They would place persons seeking to export such organisms under the duty in Clauses 102 and 103 to undertake a risk assessment and precautions. They would also subject such persons to the possibility of a prohibition notice under Clause 104 and the enforcement provision in Clause 10. Most important, they would require the receipt of a consent under Clause 105. The Minister will understand that these are probing amendments at this stage.

We believe that the amendments raise a genuine issue of difficulty. It is recognised that there may be problems in legislating on them under solely United Kingdom provisions. The major concern is over the export of pesticides, which is covered by the Food and Environment Protection Act 1985. The Act does not make adequate provision for export control. It gives Ministers power to request information, but no more. As many GMOs are in practice likely to be pesticides, there is concern that this aspect of release should be dealt with in this legislation. There is concern too that GMOs may be exported to be used on a trial or experimental basis in less developed countries without adequate safeguards. As there is no international convention yet in place, it is felt that UK legislation should address the issue.

The basic problem, however, is the lack of regulation on GMOs other than in the United States and Japan and in the form of recently issued directives within the European Community. Clearly there is a practical limit on the extent to which UK legislation can regulate activities whose primary focus is an unregulated country, although it is presumably open to us to make requirements of people to the extent that they operate in this country in particular. The consent and risk assessment requirements could possibly be made applicable to exporters before an organism is transferred overseas. We ask the Minister to give his views on this point.

Amendment No. 331E deals with marketing within the European Community. The amendment looks at broadly the same issue in connection with the marketing of GMOs abroad and whether the duties under Clause 102 ought to apply. The intention of the amendment is to argue that the marketing of GMOs, whether it is intended that the sale should take place within the UK, the EC or further afield, should be subject at least to the requirements of a risk assessment and notification under Clause 102.

Similar considerations would arise as in relation to the larger group of amendments prompted by concern over pesticides. However, as the technology develops, the amendments would be applicable to a broader range of GMOs. The issue or marketing of genetically modified organisms arguably raises complex questions about the way in which their properties are projected for sale and the degree of knowledge imparted to the customer as to the likely levels of risk attached. For example, would it not be desirable for a firm seeking to market a GMO to carry out a risk assessment, to notify the Secretary of State and to be required to make at least a summary of that risk assessment available to any purchaser?

Given the lack of regulation across most of the globe, safeguards such as these would appear to be the minimum that would be acceptable to secure even broadly similar patterns of use in different countries. There seems to be little point in a finely developed regulatory system in Britain and the European Community if there are few, if any, constraints on the use of GMOs generated within those countries and sold outside. I beg to move.

The Earl of Arran

We agree that there are major problems in controlling and containing the risks associated with GMOs. That after all is the whole reason for Part IV. We can therefore understand the noble Lord's concern to see that the exported GMOs do not create problems for other countries.

The EC directives respectively on the contained use and deliberate release of GMOs contain provisions for the exchange of information on organisms and for clearance by member states before GMO products are marketed. These provisions will be implemented through regulations under Part VI of the Bill for the environment and the Health and Safety at Work Act for health.

In the EC setting, the problem which the GMO might present for the environment of another member state will be considered by that state. That is as it should be because only the receiving state can assess the problem for its environment which a GMO might present.

The noble Lord's amendments seek to go much wider than the directives in terms of the requirements to be applied to GMOs which are to be exported and, in the case of Amendment No. 331E, the countries in which those requirements will operate. While the noble Lord's intention is understandable, this Bill is not the place to pursue such an approach. The regime in Part VI can only take account of risk assessment factors which are relevant to this country and by virtue of the EC directives to the Community. It would be impracticable for the Secretary of State to take into account risk assessment factors relevant to other countries in reaching his decisions.

There is particularly the point that the noble Lord, Lord Graham of Edmonton, dwelt on for some time concerning the export of pesticides. The risk assessment of GMOs and GMOs contained in pesticides will necessarily have a United Kingdom-based risk assessment. The Bill is not the place in which to make provision for the export of pesticides. I understand fully that the noble Lord said that this was a probing amendment and I hope that these answers will satisfy him.

Lord Clinton-Davis

The noble Lord has said that this is not the correct vehicle through which to consider exports of pesticides to developing countries. Nevertheless, with respect, I should have thought that it was wholly appropriate to ascertain the Government's views about the possibility of an international convention on this. At present there seems to be absolutley nothing, as my noble friend said at the outset, about GMOs being exported on an experimental basis to developing countries where there may be wholly inadequate safeguards to prevent the population from being exposed to quite unnecessary risks.

That brings to my mind a situation which affected a proposal which was introduced by the Commission and for which I was responsible. I believe it was introduced in 1987. We considered that chemicals which were banned or severely limited for use in the Community—we were largely thinking of pesticides—should be the subject of a proposal for notification to the importing third world country as regards the nature of the chemical. Further, we decided the importing country should have the right to state within a specified time that it did not want the chemical. In that way a government could intervene to frustrate a contract made between an exporter and an importer in a situation where public health could be severely endangered. Equally the importing country could say that the public health element was not as important as getting rid of the pests by using the pesticide concerned.

That proposal was attacked by this Government—in fairness, many other governments also opposed it—on the grounds that one could only proceed to deal with this matter on the basis of an international convention. We are entitled to ask on this occasion what progress the Government have made and what action they have taken to stimulate activity to procure an international convention to eliminate the absolute scandal of the present time whereby literally millions of people according to the World Health Organisation are exposed to risks from activity of this kind. Health is being endangered and lives are being lost on a daily basis. I am glad that my noble friend raised this issue. I think it is appropriate to ask the Government where they stand, even though, as the Minister has perhaps properly asserted, this provision is not the right vehicle in a legislative sense to deal with what is an important matter.

Baroness White

I wish strongly to support my noble friend in this matter. While I entirely accept the submission by the Minister that this provision is not necessarily the right vehicle for legislation, we are, on the other hand, facing more and more problems as regards perfectly reputable firms, and some that are not quite so reputable, being frustrated in dealings with the more developed countries, particularly of the EC. Therefore, understandably in certain circumstances, they are seeking other countries where they can send their products. We are particularly concerned with pesticides at the moment, but there may be other areas which will concern us in the future.

Are the Government going to think actively about this matter? Will they not just take refuge in the fact that in this Bill we can go no further than our own shores? This matter is another aspect of the relationship between the developed and the developing world. We have faced similar problems as regards the disposal of toxic waste and other matters. In many ways this issue poses a more insidious danger than that of toxic wastes. People may act wrongly from the point of view of the interests of their country, but at least in the matter of waste it is easier for a lay person or a lay official to judge the situation. For lay people this is a much more difficult area in which to reach a conclusion. Lay people have great difficulty in knowing what they should do for the best. It is therefore all the more important that we should address our minds to this issue and discuss it in an international forum.

Lord Craigton

This matter is a great worry to all of us. I hope the Government will take the initiative to call a world convention or something of that kind to get this matter sorted out. The situation at present is very bad.

Lord Monkswell

I have two points to make. While this provision may not be the best vehicle to tackle the problem, we may have to adopt it because it is the only vehicle available to us if the Government cannot provide any other avenues of progress. Further, although superficially Her Majesty's Government are not responsible for what happens beyond our shores in terms of what is exported from this country, we must remember that the world is shrinking every day. Citizens from this country travel widely overseas. It is quite possible that our citizens will be affected by whatever we export to other countries. I believe that the Government have some responsibility in this area. As I have said, failing the advent of any other vehicle that the Government can suggest, we may have to resort to the vehicle we have in front of us.

The Earl of Arran

I should comment on the international anxiety that several Members of the Committee have mentioned. The United Kingdom Government support the pursuit of vigorous international action on GMOs and have been influential in the EC and OECD in securing rational and workable solutions. The United Kingdom will continue to work in international fora such as the United Nations Environment Programme, for a consistent framework of control which embraces and protects the interests of all countries.

7.45 p.m.

Lord Graham of Edmonton

I know that the Minister means well, but one is left with the impression that this provision is not the right vehicle for this matter. Everyone who has spoken acknowledges that. However, that will not prevent people outside and those who have spoken here tonight from taking any opportunity they can to draw attention to what they consider to be a potentially dangerous situation.

The Minister rested his case on the fact that there are limits to what we can do in the context of this country and of the EC. We cannot interfere too much with what happens in other countries. I remind the Minister that when organisms escape elsewhere in the world, for example at Chernobyl, they affect us all. I take the point of what the Minister has said about some of the initiatives which have been taken, which I respect and acknowledge. Nevertheless, we must be seen to be concerned about this matter.

Last week a large conference on the ozone layer took place. There was a Statement in another place on that matter today. I listened to the remarks made at that conference by a lady who I believe came from India. She said that it was all very well for the West to lay down conditions and dates for compliance with certain conditions. She said that her country did not want dates, but rather the technology to deal with the problem. At the end of the day literally billions of people will want to make the world a better place, but they are not so rich as we are and they are not as technologically advanced as we are. We were hoping that the Minister could tell us that he was well seized of our anxieties on this matter. We are concerned about our own health and the health of our children, but we are also concerned about our responsibility as human beings to other human beings throughout the world.

We have sought in this provision to try to deal with the issue so far as we can. The noble Lord, Lord Craigton, said in effect that we should take some initiative on this matter. The conference that ended last week was obviously not a direct step in this regard. In my notes I have written that there is no international convention yet in place to deal with this particular point. However, the noble Lord, Lord Craigton, said we should discuss setting up such a convention.

We are not fools and we know that finances and resources are limited and that the Government have certain priorities. The Government are not a free agent. Nevertheless, I think the Minister could have given a more sympathetic reply. I intend to withdraw the amendment. I do not know whether the Minister has a final word to say, even if it is only goodbye.

The Earl of Arran

I merely wished to say to the noble Lord, Lord Graham, that we entirely accept the valuable points that have been made by the noble Lord and many other Members of the Committee, too. We are anxious to continue to play a role in international fora. At this stage I do not believe that I can say anything more helpful than that we have listened very carefully to the anxieties put forward by Members of the Committee.

Lord Graham of Edmonton

I beg to leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Graham of Edmonton moved Amendment No. 331D:

Page 109, line 39, leave out ("release").

The noble Lord said: In speaking to Amendment No. 331D standing in the name of my noble friend Lord McIntosh of Haringey, I should also like to speak to Amendments Nos. 331J, 332J, 332K and 332N. The amendments would delete the word "release", and Amendment No. 332K proposes a new subsection reading: Subject to subsections (7) and (7A) below, no person shall release any genetically modified organism except in pursuance of a consent granted by the Secretary of State in accordance with any limitations or conditions to which the consent is subject". The effect would be that every proposed release of a genetically-modified organism would be subject to a full consent procedure.

The Bill as drafted does not require that all releases of GMOs go through a consent procedure; namely, that they are subject to scrutiny by an expert committee which advises the Secretary of State on whether the release should take place and under what conditions. Clauses 102 and 105 set out three different levels of control. At the first level of control a risk assessment must be carried out and records kept. At the second level the Secretary of State must be notified. At the third level of control a consent from the Secretary of State must be obtained.

All of those different levels of control can be applied to the genetic modification "acts" covered by the Bill: importing, acquiring, releasing and marketing, in addition to keeping, which is not categorised as an act. It is not therefore clear that all releases will be required to have a consent. We are very concerned that no release to the environment should, at the present level of knowledge, be allowed to go ahead without being subject to a full consent procedure.

The 13th report of the Royal Commission on Environmental Pollution stresses that point. Paragraph 6.7 states: Given the lack of experience of releases of GEOs … and the certainty that the scope and power of genetic engineering will increase, it would be imprudent at present to define categories which may be exempted from scrutiny". The RCEP has repeatedly sought clarification from Ministers as to what kind of releases are envisaged as not needing to go through the consent system. The only clarification has been that the matter will be settled in regulations.

In practice, in future years the use of exemptions could be expected to lead to amendments imposing a requirement for consents to all initial releases of GMOs. That is not specified in the Bill. It should cover at least all such initial releases in the UK whether or not the modification has taken place in the UK or releases have occurred elsewhere in the EC or the world. To comply with EC law some such consents would have to be automatic where permission has already been given in another member state with similar geography, but would nevertheless entail a formal agreement of the UK Government prior to release. An assurance that the UK competent authority would consult ACRE and possibly ACGM before consenting to a request from another member state to agree a release would be helpful.

The provision of a consent should involve ACRE examining the information provided by those intending such a release and then making a recommendation to Government. I beg to move.

The Earl of Arran

A fundamental premise of the structure of Part VI of the Bill is that it should be able to accommodate different types of GMO which present varying degrees of risk to the environment. The structure therefore provides a hierarchy of controls—risk assessment, notification and consent—which seeks to match the level of scrutiny required with the degree of risk presented. The Government strongly believe that that flexible approach is in the best interests of environmental safety and the biotechnology industry. It reflects the approach already adopted in the human safety field as well as the philosophy of the EC directives.

In practice many releases are likely to be among the most risky GMO activities and to require consent. However, we cannot see any advantage in seeking to build into the Bill the rigid assumption of the amendment of the noble Lord, Lord Graham, that the risk of all releases will be such as to require them to be subject to consent. Some releases are likely to be of low risk, for example, GMOs released into waste streams from contained manufacturing processes. Other releases may be seen to be acceptably safe in future as knowledge and techniques progress.

A provision for general consents, as sought by Amendment No. 332N, would achieve nothing that is not already achieved by the scope of the exemptions which can be prescribed under subsections (7) and (11) of Clause 105. The approach adopted allows us to respond to those various situations in a responsible and considered manner. It is for those reasons that I hope that I have succeeded in persuading the noble Lord not to press his amendment.

Lord Lewis of Newnham

I should like to speak to the amendment. I speak with some considerable concern. The Royal Commission spent a great deal of time discussing with a great many people their concern over this particular aspect. I understand that the process of sending such matters to the appropriate committee and seeking its opinion before release could be time-consuming. However, I do not believe that that need be the case. It is perfectly reasonable for the appropriate committee to deal with the matter very expeditiously.

However, I believe that the effect on the public at large is of tremendous importance. If what is assumed to be a simple, non-harmful, genetically-engineered organism is subsequently discovered to be dangerous and has not been considered by the committee it could be a recipe for disaster in the future.

At this stage we are in a very delicate situation in relation to the public at large. That is a point to which I keep returning. The public are worried about such organisms. I do not believe that they have any need to worry if we go through the procedure that has been laid down in the Bill, but I am concerned that blanket releases may be authorised for certain types of organism.

Lord Graham of Edmonton

The Minister has done his best but his reply was disappointing. He made much of the varying levels of risk that could be attached to the release of GMOs. One of the releases that he said would be considered less risky than others was emission into waste streams. Can the Minister tell the Committee why releases into waste streams are viewed as less dangerous than other forms of release? The Minister pointed out that some are more dangerous than others. However, we should like to know what are the criteria which determine what is potentially dangerous. We believe that the procedure that we propose, tiresome and time-consuming as it may turn out to be, is nevertheless the safest. I should like to hear what the Minister has to say about the point that I have just raised.

The Earl of Arran

Perhaps I may turn first to the point raised by the noble Lord, Lord Lewis. The provisions of Part VI, in allowing for a hierarchy of controls, are intended to apply for a long period and to cover a wide range of operations involving GMOs. The need is for a structure in the enabling legislation which would allow appropriately rigorous levels of control, risk assessment, notification or consent to be applied depending on the circumstances of the time. The degree of scrutiny appropriate to particular GMO proposals is mainly a matter for regulations, and in drafting those we shall take into account the views of the Royal Commission and others. The ACRE will also advise on that aspect.

With regard to the point raised by the noble Lord, Lord Graham, I have already said that we strongly believe that the flexible approach is in the best interests of environmental safety and also the biotechnology industry. I can tell him that many contained uses are of GLISP organisms which, as already pointed out, are considered not to pose a significant threat to the environment.

Lord Graham of Edmonton

I am genuinely not competent to argue the case; but there are others who are and they have spoken in this debate on this and other aspects of the matter. I spoke on the premise that the Minister is well advised and the integrity of that advice is not in question. But, as the noble Baroness, Lady White, said earlier, the Minister must give peace of mind to the public. The public become very concerned when they believe that what the Minister calls a flexible approach might mean that there will be less rigour applied to some situations than to others for no reason other than that it is more costly, time-consuming, wearisome or whatever to do the job properly.

All I can do this evening is take away this amendment, consider what the Minister said, and perhaps come back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 331E not moved.]

8 p.m.

Lord Hesketh moved Amendment No. 331F:

Page 109, line 41, leave out from first ("or) to ("any") in line 42.

The noble Lord said: In moving this amendment, I speak also to Amendments Nos. 331G, 331K, 331L and 332B. These are all drafting amendments. I beg to move.

On Question, amendment agreed to.

Lord Hesketh moved Amendment No. 331G:

Page 109, line 42, leave out ("may be") and insert ("are").

On Question, amendment agreed to.

[Amendment No. 331H not moved.]

The Deputy Chairman of Committees (The Viscount of Oxfuird)

If the next amendment is agreed to, I cannot call Amendment No. 331K due to pre-emption.

[Amendment No. 331J not moved.]

Lord Hesketh moved Amendment No. 331K:

Page 109, line 45, after ("release") insert ("or market").

On Question, amendment agreed to.

Lord Hesketh moved Amendment No. 331L:

Page 110, line 10, leave out ("may be") and insert ("are").

On Question, amendment agreed to.

Lord Graham of Edmonton moved Amendment No. 331M:

Page 110, line 40, at end insert: ("(8A) The Secretary of State shall for the purposes of facilitating the effective implementation of this section issue a Code of Guidance covering matters to which it relates.").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 332C. These amendments deal with the code of practice relating to Clause 102 (risk assessment) and Clause 103 (general duties).

The purpose of the amendments is to probe the Government's intentions. I hope that the Minister will say something helpful to those who are interested in this matter.

In the case of these amendments, it is the Secretary of State rather than the advisory committee who would form the source of codes of practice. The amendments seek to learn the Government's intentions on these issues. It is envisaged that the advisory committee would have a substantial role in advising the Secretary of State on drawing up any such code.

The basic purpose is to enable the maximum degree of clarity to be achieved from the point of view of users of GMOs in the form of non-legislative guidance which could back up regulations and an evolving pattern of consents. A number of government departments are likely to be involved. The value of the guidance would be to establish so far as is possible common methods of working. That is the basis of the amendments. I beg to move.

Lord Hesketh

Amendment No. 331M would have the effect of requiring the Secretary of State to issue a code of guidance in connection with the risk assessment and notification requirements of Clause 102. Amendment No. 332C requires the Secretary of State to develop a code of guidance in connection with the general duty requirements of Clause 103.

I can appreciate that the success of Part VI in controlling the risks to environmental safety presented by GMOs will to a large extent depend on the quality of that guidance available to those involved in the biotechnology industry. One of the roles of ACRE will be to develop guidance on good practice, for example on the handling and containment of GMOs. However, the risk assessment, notification and general duty requirements are plainly stated on the face of the Bill, with adequate provision for the details of those requirements to be spelt out in regulations. We do not believe that a statutory requirement for codes of guidance would add anything that we do not already have in the Bill.

Lord Graham of Edmonton

I am prepared to take the Minister's word that the Bill already contains what the amendment seeks to achieve. However, as he knows, the Association of Metropolitan Authorities and other bodies feel that it would be helpful to have the code of guidance referred to in Amendments Nos. 331M and 332C written on the face of the Bill.

We are in the hands of the Minister who will have to carry responsibility in the future if anything goes wrong which might have been obviated had there been clearer guidance and practice. Those are responsibilities that the Government have to take. It is our responsibility to raise the issues, probe the intentions and place on record what we believe to be the best way forward. I do not dispute the Minister's observation that there is no need for this amendment. He recognises that guidance is required; but, as I understand it, that is already provided in some other form in the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 102, as amended, agreed to.

Lord Graham of Edmonton moved Amendment No. 331N:

After Clause 102, insert the following new clause:

("Public Registers on use of genetically modified organisms

.—(1) It shall be the duty of the Secretary of State to establish as soon as practicable and to maintain public registers containing prescribed particulars of—

1. (a) any notification of a use of a genetically modified organism under section 102(1) above;
2. (b) any application for a consent made under section 105 below, and any such consents together with any conditions at any time included in such consents under section 106 below;
3. (c) any direction issued under section 102(8) above;
4. (d) any notice issued under section 104(1) below;
5. (e) any notice issued under section 105(6) below;
6. (f) any notices issued under section 105(10) below;
7. (g) any conviction of a person for any offence under section 112 below;
8. (h) the information on the basis of which the Secretary of State has granted any consent, including any advice or recommendations made by any advisory committee; and
9. (i) information received in pursuance of the conditions of consents granted by the Secretary of State; and
10. (j) such other information as may be prescribed in regulations made by the Secretary of State.

(2) The Secretary of State shall make appropriate arrangements to secure public access to the information contained in any register.

(3) The requirements of this section shall be subject to any determination of commercial confidentiality or national security by the Secretary of State and information may, for this purpose, be regarded as commercially confidential if its being contained in the register would prejudice to an unreasonable degree the commercial interests of a person, subject to the requirements of any current Directive of the European Community.").

The noble Lord said: This amendment stands in the name of my noble friend Lord McIntosh. It is a new clause which goes into some detail.

In essence, the amendment specifies information which should be put on registers for public examination. The categories are parallel to those for the registers set up under the IPC part of the Bill together with some additional categories recommended by the Royal Commission on Environmental Pollution.

During the Commons Committee discussions of the Bill, the Minister in a letter to Members of the Committee announced an intention to set up registers of information but denied the need to write access to information on to the face of the Bill. The letter a1so stated: There will be occasions when great care will be needed in placing information on the register", and went on: The right approach … is for the Secretary of State to proceed from a presumption in favour of releasing information, while recognising the need judiciously to limit the information as circumstances indicate".

That kind of assurance does not give adequate guarantees on public access of information as it implies that much can be left to ministerial discretion. We want to see a requirement on the Secretary of State to establish registers written into the primary legislation. I beg to move.

Lord Lewis of Newnham

With reference to the groupings, Amendment No. 336 touches on a different topic altogether. Therefore, I withdraw it from the groupings list. I shall speak to Amendment No. 338.

In Part VI of the Bill, no provision is made for public access to information about the release of GMOs. I believe that the Government consider that they already have adequate powers for that. However, Amendment No. 338, which stands in the names of my noble friend Lord Nathan and myself, is designed to ensure that the Secretary of State provides public access not just to information about the decision that he has taken but also the information on the basis of which the decision has been taken.

That provision leads directly from a recommendation of the Royal Commission. Recommendation 12.30 states: The legislation should empower the licensing authorities to allow public access to the information on the basis of which the Release Committee has made its recommendation. It should also enable them, if they considered it appropriate before allowing access, to invite the applicant to comment on the request for information and to take account of the applicant's views on commercial confidentiality". It is important to recognise that there could be a problem with regard to commercial confidentiality although I believe that with the technique of genetic engineering one is concerned more with the method of intrusion of the gene, rather than the gene itself and where it is. It is an important feature that may be missed in some of the general considerations.

However, because genetic engineering is a new science, there is a natural apprehension about it. It is a point that we have laboured on a number of occasions. I am reminded of my predecessor's phrase in a Royal Commission report which stated that secrecy fuels fear. I am sure that that is an important point that we must make absolutely clear. Public access to information such as the environmental risk assessment will help to allay that.

I hope that the Government will agree to provide information which goes beyond that normally contained in public registers.

8.15 p.m.

Lord Addington

I should like to support what the noble Lord has said. It is important to instil confidence with regard to public information. As has already been stated, ignorance is a great breeder of fear.

In this new field of scientific endeavour, we are dealing with matters about which no one is 100 per cent. sure because they are new and developing areas. Surely the public have a right to know what is going on. To have such a provision written on the face of the Bill would be a step forward.

Lord Nathan

Perhaps I may supplement what the noble Lord, Lord Lewis, said about information. There are two factors which drive one towards the necessity for the provision to the public (and I shall return to what I mean by that in a moment) of the maximum information about what has been released; and the grounds upon which that decision has been made which may go beyond what may be necessary in other contexts, in particular dealing with the chemical field.

So far there has been a certain distrust but no obvious indications of direct opposition to the development of genetic engineering on a wide scale. The advantages are enormous and they are widely recognised. On the other hand, there is very widespread concern about many factors with regard to the technique. They range from a general concern about interfering with the operations of nature and so forth—what has sometimes been called the Frankenstein syndrome—and the normal concerns about experiments and products produced by these completely novel techniques.

Certain leaders in the industries concerned have confirmed that if there is not the information, and not the public confidence, there is a great danger that the whole project of genetic engineering on a commercial scale may be frustrated by public opposition motivated by fear of the unknown. If one has such a reaction from the public, the whole industry will come to a stop. That is something that most of us would deeply regret. Information availability is crucial to ensure that the whole process can continue.

It is quite clear—it is inherent in the Government's proposals—that after a release there will be careful monitoring of the effect of the release. That is clearly essential. Monitoring of the effects of a release is not necessarily contained within the 200 square yards within which the release has taken place. It might be required over a very substantial area. We have in the Chamber a remarkable number of people who are engaged in such bodies as the Royal Society for the Protection of Birds and other nature conservancy activities. They know much about the conservation of nature and will be available to detect whether something peculiar is going on. They will be able to be brought into the monitoring system.

If the public do not know what has been released, it is extremely difficult to monitor the effect. Unless one knows what one may be looking for it is very unlikely that one will find what one seeks.

Those are two reasons why I believe that wide dissemination of information is crucial to the success of the project. I therefore strongly support the amendment.

Lord Hesketh

These amendments seek in various ways to make provision on the face of the Bill for the recording and availability of information about GMO operations. Amendment No. 331N imposes a duty on the Secretary of State to establish public registers of information on GMOs containing particulars of matters covered by Part VI. Amendment No. 338 requires public access to background information about release consents.

Perhaps I may make absolutely clear that the Government are as committed to allowing access to information about Part VI matters as they are to information about matters connected with any other part of the Bill. The precise nature of this commitment was set out by the Minister in a letter dated 1st March to the chairman of the Standing Committee which considered this Bill in another place.

We have already undertaken to set up public registers of information obtained under Part VI. The registers will give details of notifications made and consents granted. They will contain information on, for example, the nature of the GMO involved in a particular operation, the location of the operation and any foreseeable effects on the environment. In addition, information on such matters as prohibition notices issued, inspections made, convictions for offences committed, and so on, will also be provided.

We intend there to be a general presumption in favour of releasing information, with certain exceptions, whose good sense I hope that noble Lords will acknowledge. For example, certain deliberate releases of GMOs will often be for R&D trials and will be proposed for the express purpose of obtaining information for ongoing development of a potential product. In other cases, the risks may not be of a commercial interest as such but to the environment itself through wilful and perhaps malicious interference with, for example, release test sites. Reasonable exceptions to provide protection in such cases will be made to the information made available.

In addition to these very specific commitments on the release of information, noble Lords will be aware that Clause 105(4) makes provision for applications for consent to be advertised. In the light of these various points there is strictly no need for other reference to public access to information on the face of the Bill, in particular because the Secretary of State already has powers to disclose information on matters for which he is responsible. However, I can see that certain features of the amendment would bring Part VI into line with the information powers in the rest of the Bill and I will consider further whether some kind of statutory register of Part VI information would be appropriate.

Lord Graham of Edmonton

That is the best offer we are going to get tonight. I have looked at my supporters and they have nodded their heads. In the circumstances we are prepared to accept the explanation; it is a step in the right direction. I listened carefully and noted that much of what the Minister said is contained in Amendment No. 331N. By inference he made copious references to Amendments Nos. 336 and 338. It would be pointless to try to make points because the Minister has indicated that amendments will appear before us at a later stage. I am grateful to him. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 331P not moved.]

Lord Graham of Edmonton moved Amendment No. 331Q:

Page 111, line 13, at end insert: ("(1A) The Secretary of State shall, after consultation with persons involved in the acquisition, keeping, importation, or release of genetically modified organisms, develop Codes of Practice and Guidance and where appropriate, Regulations, for the acquisition, keeping, importation and release of such organisms, and such Codes, guidance or regulations shall specify the levels of containment necessary for the degree of risk associated with particular organisms.").

The noble Lord said: This is my cue. Clause 103(3), paragraphs (b) and (c), may be seen to be contradictory. They provide that if there is any undefined risk to the environment the person shall cease to keep the organism. The provision is too wide because there will always be a risk to the environment. The amendment attempts to require the Secretary of State to consult on the formulation of guidance and codes of practice as in the Health and Safety at Work Act. They will assist with the assignment of levels of containment necessary to minimise risk of escape into the environment and allow the specification of the containment necessary to retain the organisms within acceptable risk levels. I beg to move.

The Earl of Arran

As was said in relation to a previous group of amendments, a statutory requirement for codes of guidance or practice would add nothing to what already appears on the face of the Bill. Similarly, the qualifications to Clause 103 suggested by the noble Lord, Lord Graham, would not change what we already have. Whether risks are containable is a matter for judgment which can be interpreted only by the courts, and the noble Lord's additional words would not change that. For that reason I ask him to withdraw his amendment.

Lord Graham of Edmonton

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Halsbury moved Amendment No. 331R:

Page 111, line 23, leave out ("a") and insert ("an unreasonable").

The noble Earl said: This amendment is grouped with Amendment No. 332E. I move it in the same spirit as I supported an amendment tabled by my noble friend Lord Nathan and another amendment tabled by another Member of the Committee—I am afraid that I cannot remember who. All three of us were an example of Homer nodding because the matter was dealt with on the next page of the Bill. However, I hope that the fate will not overtake these amendments.

The amendments are intended to provide the courts with a viable Act which can be interpreted by the use of common sense and good judgment. There is no doubt that we live surrounded by risks. Some of them we can identify but others await identification and we know nothing of them. When identified it often transpires that the risks as they emerge are greater than others we were getting into a tizzy about earlier. We would have done better to try to concentrate on identifying them.

The amendment alters the wording slightly so as to provide for "an unreasonable" risk and "an unacceptable" risk. It is left open for those who interpret the Act to exercise good judgment in listening to evidence. If a risk is left unqualified there is a permanent ban on anything that can be identified as a risk, however small. Therefore the amendment is an improvement in draftmanship.

As was said by my noble friends Lord Nathan and Lord Lewis, there is a danger in alarming the public unduly. One must remember that the media are permanently in a conspiracy to get the public into a state of neurotic anxiety. It is quite unnecessary. Nature is always producing attack and counter-attack. I attack the lawn; I rip up the turf and plant a rose bed. The difference between the turf and the rose bed is purely subjective from the standpoint of preference. Nature proceeds to counter-attack by launching an avalanche of greenfly on to my roses. Being wise in my generation I perform various tricks to encourage the breeding of ladybirds which will eat the greenfly. Life is a pyramid based on death and we are at its apex.

There are many advantages in some of the newly-engineered organisms but they contain an element of risk. The balance of advantage over risk calls for very nice judgment. We ought not to make that nice judgment impossible by putting an unqualified ban on whatever may contain an aspect of risk as we move into the future. I beg to move.

The Earl of Arran

We agree that efforts to prevent damage to the environment should concentrate on GMOs, which present real rather than trivial risks and we can see that the noble Earl's amendments seek to point up the distinction between real and trivial risks. However, I do not consider that the qualifications proposed would help us in determining the acceptability of the degree of risk presented by particular GMOs. Whether risks are unreasonable or unacceptable is a matter of judgment based on the facts of individual cases. The terms "unreasonable" and "unacceptable" would not provide meaningful guidance as to their interpretation. Any risk of damage to the environment should be taken into account. The need is to eliminate the risk to the point where it becomes too trivial to warrant further action. The noble Earl's words would not get round the need to weigh up and assess the risks before taking any action in connection with GMOs. For those reasons I ask him not to press his amendments.

The Earl of Halsbury

I shall not divide the Committee at this hour but I found that a disappointing reaction. I was trying to mobilise the characteristic of intelligence which is said to distinguish man from the brute but alas so rarely does. I sought to mobilise it so that it is brought to bear on the construction of an Act of Parliament which comes before the courts, which should decide other than by pure reflex action. Of course the noble Earl is right in saying that the construction which I propose calls for interpretation, intelligence and in the summoning of evidence as to how the risk should be quantified. However, the Bill puts a ban on any act of judgment and I find that totally unacceptable.

Since the hour is late and since the noble Earl is not in a yielding mood, I must reserve my position until Report. In the interim I hope to convince him that I am not talking nonsense and that it is a worthy amendment which will improve the quality of the Bill. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 3315 to 331Y not moved.]

8.30 p.m.

Lord Craigton moved Amendment No. 332:

Page 112" line 8, after ("cost") insert ("in view of known present and possible future dangers").

The noble Lord said: I was unable to move my Amendment No. 83, which deals with exactly the same point. If this amendment is agreed to, I shall move formally Amendment No. 83 on Report.

When I read this Bill I was perplexed about the meaning of "excessive cost". There was no help in the Bill and when I read the Second Reading debate I realised that I was not alone in that. At col. 490 the noble Lord, Lord McIntosh, worried that the Minister's practice note could be interpreted as putting cost above environmental protection. Later he said that it could be subject to misinterpretation. At col. 510 the noble Lord, Lord McNair, in his maiden speech, asked what criteria we should consider in deciding the question of excessive cost. At col. 542 the noble Baroness, Lady Nicol, observed: I have yet to hear anyone explain what 'excessive cost' means". At col. 578, in reply, the Minister referred to the interpretion paper deposited in the Library, which he said, light-heartedly, "will allay many fears". Should this Bill give rise to fears which can only be allayed by reading a separate paper?

What did the Minister say about excessive costs? Page 3 of the paper states: If, for instance, there is one technology which reduces the emission of a polluting substance by 90 per cent. and another which reduces the emission by 95 per cent. but at four times the cost, it may be the proper judgment to hold that because of the small benefit and the great cost the second technology would entail excessive cost. If the emissions were particularly dangerous, on the other hand, it [might] be proper to judge that the additional cost was not excessive".

On what criteria are "excessive" to be judged and by whom? Turning to page 1 of the Minister's paper, he states: In the last resort the courts could overturn a decision if it was manifestly unreasonable". Every Member of this Committee knows that what the Minister says in interpreting a clause in a Bill as recorded in Hansard is not the law of the land, nor is the Minister's paper in the Library. The Minister and his staff have access to the paper in order to intepret "excessive". However, can we be assured that the courts will have a copy of the paper? Are the courts not entitled to rely on what is in the Bill? We are agitating about practices which may involve great and unknown dangers for the nation and posterity. There may, and possibly will, be differences between scientists. For the court to give an opinion it has to be established that the technique used will protect us from all known and possible future dangers. Should that not be in the Bill? I beg to move.

Lord McNair

I should like to support everything which the noble Lord, Lord Craigton, said. I thank him for referring so kindly to my maiden speech and I support the amendment.

Lord Hesketh

Amendment No. 332 makes a qualification to the requirement for those releasing GMOs to use BATNEEC to prevent damage to the environment. The qualification proposed—that BATNEEC should be applied: in view of known present and possible future dangers"— is not unnecessary. It is unnecessary because BATNEEC already embraces the notion that circumstances may change. It means that those releasing GMOs are constantly to review the risks of damage to the environment and to take appropriate action. The noble Lord's qualifying phrase is therefore redundant because this process will always involve having an eye both on present and on possible future dangers.

The phrase is not satisfactory because it implies a weakening of the BATNEEC requirement. BATNEEC provides a necessary long-stop against the risk of damage to the environment remaining undetected by the consent and notification system. I can understand that there may be some anxiety about its meaning in particular cases. I can assure operators, and the Committee, that expert guidance on good practice, on which the Advisory Committee on Releases to the Environment will advise, will be provided in an easily-updated form. A further safeguard is contained in Clause 106, which provides a procedure for the resolution of conflict between consent conditions and BATNEEC.

When my noble friend referred to page 3 of the document in the Library, I thought that the words he used were a rather admirable explanation of how one can solve a difficult problem. Cost is not put above environmental protection. Cost has to be weighed against the protection for the environment and the ability of the person to pay for protection. That has also to be taken into account.

In answer to the question posed by my noble friend, at the end of the day the ultimate arbiter will be the courts. I hope that, in the light of that explanation, he will withdraw his amendment.

Lord Craigton

Before the Minister sits down, is he intending to allow the courts to have a copy of his paper or is he relying on what he said? It worries me that the courts have no guidance if it is not written upon the face of the Bill.

Lord Hesketh

It is virtually impossible to put everything on the face of the Bill. We should finish up with a Bill of impossible length.

Lord Craigton

I shall use the well-known phrase that I shall read carefully what the Minister said and consider whether to return to this matter on Report.

Amendment, by leave, withdrawn.

[Amendment No. 332A not moved.]

Lord Hesketh moved Amendment No. 332B:

Page 112, line 15, leave out ("or to release") and insert ("to release or to market").

On Question, amendment agreed to.

[Amendment No. 332C not moved.]

Clause 103, as amended, agreed to.

Clause 104 [Prohibition notices]:

[Amendments No. 332D and 332E not moved.]

Clause 104 agreed to.

Lord McNair moved Amendment No. 332F:

After Clause 104, insert the following new clause:

("The Genetic Modification Commission

.—(1) There shall be established a body to be called the Genetic Modification Commission (in this Part referred to as "the Commission") to perform the functions assigned to it by or under this Part.

(2) The members of the Commission, of whom there shall be not less than eight, shall be appointed by the Secretary of State after consultation with such organisations as they consider appropriate.

(3) The Commission shall give to the Secretary of State advice on matters relating to the execution of this Part of the Act or the exercise of any power conferred by it, or otherwise relating to genetic modification, where either the Commission consider it expedient, or they are requested by the Secretary of State to do so.").

The noble Lord said: Amendment No. 332F is an important amendment and makes good a serious omission from the Bill. While we on these Benches welcome the setting up of committees to cover the environmental and safety implications of notifications and consents, we strongly believe that there is also a need for a genetic modification commission. This body would consider longer term questions rather than ad hoc situations because there are considerable long-term economic, social and ethical issues raised by genetic modification. Such a commission would also have a remit to consider all aspects of GMOs, from broad ethical questions to those of a detailed technical nature, and should not be confined to considerations of ethics alone.

The proposal is modelled on that in Section 2 of the Medicines Act 1968, which seems to us to have sufficiently broad terms of reference. The membership of the commission should reflect different kinds of expertise, including scientific, technical and employee interests, although these should perhaps not be listed in the terms of reference in the interests of future flexibility. The terms of reference should express the commitment in general terms.

Members of the commission, who would be appointed by the Secretary of State, could be nominated by interest groups but should not be mandated by them so that individual members are not tied to a particular stance on any issue. I beg to move.

Lord Graham of Edmonton

I rise because the name of my noble friend Lord McIntosh of Haringey is on the amendment. The basic points have been covered very well by the noble Lord, Lord McNair.

The amendment gives dignity and status, which in turn will earn respect from those from whom respect should come, for what is being done in this field. The logistics of the provision could be improved or amended. The Minister and his advisers are aware that the genesis for the genetics modification commission comes from the recommendation for the setting up of the Medicines Commission. That seemed to us to have sufficiently broad germs of reference to be helpful.

As the noble Lord, Lord McNair, points out, it will provide a synthesis for bringing together various kinds of expertise—scientific and technical—public policy, community and employee interests and a great deal more. I hope that the Minister can accept the amendment.

The Earl of Arran

The general responsibilities of this proposed commission are very widely expressed, while its particular purposes, as described in the noble Lord's amendment, are already served by other means. The Advisory Committee on Genetic Modification (ACGM), set up under the Health and Safety Commission's powers under the Health and Safety at Work Act 1974, exists to advise on general questions of genetic modification. So far as releases to the environment are concerned, the Secretary of State will be advised by the Advisory Committee on Releases to the Environment (ACRE), whose membership was announced by the Minister in another place on 27th April.

The noble Lord's amendment would add nothing to the roles already carried out by ACGM and ACRE. It is for that reason that we cannot accept the amendment.

Lord McNair

Obviously I am disappointed by the reply of the Minister, but I shall consider his comments and reserve the right to bring the matter forward at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Lord Graham of Edmonton moved Amendment No. 332G:

After Clause 104, insert the following new clause:

("Liability

.Any person to whom section 102 applies shall be liable for the damage and injury to the environment caused by any organism to which this Part applies to which his duties under that section relate, irrespective of fault on his part.").

The noble Lord said: In moving Amendment No. 332G standing in the name of my noble friend Lord McIntosh of Haringey I shall speak also to Amendment No. 340ZA. These amendments deal with strict liability, and the Minister's advisers may see that they approach the issue from a different angle. They could be looked upon as alternatives. The first is modelled on wording from the draft EC directive on civil liability for damage caused by waste.

The imposition of a duty of care and strict liability for damage to the environment are areas of concern. The Royal Commission has expressed concern that civil liability in relation to GMOs is not adequately catered for. There is concern that traditional liability law, which covers damage to persons and property, would not adequately cater for the environment where it is in common ownership. The draft EC directive, from which the first formulation was drawn, seeks to establish strict liability for damage to the environment and gives both public authorities and common interest groups the right to take action.

This is a probing amendment, as are many that have been moved from this side today. We are anxious to obtain the Government's views of the matter. Perhaps I could remind the Minister that the Royal Commission, in paragraph 8.19, supported strict liability where any person released a GMO without the necessary consents. A number of observers take the view that this foundation is too cautious, leading to complex moral issues thrown up by Clause 106(5)(c), where the concept of best available techniques not entailing excessive cost (BATNEEC), which already sits awkwardly in Parts I and II of the Bill, is applied to the possible release of GMOs. I beg to move.

The Earl of Arran

Part VI, in common with other parts of the Bill, makes no special provision regarding civil liability for damage to the environment. Its purpose is to set up a statutory scheme for the regulation of activities involving genetically modified organisms. This scheme is enforced by a system of criminal offences, with stiff penalties which include fines of up to £20,000 on summary conviction and unlimited fines for some offences on conviction on indictment.

In addition to the criminal penalties which can be imposed, Clauses 114 and 115 provide that, where an offence has been committed, the offender can be ordered by the court to take steps to remedy the matters in respect of which he has been convicted and he can be required to cover the costs of remedying the harm caused. These provisions flow from the provisions regarding criminal offences and are entirely appropriate to the provisions of Part VI.

The statutory scheme set up on Part VI is quite separate from questions of civil liability. There already exist provisions regarding civil liability which will apply to genetically modified organisms and they include the strict liability which is sought to be imposed by Amendments Nos. 332G and 340ZA. In the case of Rylands v. Fletcher liability for damage caused by the escape of dangerous things, without proof of negligence, was held to exist. The judge in that case (Judge Blackburn) said: We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape". Even though that was written in 1866, it would appear to be entirely apt to deal with genetically modified organisms.

If it is said that there are exceptions to the rule in Rylands v. Fletcher, this is true. The rule applies only where the dangerous things escape from land. But the rules as to occupiers' liability will apply where they have not escaped and the damage occurs on the land on which the GMOs are kept; and the rule of strict liability applies only where there is some special use bringing with it increased danger. But where there is no such danger there can be no reason for imposing liability where it would not otherwise exist. I ask the noble Lord not to press the amendment.

Lord Graham of Edmonton

I am grateful to the Minister for the care he has taken in explaining why the provisions of the amendment are not necessary in the context of the Bill. I shall read carefully what he has said and may come back later. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 332H to 332K not moved.]

Lord Graham of Edmonton moved Amendment No. 332L:

Page 113, line 37, at end insert: ("(4A) In prescribing the level of information and manner of advertisement required for the purposes of subsection (4) above, the Secretary of State shall secure that—

1. (a) sufficient information is available in the advertisement to enable any person to make any objection, and in particular he shall ensure that, notwithstanding any considerations of commercial confidentiality, information at a level not less than that required in any relevant Directive of the European Community shall be prescribed;
2. (b) any advertisement of an intention to release a genetically modified organism shall contain a description of the organism, name and address of the notifier, purpose of release and location of release; and
3. (c) notice shall be published as soon as practicable in the London Gazette or, as the case may be, in the Edinburgh Gazette.").

The noble Lord said: In moving this amendment I speak also to Amendment No. 332M. These amendments deal with advertisements. The purpose is to specify minimum levels of information in advertisements concerning applications for consent and to require their placement with a single source.

Clause 105(4) contains a requirement for an advertisement regarding application for consent. It was explained in Committee in the Commons that it is intended that this should happen before consideration of the application by ACRE and will allow the committee to consider representations by those concerned when the application is made. However, what right would those seeing the advertisement have to information which would allow them to produce a reasoned objection to the application? The opportunity to comment is part of a specific recommendation by the Royal Commission, in its report, paragraph 8.27. The amendment specifies minimum levels of information in advertisements and that there is a single form for advertisements, not merely notifications in local papers.

The minimum level of information specified by EC directives includes, as mentioned earlier, the nature of the organism, the place of release, the name and address of those intending the release, and so on. I beg to move.

Lord Hesketh

The effect of Amendment No. 332L would be to require the Secretary of State to ensure that advertisements in relation to consents included sufficient information to enable an objection to be made and that they complied with the information requirements of the EC GMO directives. It would also require a certain minimum amount of information to be included and advertisements to be published in the London Gazette or Edinburgh Gazette. In some ways this reminds me of a similar amendment last year in respect of the Water Bill.

The amendment is unnecessary because Clause 105(4) already provides for the Secretary of State to prescribe the information and advertisement requirements which will be necessary to his consideration of consent applications. The UK has an obligation to implement the EC GMO directives by September 1991 and the information and other requirements of those directives in respect of environmental safety will be implemented through regulations under Part VI. The information requirements of the directives conform with the substance of the noble Lord's amendments. Since we already have an obligation, in effect, to do what he wants as well as the means to do it, his amendment is unnecessary.

The effect of Amendment No. 332M would be to make provision for the Secretary of State to prescribe for the exemption from the consent requirements of certain kinds of organisms or types of organisms. I can appreciate the reasoning behind this amendment. The risks associated with certain kinds of releases might be such that it would not be necessary to apply the full-blown consent procedures to them. Certain kinds of innocuous waste-streams arising from some contained industrial GMO processes may well fall into this category. However, it is the person using the GMO who will be responsible for its effects. I think the wording of Clause 105(7) and (11), which contain the provisions for the Secretary of State to make exemptions, better reflects that idea as it stands. That is why we resist Amendment No. 332M.

Lord Graham of Edmonton

I perceive that the Minister and his advisers appreciate what I seek to achieve with these amendments. Although the noble Lord did not use the words "sympathy", "understand" or "appreciate" I believe that he was sympathetic and that he understood and appreciated what we are seeking to do. When we read what he said I believe there will be a great measure of satisfaction throughout the Committee in respect of the point that we have sought to make. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

(Amendments Nos. 332M and 332N not moved.]

Lord Hesketh moved Amendment No. 332P:

Page 114, line 14, leave out from ("the") to ("holder") in line 15.

The noble Lord said: This is a technical amendment. I beg to move.

On Question, amendment agreed to.

Clause 105, as amended, agreed to.

Lord Lewis of Newnham moved Amendment No. 333:

After Clause 105, insert the following new clause:

("Duty to send copies of advisory committees' recommendations to interested parties

. —(1) The Secretary of State shall send, to a person who has applied under section 105 above for a consent and to any person who has made a representation to him in respect of the application, a copy of any recommendation from an advisory committee on the basis of which he is considering the application.

(2) The Secretary of state shall take account of any representation received as a result of the information supplied under subsection (1) above.").

The noble Lord said: I move this amendment which is tabled in my name and that of my noble friend Lord Nathan. I begin by apologising. Our drafting has been so subtle that we seem to have missed the point. The clause heading in the margin reads; Duty to send copies of advisory committees' recommendations to interested parties". That is the beginning rather than the end of the story. What we are really seeking to raise is the fact that the Bill makes no provision for an appeal against the Secretary of State's decision on an application for consent to release a GMO.

Since there is no appropriate higher authority to consider appeals, the amendment proposes to allow the Secretary of State to take his decision but, before doing so, that applicant or anyone who made representation should see the recommendations that the Secretary of State received from his advisory committee. That would give an opportunity to challenge the recommendation and would be a substitute for an appeal system. This proposal was made by the Royal Commission on Environmental Pollution in its 13th report. The point was simply that it was generally felt that some form of appeal system was required but that we could not see our way to implement it in any direct sense. Therefore, the proposals in the amendment seem to provide a mechanism whereby we could essentially have an appeal system in operation de facto if not de jure. The amendment touches on a number of other proposed amendments. I beg to move.

The Earl of Arran

Amendment No. 333 imposes a duty on the Secretary of State to send copies of the advisory committee's recommendations on consents to the consent applicant and persons who have made representations on the application.

The Advisory Committee on Releases to the Environment (ACRE) is charged with advising the Secretary of State on the environmental aspects of consent applications. The membership of ACRE has been announced and we believe the Committee will agree that the skills of the members are comprehensive and very wide ranging. We have every confidence that its advice to the Secretary of State will be of the highest quality. At the end of day, decisions taken in respect of applications are for the Secretary of State alone. It would be inappropriate—as well as confusing—for other parties to prolong the debate after he has been advised by ACRE.

As a background to all of this, there can be no question but that the Secretary of State will have sufficiently wide powers under Clause 105 to obtain all the relevant information he needs to consider applications properly. This includes information obtained from other parties as the result of advertising and specific notification as well as information from applicants. In practice, ACRE will work closely with applicants and other interested parties in developing recommendations. This will include, for example, inviting applicants to committee meetings to answer questions about proposals.

I hope that the noble Lord, Lord Lewis, will accept that the Secretary of State will make decisions about consents on a well-informed basis and that it would be inappropriate to make the system more elaborate. For those reasons I hope he will not press his amendment.

Lord Dean of Beswick

The noble Lord, Lord Lewis, has made a reasonable and positive case for his amendment. I have to say with some sadness that Ministers keep falling back onto the powers given to the Secretary of State and what he can do. We know from the past few years, and even longer ago that successive Secretaries of State have not been models of consistency. Their approach to subjects can often differ depending on personality. I do not want to go into detail at this hour of the night about Ministers who have been removed from office for various causes or non-causes by the present Prime Minister.

It is not good enough to say that because the Secretary of State is given certain powers and responsibilities it follows that that is the answer and that, in the wider concept, people will obtain the information. As a layman looking at the origin of this amendment, it has not been put forward by people with a political axe to grind. The amendment has been tabled by those with expertise in the subject transcending the knowledge of any Secretary of State who usually falls back for advice given in the main by his civil servants. I do not know what the noble Lord, Lord Lewis, intends to do about the amendment, but it is worthy of far more consideration by the Minister than it has been given hitherto.

9 p.m.

Lord Nathan

This amendment has a certain relationship to the question of public information. The issue of information available to the public sounds innocent. It would be true if it were limited to the ordinary person such as me expressing views on particular GMOs and their consequences. That would carry no weight at all.

That point about the availability of public information is not only that the public at large should have it, but that they can also appoint experts in the field who will advise them how matters should be dealt with. One can imagine that a public interest group might engage an eminent scientist to look into a particular application for the release of a GMO. It is entirely sensible that that should happen and that the people appointing him, or the person himself, should be able to make representations to the Secretary of State concerning a decision shortly to be made by him so that the representative may inform the Secretary of State of his views.

That is a way in which the right of appeal on the technical aspects can be dealt with. The difficulty one has in establishing a right of appeal is that if one is vesting the Secretary of State with the power, it is not practical to have an appeal in the ordinary sense of the word. This provision is a substitute for that, and it is an appropriate method of dealing with the problem.

Lord Monkswell

I support this amendment. There are two points to be made. It seems that we have here a very elegant mechanism to provide the Secretary of State with a second bite of the cherry; namely, an opportunity to look at the matters twice. When one considers the position of this Chamber, that is exactly what Parliament provides for the Government—that is to say, the opportunity to have two bites of the cherry; one in the other place, and one here. There is a considerable precedent for that.

The other matter is the practical implications. We are talking about a very new field of knowledge. We must proceed very carefully as that field of knowledge develops. I shall give one example of another field of new knowledge where it appears that a mistake was made in the development of wave power. A group of experts analysed the economics of wave power and produced an answer which, some years later, was demonstrated to be erroneous.

I am sure that if the mechanism suggested by this amendment had been available then, and there had been an opportunity for public scrutiny of the recommendations made to the Secretary of State and for further responses to be made, that error might have been picked up many years ago. For those reasons, I also support this amendment.

Baroness White

We should take this matter seriously. This amendment may not be the best way of dealing with it. If I am correct in my supposition, as things stand there is no obligation on the Secretary of State to explain to anyone the basis on which he may reach a perfectly valid conclusion. It is possible that it may not be an entirely satisfactory conclusion. However, a Secretary of State is under no obligation to explain why he has reached a certain conclusion. I assume that he gives his decision on the application that has been made to him.

In this rapidly-developing field there are so many uncertainties. There may be an advantage in making the reasons apparent—one might use the word "transparent" which is so popular in Brussels—so that one has some idea what led the Secretary of State to reach a conclusion. We should think a little more about this matter; namely, in what way members of the public and the scientists concerned are to know of the mental process which led the Secretary of State to come to his conclusion. To achieve that there must be some provision for the applicant to publish, or make public use of, the reasons for the decision reached by the Secretary of State.

It is this situation which worries some of us who are not necessarily competent to judge the scientific basis of the Secretary of State's decision, but who would like to follow the reasoning at what I might call a New Scientist level.

The Earl of Arran

Perhaps I may make clear to the noble Lord, Lord Nathan, that the advertisement proposals will ensure that any person can approach the Secretary of State and/or the person proposing the release. For the benefit of any Members of the Committee who were not here earlier this evening, we have already indicated that we shall be considering the position of registers.

In answer to the noble Lord, Lord Dean, it is not as though the Secretary of State were acting in limbo. The Advisory Committee on Releases to the Environment (ACRE) has the responsibility of advising the Secretary of State about consent applications. It is an extremely well-informed and highly qualified body of people. We have every confidence, as I have said before that its advice to the Secretary of State will be of the very highest quality at all times.

Baroness White

That is not the point at issue. We are not denying for a moment that the advice may be admirable. One would expect the advice to be well-founded. The point is this: who will know what the advice was?

Lord Dean of Beswick

I hope that I am in order in rising at this time. My noble friend Lady White made the point that I was intending to make. My noble friend's previous point was a vital one. She said that the Secretary of State would make the final decision. As she and the Minister said, he has probably got the finest advice in the land, but from what the Minister says it almost puts the Secretary of State in an unchallengeable position. When he makes the decision, he may choose to discount the advice that he is given. It has not been unknown for Secretaries of State in a variety of matters to have flown in the face of advice. If the press reports are correct we have just had a perfect example of this in what happened to nuclear energy, when it appears that a Secretary of State totally discounted all the advice given by the experts in that field.

I think that the Minister must change his stance a bit. If he says that the body that will be advising the Secretary of State will be composed of experts and that they will be marvellous people, perhaps the best in the world or the best in the land at their profession, I should not dispute that for one moment. But I dispute that it then leaves the Secretary of State in an unassailable position to take a decision that so far as I can see would even be difficult to challenge in the courts of the land.

That is a dangerous situation in an area where the frontiers of science are expanding. As a layman I think that it is a dangerous situation for us to be left in. The Government have to come across with something a bit better. They keep falling back on the fact that there will be expert advice analysed by the Secretary of State and he can then deliver his verdict. The matter will not be resolved tonight, but my view is that that is not good enough.

Lord Lewis of Newnham

I thank noble Lords who have spoken in favour of the amendment. It clearly is a difficult point. I am somewhat disappointed that the Minister cannot see a way of applying this type of what I believe to be a gentle form of appeals system which would allow people at least to have faith and establish what they believe to be the actuality of the situation. However, I see on looking at the Marshalled List that we are to have yet other cases of appeal systems being brought forward, so if I may I should like to contemplate what has been said tonight and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 106 [Consents: limitations and conditions]:

Lord Hesketh moved Amendment No. 333ZA:

Page 114, line 25, at end insert ("; but no limitations or conditions shall be imposed for the purpose only of securing the health of persons at work (within the meaning of Part I of the Health and Safety at Work Etc. Act 1974).").

The noble Lord said: I beg to move Amendment No. 333ZA. I have spoken to this amendment.

On Question, amendment agreed to.

[Amendment No. 333ZB not moved.]

Lord Hesketh moved Amendments Nos. 333ZC to 333ZC:

Page 114, line 40, after ("informed") insert ("(by reference to the nature of the organisms and the manner in which he intends to keep them after their importation or acquisition)").

Page 114, line 41, leave out ("may be") and insert ("are").

Page 115, line 3, leave out ("may be") and insert ("are").

Page 115, line 15, after ("informed") insert ("(by reference to the nature of the organisms and the extent and manner of the release or marketing)").

Page 115, line 16, leave out ("may be") and insert ("are").

The noble Lord said: I beg to move en bloc Amendments Nos. 333ZC, 333ZD, 333ZE, 333ZF and 333ZG, which are drafting amendments.

On Question, amendments agreed to.

[Amendment No. 333ZH not moved.]

Clause 106, as amended, agreed to.

Lord McColl of Dulwich moved Amendment No. 333A:

After Clause 106, insert the following new clause:

("Appeals against enforcing authority

.—(1) The following persons, namely—

1. (a) a person who has been refused the grant of a consent under section 105 above;
2. (b) a person who is aggrieved by the limitations and conditions attached, under any provisions of this Part, to his consent;
3. (c) a person whose consent has been revoked or varied under section 105 above;

may appeal against the decision of the enforcing authority to the Secretary of State.

(2) A person on whom a prohibition notice is served by the regulatory authority under section 104 may appeal against the notice to the Secretary of State.

(3) Where an appeal under this section is made to the Secretary of State—

1. (a) the Secretary of State may refer any matter involved in the appeal to a person appointed by him for the purpose; or
2. (b) the Secretary of State may, instead of determining the appeal himself, direct that the appeal or any matter involved in it shall be determined by a person appointed by him for the purposes;

and a person appointed under paragraph (b) above for the purpose of an appeal shall have the same powers under subsection (5), (6) or (7) below as the Secretary of State.

(4) An appeal under this section shall, if and to the extent required by regulations under subsection (10) below, be advertised in such manner as may be prescribed by regulations under that subsection.

(5) If either party to the appeal so requests or the Secretary of State so decides, an appeal shall be or continue in the form of a hearing (which may, if the person hearing the appeal so decides, be held, or held to any extent, in private).

(6) On determining an appeal against a decision of an enforcing authority under subsection (1) above, the Secretary of State—

1. (a) may affirm the decision;
2. (b) where the decision was a refusal to grant a consent, may direct the enforcing authority to grant a consent;
3. (c) where the decision was as to the conditions attached to a consent, may quash all or any of the conditions of the consent;
4. (d) where the decision was to revoke or vary a consent, may quash the decision;

and where he exercises any of the powers in paragraphs (b), (c) or (d) above, he may give directions as to the conditions to be attached to the consent.

(7) On the determination of an appeal under subsection (2) above the Secretary of State may either quash or affirm the notice and, if he affirms it, may do so either in its original form or with such modifications as he may in the circumstances think fit.

(8) Where an appeal is brought under subsection (1) above against the revocation of a consent, the revocation shall not take effect pending the final determination or the withdrawal of the appeal.

(9) Where an appeal is brought under subsection (2) above against a notice, the bringing of the appeal shall not have the effect of suspending the operation of the notice.

(10) Provision may be made by the Secretary of State by regulations with respect to appeals under this section and in particular—

1. (a) as to the period within which and the manner in which appeals are to be brought; and
2. (b) as to the manner in which appeals are to be considered.").

The noble Lord said: Amendment No. 333 moved by the noble Lords, Lord Nathan and Lord Lewis, was so subtle, clever and gentle that as a professor of surgery I failed to appreciate that it was an appeals procedure. I should like to move Amendment No. 333A, which is a new clause option and which is extracted from Part I of the Bill, Integrated Pollution Control and Air Pollution Control by Local Authorities". It attempts to provide an appeal mechanism for those who have been refused authorisation to work with GMOs, who are unhappy with the conditions attached to such authorisation or who receive a prohibition notice in relation to such work.

This is a mechanism for appealing to the Secretary of State against the decision of the enforcing authority. For that mechanism to work, it will be necessary for the Secretary of State to designate another body—the enforcing authority—for the purposes of exercising the functions conferred or imposed by that part, as one clearly cannot appeal to him against his own decisions. We suggest that it would be most appropriate if that designation were given to the new Advisory Committee on Release to the Environment which is being set up under the auspices of the Department of Environment and the Health and Safety Commission in order to advise on releases to the environment.

In the highly unlikely event that this amendment is not acceptable, I should like Amendment No. 333B to be considered. The new clause option would allow a formal right to make representation to the Secretary of State before an adverse decision is made. That alternative would obviate the need to delegate powers to a subordinate body.

For the development of sound and sensible legislation, it is right in principle to include some type of mechanism to allow those who have been turned down a chance to make an appeal. Such a mechanism already exists in Part I of the Bill and it would seem wise to have something similar introduced into Part VI. I beg to move.

9.15 p.m.

Lord Lewis of Newnham

I wish to speak in favour of the appeal system. It was one of the features that we looked at on the Royal Commission. However, like the noble Lord, Lord McColl, we had great difficulty in trying to designate who the enforcing authority should be. The idea that it might be the release committee appeared attractive, but it was recognised that there might be important features other than the purely scientific impact of a particular approach. That was why we moved away from that type of solution to the problem.

However, I am in total sympathy, as must be evident from my previous comments, with some form of appeal system. There is an element of justice in the system. It must be seen that a person at least has an opportunity to express an alternative case or has a chance of contending the case against him.

The Earl of Arran

The amendments seek to establish an appeals system in respect of consents and other matters. Amendment No. 333A attempts to apply the Part I appeals provisions to Part VI. Unfortunately, it does not take account of one crucial difference between Parts I and VI. Decisions about authorisations under Part I are to be made by either the chief inspector or the local authority. Appeal to the Secretary of State is therefore right and appropriate. However, under Part VI the Secretary of State himself makes the decisions on consents and imposes limitations or conditions when they are granted. It is clearly impossible to appeal to the Secretary of State against a decision of the Secretary of State. Any such provision would result in the Secretary of State making a decision and then being required to consider his own decision on the basis of the same facts as his original decision. That is not logical.

The option of designating the Advisory Committee on Releases to the Environment as an "enforcing authority" against whose decisions an appeal could be made to the Secretary of State would also be inappropriate. Part VI attempts to deal with a relatively new and fast-developing technology. It is right that the Secretary of State should be responsible and accountable to Parliament for the implications for environmental safety. The advice that the Secretary of State will receive from ACRE will of course be of the highest quality, but it is right that the Secretary of State should be responsible and accountable to Parliament for the operation of Part VI.

Similar arguments apply to Amendment No. 333B—the second string of my noble friend's bow on appeals. At the end of the day, the Secretary of State is responsible for decisions under Part VI and applicants for consents will in any case have the opportunity to discuss their proposals with ACRE. I hope that I have persuaded my noble friend not to press his amendment.

Lord Dean of Beswick

Historically, it has always been a fact of life in the United Kingdom that there must be some form of appeal in important matters. Although to laymen like myself these are new frontiers, surely there should be some appeal mechanism.

The Minister may well make a bona fide case by saying that it would be logical to appeal to a Secretary of State against his decision. However, in my view, it would also be logical to ask to whom an aggrieved person could go if he feels strongly that, despite the marvellous recommendations that the Minister received from the appropriate body, he has made an appalling blunder. Ministers of all political persuasions have been guilty of such errors in the past. Therefore, it is relevant to ask the Minister this question. If a person was so aggrieved that he thought the Secretary of State was completely wrong in the verdict he delivered, to whom would such a person address his appeal? Would that person have to go through the trauma of instigating private litigation through the courts on such a basis?

Baroness White

I think that we are back where we were a short time ago. We have reached the stage where an appeal from the Secretary of State to the Secretary of State does not make constitutional sense. However, I think that there should be a strong obligation on him to ensure that the decisions he makes and the reasons therefor are made manifest. The reason we believe that such matters should be made transparent is very much the same as the one we put forward in connection with Amendment No. 333. It did not appear to me then, and it does not appear to me now, that the Government have thought the matter through.

Lord Monkswell

I have a few reservations about the suggestion which has just been made by way of this amendment. I must admit that I prefer the earlier suggestion for a mechanism of appeal. By using the word "appeal", I wonder whether we are constraining our arguments too much. It is most important that we should consider the public interest. The Secretary of State must hold the public interest in the forefront of his considerations.

In this discussion we are endeavouring to find out what would be the best mechanism to protect the public interest. We should not aim solely to protect the developers of these organisms so as to enable them to appeal against their development, we should also consider the other side of the matter—namely, the public interest in placing adequate restrictions on their use and dissemination. Therefore, some form of appeal mechanism is needed to cover both sides of the issue.

We must be careful about the use of the word "appeal". It is most important that the Secretary of State should have available to him all strands of information and opinion regarding the situation. As I said, I prefer the earlier suggestion of a mechanism whereby extra information could be obtained effectively by publication after the recommendation of the learned group—I am not sure what its official title would be—to the Secretary of State. In those circumstances other people would have the opportunity to say, "Yes, we agree" or, "No, we do not agree". Such a provision would give the Secretary of State the ability to receive other strands of information. I take the point that on occasion it may not concern the scientific element; it may be that public awareness or other factors need to be taken into consideration in the wider human and political environment. For those reasons, I am not too happy with the amendment which has just been moved and I very much prefer the suggestion contained in the previous amendment.

The Earl of Arran

Perhaps I may deal first with the point made by the noble Lord, Lord Dean of Beswick. I have no doubt that the noble Lord, Lord Graham of Edmonton, is aware of the issue involved. There are many decisions taken by the Secretary of State against which there is no right of appeal. However, there is always the remedy of judicial review for an aggrieved person. That mechanism has been successfully used in many cases and it can give a speedy remedy.

In answer to the more general points which have been raised, I understand that there is a desire to ensure that the basis upon which decisions are made should be known and that the Secretary of State's reasons should also be known. The commitment that we have already given to look at the inclusion of a statutory provision for registers should give some reassurance about the availability of information at an early stage. The reasons for the Secretary of State's desires may also form part of the available information. The opportunity to make representations to the advisory committee is already given. I believe and hope that that explanation answers some of the points that Members have raised.

Lord McColl of Dulwich

I thank my noble friend for his helpful response, and all those who have taken part in the debate. Having listened to all the arguments, I believe that I prefer the amendment of the noble Lords, Lord Nathan and Lord Lewis. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 333B not moved.]

Clause 107 [Fees and charges]:

Lord Hesketh moved Amendment No. 334:

Page 115, line 46, leave out ("consideration") and insert ("respect").

The noble Lord said: I speak also to Amendment No. 335. The two amendments are drafting amendments. I beg to move.

On Question, amendment agreed to.

Lord Hesketh moved Amendment No. 335:

Page 116, line 11, leave out ("relating") and insert ("in discharging his functions under this Part in relation").

On Question, amendment agreed to.

Clause 107, as amended, agreed to.

Lord Lewis of Newnham moved Amendment No. 336:

After Clause 107, insert the following new clause:

("Register of persons authorised to release genetically modified organisms

.—(1) The Secretary of State shall maintain a register of persons authorised by him as fit and proper to carry out the release of genetically modified organisms to the environment. Authorisation may apply in respect of the release of all organisms or of certain classes of organism.

(2) No person not authorised under subsection (1) shall release a genetically modified organism to the environment except in such cases or circumstances as may be prescribed by the Secretary of State in regulations under this section.").

The noble Lord said: Perhaps I may speak to the amendment on behalf of my noble friend Lord Nathan and myself. The amendment requires the Secretary of State to set up a register of people considered fit and proper who will release GMOs. It also creates an offence, with appropriate penalties, for anyone not on the register who carries out a release. The Royal Commission on Environmental Pollution recommended such a register in its 13th report. The relevant quotation is: Appropriate arrangements should be made for the registration of the companies or other organisations which carry out trial releases. Criteria for their entry to the register should include the employment of suitably qualified personnel, the provision of appropriate training, designation of safety officers and the establishment of a local safety assessment committee. Registered organisations should be required to identify one or more registered persons who would be responsible for releases".

The thinking behind the register is that some releases may be acceptable only if they are carried out carefully to minimise any risks. The amendment would provide powers to ensure that such releases were carried out only by people who had convinced the Secretary of State that they were fit and proper to do so.

The Royal Commission's report set out some of those criteria. I have just more or less illustrated those points. Anyone who carried out a release incompetently would be removed from the register, thus providing an extra incentive to take care with releases.

Although Clause 105 enables the Secretary of State to require the releaser to have a consent, it does not establish that only fit and proper persons can hold consents. It does not establish that the Secretary of State, faced with an application for two identical releases—one, let us say, from a well-established and reputable person, with a good track record and one from someone who was in a less confident situation—could approve the former and reject the latter. Nor does it provide that a release which is exempted from the consent requirement, which appears to be possible, should nevertheless be carried out only by a fit and proper person.

There are now in place tight controls on who may spray agricultural pesticides. GMO pesticides will be covered by those controls, but other forms of GMOs may also need controls on releases. The amendment seeks to establish such controls. I beg to move.

9.30 p.m.

Lord Hesketh

I am in a slight state of confusion whether or not the noble Lord, Lord Lewis, was also speaking to later amendments. I wonder whether he took his later amendments out of the grouping list when he took out Amendment No. 336 earlier this evening or whether they remain with that original grouping and we are only dealing with Amendment No. 336.

Lord Lewis of Newnham

I am speaking only on Amendment No. 336. Amendment No. 333 has been dealt with.

Lord Hesketh

This is so; but later amendments were grouped with Amendment No. 333. I wondered whether they remained with the original grouping.

Lord Lewis of Newnham

Yes.

Lord Hesketh

I am grateful to the noble Lord, and I apologise for having had to inquire. The arguments for and against registers of authorised releasers, whether or not statutory, are very important. With GMOs we are dealing with techniques and processes which in many cases are at the frontiers of biotechnology. That is why the responsibility for Part VI is placed firmly in the hands of the Secretary of State.

We are strongly of the view that because of the extreme novelty and innovation of many proposed GMO releases, each proposal needs to be assessed on its individual merits. A prime consideration must be the ability of the proposer to conduct the release. Releases will differ, one from another, for example, in location, extent or type of genetic modification. Assessments of the competence of those proposing to make releases therefore need to be considered separately in each case.

If we attempted to generalise this process by granting prior authorisation to certain persons, whatever their individual qualities and skills, difficulties would arise. This would be, for example, in testing a person for suitability for inclusion in the register and testing that a person once registered had kept pace with developments in the field.

I hope that the noble Lord accepts that we have very seriously considered whether a releaser register would be appropriate. The arguments that I have deployed are the reasons we resist the noble Lord's amendment.

Lord Dean of Beswick

Perhaps it is remiss of me to keep rising at this time of night, but the Minister is proceeding on the assumption that we start from the base that all those involved in these emissions are goodies till proved baddies. The noble Lord, Lord Lewis, has made a legitimate case. Whatever walk of life one works in, whether it is building, engineering, the City of London or the legal profession, there are people who have made reputations that stand being tested by anybody. There are other people involved in those spheres who do not come out so well, whichever yardstick one uses.

For the Government to proceed on the basis that everybody in this sphere must be considered from the same angle seems to me to be starting from the wrong premise. The noble Lord, Lord Lewis, has made a legitimate case. The Government may do well to examine it in rather more depth than just the answer given tonight that they think it will come out all right. I see no demerit in taking the point that people with an established reputation can be put on trust against those who are an unknown quantity.

Lord Hesketh

I must resist this suggestion, particularly as it comes from the Benches of the noble Lord, Lord Dean. The Government are constantly questioned about why they are not tougher. Then we introduce a state of affairs where we err on the side of caution and immediately the noble Lord, Lord Dean of Beswick, assaults me for going the wrong way. I feel it has a slightly hollow ring in this case.

Lord Dean of Beswick

I do not wish to delay the Committee, but I am entitled to ask the Minister what he refers to.

Lord Nathan

I am delighted to hear the Minister say that he is considering each particular release as requiring a specific consent. That is extremely cheering. However, I think some reality needs to be brought into the discussion in that at the moment we are at the stage of dealing with trial releases in the course of development. Inevitably the supposition in one's mind is that the developer of a particular GMO is the party who knows all about it and who is probably extremely knowledgeable and competent to carry out the release. In that context it may not be necessary to consider the matter of registering releasers. However, there are other contexts to consider.

One is where for example, a company or a person properly imports a genetically engineered organism or a product made with a genetically engineered organism. He may be perfectly competent in every way but he may not have experience in carrying out releases. In that case a register of releasers would be helpful. One thinks of the expert consultants in this field—there are few of them—who could well qualify as experts for the purpose of releases.

However, beyond the trial area there is the matter of spraying pesticides which the noble Lord, Lord Lewis, mentioned. We know that that is covered by applicable consents. The noble Lord in answering a question referred to the fact that this Bill is supposed to cover a long period and to have the necessary flexibility. Let us suppose that a technique is developed of spraying metal with a view either to preventing rust or getting rid of it. Let us hope that this is developed in the not too distant future. That process may require just as much care as the spraying of pesticides, but it would not be covered by the pesticides regulations. One can think of all kinds of situations where the use and application of a finished product comprising GMOs would need to be dealt with with care and expertise. It is for that purpose among others that registered releasers would be a useful classification to ensure that those releases were carried out by competent and well tried people.

Lord Hesketh

I do not wish to delay the Committee. I am sure that the noble Lord, Lord Nathan, does not want to hear a repetition of what I have said. There is one part of the argument that I would emphasise more than any other, which is that we are concerned that someone's ability may become weakened while he is on the register. There is no protection against that state of affairs. That is one of the reasons why there were so many lengthy discussions on the problems of the register.

Lord Lewis of Newnham

I am concerned about this matter, but I take it that we are talking here about a different timescale. I am consoled by the fact that in the initial stages the register will essentially be an individual register of the people who are carrying out the trial experiments. However, a time will come—that is the success story of genetically modified organisms—when there will be general releases of GMOs on a commercial scale of the same nature and magnitude as occur at the moment with pesticides.

However, as we approach that time—I admit that it will not be in the immediate future—I merely request that this point will have the opportunity to be reconsidered. We shall then move into exactly the same regime as has been accepted for certain other types of releases. All we are doing is insisting—that has been pointed out by my noble friend Lord Nathan—that certain types of release do not come under the pesticide legislation. However, exactly the same kinds of problems will be associated with them from the point of view of society at large. With that pointer, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 108 [Appointment etc of inspectors]:

The Earl of Arran moved Amendment No. 336A:

Page 116, line 16, leave out from ("inspectors") to (", such") in line 17 and insert ("for carrying this Part into effect").

The noble Earl said: Amendment No. 336A improves the wording of Clause 108 by clarifying that the Secretary of State may appoint inspectors for the purpose of carrying Part VI into effect. The effect of Amendments Nos. 340ZB and 336B is to enable the Secretary of State to delegate enforcement functions under Part VI by agreement. I beg to move.

Lord Dean of Beswick

I should like the Minister to explain the Government's intentions. The amendment removed the word "inspectors" for the definition of those appointed to police the genetic modification regulations. Is it still intended to conclude an agency agreement with the HSE to provide the inspectors? Currently there are only two inspectors in an establishment of three which means that it is 33 per cent. below the full establishment. That small number already has to police nearly 400 institutions. What are the Government's intentions in that regard?

The Earl of Arran

The enforcement of Part VI will be undertaken largely by inspectors appointed under Clause 108. There are two main requirements for such inspectors. First, they should possess appropriate expertise, which will require special training and development in such a new field. Secondly, the inspection arrangements should as far as possible synchronise with those operated by existing inspectorates, particularly HSE inspectors who are responsible for enforcing human safety aspects of GMO operations in order to avoid duplication of visits to premises.

Existing HSE inspectors have an excellent track record in enforcing the existing human health controls over GMOs. At present they lack environmental expertise to enforce the proposed provisions because the Health and Safety at Work etc. Act does not protect the environment. However, subject to appropriate recruitment and training they are well placed to gain the necessary additional expertise.

All things considered, the most sensible and efficient arrangement therefore seems likely to be one in which HSE acts on behalf of DoE and other departments under an agency agreement. Amendment No. 340ZB provides appropriate delegation powers on which to base such an agreement. The Committee will be pleased to know that we already have arrangements for such an agreement well in hand.

On Question, amendment agreed to.

The Earl of Arran moved Amendment No. 336B:

Page 116, line 29, at end insert: ("(5) In this Part "inspector" means, subject to section (Delegation of enforcement functions) below, a person appointed as an inspector under subsection (1) above.").

On Question, amendment agreed to.

Lord Dean of Beswick moved Amendment No. 336C:

Page 116, line 29, at end insert: ("(5) The Secretary of State shall satisfy himself in respect of each financial year in which functions under this Part are exercisable that adequate resources and staffing for inspection and enforcement are available to secure the effective implementation of the requirements of this Act.").

The noble Lord said: The amendment draws attention to concern over the level of staffing of the inspectorate which will assist the Secretary of State and whose work will inform the advisory committee. Will the Minister make a statement on the level of resources available and whether they will be adequate?

Lord Hesketh

The effect of Amendment No. 336C is to require that the Secretary of State satisfies himself in respect of the annual resources available for the inspection and enforcement requirements of Part VI. The Government have repeatedly made it clear that resources will be available to do the work required under the Bill. That applies as much to Part VI as to the rest of the Bill, as I have repeatedly emphasised throughout the passage of the Bill in Committee. Thus I do not believe that the noble Lord's amendment will allow us to improve on that assurance.

Lord Dean of Beswick

On the basis of the Minister's reply I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 108, as amended, agreed to.

9.45 p.m.

Clause 109 [Rights of entry and inspection]:

The Earl of Arran moved Amendment No. 336D:

Page 116, line 32, leave out ("purpose of assisting in") and insert ("purposes of").

The noble Earl said: On behalf of my noble friend, in moving this amendment I shall speak also to Amendments Nos. 336E, 336F and 336G. These are all straightforward amendments which seek to clarify the rights of entry and inspection of inspectors appointed by the Secretary of State under Clause 109. I beg to move.

On Question, amendment agreed to.

The Earl of Arran moved Amendments Nos. 336E to 336G:

Page 116, line 34, leave out ("so far as exercisable in relation to premises").

Page 117, line 6, after second ("him") insert ("any person duly authorised by the Secretary of State and").

Page 118, line 26, leave out from ("possession") to ("an") in line 27 and insert ("under that power of —

1. (a) any thing that forms part of a batch of similar things, or
2. (b) any substance,").

On Question, amendments agreed to.

Clause 109, as amended, agreed to.

Clause 110 [Obtaining of information from persons]:

[Amendments Nos. 337 and 337A not moved.]

Clause 110 agreed to.

Clause 111 [Power to deal with cause of imminent danger of damage to the environment]:

Lord Hesketh moved Amendment No. 337B:

Page 119, line 14, leave out from ("of") to ("found") and insert ("anything").

The noble Lord said: Amendments Nos. 337B to 337F are of a clarifying and technical nature. I beg to move.

On Question, amendment agreed to.

Lord Hesketh moved Amendments Nos. 337C to 337F:

Page 119, line 26, leave out from ("premises") to first ("a") in line 27.

Page 119, line 29, leave out from ("after") to ("has") and insert ("anything").

Page 119, line 34, leave out from ("where") to ("was") and insert ("it").

Page 119, line 35, leave out from ("on to (", also") and insert ("it").

The noble Lord said: I beg to move these amendments en bloc.

On Question, amendments agreed to.

Clause 111, as amended, agreed to.

[Amendment No. 338 not moved.]

Clause 112 [Offences]:

Lord Hesketh moved Amendment No. 338A:

Page 120, line 4, after ("(3)") insert ("(a), (b) or (c)").

The noble Lord said: This is a technical amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 339 and 340 not moved.]

Clause 112, as amended, agreed to.

Clauses 113 to 115 agreed to.

[Amendment No. 340ZA not moved.]

Lord Hesketh moved Amendment No. 340ZB:

Before Clause 116, insert the following new clause:

("Delegation of enforcement functions

.—(1) The Secretary of State may, by an agreement made with any public authority, delegate to that authority or to any officer appointed by an authority exercising functions on behalf of that authority any of his enforcement functions under this Part, subject to such restrictions and conditions as may be specified in the agreement.

(2) For the purpose of this section the following are "enforcement functions" of the Secretary of State, that is to say, his functions under—

• section 104;
• section 108(1) and (4);
• section 110;
• section 112(10); and
• section 115;

and "inspector" in sections 109 and 111 includes, to the extent of the delegation, any inspector appointed by an authority other than the Secretary of State by virtue of an agreement under this section.

(3) The Secretary of State shall, if and so far as an agreement under this section so provides, make payments to the authority to reimburse the authority the expenses incurred in the performance of functions delegated under this section; but no such agreement shall be made without the approval of the Treasury.").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 116 agreed to.

Clause 117 [Definitions]:

[Amendments Nos. 340A to 342 not moved.]

Clause 117 agreed to.

Lord Reay

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at ten minutes before ten o'clock.