Environmental Protection Bill

HL Deb 26 June 1990 vol 520 cc1526-603

House again in Committee on Clause 58.

Lord Layton moved Amendment No. 246C: Page 64, line 32, at end insert ("In the case where waste was deposited prior to 1st Janauary 1976, the waste shall be deemed to be controlled waste where it would have been controlled waste if it had been deposited after 1st January 1976.").

The noble Lord said: The words "controlled waste" only became a term in law by the implementation of the relevant section of the Control of Pollution Act 1974 on 1st January 1976. That is the legal situation. It seems doubtful whether waste deposited prior to that date would be classed as controlled waste. Although intended to cover waste deposited prior to January 1976, the words in brackets, whether before or after 1st January 1967", do not appear to fulfil that intention.

It is suggested that the words of the amendment clarify the position. This is purely a legal matter and I have been told that the problem arose on consideration of a case. Because the definition was not sufficiently exact it was impossible to continue with the case. I beg to move.

Lord Hesketh

There is general recognition that we need a proper basis for tackling the problems of landfill gas and leaching at closed landfill sites. We may differ on the details. However, there seems to be a consensus. Waste regulation sites must be surveyed. Problems must be assessed and dealt with. I hope that the debates on this clause will be illuminated by this consensus rather than darkened by our minor differences of approach.

These amendments are a good example. There is no difference in our objectives, simply a difference of drafting. We entirely agree that this clause must cover waste deposited at any date, however long ago. The problems of such sites might persist for 30 or more years and we have no intention of setting any backstop date on the effect of the clause.

I can assure my noble friend that in spite of his misgivings the clause has this effect. The phrase, whether before or after 1st January 1976", unambiguously brings under the clause all sites where waste has been deposited that would have been controlled waste if the Bill had been in force when the deposit was made. This is made clear in the supplementary definition of "controlled waste" for the purposes of this clause only at the end of subsection (3). Because of that definition, controlled waste in this clause is household, commercial and industrial waste as defined in the Bill. That means that a single definition applies to deposits of waste made in the period before 1976, the period from 1976 until this Bill comes into force and to future deposits. We would not want any possibility that a WRA would have to undertake a kind of archaeology of rubbish to put a date on waste before deciding whether the site came under Clause 58.

I hope that my noble friend is heartened by these assurances and will feel able to withdraw his amendment.

Lord Layton

I am sure that the legal brains have been working on this matter. I accept the Minister's explanation. I hope that he is right. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No 246D not moved.]

Lord Renton moved Amendment No. 246E:

Page 64, line 45, at end insert: ("4A) Where it appears to a waste regulation authority that any land is in such a condition as to be likely to cause pollution to the water environment it shall be the duty of the authority forthwith to inform the National Rivers Authority.".

The noble Lord said: Clause 58 places a duty on waste regulation authorities to monitor and secure the safety of closed landfill sites where a site licence is not in force. The purpose of the amendment is to require a WRA to notify the National Rivers Authority when any land in its area is likely to cause pollution of the water environment.

Under Section 115 of the Water Act 1989 the NRA has the power to take action to prevent water pollution. However, if the authority is to exercise that power effectively it must have as much information as is available to the WRA in respect of landfill sites whose condition is likely to cause pollution. I suggest that the amendment speaks for itself. I beg to move.

The Earl of Arran

It is a particular pleasure to be able to welcome an amendment tabled by my noble friends Lord Renton and Lord Onslow and the noble Lord, Lord Moran. We have heard how important it is that our water supplies should be protected against leachate from waste sites. There is already recognition of this in the procedures for consulting the National Rivers Authority when granting licences. It does indeed seem entirely reasonable that the NRA should also be consulted about problems with disused sites.

I have only one or two slight doubts about the wording of the amendment. In particular I ask: is it actually enough merely to "inform" the NRA? Perhaps it would be better to require the WRA to "consult" the NRA, giving it a statutory voice in the measures that should be taken at a problem site. With that very slight qualification, perhaps my noble friend will not be too upset if I undertake to take away the amendment and overhaul the wording with a view to bringing it forward again on Report.

Lord Crickhowell

The Committee will recognise the fact that, as chairman of the National Rivers Authority, I am particularly pleased that the Minister has agreed to take the amendment away and look at the wording. In doing so I ask him to examine a couple of related matters to which I need not return when we reach Clause 61. Clauses 58 and 61 are related. Clause 61(1)(j) refers to publicity and public registers in regard to the exercise of any power under Clause 58.

Two separate points arise. It is extremely important that the National Rivers Authority is informed and consulted. It is equally important to ensure that there are full and comprehensive registers for public inspection of all such events. I am uncertain about the wording because paragraph (j) refers to the powers of the WRA under Clause 58. However, with the exception of subsection (7) and the power given in subsection (3) by the word "may", Clause 58 refers to "duties". Powers and duties are different. I am by no means clear that when registering the information it will be necessary to register only the cases in which action is taken in order to correct a situation or whether it will be necessary for WRAs to include in the register every visit and every inspection carried out.

I do not expect my noble friend to respond immediately to these detailed points. However, it would be helpful for the Government to confirm that the wording is right and that the words "duty" and "power" are correctly drafted and do not need amendment.

I wish to take the opportunity of repeating the question that was asked by the noble Lord, Lord Graham of Edmonton. He asked about the register of contaminated land which on 30th April the Minister in another place undertook to introduce by means of an amendment in this Chamber. One of our difficulties in considering the clauses is that as yet we do not have the Government's amendment. In a public statement made at that time the Minister said: We envisage that these registers will identify sites of potential contamination, based on past land use. In this way, they will provide a means of alerting interested parties to the potential for contamination so that, where necessary, more detailed site surveys can be undertaken. At the same time, I want to ensure that we avoid extending planning blight in those parts of the country with a legacy of industrial land use". That statement is relevant to a later amendment tabled by the Opposition.

I understand that the Government are consulting and wish to get the provision right. However, as we discuss the powers that are available and the information that should be contained in the registers, it would be helpful if as soon as possible the Government could indicate their intentions as regards the promised amendment which we still do not have.

8.45 p.m.

Lord McIntosh of Haringey

Before the noble Lord, Lord Renton, responds to the amendment, I wish to add my support to what was said by the noble Lord, Lord Crickhowell, particularly as he referred to the remarks made by my noble friend Lord Graham. It is extremely important, and by now extremely urgent, that the Government's commitment to provide at least a register of contaminated land should be honoured. We should be given a better indication of the reason why a commitment made in another place has not yet been honoured. Since amendments have not appeared we must, at the very least, be given a commitment that they will appear in good time before the Report stage in this House. The reminder given by the noble Lord, Lord Crickhowell, is extremely valuable.

The Earl of Balfour

Perhaps between now and Report consideration can be given to making reference to Section 115 of the Water Act 1989 in this legislation so that there is a cross reference. There are occasions on which an authority may not have locked at other legislation: it is always helpful to draw its attention to that.

Lord Renton

I thank my noble friend Lord Arran for the forthcoming way in which he accepted the principle of my amendment. I look forward to seeing a government amendment tabled on Report which will fulfil the same object but drafted as he has advised.

I am sure that meanwhile my noble friend will take seriously the important points raised by my noble friend Lord Crickhowell on behalf of the National Rivers Authority. They are points which should not be overlooked. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Layton moved Amendment No. 246F: Page 65, line 11, leave out from ("authority") to end of line 13.

The noble Lord said: As the clause is currently worded, the local authority has powers to clean up polluted land where it is creating pollution or harm to human health. They then attempt to recoup the loss from the landowner. This seems rather a convoluted way of doing things which may create unnecessary delay and may affect local authority spending. It also seems to create unnecessary legal difficulties: for example, disputes between the landowner and the local authority as to whether the work was truly necessary in the first place, as under Clause 58(7). The amendment proposes a much more straightforward solution. The local authority would be able to get the landowner to clean up the problem himself and pay for it.

This would be much less of a burden on public expenditure as it seems to apply the polluter pays principle directly. It would be up to the landowner to decide the best methods by which to abate the problem by appropriate means. Only as a last resort should the local authority do the work and attempt to recoup the cost. The onus for the cleaning up is clearly placed upon the owner of the land and not the local authority or the community charge payer. The only exceptions would be in the case of land where a WRA has issued a certificate of completion under Clause 38. The existing Clause 58(9) is retained in the amendment, renumbered as Clause 58(15). This ensures that local authorities have regard to any guidance received from the Secretary of State. Such guidance should prevent local authorities from being over-zealous in the use of these powers. This is perhaps the other side of the coin referred to in Amendments Nos. 246A and 246B. I beg to move.

Lord Hesketh

This group of amendments introduces two issues: who should undertake the legal works and who should pay for them. I have to say that these issues have been the subject of more soul-searching and scrutiny in my department over the past few months than any other in Part II. We are not unaware of the difficulties but have concluded that the course we have chosen, with crucial government amendments yet to be discussed, is right.

I have listened carefully to the noble Lord's arguments, but they have merely strengthened my belief. I do not find the alternative system offered by these amendments very attractive and I shall not bore the Committee with the technical detail or defects—for example, there is no offence in subsection (6) as referred to in Amendment No. 246H. Rather, I shall try to outline the objections in principle to the noble Lord's proposals.

As I say, there are two issues here. The first is the easier to settle: who should undertake remedial work on long-disused landfill sites? We must remember that we are talking about sites where there is no licence. The current owner and occupier may well have nothing to do with the waste deposits and are unlikely to know anything about landfill gas or methane. We are not talking here about a simple job like clearing litter. This is highly technical work which may well involve excavation, boreholes, drains and the installation and operation of complex equipment to extract or burn off methane.

As I said to your Lordships last week, this is not a job for amateurs. It has to be done and supervised by experts in order to avoid serious risks of fire, explosion or contamination of water supplies. That is why we believe that the experts and the waste regulation authorities should be responsible, if necessary using specialist outside contractors. In passing, perhaps I might express the hope that this will give the lie to the accusation of always trying to take work away from local authorities. In this case, the Government firmly believe that this is the proper function of the public sector.

Having disposed of the question of who should do the work, there remains the question of who should pay. The arguments were rehearsed exhaustively in another place during Committee. There are four people who might be asked to pay for remedial work: the person who deposited the waste, the waste regulation authority who does the remedial work, the present occupier of the land and the owner of the land. Pursuing the person who deposited the waste will often be fruitless and, if they have a licence, unfair. It would not be reasonable to call on a former licensee who had acted within the terms of his licence and the conditions laid upon him by the authority at the time. Nor, in many cases, could the person still be found. The intention is that future licensees would remain subject to long-term conditions after site closure, for ex-licensees may be companies who have disappeared. Nor do we want to make waste regulation authorities pay for works out of the public purse, except as a last resort. As noble Lords opposite have pointed out, we have to have regard to the cost burdens of new duties on authorities.

That leaves only the present-day occupier and the owner of the land. Of the two, we have opted to charge the owner. After all, it is he who will benefit from any increased value of the land consequent upon remedial works. For these reasons, I do not accept that the occupier should undertake and pay for the work done, as suggested in the amendment. My noble friend's Amendment No. 246M seems restrained on this point. I note that the occupier would have to undertake the work specified in a notice, and presumably would be expected to pay for it. However, if the occupier defaults and the local authority has to undertake the work, then the cost is recoverable from the owner. That is the correct course, and it is the one adopted in the clause as at present drafted.

The only other feature of these amendments is the suggestion of an appeals system. The Government considered the possibility of an appeal against cost recovery, which was suggested in Committee in another place; but there are some grounds for appeal. The grounds suggested in Amendment No. 246 add nothing to that proviso. We already have in subsection (7) the proviso that no one need pay their costs where they have been incurred unnecessarily.

When I move to Amendments Nos. 246J and 246L, I shall explain the Government's solution to hard cases where it would be oppressive to recover costs from the landowner. I am grateful to my noble friend for the meticulous work that has gone into the alternative arrangements that he has suggested, particularly as it has given me a chance to put the Government's case at some length, and for that I apologise to the Committee.

Lord Layton

I thank the Minister for a very full reply. This was in many ways a probing amendment. I am not totally happy with the reply, but I am not totally happy with the amendment either. I beg leave to withdraw it at this point.

Amendment, by leave, withdrawn.

[Amendments Nos. 246G and 246HA not moved.]

Lord Hesketh moved Amendment No. 246J: Page 65, line 16, at end insert ("or part of the cost").

The noble Lord said: In one sense, Amendments Nos. 246K and 246L are a continuation of my reply a moment ago to the noble Lord, Lord Layton. Having regard to the time I took over the last set of amendments, I shall hope not to delay your Lordships too long on this matter. The only remaining flaw has been the possibility that the costs of remedial works may be quite disproportionate to the means of the landowner. At the extreme there might be housing built on or next to an ancient waste site. We hope that would not happen now, but it might have done in the past.

We do not want an authority to seek to recover what might be multi-million pound bills from owner-occupiers of housing who might not even know they were on a former landfill site. Rather than rely entirely on the mercy and discretion of authorities, this pair of amendments requires them to have regard to any hardship that might result from recovering the full costs. They may then remit all or part of the costs. In such exceptional cases, the balance would have to come from the public purse. I beg to move.

Lord McIntosh of Haringey

It does not come very well, I suppose, to stand up from this Dispatch Box and oppose the recognition of hardship. However, I am worried about the opening which is given by Amendments Nos. 246J and 246L. The point is that we are trying to defend all the time the polluter pays principle. The Minister has given, in the example that he chose, a touching case of owner-occupiers who have inherited much later pollution which is on the land they own, but for which they had no responsibility at the time the pollution was caused.

The difficulty is that that is not what is reflected in the two amendments as drafted. They allow for the defence of hardship and for the possibility that hardship should be a suitable derogation from the responsibilities which would otherwise fall upon the occupier: in other words, in most cases the polluter.

There is a serious risk that the polluter will not defend the environmental standards that he should be required to defend, but will concentrate on proving inability to pay. The selective example that the Minister gave in proposing the amendments does not deal adequately with that problem. He should come back to the Committee and say what will happen, not if some distant, worthy successor—no doubt widows and children living in those owner-occupied houses—but the polluter himself then pleads hardship. How will the polluter pays principle be enforced if the amendments are agreed to?

9 P.m.

Lord Hesketh

I understand what the noble Lord, Lord McIntosh, says, but I am interested to know whether he suggests that there should be no recourse for home owners who find themselves in the situation that I have described. In my experience, one of the most problematical areas is where there is housing built on what was a waste tip. The noble Lord suggests that that is a rare example, but it is not so rare as he thinks.

Lord McIntosh of Haringey

I do not suggest there should be no rules; I suggest that the amendment should be more tightly drawn. If that is what the Government intend—that may well be a geniune case and I do not dispute it—the amendment should be drawn to cover only those cases where the occupier or the owner bears no causal relationship to the person who caused the pollution. As the amendment stands, the original polluter who is still the owner or occupier may plead hardship and get away with it. That is not acceptable. Even if we do not oppose the amendments and they arc incorporated in the Bill, the Government should at least agree to look again at the matter and try to distinguish between the innocent parties and the guilty parties.

Lord Hesketh

Perhaps I may draw the noble Lord's attention to the remarks that I made earlier in reply to the amendment tabled by the noble Lord, Lord Layton, which referred to cases where the authority has the right to retrieve from those who are the polluters. The examples that I gave involved cases where the polluter had disappeared. That is why we must protect the innocent parties.

Lord McIntosh of Haringey

The examples that the Minister gave are not the same as those that would be covered by the amendment. The amendment does not distinguish between innocent parties and guilty parties. That is the point I am trying to make.

Lord Hesketh

I shall be interested to hear the noble Lord when he presents his amendment at Report stage.

On Question, amendment agreed to.

[Amendment No. 246K not moved.]

Lord Hesketh moved Amendment No. 246L:

Page 65, line 23, at end insert: ("(In deciding whether to recover the cost and, if so, how much to recover of the cost which it is entitled to recover under subsection (7) above, the authority shall have regard to any hardship which the recovery may cause to the owner of the land.").

On Question, amendment agreed to.

[Amendments Nos. 246M and 246N not moved.]

Clause 58, as amended, agreed to.

Lord McNair moved Amendment No. 247:

After Clause 58, insert the following new clause: ("Tenders: Value of recycled waste In assessing tenders for waste disposal, relevant authorities shall have regard to the desirabilities of recycling and shall assess the short-term cost saving per tonne of landfilling against any financial credits or resale value derived from diverted waste which is ultimately recycled or reclaimed where such value can be clearly demonstrated.").

The noble Lord said: The purpose of the amendment is to end the practice of diluting the real cost of consigning domestic waste to the ground during the competitive tendering stage.

Most people now recognise that landfilling is at best a waste of valuable resources and at worst a major environmental hazard which blights the land for decades and allows methane to pollute the ozone layer and leachates to pollute the waterways. We must therefore ensure that the Bill prevents tenders containing only part of the cost of landfilling, especially as we are now likely to see recycling options being considered alongside.

As I said when speaking to Amendments Nos. 240 to 244, it is extremely difficult to analyse on a per tonne basis the ongoing costs of site checking and maintaining landfilled sites. However, it will be possible to work backwards from the total costs for a waste disposal authority and obtain some idea of the average cost for all methods of disposal. Escalating costs that are not foreseen or foretold are not good housekeeping and do not make sense. There is little point in allowing the market to be distorted on the one hand while at the same time hoping to see alternatives to landfill develop.

More precisely, when tenders are awarded at present, a cost per tonnne must form part of the tender price. The volume of waste that is not tipped therefore represents a saving on the tipping fee per tonne. That figure could be part of a financial credit as it clearly is money saved. A more elaborate formula could be worked out subsequently as we move towards the 50 per cent. figure. That way, there need be no increase in public expenditure as the money for the credit will come from an existing landfill budget.

When the Minister discussed those issues in the excellent amendment that he moved earlier, he referred to a terminology whose definition is relevant to this amendment and to the question of net cost. My noble friend Lord St. John of Bletso asked for clarification as to the precise meaning of the word "net" in that case. I must have missed the Minister's reply and should be grateful if he would refresh my memory as to exactly what the Government intend net cost to mean. I hope that the Minister will be in a position to demonstrate that the Bill will see an end to "obscure accounting practices", as the Environment Secretary put it, and that, when evaluating tenders to process domestic waste in the future, authorities will be able to compare like with like on a cost basis and like with like on an environmental basis. I beg to move.

Lord St. John of Bletso

I support the amendment and I ask the Minister to give the Committee an assurance that the Bill will not allow the long-term and, by definition, real costs of land filling to be disguised at the competitive tendering stage. Furthermore, will the Bill address and cure what the Secretary of State recently described as an artificial depression of the real costs of landfill because of the way in which local authorities organise their accounts?

Lord Reay

This group of amendments concerns the tendering for waste disposal contracts. Amendments Nos. 247 and 248 are, I believe, founded in a genuine desire to give recycling a fair chance to compete against other, possibly cheaper, disposal options. We unequivocally support that intention. The competitive tendering requirements contained in Schedule 2 were deliberately drafted so as to impose a duty on disposal authorities to consider the comparative environmental advantages of recycling and waste minimisation. Let me make it absolutely clear that disposal authorities will not be required to accept the lowest tender. That said, we maintain that these amendments would add nothing to that requirement.

Amendment No. 247 restates that disposal authorities should weigh up the long-term benefits of recycling as opposed to the short-term cost savings of landfill. Quite simply they already can and indeed they are required to take account of such factors under Schedule 2, paragraph 18 of the Bill. Amendment No. 248 would require authorities to seek indicators or real costs as opposed to gate fees. Again this amendment is unnecessary for the simple reason that disposal contractors will be tendering on the basis of their full costs. There will be no way a contractor could hide the restoration and aftercare costs from the authority, except possibly by subsidising the costs himself. Those contractors will know full well that they will be held responsible for the costs of restoring their sites and dealing with any future remedial works. They will be left holding the baby, so the onus is on them to get their tenders right in order to take account of the full range of liabilities to which they are subject.

Amendment No. 249 seeks to impose a duty on contractors to disclose any impending legislation which may affect the cost of their tender. Again this point is covered by the fact that a contractor should when tendering take account of any factor likely to affect the cost of disposal, including impending legislation. Contractors will do everything possible to avoid being caught out because of course they will have a responsibility to dispose of the waste under the terms of the contract once it has been signed.

I am convinced therefore that these three amendments, worthy in intention as they are, are simply not necessary. Disposal authorities will in future be in a much better position to evaluate the comparative costs and benefits of various disposal options including recycling. It is up to the contractors to get their sums right in drawing up their tender for diposal contracts.

Lord McNair

I thank the Minister for his very full reply. However, I should like to press him regarding the definition of net costs that will become part of the formula to be used during the consultation process with interested parties.

Lord Reay

I am afraid that I cannot now give the noble Lord any further definition. I shall have to write to him.

Lord McNair

I am grateful to the Minister. We shall consider his reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 248 and 249 not moved.]

Clause 59 agreed to.

Clause 60 [Waste other than controlled waste]:

Lord Stanley of Alderley moved Amendment No. 250: Page 66, line 29, at beginning insert ("Subject to subsection (1A) below").

The noble Lord said: On moving Amendment No. 250 I shall also speak to Amendment No. 251. Although Part II of the Bill does not directly affect agriculture there are provisions contained in it whereby the Secretary of State may by regulation extend controls to premises used for agriculture. In March of this year my honourable friend Mr. David Trippier indicated that his department was discussing this problem with the Ministry of Agriculture. Perhaps my noble friend could give the Committee the result of those discussions.

Amendment No. 251 would ensure that any regulations that affect agricultural waste were made jointly by the environment and agricultural Ministers. I believe that to be important. I accept that farmers are not always tidy—I am certainly guilty of being untidy at times—but keeping a farm tidy is not easy. I should like to know what advice the Government have in mind for clearing up such things as fertiliser and silage bags and other difficult to dispose of farm rubbish. For instance, recently the problem of disposing of dead animals due to BSE has become quite serious.

I raise this matter because usually the easiest way to get rid of rubbish is to burn it. However, the other day a Cleveland farmer was fined for doing just that. What have the Government in mind? Personally, I should prefer to burn my plastic and other rubbish, including string, rather than to see it scattered around the countryside making it hideous. I am concerned that banning burning of this rubbish might make the situation worse unless there is a practical alternative available. I beg to move.

9.15 p.m.

Lord Reay

This clause provides for non-controlled wastes to be brought under control through regulations. Non-controlled wastes are, as the noble Lord pointed out, wastes from mines and quarries and wastes from agricultural premises. The amendment would require such regulations to be joint regulations issued by the Department of the Environment and the Ministry of Agriculture Fisheries and Food, and to have regard to the possibility of wastes from these sources being detrimental to the countryside.

We dealt on Clause 29 with an amendment to bring agricultural wastes within the controls of this part of the Bill. I explained then that controls are already applied to disposal of such waste on farms under MAFF codes of practice. In the Government's view there would be no necessity for bringing the majority of those wastes which are disposed of on farms under these codes of practice within the provisions of this Bill.

The Agriculture Act 1986 contains provision in Section 17 that the Minister of Agriculture shall, in discharging any of his functions, have regard to the conservation and enhancement of the natural beauty and amenity of the countryside in so far as this is consistent with the promotion and maintenance of a stable and efficient agricultural industry. It is already the case, therefore, that any guidance issued by MAFF concerning the disposal of agricultural waste on farms would be subject to this section of the 1986 Act, and would be required to take account of the need to protect the amenity of the countryside.

Similarly, in deciding whether to bring certain agricultural wastes under the control of this part of the Bill, my right honourable friend the Secretary of State for the Environment, in consultation with the Minister of Agriculture Fisheries and Food, will have regard to the potential for pollution of the environment or danger to human health that these wastes hold. The Government accept, for instance, that there is a need to ensure that the disposal of pesticides is subject to appropriate statutory controls. Discussions are continuing between the Department of the Environment and MAFF on how this might best be achieved.

Therefore, I am able to reassure the noble Lord that the amenity of the countryside will be taken into account in the preparation of MAFF codes of practice on the disposal of wastes. In drawing up regulations to bring any of these wastes into control, the Secretary of State would consider whether such wastes presented a risk to the environment.

My noble friend raised the case of a farmer prosecuted for burning, though I am not sure under what provisions the farmer was prosecuted. It does not seem likely that it was under the Control of Pollution Act. It may be that the burning of the waste caused a nuisance and the farmer was open to prosecution under legislation that will be replaced by Part III of this Bill. I hope that my noble friend will not feel the need to press his amendment.

Lord Stanley of Alderley

I am reasonably satisfied with that answer. Pesticides and their disposal are already very tightly controlled, and correctly so. I am not entirely happy with the answer about burning. The prosecution was under the Control of Pollution Act. The judgment was made on the blackness of the smoke. I am not sure that is a very good measure of whether something is polluting or not. I did not get as categorical an answer as I should have liked that the matter will be looked at very sympathetically in the future. At the moment, farmers are somewhat frightened of burning rubbish. The result is that sacks are wandering all over the countryside, which makes it hideous. I shall look very carefully at what my noble friend has said. I thank him for his assurances and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 251 not moved.]

Lord Layton moved Amendment No. 251A:

Page 66, line 39, leave out subsection (2) and insert: ("(2) A person who deposits or who knowingly causes or knowingly permits the deposit of any waste, other than controlled waste, that has the characteristics of special waste on any land shall be guilty of an offence and liable—

1. (a) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding £20.000 or both;
2. (b) on conviction on indictment to imprisonment for a term not exceeding five years or both.

(2A) A waste regulation authority may grant a person a licence to deposit waste, other than controlled waste, with the characteristics of special waste on any land in accordance with regulations made by the Secretary of State.").

The noble Lord said: I think there is a little problem of drafting here. Clause 60 as currently drafted is likely to prove very difficult to use. In particular the wording of subsection (2) is very unclear and uncertain. First, it is possible to argue that, if the waste were special waste and any waste management licence were not in force", catches all uncontrolled waste deposits on land as a licence would not authorise the deposit of uncontrolled waste. Licences are concerned only with controlled waste. Secondly, it can also be argued that the wording, if the waste were special waste", can be construed to mean all uncontrolled waste or only such waste with the characteristics of special waste. The words "characteristics of special waste" have therefore been added to the amendment.

Although there may be other ways of interpreting the wording of the clause, there is sufficient room for doubt for it to require redrafting. This amendment seeks to clarify the position. All waste that has the characteristics of special waste should have some form of control. This may be provided by other enactments but where it is not, the WRA should be liable to issue those persons, particularly farmers and so on, with a general or specific licence for the disposal of the waste.

Finally, there also seems to be a need in the case where uncontrolled waste is deposited at a licensed waste disposal site for appropriae conditions to be enforceable which relate not only to the deposit of controlled waste but also to the deposit of uncontrolled waste. I beg to move.

Lord Hesketh

These amendments are a lawyer's paradise. In this clause we are dealing with waste that is not controlled waste. Unless this clause provides otherwise, none of the controlled waste regime elsewhere in this part applies to what I shall term non-controlled waste.

Amendment No. 251A is a question of drafting. I can assure the Committee that all the points made here are already covered, though I accept that it is by no means easy to discern how. The first part of the amendment offers a much expanded redrafting of subsection (2). The expansion is substantially correct and I am glad that it shows how well Members of the Committee understand the subsection. But it is not necessary. The current wording already provides for a case where particularly noxious waste is deposited, waste bad enough to be special waste if it were controlled waste. The deposit of such waste will attract the same penalties as those in Clause 32 for the illegal deposit of controlled waste. I should add for any Member of the Committee who doubts the drafting of subsection (2) that it is not new but is carried forward substantially unchanged from the equivalent provision in Section 18(2) of the 1974 Act. One parliamentary draftsman is unlikely to err but two are infallible.

The other part of Amendment No. 251A is more straightforward. The proposed subsection (2A) would permit an authority to licence the deposit of non-controlled waste. We already go most of the way towards this. Clause 34(5) already provides that, where non-controlled waste is deposited at a licensed site, that may be governed by conditions in the site licence. That prevents the nonsense of a single site taking different wastes only some of which may be governed by the licence. I would not wish to go further. In any case, if we wanted to extend licensing to the deposit of non-controlled waste at a site that was not already licensed, we would have the power to do so by regulations under Clause 60(1). For these reasons I hope that I have persuaded the noble Lord that the whole of Amendment No. 251A is already covered in the Bill.

That is also true of Amendment No. 251B. Members of the Committee have spotted some apparent gaps in the symmetry of our arrangements but they are not real gaps. Under subsection (2) an illegal deposit of non-controlled waste would be an offence under Clause 32. But no one can be convicted of an offence under Clause 32 if he also has a defence under Clause 32. So all the defences in Clause 32 already apply here. It is not necessary to repeat them. This applies equally to the offence where waste is deposited from a motor vehicle; the person in a position to control the use of such a vehicle will be equally guilty of an offence under Clause 32 by reason of Clause 32(5) without the necessity for repeating that provision here.

I hope that my noble friend Lord Layton has followed me through this maze with regard to the clause and has seen that there is no difference in our intentions.

Lord Layton

I thank the Minister for his very full reply. This is something of a maze. I shall study his reply, but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 251B not moved.]

Lord Hesketh moved Amendment no. 252: Page 67, line 6, leave out subsection (4).

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

On Question, amendment agreed to.

Clause 60, as amended, agreed to.

Lord Addington moved Amendment No. 253:

After Clause 60, insert the following new clause: ("Prohibition of landfill of clinical waste

1. .—(1) Within three years from the date of passing of this Act, the disposal of clinical waste to landfill shall be prohibited absolutely.
2. (2) The Secretary of State may make regulations to empower a prescribed authority to exempt waste disposal contractors from the provision of subsection (1) above in an emergency or where it would otherwise be impossible to dispose of such waste by incineration.
3. (3) The chief inspector appointed under section 16 above shall maintain a list of sites where the landfill of clinical waste may be permitted in accordance with the terms of an exemption granted under subsection (2) above but the deposit of such waste at such a site without such an exemption shall be an offence under section 32(6) above.").

The noble Lord said: This new clause has been inspired by the Select Committee on the Environment of another place which recommended that clinical waste should be disposed of wherever possible through incineration. The effect of the amendment would be that inside three years there would have to be sufficient hospital incinerators to take care of all clinical waste. This would include used dressings, bandages, needles and scalpels. In regard to that particular category of materials, it does not take a great deal of imagination to relate the matter to the AIDS or the hepatitis B virus. Therefore, it would seem most sensible that such clinical waste should be disposed of in the most thorough form possible.

The amendment also makes allowance for the situation where an incinerator is not available due to a breakdown or because of industrial action, and so on. It provides that there should be specific landfill sites made available which will have a clinical waste placement. It also ensures that most landfill sites will not have this type of waste placement which is so potentially dangerous.

As the amendment takes its inspiration from a Select Committee in another place, I suggest that the Government should at least accept the principle behind it. I beg to move.

Lord Hesketh

I am grateful to the noble Lord, Lord Addington, for again raising this matter which is of great concern to us all. The amendment gives me the opportunity to restate the Government's policy in relation to the disposal of clinical waste and how its safe disposal is addressed by the provisions contained within the Bill. Clinical waste may not be only offensive in nature; it can also carry with it a high risk of infection. Inadequacies in the management of clinical waste have led to a number of incidents which have aroused public anxiety and it is perfectly proper to consider how far this might require amendment to the Bill.

As regards legislation, current public anxiety is already addressed in the duty of care proposals in the Bill with the associated codes of practice (to which the National Health Service will be subjected) and in the Government's recent paper on special waste. The paper quite clearly defines clinical waste as one of the categories of waste which, if it also possesses any of the characteristic properties such as ecotoxicity, toxicity or is infectious, will be special waste and therefore not only subject to the rigorous control procedures set out in the consultation document, but also subject to the higher penalties within this Bill if it is disposed of illegally.

It is not a matter for government to stipulate whether clinical waste can or cannot be subjected to a particular disposal route, even with particular exemptions as proposed in subsections (1) and (2) of this amendment. While general advice on best management practice for disposal of a variety of wastes is issued by the department in the waste management paper series, acceptance of particular wastes at specific sites is more appropriately handled by the licensing system.

We do not consider that HMIP should issue a list of sites where landfill of clinical waste is permitted. This is clearly a matter for the waste regulation authority. Clause 61 of the Bill provides that waste regulation authorities keep a public register of all licences. It is fair and proper that such matters of public anxiety are readily available to the general public who may be quite genuinely worried about a site in I heir area.

However, the Government are worried at the apparent lack of suitable incineration capacity and at signs that clinical waste segregation and management systems might not be all that they should be. For this reason, the department is obtaining a full consultants' review of clinical waste and management systems to report back later this financial year. Further action will depend upon the contents of that report. Should that require the application of specific licence conditions or restrictions on a national basis, there are powers in the Bill for the Secretary of State to make appropriate determining regulations.

Lord Hylton

I have a great deal of sympathy for the spirit and intention of this amendment. However, I should like to know what it is intended should happen with clinical waste arising from ordinary doctors' surgeries. In some cases this waste could be highly infectious or dangerous. It seems undesirable that it should go either into general landfill sites or into water-borne sewage. We could hardly expect every surgery to have its own incinerator. Therefore, there seems to me to be a need for some policy on the matter.

Lord Hesketh:

I must tell the noble Lord that, if he visits his local surgery, he will see that there are special bags which are used for this purpose and they are given special disposal treatment.

Lord Addington

The Minister has given me an extremely full reply and one which, I must admit, left me straggling behind him at certain points. His speed of delivery probably represents a record for him and for this Chamber. I managed to glean that the situation has been noted and is in hand. I should like to read what the Minister has said. While retaining the right to return to the point at a later stage, if necessary, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

Clause 61 [Public registers]:

Lord Lucas of Chilworth moved Amendment No. 254: Page 67, line 32, leave out ("(whether in relation to a licence so granted or not)") and insert ("in relation to that licence").

The noble Lord said: As the Bill stands, it appears that if any company has a conviction, that conviction can be recorded on the register not just of the waste regulatory authority in whose area the offence took place but in all other areas where the company may have a site. Where a large company with a number of sites has a conviction it is not appropriate that the company should be disadvantaged at another end of the country by having the conviction registered.

What will be the position of a partially owned operation where an industrial conglomerate has joined, through a subsidiary, another waste disposer so that there are now three companies involved? Will all the sites operated by all those companies, even if they are not necessarily in concert one with another on other sites, appear on the various registers? How will the registration of conviction work?

The amendment to which I seek the Committee's agreement will ensure that only a conviction relevant to the licence held at the site where the offence took place will be placed on the register in that area. I beg to move.

Lord Reay

The amendment seeks to prevent the recording of convictions other than those which relate to the licence registered with the authority. It would not be right to accept the amendment. It is the Government's intention to enable the public to have as much information available to them as possible. As in the case of judging a "fit and proper person", we are concerned about whether someone is the sort of person who should be involved with waste management anywhere. It does not seem to us reassuring to know that someone has committed an offence elsewhere but not at the particular site on the register page in question. It is relevant to his conduct as a licensee there or anywhere else. If a person has committed an offence of unlicensed illegal disposal of waste, then we would wish the public to know that, wherever the offence took place.

Lord Lucas of Chilworth

I am grateful to my noble friend for explaining the reasons for the retention of the subsection as written. However, he has not told me how the transfer of information will take place. He has not told me who is the responsible person. Is it the site owner? I have to repeat my question: what happens where the site is owned by three parties one of them perhaps being separate from the other two?

Lord Reay

I am glad that my noble friend has given me a further opportunity to answer that question. The intention is that any conviction may be relevant. We want to guard against companies changing their names or associations to avoid the Bill's intentions. I can assure my noble friend that the Secretary of State will be issuing guidance to local authorities on how the provision is to be interpreted.

Lord Lucas of Chilworth

I am sure that my noble friend will expect me to give futher consideration to what he has said. Meanwhile, I beg to leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 61 agreed to.

Clause 62 agreed to.

Clause 63 [Exclusion from registers of certain confidential information]:

Lord Reay moved Amendment No. 254A.

Page 69, line 20, at end insert: ("(2A) A determination under subsection (2) above must be made within the period of fourteen days beginning with the date of the application and if the enforcing authority fails to make a determination within that period it shall be treated as having determined that the information is commercially confidential.").

The noble Lord said: Amendments Nos. 254A and 256A provide for what I hope would be a remote contingency. A company which asks for its information to be kept off the register for reasons of commercial confidence should be entitled to a swift decision. These government amendments set a deadline of 14 days. There is a provision for varying the deadline by order. If an authority does not decide on an application in that time, then in default of a decision the information is to be treated as commercially confidential. These provisions mirror similar amendments which the Committee agreed to make to Clause 22 in Part I of the Bill. I beg to move.

Lord McIntosh of Haringey

I recognise that these amendments are comparable to those that we have already discussed. I am still puzzled by the relative timescales involved. We are talking about a determination of confidentiality which will last four years. The amendments propose that a determination has to be made within a period of 14 days beginning with the date of the application. I assume that that means 14 calendar days, not 14 working days. I should be glad to have that confirmed or otherwise by the noble Lord on behalf of the Government. I do not know what his experience of local government is, but that means that such a determination has to be made by officers. It cannot be considered by elected members. I am not sure that that is desirable, nor am I convinced that the contrast between 14 days for the determination and four years for the life of the determination is the right balance. Can the Minister say anything on that which will help us?

Lord Reay

I should have said at the outset that in speaking to Amendment No. 254A I was at the same time speaking to Amendment No. 256A. The 14 days is 14 calendar days. I take the noble Lord's point. If the timescale proves to be unworkable, the Secretary of State will be amenable to reconsidering it and may lay an order to extend the period. The main point is that in these cases where a company has asked for information to be kept off the register for reasons of commercial confidence, we feel that it should be entitled to receive a swift decision. That is the purpose of the provision.

Lord McIntosh of Haringey

I find that quite unsatisfactory. I know that it is meant well, but to tell us that the Government propose to put on to the face of the Bill—not in regulations—a requirement for a determination to be made in 14 days, and then for the noble Lord on behalf of the Government to say that if it proves to be unworkable, the Secretary of State will take it back, is not the way to propose legislation.

The Minister has nothing to lose. On this occasion I recommend him to take the amendment back and bring it forward if necessary at Report stage. He should recognise that we know all that is necessary to know. We know about the contrast between 14 days for the determination and four years for the life of the determination. We know that it means in practice that such a decision will always be taken by officers. There will be no intervention by elected members. What else is there to learn? On this occasion I ask the Minister to be a little flexible, take the amendment back and let us reconsider it at Report stage.

Lord Reay

I cannot give the noble Lord the assurance for which he asks. I shall consider what he said. If he wishes to put down a further amendment, we shall expect to see it at Report stage.

On Question, amendment agreed to.

Lord Lucas of Chilworth moved Amendment No. 255: Page 69, line 48, at end insert ("save that any hearing in accordance with subsection 2(c) of that section shall in all cases be held in private.").

The noble Lord said: This amendment is designed to protect commercially confidential information. If a hearing were to occur under this subsection to discuss the potentially confidential nature of certain information, it should obviously not be held in public. As the intention of the clause is to protect commercially confidential information, a public hearing would be totally inappropriate.

I have taken full regard of what my noble friend the Minister had to say the other evening when we were discussing Amendment No. 123 which concerned the issue of individual or commercial confidentiality being swept aside in favour of the greater national need. I accepted the viewpoint that was put forward at that time. However, in this case we are not talking about anything of that nature. We are talking about exclusions from registers. It seems to me only reasonable therefore that any hearing should be held in private. I beg to move.

Lord Reay

This amendment would require private hearings for appeals against furnishing information on the grounds of commercial confidentiality. Almost all appeals are already determined by written evidence together with site inspections. Hearings are rare. The Secretary of State has discretion as to how appeals are determined. I can assure my noble friend that my right honourable friend will not be so perverse as to hold a public hearing of information that is commercially confidential. I believe the point that is being made is that in some cases appeals will not only be concerned with commercial confidentiality. There is not in our view, however, any need to bind the hands of my right honourable friend by statute.

Lord Lucas of Chilworth

There is no question of binding the hands of the Secretary of State by statute. It is a matter of what is fair, reasonable and proper. In my judgment it is not good enough to say that almost all of these matters are dealt with privately. There are the exceptions. Even though an exclusion may encompass matters other than confidential matters, there may have to be two interrelated inquiries.

I do not believe that the Minister's answer will give much comfort to those who seek commercial confidentiality. In the light of the answer of my noble friend, I shall wish to consult further with those people who feel that they may be materially affected by the provision. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 256 not moved.]

Lord Reay moved Amendment No. 256A:

Page 70, line 15, at end insert: ("(The Secretary of State may, by order, substitute for the period for the time being specified in subsection (2A) above such other period as he considers appropriate.").

On Question, amendment agreed to.

Clause 63, as amended, agreed to.

Clauses 64 and 65 agreed to.

[Amendment No. 257 not moved.]

Clauses 66 to 71 agreed to.

Clause 72 [Meaning of "waste" and household, commercial and industrial waste]:

Lord Layton moved Amendment No. 257A:

Page 78, line 33, at end insert: ("( ) The Secretary of State may make regulations to prescribe substances that are or are not to be defined as wastes or circumstances which may or may not make a substance a waste.").

The noble Lord said: This amendment is really a piece of parliamentary convenience. The European Commission recently drafted a definition of waste in the proposed Council directive amending the current directive on waste. Although it is not agreed at this point, it is clear that a single EC definition of waste is needed for the effective control of trans-frontier waste shipments, especially in the light of 1992 and the single market. The insertion of this proposed subsection would mean that changes to primary legislation are not required when such a definition is finally agreed—if it is agreed—by the Council of Ministers. I beg to move.

9.45 p.m.

Lord Hesketh

The amendment tackles the difficult question of the definition of waste. It is a difficult area to define; one man's waste is another's raw material. When does an article that one person wishes to discard become something that another person wants? It might be thought that it is at the very moment when the second person takes possession of it, and in most cases that will be right, but there are other cases where the article or material is of no interest to the second person without some form of processing. The processing will take away some elements of the article which even the second person does not want. Those elements will remain waste, though in our view those elements that he wishes to keep will generally cease to be waste from the time that they are so separated.

That may seem to be a very complicated and perhaps over-elaborate way of deciding when a material is a waste product. I assure the Committee that it is not; for the crucial point about this whole matter is that the material is being processed, and during processing it can pose a serious risk to the environment. That is one reason why, in our view, it is certainly necessary to include in the definition of waste, and hence in the definition of processes that need to be licensed, the management of material that is being recycled.

Much of the scrap going into scrapyards is not simply scrap metal. The metal is often in the form of equipment which must be broken up to extract the metal, but the equipment will also contain oils, solvents, plastics, acids and a whole host of other substances which can be highly polluting if they are not properly controlled. The Committee will not, I am sure, need convincing that the breaking process must be properly controlled to avoid pollution.

Another reason for including recyclable waste in the definition of waste is that waste must be subject to the controls we have been discussing in Committee. Consider the wide range of materials that can be recycled. Does the Committee want to see this range of waste exempted from the duty of care and pollution control simply because it could, under some conceivable circumstances, be recycled? I very much doubt it.

However, I can say that where it is clear that recycling operations do not pose a threat to the environment, there is a mechanism for exempting them from licensing, and indeed we already do so. The Collection and Disposal of Waste Regulations 1988 exempt, for instance, the processes involved in the recycling of waste paper and rags. We do not wish to impose any unnecessary obstacles to recycling, and we shall always consider very carefully whether a recycling process can be exempted. However, I have to say that we gave careful consideration to the exemption of scrapyards at the time the regulations were made. HMIP advised that the processes undertaken at scrapyards could pose a risk to the environment and we therefore were not able to offer such an exemption. However, I am very pleased to note that the President of the British Scrap Federation is reported in Materials Reclamation Weekly in December as saying that none of the federation's members has reported any difficulties in obtaining a licence. If any difficulties do arise, the appeal mechanism is there to resolve them.

I do not believe that the definitions of waste that we have in the Bill can be improved upon through regulations as suggested by my honourable friend the Member for Hornchuch. The definitions we have in the Bill have been carried forward from the Control of Pollution Act, and in that Act they have served us well. By placing the emphasis on the attitude of the person who produces the material and his behaviour towards it, the definition allows the courts to examine each case individually. There is now a significant amount of case law on which to base our interpretation. In no case has the definition been interpreted by the courts in a way which causes us anxiety.

It would be impossible to set out in regulations which substances are waste. Substances of themselves are not waste. They become waste only when they are unwanted, as the definition in the Bill states. Neither would it be possible to set out all the different circumstances that could possibly occur in which any one substance would or would not be a waste product. We can, and we have, set out our interpretation of the meaning of the definition of waste using the decisions of the courts to guide us. That guidance can be found in Annex 2 of Circular 13/88, which is the circular accompanying the Collection and Disposal of Waste Regulations 1988. I urge anyone who is unsure whether the materials or articles they are dealing with are waste to consult that circular.

Lord Layton

Another wonderful answer from the Minister! However, it did not really address the problem on which I sought an answer; namely, what will happen in 1992 when there are totally different definitions of waste throughout the EC? When that time comes and the boundaries are down, there has to be a definition of waste. As the Minister said, one person's waste is another's raw material.

There is a problem with this definition. How shall we deal with the definitions that come from the Germans, the French, the Belgians and so on? If they say, "This is not waste. We are recycling something. Therefore so far as we are concerned it is a recycled material. It is not toxic waste; neither is it special waste. It does not come under your definition of controlled waste. Why don't you want it?" Do we then reply, "I am sorry, but your definition does not suit our definition. We cannot have it"?

At some point there has to be a common definition of waste throughout the EC. This amendment was intended to go some way to help the Government at some point to put that definition into legislation so that there would be a degree of understanding within the EC of what was intended. I should like to hear the Minister's observations on that point.

Lord Hesketh

The definitions in the Bill are entirely compatible with the EC directives. That being the case, and if all others follow the EC directives, a satisfactory result should ensue.

Lord Layton

That is provided that the new definition is not different. Under the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hesketh moved Amendment No. 257B: Page 79, line 2, leave out from first ("any") to end of line 6 and insert ("of the following premises—

1. (a) any factory (within the meaning of the Factories Act 1961);
2. (b) any premises used for the purposes of, or in connection with, the provision to the public of transport services by land, water or air;
3. (c) any premises used for the purposes of, or in connection with, the supply to the public of gas, water or electricity or the provision of sewerage services; or
4. (d) any premises used for the purposes of, or in connection with, the provision to the public of postal or telecommunications services.").

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

Lord McIntosh of Haringey

That is an open invitation. When the Minister says that a substantial amendment of this kind is a drafting amendment. I have to question him on what the drafting means. The amendment in four different parts defines premises reasonably precisely. Does the definition include factory farming?

Lord Hesketh

I suggest that factory farming is probably a colloquialism.

Lord McIntosh of Haringey

It is very real and a real producer of waste, as the Minister will recognise. We have debated this matter before. There is such a thing as agricultural waste arising from agricultural premises. There is a substantial possibility of very dangerous waste being exempted as agricultural waste arising from agricultural premises.

I shall ask the question in another way. Is there any aspect of waste from agricultural premises which is included in this amendment?

Lord Hesketh

I am not sure that the noble Lord will be entirely satisfied with my answer. It will be a kind of reverse negative: there were exemptions in an earlier part of the Bill and that which would be considered as waste in many areas, in farming would probably be considered beneficial. As a typical example, chicken muck resulting from intensive farming of chickens which is put back on to the land is seen in some quarters as for the public good in organic terms.

Lord McIntosh of Haringey

I am reluctant to pursue this discussion in this way. It arises because the Minister fails to answer my question. We should not be carrying on this duologue if I had been given a straight answer to my original question.

Is it not the case that a substantial amount of waste arising from agricultural premises is by no means as beneficial as chicken muck? I repeat my question: is there waste arising from agricultural premises which is covered by this amendment?

Lord Hesketh

The advice which I received is very similar to the advice that I have just given to the noble Lord; namely, that if the processes fall within the Factories Act, they come under the industrial part of the amendment as referred to earlier.

Lord Ross of Newport

That Act was passed in 1961. Factory farming took off in the 1960s and 1970s. I wonder whether the point which the noble Lord has raised is a matter which we ought to look at again.

Lord McIntosh of Haringey

I am not satisfied with the Minister's answer. It appears that the amendment has been drafted without regard to the events of the last 29 years. This is perhaps a matter to which we shall return at a later stage.

On Question, amendment agreed to.

Clause 72, as amended, agreed to.

[Amendment No. 257C not moved.]

Clause 73 agreed to.

Clause 74 [Transition from Control of Pollution Act to this Part]:

Lord Reay moved Amendment No. 258: Page 30, line 6, leave out ("relevant").

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 258A. Amendment No. 258 is a minor drafting amendment to delete the word "relevant". I believe that that is what is known in the trade as a missed consequential; that is, the word "relevant" was removed from several other places as a consequence of an amendment passed and in error was left in here.

Amendment No. 258A is one which I am sure will be welcomed by the Committee because it allows existing disposal authorities to continue to recycle waste directly themselves until their disposal assets are vested in a LAWDC. After the vesting of assets disposal authorities will of course continue to be able to arrange for waste to be recycled by contractors. I beg to move.

On Question, amendment agreed to.

Lord Reay moved Amendment No. 258A:

Page 80, line 30, at end insert: ("(5) As respects any existing disposal authority, until the date which is, under subsection (3)(a) above, the date until which the restriction imposed by section 49(1) of this Act is disapplied:—

1. (a) the powers conferred on a waste disposal authority by section 52(2)(a) and (b) of this Act as respects the recycling of waste and the use of waste to produce heat or electricity shall be treated as powers which the authority may exercise itself; and
2. (b) the power conferred on a waste disposal authority by section 46(4) of this Act to object to a waste collection authority having waste recycled where the disposal authority has made arrangements with a waste disposal contractor for the contractor to recycle the waste shall be available to the waste disposal authority where it itself has the waste recycled.").

On Question, amendment agreed to.

Clause 74, as amended, agreed to.

Clause 75 agreed to.

Clause 130 [Power to prohibit or restrict the importation, use, supply or storage of injurious substances or articles]:

Lord Ross of Newport moved Amendment No. 259: Page 128, line 6, leave out ("importation") and insert ("import").

The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 262, 263, 264 to 266, 337, 340A and 403. My noble friend Lord Hampton apologises that he cannot be here to move this amendment but has asked me to do so on his behalf. As the Committee may know, he is a stickler for simple English and I support the aim of these amendments. They are all virtually the same. They seek to simplify the language of the Bill without changing its meaning in any way. The words "importation" and "exportation" are unnecessarily long and in our view should be replaced by "import" and "export".

The Oxford English Dictionary indicates that as nouns they are interchangeable, so why do the Government choose this pompous language? There is a steady deterioration in the general use of language which needs to be resisted. Even in this Chamber the word "argumentation" is used instead of "argument" or "arguments" and "documentation" instead of "document". We refer to "transportation" when speaking of transport problems on the roads or railways. "Transportation" used to mean sending people off to Austrialia. The list is endless and somewhat depressing. "Dual carriageway" is a ridiculous description of what can be more simply described as a double road. In a slightly different context I should say that my pet hate is the phrase "going to go". Why can one not say that one is "going"? I beg to move.

Lord Hesketh

I agree with the noble Lord, Lord Ross, that "import" and "export" read much better than the current text of the Bill which refers to "importation" and "exportation". However I regret that I cannot accept these amendments. The use of importation and exportation is necessary for historical reasons. The Customs and Excise Management Act 1979, which has effect for the purposes of the Customs and Excise Acts and other enactments, refers to the importation and exportation of goods. So, for example, the timing of importation is deemed to be when, in the case of goods brought by sea, the ship bringing them comes within the limits of a port. The Act also refers to "exportation" rather than "export". I am advised that were we to refer to "import" and "export" in these clauses we would run the risk of casting doubt as to whether we meant the same thing as "importation" and "exportation" and therefore break the link with Customs and Excise legislation. We cannot afford to do that. Therefore, somewhat against my limited linguistic preferences, I ask the noble Lord not to press these amendments.

Lord Ross of Newport

I wish that my noble friend Lord Hampton had been present to hear that response. I believe that the Minister is on my side and I congratulate him on some of his responses in the debate. It is a tragedy that we must follow tradition. Obviously, I shall not divide the Committee but I hope that some of the advisers in the box will take an interest in what has been said. I beg leave to withdraw the amendments.

Amendment, by leave, withdrawn.

10 p.m.

Loud Ross of Newport moved Amendment No. 259A:

Page 128, line 14, at end insert: ("(1A) The Secretary of State shall exercise his powers under subsection (1) above to prohibit the importation of any waste for direct landfill within the area of the United Kingdom.").

The noble Lord said: The purpose of the amendment is to ensure that the increasingly scarce facilities are retained for waste produced within the UK and are not available for the direct disposal of imported waste. The amendment is intended to prevent the importing of waste straight to landfill sites in the UK.

The import of waste for treatment is, arguably, a legitimate trade, although one can take a different view on that matter. If such an argument is to be accepted, there must be a tighter definition of what constitutes treatment and a knowledge of whether facilities exist for the handling of such waste together with sufficient capacity.

I call in aid the report on hazardous waste disposal produced by the Select Committee on Science and Technology of this House. It states: The Government accept international trade in waste disposal services for specialist treatment and incineration provided this is proper[...]y controlled and monitored but consider that transfrontier movement directly to landfill should be exceptional and only when permitted by the importing country". In other words, the United Kingdom.

In its report on toxic waste the House of Commons Environment Committee stated: We are concerned that the prospect of the importation of large quantities of putrescible domestic waste", that is, smelly waste, with no guarantee of the content, no prospects of returning them to source and no ability to enforce the duty of care … The import of waste for direct landfill, whether or not for co-disposal, should not be permitted under any circumstances". I now seek to write that provision into the Bill. I beg to move.

Lord Graham of Edmonton

We on these Benches fully support the amendment. I hope that the Minister will not produce technical arguments against it. I believe that the British public strongly object to waste from other countries—whether noxious, toxic, dangerous or hazardous—finding a home inside the British Isles.

The amendment is straightforward. We do not believe that any waste from abroad should go directly to a landfill site within the United Kingdom. Perhaps the Minister will have many illustrations of ships from other countries which have travelled around the world in an attempt to unload their obnoxious materials.

It is a good, sensible amendment. Unless the Government have powerful reasons unrelated to money, I hope that they will demonstrate their interest in the problem and accept the amendment.

Lord Layton

The amendment makes the greatest sense in calling for the banning of direct landfill, because landfill sites in this country are an ever decreasing facility. If we import waste as well as trying to find facilities for our own landfill uses during the next few years we shall run out of appropriate sites a great deal more quickly. We cannot afford to do so and therefore I support the amendment.

Lord Hesketh

I must point out that the clause under consideration deals with the importation, use, supply or storage of injurious substances or articles and does not deal with wastes. That is the subject of the following clause, Clause 131. Nevertheless, I shall try to deal with the points made in relation to that clause and to explain the Government's policy on trade in waste, which will set the scene for several of the debates on later amendments.

Clause 131 provides very wide-ranging powers for the Secretary of State to prohibit or restrict the importation or exportation of wastes. The powers that it provides shall be exercised in order to prevent the risk of pollution or harm to human health, or in order to conserve disposal resources.

It is the Government's intention that there shall be a notification system for all wastes and that this system shall closely resemble that currently in force for toxic and dangerous wastes under the EC Transfrontier Shipment of Hazardous Wastes Directive. This would require that waste regulation authorities shall be notified of any intended shipment of waste to this country and they may then object to the shipment taking place if it is likely to cause pollution or threaten the availability of disposal resources for United Kingdom needs.

The implementation of this clause will in part depend on negotiations within the European Community. Noble Lords will recognise that, particularly in matters involving the movement of materials between member states, there are obligations under the Treaty of Rome. Nevertheless I am happy to report that the United Kingdom's initiative in highlighting the need for more stringent controls over waste movements has been generally welcomed in the Community. In fact at the last Environmental Council in June, the Council approved the text of a new framework directive on waste disposal which embodies the principle of each member state being self-sufficient in its waste disposal capability wherever possible. That is an important landmark for the United Kingdom as regards achieving our objective for developed industrial countries to be self-sufficient in waste disposal facilities.

We are also greatly encouraged by developments in the implementation of the Basle Convention through regulation of the EC, which will apply the provisions of the convention directly to the legislation of member countries without the need for domestic legislation. These developments suggest that the Commission's proposals will apply the convention to the movements of all wastes. If this does indeed come to pass, many of the provisions of Clause 131 will have been implemented.

Perhaps I may say a word on our intentions regarding the control of the export of waste. We do intend that these controls shall be every bit as tough as those on imports. At present I must say that the United Kingdom does not export waste to any significant degree. There may be valid reasons for such exports in the future, but they will have to pass very stringent tests. In particular, the Secretary of State will wish to be assured, before granting any consent for the export of wastes, that the country to which the waste is to be sent possesses the technology necessary to deal with it and, moreover, that the government of that country is fully aware of and consents to the import. We are of course particularly concerned that there shall be no deceit practised on the countries of the developing world in the matter of the disposal of wastes from industrialised countries.

I hope this preamble in explaining the Government's intentions on the importaton and exportation of waste will set the scene for the debates on this and following amendments. The Government's policy has been quite clearly stated, not least to the Science and Technology Committee of this House by a former Secretary of State that there would have to be very compelling reasons indeed for the granting of any consent for the importation of wastes into this country for direct landfill. The precise mechanisms to achieve this effect cannot be introduced until regulations are enacted under Clause 131 and I have explained to your Lordships the constraints within the Community that prevent immediate implementation through words on the face of the Bill.

I hope the noble Lord, Lord Ross, will accept my assurances that we are at one on this matter and that the necessary regulation will be laid as soon as negotiations can be completed with other member states. I hope therefore that he will feel able to withdraw his amendment.

Lord Ross of Newport

I take from that reply, first, that the amendment may be defective in that it refers to the wrong clause in the Bill. I accept that criticism. I shall of course study what the Minister has said, as also will local authorities. I cannot understand why this cannot be written into the Bill. When I was in Parliament I represented an island which had run out of landfill sites and we were thinking of having to export our wastes to somewhere in Oxfordshire. However, we put in some equipment which is dealing with the incineration and total regurgitation of all our waste. I do not know whether it has been acceptable, or successful, or not. However, I feel it would be much simpler if we actually said that we will ban imported waste from landfill sites. I understand the Government are saying that in all probability they will ban it, but that is not written into the Bill. I shall study what the Minister has said, and in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Balfour moved Amendment No. 260: Page 128, line 23, leave out second ("or").

The noble Earl said: I am rising to speak to Amendments Nos. 260 and 261. In this part of the Clause it states that: Regulations under this section may— (a) confer on the Secretary of State power to direct that any substance … whose use … is prohibited or restricted is to be treated as waste …"— and I am suggesting controlled waste and special waste. I beg to move.

Lord Hesketh

I am grateful to my noble friend for drawing attention to many places in which the drafting of the Bill may be improved. However, on this occasion I must respectfully point out that the drafting of the clause is indeed correct.

The clause gives the Secretary of State powers to restrict or prohibit the use of injurious substances or articles. Subsection (3) then allows him to declare that those substances shall be treated as wastes and that they shall be disposed of. That power is necessary in order to ensure that such injurious substances are not stored indefinitely where such storage presents a hazard.

In that respect, it is necessary for the Secretary of State to be able to declare that the substances or articles are waste and to be able to direct that they be disposed of. The subsection allows the Secretary of State to declare not only that the substances or articles shall be treated as controlled waste, but also that they may be treated as waste per se. That allows the Secretary of State to exercise his powers in relation to substances which would not normally fall within the definition of controlled waste; in other words, agricultural materials or materials from mines and quarries.

However, controlled waste includes special waste. Special waste is merely a subset of controlled waste as defined in Clause 72(9) which reads: 'Special waste' means controlled waste as respects which regulations are in force under section 59 above". Clause 59 defines special waste as controlled waste of any kind which is, or may be, dangerous or difficult to dispose of.

I hope that that explanation satisfies my noble friend on the two points that he has raised.

The Earl of Balfour

I shall need to read carefully what my noble friend has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 261 not moved.]

Lord Layton moved Amendment No. 261A:

Page 128, line 33, at end insert: ("(bb) confer on the Secretary of State power, where a substance or article has been imported, landed or unloaded and differs substantially from the analysis or samples originally supplied by the generator or consignor, to require that the generator or consignor take back the substance or article at his own expense; a condition of the waste disposal licence being that all licensed facilities shall incorporate such a provision into the contract for waste disposal;").

The noble Lord said: This amendment seeks to give the Secretary of State power to send back substances which should not have come here because they have been contaminated accidentally or through poor analysis, bad practice or for whatever reason.

Basically, the amendment states that if a person who has accidentally received something in this country finds out that it is not what he was told it would be, the Secretary of State has the power to send it back at the consignor's or generator's expense. However, how will you get him to take it back? That is the reason for the second part of the amendment which proposes that the duty should be written into the contract. If it is put on the face of the Bill as the amendment proposes, the contract then has the backing of the Secretary of State.

There was an incident last year in which such a power would have been of great help and would have saved the person who received the contaminated waste many hundreds of thousands of pounds when he was forced to deal with it. It would have solved the problem that arose for several waste disposal authorities in dealing with strikes and containing the contaminated waste. It would have been consigned back to where it had come from with people forced to pay because the obligation had been written into their contract in the first place. It is only by including the obligation as a condition of the licence that you can Force it to work. That is why I included the second part of the amendment. Obviously, the Secretary of State is not in a position to tell someone from a foreign country to take something back unless it is possible within the courts of that country to take him through litigation and have a strong case because of the original contract.

The reason for the amendment is to save the innocent party at this end the problems that can easily arise by contamination and through someone choosing to offload something that he cannot deal with himself by means of a false sample or analysis. However, if the analysis at this end proves to be different, the consignment should be sent back. The amendment forces on to the consignor at the other end the condition that he must first have had an analysis carried out. That provision does not apply at the moment. I beg to move.

10.15 p.m.

The Earl of Balfour

My noble friend Lord Layton raises an important point in this amendment. Unfortunately, as sometimes has happened at sea, what is on the bill of lading is not necessarily what is inside the cases. I apologise for not being familiar with the latest merchant navy legislation, but I should briefly like to relate something which happened to me. We loaded around 56 cases of what we believed from the bill of lading to be tomato ketchup. It turned out to be butter. By the time we had sailed through the Red Sea there was nothing to discharge.

Sometimes a merchant navy officer takes on face value what he is receiving and it may turn out to be something competely different. Under those circumstances perhaps something could be written into the legislation to protect him.

Lord Hesketh

Merely for the sake of clarity I should like to point out that again we have an amendment put down for Clause 130 which rightly belongs in the debate on Clause 131 on restrictions on trade in waste itself. I understand the noble Lord's concern that any system set up to control movement of waste should be watertight. If we require that waste be accurately described before we agree to take it for disposal there should be some means of redress if when it arrives on our shores we find that it does not comply with the description that we have previously been given. That is the aim of the noble Lord's amendment. I should like to explain that under the provisions of the Basle Convention and those of Clause 131 we already have that matter fully covered.

Under the provisions of the Basle Convention, which the UK signed in October 1989, a shipment that does not conform in a material way with the pre-notification document is deemed to be illegal traffic. The state of export is under a duty to ensure that the waste in question is taken back by the consignor or generator where they are responsible. The convention applies to hazardous waste, municipal waste and ash from municipal incinerators.

The convention is to be implemented throughout the European Community by way of an EC regulation. Since EC regulations apply their provisions directly into the law of each member state, there will be no delay in implementation in any country and there will be no danger of different interpretations being translated into national laws by individual member states.

The regulation is not yet drafted but it is likely that the Commission will extend the provisions to all waste. The regulation is likely to require that there must be contracts between the consignor and consignee before a shipment can be agreed to by the relevant authority and that this contract will include a condition that the consignor will take back any shipments that do not conform with the description on the notification document. The return of shipments to another country must of course be the subject of international agreement because a country of import cannot prescribe what a person in a country of export must do.

The provisions of the Basle Convention accord very closely with the provisions that we have set down in Clause 131 on trade in waste. Subsection (5)(b) allows the Secretary of State to restrict or prohibit the movement of wastes subject to conditions, and it is the Government's intention that any regulations made under this clause would contain similar requirements to those of the Basle Convention which I have described. However, if the ratification of the convention by the European Community continues to make rapid progress it may well be that such regulations under that particular clause will not be necessary.

I hope that the noble Lord will be assured that there is no loophole in the Bill concerning the return of waste that is not as described. Indeed we already have provision to cover the matter twice—first in the EC regulation implementing the Basle Convention and, secondly, in the provisions of our own Clause 131.

Lord Layton

The problem with that reply is that not every country signed the Basle Convention. I do not believe that it was signed by Russia, Japan or the United States. If someone from the United States sends something to this country, the Basle Convention does not apply. That is one of the objects of tabling the amendment, so that those countries which are not part of the convention are forced to accept back the goods that they sent in a contaminated state.

The Minister rightly pointed out that an importing country cannot force an exporting country to do anything. That is why the second part of the subsection to the clause was inserted, so that the waste disposal licence includes the provision in the contract. Under a contract the consignor can be required to accept the return of the goods. I should like to hear what the Minister has to say about dealing with the American situation.

Lord Hesketh

The Basle Convention prohibits trade between non-signatories except through bilateral arrangements. We would require these points to be included in any bilateral arrangement. As regards the specific example of the United States I shall have to write to my noble friend.

Lord Layton

I shall consider this matter for a later date. I wait to hear from the Minister, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 130 agreed to.

Clause 131 [Power to prohibit or restrict the importation or exportation of waste]:

[Amendments Nos. 262 and 263 not moved.]

Lord Hatch of Lusby moved Amendment No. 263A:

Page 130, line 25, at end insert: ("( ) The Secretary of State shall exercise his powers under subsection (1) above to prohibit the export of technological services or equipment which are likely to cause, or are capable of causing, pollution within another country at a level which would, if it were caused within those parts of the United Kingdom to which Part I above applies, represent a contravention of an authorisation under that Part.").

The noble Lord said: I believe that the purpose of this amendment is perfectly simple and I hope non-controversial. I doubt whether there will be any argument over the fact that it is wrong for industries which cannot operate lawfully within the pollution control laws of the developed countries simply to export those industries particularly to less-developed countries where restrictions are less tight and where the power and mechanism of control is inevitably weaker.

In 1985 the OECD saw this problem. At that time it urged countries not to export development and investment projects which produced important quantities of toxic waste. That was five years ago. It is quite apparent that on environmental issues pollution does not recognise national boundaries. Therefore, it is not only a moral issue but also a matter of self-interest that standards should not be undermined simply by exporting dangerous technology.

The issue of health also comes within this amendment. The best example is the tragedy at Bhopal, which is symptomatic of this kind of problem involving the export of industries which are dangerous to third world countries. One can include such aspects as chemical-making technologies which can also be used or abused for dangerous military purposes.

I refer also to the amount of pharmaceutical manufacturing which takes place in Latin America to avoid the laws of the United States. I have considerable experience of the export of baby milk from this and other industrial countries to Africa without there being the necessary hygiene infrastructure.

The amendment is intended to empower the Secretary of State to deal with the matters to which I have referred. In the past the Government have made certain provisions to forbid the export of advanced technology to the Soviet Union. There was also the embargo on Rhodesia at the time of UDI. In addition there are the current mandatory sanctions on South Africa. It would not set a precedent. I hope that the Minister will feel able to accept the amendment so that the export to other countries, particularly third world countries, of dangerous technology, services and equipment that would not be allowed in this country is specifically prevented. I beg to move.

Lord Graham of Edmonton

On these Benches we support the amendment so well explained by the noble Lord, Lord Hatch. We see it as an issue of morality. One has to make a judgment. I am quite certain that on the debit side someone may say that it is not in certain interests. I am not concerned about those interests. I am concerned about the interests of mankind and humanity, especially mankind and humanity in the third world or the less developed countries. Whatever the motive—and at the end of the day the motive will be profit—we do not want to see our less well-off brethren in other parts of the world suffering because someone is making a fast buck.

This is a good opportunity for the Government to make a statement—a declaration—and to be seen to be doing something. I do not mean a "statement" in parliamentary terms. The Minister is wondering why the Government should make a statement. I believe that by accepting the amendment they will be making a statement. They will be telling the whole world that we are prepared to pass legislation which on the margin may not be to our advantage but may be to the enormous advantage of millions of people who suffer by having to accept this terrible situation. We support the amendment.

Lord Reay

I listened carefully to what the noble Lords, Lord Hatch of Lusby and Lord Graham of Edmonton, said but I do not think it would be right for the Government to accept the amendment. I say that for two reasons. First, I do not think it would do anything to lessen pollution in other countries; indeed it might only serve to increase it. Secondly, I am not convinced that we should dictate to other countries whether a piece of environmental equipment is good or bad for them. Looking at it the other way round, we would certainly not be amused if HMIP wished to require a particular piece of equipment for a process prescribed for integrated pollution control, only for the government of the country of origin to refuse an export licence.

Part I authorisations will rely on the use of the best available technology not entailing excessive cost. The effect of the amendment would be to apply the standards of this country, which will be high, to all other countries of the world. This is catching them between the devil and the deep blue sea. The devil may be the anachronistic equipment that is being used now. The deep blue sea may be the most modern, technologically complex piece of equipment which has just been invented. The money would not be there to afford it in some countries.

Some Members of the Committee, particularly those on the Liberal Democrat Benches, may remember the work of E. F. Schumacher, who argued that the appropriate technology for the developing world was not the most advanced, the large and the complex; rather, it should be intermediate, smaller scale technology. It is the export of precisely that kind of technology that the amendment would hit the hardest.

What the amendment would mean in practical terms is that if a government of a foreign country wished to import a piece of equipment that was better than that currently being used in that country, but not as good as that required in Britain, we could not export it. If the United Kingdom was the sole supplier of the equipment in question we would, in effect, be forcing the other country to use its existing old-fashioned, more polluting technology. The amendment is therefore as likely to increase pollution in other countries as to reduce it. That cannot be right. If the United Kingdom was not the sole supplier the amendment would serve no practical purpose as the importing country would turn elsewhere for its supply of the technology it wanted. I hope that the noble Lord will therefore not press his amendment.

10.30 p.m.

Lord Hatch of Lusby

I do not know what the Liberal Benches have to say about the work of Schumacher but I worked with him and I cannot understand how, by the wildest stretch of the imagination, the noble Lord can drag in his name on this amendment. It is totally irrelevant. I am sure that if Schumacher were here he would support the amendment.

The noble Lord has said nothing that answers the amendment. He asserts that the amendment could cause extra pollution but gives no reasons. As regards the export of high technology, surely the size of the technology has nothing to do with the amendment. The noble Lord said that we would be arrogating to ourselves the right of determining what is and what is not polluting. That is not so; this is an objective view. One knows whether technology and machines will be capable of polluting. We determine that within our law. It is also determined internationally. The Government's answer exposes the hollowness of their claim that, with the Bill, they are protecting the environment.

The noble Lord must surely know what has been and is going on all over the world—the export of technology, machines and substances to the detriment of the people of the third world, to the world as a whole and to all mankind, as the noble Lord, Lord Graham, said. We must act now in our own self-interest, in the interests of every living being and of generations to come.

It is too late to divide the Committee but I hope that the Government will look at the amendment again, that they will read it in the sense in which it is written, and that they will come back on Report with a more constructive and positive answer than the complete negativeness we heard from the noble Lord, Lord Reay, tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 263B:

Page 130, line 25, at end insert— ("( ) For the purposes of this section, any material which is dangerous, whether or not recyclable, shall fall within the definition of waste to which subsection (1) above applies.").

The noble Lord said: This is a probing amendment because it is difficult to find the right wording to deal with the problem it addresses. If I describe an example of what we refer to, the Government will recognise the nature of the problem and will be sympathetic, I hope, to the idea of an amendment even if we do not have the right words.

The Minister may know that I am referring to what is called the "Wath" incident. This occurred when an American company shipped waste material to a south Yorkshire company called Wath Recycling, in Wath upon Dearne, near Rotherham. The waste material was not sent direct from the American company but through a broker. It was described as metallic oxides, which could be reclaimed. When it arrived in Yorkshire it was discovered that it was contaminated with xylene and furans—organic compounds which are dangerous in that they could be carcinogenic. As a result of that discovery, it was beyond the capacity of the company, Wath Recycling, to deal with it and, in any event, it did not have a licence to deal with such material.

Therefore, this dangerous material was left for a considerable time in a siding in Leeds. The British Rail staff who worked there refused to handle it. This meant that some of it was left in a siding in Leeds and some of it was left on the ground in the premises of Wath Recycling. This is an ongoing situation, as Private Eye would describe it; in other words, it is still happening. The material is still there, although it has been put into drums in order to minimise further pollution.

There has been legal action in order to try to get the material returned to the producer in the United States; but I understand that British courts are not able to handle the case—presumably because the law is defective in that way—and it is now to be heard in the American courts. In the meantime, there is no provision in United Kingdom law which will enable the material to be safely dealt with. It cannot be dealt with by the people who have it on their premises because they do not have a licence for it and there is no one else who is willing, or who can be required, to take responsibility for the material.

Therefore, by the simple fact that the material was incorrectly described—it was described as being "recyclable"—it got round the controls which are supposed to exist in order to deal with waste. It may well be that Clause 131, which is very complex, ought to cover the situation. However, that still remains dependent upon the requirement that the material has been defined as waste. If it comes into the country as being recyclable material which is not waste, I put it to the Government—and this is why I look keenly to their response—that there is a risk that Clause 131 will not apply. Indeed, if Clause 130 can deal with the matter, there is a serious question as to whether Clause 131 is necessary.

I do not particularly commend the wording of the amendment. I do not think that we have yet found a way of dealing with this quite difficult problem, where there is a complex chain of ownership and misrepresentation about the nature of the material. However, I urge the Government to share with Members of the Committee the anxiety which they must feel, and which must have been expressed to them, about the inadequacy of British law to deal with the Wath case and to deal with the chemicals which are still in Yorkshire to this very day. I beg to move.

Lord Hesketh

We have debated several times over the past few days the Government's views on the status of recyclable waste. In response to amendments seeking to remove recyclable waste from controls, I made clear that the Government's first responsibility in this area is the protection of the environment. Since it is quite clear the processing of recyclable waste can pose as much an environmental risk as its disposal, we have given our assurances that there can be no exclusions from the definition of waste itself. The definitions in the Bill both in Part II and in this clause do not exclude recyclable material from the definition of waste. Therefore, we believe that there is no need for this amendment.

I have said that there is provision in the Bill for the exemption from certain controls of genuinely innocuous activities, and we are certainly prepared to look at any case that the industry wishes to put forward. But I repeat my assurance that in principle the controls must cover recyclable waste. We are aware that to fail to do so could provide a loophole for those who are either not as careful as they should be about the descriptions of the waste that they transport, or those who are perhaps downright evasive of controls.

As I mentioned earlier, the European Commission is preparing the text of regulations to implement the Basle Convention, to which I shall return later. The convention contains provision for simplified procedures for the movement of recyclable materials and the Commission is looking at how that might be translated into the provisions of the regulation. In the negotiations on that regulation the UK will be mindful of the particular need to avoid unnecessary obstacles to the free movement of recyclable waste.

That is, I am sure, an objective we share since we all wish to see much more recycling of waste; but we must be sure that any simplified procedures to not open a gate to abuse or even to genuine mistakes which can have unfortunate effects on those left holding material which is not as it was described and cannot be reclaimed because of its contamination, as the noble Lord pointed out.

The case of recyclable material brought into this country under the simplified procedures of the Transfrontier Shipment of Hazardous Waste Regulations is a well publicised case of good intentions in speeding the trade in recycling going wrong. As has been said, although imported into this country as recyclable metal, on arrival it was found to be heavily contaminated and could not be recycled as intended. We do not want to see that situation recurring, and it is for those reasons that we must be vigilant to ensure that the search for speedy procedures for the movement of recyclables does not provide this kind of loophole.

The Government have been involved in the negotiations on the Wath material with all the relevant parties in the UK and the USA. Those negotiations are not proceeding as fast as we would like, but in principle there is no obstacle to the return of the waste to the USA for disposal. The waste concerned has been drummed, as the noble Lord pointed out, under the supervision of the Health and Safety Executive and HMIP.

The contention here reverts to the point made by my noble friend Lord Layton on an earlier amendment in respect of the Basle Convention, of which the United States is a signatory but not a ratifier. Where there is a signatory but no ratification—one has also the European position—the Basle Convention prohibits the ratifiers, of which we are one, trading with non-ratifiers except under bilateral agreements—this is important—with equivalent conditions, so that the convention's requirements are not circumvented. My noble friend Lord Layton earlier made the point that there is effectively a transitional period. He asked what will happen if something falls through the net. That is the relationship between ratifiers and non-ratifiers.

Lord McIntosh of Haringey

I am sure that the Minister will not object if I describe that reply as being worthy in principle and pointing in the right direction but unsatisfactory in outcome. He acknowledges that the material in Wath is still there. When he says that it can in principle be returned to the United states, he is in fact saying that it is not being returned to the United States and that there is no genuine prospect of it being returned to the United States because of its status as a signatory and not a ratifier of the Basle Convention.

The Minister will have to agree that the outlook is not good. The question then arises: if we all have the same laudable objectives of preventing any loopholes in the law relating to the import and export of hazardous waste, what will we do with it? When talking about Amendment No. 259A, the Minister referred to the need for the pre-notification of hazardous waste movements. That is all very well as far as it goes. No one objects to that. But surely we should go one step further: where there is any reason to suppose that a risk might arise—for example, the original producer of the waste is unknown or has been known to be unsatisfactory—there should be some sampling procedure. Can the Minister say, first, whether he would support such a move, which would be a protection that would go further than the pre-notification, and, if so, whether he will consider with his right honourable friends whether that is a proposal which might be considered, if not for inclusion in the Bill, as a subject for further regulation?

Lord Hesketh

I think that the noble Lord will appreciate that we are moving into a slightly difficult transitional period. There is an EC overlay to all this. Effectively there are three levels: the Bill before your Lordships' Committee, the Basle Convention and the example of a non-ratifying signatory, and EC regulations, which may not make UK regulations redundant but may overtake them. That is the difficulty about saying that we wish to have a UK initiative, which is what I believe the noble Lord suggests. That is different from what is proposed on a broader scale.

10.45 p.m.

Lord McIntosh of Haringey

I am not going as far as that. I simply ask the Minister to agree with me that on the face of it the requirement for sampling would be a protection which the requirement for pre-notification does not provide. Without any commitment to what any of his right honourable or honourable friends might think, I ask the noble Lord to agree to recommend that there should be a British Government contribution to the negotiations at European Basle Convention and national level.

Lord Hesketh

There would be nothing wrong in drawing attention to what the noble Lord has to say in order to put in that equation. The points he has made this evening on that are relevant.

Lord McIntosh of Haringey

I am most grateful and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 264 to 266 not moved.]

Lord Gisborough moved Amendment No. 266A:

Page 131, line 22, at end insert: ("( ) The Secretary of State shall not permit the import of any special wastes into the United Kingdom unless it has been demonstrated that the country of origin of such wastes has no suitable facilities for the safe disposal of such wastes.").

The noble Lord said: During 1989, some 41,000 tonnes of hazardous wastes were imported into England and Wales. The major sources of these imports were Western Europe and North America; that is the Netherlands, Belgium, Switzerland, the United States, Sweden, Italy, Eire and Canada. Surely all these countries should have sufficient resources to tackle their own waste. The concern is that this volume of waste coming into England and Wales from wealthy industrialised countries is adding to landfill problems and to unwelcome incineration activity. Moreover, there are clear dangers associated with the transportation of such wastes over large distances.

The principle that needs to be established is that special wastes should only be imported from countries which do not have the necessary technical capability or resources to dispose of or treat the waste in a proper and safe manner. This would leave the route open to poorer developing countries such as the Philippines, the major third world source of special wastes imported into England and Wales. The Netherlands produced 1,400 tonnes last year compared with the Phillipines which brought in only 29 tonnes. That is an indication of how much the imports into the United Kingdom would drop if this principle were to be adopted. I beg to move.

Lord Hesketh

It is our intention that wastes should not be brought to this country for disposal unless there are very good reasons for it. Uppermost in our minds is that a country may not have disposal facilities of its own and since it is in the best interests of the world environment that wastes should be disposed of to the highest standards available, they may need to be brought to this country.

The EC has demonstrated its receptiveness to the principle of self-sufficiency by including a statement of it in the text of the draft framework directive on waste. It will be developing instruments for applying this principle throughout the Community in the regulation to implement the Basle Convention. But it must also, through negotiation with all member states, consider how to implement the principles within the internal market after 1992.

I assure the noble Lord that we are at one on the matter, but I would ask him not to press his amendment to have the provision on the face of the Bill. Clause 131 contains provisions for the Secretary of State or waste regulation authorities to prohibit the import of waste where its import would risk pollution or where we need to conserve our own facilities. As I said in earlier debates, it is necessary in these international matters to carry our fellow members of the European Community, and indeed our partners in international organisations, with us.

Lord Gisborough

I am grateful to my noble friend for that reply. However, will he comment on the future of waste from the north American continent which constitutes about 5,000 tonnes? Perhaps that would not be covered by what my noble friend has already said.

Lord Hesketh

On a previous amendment of the noble Lord, Lord McIntosh, and on a preceding amendment of the noble Lord, Lord Layton, we discussed the relationship between the United States and this country and the relationship between those who are signatories to the Basle Convention and those who have ratified the convention. I hope that answers the noble Lord's point without going over the whole matter again.

Lord Gisborough

I am grateful for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Arran moved Amendment No. 267: Page 131, line 24, at end insert ("or any of them").

The noble Earl said: On behalf of my noble friend I wish to move Amendment No. 267 which is a minor drafting amendment to make clear that pollution of the environment includes pollution of land, water or air both collectively and individually. I beg to move.

On Question, amendment agreed to.

Clause 131, as amended, agreed to.

Lord McIntosh of Haringey moved Amendment No. 267A:

(After Clause 131, insert the following new clause: ("National Audit of Toxic Waste

1. .—(1) The Secretary of State shall within three months of the date of Royal Assent establish a national auditing process for the purpose of identifying, registering and planning measures in relation to, toxic waste kept or deposited within the United Kingdom.
2. (2) For the purposes of the effective implementation of this section, the Secretary of State shall request such assistance as he considers to be necessary from the chief inspector, waste regulation authorities, environmental organisations or other bodies interested in the matter.
3. (3) Any person shall comply with such reasonable requests for information made by or on behalf of the Secretary of State as may be conducive to the implementation of this section.").

The noble Lord said: Amendments Nos. 267A and 267B, although they have significant differences, are attempts to straighten up the procedure whereby information about waste and treatment facilities is collected, collated and used. We have introduced into Amendment No. 267A the concept of toxic waste. I am the first to recognise that that concept has not been defined elsewhere in the Bill. The problem is that the definitions of waste for importation and exportation purposes are seriously confusing. There are records on hazardous or special waste but they are often inadequate. There are even more inadequate records available on domestic arisings—I believe that is the technical term—of hazardous and/or special waste.

The definition of the waste which ought to be covered by this part of the Bill is quite unsatisfactory. The Control of Pollution Act 1974 appeared to put the matter right: Section 1 of the Act had what appeared to be a good declaratory introduction. I am sure that the noble Lord, Lord Renton, would approve of it in retrospect. The section stated the purpose of the Act. The problem is that over 16 years the section has never been implemented. Therefore the duty on a disposal authority, to ensure that the arrangements made … for the disposal of waste are adequate for the … disposing of all controlled waste which becomes situated in its area", has never been brought into force. To that extent the law has been defective under governments of both political persuasions for a long time.

When we look at the information available to the Secretary of State and to waste authorities, we realise that there is a great imbalance between information available about treatment facilities, which is quite good, and information about the quantities and nature of the waste arising, and even on the nature of waste being imported and exported, which is poor. It is for that reason that we are led in this amendment to propose that there should be an auditing process, for the purpose of identifying, registering and planning measures in relation to, toxic waste kept or deposited within the United Kingdom".

I have talked about the Wath incident. There have been innumerable incidents of inadequate controls of toxic waste which will be very familiar to Members of the Committee, almost all of which have arisen as a result of inadequate information about the origin, destination and nature of the toxic wastes.

In the North-East of England there has been a very valuable innovation in attempting to provide for proper planning of the treatment of toxic wastes. A linked inquiry is being carried out involving both Tyneside and Teesside, which are totally separate local authority areas in which separate authorities are responsible for waste regulation. The authorities have decided to hold a joint inquiry in which they deal together with the facilities required for the whole region. That is an admirable initiative, but it presupposes that there is some capacity to understand the nature of the waste problem which faces that region of the country. I seriously doubt whether that information will be available unless we institute an audit of the kind proposed in this amendment. I beg to move.

Lord Hesketh

I cannot see that it would serve any useful purpose for there to be a national audit to determine the amount of special waste that is produced in the United Kingdom. I use the words "special waste" in preference to the words "toxic waste" not to score a cheap point but because special waste is the term used in this Bill, and in the Control of Pollution Act before it to denote waste which is dangerous or difficult to dispose of. I believe it is helpful to those who will read the record of this debate to use the words that are defined elsewhere in the Bill.

There is no virtue in collecting statistics for the sake of the exercise. Statistics should be collected where there is a genuine need for information in order to carry out an executive function. There are no executive functions at a national level. There would be no purpose in identifying special waste, registering it, or planning measures in relation to it at a national level. There is no role for central government in this. Identifying special wastes is a task for the waste regulation authorities in the course of administering the special waste regulations. Planning for the disposal of special waste is likewise a task for the regulation authority in preparing its disposal plan. As regards registration of special waste, it will not come as a surprise that the Government see no need for the registration of either special waste as called for in this amendment or waste in general as called for in the next.

The executive functions in waste regulation therefore lie with the waste regulation authorities. They have duties to control special waste movements and to produce waste disposal plans. In both there is a genuine need for information, but the Bill also provides the powers to obtain it.

Special waste is subject to extra controls over its movement from producer to disposer. The existing provisions of the Special Waste Regulations are carried forward to this Bill and those regulations themselves are being totally rewritten in a separate exercise. That will extend the scope of the regulations to include a much wider range of substances and more stringent tests of danger to the environment. Under the provisions of the Bill more people will be required to keep records of the movement of special waste including waste regulation authorities themselves. The consignment note system will ensure that the authorities have full information about the arisings of special waste in their area. Every movement will be notified to them. It is now for the authorities themselves to ensure that they make the best use of the information that they obtain from chat source.

A second need for information on arisings of special waste is the preparation of waste disposal plans. The special waste consignment note system provides one useful input into the preparation of those plans and supplementary information may be obtained by the authorities through surveys. Clause 48(1)(a) specifically puts a duty on regulation authorities to undertake investigations for that purpose.

That is not to say that there is no role whatsoever for central government in the compiling of national statistics. The department has for some years comp[...]led data from local authority returns on special wastes. When the new system for the control of special waste is in place (after the review of the regulations is complete) we very much hope that those statistics will improve.

It is certainly true that information on the movements of waste in and out of the country has greatly improved since the implementation of the Transfrontier Shipment of Hazardous Waste Directive of 1988. That information is tremendously useful in the formulation and monitoring of policy. But the information must come from the grass roots in the first place.

We believe that there would not be a useful purpose in producing a system of national audits for special waste. The need for such information is essentially a local need, and local authorities already have sufficient powers to obtain the information. At the same time, the information can rise to the top if required, but it comes from the grass roots in the first place, as I said earlier. That is why we resist the amendment.

11 p.m.

Lord McIntosh of Haringey

I fear that there is still a substantial level of misunderstanding of the content of the amendment shown by the reply. We recognise that the information has to come from a local level. Indeed, subsection (2) of the proposed new clause states: For the purposes of the effective implementation of this section, the Secretary of State shall request such assistance as he considers to be necessary from the chief inspector"— that is, of HMIP— waste regulation authorities, environmental organisations or other bodies interested in the matter". Subsection (3) states that they shall be required to respond to such requests. So there is no question about where the information comes from. But the point is that the information has to be produced on a consistent basis if action is to be taken on the incidence of waste which arises in a wider area than a single waste authority area. That will not happen unless the Secretary of State takes the lead in specifying what the information should be and how and where it must be produced.

There must also be the other side of the equation: that the facilities to deal with such waste are in existence. But how are we to tell whether the facilities which exist are adequate for the purpose unless we know on a consistent basis the nature and quantity of waste arising? A single waste regulation authority cannot plan beyond its area. We already have disputes between even the larger waste regulation areas—for example, between West Yorkshire and West Midlands, because West Midlands does not want the hazardous waste from York.

The Secretary of State must take a lead and to some extent lay down the form in which the information is collected. Nobody questions the collection of the information. We are in agreement about that. We want to ensure that it is collected effectively. If the Minister had any of the experience that I have had over many years of collecting factual information from sample surveys and trying to see whether they were consistent and could be used on a consistent basis, I think that he would be a little more sympathetic to this notion than he has been in his reply.

However, it was an extremely complex reply, which I shall have to consider more carefully before deciding whether or not to bring back this matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved amendment No. 267B:

After Clause 131, insert the following new Clause— ("Registration waste producers

1. .—(1) The Secretary of State shall by regulations made within six months of the date of Royal Assent, establish a registration system of—
1. (a) waste producers operating within the United Kingdom; and
2. (b) waste producers seeking to export waste to the United Kingdom, or to import waste into it.
2. (2) The Secretary of State may for the purposes of any system established under this section require waste regulation authorities to undertake registration functions within their areas subject to the requirement to satisfy himself that adequate resources are available to enable them effectively to fulfil such a function.
1571
3. (3) Any registration system established under this section shall have the purpose of improving the regulation of all types of waste, including dangerous waste, and in particular of requiring the adequate labelling of waste which is being transported, treated, kept, deposited or disposed of.
4. (4) The Secretary of State shall in making regulations under this section specify after consultation with waste regulation authorities, environmental organisations, waste producers and other interested persons, the types of waste to which labelling and registration requirements are to be applicable.").

The noble Lord said: Let us try again to approach the same issue from a different angle, because we are not getting very far and it is our duty not to be discouraged by the kind of responses that we are receiving. I think it will be agreed that we all want a consistent and effective method of control of the generation, movement and disposal of waste, and hazardous wastes in particular. In other words, in the jargon phrase, we want a cradle-to-grave approach to waste management. That is common ground.

If we are not to have a national audit and the collection of information on a consistent basis, there is another approach which could be used to provide the information required; namely, the analogy of the Control of Pollution (Amendment) Act 1989, which empowered the Secretary of State to set up a system for registered carriers. The direct analogy with that is that there should be a registration system of waste producers operating within the United Kingdom, seeking to export waste from or import waste to the United Kingdom.

I deal with the question raised earlier this afternoon by the noble Lord, Lord Renton. We are not speaking of domestic waste producers but of those for whom it is part of their occupation; namely, producers of industrial and commercial waste. Clearly any such regulations will include provision to exclude the smallest waste producers. We shall be concerned only with major waste producers if the Secretary of State has any sense.

It is necessary to know the origin and destination of waste of this kind because we have no equivalent to the effective HAZCHEM system which is used when dealing with chemical products. If chemical products are being dealt with which are not waste but are dangerous in transit, it is possible to specify in detail what they are, and to give them codes and symbols on the side of the vehicles transporting them so that if there is an accident, the fire authorities, and so on, know immediately what action should be taken. The chemicals are not then sprayed in the wrong way or treated in a way which would cause greater danger.

There is no equivalent when we are talking about waste because invariably it is a compound of different materials. The significance of the waste will not be the basic make-up of materials, but whether it has been treated in one way or another, possibly only with trace elements. Therefore, to that extent, we do not have the capacity, which we have in the chemical industry, for a simple labelling system. We must rely on something which is rather more complicated.

The amendment proposes a registration of producers in order to provide a substitute for the simpler system. However, something must be done if we are to have effective control. As drafted, the Bill does not provide that. This amendment goes some way towards remedying the defect. I beg to move.

Lord Hesketh

This amendment has a long history. It was back in the early 1980s that the Science and Technology Committee of this House first recommended that the producers of hazardous waste should be registered with the local authority. Another recommendation made at the same time was for the licensing of waste carriers, and last week we debated that point in connection with Clause 29.

Many Members of the Committee will know that those recommendations were given very long and serious consideration by the Government. The joint review committee deliberated for several years on those and other matters, but concluded that the registration of hazardous waste producers could not be justified. The resources involved would be enormous, as the amendment now before us implicitly concedes in requiring the Secretary of State to give an open ended guarantee that he will ensure that whatever resources are needed for this gargantuan task will be provided. And what would the registration of producers of waste provide?

We discussed in the course of Amendment No. 267A that the information on producers of special waste is already available to waste regulation authorities through the special waste consignment note system. A register of special waste producers would not therefore add a great deal to the information held by these authorities. But the amendment goes further than this and therefore much further even than the recommendation of the Science and Technology Committee so many years ago. It requires the registration of every waste producer in the country. Charitably assuming that the amendment intends to register only businesses producing waste and not households as well, we would still be left with a register of every business in the country. The telephone directory would be as much use.

The noble Lord wishes the register to contain details of the kinds and quantities of the waste that each business produces, and has argued that this is necessary for the regulation authorities to do their job. Such a register could not be managed. Apart from the sheer size of it, how would it be kept up to date? Businesses change. They change inasmuch as they come and go. How would an authority keep a check on who had come and who had gone? They also change their production methods, their product lines and their stocks. How would an authority keep a check on all these items? There would need to be in this clause an elaborate system of duties for each business to inform its waste regulation authority every time some event changed its waste stream, with penalties on those who did not comply. This proposal runs counter to the changes of the times throughout the world where the trend is towards less information centrally held on individuals and less bureaucracy.

It was precisely because a system of registration would not be workable that the Government developed one of the most central and important parts of Part II of the Bill, the duty of care. Without the bureaucracy of registration of producers, the duty of care is specifically designed to ensure that the items listed in subsection (3) of the amendment are achieved. It will be a central part of the duty of care that waste must be adequately packaged and labelled for any storage on the producers' premises and for any journey that it subsequently makes. By placing real duties on waste producers we shall achieve far more than we could possibly achieve through a registration system that would swamp the authority in paper that it could not handle. The duty of care means that waste producers are not subjected to a massive form-filling exercise but are under the pain of criminal sanction for things that they actually do with their waste. They will be required to take as much care over the fate of their waste products as they do over the fate of those that they sell. This is a much more effective tool for waste regulation than an enormous register.

I cannot believe that the proposal to register every business in the United Kingdom, no matter how small, is the right way to cope with the problem.

Lord McIntosh of Haringey

That was a classic case of setting up an Aunt Sally in order to knock it down. The amendment says nothing about an enormous register. It provides that the Secretary of State shall by regulation set up a registration system. The Secretary of State has the freedom to make that registration system as restricted as he wishes and in order to make it effective to concentrate as necessary on the major producers and importers and exporters of waste. It does not invalidate the amendment to state in it that adequate resources should be provided. Of course adequate resources should be provided; they should be provided for all the provisions in the Bill. It would have been neglectful of us not to make that provision in the amendment.

The Minister seeks to counter the amendment by referring to the duty of care provision and the consignment note procedure which is to be introduced into those provisions. I put it to him that the number of consignment notes that will be required is much greater than the registration of the major producers. The amendment contains no implication that every single detail of the major producers should be kept up to date at all times and included in the register. The register should contain enough information to identify the type of business in which the producers are involved and the type of risk that may be identified if something goes wrong with anything that they produce.

I suggest that the registration system would simplify the consignment note provisions made in the earlier parts of the Bill. The amount of bureaucracy would be less. However I have not convinced the Minister at this stage and it may be a matter to which we shall return. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 132 [Powers to obtain information about potentially harmful substances]:

The Earl of Arran moved Amendments Nos. 268 and 269:

Page 132, line 41, at end insert ("or any of them"). Page 133, line 9, leave out ("or") and insert ("and").

The noble Earl said: Amendments Nos. 268 and 269 are small drafting changes intended to ensure that Clause 132 is unambiguous and consistent with other parts of the Bill. The purpose of Amendment No. 268 is to make it clear that "environment" includes any or all of air, land and water. Amendment No. 269 clarifies the exclusion for food products based on a definition of food in the Food Act 1984. I beg to move.

The Earl of Balfour

Clause 132(4)(i) on page 132 states: make any public authority designated by the regulations responsible for the enforcement of the regulations to such extent as may be specified in the regulations". That is a bit of a mouthful but I wish to know whether the provision includes the police. I hope that they are included in that particular case.

The Earl of Arran

I am bound to say that it sounds a very interesting question, but I am afraid I cannot give my noble friend a secure answer. I shall be writing to him in the very near future on this point.

On Question, amendments agreed to.

Clause 132, as amended, agreed to.

[Amendment No. 270 had been retabled as Amendment No. 379A.]

Schedule 11 [Injurious or Hazardous Substances.. Advisory Committee]:

11.15 p.m.

The Earl of Balfour moved Amendment No. 271: Page 192, line 4, at end insert ("of this Act").

The noble Earl said: It is the usual custom in a schedule, when referring to clauses of a Bill, to use the words "of this act" after those clauses. I beg to move.

The Earl of Arran

We are delighted to accept this amendment.

On Question, amendment agreed to.

Schedule 11, as amended, agreed to.

Lord Renton

Before we proceed any further, I should just mention that I have spoken to the Leader of the House and have suggested to him that, as we are now reaching a very important part of the Bill, we really should not continue our consideration tonight. It is so important because it deals with statutory nuisances and clean air. Not only is there the whole question of atmospheric pollution, which is causing great anxiety these days because of the damage to the ozone layer and so on, but there are also various kinds of statutory nuisance to be dealt with. All the provisions have to be dovetailed with the Clean Air Act of 1956, the Clean Air Act of 1968 and the Control of Pollution Act of 1974.

There are a great many amendments on the Marshalled List, some of them of considerable importance. I have alerted my noble friend the Leader of the House to this and I should like to suggest that it will take a very long time—probably several hours—to deal with this part of the Bill if we are to do it satisfactorily. We are reaching the end of the third of seven days allotted to the Committee stage and I should have thought that some of the provisions to be dealt with on the remaining four days were really a good deal less important than those which we are now approaching. I am not quite sure whether I am in order, but I beg to move that further consideration of the Bill be now adjourned.

Lord Belstead

I think that we are to some extent in the hands not only of this side of the Committee but of Members on the other side. We have a working agreement always in this Chamber as to how far we wish to get each day and the present agreement was that we would get rather further than my noble friend Lord Renton is saying—with some justification, I realise—he feels we ought to go. If the Opposition feel that we should continue, I have to say in all friendliness to my noble friend Lord Renton that we ought to try to reach the point we had earlier intended, in agreement with the Opposition, to get to. May I ask the noble Lord, Lord McIntosh, what his view is?

Lord McIntosh of Haringey

The idea that we should proceed to the end of Part III of the Bill was originally a proposition which I put to the Government some four weeks ago. It is always difficult early on to anticipate what the volume of business is likely to be on any particular day. Members of the Committee will have noticed that a large part of today's business has not come from the Opposition Front Bench. Perhaps our anticipations in that respect were not correct.

I foresaw that there might be difficulty in this way. I must say, in order to set my reputation straight with the noble Lord, Lord Renton, that I offered to the Government that we might stop rather earlier than we now propose to do, but it was not convenient for the Government for reasons that I well understand. In the circumstances, with much regret (because I should prefer to deal with these matters at a time when more Members were able to be present), I suggest that we should continue as originally agreed.

Lord Renton

In view of what the noble Lord, Lord McIntosh, has said, and in view of information that my noble friend Lord Belstead has given me, I suppose that one must accede to the suggestion that we should continue. However, it is regrettable that such important provisions will be discussed when there are so few Members here to take part. I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 271A:

Page 80, line 45, at beginning insert: ("( ) For the purposes of this section, a statutory nuisance shall be any matter specified in or under subsection (1) below which either causes harm to the environment within the meaning of section 1 above, or causes harm to the health of any person and in this subsection the health of a person shall be taken to include a state of physical well-being, and not merely an absence of disease.").

The noble Lord said: I do not know whether it helps the noble Lord, Lord Renton, if I say that, although as he rightly said the matters with which we deal in Part III of the Bill—statutory nuisances—are not only of great intrinsic importance in themselves, but are of great day-to-day concern to many millions of people in this country, they are not dealt with satisfactorily in this part of the Bill.

Whatever time of night it may be the approach that has been made to Part III of the Bill, which is more or less the approach of a consolidation Bill rather than an attempt to think again about the problem of statutory nuisance as a whole, is not satisfactory. That is the reason why we have a significant number of amendments tabled to this part of the Bill.

I need only draw the Committee's attention to the fact that Clause 76(1)(h) allows the Government, without further reference to Parliament, to add to the list of statutory nuisances, to make it clear that we have here one of the classic cases of enabling legislation without any acceptable or understandable statement of principle about that with which we are concerned.

This part of the Bill needs a single unifying concept of what is meant by statutory nuisance. That is what is lacking and that is the reason why we have to table specific amendments about such matters as cable burning, floodlighting and motor vehicles, rather than dealing with the essence of statutory nuisance. That is why the Government have felt it necessary to go further in Clause 76 and to suggest that they themselves should have the power to add to the list of statutory nuisances. What we have is little more than a revised restatement of existing legislation rather than an opportunity taken, as it should have been, to think again about the purposes of legislation regarding statutory nuisance as a whole.

In this amendment we seek to deal with one of the major issues of statutory nuisance; namely, what is meant by health. We referred to that matter in dealing with earlier clauses in the Bill, and when we talked then about health we suggested that health should be defined more broadly than physical health. I suggest to the Committee that, in this case, the health of any person should be taken to include: a state of physical well-being, and not merely an absence of disease".

I put that forward as the most important single example of the way in which the Bill has adapted—almost without significant rethinking or possibly without significant thought—the concepts which existed in preceding statutory nuisance legislation.

There can be no doubt that statutory nuisance legislation is one of the areas of our law which causes the most difficulty as between local authorities and their electors; between local people and environmental health officers. Local people cannot understand why what is a nuisance to them, what is causing them to suffer ill-health, is excluded from legislation. They cannot understand why the environmental health officer has to say either, "I do not have the resources to deal with this", or "The law does not allow me to deal with this".

One of the ways in which environmental health officers would be enabled to deal with statutory nuisance more effectively would be if the definition of "health", which is so narrowly stated, were extended along the lines suggested in the amendment. I beg to move.

The Earl of Arran

If this modest looking amendment were accepted, there would be no need for most of the rest of the Bill. The point is that the amendment would load onto the statutory nuisance provisions, and hence on local authorities, the function of policing all processes that might give rise to any damage to the environment and atmosphere or upset the ecological balance.

Traditionally, the law has consistently defined a statutory nuisance as something which is either prejudicial to health or a nuisance to persons; something that adversely affects personal comfort or interferes with the enjoyment of one's property. Now such a nuisance may coincidentally cause damage to the environment or atmosphere but not necessarily; for example, a nasty smell can upset one's wellbeing but not damage the planet.

This amendment would wrench the whole concept of statutory nuisance into something quite inappropriate. It would place on local authorities the awesome responsibility of assessing the impact of some local phenomenon on the environment as a whole. The hardpressed environmental health officer would have to become master of the greenhouse gas effect. Councils would be inundated with requests for them to take action from all manner of well-intentioned but over-enthusiastic residents who had read some new report of environmental menace in the latest copy of the New Scientist.

Rather than using that blunderbuss approach, we believe in clear, targeted controls to prevent damage to our environment such as those contained in Part I of the Bill. We need to look at the specific processes which cause environmental or atmospheric pollution and to lay down limits on emissions and the means of dealing with them. Part III deals with the essentially local nuisances which affect individuals. Of course there is no hard and fast line between what affects individuals and what affects the environment as a whole— No man is an Island"— but we consider that it is useful for environmental health officers to have this distinction in mind.

The amendment would also define health as including a state of physical well-being. The existing definition of prejudicial to health—which incidentally we are extending to noise nuisance for the first time through this Bill—has stood the test of time well and does not seem to hamper local authorities in carrying out their responsibilities so far as we are aware.

It is for those reasons, and with those thoughts in mind, that I ask the noble Lord not to press the amendment.

Lord McIntosh of Haringey

When I first heard that response, I thought it was over the top; when I heard the noble Earl quoting Donne in his defence I knew it must be over the top.

The concept that we are proposing in the amendment is not foreign to the Bill as drafted. Part I defines the environment in terms of the environmental media including buildings and other natural or man-made structures. Statutory nuisances arise in premises, from activities in premises, in relation to land or living things or the creation of noise or other pollution within the broad terms envisaged by Part I of the Bill. Part I of the Bill was introduced to set those broad terms. This amendment borrows the concept of harm set out in Part I of the Bill. Clause 1(4) includes, harm to the health of living organisms or other interference with the ecological systems of which they form part". It also includes, offence caused to any of his senses or harm to his property". One would not think that the Bill was like that having heard the response which the noble Earl has just given. It was as if we were somehow throwing the entire Bill in the air by proposing this modest updating of the definition of health.

Any doctor will tell the Government that health is more than the absence of disease. Health is a matter of well-being and it is the responsibility of us all as part of the environment to secure that we have more than just the absence of disease and that we are contributing to well-being. I totally reject the noble Earl's suggestion that the amendment is damaging to the concept of the Bill as a whole. I also totally reject his arguments. One does not get rid of the danger from fumes simply by calling them a nasty smell as he did. Smells are caused by something and it is not just that they are nasty. They can he dangerous in a way which it would be easier to control if this amendment had been accepted.

Perhaps I may make one general point about this part of the Bill in the light of the plea made by the noble Lord, Lord Renton, a few minutes ago. At this time of night I do not think that we shall propose any Divisions on this part of the Bill. I am not suggesting that we shall seek the opinion of the Committee. If that means that the payroll vote can go home, then good luck to them. Having said that I shall stick to it.

It means that all these amendments will be treated as probing amendments. When we come to the end of this discussion we shall certainly be seeking a timetable for Report stage at which statutory nuisance is given suitable prominence. It may be that we shall have to return to a considerable number of the issues being debated at this time of night. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.30 p.m.

Lord McIntosh of Haringey moved Amendment No. 271B:

Page 80, line 45, at beginning insert— ("( ) This Part shall have effect for specifying those statutory nuisances which it shall be the duty of a local authority to take into account in undertaking any audit of the physical environment of its area.").

The noble Lord said: I do not think that there is anything startling about the concept proposed in this amendment. What we are trying to do is to link the concept of statutory nuisance in Part III of the Bill with the undertaking concerning environmental audits by local authorities.

That is not a completely new concept. It is becoming more widely accepted in local and central government. I shall be very surprised if the White Paper promised by the Government for September of this year does not involve to some extent the concept of environmental audits. No answer is required on that because it is not a direct question. But I would be prepared to lay some small bets that environmental audits play a significant part in any government White Paper.

The local authority associations are looking at good practice in this field. One of the conclusions that they are coming to quite readily is that it is a good way of focusing attention on the state of the environment which will enable everybody concerned—not just the local authorities but voluntary organisations and individuals—to play their part in the improvement of the environment.

Statutory nuisance is a significant part of the quality of our daily lives in the environment. The environmental audit has a significant part to play in improving the quality of our lives by improving the definition, identification and removal of statutory nuisance. We are suggesting that local environmental health officers can play an important part in determining the environmental state of the area. We already have concerned communities looking at the background and roadside level of pollution. It is very valuable that, for example, the Evening Standard is beginning to publish such assessments on a daily basis.

That is an example of the kind of environmental audit that we should like to see set up. It would be valuable as a warning to those who are creating pollution what it is they are in danger of contributing to. We are not suggesting that there should be anything prescriptive about this. We are saying that it is important to increase awareness of people's rights under the statutory nuisance provision. This amendment could play an important part in helping the public to know its rights and in ensuring that those rights can be enforced. I beg to move.

The Earl of Arran

We touched on the subject of environmental or green auditing by local authorities and others during discussion of Part I of the Bill. This is something which a number of local authorities are already undertaking and can be highly effective if properly conducted. Officials in the Department of the Environment have been discussing with the local authority associations how this might be carried forward.

I hope that in due course the local authority associations will arrive at common guidance for those authorities wishing to carry out environmental audits. The Department of the Environment will certainly offer all the help it can in this respect. But we believe that it would be inappropriate to lay down on the face of the Bill what would amount to a selective contents list for such audits.

I agree with the noble Lord that it may well be that local authorities will wish to use data concerning statutory nuisance in arriving at an assessment of how local environmental quality in their area has improved or declined over time. They may also have other measures which they wish to take into account which will probably alter over time as new means of collecting and assessing environmental information become available. The noble Lord will gather that we do not consider Amendment No. 271B to be the right way of getting to what is nonetheless an agreed goal.

Amendment No. 387ZA would cancel the repeal of Sections 91 to 100 of the Public Health Act 1936 which are essentially being replaced by Part III of this Bill. It would therefore leave on the statute book an exactly parallel though older piece of legislation. My noble friend explained on Second Reading why we consider that Part III of the Public Health Act 1936 needs improvement and updating. Its basic provisions have stood the test of time well and have been effectively used by generations of environmental health officers. But the legislation is showing some signs of age and extensive consultation in 1986 revealed a number of areas where changes were necessary. I might add that the Government are very grateful to the local authority associations, the Institution of Environmental Health Officers and other bodies who have responded so helpfully to consultation and are directly responsible for many of the amendments before us, in the Government's name and otherwise.

We consider that the strengthened statutory nuisance regime that will emerge from the Bill should give a further 50 years of trouble-free service. On that basis I hope that the noble Lord will not feel it necessary to press his amendment.

Lord McIntosh of Haringey

The Minister's response was not very well directed to the nature of the amendment. It is by no means the case that the amendment specifies a selective list of duties on a local authority which by implication excludes other duties. All the amendment requires is that: This Part shall have effect for specifying those statutory nuisances which it shall be the duty of a local authority to take into account in undertaking any audit of the physical environment of its area". It does not even require the local authority to undertake any audit of the physical environment of the area. All it says is that if the authority is going to do so—the noble Earl and I clearly agree that pressure is increasing for environmental audits—it shall take account of the provisions of Part III of the Bill.

I find the amendment very much less threatening and dangerous and very much more helpful and moderate than the noble Earl does. I shall seek to convince him at a later stage of the virtue of this approach. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Arran moved Amendment No. 272 Page 80, line 45, leave out ("and (3)") and insert ("to (5)").

The noble Earl said: In moving this amendment on behalf of my noble friend I speak also to Amendment No. 278. Amendment No. 272 is a minor technical amendment. It is purely and simply a correction to the drafting of Clause 76(1). Without it subsection (1) would not cross-refer to the two subsections covering steam and aircraft exemptions which were added in another place.

The Government have brought forward Amendment No. 278 because we have concluded that in certain circumstances Clause 142 does not provide sufficient safeguards for the interests of national security where operational activities of the armed forces are involved. I beg to move.

Lord Graham of Edmonton

We are very worried about this amendment. It is clearly a case of applying Crow[...] immunity. The Minister referred to "certain circumstances". What are those certain circumstances? All the Minister said was that the Government had concluded that, in certain circumstances, this exclusion should apply. He owes an explanation to a great many people of how he justifies Crown immunity.

The Minister knows, because he is well versed in these matters, that a steady process over many years has culminated in Crown immunity being lifted from such places as hospitals and schools. There is great agitation to lift it from prisons. However, with this amendment the Government are applying Crown immunity.

I am grateful to a Dr. Hartley Dean who lives in Westbrook, Margate. He has drawn my attention to a number of ways in which this protection would be detrimental to his area. He refers to Manston airbase which is used by the RAF's fire service central training establishment. He informs me that what are called controlled fires are regularly started. These emit massive palls of dense black smoke which often drift for several miles, directly over Margate, before dispersing into the atmosphere. The precise nature of the pollutants in the smoke is not known.

The fires have been the subject of frequent complaints for several years but, because the Ministry of Defence enjoys Crown immunity, no action can be taken by the civil authorities to control those activities. If any Members of this Committee were affected by such fires they would be as concerned and outraged as Dr. Hartley Dean. The Ministry of Defence can offer no satisfactory assurance. It admits that there are, on average, four fires a day at Manston—I repeat, four fires a day—which is a staggering statistic. It is a fire school. I can understand that the fires are necessary in order to train the firemen. However, I ask the Government to think again about this easement in what is, after all, a Bill to protect the environment.

We understand the requirements of defence and the exigencies of the armed services. We are prepared to go along with the Minister. We are responsible as a party and as individuals. Nevertheless, the Minister must justify this amendment in the light of a Bill specifically designed to extend protection.

Lord Renton

I agree with the noble Lord, Lord Graham, in what he said about Amendment No. 278. I too am opposed to it. No one can object to Amendment No. 272 which deals merely with re-numbering.

I implore my noble friends on the Front Bench to reconsider Amendment No. 278. By giving a blanket exemption to the armed forces the Government are taking a great risk, for reasons given by the noble Lord. When we are trying to improve the environment, the armed forces, being disciplined, have a great part to play in setting an example to the rest of the community. However, this amendment will discourage them from so doing.

In moving the amendment, my noble friend Lord Arran said that for operational reasons it may be necessary to give the forces some exemption. However, the amendment says nothing about operational reasons. A very large part of the lives of those serving in the armed forces in this country in peacetime is non-operational. It really is not good enough that we should have this blanket exemption for them.

I should like to say a word about visiting forces. I happen to know of an American aerodrome where a great amount of dark smoke—which is a terrible nuisance and, again, a bad example to the rest of the community—is caused by burning large quantities of used tyres and other such materials. Yet this bad practice will be given full justification by the amendment. It really is not good enough.

I ask my noble friends not to ask Members of the Committee to accept the amendment this evening. I suggest that they give an undertaking that they will consider what has been said. They can then move the amendment afresh—if they think it should be moved—on Report, with or without it being modified.

The Earl of Arran

I have listened with great care, diligence and attention to the concerns expressed by noble Lords. I can say that, with or without modification, we shall consider this amendment very carefully and return to the matter on Report.

Lord Renton

I am most grateful to my noble friend, as, I am sure, is the noble Lord, Lord Graham of Edmonton.

Lord Graham of Edmonton

I am indeed most grateful to the Minister. I appreciate the significance of his remarks. If a short consultation would be helpful in order to facilitiate procedures on Report, I am sure that the noble Lord, Lord Renton, and myself will be able to make ourselves available.

The Earl of Arran

In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.45 p.m.

Lord McIntosh of Haringey moved Amendment No. 273: Page 81, line 1, after ("premises") insert ("or motor vehicles").

The noble Lord said: In moving this amendment, I should like to speak also to Amendments Nos. 273A, 274, 275 and 275A. All of these amendments are concerned with the statutory nuisance or, unfortunately, the non-statutory nuisance which is caused by motor vehicles. I think if the question were put to the general public as to what they understood to be the most common sources of nuisance, it would be found that they were not very familiar with the concept or the phrase of a "statutory nuisance". However, if they were asked about things which caused them trouble and which ought to be put right, they would list motor vehicles among them.

The Government have congratulated themselves in advance on the addition to the list of statutory nuisances the idea of there being a noise nuisance. I join in those congratulations. In my view, it is a very welcome step forward. However, let us now have another really welcome step forward which would make the Government extremely popular. It would not, of course, overcome their other deficiencies in public popularity; but it certainly would not do them any harm. I refer to their recognising the fact that what ordinary people understand as being a nuisance includes the effects of the motor vehicle. These amendments which seek to deal with nuisance from motor vehicles should be accepted.

Amendment No. 273 adds the words "motor vehicles" to the list of matters which constitute statutory nuisances; in other words, they will be inserted after the word "premises".

Amendment No. 273A is a special case. It deals with smoke emitted from diesel engines. Noble Lords who spend any time in Parliament Square will be aware of the smoke emitted from coaches and lorries, especially almost stationary coaches and lorries. It is a significant nuisance which should be statutory.

Amendment No. 275 is a cleaning-up amendment. The need for Amendment No. 275A can be observed by looking out in Parliament Square, because it is noticeable that coaches tend to run their engines when they are stationary—in summer to keep the air conditioning going, and in winter to keep the heating going. It is extremely offensive, apart from the damage that it does to energy conservation.

The argument that has been used, which is clearly an interdepartmental argument that should not affect Parliament if we can possibly avoid it, is that the control of nuisance from vehicles is the responsibility of the Home Office and the police. They do not want those responsibilities, however. They do not want to be concerned with smoke emissions, air pollution or noise pollution from motor vehicles. In so far as they are concerned with motor vehicles—I imagine that most of the police wish that they were less concerned with motor vehicles—it is because they have to be concerned with road safety and with offences committed involving motor vehicles. Those are the core responsibilities of the police, and behind them of the Home Office in respect of motor vehicles. In every other respect, the police and the Home Office believe that those matters should be the responsibility of local authority environmental health officers.

That does not mean that we are suggesting the creation of a completely new force of uniformed para-police inspectors with the power to stop motor vehicles and say to the drivers, "Your exhaust is too dangerous". That would not be necessary. There are good ways of carrying out occasional blitzes. That already happens with the police and local authorities. There are good ways of employing a combination of police and environmental health officers, just as there is a combination of police and traffic wardens which deals with certain types of motoring offence.

A great deal of what we are talking about in the amendments, especially diesel fuel emissions and the problems caused by stationary vehicles, could be dealt with without any chasing after the vehicle. One merely notes the number and invites the owner to present himself to prove that his vehicle is not committing the offence of statutory nuisance of creating unwanted and dangerous smoke emission or air pollution. If those problems are suggested by the Government in their reply, they can be easily got round. The ordinary people of this country will want the definition of statutory nuisance to include motor vehicles. This is an opportunity for the Government to recognise what ordinary people want, and to accept the amendments. I beg to move.

Lord Renton

In relation to the amendments there is one important and fundamental question which I should be grateful if my noble friends on the Front Bench would answer. Perhaps only my noble friend the Leader of the House can answer it. The question is: is it intended that the Bill shall be part of our country's effort to join other countries in protecting the ozone layer? If it is, then we should be considering the pollution caused by motor vehicles, aircraft and any other form of combustion, because the damage to the ozone layer is caused by the production of carbon dioxide.

It is well known that motor vehicles, aircraft, the burning of fossil fuels, and so on—all things that go with our daily lives—create carbon dioxide. We know that an international conference is being held in London at the moment to decide how to protect the ozone layer. If it be the fact that the Bill is not part of the Government's contribution towards solving that problem, I should have thought that we would be quite justified in doing nothing about motor vehicles, as the noble Lord suggests, or about aircraft, diesel engines and so on. Various other branches of the law can already deal with the bad cases. There are prosecutions from time to time of motorists who cause dark smoke to come from their vehicles. That has been so for years and years.

Without an answer to that question, we cannot—or I certainly find I cannot—form an intelligent opinion on this group of amendments. The noble Lord, Lord McIntosh, has done us a service in drawing attention to the problem of pollution caused by motor vehicles. However, we need to know the answer to that fundamental question.

Lord Hesketh

I wish that I could give my noble friend Lord Renton a clear and certain answer. In a way, the answer is partly yes and partly no. When we debated amendments to Part I of the Bill, certain amendments made direct reference to CO₂ emissions. My noble friend Lord Renton has rightly mentioned the ozone layer. At this very moment in London, the matter is being discussed with the extension of the Montreal Protocol regarding CFCs. That is a slightly separate issue.

If there is a single vein that runs through this Bill in terms of precedence and importance, it is this. We have a Bill in which the number one principle is integrated pollution control. That in itself is not so much to do with CO₂ emissions, the ozone layer or the greenhouse effect. Many other important matters are dealt with in the Bill which range from the Nature Conservancy Council to the amendments concerning dogs and various other aspects.

It is fair to say to my noble friend that the most important part of the Bill is on integrated pollution control. The Bill touches on other areas which bite on the problems that he has mentioned, but it would not be true for me to say that the principal part of the Bill relates to CO₂. The debates we had on Part I of the Bill also referred to the Government's White Paper which addresses far more the principle of CO₂ and the results of the intergovernment panel on climate change. It is crucial and will appear in the autumn.

Lord Renton

I am sure that we are all grateful to my noble friend. Although he could not give a completely positive statement in relation to Part III of the Bill, he reminded us of the provisions for integrated pollution control and air pollution control by local authorities under Part I. However, to what extent is Part III intended to be in aid of Part I? If it is intended to be in aid of Part I, I should like to see Part III improved in various ways which I shall mention in the discussion on whether Clause 76 shall stand part. We should also get it quite clear in our minds whether or not in order to fulfil the objectives of Part I we should be dealing with motor vehicles, and perhaps even aircraft—aircraft also produce a lot of carbon dioxide—in Part III.

12 midnight

Lord Hesketh

I think it would be fair to say that Part III is consistent with Part I of the Bill. On the matter of whether or not it is in aid of Part I of the Bill I defer to my noble friend's superior understanding of these matters. It is also important to remember that we tabled a consistent number of amendments with regard to motor vehicles and large power stations in Part I of the Bill.

Lord Renton

No one should have a greater understanding of a Bill than the Minister in charge of it.

Lord McIntosh of Haringey

Touché! The Minister is certainly right in saying that our approach to Part I and Part III of the Bill has been consistent. I shall certainly not repeat my Second Reading speech on the subject; but we have taken the view that integrated pollution control in all its aspects requires the inclusion of the role of what is now the Department of Transport in respect of enforcement of pollution controls on motor vehicles, that of the Home Office and certainly that of the Department of Energy, because energy conservation is an essential, integral part of pollution control. In so far as this is and remains a Department of the Environment Bill and neglects the aspects of administration and public life covered by the Home Office, the Department of Energy, the Department of Transport and the Ministry of Defence—perhaps we have won a minor victory there—

Lord Graham of Edmonton

Not minor.

Lord McIntosh of Haringey

No, not minor. I yield to my noble friend Lord Graham. Perhaps there has been a significant shift in the Government's attitude on that. Our view is that if we are to have integrated pollution control, we must include motor vehicles in that provision. That is why both in Part I and in Part III of the Bill we have introduced appropriate amendments.

The Government will not be readily forgiven by those who suffer as my neighbours do—I live within a quarter of a mile of the A1—from vehicle emissions, if they brush vehicle emissions on to one side and refuse to deal with them in the context of integrated pollution control and statutory nuisance. It is not enough to say that there are existing laws. In order for there to be existing laws there must also be the means and the willingness to enforce them.

The police in particular are grossly overstrained in the other aspects of their duties which are to them, and to many other people, more important, and in so far as they have time to deal with traffic at all they are not surprisingly concerned to deal with motoring offences and road safety. Here is an area where the control of pollution could well be civilianised. It could well become the responsibility of environmental health officers who cost a good deal less than the police although they cost just as much to train as they are just as skilled. Those officers could and should take an active part. This is a matter to which we shall certainly return on Report. We would not be forgiven if we neglected to do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 273A to 275A not moved.]

Lord McIntosh of Haringey moved Amendment No. 275B:

Page 81, line 13, at end insert: ("(gg) the illegal burning of any cable so as to be prejudicial to health or a nuisance;").

The noble Lord said: I hope that this is largely a technical amendment. After a considerable debate in Committee in another place the Government amended Clause 76(1)(d) so that it now reads: any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance".

It was pointed out in another place at Committee stage that illegal cable burning does not take place on business premises. It tends to take place on open land, in lay-bys or wherever people who undertake the activity find it convenient. Therefore, so far as we can see, it is not covered by any of the provisions in paragraphs (a) to (g) of Clause 76(1). I hope that the Government did not intend that. It would be inconceivable that they did, and I hope that they will take this opportunity to correct the situation. I beg to move.

Lord Renton

Although the noble Lord described this as just a technical amendment it is a matter of some importance. I do not agree with the wording. The word "illegal" is quite unnecessary. If there is to be such a provision it should not be confined to cable. I believe that it should read: The burning of any material which, when burned, is prejudicial to health or a nuisance". That would make much more sense.

Lord McIntosh of Haringey

I can save the Government the obligation of replying. The noble Lord, Lord Renton, has made a very valid point. I shall not wait for the Government's reply. I shall seek leave to withdraw the amendment and bring it back at a later stage in the form which has been suggested. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 275C:

Page 81, line 13, at end insert: ("(gg) floodlighting at a time or intensity which is prejudicial to health or a nuisance;").

The noble Lord said: This is another matter which may seem to be marginal or incidental but it certainly is not marginal or incidental to those who suffer from it.

There are three kinds of floodlighting. There is floodlighting which is purely decorative and which people have in their gardens. My neighbours have lighting in nasty changing colours. I find it rather offensive but I would not claim that it was a statutory nuisance. Then there is exterior lighting which is used to guide people to a house or for security purposes. It would be easy to define conditions under which that would be allowed and would not be prejudicial to health or a nuisance. There is also floodlighting, some of it on industrial or commercial premises, sometimes for exaggerated security reasons, and some of it on domestic premises, which is extremely offensive and causes great pain and anguish to those who suffer from it.

I have been bombarded with examples of such floodlighting since the amendment was first seen. It ought to be and I am convinced could be dealt with by the statutory nuisance provisions. I very much hope that the answers that were given in another place to comparable amendments which relied on the necessity for more modest floodlighting on occasion—which we acknowledge—will not be repeated now. I hope that it will be recognised that there is a genuine public demand for action to deal with the problem of floodlighting at an intensity or at a time which are prejudicial to health or which are a nuisance.

I am advised that one of the significant elements which constitutes a nuisance is when the primary light source is in sight of the people who suffer from it. I am quite convinced that environmental health officers could advise the Secretary of State as to how such a statutory nuisance could be defined in operation. I am sure that the Government would be well advised from the point of view of meeting public demand to accept this amendment or something very like it. I beg to move.

Lord Ross of Newport

I should like to speak in support of the amendment. Although it may be believed that this is a problem that occurs in urban areas, I can assure the Committee that it also occurs in rural areas. I live in an area where the farm buildings are floodlit all night long. I do not know why. It may be to help fowl to lay more eggs.

There is also the other side of the coin, with roads being floodlit as a safety precaution. Although I sometimes wonder why we have to have all these lights on at 2 o'clock or 3 o'clock in the morning in fact I accept that it is a safety measure. The Minister may well say that in response.

The Earl of Arran

We are not convinced that we should be justified in setting up a new category of statutory nuisance to catch nuisance caused by floodlighting. The matter was raised in another place. My honourable friend the Minister for the Environment and Countryside undertook to give further consideration to the question of nuisances caused by light. We have consulted as widely as time allowed. Enquiries which officials made of the Institution of Environmental Health Officers have not disclosed that this is a widespread problem nor that any widespread measure of support appears to exist on the part of local authorities for having such powers.

Most floodlighting installations would be subject to planning permission. The physical development involved in the installation of floodlighting apparatus amounts to development for planning purposes. In determining an application for planning permission, a local planning authority is required to have regard to the provisions of the development plan and to any other "material considerations". The effect of the development on local environment and amenity would be a material consideration for a planning authority to take into account in deciding whether to grant permission.

However, my honourable friend the Minister for Housing and Planning is prepared to look further at the adequacy of the present planning controls, and indeed we are prepared to consider this matter further.

Lord McIntosh of Haringey

It is disappointing that the Minister has not been able to come to the Chamber with amendments but I understand the point that he made about the short time available for consultation. I accept with gratitude the offer that he made to return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Graham of Edmonton moved Amendment No. 276: Page 81, line 18, at end insert ("and in the case of noise nuisance to take all reasonable steps to investigate a complaint from any person living within that area.").

The noble Lord said: In moving Amendment No. 276, tabled in the name of my noble friend Lord McIntosh of Haringey, I also wish to speak, in the absence of the noble Lord, Lord Nathan, to Amendment No. 277 which is grouped with it.

The purpose of Amendment No. 276 is to extend the activities that a local authority shall undertake in its area. As the clause is drafted, the authority shall inspect its area from time to time to detect statutory nuisance. The amendment seeks to ensure that, with regard to nuisance caused by noise, a local authority would respond to complaints from the public. The Government may say that the proposal is covered by the term "from time to time". If so, that is welcome. But it is important to recognise that noise nuisance may often be of a transitory nature. For instance, a late night party, while not necessarily health-threatening in the same way that fumes or gas may be, must be dealt with as soon as practicable.

The noble Lord, Lord Nathan, had hoped to be present to speak to his amendment, Amendment No. 277. It is not strictly on all fours with Amendment No. 276, but there are common elements. Amendment No. 277 alludes to the current legislation upon which these matters rest; namely, the Public Health Act 1936 and the Control of Pollution Act. They give power to investigate complaints rather than to send inspectors periodically to investigate premises generally.

The National Conference on Clean Air undertook a survey. Three out of four local authorities responded to the effect that they investigate complaints; one out of four does not. There is a disparity of approach which could well be seen to be unsatisfactory. The United Kingdom Environmental Law Association and the National Society for Clean Air have suggested in separate reports that the situation should be put right in favour of the majority view adopted by local authorities. I beg to move.

12.15 a m.

Lord Hesketh

The working party on the Department of the Environment's review of noise has recommended that action should be taken to clarify the duty on local authorities. The Government are favourably disposed to the amendments in principle, but believe that consultation with local authorities and other organisations is necessary. We shall be consulting shortly and if the response supports the intention behind the amendments, we shall return with an amendment at a later date. I therefore hope that the noble Lard will not press his amendments.

Lord Graham of Edmonton

That is not only the best offer that I shall get at this time of night, it is the best offer that I am likely to get at any time of the day! I am grateful to the Minister. In the light of what he said and subject to him delivering the goods, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 277 and 278 not moved.]

The Earl of Arran moved Amendment No. 279: Page 82, line 17, at end insert ("and, subject to subsection (11) below, any vessel;").

The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 280 and 282ZA. Clause 76(10) already provides for vessels in territorial waters to be subject to the nuisance provisions of Part III. However, Part III of the Bill contains nothing explicit about the application of the nuisance provisions to vessels in inland waters. That is an omission which we need to rectify. Our intention is to maintain the status quo. At present vessels in inland waters are subject to the nuisance provisions of the Public Health Act 1936 by virtue of Section 267 of that Act.

That is no doubt the reason for the amendment proposed by my noble friend Lord Craigton and I am grateful to him for his perspicacity. We have brought forward our own amendment designed to make clear that vessels in inland waters—excluding preserved and recreational steam vessels—are subject to the nuisance provisions. I therefore hope that my noble friend will not press his amendment.

As regards Amendment No. 282ZA, Part III was amended in another place so as to exclude vessels powered by steam reciprocating machinery. Subsection (11) contains the relevant provision. Our objective was to exempt from the nuisance provisions of Part III preserved and recreational steam vessels. My noble friend seeks in this amendment to confine that exemption to vessels in territorial waters. If the amendment was accepted, nuisance controls would apply to such vessels when operating in inland waters.

Preserved and recreational steam vessels give pleasure to a great many people. They are relatively few in number and the effect on the environment is negligible. It is right that we should crack down on the real polluters. We are doing so in raising the maximum fine for statutory nuisance caused by industry from £2,000 to £20,000. But legislation should be flexible enough to exclude activities which benefit many but cause insignificant environmental harm. I beg to move.

On Question, amendment agreed to.

[Amendment No. 280 not moved.]

Lord McIntosh of Haringey moved Amendment No. 280A: Page 82, line 35, leave out subsection (8).

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 282A. This amendment reflects a good deal of puzzlement in our minds as to the Government's intentions regarding the ways in which environmental health officers are supposed to enforce the statutory nuisance provisions in this part of the Bill.

Members of the Committee will recall that in discussing earlier parts of the Bill, we have not looked at the concept of best practicable means, which is included at subsection (8), but at the alternative formulations of BATNEEC—the best available techniques not entailing excessive cost—which is the Government's preferred solution or the solution which we prefer and which the Royal Commission on Environmental Pollution prefers; namely, the best practicable environmental option.

It may seem that those are merely words. However, it is interesting that having discussed this matter in Committee here and in another place, in Part III the Government have done what they threatened to do in Part I; namely, to retain the concept of best practicable means. That concept first entered into legislation in 1874. As one might expect of a concept which has been in existence for over 100 years, it has become ground down. It no longer has the necessary effectiveness. After one has been sharpening a knife for 116 years, one tends to gain in flexibility but lose in cutting power because the knife becomes too thin to sharpen any more.

Environmental health officers have been obliged to treat "best practicable means" as being an invitation not to enforce action against statutory nuisance but to negotiate with its perpetrators. In negotiation they have been obliged to consider such questions as: what is reasonably practicable? What is suitable with regard to local conditions and circumstances? What is possible with regard to the state of technical knowledge? Above all, and most dangerous, they have been obliged to consider what are the financial implications. Therefore, one tends to achieve not enforcement but compromise.

That is not the way in which we should be approaching statutory nuisance in 1990. It may not affect everyone, but those whom it affects are affected deeply. People who contact us because of floodlighting, burglar alarms ringing all night, emissions, noise from loud parties, fumes from motor vehicles or factories, or whatever, may not be a majority of the population but they are very angry people. They demand to be heard and the powers that they have evolved from legislation during the years are not adequate to protect them, otherwise they would not be so angry. I ask the Government why we are left with the 1874 formulation and why do we not have at least the BATNEEC formulation from Part I? Indeed, why do we not have the much better formulation of the best practicable environmental option which is preferred by Members on these Benches and by the Royal Commission on Environmental Pollution? I beg to move.

The Chairman of Committees (Lord Aberdare)

If this amendment is agreed to I cannot call Amendment No. 281.

Lord Renton

The expression "best practicable means", which is defined in Clause 76(8), occurs only in relation to the defence which is made available in Clause 77(7). As there is to be a defence that the best practicable means were used to prevent or counteract the effects of the nuisance, it is only right to define the expression. It is clearly defined and the important part is that: the test is to apply only so far as compatible with any duty imposed by law". I appreciate what the noble Lord said, but I believe that the Government are right in having the definition where it is.

The Earl of Arran

I am grateful for my noble friend's closing remarks. Perhaps I may spend a few minutes trying to enlighten the noble Lord, Lord McIntosh, on our intentions. These amendments raise the important question of the concept used to determine what practical limits should be placed on the obligation of an industry, trade or business to take steps to minimise statutory nuisance.

It does look odd to have two different definitions of what is essentially the same concept in different parts of the Bill; that is best practicable means (bpm) in Part III, and best available techniques not entailing excessive cost (BATNEEC) in Part I and Part VI. The noble Lord, Lord McIntosh, in Amendment No. 282A refers to yet another term of art; the best practicable environmental option (bpeo), which had its genesis in the 5th report of the Royal Commission on Environmental Pollution some 14 years ago.

Is there not, one might ask, a prime opportunity to do a bit of rationalisation and impose a standard definition throughout the Bill? We have looked very carefully at this, but have concluded, for reasons that I shall explain, that the apparently compelling argument for aligning the definitions is not so attractive when considered closely.

Best practicable means has been with us for a very long time. So far as we can tell, the term originated in a local law applying in Leeds in 1842—although the noble Lord said 1874—under which a fine could be imposed on offenders who had not used the best practicable means to prevent or abate smoke nuisance. Application of the term was progressively extended under the Alkali Acts and other provisions, including more recently the Control of Pollution Act 1974 and the Health and Safety at Work etc. Act 1974. Notes on best practicable means are published for a range of processes by HMIP and describe the treatment plant to be used and its maintenance, with methods of operation, and may also lay down presumptive limits for emissions. Bpm is an essentially dynamic concept, in that it can take account of advances in scientific understanding and pollution limits which can be tightened by HMIP to keep up with advances in abatement technology.

I rehearse this background because there is a great deal to be said for the maxim, "If it ain't broke, don't fix it". We consulted widely about the working of bpm in 1986 and the consensus was that, although changes were desirable in some areas, on the whole bpm was well understood by environmental health officers and should be retained.

BATNEEC is a rather different animal. It is a formulation used in EC directives—in effect the Continental cousin of bpm. But it has no firm basis in case law in this country or elsewhere, and it applies to cross-media pollution issues such as are addressed by Integrated Pollution Control (IPC) rather than the essentially local, one-off problems that bpm has been used to tackle.

Bpeo specifies the pollution control technology which is the best practicable means for the environment as a whole—considering the total impact on water, land and air pathways together. It does not encompass a judgment about the cost implications of a particular pollution prevention or reduction strategy. This could mean that the bpeo for a particular industry could be so expensive as to be uneconomic.

The effect of Amendment No. 282A would be that the only defence a business could have in a statutory nuisance case brought against it under the relevant provisions of Clause 76 would be that it was using bpeo. It would remove the current defence enjoyed by businesses—including thousands of local small firms—that they were using the best practicable means to contain pollution as laid down by HMIP and its predecessor agencies. This would be a very serious step and I hope the noble Lord, Lord McIntosh, understands our reasons for resisting this particular amendment.

Lord McIntosh of Haringey

It is certainly true that it would be a serious step; I do not deny that. But I am not convinced that the Government have shown in that reply a proper understanding of the balance between the need for proper continuity of response to those who are committing statutory nuisance. One must pity the sinner as well as the victim, and also consider the needs of those who are suffering from statutory nuisance.

The fact is that environmental health officers feel that they are acting with inadequate powers, and they spend a considerable amount of their time apologising to local residents for the inadequacy of their powers. One of the most difficult things is the accretion of interpretation of best practicable means, some of which is spelt out in Clause 76(8), which, I should say to the noble Lord, Lord Renton, applies to the whole of Part III of the Bill and not simply to Clause 77. Some of this ought to be dealt with by means of a definition which is more consistent with the rest of the Bill rather than just Part III. I will gladly give way.

Lord Renton

In view of what the noble Lord has just said, will he point out where else in this part of the Bill we find the expression "best practicable means", apart from Clause 77(7)? I cannot find any other reference to the phrase.

Lord McIntosh of Haringey

I was relying on the indication in Clause 77(8): In this Part 'best practicable means' … I confess I have not carried out a trawl of Part III of the Bill. If the draftsman had meant Clause 77(7) rather than this part of the Bill, I assume that he would have said so. It may be as well for me to withdraw that comment and study Part III of the Bill rather more closely. With those words I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12.30 a.m.

Lord Stanley of Alderley moved Amendment No. 281: Page 82, line 40, at end insert ("to the person responsible, and the size of any business conducted on the premises.").

The noble Lord said: I am getting badly out of my depth. I have great sympathy with the belief of my noble friend Lord Renton that this part of the Bill should be dealt with tomorrow. Some remarks have been made which give one quite a lot to think about, not least those of the noble Lord, Lord McIntosh, on his Amendment No. 271A.

The noble Lord was speaking of physical well-being. He did not define it; he almost got down to the fact that it was peace of mind and spiritual well-being. I do not think he or I would wish to enter into that debate tonight, especially in the absence of any right reverend Prelate. He was getting into a deep subject and we should perhaps look at the matter more clearly another time.

I raise that matter before turning to my amendment because I shall now deal with the completely opposite side of the picture, which, although not entirely supported by the Minister in response to the noble Lord's previous amendment, was slightly supported. I am a little lost tonight and feel that we are in fairly deep water.

Amendment No. 281 poses the question of whether the expression "best practicable means" takes into account the size and profitability of the business. I take as an example the small farmer, though similar situations will occur in relation to other small businesses such as those referred to by my noble friend. A problem will arise where the best practicable means for preventing a statutory nuisance for a large business could cost a relatively small amount in relation to that business but for a small business—I have in mind the family farm, but other small businesses would be in the same position—it would be impractical and might put the owner out of business, as my noble friend said in the debate on the previous amendment.

I therefore ask my noble friend whether "best practicable means" could be sensitive to the varying conditions between businesses. It is a Catch-22 situation. If my noble friend replies that "best practicable means" does not allow for sensitivity in size and profitability, it will be another nail in the coffin of the small business or the family farm; if the answer is the opposite, the neighbour to that business will not appreciate that the small farmer's pigs do not constitute a statutory nuisance though they smell as much as the large farmer's pigs.

I am muddled and should like some guidance on this complex matter. It is rather late to imbibe all that has been said. I beg to move.

Lord Hesketh

Clauses 77(7) and 79(5) provide that it shall be a defence to prove that the best practicable means have been used to prevent or to counteract the effects of a nuisance. This defence is available in the case of nuisances arising on industrial, trade or business premises and smoke nuisances arising from chimney emissions.

The purpose of Clause 78(8) is to define how the term "best practicable means" is to be interpreted. In particular, subparagraph (a) lists matters to which regard is to be had in deciding what is reasonably practicable. My noble friend wishes to add to this list and proposes there should be specific requirement for regard to be had to the person responsible and to the size of any business conducted on the premises.

In reply, I would say that the best practicable means definition in Clause 78(8)—which is derived from that employed for the noise provisions of the Control of Pollution Act 1974 and has stood the test of time well—has the merit of simplicity and flexibility and does not attempt to spell out every conceivable matter to which regard must be had. Subparagraph (a) lists certain matters to which regard is to be had but in doing so it includes the expression "amongst other things". The expression is certainly wide enough to enable a court to take into account the matters to which my noble friend refers in his amendment. As I have indicated, it may be an old and well-tried definition. But it has been around for years and there is no evidence that the terminology has caused problems for particular types of businesses.

Lord Stanley of Alderley

As I understand it, my noble friend is saying that the courts will be sensitive. I shall read very carefully what he has said. But if that is what he is saying, then it is what I want him to say. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 282 and 282ZA not moved.]

On Question, Whether Clause 76, as amended, shall stand part of the Bill?

Lord Renton

I gave notice to my noble friends on the Front Bench and to the noble Lord, the Lord Chairman, that I wish to make various comments on Clause 76. At the foot of page 80 of the Bill the clause begins by stating that, the following matters constitute 'statutory nuisances' for the purposes of this Part". That is a reference to Part III of the Bill. Therefore, surprise, surprise! When we come to subsections (2) and (3), the Bill has to be dovetailed with the Clean Air Acts of 1956 and 1968. I should disclose that when I was Parliamentary Secretary to the Ministry of Power I helped to pilot the Clean Air Act 1956 through another place so I have some recollection of what it does. I have also refreshed my memory.

Clause 76(1) is all right from the drafting point of view, but subsection (2) states that, Subsection (1)(b) above does not apply to"— various things such as— (i) smoke emitted from a chimney of a private dwelling within a smoke control area". That immediately raises a contradiction with the Clean Air Act. It is arguable that if we are going to legislate to bring the Clean Air Act up to date we should be making the whole country into a smoke-control area so that nobody is allowed to produce dark smoke from a chimney. I remind the Committee that subsection (1)(b) refers to, smoke emitted from premises so as to be prejudicial to health or a nuisance". We are then told in subsection (2)(i) that, smoke emitted from a chimney of a private dwelling within a smoke control area is not a statutory nuisance. That is what the Clean Air Act 1956 was all about. I am critical in particular of subsection (2)(iv) which states: dark smoke emitted otherwise than as mentioned above from industrial or trade premises". That is not a statutory nuisance either. I am merely complaining of the drafting. I feel very sorry for the draftsman at various parts of this Bill. He must have been under great pressure of time. He must have had elaborate instructions for drafting: it is a wonder he got it all down. As he has got it down, we might as well try to help him and others to get it right. For example, I suggest that subsection (3) could perfectly well read: Subsection (1)(c) applies only to private dwellings". Instead it has a double negative and reads: Subsection (1)(c) above does not apply in relation to premises other than private dwellings". That is not the best way to legislate. If we want the Bill to be a success it has to be read and, we hope, obeyed by ordinary people.

My problem with the presentation of the clause does not end there. Halfway down page 82 of the Bill we find: any expressions used in this section and in the Clean Air Act 1956 or the Clean Air Act 1968 have the same meaning in this section as in that Act"— it should read "as in either of those Acts"— and section 34(2) of the Clean Air Act 1956 shall apply for the interpretation of the expression "dark smoke". That is good. But I wonder whether my noble friends' study of the Bill—I know that they have had so much work to do on it—has enabled them to go forward to page 198 and Schedule 13 where various amendments are made to existing enactments.

In paragraphs 5 and 6 of Schedule 13 we find that the Clean Air Act is excluded for prescribed purposes. There is an amendment to the Clean Air Act purporting to achieve that purpose. I wonder whether my noble friends can tell me how that exclusion links up with Clause 76 of the Bill. I need not worry the Committee with paragraph 6 which deals with ordinary minor amendments. However, we need to have an explanation because, with such experience as I have, I just cannot find how we can reconcile subsection (1) of Clause 76, subsection (2) of the same clause and paragraph 5 of Schedule 13.

If my noble friends say that at this time of night they and their advisers cannot be expected to give a rational and full answer to the various questions that I am endeavouring to put, I shall understand. But at some time we must have an explanation. I hope that even at this late hour we may have one.

The Earl of Arran

I shall do my best. I am not absolutely certain that I shall be able to put to bed all my noble friend's concerns but perhaps an answer to a few of them will suffice at this time of night. He has my firm assurance that I shall most certainly write to him to explain more comprehensively the points on which he has anxieties.

The Clean Air Acts are our main legislation covering pollution by smoke, grit and dust from domestic and certain industrial sources. Nothing in Part III of the Bill essentially alters this legislation. My noble friend will be aware that Clause 76(2) spells out that Part III does not apply to smoke emitted from a private dwelling in a smoke control area under the Clean Air Acts. Dark smoke is also covered by regulations under the 1956 Act. Part III of the Bill relates to other matters. However, I appreciate that my noble friend is concerned to ensure that there is no conflict between this part and the Clean Air Acts. I can assure my noble friend that there is no such conflict and that the two sets of controls dovetail satisfactorily. Furthermore, Part I is intended to cover emissions from major polluting sources; that is, petro-chemical industries, large combustion plants such as electricity generating plants, and so on.

Processes scheduled for integrated pollution control under Part I emissions, such as smoke and dust, which otherwise might cause a statutory nuisance will be caught by the strenuous system of controls. If a process is not scheduled for IPC, it will be subject, like any other potential source of statutory nuisance, to the controls of Part III. Simply put, Clause 76 is extended from processes prescribed for control under Part I.

That reply may not have covered all my noble friend's anxieties, but, as I said, I shall certainly be writing to him to explain more fully.

12.45 a.m.

Lord McIntosh of Haringey

I do not want to detain the Committee. If the noble Earl is writing to the noble Lord, Lord Renton, I should be grateful for a copy of the letter.

The Earl of Arran

Yes, of course.

Lord Renton

I am grateful to my noble friend for his valiant attempt to explain the contradictions. The day after tomorrow—it cannot be sooner—I shall read in Hansard what my noble friend said. I may have to return to the matter on Report because it seems to me that subsection (2), even with the explanation given, is unnecessary nonsense. I shall reserve my opinion until I have read my noble friend's reply. Meanwhile, I no longer resist the proposition that Clause 76 should stand part of the Bill.

Clause 76 agreed to.

Clause 77 [Summary proceedings for statutory nuisances]:

[Amendment No. 282A not moved.]

Clause 77 agreed to.

Clause 78 [Supplementary provisions]:

Lord McIntosh of Haringey moved Amendment No. 282B:

Page 85, line 15, at end insert— ("(4A) An authority may make such reasonable requests for information of the owner or occupier of premises, or any person who is or appears to be causing a nuisance, and that person shall comply with such requests").

The noble Lord said: In moving this amendment, I speak also to Amendments Nos. 283A and 283B. These are relatively simple amendments. They deal with requests from local authorities to have the enforcement powers they consider to be necessary. Again, this is not a matter of local authority officers taking on paramilitary roles, having uniforms, or anything of that sort. However, it appears to the local authorities that when they have to request information from persons appearing to cause nuisances, or the occupiers of premises from which nuisances are being emitted (if that is the right construction) they should have power to see that the persons concerned comply with the request. That is the purport of Amendment No. 282B.

Amendment No. 283A simply adds to what they may take away under Schedule 3. In addition to samples, they may take away equipment and that seems to be a logical extension of the powers already provided in Schedule 3. Amendment No. 283B is again a matter of compliance with reasonable requests for information from people in occupation of premises to which entry has been sought. These are practical requests made on the ground by those with experience of enforcing the statutory nuisance legislation. I hope they will be received sympathetically by the Government. I beg to move.

The Earl of Arran

First, I take Amendments Nos. 282B and 283B. We do not consider that local authorities need these powers in addition to the powers of entry and inspection provided by Schedule 3. It would be wrong to provide further powers which could require a person to provide information that might be self-incriminating. Statutory nuisance relates to fairly simple matters such as smoke, smell or dust, and local authorities have all the inspection and information gathering powers they need. The tradition of statutory nuisance enshrined in legislation, which dates back many years, has been that it is for the local authority using its powers of entry as necessary to establish whether a nuisance exists.

The noble Lord's amendment, Amendment No. 283A, seeks to ensure that an authorised officer who has entered premises under the powers conferred in paragraph 2 of Schedule 3 may take away not only such samples or articles as he considers necessary for the discharge of any of the local authority's functions under Part III but also equipment. It is arguable whether the term "articles" used in subparagraph (4)(c) of paragraph 2 includes equipment. We are prepared to consider whether an amendment of the provision is needed to deal with the point raised by the noble Lord's amendment.

Lord McIntosh of Haringey

I am grateful to the noble Lord for that last comment. I shall, therefore, withdraw Amendment No. 282B with a good deal more alacrity than I shall show in not moving Amendments Nos. 283A and 283B. I shall read carefully what the Minister said. I do not believe that he will have satisfied those who have the day-to-day responsibility for enforcement of this legislation. I fear that an opportunity has been lost. However, in order to consider the matter further, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 283 not moved.]

Clause 78 agreed to.

Schedule 3 [Statutory Nuisances: Supplementary Provisions]:

[Amendments Nos. 283A and 283B not moved.]

Lord Graham of Edmonton moved Amendment No. 284:

Page 154, line 19, at end insert: ("Statement of right of appeal in notices 6. Where an appeal against a notice served by a local authority lies to a magistrates' court by virtue of section 77 of this Act, it shall be the duty of the authority to include in such a notice a statement indicating that such an appeal lies as aforesaid and specifying the time within which it must be brought.").

The noble Lord said: In the absence of the noble Lord, Lord Nathan, I move Amendment No. 284. At the same time, I should like to speak to Amendment No. 285. I must tell the Minister that I have had sight of the correspondence which has passed between him and the noble Lord. Having read it, I respectfully submit that the arguments contained in his letter of 20th June appear to a legal authority that I intend to quote to be fundamentally flawed.

The legal adviser to the noble Lord, Lord Nathan, said: I accept the view of the court in Bentham, relating to Section 94(2) of the Public Health Act 1936. Proceedings under that subsection are criminal because the magistrates' court has the option of imposing a fine. However, the structure of proceedings under Sections 58 and 59 of the Control of Pollution Act 1974 and Clauses 77 to 79 of the EPB is entirely different from that under Section 94(2) of the Public Health Act 1936. Under both Section 39(2) and Clause 79(2) of the Environmental Protection Bill the person aggrieved makes a complaint to the magistrates' court. If the court is satisfied that a nuisance exists or is likely to recur it must make a nuisance order which requires the defendant to abate the nuisance and/or prohibits its recurrence. If, but only if, the defendant contravenes that order without reasonable excuse, does he commit an offence: Section 59(4) and Clause 79(4). The procedure under Section 99 of the Public Health Act 1936 is different, in that the magistrates' court may impose a fine in addition to making the nuisance order: Section 94(2) of the Public Health Act 1936. The power to impose a fine under Section 99 proceedings means that they are criminal and must accordingly be commenced by way of information: Northern Ireland Trailers Limited v. County Borough of Preston (1972) 1 All ER 260; R. v. Newham Justices, ex parte Hunt (1971) 1 All ER 839 at 842. See also R. v. Inner London Crown Court, ex parte Bentham (1989). Conversely, proceedings under Section 59(2) of the Control of Pollution Act and Clause 79(2) of the Environmental Protection Bill do not empower the court to impose a fine at the stage where the abatement order is made. The proceedings are therefore civil. Appeals under Clause 77(3) to the magistrates' court against an Abatement Notice served by the local authority are clearly civil proceedings. An appeal under this clause has no relationship with the criminal proceedings envisaged by Clause 77(4) and (5). There is an equivalent procedure for appeals against noise abatement notices under Section 58(3) Control of Pollution Act 1974. Appeals lie from the magistrates' court to the Crown Court under Section 85(1). However, there is no comparable right of appeal against an abatement notice under Part III Public Health Act 1936. If the right of appeal to the Crown Court is not included in the Environmental Protection Bill, the only avenue of appeal will be by way of case stated to the Queen's Bench Division. In view of the pressures on the higher courts such a move would appear to be undesirable". That is why I move the amendment.

The Earl of Arran

I believe that I can be short on both amendments. Amendment No. 284 is acceptable to the Government. Amendment No. 285 raises a complex legal issue that we need to explore further, but in the meantime we are happy to consider it.

Lord Graham of Edmonton

I am more than grateful.

On Question, amendment agreed to.

[Amendment No. 285 not moved.]

Schedule 3, as amended, agreed to.

Clause 79 [Summary proceedings by persons aggrieved by statutory nuisances]:

Lord McIntosh of Haringey moved Amendment No. 285A: Page 85, line 30, leave out ("a complaint made") and insert ("an information laid").

The noble Lord said: I should like to speak also to Amendments Nos. 285B, 285C, 285D, 286A and 286B. Clause 79 has attracted the greatest amount of correspondence—for me at any rate—on the Bill other than the proposals for the NCC and dog registration. I say straightaway that the representations that have been made to me come from both sides of a dispute which is clearly an anguished one in parts of the country. Many members of tenants' associations and tenants' associations themselves have written to me expressing great concern that the provisions of Clause 79 take away the rights of tenants under the 1936 Act to take direct action in the courts to deal with repairs of damage to their property which amounts to a statutory nuisance. They say that Clause 79 has been drafted to weaken that right. It is an important part of their protection against landlords, and although the protection against landlords that was intended in 1936 was protection against private landlords, it is now much more against local authority landlords. That is one side of the case.

The other side of the case was put to me by local authorities, which are finding that under the 1936 Act tenants and their lawyers are using the provisions of that Act not merely to go to court—the local authorities do not complain about that—but to go to court without informing the local authority landlord that the repairs are necessary. The local authorities say—it is an allegation that I repeat for what it is worth—that there are lawyers who are doing that rather than seeking redress for the repairs because of the order for costs in their favour that they will obtain when they go to court.

It is difficult to find an amendment which will reconcile those points of view. I have considered the representations made to me and there are two outstanding points. First, it is wrong that complaints should be made to the courts without the local authority being notified and being given an opportunity to put matters right before court proceedings are taken. Otherwise we shall land up in the position where more money is being spent on court costs than on the repairs. Therefore I propose in Amendment No. 285B that there shall be, reasonable notice in accordance with subsection (1B) below specifying the nuisance and requiring the same to be remedied", served on the landlord or the person to whom the rent is normally paid. Since it is extremely difficult to calculate the reasonable period of notice—I am certainly not capable of doing so—we put on to the Secretary of State in subsection (1B) the responsibility of specifying the form and period of any notice by regulation. It is a trick which the Government have played many times and I am sure that they will not object to my shuffling off the responsibility on this occasion. I have no doubt that precedents are available to the Government and the department which are not available to me to determine what is useful.

That is one side of it. The other side of it is that there must be an obligation on the local authority. In other words, if notice has been served and the ability to go to the courts should not be taken away, the local authority or the other landlord must be obliged to take action as fast as is reasonably practicable to put things right.

The object of the exercise is not to take away the rights of tenants under this legislation but to ensure that those rights are exercised responsibly by giving notice to the landlord and giving a reasonable time for the matter to be put right before it goes to court. I do not know whether it is possible in the time that we have had to do this, to get the final form of words right, but I hope that the Government will recognise that we seek a reasonable balance on a very controversial issue. I hope that the Government will indicate that they understand the reasoning behind this and will aim for the same objective as ourselves. I beg to move.

1 a.m.

The Earl of Arran

Perhaps I may take first Amendments Nos. 285A and 285C. Amendment No. 285A appears to be a paving amendment for Amendment No. 285C. We suggest that the latter amendment is both misconceived and unnecessary. It is misconceived because it would insert provision for a fine at a stage in the proceedings when the matter before the court is whether a nuisance order should be made. An offence is not committed unless the requirements of the nuisance order are contravened or not complied with. The amendment is unnecessary because subsection (4) makes provisions as to penalties for such an offence.

On Amendment No. 285B, we understand the concern of local authorities that local authority tenants should be required to give notice to them before making a complaint to the magistrates' court in respect of housing defects alleged to constitute a statutory nuisance.

We are also aware of the judgment in the Sandwell v. Bujok case, which was that a local authority tenant has the right to go direct to court without first informing his landlord that a repair is needed and allowing time for it to be undertaken. One of the main arguments of the local authority in the Bujok case was that under the existing legislation in the 1936 Act, where proceedings are brought under Section 99, the effect of Section 94(3) is that, if it is proved that the nuisance existed or was likely to recur at the date of the making of the complaint, the court must make an order for costs in favour of the informant. There is no such automatic entitlement to costs under Clause 79. The normal discretionary rules on costs will apply.

In our view the new statutory nuisance code will remove any case there might have been for mandatory notice to be given to the person responsible for a nuisance before summary proceedings are commenced for a nuisance order. We consider that to impose such a requirement would complicate unduly what should be a simple and accessible procedure. In awarding costs a court can take account of the effort made by the complainant to identify the property owner (no trivial matter in some private sector cases), the notice given to the defendant and whether the nuisance existed at the time of the complaint.

We also understand that the local authority will usually have been informed that a complaint has been made, if the tenant has not given it any earlier notice. In the time lag that normally occurs between the making of a complaint and the court hearing it will have a period in which to rectify the nuisance.

We are happy to consider the proposal in Amendment No. 285D. Amendment No. 286A would provide for the mandatory award of costs to the complainant if it is proved that the nuisance existed or was likely to recur at the date of the laying of the information. We are not in favour of such a provision. Under Clauses 77 and 79, the normal discretionary rules on costs would apply. The Costs in Criminal Cases Act 1973 gives the court inherent jurisdiction to award costs in such cases, and we are advised that a court would not unreasonably refuse to do so. As regards Amendment No. 286B, we are certainly willing to consider the position.

Lord McIntosh of Haringey

That is a complex answer which deserves careful study. I am grateful to the noble Earl for referring to the Sandwell case. As he well appreciated, it was behind a number of my amendments. I am grateful for the understanding with which he has approached two at least of my amendments. It may well be possible to bring back the others in a form which would meet the Government's requirements and still meet the undoubtedly conflicting interests of those who have been in touch with us. We have never sought to reflect the views of those who make representations to us blindly, but we have sought to reach a reasonable compromise which reflects the conflicting interests of landlord and tenant. We shall read the noble Earl's reply with great attention before we decide in what form to bring our amendments back. As regards the amendments that the Minister is willing to consider sympathetically, we would welcome an opportunity to talk to him about them between now and a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 285B to 285D not moved.]

Lord Hesketh moved Amendment No. 286:

Page 85, line 45, at end insert: ("( ) Where more than one person is responsible for a statutory nuisance, subsections (1) to (3) above shall apply to each of those persons whether or not what any one of them is responsible for would by itself amount to a nuisance.").

The noble Lord said: Amendment No. 286 adds to Clause 79 a provision covering the situation where nuisances are caused by more than one person. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 286A and 286B not moved.]

Clause 79, as amended, agreed to.

Clause 80 agreed to.

Clause 81 [Termination of Public Health Act controls over offensive trades etc.]:

The Earl of Arran moved Amendment No. 287: Page 87, line 24, at end insert ("or business").

The noble Earl said: On behalf of my noble friend I wish to move Amendment No. 287 which is a minor technical amendment. It adds a reference to "business", being the Scottish equivalent of the term "trade" which is used for England and Wales, at the end of subsection (2) of Clause 81. I beg to move.

On Question, amendment agreed to.

Clause 81, as amended, agreed to.

Clause 82 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 eight minutes past one o'clock.