Lords Sitting of 15 October 1990

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Gloucester.

London: Strategic Planning
Lord Allen of Abbeydale Lord Allen of Abbeydale asked Her Majesty's Government:
Whether they have any plans to create an organisation with responsibility for strategic planning for London.
The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch): My Lords, the Government have no proposals for changing the existing land use planning responsibilities in London. The Secretary of State for the Environment issued strategic planning guidance for London last year and this provides the framework for the boroughs to prepare their new unitary development plans and to deal with individual planning applications.
Lord Allen of Abbeydale: My Lords, I thank the Minister for that reply. Is she not aware that many people from all quarters believe that something is wrong with the government of London? Is she not aware also that it is felt, not surprisingly, that sadly London is beginning to lag behind Paris and some of the other continental capitals? There is no clear, overriding planning authority for London, and in practice responsibility is split between a large number of local authorities, central government, a whole range of ad hoc bodies and myriad committees. Will the Government examine whether or not they have it wrong?
Baroness Blatch: My Lords, on behalf of the Government, I do not believe in the premise on which this Question is based—that is, that the plans to abolish the GLC and to put in place other arrangements are wrong. Strategic planning guidance is presented by government. Within that framework of guidance, unitary development plans are prepared by the boroughs. The London Planning Advisory Committee interfaces those two bodies, advises the Government and liaises with boroughs beyond the boundaries of London.
Lord Jenkin of Roding: My Lords, is my noble friend aware that strategic planning issues affecting London do not stop short at the boundary of Greater London, but can be addressed only in the context of the regional guidance which Secretaries of State for the Environment issue to SERPLAN from time to time? Do the terms of that guidance not demonstrate beyond peradventure that to create separate strategic planning for the City of London and the 32 London boroughs would do little more than add a layer of bureaucracy with no apparent advantage to anyone?
Baroness Blatch: My Lords, I am grateful to my noble friend because he brings us to the nub of the reason that the GLC is not alive and kicking today. This Question is more about the mechanics and not about policies and plans for London. I believe that my noble friend is right that planning does not stop at the borders of London. That is why we have set up a framework which starts with guidance for London but moves out, liaises and co-ordinates with planning well beyond the borders of London.
Lord Mellish: My Lords, setting aside party politics, if that is possible, perhaps I may ask this question. Is it not a fact that London, which I happen to believe is the capital city of the world, should have an authority of its own not only to deal with planning but also other matters such as housing? At present London is fragmented into a large number of boroughs which are politically divided. There is chaos throughout. Will the Minister do something about that and set up a proper authority? It is as simple as that.
Baroness Blatch: My Lords, I understand that it is the noble Lord's 52nd wedding anniversary today.
Noble Lords: Hear, hear!
Lord Mellish: My Lords, at least one marriage has worked for 53 years!
Baroness Blatch: My Lords, on behalf of the whole House, we hope that it continues to work for a long time.
The noble Lord raises housing issues. Those are better dealt with at borough level where there are people who know the locality. In terms of strategy, all the machinery is in place for matters which require a strategic overview to be dealt with within the framework of guidance by government, with the work of the LPAC and the individual work of the boroughs. After all, the LPAC is made up of the 33 London boroughs.
Lord Peyton of Yeovil: My Lords, without mourning the Greater London Council, can it possibly be true that there are between 30 and 40 co-ordinating committees, involving different authorities and different subjects answering to different people with different priorities? Is there not an urgent need to have somebody to co-ordinate the co-ordinators in order to take steps to avoid the congestion and muddle that is beginning to envelop London?
Baroness Blatch: My Lords, there are not 33 co-ordinating bodies, but 33 London boroughs which happen to be situated in London. Those boroughs are making good progress in their unitary development plans which are carried out in a framework of guidance which pertains to London. Cross-boundary problems are being sorted out. Government departments meet together on London issues. The Department of the Environment gives a leadership on those matters. The DoE liaises with the borough planning officers. Senior staff from the Departments of Transport, the Environment, Employment, Trade and Industry and the training agencies all meet to discuss London issues from time to time.
Lord Jenkins of Putney: My Lords, did not the Government abolish the GLC because they could not face the possibility of an authority in London whose policies may conflict with theirs? Is it not useless to expect the Government to create such a body unless they intend to bring into being yet another quango on top of all the other quangos so that ultimately they can all be one of us? The Government's policy of centralisation is madness. We know that. But they will not change it because it is a central part of their philosophy. Is that not the case?
Baroness Blatch: My Lords, I shall take the points in reverse order. The Question concerns devolution. The Government have devolved responsibility to the boroughs, not centralised it. Perhaps I may say that the reason for abolishing the GLC was that it was an ineffectual bureaucratic overlay on London government.
Lord Ezra: My Lords, even though the Government decided in principle against the creation of a new single authority for London, is there not a case for creating a single authority to deal with major specific issues? For example, it could deal with the subject of transport, which has been so often debated in your Lordships' House. Does not such an issue call for greater co-ordination? Waste disposal is another matter which was frequently discussed during the debates on the future of the GLC.
Baroness Blatch: My Lords, transport issues for London are dealt with at government level. There is a great deal of liaison among London boroughs on the strategic policy formulation which is produced at government level. Regarding waste management, if the noble Lord will bear with us, a considerable amount of time has been spent on the Environmental Protection Bill to do exactly what he is suggesting; that is, to produce a regional framework of guidance within which waste management is incorporated.
Baroness Faithfull: My Lords, if everything is going well within the 32 London boroughs regarding strategic planning, how is it that Lady Porter, the chairman of Westminster Council, is calling for an overall strategic plan to be agreed among the 32 London boroughs?
Baroness Blatch: My Lords, Lady Porter is among those referred to as one of many people; but I suspect that many more people believe that London government is better served without an overlaying bureaucratic structure. Lady Porter believes that there should be some overall promotion of London, and that is the view of just one person.
Lord Richard: My Lords, can the Minister think of one major city of the importance of London in any other country in the industrialised world which does not have a common administration?
Baroness Blatch: My Lords, the Question was whether the arrangements in place are right for London. We are discussing the mechanics of government, not the proper policies and planning for London. The arrangements in place need time to work. It is my view, and I am confident on behalf of the Government, that they will work.
Lord McIntosh of Haringey: My Lords, does not the Minister in all these replies reveal a blinkered view of what planning is? It is not simply a matter of land use. As other noble Lords have said, it is a matter of traffic and transport, and everybody knows that traffic and transport are in chaos in London. It is also a matter of homelessness and housing, and everybody knows that there are different standards, some of them very low, in different parts of London. It is, in addition, a matter which concerns the social structure of our city. All those considerations are missing from the present arrangements. That is why the city is going downhill.
Baroness Blatch: My Lords, strategic planning is dealt with by the Government presenting guidelines. Many of the issues mentioned by the noble Lord—in what I do not believe was a question—are still better dealt with at borough level. The boroughs know their locality best. Housing policy is certainly better dealt with at that level than at what would have been GLC level.
Lord Leatherland: My Lords, can the Minister give us an assurance that if and when any reorganisation of London takes place, London will not be allowed to grab large areas of Essex as it did last time?
Baroness Blatch: My Lords, that is another question on boundaries. If the noble Lord would like to table a Question I shall deal with it at the appropriate time.

Money-laundering: Government Action
2.47 p.m.
Lord Bruce of Donington Lord Bruce of Donington asked Her Majesty's Government:
Whether they will report progress on their efforts, at home and internationally, to prevent and detect the widespread practice of money-laundering.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Strathclyde): My Lords, the Government continue to attach high priority to combating drugs money-laundering, and various initiatives are in train. Internationally, negotiations on the draft EC Money-Laundering Directive are progressing and the Financial Action Task Force is being reactivated. The United Kingdom has also concluded bilateral agreements or arrangements with 17 countries to trace, freeze and confiscate drug trafficking proceeds. At home, co-operation between financial institutions and the authorities is making available an increasing amount of useful information. We are currently reviewing legislation on the confiscation of drugs proceeds and money-laundering.
Lord Bruce of Donington: My Lords, I am grateful to the Minister for his reply. But is it not the case that the measures being taken within the European Community will take quite a long time to fructify, leaving aside obtaining agreement on them? Mid-1991 was named as the date upon which some kind of agreement would be arrived at. Is the noble Lord aware that the 23-nation Council of Europe has

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already drawn up a convention due to be signed or become effective on 8th November which provides for very wide powers, including the inspection of bank records and so on, and for criminal offences? Would not the Government be well advised to explore that matter further with the Council of Europe, which has the additional advantage of including many Eastern states among its members?
Lord Strathclyde: My Lords, the noble Lord is quite right. The Council of Europe convention is important. It may well be open for signature at the meeting of Ministers of the Pompidou Group on 8th and 9th November. We are hoping to sign on that occasion should that prove to be the case.
Lord Cledwyn of Penrhos: My Lords, the Question refers to an extremely complex crime. Can the Minister say what resources the Government make available to the police authority to deal with it? Can he further tell the House how many qualified accountants, such as chartered accountants, are employed by the authority?
Lord Strathclyde: My Lords, I cannot answer the noble Lord the Leader of the Opposition specifically, but I can say that the Government appreciate that adequate resources are essential for effective enforcement. Staffing in this area has been increased over recent years, but this is not only a matter of staff numbers. Professionalism of enforcement officers, the use of modern technology and the use of intelligence are all essential in the fight against this dreadful crime. If the noble Lord requires further information on the exact numbers I shall have to write to him.
Lord Cledwyn of Penrhos: My Lords, I realise that intelligence is necessary but cannot the noble Lord tell the House whether any chartered accountants are employed to deal with such crimes?
Lord Strathclyde: My Lords, I assume that, since the enforcement officers are dealing with banks and accountants, they themselves would need to be well qualified.
Lord Bruce of Donington: My Lords, will the noble Lord undertake to provide, as soon as possible, the information requested by my noble friend? In the meantime, while welcoming the Government's intention of signing the convention, which I take it the noble Lord has confirmed today, can the noble Lord say when the whole matter will be brought before Parliament for ratification? If it is ratified, what is the point of pursuing matters further through the somewhat tortuous process of going through the Council of Ministers?
Lord Strathclyde: My Lords, of course I shall reply in greater detail to the noble Lord the Leader of the Opposition. As regards ratification, we are, of course, considering the convention in detail to ascertain whether or not any of its provisions will require amendments to primary legislation. If, as we think at the moment, that is not required, we hope to proceed to early ratification.

Crime Prevention
2.51 p.m.
Lord Mishcon Lord Mishcon asked Her Majesty's Government:
Whether they have any new policies to announce in order to deal with the recently announced record crime figures.
The Minister of State, Home Office (Earl Ferrers): My Lords, the Government will continue to pursue vigorously their policies to combat crime and to protect the public. The proposals in the White Paper, Crime, Justice and Protecting the Public will increase and enhance the courts' powers to deal effectively with offenders. The programme of crime prevention measures is continuing to expand, but effective action against crime will require a wholehearted commitment from the entire community; for example, in reducing the opportunities for crime.
Lord Mishcon: My Lords, will the noble Earl accept that his reply will be disappointing to many people who are very worried about the record crime rate figures? Perhaps I may remind the House of the 17 per cent. increase in the second quarter of this year compared with the same period last year. Were the Government not able to talk about greater police patrolling or about rehabilitation in the Answer to the Question? Is the noble Earl content with the Home Secretary's speech at the Tory Party conference—this side of the House would not have joined in the ovation—when issues of capital punishment, more severe sentences and cessation of parole in certain cases seemed to be the key-note of a very disappointing speech?
Earl Ferrers: My Lords, the noble Lord, Lord Mishcon, would not expect me to agree with his analysis of my right honourable friend's speech, which I thought was a masterly speech. The noble Lord, Lord Mishcon, took up one specific set of figures relating to the last quarter. One must be careful about taking one set of figures: one should take the annual figures from 12 months ago. The percentage increase of violent crime is, in fact, lower than the percentage increase of all crimes, which went up by 13 per cent. It is important to remember that much crime can be prevented. Nine out of 10 crimes are against property. Car crimes amount to one-quarter of all recorded crime, and 20 per cent. of all burglaries and all vehicle thefts are through unlocked and insecure doors and windows. While I regret greatly the increase in the number of recorded crimes, many of them are preventable by the public themselves.
Lord Donaldson of Kingsbridge: My Lords, the noble Earl's analysis is interesting. Does he not agree —I am sure he does—that the crime figures fall into two categories? One encompasses serious crimes, including violence, and the other covers petty crime. As the noble Earl said, serious crimes have not increased as much as petty crimes, and we can be pleased about that. Nobody in the penal reform world wants mercy for crimes of violence, but we can no longer afford the luxury of sending petty criminals to prison, particularly when the prisons to which they are

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sent are so utterly beneath decency. Therefore, I hope the noble Earl, in dealing with crime generally, will realise that there are matters, apart from the criminal aspect, which are hopelessly wrong and which must be put right.
Earl Ferrers: My Lords, the noble Lord, Lord Donaldson, puts his finger on a point on which the Government at least go some way in agreement. The courts will be encouraged to make a sharper distinction between serious and less serious crimes. The serious crimes will attract long prison sentences —which I believe even the noble Lord, Lord Donaldson, will approve of —with at least half the sentence being spent in custody. We believe that punishment in the community is far more suitable for property offenders.
The noble Lord referred to the two categories of serious and petty crime. I re-emphasise the point which he touched upon; that is, that serious crimes remain a constant percentage of all crime. Violent crimes against the person increased this year by 7 per cent. at 180,000; sexual offences increased by 4 per cent. to 29,000, and robbery increased by 5 per cent. to 33,000. Therefore, of the total of 4.2 million for all crimes, 242,000 were crimes of violence. I should like to add that the majority of those bad crimes are cleared up, three out of four sexual offences are cleared up, nine out of 10 homicides are cleared up and more than three out of four offences of violence against the person are cleared up.
Lord Parry: My Lords, can the noble Earl tell the House a little more about these figures and how they relate to the rural areas of Britain? Does he accept from me that these days the newspapers are heavy with reported crime in the rural areas of Wales? Is there any relation between that phenomenon and the fact that the chief constables of Wales complain that they are understaffed and unable to cope with their duties at present?
Earl Ferrers: My Lords, I cannot comment on specific parts of the country, other than to say that, while these matters have to be reported, sometimes people wonder whether the mere reporting of them stimulates action in others.
Lord Allen of Abbeydale: My Lords, the figures for reported crime are notoriously unreliable for a variety of reasons. Would it not be possible to arrange for the Home Office figures and the various police figures to be issued at the same time instead of allowing them to dribble out in a sort of alarmist crescendo over a period of time?
Earl Ferrers: My Lords, I will certainly look into that point, but getting statistics to appear when convenient and moving the dates when statistics appear is perhaps like moving Mount Sinai.
Lord Parry: My Lords—
Lord Donoughue: My Lords—
The Lord Privy Seal (Lord Belstead): My Lords, we have now exceeded the time that the Procedure Committee recommended should be allowed for Questions. Perhaps I may therefore suggest that we
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take two more questions from noble Lords opposite. The noble Lord, Lord Parry, had risen to his feet and the noble Lord, Lord Donoughue, has been seeking to put a question for some minutes. We should then move on to the next Question.
Lord Taylor of Blackburn: My Lords—
Noble Lords: Order!
Lord Taylor of Blackburn: My Lords, is the Leader of the House aware that Government answers have taken twice as long as questions from this side of the House?
Lord Parry: My Lords, I am grateful to the Leader of the House. I ask the noble Earl to accept from me that I was not quoting alarmist figures. I am, in fact, reflecting what I believe is the alarm and concern generally felt. Can the noble Earl, either now or in a letter to me, reply to my question about the complaints from chief constables that they are understaffed?
Earl Ferrers: My Lords, in deference to the noble Lord, Lord Taylor of Blackburn, the answer is "yes" to both noble Lords' questions.
Lord Donoughue: My Lords, bearing in mind that one area of expanding crime is the white collar crime of fraud in the financial sector, does not the noble Earl agree that the decision that has emerged this week to reduce the resources of the Serious Fraud Office by removing the position of one of the top three men —the deputy director—is inexplicable?
Earl Ferrers: My Lords, I think that that is an administrative point, but I shall certainly look into it.

Supercomputing Centres
3 p.m.
Lord Peston Lord Peston asked Her Majesty's Government:
What plans they have for the three academic supercomputer centres in the United Kingdom.
Lord Cavendish of Furness: My Lords, the general policy is at least to maintain the current overall level of supercomputing services. The Computer Board is currently in discussion with the University of London about new arrangements for securing an efficient and cost effective contribution to those services from the University of London Computer Centre.
Lord Peston: My Lords, I thank the noble Lord for his Answer. Is he aware what a pleasure it is for all noble Lords to see the noble Lord answering a Question for the first time from the Government Front Bench? We all wish him well.
I must declare an interest as a teacher at the University of London. Is it the case that the supercomputer centre at the University of London is in danger at the present time? It certainly costs more than other supercomputer centres, and I believe for very good reason. Pressure is being put on it to cut costs in a way which it may not be able to meet. Can the Minister say whether we might lose that computer centre? Is there any danger that that centre might be lost?
Lord Cavendish of Furness: My Lords, I thank the noble Lord, Lord Peston, for his kind wishes.
Recent studies have clearly demonstrated that the unit costs provision in the University of London Computer Centre is substantially higher than at Manchester University and at the Rutherford Appleton Laboratory Centres. The board and the department would be rightly criticised if they took no steps to bring the costs in line. Much depends on the University of London's response to the current negotiations. We understand that a decision is to be taken by the court on 17th October.
Lord Shackleton: My Lords, perhaps it is rather unfair to ask the Minister to answer a maiden Question of a very technical kind. However, is he aware that the services rendered by the supercomputer centres are totally different? Moreover, the London centre provides a service which is of the greatest value to the users. Is the Minister also aware that a comparable service is not provided on a similar scale by other centres? I do not know whether the Minister can say something about the Computer Board which is a servant of the department. Can he say how the board arrived at its decision without looking at the vast range of services provided by the London Computer Centre?
Lord Cavendish of Furness: My Lords, I recognise the point made by the noble Lord. Whatever changes may be necessary in the geographical location of provision of service, the intention would be at least to maintain the existing level of service nationally.
Baroness David: My Lords, is the Minister aware that Japan has 40 supercomputer centres; the United States has 25; Germany has nine; and that France and Germany have an academic computing power which is almost double that of Britain? Therefore, does he accept that this is not the right moment to reduce the services of one of our few computing centres? We do not want its work to be reduced but to be increased.
Lord Cavendish of Furness: My Lords, I thank the noble Baroness for those figures from other countries. I was not aware of them. Where efficiency reviews have been undertaken which affect the spending of public money, we cannot ignore the findings if it is shown that savings can be found. I repeat that there is no intention of reducing the provision. However, there is a requirement to make provision more cost-effective at the ULCC.
Lord Shackleton: My Lords, can the noble Lord say what is the estimated expenditure on supercomputers for this year, and what is predicted for the future? Will the Minister refer to the decisions of the Computer Board and discover how it arrived at its decision? It is very difficult to make effective comparisons between one supercomputer and another. Does the Minister not agree that the London Computer Centre is of particular importance to engineering and industry? The report from industry which has been received by the department suggests that it provides an essential service.
Lord Cavendish of Furness: My Lords, I am sure that the noble Lord will appreciate that I am rather
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new to the department. My information is that the other two centres are more cost-effective by a factor of two.
Lord Annan: My Lords, does the noble Lord not agree that unit costs are always going to be higher in London than in the provinces?
Lord Cavendish of Furness: My Lords, the figure I have given has already taken account of London weighting.
Lord Shackleton: My Lords, has the advice given by a representative of Shell been taken into account? Shell carried out a study and it decided that the London centre was very well run.
Lord Cavendish of Furness: My Lords, I have seen press comment to that effect. I do not think I can defend from the Dispatch Box anything that I have seen in the press.
Lord Shackleton: My Lords, but is it true?

Business
3.5 p.m.
Lord Denham: My Lords, it may be for the convenience of the House to know that the Report stage of the Environmental Protection Bill will be adjourned at about 7 p.m. for about one hour, and that during this adjournment the Second Reading of the Avon Light Rail Transit (Bristol City Centre) Bill will be taken.

Environmental Protection Bill
3.6 p.m.
Baroness Blatch: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Blatch.)
On Question, Motion agreed to.
Clause 78 [Statutory nuisances and inspections therefore]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 148:
Page 84, line 11, at beginning insert:
("() For the purposes of this Part, a statutory nuisance is any matter falling within subsection (1) below which is prejudicial to health or a nuisance to any person, or which adversely affects the personal comfort of any person or interferes with the enjoyment by such a person of their property, and (in the case of a nuisance arising under paragraphs (b)-(e) of subsection (1) below) shall be regarded as constituting local pollution within the meaning of Part I of this Act").
The noble Lord said: My Lords, I must learn not to move the first amendment after Question Time because I always have to start so slowly in order to gain the attention of those Members of your Lordships' House who are going to remain for the ensuing business. It makes it very difficult to pick up speed again afterwards.
Amendment No. 148 follows—but far from exactly —discussions which took place in Committee in which

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we sought to improve the definition and understanding of the extraordinary phrase "statutory nuisance". I suppose it is only to those of us who are inured to jargon that there is any suggestion that statutory nuisance can be accepted as a phrase in legislation. What does it mean? Statutory nuisance does not mean anything to the public at large who are in fact the victims of the infringement of the quality of their local environment.
It surely means something that should perhaps be called local pollution. I am encouraged by the words used at Committee stage by the noble Earl, Lord Arran, to think that the definition of statutory nuisance is inadequate. He said from the Government Front Bench:
"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".—[Official Report, 26/6/90; col. 1577.]
I thought that was very apt and that he had very helpfully extended the definition of statutory nuisance from the rather formal and incomprehensible definition which is used for the purpose of legislation. Therefore, I have taken the liberty of adopting his words in this amendment. I hope that he is not going to charge me royalties for it. It seemed to me that we could do no better than take the words of an experienced Parliamentary Under-Secretary of State for the Ministry of Defence in these matters and use them in the amendment now before your Lordships.
We are seeking to gain some understanding of what Part III of the Bill is about, and in a way that can be shared with the people affected by it. It may be that many of your Lordships are not too much concerned with definitions. However, as we go through the Bill it will be clear that the lack of definition of statutory nuisance and a decent comprehensible phrase to express that concept, means that the nuisances are very inadequately covered in Part III of the Bill. It will be seen from this afternoon's business that some of the definitions of these nuisances are extended by government amendments as well as by those tabled from this side of the House.
The Minister sought to create a distinction from the traditional definition. We are adopting his definition and putting it into the Bill. I suggest that in that way we are increasing the relevance of Part III of the Bill to the total Environmental Protection Bill; otherwise it is difficult to see what the provision is doing here. I hope that the Government will consider that the amendments are helpful, as is the intention, and extend our understanding rather than restrict or even change wildly the scope of the Bill. I beg to move.
Baroness Blatch: My Lords, there is no need to put on the face of the Bill the definition of a statutory nuisance contained in the first part of the amendment. There is the commonly understood meaning of what constitutes a statutory nuisance. It is grounded in a body of case law going back over 100 years.
The second part of the amendment seeks to provide that nuisance caused by various kinds of emissions
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shall be regarded as constituting local pollution within the meaning of Part I of the Act. That is also unnecessary because there is already provision in Clause 78 (9) for nuisances arising under subsections (1) (b), (1) (d) and (1) (e) to be dealt with under Part I of the Bill. The objects of the amendment are achieved in other parts of the Bill and I hope that the noble Lord will feel able to withdraw it.
Lord McIntosh of Haringey: My Lords, the Minister is extremely confident that there is wide understanding of the phrase "a statutory nuisance". I have no doubt that there is wide understanding among environmental health officers, perhaps even among magistrates and certainly among parliamentary draftsmen. However, if the Minister went out into the street and asked the first 10 people she met, or even took a proper sample of the general public in this country, what was meant by the phrase "a statutory nuisance", she would receive confused and confusing replies.
I am sorry that the Government do not feel able to treat this helpful suggestion with the seriousness that I believe it deserves. Clearly it is not a matter upon which we shall seek the opinion of the House and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 149:
Page 84, line 11, leave out ("and (3)") and insert ("to (5)").
The noble Baroness said: My Lords, this is a minor correction to the drafting of Clause 78. I beg to move.
On Question, amendment agreed to.
3.15 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 150:
Page 84, line 28, at end insert:
("(gg) the burning of any material (not otherwise falling within paragraphs (b) or (c) above) which when burned is prejudicial to health or a nuisance").
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 151 and 152. Although the amendments do not deal directly with the same subject, both concern defects in the definition of a statutory nuisance as offered in Clause 78. Amendment No. 150 relates to cable burning; Amendment No. 151 relates to floodlighting; and Amendment No. 152 relates to aircraft night noise.
I am sorry that the noble Lord, Lord Renton, is not in his place this afternoon because part of the thinking behind Amendment No. 150 arises from a comment that he made in Committee on 26th June 1990 at col. 1587 of the Official Report. Again, I do not know whether he will demand royalties from me. We had moved an amendment about cable burning and the noble Lord suggested that there should be a broader formulation creating a statutory nuisance in the burning of any material which would be prejudicial to health or a nuisance. In Amendment No. 150 we have defined a new form of nuisance as a catch-all for all types of burning which do not fall within subsections (1) (b) or (1) (c).
The Minister replied to the noble Lord, Lord Renton. In September the noble Baroness, Lady Blatch, sought to convince me that the definitions of this form of nuisance were adequate for the purpose. Noble Lords may recall that during Committee the problem of cable burning was debated. It tends to be carried out by those who buy cable for the purpose of extracting the metal and, having no other premises, burn it on lay-bys, for example. The issue was raised by a Conservative Member of Parliament from Norfolk who had received complaints about incidents in his constituency.
The problem with the existing definition of the nuisance of burning is that it relates to premises whereas public land of this kind is not a premise. A further problem is that there may be different kinds of cable burning. One can first strip out the valuable metal and burn the remainder or one can burn the cable in order to obtain the metal for recycling. That is admirable in itself but not when it causes dense smoke and a nuisance.
Letters that I received from Ministers sought to convince me that smoke was the only problem with cable burning. However, I suggest that, particularly when the cable is rubberised, the smell is a major problem and therefore a nuisance which defines dark smoke is inadequate to deal with that. I hope that on reflection the Government will consider that their definitions do not go far enough.
I raised the issue of floodlighting in Committee in response to objections from a constituent of the then Secretary of State for the Environment and MP for Cirencester and Tewkesbury. The gentleman suffered as a result of a neighbour's powerful floodlighting placed in such a position that the source of the light —that causing the most pain —was visible from his property and caused him a great deal of distress. In reply the noble Earl, Lord Arran, said that the Minister for Housing and Planning would look further at the adequacy of present planning controls. The amendment seeks to discover whether progress has been made. Are planning controls adequate for the purpose or is further action required, and if so what action?
Finally, I turn to aircraft night noise. Some noble Lords may consider that it is a more serious problem than noise from model aircraft which is the subject of a government amendment. For millions of people who live in the areas surrounding our major airports aircraft night noise is not only a nuisance but the overriding, overpowering nuisance. That is particularly so for people in south-west London and the surrounding countryside. In many cases the noise makes their life unbearable.
The amendment is modest and suggests that the Secretary of State should have the right by regulation to specify acceptable levels of intensity, decibel levels, and so forth. It is not an unfriendly or unhelpful amendment. It would be greatly welcomed by the millions of people who suffer from aircraft night noise and it would strengthen the hand of environmental
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health officers who must implement the statutory nuisance law. I hope that the Government will look favourably upon it and I beg to move.
Lord Jenkin of Roding: My Lords, I am not clear whether Amendment No. 150 extends to cover straw burning or whether that is covered in the Bill as it stands. There has been universal condemnation of straw burning as being a nuisance to a large number of people. It is to be banned in two years' time. That is extremely good news and a long way from the arguments that I had five years ago with the Department of Agriculture. However, far too much straw burning is still being carried out.
When I drew the matter to the attention of one of my near neighbours who is the county chairman of the NFU he drew my attention to an article that he was about to publish in the October issue of the Essex Farmer's Journal. In my view, it bears repetition. Therefore, if noble Lords will bear with me for a moment, I should like to repeat what Jim Padfield wrote about straw burning in his area.
The article reads:
"There is nothing that confirms the general public's view of farmers as vandals of the countryside so graphically as burning fields of straw. Essex NFU chairmen have been haunted by the public relations disaster of straw burning for 20 years, it even caused last year's chairman, normally a placid sort of fellow, to blow his top. I now know the reason why. The 'phone rings, it's Essex Radio, BBC Essex, the local papers, irate members of the public and, most distressingly, a pensioner whose wife has breathing problems. What can you say to any of them? It has got to the stage now that HQ send us a big pile of excuses in order to help us out of a muddle. 'There are only two more years then it's banned' or 'We have an NFU code of practice which is strictly enforced' (we all know that's rubbish) or one which is most popular this year with local farmers 'If the farmers did not burn the straw pyrotechnic members of the public will'. None of these `excuses' stand up to any intelligent scrutiny. Farmers have no right to fill other people's property with smoke and smuts. In my view it has to stop, we cannot afford another two years of straw burning".
So say, I hope, all of us.
However, what I need to know—I hope my noble friend will be able to help me—is this. Even though the situation will last for only two more years, is this straw burning a statutory nuisance or do we need Amendment No. 152 put forward by the noble Lord, Lord McIntosh, in order to bring it within the terms of the Bill? The practice has become an intolerable nuisance in many parts of the countryside and it is time, as Mr. Padfield said, for it to stop. Perhaps the procedures within this part of the Bill will provide one way to encourage those farmers who continue to burn straw to stop the practice forthwith.
Baroness Seear: My Lords, I do not want to be frivolous about the matter but could not the wording of Amendment No. 150 be used to describe cigarette smoking? The amendment refers to,
"the burning of any material (not otherwise falling within paragraphs (b) or (c) above) which when burned is prejudicial to health or a nuisance".
This is a serious question.
The Earl of Balfour: My Lords, I do not wish to add anything to the remarks of my noble friend Lord

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Jenkin of Roding. However, I should like to point out to him that the straw burning provisions do not, I am glad to say, apply to Scotland at present.
Lord Ross of Newport: My Lords, before the Minister replies, perhaps I may draw attention to the statutory nuisance provision contained in Clause 78(1) (d). I suspect that when the noble Baroness responds to the noble Lord, Lord McIntosh, she will probably say that the situation outlined in Amendment No. 150 is covered by that paragraph. However, am I right in saying that "other effluvia" is in fact noxious liquid?
I have a point to make which I made previously in this House. There is an enormous tyre dump, which is still burning, situated within two miles of my home. It causes many problems. Moreover, I suspect that effluvia and other nuisances are emanating therefrom. I hope that such a situation is covered by Clause 78(1) (d) of the Bill. I assume that tyre burning, where it gives off fumes, smoke and effluvia—which I assume to be a liquid—is caught by the provisions of this clause. I should like a reassurance on that point from the Minister.
Baroness Blatch: My Lords, I shall deal first with Amendment No. 150. Combustion processes which give rise to pollution are already adequately covered by existing or proposed controls. Under the Clean Air Acts there is already a sufficient armoury of controls over smoke emissions from premises, including open land, which are the primary pollutant in most cases of combustion. The emission of noxious fumes from prescribed processes will be controllable under Part I of the Bill. Local pollution from premises arising from fumes or gas emissions not controlled under Part I can be dealt with under paragraphs (c) and (d) of Clause 78(1). I trust that that deals with the point made by the noble Lord, Lord Ross. What this amendment would catch that is not already covered by existing controls under the Clean Air Acts or proposed controls under Parts I and III of the Bill would seem in practice to be confined to emissions from either moving or static sources on the public highway.
Under Road Traffic Act legislation there is already a well-established body of law to control vehicle emissions and we have announced further measures in the environmental White Paper. So far as concerns emissions arising from static sources on highway land, the noble Lord mentioned in Committee the problems which can arise from gypsies burning cable in road lay-bys. However, there is already legislation which can be applied here. Illegal cable burning is an offence under Section 78 of the Control of Pollution Act 1974 (COPA). We do not have any evidence that other sorts of emissions arising from static sources on highways land present any widespread problems—other than that mentioned by the noble Baroness, Lady Seear. If one takes the view that it is injurious to health, then one would say that it is probably caught by this clause. However, I await further advice from on high in respect of that question.
Before I conclude my remarks on this amendment, perhaps I may also point out to my noble friend Lord Jenkin of Roding that the specific ban is dealt with
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under Clause 142. Therefore, the code of practice will apply until the date of implementation. I gather from his remarks that he is not over-impressed with the code of practice or the way in which it operates. However, if there is a breach of the code, there is a penalty which applies. Local authorities should take action to ensure that local farmers adhere to the code of practice.
As my noble friend Lord Arran promised in Committee, I and my colleagues have given further consideration to the issues raised about floodlighting, which is dealt with in Amendment No. 151. We are not convinced that provisions should be included in the Bill to deal with floodlighting. First, we remain to be convinced that there is evidence that it is a widespread problem. Inquiries which officials have made of the Institution of Environmental Health Officers suggest that the average number of complaints received by local authorities was about six in a recent year. Moreover, the noble Lord's amendment is too wide-ranging in that the term "floodlighting" is not defined or limited in any way.
Some floodlighting installations may cause a measure of local distress but on the information available problems which cannot be dealt with by local negotiation appear to be few and far between. If there is an important issue we need to look carefully at what would be the preferable approach to deal with it: whether we should try to strengthen the existing planning controls or whether we should opt for the route of statutory nuisance control. We are not at this stage in a position to take firm decisions on this but I can assure the noble Lord that we intend to keep it under review and to look further into the floodlighting question outside the context of the Bill.
I turn now to deal with Amendment No. 152. The Government accept that aircraft noise, like any other noise source, needs to be controlled. But, as we explained in another place in Committee, in our view statutory nuisance legislation is not the most appropriate tool for doing so. As far as night-time flying of civil aircraft is concerned, my right honourable friend the Secretary of State for Transport has specific responsibility for the abatement of noise created by civil aircraft at airports that have been designated for noise control purposes under the Civil Aviation Act 1982. These are Heathrow, Gatwick and Stansted. There are already tough restrictions on the number and types of aircraft which can operate at night at Heathrow and Gatwick. These came into effect in 1988 and apply for five years. At other airports, management applies its own restrictions; for example, at Manchester and Luton. Night-time flying may also be restricted as a condition of planning consent, as is the case at Leeds Bradford Airport.
At smaller airports responsibility for noise abatement rests with airport management, which, in consultation with other interested parties, is best able to decide which measures are appropriate in local circumstances. Under the Civil Aviation Act 1982 airports can be required to have a consultative committee; forty-seven airports are so designated. The environmental White Paper announced that we are

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currently reviewing controls over aircraft noise to ensure that they afford sufficient protection to local people. Furthermore, the report of the Noise Review Working Party, whose scope was extended to include aircraft noise, is to be published very shortly.
Military flying, one has to accept, is intrinsically noisy. Pilots have to be trained and trained to fly at low level because that is what they would need to do in a combat situation. We can never be sure when our pilots may be called on to exercise those demanding skills, as the current situation in the Middle East has shown.
However, in recognition of the fact that noise can be particularly intrusive at night, my right honourable friend the Secretary of State for Defence authorises no more night low flying training than is absolutely necessary. There is a general lower limit of 150 feet for training, although limited and specially controlled flying down to 100 feet is permitted in three less densely populated parts of the country. Every effort is made to complete the flying programmes as early in the evening as possible, and in any case jet aircraft are not normally permitted to low fly after 11 p.m. and other flying after 11 p.m. is limited. Running engines on the ground is normally carried out during daylight hours only.
I can assure your Lordships that training during the hours of darkness is kept to a minimum and kept under constant review to ensure that it continues to meet our defence needs while at the same time keeping disturbance to the public to a minimum.
I shall say a word about the phasing out of noisy aircraft, which is an important issue in the debate. Flights by aircraft which do not meet basic international noise standards are already banned in this country and the next noisiest aircraft types will be gradually phased out by 2002 which will help to minimise both daytime and nighttime disturbance.
The noble Lord, Lord Ross, raised the matter of tyre dumps. They should be controlled by waste disposal site licence conditions which include liquid effluent.
3.30 p.m.
Lord McIntosh of Haringey: My Lords, having put down a mixed bag of amendments, I suppose I must expect a mixed bag of answers, which is what it was. I listened with great interest to what the noble Lord, Lord Jenkin, said about straw and stubble burning. As he has been told, that is dealt with by Clause 142. It was not intended to be covered by the amendment. I sympathise with him and those who complain. I am not reassured by the existence of a code of practice as he described its effect. I am not convinced—I may have misinterpreted the answer —that the Minister is right when she says that penalties exist for breaches of the code of practice. There are no legal penalties for breaches of the code of practice, unless I am much mistaken. There is likely to be two further years of the kind of difficulty described by the noble Lord, Lord Jenkin.
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On the point made by the noble Lord, Lord Ross, effluent is not just liquid; it is any exhaled substance. He will have heard the Minister's answer. I would not be satisfied if I were he.
I turn now to floodlighting. I am disappointed by the answer. It may not be a widespread nuisance now, but in view of the continuing increase in crime about which we heard in Question Time the use of floodlighting as a security measure is bound to increase dramatically. Therefore the nuisance to neighbours from floodlighting is also bound to increase. The fact that it has not yet been picked up as a widespread nuisance does not mean that action should not be taken. The position the Government take—waiting for it to become a widespread nuisance —is short-sighted. It would be better to anticipate an increase in floodlighting as a nuisance and be prepared to deal with it. This is the opportunity, above all, to deal with it. It is probably the only legislation dealing with statutory nuisance which will get on the statute book for 10 years. I am afraid that that answer is unsatisfactory.
With respect to aircraft night noise, it is not good enough for the Government to rely on self-regulation by what the Minister rightly described as interested parties. Airport managements are not likely to be on the side of local residents. They are on the side of making a profit. They make their profit by encouraging as many flights as possible. If that means encouraging night flights, they will do that so far as they can get away with it. I was interested in what the noble Baroness said about the forthcoming report of the Noise Review Working Party, but again I feel that the Government are losing an opportunity in this comprehensive review of statutory nuisance legislation to make the legislation more effective and to meet the anxieties of people who suffer attacks on their environment.
I am sorry about all those responses to all my amendments. People who suffer from those nuisances will also be sorry. I beg leave to withdraw the amendment.
Lord Clinton-Davis: My Lords, before my noble friend sits down, I apologise to the House because I was unavoidably detained. I wonder whether he is aware that successive governments, and those who deal with night flying from our main airports, especially those in the London region, come under great pressure from the operators, particularly during the summer months. As a distinguished chairman of the CAA, the noble Lord, Lord Boyd-Carpenter, will recall that fact. If the Government or the other authorities were to bend to those pressures—
Lord Harmar-Nicholls: My Lords, this is out of order. The Minister has answered. We are on Report.
Baroness Blatch: My Lords, perhaps the noble Lord will forgive me. He said, "Before my noble friend sits down". He is introducing a new point. He is not asking a question. I believe that the noble Lord is out of order.
Amendment, by leave, withdrawn.
[Amendments Nos. 151 and 152 not moved.]
The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran)The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran) moved Amendment No. 153:
Page 84, line 33, at end insert ("and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.").
The noble Earl said: My Lords, the purpose of the amendment is to clarify that local authorities are not only under a duty to inspect their areas from time to time to detect statutory nuisances but must take such steps as are reasonably practicable to investigate complaints made to them. It will, I am sure, be welcomed by the noble Lords, Lord McIntosh of Haringey and Lord Nathan, who moved amendments which had a similar purpose in Committee.
We have consulted local authority associations and other interested organisations and in general there was support for the principle of the amendment, which puts into effect a recommendation made by the Noise Review Working Party. I beg to move.
Lord McIntosh of Haringey: My Lords, it is true that we welcome the amendment and I am grateful to the noble Earl for moving it. It places a new duty upon local authorities because it means that it is more difficult for them to plead shortage of resources as a reason for not investigating a nuisance. The question must and will arise as the grant timetable winds its way through the parliamentary year as to how local authorities will have the resources to do the work. It is a welcome measure, but it is pointless unless the local authorities have the resources.
On Question, amendment agreed to.
The Earl of Arran The Earl of Arran moved Amendment No. 154:
Page 84, line 33, at end insert:
("() Subsection (1) (b) and (g) above do not apply in relation to premises—

(a) occupied on behalf of the Crown for naval, military or air force purposes or for the purposes of the department of the Secretary of State having responsibility for defence, or

(b) occupied by or for the purposes of a visiting force;

and "visiting force" means any such body, contingent or detachment of the forces of any country as is a visiting force for the purposes of any of the provisions of the Visiting Forces Act 1952.").
The noble Earl said: My Lords, the Government have brought forward the amendment because we have concluded that in certain circumstances, to which I will refer, the application of Clause 78 would impose constraints on the activities of the Ministry of Defence as they affect the defence of the realm. This clause places a duty on every local authority to inspect its area from time to time to detect, and under subsequent clauses to take action on, specified types of nuisance. The two types of activity which we wish not to apply to defence activities are smoke (Clause 78(1)(b)) and noise (Clause 78(1)(g)). The Ministry of Defence is currently exempt from all statutory nuisance legislation so that even with this amendment Part III of the Bill will increase the degree of legislative control to which it is subject.
It is not possible to ensure that the armed forces are properly trained and equipped without the generation
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of smoke and noise which may in certain circumstances constitute a nuisance. For instance, soldiers cannot be trained to be effective in wartime without realistic training exercises including smokescreens, tank manoeuvres and the firing of weapons. Similarly, the equipment which they use needs to be tested in the open, generating smoke and noise. The application of statutory nuisance legislation to such activities could place an intolerable constraint on them.
When I proposed this amendment last July understandable concern was shown in your Lordships' House and it was suggested that the exemption given to military premises could be abused. This is certainly not the intention. The Ministry of Defence has issued a policy statement to all its formations and those of the United States armed forces in the United Kingdom indicating the extent to which smoke and noise nuisance is constrained. Copies of this statement have been placed in the Library in response to a question from my noble friend Lord Swinfen.
The statement makes clear that domestic activities, which I may add include building work, hospital incinerators and standard industrial type processes, should not cause smoke or noise nuisances. Additionally, it places conditions on the generation of smoke or noise, where this is operationally necessary. The Government undertake to ensure that the letter and the spirit of this policy statement are followed at all times.
I therefore commend this amendment to your Lordships as placing the minimum constraint of the extension of nuisance legislation to the Ministry of Defence that is consistent with the interests of national security. I beg to move.
Lord McIntosh of Haringey: My Lords, let me at once acknowledge the truth of what the Minister has just said—that in general the Bill reduces the immunity on Crown property and the armed services. In so far as the immunity of the armed services from prosecution is part of a general policy, as with hospital kitchens, for example, we welcome it and we think that it goes in the right direction.
Perhaps I may also acknowledge that the Minister was good enough to write to me in September setting out in some detail the Ministry of Defence reasons for wishing to maintain this amendment. He also sent me a copy of the Ministry of Defence policy statement. I do not think he will be surprised to hear that I am not entirely happy with the answers that have been given.
In his letter, the Minister distinguished between essential operational and training activities of the armed forces and, presumably, non-operational activities. However, there is no definition of them in the amendment, nor is there really a definition of them in the policy statement. There is or ought to be a distinction between them but it ought to be made more clearly than it has been. No one could object to the use of smoke in the laying down of smokescreens or the use of fire in training firefighters. But smoke, fumes and smell can come from kitchens or burning rubble

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on Ministry of Defence property, just as much as from the same activities anywhere else. They ought to be covered more clearly.
The Minister has just given an undertaking—I hope wrote down correctly what he said—that this policy statement will be adhered to at all times. That reminds me a little too much of the code of practice on straw and stubble burning, which, as we have heard, is not adhered to at all times even if it is widely understood. Surely it would have been possible for the Government at least to agree to an amendment saying that regard would be paid to this policy statement in controlling statutory nuisance from defence premises. As it is, I am afraid that the definition of what is allowed on defence premises is far too wide, as the noble Lord, Lord Renton, said at Committee stage. The protection of the policy statement is far too limited. I am disappointed that the Minister has seen fit to come back with exactly the same amendment and has not taken advantage of the intervening period to produce a better one.
Lord Tordoff: My Lords, can the Minister assist us on paragraph (b) of Amendment No. 154 relating to visiting forces? He relies heavily on the observation of the code of practice. How can he be sure that visiting forces will observe the code of practice which has been laid down?
3.45 p.m.
Lord Ross of Newport: My Lords, before the Minister replies, in happier times I would have pleaded that we should do something about low flying aircraft. I live in an area where noise from aeroplanes is absolutely appalling; that is, the upper Teme valley. They come over every day. I realise that at the moment that is not a popular comment to make because pilots need to practise. However, presumably the Bill will have to stand the test of time for many years and we hope that there will not be a crisis in the Middle East or anywhere else in a few years' time.
On behalf of those people who have to live in areas like mine where low flying aircraft such as fighters and bombers come in very low indeed, frightening the life out of us, I plead that some protection should be written into the Bill on this point.
The Earl of Arran: My Lords, with the leave of the House, perhaps I may first reply to the points made by the noble Lord, Lord McIntosh. To refresh his memory, I said:
"The Government undertake to ensure that the letter and the spirit of this policy statement are followed at all times".
I particularly draw your Lordships' attention to the policy statement issued by the Minister of Defence. I apologise if noble Lords do not have a copy. Paragraph 4 says:
"We take great care, therefore, to ensure that we strike a balance between the need to maintain the operational effectiveness of the Armed forces, with the need to protect the environment and to be a good neighbour".
That is the whole point of the paragraph in the policy statement and it also answers the noble Lord, Lord Ross. Of course there is some irritation at times about low flying. The Ministry of Defence is always acutely and increasingly aware of it. I can say to the
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noble Lord, Lord Ross, that it is our intention, particularly at the moment, that the armed forces should march with the environment. That is important. However, at the same time I am sure that your Lordships will understand that in order to have fit and well trained men the forces must be able to train in the normal way.
In answer to the noble Lord, Lord Tordoff, in regard to visiting forces, as I said when I proposed the amendment, the policy statement has been sent to the general commanding the United States air force in this country, General Anderson. I know that he is aware of it and will do his best to ensure that it is carried out. I hope that answers the points raised.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 155:
Page 84, line 33, at end insert:
("(1A) A local authority may where it considers it desirable, cause its area to be inspected from time to time to detect smoke other than smoke to which subsection (1) (b) above applies, and may in respect of smoke emitted from a vehicle which it considers harmful to the environment notify the relevant chief officer of police for the purposes of prosecution").
The noble Lord said: My Lords, first perhaps I may say what is meant by,
"smoke other than smoke to which subsection (1) (b) above applies".
As the following provisions of the amendment make clear, we refer to smoke coming from vehicles. I do not believe that anyone doubts that smoke from vehicles is a major source of pollution and a danger to health. The problem is that no one seems prepared to do anything about it. It falls between two stools. If one complains to the police about it, the police say that it is up to the local authority; if one complains to the local authority, it says that it is the responsibility of the police. That failure was reflected but not resolved in the debates which we had on the subject at Committee stage.
I do not blame the police for giving a higher priority to road safety or the enforcement of traffic laws. After all, they are not particularly well qualified to deal with smoke emissions from vehicles. It is a technical subject which is much closer to the responsibilities of the local authorities. I do not altogether blame the local authorities for fearing to take action on smoke from vehicles, because they need police powers to stop a vehicle if they are to take effective action.
No one is to blame for this situation except the Government, who are to blame for not putting it right. They have the opportunity to achieve co-operation between local authorities and the police to get rid of what is a most unpleasant and widely detested statutory nuisance. The amendment is intended to be entirely helpful. It seeks to give local authorities the power to draw to the attention of the relevant chief officer of police for the purposes of prosecution smoke that is emitted from vehicles.
I venture to suggest that this way forward might well be a suitable mechanism for the future for other forms of statutory nuisance. The same problem as

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regards the need for technical expertise combined with enforcement powers applies to other statutory nuisances. I believe this is a helpful suggestion which the Government should take seriously. It will not be good enough for the Government to say that everything is well. Everything is clearly not well and the nuisance continues unabated. The law should be capable of putting the matter right. I beg to move.
The Earl of Arran: My Lords, I have to disappoint the noble Lord because the Government's reply is that help is at hand. The Government consider that everything is well. I wish to explain briefly why we believe this to be the case.
There is already a considerable body of law to control vehicle emissions. Construction and use regulations made under powers granted to the Secretary of State for Transport under the Road Traffic Act 1988 lay down standards for emissions of fumes, gases or smoke from vehicles. They are the appropriate way of controlling these matters. We have announced further proposals on vehicle emissions in the environmental White Paper.
There are several arms of enforcement to deal with excessive emissions from vehicles. The first area of responsibility for day-to-day enforcement lies with the police. It is an offence to use a vehicle which emits smoke of such a density that it is likely to cause danger under the Road Vehicles (Construction and Use) Regulations 1986, Regulation No. 61.
Additionally, the police co-operate from time to time with the Department of Transport's inspectors to conduct roadside checks on the condition of vehicles, especially heavy goods and public service vehicles. The Government cannot support the idea of local authority officers being given the power to stop vehicles in the street. The Department of Transport's vehicle inspectors do not have this power either. It is restricted by the Road Traffic Act 1988 to uniformed police officers. Apart from the obvious reasons to do with civil liberties, it is not safe for a person in civilian clothes to attempt to stop a moving vehicle on a public highway. But having said that, it is already open to local authorities to take the kind of action envisaged by this amendment. Indeed, environmental health officers are probably among the best qualified to help the police by providing evidence of a good quality to support a prosecution. I might add that the noise review to be published shortly will have some things to say which are relevant to the question of making best use of the expertise of environmental health officers. It is for those reasons that I ask your Lordships to reject the amendment.
Lord McIntosh of Haringey: My Lords, that is a totally unsatisfactory answer. I wonder whether the ministerial car which the Minister uses is completely insulated from the outside world, or whether he ever leaves his car. I wonder whether he has been on the streets, at any rate of London, in recent years. It is obvious that enormous numbers of vehicles are breaking the construction and use regulations and emitting smoke and noise which are of a quantity that breaks the law. No one is saying that the construction
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and use regulations are wrong or that powers do not exist. What we are saying is that no one is enforcing the regulations or the powers. No one has the necessary range both of technical skill and of authority to enforce the regulations and see that the law is not broken.
The amendment does not state that people in civilian clothes should stop moving vehicles. It states that they should notify a relevant chief officer of police when they have detected smoke which is in breach of the law. That means that people observe the smoke and take the number of the vehicle concerned. It means nothing more or less than that. It does not mean that they stop the vehicle. I do not think that the Minister can be serious in thinking that the enforcement of the law at present is adequate to the purpose. If the Minister is adamant that he will not accept this modest gesture to improve co-operation between local authorities and the police, I have no choice but to seek the opinion of the House.
3.55 p.m.
On Question, Whether the said amendment (No. 155) shall be agreed to?
Their Lordships divided: Contents, 69; Not-Contents, 118.

Division No. 1

CONTENTS

Addington, L.

Mayhew, L.

Ardwick, L.

Mellish, L.

Aylestone, L.

Meston, L.

Birk, B.

Mishcon, L.

Bonham-Carter, L.

Morris of Castle Morris, L.

Bruce of Donington, L.

Morton of Shuna, L.

Cledwyn of Penrhos, L.

Mulley, L.

Clinton-Davis, L.

Nathan, L.

Cocks of Hartcliffe, L.

Nicol, B.

David, B.

Northfield, L.

Donaldson of Kingsbridge, L.

Ogmore, L.

Ennals, L.

Parry, L.

Erroll, E.

Pitt of Hampstead, L.

Ewart-Biggs, B.

Richard, L.

Ezra, L.

Robson of Kiddington, B.

Falkland, V.

Rochester, L.

Gallacher, L.

Ross of Newport, L.

Galpern, L.

Sainsbury, L.

Gladwyn, L.

Seear, B.

Graham of Edmonton, L.

Serota, B.

[Teller.]

Shackleton, L.

Hampton, L.

Shepherd, L.

Hanworth, V.

Stallard, L.

Hatch of Lusby, L.

Stedman, B.

Houghton of Sowerby, L.

Stoddart of Swindon, L.

Jenkins of Putney, L.

Strabolgi, L.

John-Mackie, L.

Taylor of Blackburn, L.

Kinloss, Ly.

Thurlow, L.

Kissin, L.

Tordoff, L. [Teller.]

Listowel, E.

Underhill, L.

Llewelyn-Davies of Hastoe, B.

Wallace of Coslany, L.

Lloyd of Hampstead, L.

White, B.

Longford, E.

Williams of Elvel, L.

McIntosh of Haringey, L.

Wilson of Rievaulx, L.

Mason of Barnsley, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aldington, L.

Balfour, E.

Alexander of Tunis, E.

Belhaven and Stenton, L.

Allerton, L.

Beloff, L.

Ampthill, L.

Belstead, L.

Arran, E.

Bessborough, E.

Astor, V.

Blatch, B.

Auckland, L.

Blyth, L.

599

Boardman, L.

Macleod of Borve, B.

Bolton, L.

Malmesbury, E.

Borthwick, L.

Mancroft, L.

Boyd-Carpenter, L.

Margadale, L.

Brabazon of Tara, L.

Merrivale, L.

Brougham and Vaux, L.

Mersey, V.

Butterworth, L.

Mountevans, L.

Byron, L.

Mowbray and Stourton, L.

Campbell of Alloway, L.

Munster, E.

Campbell of Croy, L.

Murton of Lindisfarne, L.

Carnegy of Lour, B.

Nelson, E.

Carnock, L.

Norfolk, D.

Cavendish of Furness, L.

Norrie, L.

Cawley, L.

Nugent of Guildford, L.

Constansine of Stanmore, L.

Orkney, E.

Cottesloe, L.

Oxfuird, V.

Cullen of Ashbourne, L.

Pender, L,

Davidson, V. [Teller.]

Penrhyn, L.

Denham, L. [Teller.]

Porritt, L.

Eccles of Moulton, B.

Reay, L.

Effingham, E.

Rees, L.

Ellenborough, L.

Renton, L.

Elles, B.

Rippon of Hexham, L.

Erroll of Hale, L.

Rodney, L.

Faithfull, B.

Saint Albans, D.

Ferrers, E.

Saltoun of Abernethy, Ly.

Flather, B.

Selkirk, E.

Foley, L.

Shannon, E.

Fraser of Kilmorack, L.

Slim, V.

Gainford, L.

Stanley of Alderley, L.

Gibson-Watt, L.

Strange, B.

Gray of Contin, L.

Strathcarron, L.

Gridley, L.

Strathclyde, L.

Grimston of Westbury, L.

Strathmore and Kinghorne, E.

Harmar-Nicholls, L.

Swinfen, L.

Havers, L.

Terrington, L.

Henley, L.

Teviot, L.

Hives, L.

Thomas of Gwydir, L.

Hood, V.

Thorneycroft, L.

Hooper, B.

Tranmire, L.

Howe, E.

Trefgarne, L.

Hylton-Foster, B.

Trumpington, B.

Jenkin of Roding, L.

Ullswater, V.

Johnston of Rockport, L.

Vaux of Harrowden, L.

Kimball, L.

Wade of Chorlton, L.

Kinnaird, L.

Weir, V.

Long, V

Westbury, L.

Lothian, M.

Whitelaw, V.

Lucas of Chilworth, L.

Wise, L.

Lurgan, L.

Wynford, L.

McColl of Dulwich, L.

Young, B.

Mackay of Clashfern, L.

Resolved in the negative, and amendment disagreed to according.
4.3 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 156:
Page 86, line 4, leave out subsection (8).
The noble Lord said: My Lords, in moving Amendment No. 156 I should like to speak also to Amendment No. 159. There is a risk that in the consideration of the Bill we may be thought to be involving ourselves in theological distinctions. The phrases used in the Bill to describe the obligations on those who may be responsible for pollution and those responsible for environmental protection as between best practicable means, best practicable environmental option or best available techniques not entailing excessive cost may be thought to amount to an argument about how many angels can dance on the head of a pin. I hope that that is not the case because there are real distinctions which deserve proper consideration.
Noble Lords will recall that the concept of the best practicable environmental option is that which is preferred by the Royal Commission on Environmental Pollution, and the principle of BATNEEC (best available techniques not entailing excessive cost) is the definition which is preferred by the European Community, though Government Ministers tend to sneer at that alternative—except when they use it—by describing it as a definition which has no firm basis in case law in this country or elsewhere. Ministers have sought to argue that the BATNEEC principle is suitable for large-scale pollution under the integrated pollution control provisions of Part I of the Bill but not for the local problems which are tackled in this part of the Bill.
At Committee stage the noble Lord, Lord Stanley, said quite rightly that the size of the business is not the proper consideration in describing or identifying what is wrong and what should be done to put it right. He asked whether the best practicable means definition, which is used here, is sufficiently sensitive to the varying conditions which apply to businesses. He said that unless we were sensitive there could be serious results for small businesses. The noble Lord, Lord Hesketh, who was then the Minister concerned, said that the expression "best practicable means" was flexible and wide enough to enable the courts to take into account the matters to which the noble Lord, Lord Stanley, referred. Therefore, it is a flexible standard which environmental officers negotiate with the polluter as to the standard which his equipment is to reach. That is what is generally understood, but it is not what was said by the noble Earl, Lord Arran, when he responded to the amendment.
We want more clarity from the Government on this matter. If the best practicable means is a flexible standard does it mean anything at all? If BATNEEC is a procedure which has no basis in case law in this country how is it to be enforced? We are asking the Government in response to the amendment, on which I do not propose to divide the House, to give an account of the difference between the standards which they apply in Part III of the Bill for local pollution or statutory nuisance and the standards which they apply in Part I.
If it is true that the defence for statutory nuisance is to be at a different level from the defence against breaches of integrated pollution control how are we to be sure that the Government will not be heavily influenced by the interests of polluting business and how are we to be sure that the more flexible standard which is proclaimed in Part III will be enforced? I hope that the amendment gives the Minister an opportunity to reply and make matters clearer than the Government have succeeded in doing so far. I beg to move.
Lord Stanley of Alderley: My Lords, as my name has been mentioned I should like to correct one minor point that the noble Lord made. It was my noble friend Lord Hesketh who replied, at col. 1594 of Hansard, on the earlier occasion on the subject of small businesses.

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I join the noble Lord in asking for clarification. The reply that I was given was that environmental health officers would look carefully if a small business was involved. I shall be interested to hear again what my noble friend has to say on this question because it is a valid point.
The Earl of Arran: My Lords, as the noble Lord, Lord McIntosh, said, the amendments raise once more the proposition that the concept of best practical means (bpm) in Part III should be replaced by the concept of best available technology not entailing excessive cost (BATNEEC), which is the formulation used in Parts I and VI. The noble Lord argued in Committee for the adoption of a standard definition throughout the Bill.
The Government see no need to repeat the arguments put forward in Committee against the proposition. In our opinion they remain valid. I should just re-emphasise one aspect. The bpm defence is a robust concept which has survived so long because of its simplicity. It is familiar to and well understood by the courts and businesses of all types and sizes. It is an unsophisticated concept which seeks to minimise damage to the environment without crippling industry. It is also a flexible and dynamic concept which can take account of scientific progress and advances in abatement technology. In the context of Part III we see no advantage in changing to a different formulation such as BATNEEC.
I should add that BATNEEC is the formulation used in European directives. It is more applicable to the cross-media pollution issues addressed by Integrated Pollution Control (IPC). Unlike bpm, it has no firm basis in case law in this country or elsewhere.
For those reasons, which were outlined in Committee and which I hope have been slightly expanded upon today, we ask your Lordships to reject this amendment.
Lord McIntosh of Haringey: My Lords, I noticed that in his reply the Minister did not even seek to answer the questions which arose about the enforceability of the different standards. Certainly I understand with regret that the Government are determined to have different standards for different forms of pollution. That is why we did not bring back at Report stage the same amendments that we moved in Committee.
I do not feel that the Government have been as helpful as they might have been in responding to this short debate. I do not think that matters are as clear as they ought to be. The Minister referred to "best practicable means" as a crude concept. That may well be the case but I should have thought that legislation of this kind offers an occasion to impose something which is clearer rather than a crude concept which is simply bolstered by many years of case law. That is notoriously an area in which lawyers make their money and local authorities waste time and resources in the courts, very often not achieving their objective.
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However, clearly we shall not make any progress on this matter.
The Earl of Arran: My Lords, perhaps I may put the noble Lord, Lord McIntosh, right on one point. I did not in fact use the word "crude". I used the word "robust". I said that the bpm defence is a robust concept which has survived so long because of its simplicity.
Lord McIntosh of Haringey: My Lords, I withdraw the word "crude". The noble Earl may have used the word "unsophisticated" or something of that kind. He said something to that effect which indicated to me that this was not as powerful a weapon as it ought to be. As I said, clearly we shall not make progress. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 79 [Summary proceedings for statutory nuisances]:
[Amendment No. 157 had been withdrawn from the Marshalled List.]
[Amendment No. 157A not moved.]
Lord Ross of Newport Lord Ross of Newport moved Amendment No. 158:
Page 87, line 22, at end insert:
("() Where on hearing an information under subsection (4) above it is proved that the alleged nuisance existed at the date of the service of the abatement notice and that at the date of the laying of the information it either still existed or was likely to recur, then, whether or not at the date of the hearing it still exists or is likely to recur, the court shall order the defendant to pay to the local authority such reasonable sum as the court may determine in respect of the expenses incurred by the authority in, or in connection with, the service of the abatement notice and the proceedings before the court.").
The noble Lord said: My Lords, my amendment is grouped with three others which cover slightly different points. One of them is a government amendment, one stands in the name of the noble Lord, Lord Byron, and the third in the name of the noble Lord, Lord Nathan. I wonder whether, in view of the fact that her amendment comes second in this grouping, the Minister would prefer to reply at the end of the debate. I suggest that it might be simpler to deal first with the other three amendments. Would that be acceptable?
My amendment concerns the local authority being able to recover costs, whereas the other amendments (which I think must be of rather greater importance, judging by the number of letters that we have received from solicitors, and in particular those in the London area, who are very concerned about the fact that this Bill supersedes Section 94(3) of the Public Health Act 1936) are slightly different and relate to fines and appeal procedures.
This amendment seeks to ensure that a local authority is entitled to recover the costs of bringing abatement notice proceedings even if the defendant shows that he is using the best practicable means to abate the nuisance. I suggest that this is only fair, because his operations are still causing a nuisance, while the facts that lead a court to find proved best practicable means may not be available to the authority. The amendment gives effect to the polluter

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pays principle. It is a slightly amended version of the provision which appears in Section 94(3) of the Public Health Act. I beg to move.
4.15 p.m.
Baroness Blatch: My Lords, Amendment No. 158 seeks to carry over provisions similar to those in Section 94(3) of the Public Health Act 1936 by virtue of which the award of costs can be mandatory if it is proved that the nuisance existed both at the date of service of the abatement notice and at the date that proceedings were instituted.
We cannot support this amendment. In the context of action by local authorities we consider the mandatory costs provision must be regarded as archaic and obsolete. It is true that we have accepted the need for mandatory costs in the case of actions brought by private individuals under Clause 81 and we are bringing forward an amendment to Clause 81 accordingly. We have done that because of the implications of the Sandwell v. Bujok judgment and because the resources of people such as, for example, housing tenants who take action under Clause 81 may be limited. They could be put off taking action unless they are reasonably sure of being awarded costs.
A comparable mandatory provision is not justified for local authorities which have greater resources and the legal staff which should enable them to decide whether or not prosecutions are likely to be successful.
I turn to Amendments Nos. 160 and 165A. I am sure that Amendment No. 160, which we have brought forward, will be welcomed by the noble Lord, Lord Nathan. It is intended to meet the concern expressed in Amendment No. 285 which he moved at Committee stage. Having considered this matter further, we are persuaded by the noble Lord's view that proceedings under Clause 79(3) are civil and not criminal in character. The government amendment, Amendment No. 160, is therefore necessary to provide for a right of appeal to the Crown Court in respect of decisions of magistrates' courts on appeals made to them under Clause 79(3).
However, we are indebted to the noble Lord for his perspicuity and for bringing to our attention by Amendment No. 165A the point that Amendment No. 160 does not go far enough. We accept that there also needs to be provision for an express right of appeal to the Crown Court against the decision of a magistrates' court under Clause 81(2) on a complaint, made to them by a private individual for a nuisance order. The noble Lord's amendment achieves this effect and we are therefore delighted to be able to accept it.
Turning to Amendment No. 162A, the issue raised by this amendment has arisen previously. It was discussed when a similar amendment, Amendment No. 285C, was brought forward in Committee by the noble Lords, Lord McIntosh of Haringey and Lord Ross. We see no reason to alter our view on this point. We consider that the proposed amendment to Clause 81 is both misconceived and unnecessary.
The amendment is misconceived because it would insert a provision for a fine at a stage in the proceedings when the matter before the court is
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whether a nuisance order should be made. The correct time for a fine to be imposed is after a criminal offence has been committed. An offence is not committed unless and until the requirements of the nuisance order are contravened or not complied with, and in that event criminal proceedings follow. Subsection (4) of Clause 81 already makes provision for the court to impose the same penalty as this amendment seeks on summary conviction for such a contravention. For that reason we believe that this amendment is unnecessary.
Lord Byron: My Lords, we may here be in some slight procedural muddle. It was my intention to move Amendment No. 162A, which has not yet been called. I think that it is grouped slightly misleadingly with the other amendments. But since the Minister has dealt with the point, I wonder whether it would be in order for me to say a little now about Amendment No. 162A.
The purpose of this amendment is to insert into the Bill a provision similar to that which is presently in the 1936 Public Health Act. Before going any further I should say that, although I did not take part in the debate in Committee, I welcome a number of amendments which the Government are bringing forward in response to certain pressures. My amendment is supported by the Law Society and a number of other organisations which have practical experience of dealing with this problem in the magistrates' court.
Perhaps I may briefly explain the position. When a person is aggrieved by a statutory nuisance, which may very well be in the context of housing but could also arise in other contexts, the present procedure is that that person will go along to the magistrates' court and lay an information alleging the existence of the statutory nuisance. If the magistrates are satisfied that the statutory nuisance exists they can order that it be abated. They can make orders to ensure that the nuisance does not recur. As the law stands at the moment they can also impose a fine. As the Bill is drafted, that power to fine does not arise until after an abatement order made by the magistrates' court has not been complied with.
At first glance it may seem that there is some logic in what the Government propose. However, I urge that by taking away the power that the court has at the moment to fine ab initio and to provide the power to fine only when there is a subsequent breach of an order by the court gives the section considerable teeth.
I understand that one organisation alone has advised about 4,000 tenants in connection with housing problems. Those are obviously extremely severe housing problems because they come into the realm of matters where health is in danger. We are not talking about defective housing. That is a matter which would normally be in dispute between landLord and tenant and would be properly dealt with in the county court. We are talking about matters where health is at risk and where there is on the statute book, and has been for over 50 years, a very convenient summary procedure whereby an aggrieved person can go to the magistrates' court.

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That procedure still exists under the Bill as presently drafted. However, the court will not have the power to impose a fine unless the defendant is in breach of the subsequent order made by the court. Those people who are working at the coal face, as it were, dealing with those issues every day regard the present power that the court has under the Public Health Act 1936 as a very valuable power and one which compels people who are perpetrating nuisances to abate them before the matter goes to court. Otherwise they risk being fined and having a criminal conviction.
I make three points. We are talking about extreme situations in the housing field. We are talking about criminal proceedings. The matter begins with the laying of information in the way that criminal proceedings start. We therefore have a criminal burden of proof beyond reasonable doubt. The amendment is drafted in exactly the same way as the law stands at the moment. The court will have the power, not an obligation, to impose the fine and will do so only if the matter is sufficiently severe.
I shall beg to move the amendment in due course.
Lord Renton: My Lords, perhaps I may say that the presence of my noble friend Lord Byron on these Benches is very welcome.
I have a good deal of sympathy with him on the grouping. The amendment of the noble Lord, Lord Ross of Newport, is on a much wider and quite different point. However, if I may presume to explain the matter as I see it to my noble friend, the position is this. He was quite at liberty to make a speech at this stage in support of his amendment as it has been grouped with another one. When his amendment is called, if he so wishes he will be entitled to divide the House. Perhaps when he has heard my noble friend Lady Blatch he may feel that it is not necessary to do so.
However, I should like to support the substance of the amendment moved by my noble friend and to point out an advantage that he did not mention although it clearly follows from what he said. If his amendment is accepted the result could be achieved in one court appearance. But under the Bill it would be achieved by two court appearances. If we do not wish unnecessarily to add to the courts' work, I should have thought that it would be very wise indeed for the Government to give careful consideration to the matter and for my noble friend to give an undertaking to consider it at Third Reading.
Baroness Blatch: My Lords, I may well be responsible for the confusion about the grouping. If I had heeded the advice given to me by the noble Lord, Lord Ross, we might not have had such a grouping. However, I dealt with the amendments in the way that they were proposed. I dealt with Amendments Nos. 160 and 165 together, and with Amendments Nos. 158 and 162A separately. Perhaps I may add an extra word on Amendment No. 162A.
It is true that there was a provision allowing the court to impose a fine under Section 94(3) of the 1936
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Act. However, that power could be invoked only after a local authority had served an abatement notice which had been ignored. In that case the court was in a position to decide whether to order compliance with the notice by means of an abatement order and have the possibility of imposing a fine. That is the present position under the Bill.
As the amendment proposed by my noble friend is set out, Clause 81(1) gives private individuals who are aggrieved by a statutory nuisance the right to seek a nuisance order in the magistrates' court.
Clause 81(2) provides that the court shall make a nuisance order if it is satisfied that the alleged nuisance exists. However, the amendment inserts a provision for the court to impose a fine at the same time that it makes the nuisance order. The difficulty that the Government have over accepting the amendment is that it is the wrong stage at which to provide for imposition of a fine since at this stage no offence has been committed.
A criminal offence is not committed unless or until the nuisance order is contravened. Subsection (5) already makes provision as to the penalties which the court may impose for the offence of contravention of a nuisance order. There is therefore no difference between us as to what should be done. The difference is in regard to the stage at which the imposition of a fine is set. That is the difference between the noble Lord's amendment and what is on the face of the Bill.
Lord Ross of Newport: My Lords, I apologise. It might have been better if I had said in the first instance that we should try to take the amendments separately. I attempted to set the matter in the right direction. I am aware that there has been a great deal of concern about the amendment put forward by the noble Lord, Lord Byron. In letters I received only this morning I was asked to support it. Many solicitors are concerned about the issue. The matter was raised by the noble Lord, Lord McIntosh, at Committee stage. I cannot say whether or not we have the right answer.
I am sure that the noble Lord, Lord Byron, will study what has been said and consider whether he wishes to come back at Third Reading. In the meantime, it looks as though the local authorities are losing out yet again. They do not seem able to gain the generosity of this Government. They ought sometimes to be able to obtain their costs. However, I have to accept what was said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 159 not moved.]
4.30 p.m.
Lord Tordoff Lord Tordoff moved Amendment No. 159A:
After Clause 80, insert the following new clause:
("Public registers of information
. —(1) It shall be the duty of every local authority to maintain a register containing prescribed particulars of or relating to—

(a) applications to the Secretary of State for consent under section 78(9) above;

(b) notices served under section 79 above;

(c) appeals under section 79(3) above;

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(d) the occasions on which the authority has exercised any power under section 80(3) and (4) above;

(e) orders made under section 81(2) below;

(f) convictions for offences under this Part;

(g) the results of any measurements or tests carried out or obtained by it in connection with its functions under this Part;

(h) such other matters relating to statutory nuisances or the exercise of the authority's functions under this Part as may be prescribed.

(2) The provisions of sections 21 and 22 of this Act shall apply in relation to registers under this section, and references in those sections to registers maintained under section 20 of this Act shall he construed as including references to registers maintained under this section.
(3) It shall be the duty of each local authority—

(a) to ensure that the registers maintained by them under this section are available, at all reasonable times, for inspection by the public free of charge; and

(b) to afford to members of the public facilities for obtaining copies of entries, on payment of reasonable charges.

(4) Registers under this section may be kept in any form.").
The noble Lord said: My Lords, I beg to move Amendment No. 159A which provides for public registers relating to statutory nuisance. As I read it, this is the only part of the Bill dealing with pollution which fails to provide rights of access to information. The Bill, as it stands, together with the government amendments on the Marshalled List, provides for access to information under Part I in Clause 20; under Part II in Clause 63; and under Part IV if Amendment No. 190 is passed by your Lordships. Part V is covered by Schedule 5, paragraph 15; Part VI by Amendment No. 213 after Clause 117, and Part VIII by Clause 139.
Not only is there no positive duty to disclose information in the area with which we are dealing today but the Bill contains a secrecy clause which penalises disclosure. I shall return to that in amendments with which I shall deal in due course.
Amendment No. 159A would require local authorities to set up public registers similar to those required elsewhere in the Bill. So there is nothing wild, radical or new about the proposal. The registers would show various details which are contained in the amendment and which I think are self-explanatory.
Subsection (2) of the amendment allows for the withholding of information which is commercially confidential or harmful to national security. The procedures for withholding such information are laid down in Clauses 21 and 22 of the Bill, as your Lordships will no doubt remember in relation to integrated pollution control registers. Those clauses will also apply to the new registers, and although we may be critical of some of the procedures the object is to bring Part III into line with precedent already in the Bill. Subsections (3) and (4) are quite standard in the Bill.
It seems to me that this is a straightforward amendment. It is always possible that it is technically flawed but if that is all, I hope that the Government will agree to it in principle and perhaps tidy it up at the next stage. I beg to move.
Lord Jenkin of Roding: My Lords, one of the welcome provisions of the Bill is the extent to which it
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reflects the move over recent years to give very much more public information about matters concerning pollution and the environment.
Although perhaps I should not say it, I was the Secretary of State who accepted the recommendation of the tenth report of the Royal Commission on Environmental Pollution, which recommended that there should be a great deal more publicity for environmental matters. Nothing but good has come out of that. I always took the view in relation to nuclear pollution and other matters that the more secrecy that surrounded them the more there was the risk of alarmist and sometimes dangerously inaccurate stories gaining credence. If one tells the whole story and is seen to tell the whole story the chances are that one will be believed—not universally perhaps, but possibly so.
Therefore, in general I welcome the existence of public registers. Paragraph 17.26 of the White Paper states:
"These registers make information available in a form which is easy to use and have been widely welcomed".
The document adds:
"The Government will propose arrangements, including registers, by which environmental information can be made available in Britain. It believes that the role of the public in monitoring environmental information and demanding improvements where necessary will be one of the most effective stimuli to improving the environment throughout Europe".
It may well be that there comes a point of detail when the burden of preparing registers of what may be large numbers of minor statutory nuisances outweighs the advantage of having them made public. But if there is any doubt in the matter and if there appears to be a balance, I hope that Ministers will feel it right to tilt the balance in favour of publicity rather than in favour of no publicity. In the environmental field, as indeed in many others, accurate information readily available is one of the best instruments of good government.
Baroness Blotch: My Lords, I am grateful to my noble friend for making the point about the Government being much more open with information. It is true that in recent legislation great efforts have been made to ensure that where there is a balance it is in favour of open access to information.
However, if I may address myself to the amendment, there is a significant difference between Part I and Part III in so far as under Part III, Clause 81 gives members of the general public the right to go directly to court if they are affected by a statutory nuisance. Therefore there is not the same justification for a public register. If a local authority were unwilling to provide information, in the last analysis a member of the general public could force the issue by initiating action under Clause 81. Under Part I only Her Majesty's Inspectorate of Pollution or the local authority can initiate action.
We are proposing in Amendment No. 190 to require public registers of information to be kept for Part IV. However, Amendment No. 190 relates to orders under Clause 89(3) in respect of litter control

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areas and street litter control notices issued under Clause 92(1). Such orders and notices affect owners of land, and it is right that not only the public but subsequent purchasers of the land should be aware of their existence.
Part III differs from Part I in being concerned, in the great majority of cases, with relatively small-scale nuisances committed or capable of being committed by individuals. Moreover, Part I reduces the importance of the statutory nuisance regime by taking a lot of smaller factories and processes out of statutory nuisance control and placing them under local authority prior authorisation control. This considerably lessens the need for members of the public to know about individual convictions, notices, or orders.
In fact we see positive objections to the keeping of a register which is available for public inspection in the case of Part III nuisances. It could enable anyone to find out what misdemeanours a particular individual has been guilty of. An obvious example is that of a landlord being able to find out that a prospective tenant has created a noise nuisance at his previous address and therefore refusing to give him a tenancy.
We accept that there are some elements in this package of information-keeping requirements for which a case might be made for public availability, for example items (1)(a) and (1)(g), but we are not convinced there is a sufficient case as respects Part III of the Bill. Once we embarked on this course it could lead in almost all the cases mentioned to information about the commission of nuisances by private individuals being traceable back to the individual. We have concluded it would not be desirable to keep a register which could lead to information of that sort being imparted.
Another point raised by my noble friend Lord Jenkin of Roding concerned the benefits of setting up a public register and whether they are sufficient in relation to the high cost. It is our view that the benefits of setting up a public register in this instance are small in relation to the very high cost. However, it is important to say that the Government will ensure that the public has access to this information on request in implementing European directives on public access to environmental information.
It is out of protection of the individual against, if I may coin a phrase, a sort of licence for "nosey-parkering" by other individuals that I am forced to say that we would like this amendment to be rejected.
Lord Tordoff: My Lords, I sometimes wonder where we are heading on this matter. The fact is that it is possible to be penalised for disclosing information under the Bill, and there is absolutely no positive duty to disclose the information anyway. To hide behind the idea that a landlord might be able to find that a tenant has done something naughty in other premises and therefore not allow him a tenancy is stretching one's imagination a very long way.
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The noble Lord, Lord Ross, can probably advise me better than I can advise your Lordships. I am quite sure that the landlord and tenant legislation would put a blockage on information being abused.
I am most grateful to the noble Lord, Lord Jenkin of Roding, for his intervention; I do not dissent from a word that he said. But where there is a secrecy clause penalising people, there ought to be a counter-balancing provision for a positive disclosure of information in many cases.
The noble Baroness accepts that there may be a case under subsection 1(a) and 1(g). All I ask is that, even if the Government do not like the amendment as it stands, they will reconsider the situation. Noble Lords will notice that those are applications for consent to the Secretary of State under Section 78(9) and orders made under Section 81(2) which presumably do not affect private persons in the same way.
I am disappointed that this section of the Bill is singled out for different treatment from the rest of the Bill, but there seems little point in my pressing the amendment.
Baroness Blatch: My Lords, with the leave of the House, perhaps I may apologise for the possibility that I may well have misled the House in my previous reply. Under Part I of the Bill, although HMIP and local authorities are primarily charged with enforcing the provisions of that part, it does not mean that other people cannot bring prosecutions under that part of the Bill.
Lord Tordoff: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 3 [Statutory Nuisances: Supplementary Provisions]:
Baroness Blatch Baroness Blatch moved Amendment No. 160:
Page 160, line 47, at end insert:
("(2A) An appeal against any decision of a magistates' court in pursuance of an appeal to which this paragraph applies shall lie to the Crown Court at the instance of any party to the proceedings in which the decision was given.").
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 161:
Page 161, line 44, after ("samples") insert ("equipment").
The noble Lord said: My Lords, I hope that the noble Earl, Lord Arran, will not feel that I am picking on him, but I must come back to something that he said in Committee. When we turned to Schedule 3, which is concerned with powers of entry to deal with statutory nuisances, we thought that it was clear that the officers would be empowered to seize equipment as well as samples and articles. It seems clear to me that, in mounting a prosecution, the nature of the equipment that is used is as relevant as the samples.
However, in response to Amendment No. 283A, the noble Earl said in Committee on 26th June 1990 (col. 1598 of Hansard) that it was arguable whether the term "articles" included equipment. He said that the Government were prepared to consider whether an

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amendment was needed to deal with the point raised. There is no government amendment. We bring forward this amendment so that the Government can explain why not. I beg to move.
The Earl of Arran: My Lords, the noble Lord, Lord McIntosh, is quite correct. We agreed in Committee to consider the issue that was raised by the amendment. We had concluded that a power in Schedule 3 to remove equipment would compare undesirably with the Bill's other rights-of-entry clauses which do not contain an equivalent power.
Perhaps I may endeavour to explain briefly to the noble Lord what exactly the Government are trying to do. The word "equipment" does not appear in the equivalent context in Clauses 17(3)(f), 68(3)(f) and 111(3)(d) and (e). Those other provisions clearly empower an inspector to take away the samples that he takes of articles or substances, thus leaving the bulk where it is on the premises. After all, it is the property of someone.
The other provisions allow property to be dismantled or otherwise tested and, in an extreme case, damaged or even destroyed, but they do not entitle the inspector to remove the plant or equipment that is there. It is not only the property of someone, but may be the means by which a business is carried on. It is not necessary to remove all the equipment to determine whether a particular process is causing a problem and should be modified or ultimately prevented from operating. That is why we believe the amendment is not justified.
4.45 p.m.
Lord McIntosh of Haringey: My Lords, that is a strange answer. In Committee the Minister said that it was clearly desirable that there should be a power to remove equipment and that it was simply a question of drafting as to whether equipment was included in the word "articles". He now says that it is undesirable. He has still not made it clear whether the word "articles" can be interpreted to include equipment.
This is one of those cases in which we seem to be moving backwards rather than forwards. No one is suggesting that inspectors wilfully go to remove larger items of equipment than they need to prove a case. They will remove some significant part of the equipment if that part is causing pollution. For example, if a filter is not working properly, it is part of the equipment but it is also evidence of whether matenal—effluent, as I think the noble Lord, Lord Ross, would say—is escaping which should not be escaping and of whether that item of equipment should be removed.
I do not wish us to be at cross-purposes on the amendment. Will the Minister now answer the question which he asked himself in Committee and which I repeated just now: is equipment included in the word "articles"?
The Earl of Arran: My Lords, I can only repeat what I said before; namely, that it must be recognised that the equipment is the property of someone but that that property can be the means by which a business is carried on. Surely it is not necessary to remove all the
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equipment to determine whether the process is causing a problem and should be modified or ultimately prevented from operating. I do not think that I can make it much clearer than that.
Lord McIntosh of Haringey: My Lords, the amendment does not refer to all the equipment. The noble Earl has still not answered his own question. It is a matter of doubt as to whether the word "articles" can be construed to include equipment—not the whole of an item of equipment but such amount of equipment as is necessary to prove a case at law. We still do not have an answer to that question. I do not know whether an answer is about to arrive now. Can the word "articles" be construed to include equipment?
The Earl of Arran: My Lords, I understand that the answer is definitely in the affirmative.
Lord McIntosh of Haringey: My Lords, why did not the Minister say so and save us all that trouble? He asked himself the question more than three months ago and should have been prepared to answer it. I am pleased to have an answer, but I am not pleased with the answer. The answer appears to be that, because the Government are wilfully misinterpreting my amendment to suggest that it means all of any item of equipment, equipment should therefore be excluded from this part of the Bill. It may well be—this is the only reason I am not seeking to divide the House on the matter—that we should seek to amend the Bill in more than one place. The answer, and the process that I have had to go through to drag an answer out of the Government, are totally unsatisfactory. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Tordoff Lord Tordoff moved Amendment No. 161A:
Page 162, line 10, leave out ("manufacturing process or").
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 161B.
These two amendments seek to limit the scope of the secrecy provisions in Schedule 3, which applies to information about statutory nuisance. Paragraph 2 of the schedule gives local authorities powers of entry for the purpose of dealing with statutory nuisance. Paragraph 3 makes it an offence for a person to disclose information,
"relating to any manufacturing process or trade secret obtained in the exercise of any powers conferred by paragraph 2 above … unless the disclosure was made in the performance of his duty or with the consent of the person having the right to disclose the information".
Nothing in the Bill suggests that disclosure of information forms part of the duty of a local authority in relation to statutory nuisance. It is possible that there may be an argument that a duty arises in some indirect way, either in common law or under the general provisions of the Public Health Acts. However, it seems to me that it would be very unsafe to rely on that in the face of such an explicit restriction.
The restriction on disclosure is particularly inappropriate in the case of statutory nuisances. By

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definition those powers can be used only in relation to health hazards or nuisances; that is, real problems rather than theoretical risks. Moreover, the powers can only be invoked where the problem already exists or is imminent. They do not involve the general anticipatory precautions found in other pollution control laws. Thus, if a local authority acts under the statutory nuisance provisions, that is because there is a real hazard or severe nuisance which is when the case for the public being fully informed is most important.
Amendment No. 161A restricts the secrecy clause to disclosures about trade secrets. There is no intention in these amendments to try to disclose trade secrets in the normal course of events. However, the revealing of information about a non-secret manufacturing process should not be a criminal offence. Clearly that should take place only when necessary but it should not be a criminal offence to do that if the process is not secret.
The Government accepted that argument recently in the Food Safety Act and have also accepted the argument in relation to previous pollution legislation. For example, the Clean Air Act 1956 originally contained a bar on the disclosure of:
"any manufacturing process or trade secret".
That provision was amended by the Control of Pollution Act 1974 to delete the words "manufacturing process" which is precisely what we seek to do in the first of these two amendments.
The second amendment adds a new justification for disclosing information to those already found in paragraph 3(2) of Schedule 3. With the amendment the paragraph would read as follows. I shall read it in full because it is important that the full meaning is clear to your Lordships:
"If a person discloses any information relating to any manufacturing process or trade secret obtained in the exercise of any powers conferred by paragraph 2 above he shall, unless the disclosure was made in the performance of his duty or with the consent of the person having the right to disclose the information",
and we add the words:
"or was necessary for the purpose of protecting the health of any person from serious injury be liable, on summary conviction, to a fine not exceeding level 5".
In other words, in those cases where it is necessary —and I stress the words "necessary"—to protect the health of any person from serious—and I stress the word "serious" —injury there should be an exemption from the provisions of this clause. I beg to move.
Lord Jenkin of Roding: My Lords, I confess immediately that I have not researched the debates which took place on the earlier legislation to which the noble Lord, Lord Tordoff, referred when he said that the words "or manufacturing process" had been taken out. It may be that they are not in exactly the same case as this. I should like to argue quite strongly that the words "or manufacturing process" should remain.
I say that because if Parliament in its wisdom gives authority to a public official to enter a manufacturing premises in the circumstances envisaged by this paragraph of the schedule, it seems to me that it
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behoves us to impose the most strenuous duty to ensure that that entry should be confined solely to the purpose to which it is intended.
The noble Lord, Lord Tordoff, accepts the question of a trade secret. I know that he has some knowledge of the manufacturing industry since our paths have crossed while looking at some very sophisticated manufacturing plant. Therefore, he must accept that while there may be nothing secret and no question of any patent or know-how agreement, an engineer or, if one is talking about a chemical plant, a chemical engineer can, just by looking at the plant, see the way in which the problem has been solved by a competitor. That may be worth quite a lot of money to someone. If it is known that an inspector has gone into a competitor's plant, the competitor will wish to make it absolutely clear to that inspector that he may not talk at all to anyone about what he saw when he was there except in so far as it is strictly in accordance with his duties.
Manufacturing processes are often developed over a very long period at the same plant with minor modifications being made. Competitors might dearly love to have access to information about another competitor's plant. We want to be quite clear that if we give that authority to inspectors to visit plant, they should not talk at all about what they saw there to anybody. I understand that that is what this subparagraph is intended to do. I hope that my noble friend will not yield to the blandishments of the noble Lord, Lord Tordoff, to remove those words.
As regards the other amendment, I do not have a very strong view, but I shall listen to what my noble friend on the Front Bench says in reply.
Baroness Blatch: My Lords, I shall deal with the issue raised by my noble friend before I come to the amendment. With respect to my noble friend, I accept his proposition that the manufacturing industry should be protected from releases of information which may be commercially confidential. However, I assure him that the retention of the words "trade secret" will operate to protect such information. If I do not say that, he may be slightly disquieted by the rather pleasant news to the noble Lord, Lord Tordoff, that I am about to accept the amendment.
We are pleased to be able to accept the amendment noting the anxieties of the noble Lord, Lord Jenkin, and noting that one must have regard to the words "trade secrets". This amendment brings the provisions of Schedule 3 relating to disclosure of information into line with those of Section 94 of the Control of Pollution Act 1974 and Section 26 of the Clean Air Act 1956.
As regards Amendment No. 161B, the additional exemption to the restrictions on disclosure of information provided for by this amendment is, in effect, already covered by the existing provision in paragraph 3(2) that no offence is committed if the disclosure is made in the performance of the inspecting officer's duty. The duty there referred to is the duty of detecting any statutory nuisances which should be dealt with under Clause 79. Statutory nuisance is

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defined in Clause 78 as meaning something which is prejudicial to health or a nuisance. That would include the protection of the health of any person from serious injury. Indeed, if anything the amendment is more restrictive than Clause 78 as that refers simply to "prejudice to health" and does not require evidence of serious injury.
I hope that the noble Lord, Lord Tordoff, will respond to our generosity in accepting his first amendment and will forgive me for asking the House to reject the second amendment.
Lord Tordoff: My Lords, I am most grateful to the noble Baroness. I understand what the noble Lord, Lord Jenkin of Roding, says. We spent several happy hours looking over sophisticated chemical engineering equipment—for want of a better phrase.
I had a similar slight difference of opinion with the noble Lord, Lord Mottistone, on the food safety legislation when he raised a similar point in relation to the food industry. However, I felt all along that the "trade secret" provision covered the sort of matter to which the noble Lord, Lord Jenkin, refers.
I declare an interest as a non-executive director of a chemical company, and I should not wish to see the important information contained within some of the plants of the company of which I am director revealed to our competitors. We are a high technology organisation and that is how it makes its money. However, I am confident that "trade secret" will cover that, and I am glad that the Government have come round to my view. I am glad that the long summer has been a useful period of gestation.
On the second amendment, I accept what the Minister says, and again I am most grateful to her. I shall read what she said. If there are any minor problems which I believe exist then I shall either discuss that with her outside the Chamber or perhaps return to the matter on Third Reading. In the meantime, I am grateful for her acceptance of my first amendment, and for the reassurance on my second amendment.
On Question, amendment agreed to.
[Amendment No. 161B not moved.]
5 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 162:
Page 262, line 41, at end insert:
("(7) The Secretary of State may by order vary or revoke any order previously made by him under this paragraph.
(8) Any order under this paragraph may include such incidental, supplemental and transitional provisions as the Secretary of State considers appropriate.").
The noble Baroness said: My Lords, this is a minor amendment which adds two additional subparagraphs to the Secretary of State's default powers in paragraph 4 of Schedule 3. It reflects amendments to the default powers in Clause 71 of Part II of the Bill, to which your Lordships have already agreed. I beg to move.
On Question, amendment agreed to.
Clause 81 [Summary proceedings by persons aggrieved by statutory nuisances]:
Lord Byron Lord Byron had given notice of his intention to move Amendment No. 162A:
Page 89, line 9, at end insert ("and may also impose on the defendant a fine not exceeding level 5 on the standard scale".
The noble Lord said: My Lords, I am not sure whether it is in order for me to move this amendment. I wish simply to say to my noble friend that if I understood her correctly she may be mistaken or perhaps we are talking at cross purposes. I have met representatives from the Law Society.
Baroness Blatch: My Lords, perhaps the noble Lord will forgive me for interrupting. In the light of our previous conversation I shall be prepared to take this amendment back and reconsider it before Third Reading, without commitment of course.
Lord Byron: My Lords, I am grateful for my noble friend's response.
[Amendment No. 162A not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 163:
Page 89, line 9, at end insert:
("() If the magistrates' court is satisfied that the alleged nuisance exists and is such as, in the opinion of the court, to render premises unfit for human habitation, an order under subsection (2) above may prohibit the use of the premises for human habitation until the premises are, to the satisfaction of the court, rendered fit for that purpose.").
The noble Baroness said: My Lords, in moving Amendment No. 163 I shall speak also to a large group of amendments in my name—Amendments Nos. 163 to 165, 166 to 170, 277, 287 and 288. I shall speak also to Amendments Nos. 165ZA and 165ZB in the name of the noble Lord, Lord McIntosh. I am not sure whether the noble Lord prefers me to proceed with my amendments before he speaks to his. He indicates that that is so.
Amendments Nos. 165 and 169 meet the concerns reflected in Amendments Nos. 285B and 286A tabled by the noble Lord, Lord McIntosh, in Committee and will, I am sure, be welcomed by him. Although Clause 81 makes no explicit provision, I am advised that as the clause is drafted the normal discretionary rules on costs would apply. We were incorrect in referring to the Costs in Criminal Cases Act 1973 in the previous discussion of this matter in Committee. It is in fact the Prosecution of Offences Act 1985 which gives the court inherent jurisdiction to award costs in such cases.
The noble Lord referred in Committee to concern felt by tenants that Clause 81 as drafted could weaken their rights to take direct action in the courts. We are persuaded that it is right to meet this concern by bringing forward Amendment No. 169.
Amendment No. 165 is necessary as a corollary of Amendment No. 169. The noble Lord referred in Committee to the concern felt by local authorities that complaints could be made to the courts without the local authority being notified and being given an opportunity to put things right. Although that concern was voiced by local authorities in the context of action being taken against them for housing repairs, the principle that there should be a requirement for prior notice holds good for other forms of statutory

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nuisance. The difficulty has been to pinpoint a formula which will enable appropriate periods of notice to be tailored to different forms of nuisances.
Amendment No. 165 provides for the period of prior notice before court proceedings are instituted to be not less than three days in the case of noise nuisance and 21 days in the case of other nuisances. The amendment gives the Secretary of State powers to vary the minimum period of notice applicable to any description of statutory nuisance.
Amendment No. 163 meets the concern expressed in Amendment No. 285D brought forward in Committee by the noble Lords, Lord McIntosh and Lord Ross, which my noble colleague, Lord Arran, undertook to consider. We now accept that an amendment on those lines is required. Amendment No. 167 is a paving amendment for Amendment No. 168. Amendment No. 168 is consequential on Amendment No. 163.
Amendment No. 164 is a small but necessary amendment to the procedural requirements of Clause 81, which gives private individuals the right to take direct action in the courts for the abatement of a statutory nuisance. Without this amendment Clause 81(3) would not refer to the action to be taken where the nuisance arises from any defect of a structural character and could result in someone other than the owner being served.
Amendment No. 166 is a minor but necessary correction to Clause 81(5). Clause 81(5) makes it an offence to contravene any requirement of a nuisance order but does not make it an offence to contravene any requirement imposed by a nuisance order. This amendment remedies that omission.
Amendment No. 170 meets the concern expressed in Amendment No. 286B which the noble Lord, Lord McIntosh, brought forward in Committee and which my noble friend Lord Arran undertook to consider. It would carry over from the Public Health Act 1936 a necessary adjunct to the court's power to make a nuisance order.
Amendments Nos. 277, 287 and 288 are all minor technical amendments. Nos. 277 and 288 are required to list Parts I and III separately as functions which may be assigned to the London port health authority. This is because Part I will come into effect on a different date to Part III. I beg to move.
Lord McIntosh of Haringey: My Lords, I am grateful to the Minister for speaking to all those amendments so clearly. I shall restate briefly—it is important that it should be on record—the two cases being put forward. As we understood it, the situation at Committee stage was that under the Public Health Act 1936 it was possible for tenants who could claim that the condition of their property was such as to create a statutory nuisance to go to the courts without giving notice. If their case was proved they could receive the costs for that court action.
Tenants of both local authorities and private landlords found that power very helpful in persuading their landlord to do necessary repairs. To the extent
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that it was necessary to have that failsafe procedure which would involve them in costs which they almost certainly could not afford it was desirable to maintain Clause 99 of the Public Health Act 1936. I met many representatives from legal firms acting for tenants who said how important it was to maintain that right. That was what we put forward at Committee stage.
At the same time as tenants and their legal representatives were jumping up and down in defence of the 1936 Act, local authorities were jumping up and down saying that it was unreasonable for those tenants to go to the courts claiming a statutory nuisance without at least giving notice to the landlord that there was something wrong, thus giving them a chance to put it right before being involved in the expense of court procedures. Although those may seem to be opposing views, I do not believe that they are in conflict. They are views which in natural justice appear to be well justified.
I therefore moved amendments to meet the concerns both of tenants who wanted to continue to have access to courts, and if their case was proved to have the costs paid by the landlord, and of local authorities who wanted a chance to put things right by being given notice of the court action in good time. The Government tried hard, almost entirely successfully in my view, to meet the points made in Committee. I repeat that I am grateful for that.
I have tabled two relatively minor amendments to Amendment No. 165, Amendments Nos. 165ZA and 165ZB. Amendment No. 165ZA leaves out the provision that for any nuisance of a description other than that in paragraph (g), which is noise, there should be not less than 21 days' notice. It says that there should be a period of notice which is "reasonable in the circumstances". It replaces the whole of subsection (4) (b) by that provision in line 5 of the government amendment.
It may be that there is no perfect answer to this question. It is not simply a matter of, on the one hand, noise which deserves three days' notice and, on the other, all other kinds of nuisance which deserve 21 days' notice. In practice, it will be possible for magistrates to interpret what is reasonable notice in relation to the time it would take to put matters right. Clearly, putting right noise which has already happened is much more immediate because what you want to do is get it stopped. Putting right a structural defect is another matter and may on occasion require even longer notice than 21 days. Therefore, we are arguing for a little more flexibility.
The other complication is that the law appears now, as of last Thursday, to be not what we thought it to be. Your Lordships, sitting in your judicial capacity, have now reached a final judgment in the case of Sandwell Metropolitan Borough Council v. Bujok. Perhaps I may remind the House that this is a case where the respondent, Mrs. Bujok, took Sandwell Metropolitan Council to court, claiming that structural repairs were necessary but were not visible from outside and the council had to put them right. The borough council

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protested that it had not been given notice and asked not to have to pay the costs, though the case was proved.
What the Appellate Committee said I can best summarise from the assenting words of the noble and learned Lord, Lord Templeman, on 11th October:
"For the reasons to be given by my noble and learned friend Lord Griffith"—
who gave the full judgment—
"I agree that an aggrieved person is not required to give warning of his intention to bring proceedings complaining of a statutory nuisance. I agree also that the magistrates are not required to award the costs of such proceedings to the appellant".
Therefore, those who thought, as law centres tended to think, that there was a right for costs to be awarded against the landlord were not correct and those who complained, as the borough council complained in this case, that they ought to be given notice, were correct. The government amendments are, in my view, in the right direction in both cases. In other words, they require that the tenant shall give notice and that costs should be awarded against the landlord if the case is proved. Therefore, with those minor amendments I welcome this set of government amendments.
The Earl of Balfour: My Lords, I may have misheard my noble friend the Minister in her opening remarks but I thought that, in almost her closing words when speaking to Amendment No. 170, she referred to the Lord Advocate. If so, my point is that the last line on page 89 of the Bill states:
"Sections 78 to 81 above do not apply to Scotland".
Perhaps I have misunderstood my noble friend.
5.15 p.m.
Lord Ross of Newport: My Lords, these amendments came up at a late hour and I must admit to the House that I was dozing at the time. However, I am grateful that the Government have tabled the amendments. If the noble Baroness will look again at Amendment No. 162A and perhaps accept it, on the whole the people who have been writing to us complaining bitterly about changing the procedure from criminal to civil should be satisfied with what the Government have brought forward.
Baroness Blatch: My Lords, I hope the noble Lord, Lord Ross, will accept that I must take that point away and consider it again, but without commitment. We shall also look at it in the light of what has been said on this amendment.
Perhaps I may deal briefly with the point raised by my noble friend regarding the Lord Advocate. I actually referred to my noble friend Lord Arran, not the Lord Advocate.
The noble Lord, Lord McIntosh, is right in saying that there are not many questions in these matters for which there are perfect solutions. Amendments Nos. 165ZA and 165ZB substitute a requirement for such notice to be given as is reasonable in the circumstances in place of the specified period of prior notice which Amendment No. 165 stipulates. We cannot agree that
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it would be right to leave the requirement as vague as that. It would put the onus on the individual to decide the period of notice.
The court would have to decide whether reasonable notice had been given, and if it came to a different view the individual taking action under Clause 81 would be back to square one. It is much better that the individual should have certainty as to the notice he is required to give. Our amendment specifies set periods of notice, but it is important to note that, if need be, these can be altered in the light of experience in the working of the legislation. I hope the noble Lord will therefore consider not moving his amendments.
Lord McIntosh of Haringey: My Lords, I shall have to read carefully what the Minister said, but I reaffirm that with the exception of these minor amendments —to which, on reflection, I do not think I am entitled to be responding because Amendment No. 165 has not yet been moved—we are at one on the thrust of most of the government amendments.
The Deputy Speaker (The Earl of Listowel): My Lords, the Question is that the amendment be agreed to.
Baroness Blatch: My Lords, I think that Amendment No. 163 has to be put first and I therefore beg to move Amendments Nos. 163 to 165, en bloc.
Lord McIntosh of Haringey: My Lords, as I have tabled amendments to Amendment No. 165 perhaps it would be better if we took the earlier amendments first. At the risk of tedium, perhaps we should take them one by one.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 164
Page 89, line 10, leave out from ("Proceedings") to end of line 13 and insert ("for an order under subsection (2) above shall be brought—

(a) except in a case falling within paragraph (b) or (c) below, against the person responsible for the nuisance;

(b) where the nuisance arises from any defect of a structural character, against the owner of the premises;

(c) where the person responsible for the nuisance cannot be found, against the owner or occupier of the premises.").

On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 165:
Page 89, line 17, at end insert:
("(4A) Before instituting proceedings for an order under subsection (2) above against any person, the person aggrieved by the nuisance shall give to that person such notice in writing of his intention to bring the proceedings as is applicable to proceedings in respect of a nuisance of that description and the notice shall specify the matter complained of.
(4B) The notice of the bringing of proceedings in respect of a statutory nuisance required by subsection (4A) above which is applicable is—

(a) in the case of a nuisance falling within paragraph (g) of section 78(1) above, not less than three days' notice; and

(b) in the case of a nuisance of any other description, not less than twenty-one days' notice;

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but the Secretary of State may, by order, provide that this subsection shall have effect as if such period as is specified in the order were the minimum period of notice applicable to any description of statutory nuisance specified in the order.").
[Amendments Nos. 165ZA and 165ZB, as amendments to Amendment No. 165, not moved.]
On Question, Amendment No. 165 agreed to.
Lord Nathan Lord Nathan moved Amendment No. 165A:
Page 89, line 17, at end insert:
("() An appeal against any decision of a magistrates' court on a complaint for an order under subsection (2) above shall lie to the Crown Court at the instance of any party to the proceedings.").
The noble Lord said: My Lords, the Minister has already replied to this amendment and stated that the Government accept it. Therefore it only remains for me to move it formally. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 166:
Page 89, line 19, leave out first ("of") and insert ("or prohibition imposed by").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 167:
Page 89, line 34, leave out ("and").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 168
Page 89, line 36, at end insert (; and,

(d) in the case of a nuisance which is such as to render the premises unfit for human habitation.").

On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 169:
Page 89, line 41, at end insert:
("() Where on the hearing of proceedings for an order under subsection (2) above it is proved that the alleged nuisance existed at the date of the making of the complaint, then, whether or not at the date of the hearing it still exists or is likely to recur, the court shall order the defendant (or defendants in such proportions as appears fair and reasonable) to pay to the person bringing the proceedings such amount as the court considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 170:
Page 89, line 41, at end insert:
("() If it appears to the magistrates' court that neither the person responsible for the nuisance nor the owner or occupier of the premises can be found the court may, after giving the local authority in whose area the nuisance has occurred an opportunity of being heard, direct the authority to do anything which the court would have ordered that person to do.").
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 171:
Before Clause 85, insert the following new clause:
("Review of resources for litter authorities
.—(1) The Secretary of State shall within three months of the coming into effect of any Code issued under section 88(7) below, and annually thereafter, review the level of resources available to individual litter authorities in respect of their duties under this Part.
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(2) In conducting any review under this section, the Secretary of State shall consult such organisations representative of litter authorities as appear to him to be concerned.
(3) The Secretary of State shall, before making any determination of the amount of Rate Support Grant payable to local authorities in respect of any succeeding financial year, satisfy himself that the resources likely to be available to litter authorities in that year are reasonably adequate in respect of their duties under this Part").
The noble Lord said: My Lords, we now move to Part IV of the Bill in that easy, sliding way which we follow at Report stage, having got rid of statutory nuisances. This amendment is absolutely critical to the effective operation of Part IV of the Bill which is concerned with litter. It will be obvious to those of your Lordships who took part in or heard any of the debates at Committee stage that the litter provisions of the Bill are entirely welcome to those on this side of the House. We have dispute about the detail, but there is no dispute about the principle and the idea that it is necessary to improve the law relating to litter both in terms of the definitions of litter and how it is practically to be avoided; what penalties there should be; the powers provided to the enforcing authorities; and so on. To that extent we are on common ground.
The problem with Part IV of the Bill is that the work is to be done by the local authorities. Unless other provision is made they will not have the resources to carry out the work. I remind the House that local authorities have been trying to deal with the problem of litter for many years. Their problem has been partly that they have not had the resources to do the work and also that they have not had the powers.
Much though it goes against the grain I pay tribute to the City of Westminster which has taken powers to deal with litter with on-the-spot fines. That may well be the appropriate procedure in heavily congested areas of central London. We must face facts and admit that sometimes local authorities have not done what they might have done in order to deal with litter. As a result of this Bill we have had a debate on the subject and raised public awareness in the way that the Prime Minister intended when she picked up litter that had been carefully distributed for the purpose in Hyde Park about two years ago. So much the better for Parliament and the law arising from those activities.
Since the Bill first saw the light of day late last year a draft code has been produced with definitions of litter and how different forms of litter are to be dealt with. To be fair, the Government recognise that there will be substantial additional costs. They called in Coopers & Lybrand Deloitte to investigate what the implementation costs would be. The figure that materialised from an analysis carried out by 17 authorities was that the increased cost of the litter code to be applied by the Bill would be between 15 per cent. and 30 per cent. although local authorities were saying something different.
In the past few days we have received the results of the inquiry made by local authorities into the additional costs of implementing the litter code. I am sorry to say that the estimates made by Coopers & Lybrand Deloitte are inadequate for the purpose. The

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costs will be significantly more. Enforcing the code of standards itself will cost, according to the estimates of the local authorities in the metropolitan areas alone, an additional £60 million or 61 per cent. of the existing cost. I say straightaway that the estimate was based on a larger sample than that used by Coopers & Lybrand Deloitte It involved 35 authorities who were able to supply information compared to the 17 in the other case.
An additional complication had not been fully anticipated. It concerned the cost of the extra bins and their specifications required by the code of standards. It is now required that the bins should have a capacity of 200 litres. They will be very substantial bins and quite an intrusion on the landscape. They have to be spaced more frequently than has been the case in the past. The estimates made by the metropolitan authorities based on this quite substantial sample of authorities is that the cost of the bins themselves will be of the order of £377 million. The cost of emptying the extra bins will add £102 million per year, presumably, to the total cost of emptying bins in metropolitan districts. These are enormous sums which were not anticipated when the Bill was put forward.
The stark conclusion is that unless more money is made available to local authorities and recognition given to the way in which the government grant is made, besides providing something very much better than the community charge restriction and capping procedures imposed this year, something will have to give. Either the code of standards will have to be relaxed, which will be very undesirable, or additional funds will have to be found. I appreciate that the Secretary of State for the Environment is in very great difficulty with the Treasury concerning his budget as a whole. I appreciate that he has had to give very high priority over all other aspects of his budget to measures to ensure that our predictions do not come true about increases in the poll tax next year. We were right and they were wrong.
It is clear that without the very substantial additional injection of money which was announced in the summer, poll tax bills would increase enormously both in Conservative and Labour authority areas. No doubt that applies to Liberal Democrat authorities as well. The cost would have been enormously greater than originally predicted and much closer to the figure that we predicted. So something has to be done. We would like to see the litter provisions of the Bill survive unscathed. We do not wish to see a diminution of standards. Unless more money is to be made available there is no doubt that the code cannot be enforced and any debate that takes place on Part IV of the Bill is largely pointless. I beg to move.
Lord Addington: My Lords, I wish to give the support of these Benches to the amendment which stands in the name of my noble friend Lord Ezra. Effectively, if you are to have a code you must make sure that it is funded; otherwise, it is totally useless. That is the long and short of it. The noble Lord, Lord McIntosh, has done his usual very thorough job in explaining the absurdities of the situation where
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insufficient funding is being provided to get the code in place. Many arguments have been bounced around the Chamber about "may" and "shall". Now we have the "shall" argument. Something has to be done, but there are not the resources to do it. Therefore we have to look for a rise in local taxation. In effect that is what is going to happen unless the Government come up with the money. Surely, the Government must provide some extra funding or at least stop talking about local authorities' overspending.
Lord Parry: My Lords, the Tidy Britain Group works closely with the Government and all other interests in the country which are seeking to secure, as we all are, a clearing up of the litter problem and the improvement of the environment in Britain. The Minister of State has taken the trouble to inform the Tidy Britain Group and to work with it so that it can have an understanding of the thinking behind the proposals in the Bill. The Tidy Britain Group is grateful for that. As its chairman I also recognise that certain sums of money have been won from the Treasury by the department in order to implement part of the proposals. We are aware that recently in Blackpool there was a "court of the bedchamber" at which the Treasury sought to limit the demands made by Ministers for their important plans. The set of plans before us is as important as any the House has considered.
I support the amendment tabled by the noble Lord, Lord Ezra, who was once president of the Tidy Britain Group. We emphasise the fact that the Minister was right in asking for an amount of money larger than he was given and that in holding back the Treasury is impeding the proposals that the Bill seeks to implement.
Throughout the country people who are trying to grapple with the problems of litter and the provision of services to remove litter and other waste materials always have one reservation about the provisions of the Bill and the White Paper. It is whether they can afford to pay for what they will be compelled to do. There is no need to emphasise my support, which is almost from an apolitical position as head of the Tidy Britain Group. I urge the Government to take a new look at the provision for funding.
5.30 p.m.
Lord Stanley of Alderley: My Lords, will the noble Lord, Lord McIntosh, explain subsection (3) of the amendment which states:
"in that year are reasonably adequate in respect of their duties under this Part"?
Does that mean that the Secretary of State, poor chap, will not be forced to dish out money that he does not have?
Baroness Blatch: My Lords, the amendment seeks to ensure that local authorities are provided with additional resources to carry out the new duties imposed on them by Part IV of the Bill and that the level of resources available to them is reviewed annually.
I can assure the noble Lord, Lord McIntosh, and others that we too are concerned that local authorities

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have sufficient funds to carry out their statutory duties. That is why we commissioned consultants to look at the financial implications of those duties and the associated code of practice. I can also assure the noble Lord that the local authority associations were consulted before we undertook our independent study and before the final report was published through their representatives on the code of practice advisory group.
In setting the revenue support grant for next year we took account of the consultants' report that an additional £50 million would be needed. We are satisfied that the total standard spending is sufficient to allow local authorities to carry out their functions, including the new duties.
We shall of course review that level in subsequent years as we review the total level of revenue support and if we consider that more resources are required then we shall provide them; and there are established mechanisms for local authorities to put their case for resources in advance of the RSG settlement each year.
Perhaps I may deal with some specific points that were raised during the course of the debate. The noble Lord, Lord McIntosh, referred to an extra £60 million. I assume that he meant £60 million in addition to the £50 million that has been set aside by the Government for this purpose. The Coopers and Lybrand study was based on the views of local authorities. The estimates given by the noble Lord are based on an out-of-date version of the code of practice—
Lord McIntosh of Haringey: My Lords, no, I did not mean £60 million in addition to the £50 million already provided. I meant £60 million in addition to the existing costs. That refers only to metropolitan districts because the costs in shire counties and districts will be on top of that.
Baroness Blatch: My Lords, the Government's assessment made on the basis of the Coopers and Lybrand review was £50 million and I note what the noble Lord has said. The figures to which he referred were based on an out-of-date version of the code of practice. The advice on the size and siting of litter bins, which he specifically mentioned, was not government authorised but came from the Tidy Britain Group. It no longer appears in the code.
The noble Lord, Lord McIntosh, mentioned the survey. The Municipal Journal—if I dare quote from it during the course of a debate—recently claimed that the results of the AMA's survey were based on responses from only half of its 36 members. Although all 36 were canvassed for their views, only half responded. There is also doubt about an aspect of the survey carried out by Coopers and Lybrand and perhaps the noble Lord can clear that up. The survey was based on street cleaning for public health and amenity purposes, whereas the basis of the AMA's survey included highways' cleaning, and that would account for the difference in cost. However, the funding is also different. The Government's funding refers to cleaning for health and amenity purposes
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whereas the grant for highways' cleaning currently paid to the highways authority will be transferred to the districts next year in order to take account of the shift in cleaning responsibilities. In the light of the noble Lord's comments and my reply I suspect that in cash terms there is not a great deal between us.
Lord McIntosh of Haringey: My Lords, I am afraid that there is, so perhaps I may first deal with the statistical side. The noble Baroness is in error in believing that only half of the 35 authorities responded. Thirty-five were able to supply information. More local authorities were asked but the estimated additional cost of meeting the code standards for 1991/2 totals £30.39 million for the 35 authorities able to supply the information. We reach the figure of £60.03 million and 61 per cent. by taking the means and grossing it up to the number of metropolitan authorities. Therefore it would be wrong to assume that that is only a little more than the £50 million already provided. As I said in my intervention, my figures apply only to metropolitan authorities and not to shire counties and districts. The cost will be substantially more than the £50 million provided. I also wish to recognise the point that the proposals for the 200 litre bins and their spacing were put forward by my noble friend's organisation, Tidy Britain. In many ways I am relieved to learn that they have not been adopted.
I shall withdraw the amendment for one reason. If my scribbling of the Minister's words is accurate, she said that if more resources are required the Government will provide them. I take that as being an assurance that the Government recognise the possibility that substantially more money will be needed for the enforcement of litter codes than was originally expected and that the Government will recognise that in setting revenue support grants in forthcoming years. In order to help me to withdraw the amendment, will the Minister give an assurance that there will be a full review of the matter each year?
Baroness Blatch: My Lords, the only response that I can give is to say that all local government expenditure is reviewed each year in the PES rounds.
Lord McIntosh of Haringey: My Lords, I recognise that but I had hoped that the Minister would say that the evidence for such a review will be collected afresh each year. However, I shall not abuse the procedures of the House by seeking to pursue the matter with her now. On the basis of my understanding of what she said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 85 [Preliminary]:
Lord Reay Lord Reay moved Amendment No. 172:
Page 93, line 47, at end insert:
("() A place on land shall be treated as "open to the air" notwithstanding that it is covered if it is open to the air on at least one side.").
The noble Lord said: My Lords, Amendments Nos. 172, 175 and 177. to 184 are all technical and are required to correct and clarify the Bill as it stands. Amendment No. 172 provides that a place on land shall be treated as open to the air, even if it is covered,

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as long as it is open on at least one side. This is to ensure that the offence of littering could apply to covered places on relevant land such as sports stadia, bus stations or covered shopping precincts.
Amendment No. 175 irons out an untidiness between subsections (1) and (3) of Clause 86. The words "in the open air" in subsection (1) are not needed given that subsection (3) defines the places to which the clause applies. Amendments Nos. 177 to 184 redraft subsections (3) and (4) of Clause 86 so as to be consistent with Amendment No. 172. I commend the amendments to your Lordships. I beg to move.
On Question, amendment agreed to.
[Amendment No. 173 had been withdrawn from the Marshalled List.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 173A:
Page 93, line 47, at end insert:
("(12A) The Secretary of State shall by Order in such areas as he may designate for this purpose as urban areas apply the provisions of this Part which apply to litter to any description of droppings from a dog in all or any prescribed circumstances, and with such modifications as appear to him to be necessary, and the Order made under this subsection, shall include a requirement that the owner or person at that time in charge of the dog should immediately clear away such droppings.").
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 174, 114A and 174B. The first two amendments are tabled in my name and those of the noble Lords, Lord Stanley of Alderley, Lord Ezra and Lord Monson, whereas the last two are tabled in my name and that of the noble Lord, Lord Stanley of Alderley.
With these amendments we return to the matter of what I called "dog shit" in Committee. I do not apologise for that fact. In a sense I was pleased that I did so, although I ran the risk of widening the range of acceptable parliamentary terms. However, at least it drew attention to what is a very important aspect of public health. Although there appear to be adequate powers to cover the situation, that is not the case; and there are not in fact adequate powers to deal with the problem.
The amendments I moved in Committee were defective in many ways. First, they frightened the farmers because they did not apply only to dogs; they could also have applied to farm animals. Secondly, they were not adequately restricted to urban areas—I shall deal with that problem in a moment—and they certainly ran the risk of quite unnecessary controls in unnecessary areas.
Our concern is quite clear. We are concerned with the bulk of animals kept as domestic pets in urban areas—that is, areas where the parks, the streets and the pavements are places where large numbers of children play. We believe that they ought to be allowed to do so without risk to their health. The proposals in the amendments apply to the droppings from dogs which will now, by virtue of amendments approved by your Lordships in Committee in the summer, require to be registered. Therefore, the
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obstacles to our previous amendments—namely, that there was no registration scheme which would enable us to pin down the owners of dogs and that they were too widely drawn in relation to the range of animals and areas covered—have now been fully overcome.
However, there are one or two strange difficulties in the matter. For example, when we wanted to define "urban areas", we found that there was no generally accepted definition. It is not the area of an urban district council as one may think and it is certainly wider than a metropolitan area. Of course, there are definitions which are well known to sociologists but it appears that there are no such definitions which are well known to the Government. Therefore, at the beginning of Amendment No. 173A we have had to state that the Secretary of State must designate urban areas for this purpose in order to,
"apply the provisions of this Part".
It is perhaps a clumsy procedure; but it is a provision which may well turn out to be of use at a later stage. I thought of having such a designation in the 30 mph speed zone. However, that does not work because there are speed limit zones of 40 mph and 50 mph in urban areas and there are also pavements in those zones. I therefore pass that buck with great pleasure to the Government and leave it to them to make a decision because they are much better qualified than I am to deal with such matters.
There is also the problem of the definition of "dog droppings" or "dog shit". We have had to table amendments to our own amendments; for example, Amendment No. 174B gives power to the Secretary of State to,
"apply the provisions of this Part which apply to litter to any description of droppings from a dog in all or any prescribed circumstances, and with such modifications as appear to him to be necessary".
That is the kind of provision which I tend to attack from this Dispatch Box because it gives the Secretary of State the power to do what he likes. However, it is necessary in this situation because we are entering what is after all a relatively new area of law. Perhaps I should make clear in what sense it is a new area of law.
Under existing laws there is no difficulty about a local authority setting up a by-law. A by-law can forbid dog droppings, for example, in a specially designated area of a park, and so on. However, the problems with existing law and the reason why dog shit is an offence against people—I do not mean an offence in law—in our cities and towns is twofold. First, there is no adequate definition of what is meant by the words "dog shit". Amendment No. 173A would provide such a definition. Secondly, and much more important, there are no powers available which enable immediate action to be taken. What we are introducing here is an important principle which will bring dog droppings under the litter provisions of the Bill, rather than under statutory nuisance. In other words, we are making it analogous to a litter offence whereby, as in Westminster under the litter code, there is a fixed penalty fine on the spot; or, analogous with a parking offence where there is a fixed fine and where

629
notice can be served on the person in charge of the dog. In the latter case, such a notice would be a fixed-penalty notice and the fine could be paid into a court or at a fixed penalty office in the same way as someone pays a parking fine.
We must ensure that the law is clear and that it is widely recognised that the provisions make it possible for a local authority to enforce it on the spot without unnecessary argument or unnecessary recourse to the courts. We must also ensure it is well understood that it is no longer acceptable for owners of dogs in urban areas of this country to allow their dogs to foul the pavements, the parks, the streets and the public places. That is the purpose of this series of amendments and I commend them to the House. I beg to move.
Lord Stanley of Alderley: My Lords, as this is the first time that the noble Baroness, Lady Blatch, will be responding to me on behalf of the Government in this connection, perhaps I may warmly congratulate her on her new appointment. I should like especially to thank her and her department for the time and help which they have extended to me in respect of the amendments tabled in my name. I appreciate her concern and thoroughness. I hope that we shall agree on most issues. I also hope that she does not miss the comfort of the Back Benches too much.
In supporting this amendment, I have taken note of what my noble friend Lord Hesketh said in Committee. He said that it was not the Government's intention to use Clause 85(13) to control farm animal droppings, not least because they are likely to be so controlled under the Road Traffic Act. Perhaps my noble friend can confirm that statement. At the same time, I wonder whether she can tell the House whether there are any circumstances in which this clause could be used to control farm animal droppings; for example, could it ever apply to private land, especially if that land was in a litter control area? If the answer is yes, obviously it could cause a few problems.
So far as concerns dog droppings, I find myself having to support the noble Lord, Lord McIntosh. I cannot accept the remarks made by my noble friend Lord Hesketh in Committee at col. 1657 on 27th June 1990. He said that if a dog fouls it is not the owner's responsibility as it is the dog which does the actual dropping. I do not want to repeat the vexed question of registration. However, one of its main purposes is to bring home to the dog owner his or her responsibility for his or her dog. I cannot seem to get that message across to the Government. This is another example of the Government ignoring it. People should be as responsible for their dogs as they are for their children. The fact that I have four children and three dogs accounts for the number of grey hairs that I have on my head.
The point made in Committee (at col. 1566) by my noble friend Lord Hesketh was referred to by the noble Lord, Lord McIntosh. He said that the problem could be dealt with by local authority by-laws. He said that the Home Secretary was looking at the scope of the antifouling by-laws. I hope that my noble friend will give us some idea of what they will be. Unless they
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have the same effect as Amendment No. 174B, which classes dog shit as litter, I shall be obliged to support the noble Lord, Lord McIntosh, should be press the amendment.
Lord Addington: My Lords, I give the support of these Benches for the amendment. As someone who has done a great deal of road running/jogging in urban areas, I can say firmly that I am against the souvenirs which our canine friends leave on the pavements although my coach says that it improves my sidestepping when I play rugby. Once again, we must place the responsibility for the control of dogs, and everything that goes with them, upon the owners. Dogs are not designed for living in urban areas. If man chooses to have a dog in an urban area, he must take responsibility for it. The noble Lord, Lord Stanley, put the case well. I hope that the amendment is accepted.
Lord Monson: My Lords, I am fortunate enough to live for most of the year in a local authority area which a few years ago took strong measures against dog fouling. The improvement in the quality of life since has been startling. One would like to see the great benefits of the elimination of that nuisance extended to all urban areas. for that reason, I warmly welcome that amendment.
The Earl of Balfour: My Lords, I am worried about one or two points contained in the amendment. First, on the whole, I prefer the words on the face of the Bill to those of the amendment. If a shepherd is taking sheep along a road—I assume for the moment that the amendment is accepted—and the sheep make a mess on the road, that does not matter. If his dog leaves excreta on the road, the shepherd will commit an offence. I do not see why dogs should be distinguished and separated from horses, sheep, cattle or anything else that uses the road.
Lord Parry: My Lords, with the pleasure that the House is taking in using the vernacular, perhaps we should change the consonant in the word "litter". When the control of a dog is in the hands of the owner, then the owner is responsible for the dog. One could have some system of endorsing the dog's licence to make it responsible and punish it. The serious point is that more dogs roam the high streets and back streets of Britain than sheep even though sheep tend to go in flocks of 50. Thousands of dogs roam the streets. It is a foul menace and we must do something to clear it up. The amendment emphasises that point. As soon as it is brought to the attention of the owner of a roaming dog that his dog has fouled the street or the pavement, he becomes responsible. There is a vast problem with which we must grapple. Although we are talking about dogs on leashes, we must couple that with dogs which roam.
Lord Mackie of Benshie: My Lords, I understand that if farm animals foul the road, it is the farmer's responsibility to clean up the roads, and so I do not know why dog owners should be any different.
Baroness Blatch: My Lords, I start by thanking my noble friend for his general comments about my appointment. It would be tempting fate too much to

631
say that I miss the comfort of the Back-Benches. There are occasionally moments when the Back-Benches would be much more comfortable than standing at the Dispatch Box.
Amendment No. 173A once again raises the issue of dog fouling. I welcome the opportunity offered by the debate to assure your Lordships that we are not complacent about the issue. Fouling by dogs is not just a nuisance; as has been said, it can be a serious health hazard.
I can assure your Lordships that we intend to use the power in Clause 85(13) to ensure that under the new litter duty local authorities and others will be required, as part of that duty, to clear up dog faeces on their land. To that extent, the amendment is unnecessary.
As for extending the litter offence and requiring owners to clear up dog mess in urban areas, we again have no dispute with the intention of the amendment but powers are already available to local authorities to deal with the problem. Local no-fouling and scoop-scoop by-laws already exist in many local authority areas. Other authorities may wish to consider adopting such by-laws, as the noble Lord, Lord Monson, said. The local authorities have it within their remit to take considerable measures. We hope that the passing of the Bill may give a new impetus to that procedure. Those by-laws and related ones ale currently under review in order that we can be certain that they are as effective as possible. My right honourable friend the Home Secretary hopes that he will be able to announce the outcome of the review in the near future. I cannot anticipate that announcement, but I understand that the proposed new litter duty is being taken into account when considering the availability of by-laws. Powers are already available to all authorities. The word "available" is most important in this context since we believe that it is right that authorities should have the flexibility to consider introducing measures which are appropriate for their locality. It would be extremely difficult to make an order covering different parts of the country which offered the same flexibility.
As for Amendment 174, I can assure my noble friend Lord Stanley who admits to having three children and four dogs—I admit to having three children and two dogs—that we do not intend to use the Secretary of State's power under Clause 85(13) to designate farm animal droppings as refuse. There will be no obligation on anybody under the new duty to clear away farm animal droppings, even if the farm is situated in a litter control area. I was impressed by the point made about the farmer's responsibility for clearing up the road. This is only a general comment; but by and large farm animals are not a problem. As the noble Lord, Lord Parry, said, dogs cause the greatest concern.
As noble Lords are probably aware, there has been a long consultation period over the control of dogs. That period has just ended. I hope that we shall be able to make an announcement about the result of that consultation before the Bill receives Royal Assent I almost hesitate to enter into a debate with
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my noble friend Lord Balfour about all the other animals. I can remember with some pain the time spent on the definition of horses, mules and other animals. I shall leave the point by saying that the amendment relates to dogs. On the basis of what I have said, I hope that the noble Lord will feel able to withdraw the amendment. The powers are available to deal with the matter at local level. The objective that the noble Lord wishes to achieve is achieved by measures contained in the Bill and by the powers available to local authorities.
Lord McIntosh of Haringey: My Lords, it is clear that the noble Lord, Lord Stanley of Alderley, is one up on the Minister in terms of numbers of children and dogs. His opinions should have the weight of seven as against the weight of five. I am sorry that we have gone back to an issue which is wrong and which I believed had been cleared up in Committee. No one denies that local authorities have the power and duty to clean up dog mess from the streets. That is not the point at issue. Everyone knows that local authorities are supposed to keep their streets and pavements clean although it is much more difficult to keep playing fields and parks clear of dog shit, but that is not the issue.
In Amendment No. 173A we are ensuring something different. We are ensuring that it is the duty of the dog owner (the person in control of the dog) to clean up. We do so on the basis that the gap between an offence being committed and the time when the local authority gets round to clearing it up—if it ever does—is exactly the time when the danger to health occurs. It is important that a mess caused by dog shit in our streets, in our parks, on our playing fields or wherever the public has access should be cleared up straight away. The only way to achieve that is by what is called a pooper-scooper law.
Aside from that point, I do not believe that any of the arguments have any force against the amendments. The noble Earl, Lord Balfour, is concerned about flocks of sheep. There are not that many sheep in urban areas. It is not that much of a problem. Even if it were, the noble Lord, Lord Mackie of Benshie, has already made clear that there should be no less an obligation on dog owners than there is already upon farmers. Clearly, as a farmer, he does not believe it to be unreasonable to have this control.
The amendment will achieve in a practical way, with such safeguards as are necessary—for guide dogs, for example —that there will be immediate action to clean up dog droppings in public places in our cities and towns. The Government have given no indication to us, other than the promise of a review by the Home Secretary, that there is any reason why there should not be legislation now on this issue.
The Earl of Balfour: My Lords, I apologise for interrupting, but does not Clause 85(13) cover this point? It covers all animals, not just dogs, although it includes dogs.
Lord McIntosh of Haringey: My Lords, I do not know whether the noble Earl is speaking to my Amendment No. 173A and the other amendments in

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the names of other noble Lords. They refer only to dogs in urban areas. There is no reference to other animals in these amendments. We took good care not to repeat the delightful arguments which the noble Viscount, Lord Mountgarret, for example, introduced at Committee stage.
These are simple, clear amendments. They overcome successfully all the objections that were raised at Committee stage. They are capable of being enforced in a way which can only be made effective in the litter part of an environmental protection Bill. They could not be achieved by a review of by-laws because the by-laws could not be imposed on local authorities in the way the litter code can be imposed on them. If we are to get our streets and public places clean I see no alternative to putting these amendments on the face of this statute so that we will not be dependent on any future promises about by-law reviews. I commend the amendment to the House.
6.3 p.m.
On Question, Whether the said amendment (No. 173A) shall be agreed to?
Their Lordships divided: Contents, 67; Not-Contents, 111.

Division No. 2

CONTENTS

Addington, L. [Teller.]

Lloyd of Hampstead, L.

Ailesbury, M.

McIntosh of Haringey, L.

Attlee, E.

Mackie of Benshie, L.

Birk, B.

Mason of Barnsley, L.

Broadbridge, L.

Meston, L.

Carmichael of Kelvingrove, L.

Monk Bretton, L.

Carter, L.

Monson, L.

Cledwyn of Penrhos, L.

Munster, E.

Clinton-Davis, L.

Nelson, E.

Cocks of Hartcliffe, L.

Newall, L.

Craigavon, V.

Nicol, B.

David, B.

Norrie, L.

Dean of Beswick, L.

Northfield, L.

Dormand of Easington, L.

Onslow, E.

Ennals, L.

Parry, L.

Ewart-Biggs, B.

Pitt of Hampstead, L.

Falkland, V.

Rochester, L.

Gallacher, L.

Ross of Newport, L.

Galpern, L.

Saltoun of Abernethy, Ly.

Gladwyn, L.

Seear, B.

Graham of Edmonton, L.

Stanley of Alderley, L.

[Teller.]

Stedman, B.

Greenway, L.

Stoddart of Swindon, L.

Grey, E.

Strabolgi, L.

Hampton, L.

Taylor of Blackburn, L.

Hatch of Lusby, L.

Thurlow, L.

Holme of Cheltenham, L.

Tordoff, L.

Houghton of Sowerby, L.

Underhill, L.

Howie of Troon, L.

Walpole, L.

Jeger, B.

Wedderburn of Charlton, L.

John-Mackie, L.

White, B.

Kilbracken, L.

Williams of Elvel, L.

Listowel, L.

Winchilsea and Nottingham, E.

Llewelyn-Davies of Hastoe, B.

Wise, L.

NOT-CONTENTS

Aldington, L.

Beloff, L.

Allerton, L.

Belstead, L.

Ampthill, L.

Blatch, B.

Arran, E.

Boardman, L.

Astor, V.

Borthwick, L.

Auckland, L.

Boyd-Carpenter, L.

Balfour, E.

Brabazon of Tara, L.

Belhaven and Stenton, L.

Brougham and Vaux, L.

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Butterworth, L.

Lawrence, L.

Byron, L.

Lindsey and Abingdon, E.

Caldecote, V.

Liverpool, E.

Campbell of Alloway, L.

Long, V. [Teller.]

Campbell of Croy, L.

Lucas of Chilworth, L.

Carnegy of Lour, B.

McColl of Dulwich, L.

Carnock, L.

Mackay of Clashfern, L.

Carr of Hadley, L.

Macleod of Borve, B.

Cavendish of Furness, L.

Malmesbury, E.

Cawley, L.

Mancroft, L.

Coleraine, L.

Margadale, L.

Colwyn, L.

Marshall of Leeds, L.

Constantine of Stanmore, L.

Merrivale, L.

Cranbrook, E.

Mersey, V.

Cumberlege, B.

Mills, V.

Darcy (de Knayth), B.

Mountevans, L.

Davidson, V. [Teller.]

Mowbray and Stourton, L.

Denham, L.

Murton of Lindisfarne, L.

Derwent, L.

Norfolk, D.

Dormer, L.

Northbourne, L.

Eccles of Moulton, B.

Orkney, E.

Eden of Winton, L.

Orr-Ewing, L.

Ellenborough, L.

Oxfuird, V.

Elles, B.

Pender, L.

Elliot of Harwood, B.

Penrhyn, L.

Faithfull, B.

Platt of Writtle, B.

Fanshawe of Richmond, L.

Pym, L.

Ferrers, E.

Reay, L.

Flather, B.

Rees, L.

Fraser of Kilmorack, L.

Renton, L.

Gray of Contin, L.

Renwick, L.

Hacking, L.

Rodney, L.

Halsbury, E.

Seebohm, L.

Harmar-Nicholls, L.

Selkirk, E.

Henley, L.

Strange, B.

Hives, L.

Strathclyde, L.

Holderness, L.

Strathmore and Kinghorne, E.

Hooper, B.

Thomas of Gwydir, L.

Howe, E.

Torphichen, L.

Hylton-Foster, B.

Tranmire, L.

Jenkin of Roding, L.

Trumpington, B.

Johnston of Rockport, L.

Ullswater, V.

Killearn, L.

Vaux of Harrowden, L.

Kimball, L.

Wade of Chorlton, L.

Kinnoull, E.

Wyatt of Weeford, L.

Knollys, V.

Wynford, L.

Lane of Horsell, L.

Young, B.

Lauderdale, E.

Resolved in the negative, and amendment disagreed to accordingly.
6.10 p.m.
[Amendments Nos. 174, 174A and 174B not moved.]
Clause 86 [Offence of leaving litter]:
Baroness Blatch Baroness Blatch moved Amendment No. 175:
Page 94, line 7, leave out ("in the open air") and insert ("to which this section applies").
On Question, amendment agreed to.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 176:
Page 94, line 8, at end insert:
("(1A) Subject to subsection (2) below a person shall be guilty of an offence under this section if he recklessly distributes any thing in such a way as is likely to lead to the subsequent defacement by litter of any place in the open air.").
The noble Lord said: My Lords, the purpose of this amendment is to clarify the meaning of Clause 86(1). I wish to establish what the position is when handbills —for example handbills advertising goods, services or events—are placed under windscreen wipers. This often occurs in car parks at agricultural shows. Is it the duty of the car owner to collect this material? If he

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leaves it and it flies off the windscreen and litters a public place, has he committed an offence? Surely it should be the person or the organisation who placed the material on the car who is to blame.
This amendment also seeks to control the reckless and irresponsible distributing of leaflets which are often forced on people as they leave tube stations. They are then discarded on the pavement a few yards further on. I suspect that my noble friend will say that it is the fault of the person who accepts the leaflet. But what is the position of a person who has a coat in one hand and a suitcase in the other and a leaflet is placed on the coat and then falls off? That is not a fancy of my imagination; it happens. The leaflet falls on to the ground and causes litter. Is the offence in this case committed by the distributor of the leaflet or by the innocent recipient of it, or could the innocent recipient claim that he or she had been battered or assaulted? I propose in this amendment the addition of the word "recklessly" to cover both the cases I have referred to. That word would make it clear to such distributors of leaflets that they are at risk of committing an offence. I beg to move.
Lord McIntosh of Haringey: My Lords, I do not know whether the noble Lord attends Conservative Party conferences. However, if he attended Labour Party conferences, he would discover a long line of people distributing leaflets which are thrust into the hands of unsuspecting, or perhaps suspecting, delegates. I certainly fall into the category of a suspecting delegate, and I object as much to "green" leaflets as to Trotskyist leaflets. Both constitute litter in my opinion. I would rather not be given them, and I hope that the Bill will make such leaflets the responsibility of the distributor rather than of the recipient. I support the amendment.
Lord Monson: My Lords, I see that the amendment has been grouped with Amendment No. 185. However, the noble Lord, Lord Stanley of Alderley, did not speak to Amendment No. 185.
Baroness Blatch: My Lords, I hope the noble Lord will forgive me if I point out that Amendment No. 176 has been decoupled from Amendment No. 185.
6.15 p.m.
Lord Monson: My Lords, I am extremely pleased to hear that as they deal with totally separate topics. It is much better to deal with them separately. I strongly support Amendment No. 176, not only from the environmental point of view but also from the road safety point of view. As the noble Lord, Lord Stanley, has pointed out, acceptance of the amendment would eliminate the great nuisance of advertising material being shoved under the windscreen wipers of cars.
If only one windscreen wiper in 10,000 is damaged by this process, it is one too many. Accidents could occur as a result. Worse still, I have seen people drive away in a hurry—I refer to mothers collecting their children from school as an example—in the pouring rain without realising that something has been shoved under their windscreen wipers. They pull out from the kerb, switch their wipers on and realise, too late, that their entire windscreen is covered with torn, soggy
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pieces of paper. A collision is only too likely to occur in consequence. Acceptance of this amendment would not only improve the quality of life; it may also on occasion save the lives of motorists and pedestrians, both adults and children.
Lord Mackie of Benshie: My Lords, I wish to support the amendment and suggest that it might be extended to other things which are affixed to windscreens by people wearing yellow hats.
Baroness Blatch: My Lords, does not the noble Lord mean people wearing black hats with yellow bands? Amendment No. 176 deals with a problem which I am sure we have all experienced at some stage. I hope that I can persuade my noble friend Lord Stanley that the Bill will be able to deal quite adequately with the problem of litter while still allowing those in another place to distribute election leaflets, safe in the knowledge that they are not committing an offence. The amendment might make it an offence to hand out such leaflets. Some may say that that should be an offence. I am sure that, if the truth be told, some people would prefer not to receive election leaflets. However, I am not convinced that another place would welcome an amendment to this effect.
If the amendment were introduced, it could adversely affect many organisations. Charities, for example, might be unable to hand out badges on flag days. One might consider that that practice was not reckless distribution, but there are particular problems in law about assessing whether an act was carried out in a reckless manner.
We are fortunate enough to live in a society where we are free to stand on a street corner and hand out leaflets just as we are free to refuse to take any material offered to us. Most people deal with unwanted paper in a responsible manner and place it in the bin. However, those who do not use bins and throw the material on the ground are littering and action can already be taken under the appropriate clause of the Bill. We are, of course, not able to refuse to take any leaflets left under our car windscreens. However, placing leaflets under car windscreens is and will be an offence. I can reassure the noble Lord that this matter will be covered in the Bill. One cannot refuse to take a leaflet that is put under one's car windscreen, but one can report it as littering. Therefore if it is possible to trace the leaflet back to an owner, one can make a complaint. I hope that with that explanation my noble friend will feel able to withdraw the amendment.
Lord Parry: My Lords, before the noble Baroness sits down, will she apply her mind to her statement about people in another place fighting democratic elections? Those candidates do not seem to me to be as good looking these days as was the case when most of us were fighting election campaigns. If those candidates stick their posters up and engage in fly posting, they can be made to take them down. Is it not simply an extension of that rule that if candidates recklessly dispose of election leaflets, they are littering? Does not the same law apply in that case?
Baroness Blatch: My Lords, I understand that fly posting during an election is an offence. I believe that it breaches the rules governing elections. That is another subject. Fly posting constitutes posting up leaflets on either council property or private property without permission. Therefore that could be reported as an offence.
Lord Monson: My Lords, I hope that the Minister can clarify a further point before she sits down. She said that placing advertising material under car windscreens would constitute littering. Is the material considered to be litter when it is under the windscreen wiper, or only when it falls on to the ground after having been so placed?
Baroness Blatch: My Lords, I can answer that question. The material is litter while it is under the windscreen wiper.
Lord Stanley of Alderley: My Lords, I found my noble friend's answer somewhat confusing, as I believe did other noble Lords. As I understand what she said, if someone comes along and puts a leaflet or a beautiful picture of my parliamentary candidate on my windscreen, I drive off and it falls on to the road the fault will lie with the person who put the leaflet on my windscreen because I did not willingly receive it. I may be wrong. I am not asking my noble friend to reply unless she wants to; I should be happy to return to the matter at Third Reading.
Baroness Blatch: My Lords, with the leave of the House perhaps I may respond. The placing of a leaflet on a windscreen is an offence; it is litter. However, if you go back to your car and drive away knowing that the leaflet is on your windscreen you are deemed to have received it.
Lord Stanley of Alderley: My Lords, that is a very helpful explanation. As I now understand it, if I see my parliamentary candidate—who is doubtless from the same party as myself—putting his beautiful picture on my windscreen I can say "You have committed an offence, take it away, I do not like your face". If, on the other hand, I drive away and the leaflet blows on to the road it is my fault for driving off with it on the windscreen.
I believe that the matter is now clear. I am most grateful to my noble friend for her explanation because it is important that people and organisations should know that they are at risk of prosecution if they wander around putting information on car windscreens. I hope that some prosecutions will be taken out soon after the Bill is passed. I am most grateful to my noble friend. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendments Nos. 177 to 184:
Page 94, line 15, after ("to") insert ("any public open place and, in so far as the place is not a public open place, also to").
Page 94, line 17. leave out ("and any other free public open place").
Page 94, line 18, leave out ("which is not a free public open place").
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Page 94, line 20, leave out ("which is not a free public open place").
Page 94, line 23, leave out ("which is not a free public open place").
Page 94, line 25, leave out ("which is not a free public open place").
Page 94, line 27, leave out ("which is not a free public open place").
Page 94, line 28, leave out ("free").
On Question, amendments agreed to.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 185:
After Clause 86, insert the following new clause:
("Prohibition on the sale of ring pull containers
.—(1) For the purpose of preventing the defacement by litter of, and the creation of a public nuisance in, any place to which this section applies, any retailer who sells a beverage contained in a ring pull container after the end of the period of two years beginning with the day on which this Act is passed shall be guilty of an offence.
(2) This section applies to those places to which section 86 above applies.
(3) A retailer who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(4) In this section—

"retailer" means a person whose business is or includes that of selling a beverage for the purpose or use of consumption of that beverage and in the case of sale by a vending machine includes the owner of that vending machine;

"ring pull container" means a sealed container wholly or mainly constructed of metal and designed to be opened without the aid of an instrument by the complete removal and separation of a portion of the container from the rest of the container.").

The noble Lord said: My Lords, the amendment deals with the problem of what I call those little bits that come off the top of a can and litter the streets and countryside and cause damage to my livestock or to children. I moved a similar amendment in Committee but have amended it to take account of the problems raised by the Government and my noble friend Lord Swinfen, who I am delighted to see has added his name to the amendment. The purpose of the amendment is the same, namely, to ban the sale of beverage containers which have detachable ring-pull tabs. Those little bits, as I call them, are very sharp and can cause injury to livestock and children. I am sure that every noble Lord in the House has seen them littering the streets.
In opposing a similar amendment in Committee my noble friend Lord Hesketh (at cols. 1674 and 1675 of Hansard) said that there would be a problem of disposing of stocks of cans with detachable ring-pulls. He said that with some beverages, such as low-alcohol beer, there were technological problems. He added that the fine that I suggested was excessive. My noble friend also said:
"Nonetheless, the manufacturers expect all cans to have the new non-detachable ring-pull within the next couple of years".—(Official Report, 27/6/90; col. 1674.]
As a result of my noble friend's helpful remarks and those of my noble friend Lord Swinfen the amendment has taken full account of the problems raised and the provision will not come into force until two years after Royal Assent. As always, I am being

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more than generous to the manufacturers and to my noble friend's suggestion. I have also altered the level of fines as my noble friend suggested.
I sincerely hope that if she will not accept the amendment my noble friend Lady Blatch will not suggest that the reason is the litter caused by cans and not just by the ring-pulls. I pray that she does not put that forward as a reason because, with due respect, it is a fairly stupid one. I beg to move.
Lord McIntosh of Haringey: My Lords, we strongly support the amendment, which seems to have overcome all of the rational difficulties which were suggested against it at Committee stage. Although it may seem a very minor matter, as the noble Lord, Lord Stanley, said, it represents a health risk and is something that could so easily be put right and should be put right. There is experience, I believe in South Australia, of the proposed measure having been made to work effectively and there is no reason why we should not introduce it here and now.
Lord Monson: My Lords, this is another extremely worthwhile amendment. The arguments advanced against a similar amendment—although it had not been perfected as this one has—at the previous stage were wholly unconvincing. The argument was that it was tough on the poor manufacturers to be obliged to eliminate their dangerous ring-pulls.
We have had a hot summer, and at least two-thirds of the numerous cans of beer, lager and soft drinks that my family and I consumed over that period were of the new, environmentally friendly type, irrespective of the outlet from which they were bought. Therefore I cannot believe that the older type of ring-pull cannot be phased out easily before the two-year period which the amendment permits.
As the noble Lord, Lord Stanley, pointed out, acceptance of the amendment would also have a secondary benefit by not only reducing litter but also reducing the danger to animals which are prone to swallow the old-fashioned type of ring-pull.
Lord Addington: My Lords, I am very pleased to support the amendment from these Benches. It is very sensible. It is generous in the amount of time that it gives manufacturers to put the correct type of ring-pull on their cans. We should not have to introduce this amendment because the matter should be included in the Bill. It is simple, straightforward and would avoid a great many problems, especially for grazing animals.
Lord Parry: My Lords, the House will remember that the Ideal Homes organisation recently made a massive collection of cans and brought home to us the dangers of the ring-pulls which were scattered about the country. The organisation was recently given an award for its efforts.
In enthusiastically supporting the amendment I believe that the House should congratulate the noble Lord on the amount of work that he has done. He has taken the trouble to contact many manufacturers and a great many people in order to see that the amendment almost exactly meets the responsibilities involved.
Baroness Blatch: My Lords, at the risk of sounding stupid to my noble friend I have to say, first, that the amendment would make it an offence for a retailer to sell a drink contained in a can with a detachable ring-pull. It gives the can makers a period of grace of two years. The can makers are making positive efforts to switch to the new style cans, but my noble friend believes that his amendment is required to speed up that solution. I do not believe that the available evidence supports that view.
I hope that I am able to give my noble friend some encouraging information which updates the information that was reported at Committee stage. I understand that more than 95 per cent. of soft drink cans already have the non-detachable environmental ends. The comparable statistic for beer cans is 70 per cent. I am told that this lower figure is mainly because of the technical difficulties but that the great majority of beer cans will have switched by the spring of next year. Allied Beer Brands, which is part of the brewing division of Allied Lyons, started to introduce non-detachable ends on all its canned products from May this year, and other major firms such as Coca-Cola and A. G. Barr—which will be known at least to my Scottish noble friends and colleagues around the Chamber—already use cans with non-detachable ring-pulls.
The upshot is that by the spring of next year all but one or two isolated producers will have brought in the new style cans, and those isolated producers are expected to conform during 1991. In the light of this evidence we believe that it would be wrong to legislate. In this case the market is proving that it can deal with the problem on its own, and, as your Lordships know, the Government's general preference is for industry and commerce to adopt their own solutions, with legislation as a last resort if the voluntary approach does not yield results.
The noble Lord suggested that Britain could become a dumping ground for old style cans from the Continent. I do not believe that that will be the case. All major UK producers run production lines supplying fillers with cans plus ends as a complete package. There is little likelihood of their importing ring-pull ends for attachment to cans nor of fillers reverting to ring-pull ends, which increasingly attract consumer opposition. Imports of filled cans in fact account for less than 5 per cent. of UK consumption, and since the drive for "environmental ends" originated from abroad, this is unlikely to be a significant future source of ring-pull cans.
The real problem is the amount of cans which are thrown not in bins but on our roads and in our parks. We shall be dealing with that through the provisions of the Bill. I hope that that is a sufficient update of information and is an encouragement to my noble friend to persuade him to withdraw his amendment.
Lord Stanley of Alderley: I do not think so, my Lords. Perhaps I may start with the last part of the Minister's reply. My noble friend walked into the trap of saying that what she is worried about is the can and not the small piece on the top of it. If one carries that form of thought to its illogical conclusion, one will

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say, "We only need bother about the large litter; don't let us bother about little bits". As I am sure the noble Lord, Lord Parry, will agree, little bits of litter soon create big bits of litter. So I do not like the Minister's argument.
My noble friend then said that it will all be okay and everything will be all right. If that is so, why does she object to the amendment? She reminded me of something I had forgotten that I had said at Committee stage; namely, that we could become a dumping ground for all those cans which have not yet been modernised. Of course that could happen. Despite what my noble friend says, we could become a dumping ground. One sees time and again that when stock is left over and we are the only place that will take it, we shall have it.
I am not happy with my noble friend's answer. I should like to press the amendment if noble Lords will support me.
6.32 p.m.
On Question, Whether the said amendment (No. 185) shall be agreed to?
Their Lordships divided: Contents, 51; Not-Contents, 85.

Division No. 3

CONTENTS

Addington, L.

Lawrence, L.

Blackstone, B.

Llewelyn-Davies of Hastoe, B.

Carmichael of Kelvingrove, L.

McIntosh of Haringey, L.

Carter, L.

Mackie of Benshie, L.

Cledwyn of Penrhos, L.

Mason of Barnsley, L.

Clinton-Davis, L.

Meston, L.

Cocks of Hartcliffe, L.

Monk Bretton, L.

Craigavon, V.

Monson, L.

Darcy (de Knayth), B.

Norrie, L.

Dean of Beswick, L.

Northfield, L.

Dormand of Easington, L.

Parry, L. [Teller.]

Ennals, L.

Pender, L.

Ewart-Biggs, B.

Pitt of Hampstead, L.

Falkland, V.

Prys-Davies, L.

Graham of Edmonton, L.

Ross of Newport, L.

Greenway, L.

Saltoun of Abernethy, Ly.

Grey, E.

Seear, B.

Hacking, L.

Seebohm, L.

Hampton, L.

Stanley of Alderley, L. [Teller.]

Hatch of Lusby, L.

Stoddart of Swindon, L.

Holme of Cheltenham, L.

Strabolgi, L.

Houghton of Sowerby, L.

Taylor of Blackburn, L.

Howie of Troon, L.

Tordoff, L.

Hylton Foster, B.

Underhill, L.

Jeger, B.

Walpole, L.

Kilbracken, L.

NOT-CONTENTS

Aldington, L.

Caldecote, V.

Allerton, L.

Campbell of Alloway, L.

Ampthill, L.

Campbell of Croy, L.

Arran, E.

Carnegy of Lour, B.

Astor, V.

Carr of Hadley, L.

Attlee, E.

Cavendish of Furness, L.

Auckland, L.

Colwyn, L.

Belhaven and Stenton, L.

Constantine of Stanmore, L.

Belstead, L.

Cumberlege, B.

Blatch, B.

Davidson, V. [Teller.]

Boardman, L.

Denham, L. [Teller.]

Borthwick, L.

Eccles of Moulton, B.

Boyd-Carpenter, L.

Eden of Winton, L.

Brabazon of Tara, L.

Elles, B.

Brougham and Vaux, L.

Elliot of Harwood, B.

Butterworth, L.

Faithfull, B.

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Flather, B.

Murton of Lindisfarne, L.

Gray of Contin, L.

Napier and Ettrick, L.

Henley, L.

Nelson, E.

Hives, L.

Newall, L.

Holderness, L.

Norfolk, D.

Hooper, B.

Onslow, E.

Howe, E.

Orkney, E.

Johnston of Rockport, L.

Orr-Ewing, L.

Kimball, L.

Oxfuird, V.

Knollys, V.

Penrhyn, L.

Lane of Horsell, L.

Piatt of Writtle, B.

Lauderdale, E.

Reay, L.

Lindsey and Abingdon, E.

Rees, L.

Liverpool, E.

Renton, L.

Long, V.

Rodney, L.

Lucas of Chilworth, L.

Selkirk, E.

Lyell, L.

Strange, B.

McColl of Dulwich, L.

Strathclyde, L.

Malmesbury, E.

Strathmore and Kinghorne, E.

Margadale, L.

Thomas of Gwydir, L.

Marshall of Leeds, L.

Tranmire, L.

Merrivale, L.

Trumpington, B.

Mersey, V.

Vaux of Harrowden, L.

Mills, V.

Wade of Chorlton, L.

Mountevans, L.

Wyatt of Weeford, L.

Mowbray and Stourton, L.

Wynford, L.

Munster, E.

Resolved in the negative, and amendment disagreed to accordingly.
6.40 p.m.
Clause 87 [Fixed penalty notices for leaving litter]:
Lord Meston Lord Meston moved Amendment No. 185A:
Page 95, line 33, at end insert:
("() Nothing in this section permits an authorised officer of a litter authority to enter, or to take any action in relation to an alleged offence under section 86 committed in, private property without the agreement of the owner or occupier of that property.").
The noble Lord said: My Lords, I hope that I shall be allowed to speak to Amendment No. 185A and several of my other amendments separately. At Committee stage it was common ground that Part IV of the Bill was entirely laudable in its overall objective. It seems also to have been common ground that a balance had to be struck between dealing with litter at source and any unnecessary infringement of private property rights.
The Bill introduces various concepts such as public open space and relevant land about which I shall have a little more to say later. It also introduces a power of designation of litter control areas. Without going into details of those matters at this stage, it is clearly envisaged that the Bill could extend in this part to private property. I do not suggest that private property should be immune from all the litter provisions of the Bill. However, I question whether the machinery of Clause 87 should apply to private property.
Clause 87 introduces a form of fixed penalty notice whereby a litter officer could give a form of parking ticket to an offending property owner or occupier. In order to assess the need for such a notice, to give the notice, and to try to identify the correct recipient of the notice, the litter officer may well feel the need to enter private property.
If that is the consequence of Clause 87, we should as always be careful in giving unfettered rights of entry by public officials on to private land. To encourage the

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private landowner or occupier there are other carrots and sticks that can be applied. The landowner or occupier should first and foremost have an opportunity to deal with matters himself using his own resources and manpower. He should also have an opportunity to co-operate with the litter officer.
My amendment would allow entry on to private land by agreement. If all else fails, the landowner or occupier will be vulnerable to the procedures and proceedings under what are now Clauses 90 and 91 —the real teeth of this part of the Bill.
Accordingly, I invite your Lordships to accept the amendment on the basis that it will not completely debar entry on to private land but will only debar entry on to private land without agreement. The recalcitrant and reckless landowner or occupier who causes litter can be dealt with in other ways. I beg to move.
The Earl of Balfour: My Lords, I have some sympathy with the amendment. I am becoming very fed up with local authority officials walking all over my property without even bothering to ask me about it or to let me know that they are coming. Very often legislation does not fully take account of the private landlord who in many cases is up against many difficulties with regard to litter or other problems. There is some force in what the noble Lord, Lord Meston, says.
Lord Reay: My Lords, my understanding is that Amendment No. 185A was grouped with several other amendments in the noble Lord's name. However, in this case I can give an answer separately. I can state the Government's position.
Amendment No. 185A would prohibit an authorised officer of a local authority from entering private property for the purpose of issuing fixed penalty notices without the agreement of the owner or occupier of that property. I can assure my noble friend Lord Balfour that the amendment is unnecessary as without the consent of the owner or occupier the authorised officer would be trespassing. I hope for that reason that the noble Lord will see fit to withdraw his amendment.
Lord Meston: My Lords, I am grateful to know that I struck a chord with at least one other noble Lord in the Chamber. I am also grateful to the Minister for his view of the issue. I should like to consider the issue a little further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 88 [Duty to keep land and highways clear of litter etc.]:
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 186:
Page 96, line 26, after ("(1)") insert ("Subject to subsections (6A) and (6B) below").
The noble Lord said: My Lords, this is a paving amendment to Amendment No. 189. Amendment No. 189 has two objectives. In new Section (6A) of the amendment the intention is to explore the possibility that the highway authority's duty to maintain roads —and that includes verges—and the district council's duty to clear litter from the highways may not be
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properly co-ordinated as the Bill stands. It would appear that a highway authority could mow the grass verges thus revealing a considerable amount of unsightly litter. I am sure that all noble Lords have seen that. They can do so without informing the district council, which is normally the litter authority.
The amendment places a duty on the authorities to arrange between them for any litter so exposed to be cleared as soon as possible and in any case within two days. If the district council undertakes the work, then it would be entitled to reimbursement for its expenses from the highway authority.
That could encourage the highway authority, for instance, when asking for tenders to mow verges to insist on the contractor clearing up the mess that he makes. It would also have the effect of stopping highway authorities needlessly and mindlessly mowing small lanes in early May so destroying wild flowers and achieving no better road safety. As a farmer, I know to my cost that grass does not grow luxuriantly until the end of May; and certainly not at the beginning of May.
The other purpose of Amendment No. 189 is contained in new Section (6B). That provides a duty on district councils to ensure that so far as is practicable highways are kept clear of litter and refuse. Although the duty includes verges since they are part of the highway, it would not include removing litter from hedges or fences adjoining the highway. That seems to me to be somewhat stupid, if I may say so. In most cases the hedge will be on the adjoining farmer's land. However, from the point of view of the passer-by, the verge and hedge are all part of the same visual scene. It would seem to me to be absolutely correct and in the interests of the community to ensure that hedges and fences are not left out of this desirable duty on local authorities. It would be ridiculous to do so.
That part of the amendment would also solve another anomaly. As I understand it, if one throws a beer can—which I am afraid will still have a detachable ring on it—out of the car window and it rests on the adjoining hedge one will have committed an offence liable to a fine of £1,000. If one does the same thing while not on the highway but just on the verge, one will not have committed that offence. The farmer would have to take a civil action. If we mean to tidy up our countryside, we must try to tidy so far as the adjoining hedge. I beg to move.
Lord Brougham and Vaux: My Lords, I support my noble friend on this amendment. We have recently had Written Answers about the M.4 and the garbage that has been thrown into the central reservation. I presume that the noble Lord's amendment would cover this. When one drives up and down the country, one finds some of the motorways are quite disgusting, and this amendment should make it the local authority's business to tidy up our motorways.
Lord Monk Bretton: My Lords, I am not sure whether my noble friend intends to press the amendment, although he has been very aggressive in his amendments so far today, but I hope he will not

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because I am not sure that this is exactly right. Nevertheless, it is most important that the subject has been raised.
It is of interest, that this is a view taken both by the county council and the district council where I live. They are concerned about the matter of co-ordination. The district council has been trying to get schedules of grass cutting work from the highway authority, with some difficulty, and then trying to co-ordinate them with its plans for cleaning. It is very difficult indeed to get down to the two days for which my noble friend is asking.
There have been a number of problems over this which can also be aggravated by lesser frequency of grass cutting. If the grass grows longer, it blows everywhere, gets into drains, and is much more pestilential to clear up than might otherwise have been the case. Also, grass and litter will get chopped up together. This situation is just about par for the course. That is what I gathered from the Association of District Councils.
It seems to me that a better solution would be for the highway authority to get the district council to cut the grass as well as to clear the litter. Then a lot of the co-ordination problems would be eliminated. That might work provided that the district councils are paid satisfactorily by the highway authority. Perhaps we should ensure that something is arranged on those lines for the good of all.
Baroness Blatch: My Lords, perhaps I may start by clearing the detail out of the way for my noble friend Lord Stanley. He used the example of the comparison between somebody standing on the highway and throwing away a can and somebody standing on the roadside verge and doing the same, and not being subject to the same penalties. I can assure my noble friend that if someone throws litter onto the verge of a highway while standing on the verge that is still an offence under the Bill since the legal definition of a highway includes the verges of the roadside. Therefore, regardless of where the litter lands, an offence will have been committed.
Guidance on the discharge of the cleaning duty imposed by Clause 88(1) is to be set out in the code of practice to be published in accordance with Clause 88(7) and which will fall to be approved by Parliament in accordance with Clause 88(11). The Government have already consulted widely on a draft of this code, which included standards for clearing litter and refuse from roads. Standards set out in the code are to be based on visual appearance comprising four grades ranging from Grade A, which is "no litter or refuse", through to Grade D, which is "heavily littered".
The first part of the noble Lord's amendment comprising the proposed new subsection (6A) draws attention to the fact that cutting of vegetation on highway verges may expose litter to view. Such cutting becomes necessary for road safety purposes to ensure drivers' lines of sight are not obscured. Maintenance of a road in a safe condition is the responsibility of the
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highway or roads authority. Equally, any litter that may be present would be exposed to view when roadside vegetation dies back in the winter months.
However litter may become exposed to public view, the first consideration is whether it requires action in accordance with the approved code of practice. If action is required, then it should be taken by the local authority having the duty to clear litter and refuse under Clause 88(1)(a). It would not be appropriate to shift the responsibility to the highway authority and expect them to meet the cost simply because their activity has revealed the presence of litter.
The code will specify how quickly action should be taken to remove litter. In clearing litter from roads, traffic management measures may be necessary to ensure the safety both of those doing the work and of road users. The response times in the code will take account of the balance to be struck between the desirability of clearing litter and the need to maintain road safety. However, I recognise the noble Lord's particular anxiety, and we shall draw attention in the advisory section of the code to the problem of litter being exposed by grass cutting.
The definition of highway used in this part of the Bill includes the verge, as I mentioned earlier. If litter is trapped by a hedge or fence within the highway boundary and is accessible from the highway, then it will be the duty of the responsible authority to clear it so far as is practicable. Again, this can be made clear in the code of practice. So the second part of the proposed amendment comprising the new subsection (6B) is unnecessary. It would not be appropriate to expect the local authority to clear litter or refuse which might have been trapped outside the highway boundary and which is not accessible from the highway. That must be the responsibility of the adjoining landowner.
I hope with that explanation my noble friend will feel able to withdraw his amendment.
Baroness Carnegy of Lour: My Lords, before my noble friend sits down, she spoke as if the code of practice will be entirely about grass cutting. Does she appreciate that machines cleaning ditches beside the road produce an enormous amount of litter as well? My noble friend's amendment says "any other maintenance". Will she make sure that it is all road maintenance that produces litter that is affected and not just grass cutting?
Baroness Blatch: My Lords, my understanding of the code of practice, which will only be formulated with consultation with all the appropriate authorities, is that the code of practice will include all forms of litter clearance on any kind of highway.
Lord Stanley of Alderley: My Lords, I do not intend to press the amendment, which was a probing one. I shall read very carefully what my noble friend has said. It may be that she could write to me; but she referred to the code of practice, and the particular point which I should like her to bring out in the code of practice concerns whether it will state that the highway authority, when it is clearing the highway and the verges, will be bound to inform the litter authority,

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that is the district council, that it is going to do it and when it is going to do it. The point was made very forcefully by my noble friend Lord Monk Bretton. It is very important that there should be co-ordination there.
There is another point on which I feel I must have misheard the noble Baroness. She said that it would be the duty of the litter authority to clear the verges and the highway, and that is quite clear to me; but what is worrying me is that they should clear to the adjoining edge. I think that is vitally important. I was not quite clear whether or not she said that that would be their duty. I am not asking her to reply to this now; but perhaps she would let me know before Third Reading because this is a matter we should address again. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 189 not moved.]
Clause 89 [Litter control areas]:
7 p.m
Lord Meston Lord Meston moved Amendment No. 189A:
Page 98, line 20, at end insert:
("() Nothing in this section shall authorise the Secretary of State to prescribe descriptions of land under subsection (1) above which include land which is not in the open air.").
The noble Lord said: My Lords, may I preface my remarks on this amendment by asking your Lordships——
Lord Reay: My Lords, would the noble Lord give me a moment? Does he intend to speak to the rest of the amendments in his name with which this one is grouped in the list?
Lord Meston: My Lords, I regret to say that I was not consulted about the groupings. With respect, they are separate topics. I am happy to talk to Amendments Nos. 189A and 189B together, if that is convenient to the Government Front Bench, and also to Amendments Nos. 189D and 189E in due course; but I hope I am not being tiresome in not wishing to be confined to the groupings on the list, because it is not convenient or manageable to deal with the matter in that way.
On Amendment No. 189A, I was going to ask your Lordships to cast a critical eye on the terminology of this part of the Bill. The concepts used make what is meant to be a straightforward scheme confusing. First, there is "relevant land" in Clause 85(4), defined as land which is open to the air. Then there are various other types of "relevant land" such as "relevant Crown land" which must be open to the air and accessible to the public, although Clause 85(8) enables the Secretary of State to exempt altogether Crown land, local authority land and other publicly owned land.
Under Clause 86 we had what was described as a "free public open place", amended this afternoon to "public open place". Under Clause 86(4) that means a place in the open air or, as I interpret it, somewhere that is partially covered but available for public use. Presumably the draftsman had something in mind
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when he distinguished between land that was in the open air and land that was open to the air, but it escapes me for the moment.
Under Clause 89 we have another concept—the designated litter control area. Government Amendments Nos. 177 to 184 have removed some of the confusion, but the position still lacks clarity and consistency and it is consistency with which Amendment No. 189A is concerned. It appears to be inconsistent if, as I understand it, publicly owned buildings which are publicly accessible are not caught by this part of the Bill because they are not open to the air but private buildings could be so caught by virtue of the provisions or prescription and designation under Clause 89. I question the logic of the position.
My amendment seeks to introduce some consistency, if not logic, because there is no good reason why Crown land and other public buildings should have some form of partial immunity. That is a criticism of the language of the Bill, which we all want to work and to be understood readily by those who have to operate it.
Amendment No. 189B is a separate topic, but I shall deal with it briefly. It is self-explanatory. The Bill does not contain a provision to allow for the revocation of designation orders when they are no longer necessary and the continuation of an order is no longer justified. Obviously, such a state of affairs might arise with a change of character of the land concerned or a change of owner of the area designated. That is a curious omission from the Bill. I beg to move.
Lord Reay: My Lords, Amendment No. 198A would prohibit the Secretary of State from including descriptions of land which are not in the open air among those which can be designated as litter control areas under Clause 89.
We cannot accept the noble Lord's amendment. There may be enclosed areas, including for example some shopping centres, which are defaced by litter and refuse. We want to ensure that such conditions do not persist and feel it necessary that those areas are capable of being designated as litter control areas. We accept that shopping centres have their own arrangements for cleaning and that such areas are in many instances much cleaner than some local authority land. However, there may be occasions when fully enclosed land may be in such a condition as to warrant designation as a litter control area. I must stress that land can be designated only if it is defaced by litter in the first place. If shopping centres are kept free of litter, they cannot be designated. It is therefore important that the amendment should not be accepted.
The second amendment to which the noble Lord spoke, Amendment No. 189B, requires a local authority to revoke orders designating land as a litter control area if requested by the occupier of the land and if it is satisfied that the reasons for designating the land in the first place no longer apply and are not likely to return once the order has been revoked. The format of the clause is based on the precedents of the

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Public Health Acts and the Control of Pollution Act, none of which provides for the withdrawal of an abatement notice if the nuisance concerned ceases to exist. That concept is based on the premise that, where the nuisance has ceased, the effect of the notice has effectively lapsed, although it would continue to have force should the problem recur.
It is the same with the designation of an area of land as a litter control area. If the reasons for making the original order no longer applied and the land was kept in a clean and tidy condition, the owner would have nothing to fear from continued designation, which would in practice have ceased to have effect. However, its continuing existence might be valuable if there were to be a subsequent falling off in the standards of cleanliness achieved. The amendment of the noble Lord and the case that he puts for it sound reasonable, but for the reasons that I have given I must ask him not to press it.
Lord Meston: My Lords, I do not intend to press either amendment at this stage. The aim of Amendment No. 189A was to protest at the confusing concepts in the Bill and to draw attention to the illogicality. As the noble Lord said, public libraries and other public buildings of that kind can be just as untidy and littered as a shopping centre, but a shopping centre can be caught while a public building cannot be caught. That is illogical. I do not understand the Government's position, but I do not propose to press the amendment at this stage.
I am a little disappointed by the answer to Amendment No. 189B. There is a distinction between withdrawal of an abatement notice and withdrawal of a designation under Clause 89. Under Clause 89, a designation seems to be a far wider and more far-reaching concept than a simple abatement notice, which usually deals with one specific problem. However, I do not propose to press that amendment either. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 189B not moved.]
Viscount Davidson: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, perhaps I may suggest that the Report stage begins again at five minutes past eight.
Moved accordingly, and on Question, Motion agreed to.

Avon Light Rail Transit (Bristol City Centre) Bill [H.L.]
7.7 p.m.
Lord Cocks of Hartcliffe: My Lords, I beg to move that this Bill be now read a second time.
This is a fairly standard Bill of this nature containing the normal provisions. I declare an interest in the Bill, first, as one who has been associated for several years with the company promoting the Bill —an interest which is well known in the Bristol area —and, secondly, as a resident of Bristol. I have lived
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in Bristol since 1941 and seen over the years the constant increase in traffic congestion and frustration for travellers. It is to ease that situation that the Bill is put forward.
The county of Avon came into being in 1974 as a result of the reorganisation of local government. With a population approaching 1 million, the major urban areas are Bath, Bristol and Weston-super-Mare. Although Bristol's population is decreasing, there has been substantial growth in other parts of the county and more is planned, particularly north and north-east of Bristol and east of Weston-super-Mare.
Land use transportation studies in the 1970s highlighted the high level of car availability and usage. Taking figures from the 1981 census shows that among urban areas with a population of over 500,000 the greater Bristol area has the highest car availability in Great Britain at 0·82 cars per household and the highest proportion of households—over 63 per cent. —having at least one car available. Clearly, since 1981 those figures have increased.
At the end of 1988 the number of cars and light vans registered in Avon was 378 per 1,000 population or 11 per cent. above the level in Great Britain as a whole. Even more important, the figures show that some 56 per cent. of the residents of the Bristol urban area travel to work by car. Again, that figure is the highest in the country among the larger cities.
The other side of that picture is that in 1981 only 23 per cent. of all trips to work in central Bristol were made by bus or train. The county remains a strongly developing area and the pressures upon the Bristol transport network grow inexorably. In 1989 alone in that area 4,200 new houses were completed, as were 100,000 square metres of office space.
The company promoting the Bill was formed in 1986 with the ambition to propose a light rail public transport system for Avon County. Initial plans were drawn up on which a feasibility study was carried out and completed in July 1987. The company lodged its first Bill in Parliament in November 1987 for the route from Portishead to Bristol city centre. Royal Assent was given in May 1989. In November 1989 two further Bills were lodged, one for the Bristol city centre, which we are discussing this evening, and one for the route from Temple Meads to Bradley Stoke and Yate. The three Bills will link up to form the first phase of a comprehensive system.
The Bristol city centre Bill, involving street running, required consent to lodge the Bill from the county council and Bristol City Council. Avon County Council as the highway authority gave consent in January of this year. After substantial negotiations with Bristol City Council, consent was given in June of this year. The Avon LRT Bill 1989 for the route to Bradley Stoke and Yate also had a section of street running, but consent to lodge was obtained and the Bill has received its Second Reading in your Lordships' House.
The company has formed a joint venture with the county council which was finalised in August this year.

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Three of the district councils have become countersignatories to the joint venture—namely, Northavon, Woodspring and Wansdyke. Bath City Council is considering the possibility of also becoming a signatory.
The company has entered into a similar agreement with Bristol City Council. Each agreement sets out a method for formulating decisions in the design and implementation of the project. Obviously the agreements do not preclude the councils from petitioning against current or future Bills, but there is a general spirit of co-operation.
The company also finalised in March of this year an agreement with Badgerline. Badgerline is a bus company which operates 95 per cent. of the bus services in the area. This will enable the provision of a fully integrated public transport system.
The company has completed environmental assessments for the two current Bills, each of which is currently the subject of public consultation. It has also completed all the elements necessary for an application for Section 56 Department of Transport grant. These documents have been submitted to the department and negotiations are under way. It is hoped that a full application will be made in the new year.
The first three Bills provide a route of 52 kilometres —I am afraid that it is a sign of the times that I use the metric measure without comment on it—with an estimated ridership of 64,000 journeys per day at the end of the first year of operation, programmed to be in 1995. Such figures will have a considerable impact on the increasing traffic congestion in and around the city. The present level of car engine fumes has created unacceptable levels of air pollution, particularly during the past two summers.
All being well, the company plans further routes in the future, particularly a south Bristol route linking the large post-war housing estates of my former constituency with the city centre and creating new job opportunities. There is also the inclusion of the current British Rail routes to Avonmouth, a link to Bath and a service within Bath itself. The company has identified the need and offered a solution. Regarded by many as a pipe-dream at first, the project now has widespread support. The question most frequently asked is how soon the system can be running. The benefits, as illustrated on the grant application, will be substantial in their effect on traffic congestion, safety, improved environment and opportunities for regeneration and new jobs. The best estimate of the number of jobs which will be created by the system is some 2,700, which will be a very welcome addition to Bristol's opportunities.
Much of the route follows old and disused railway lines, making use of disused infrastructure, which is illustrated by the viability and the wide service to be provided. Particular attention will be paid to the needs of the elderly and disabled by the use of low-bedded vehicles and kerb-side stops in the city centre and shopping centres.
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The Bill is an essential link in an imaginative plan to alleviate traffic problems in Bristol and Avon. I ask your Lordships to give it a fair wind.
Moved, That the Bill be now read a second time. —(Lord Cocks of Hartcliffe.)
7.14 p.m.
Lord Stoddart of Swindon: My Lords, I am sure the House will wish to thank my noble friend Lord Cocks for the succinct and clear way in which he presented this Bill. I am sure that the House will be impressed also by the arguments which he used in favour of it. I did my best to convert 52 kilometres into miles because I only understand miles. I believe that it is about 32.5 miles. Therefore, I now know exactly the proposed length of route. I hope that has helped my noble friend and I believe it will be the only time I shall help him during my speech. Nevertheless, I hope that I have helped him on that matter.
The importance of the Bill was drawn to my attention by Mr. Leonard, who represents, among others, the Eastern Community Association. At first I was reluctant to become involved with the Bill, which concerns the interests, amenities and environment of the city of Bristol and its environs and of course the citizens of that area and which after proper and due debate should be decided by them. That is still my view. Therefore, I shall not go deeply into the merits of the Bill itself. In any event the opportunity for that will arise in another place when they can be discussed by people who are properly elected by the citizens of Bristol and other constituencies.
However, I became concerned at the manner in which the consent of the local authority had been obtained. It is required under Standing Order 25 before a tramway or light railway Bill can be introduced. My anxiety remains. Indeed it became deeper when I read the report of the examiners and their conclusions. Perhaps it would be as well if I quoted from the report about the sequence of events in Bristol City Council referred to by my noble friend.
I can do no better than quote from paragraphs 6 and 9 of the report. Page 2 is headed:
"The sequence of events in Bristol City Council".
Paragraph 6 states:
"The City Council met on 12th December 1989 and considered a report from their Planning and Traffic Committee. The recommendation of that Committee was that `the Council invoke Standing Order 25 of both Houses of Parliament' in respect of the Bill. The meaning of the words `invoke Standing Order 25' in this context was unclear to the Examiners but in the course of their hearing the parties agreed that it could be interpreted as meaning 'refused to give consent to the Bill".
Paragraph 7 goes on to state:
"At the next meeting of the City Council on 9th January 1990 a motion to rescind the decision about the Bill taken in December was proposed by Councillor Abraham. Under the City Council's Standing Order 18 a motion to rescind a resolution duly passed by the Council may not be brought forward within six months. Standing Order 18(2) similarly provides that when a motion has been rejected by the Council, the same motion may not be brought forward within six months. There are only two exceptions to these prohibitions. The first is when notice of a motion to rescind or to bring the same motion forward is given at or immediately after the meeting at which the original motion was passed or rejected.

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The motion on 9th January satisfied that condition but was rejected. The second is the case of a motion brought forward to the Council on the report of a Committee, which does not apply in the present case".
Paragraph 8 states:
"At their annual general meeting on 15th May the City Council considered in the normal way a report from their Policy and Resources Committee proposing the appointment and terms of reference of the Council's various committees for the new Council year. At that meeting an amendment was agreed to alter the membership of certain committees and to appoint an additional committee, namely the ATA Committee, which was 'to have full powers to act with regard to the granting of any consent under Standing Order 25".
Paragraph 9 states:
"The ATA Committee met on 25th May and resolved that once the City Clerk had entered an agreement on certain matters with the Promoters he be authorised to give consent under Standing Order 25. Such agreement was duly reached and a certificate of consent was signed by the City Clerk and deposited in Parliament on 1st June".
That is the history of the matter. In paragraph 16 the examiners say:
"If the Committee decide that the certificate should be taken as conclusive, then the Standing Orders will have been complied with in this case. If, however, the Committee decide that the Examiners can properly go behind such a certificate in a case where it is challenged by a memorialist, then in the light of the facts set out earlier in this report difficult questions arise as to whether consent was truly given. The Examiners were not persuaded that there was any irregularity in the constitution of the ATA Committee, or that the meeting on 25th May was improperly convened. On the other hand, they found considerable force in the argument that as both parties accepted that the Council's Standing Order 18 precluded the full Council from giving consent under Standing Order 25 of both Houses either at the time when they established the ATA Committee or at the time when the ATA Committee decided to give consent, it therefore followed that the ATA Committee themselves could not validly take such a decision on 25th May".
That was the examiners' report. For reasons given in its report the standing order committee ruled that Standing Order 25 had been complied with through the certificate signed by the city clerk and therefore that the Bill could proceed. I cannot quarrel with the decision of the standing orders committee, a decision that it came to in accordance with its own powers and limitations. However, it is my view that Bristol City Council on 15th May 1990 could not give to the ATA Committee the power to rescind a decision of the whole council taken less than six months earlier. Therefore even if it was the wish of the council to rescind its previous decision not to grant consent under Standing Order 25—and that is doubtful—it did not have the power to do so under its own standing orders. In those circumstances any reasonable person would conclude that the ATA Committee had no power to instruct the city clerk to grant a certificate under Standing Order 25.
My view is that the decision of the ATA Committee is of doubtful legality and certainly of dubious morality. The consent of Bristol City Council was railroaded through not on the basis of democratic decision-making on behalf of the citizens of Bristol but by means of a disreputable device to meet the needs and timetable of a private organisation.
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I understand that light railway transit Bills, although they may be privately promoted, are usually sponsored by the local authorities after agreement has been reached regarding routes and other matters, including the extent to which public finance may be required. That is especially so if local charge payers are to be asked to contribute. In the case of this Bill no such agreement was reached. Indeed, it could not have been reached as the promoters did not publish their report on the six routes until 14th August 1990. Bristol City Council, as I understand it, far from sponsoring the Bill is petitioning against it on a number of grounds, one of which is that the proposed LRT system has been devised in complete isolation from any transport policies of Bristol City Council and other authorities.
Due to the lack of agreement on routes and finance, and due to the widespread view apparently held in Bristol that this Bill is not about the improvement of transportation in Bristol and its environment but rather about profits from property development—some of which may derive from the compulsory purchase of other people's property under this Bill —in my view it is of doubtful wisdom on the part of the promoters to proceed with the Bill as it stands.
Again in my view—it is a personal view—it would be far better to withdraw it at this stage and seek proper agreement with and unimpaired consent from Bristol City Council. The company is unlikely to take advice from me, but I must say this. As it stands the Bill, with its history, was tainted from the start due to the dubious manner in which consent under Standing Order 25 was obtained. It will remain tainted and therefore suspect during the whole of its passage through Parliament and thereafter.
7.27 p.m.
Lord Tordoff: My Lords, it has been suggested that the noble Lord, Lord Underhill, and I should speak before the Lord Chairman of Committees in this debate as there is no government speaker. That appears to be a wise move in that he can doubtless reply at the end of the debate, before the noble Lord, Lord Cocks of Hartcliffe, sums up, to any detailed points we wish to make.
Like the noble Lord, Lord Stoddart of Swindon, was approached by the same person and had a considerable briefing from that source. Like the noble Lord, Lord Stoddart, I was disturbed by what I read. Again, when I read the report from the examiners which was sent to me, like the noble Lord, Lord Stoddart, I wondered what was going on with Standing Order 25 consent.
When I read the report in more detail I wondered whether the argument by the noble Lord, Lord Stoddart, and the petitioners did not rest on the interpretation of paragraph 6 on page 2, read to us by the noble Lord, Lord Stoddart. The examiner there said,
"The meaning of the words 'invoke Standing Order 25' in this context was unclear to the Examiners but in the course of their hearing the parties agreed that it could be interpreted as meaning 'refuse to give consent to the Bill"'.

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It could be interpreted as the opposite. That is why I am confused. If the meaning was the opposite, the whole case crumbles. That is the point on which I seek guidance.
The noble Lord, Lord Stoddart, makes a persuasive case against property developers. I am no friend of property developers of one sort or another; they tend to underdevelop people while developing their property. The purpose of a light rail transport system of one sort or another should be an improvement in the standard of living for citizens of the great city of Bristol and its environs.
I make the point immediately that I am a great supporter of LRT schemes. I am delighted to know that my old city of Manchester has advanced with its plans and that such schemes are being brought into existence in a number of our major cities. I see that as a way forward and a means of reducing congestion, reducing air pollution and getting people in our major cities out of their cars and on to an effective public transport system. Therefore, in principle I am very much in favour of these schemes and I do not always see them necessarily as being the work of property developers.
Of course, property developers need to be watched like hawks. That is why the procedure of going through a Select Committee exists. The petitioners have an opportunity to bring forward petitions and noble Lords who sit on those committees in a quasi-judicial capacity have a duty to ensure that petitioners are properly heard and dealt with. Only a moment or two before I came into this Chamber I received a message from the leader of my party on the Bristol City Council saying that the members of my party fully support this scheme. I understand that all party leaders on Bristol City Council support the scheme. Therefore, I begin to wonder whether there has pot been a misinterpretation or even some misinformation in the lead-up to this debate. I hope that that is not the case but I am now looking again with a slightly different eye at the interpretation which the noble Lord, Lord Stoddart, properly and understandably put before your Lordships. It will be interesting to hear from the Chairman of Committees.
I hope that the difficulties that have been outlined can be overcome. At the end of the day, it is important to have a light rail transport system for Bristol which enables the citizens to go about their daily lives in a way that does not penalise the environment, cyclists or pedestrians. I understand that consultations are continuing and that there is to be another round of consultations regarding the route and where it impinges on cycle tracks. Clearly that is greatly to be encouraged. I await with interest to hear what is said in reply to the points raised.
7.33 p.m.
Lord Underhill: My Lords, the House is grateful to my noble friend Lord Cocks for outlining and explaining the purpose of the Bill and also to my noble friend Lord Stoddart, supported by the noble Lord, Lord Tordoff, for the manner in which they put their objections to the way the Bill has been dealt with. It is
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not my intention to refer to Standing Order 25, to the report of the Examiners of Petitions or to the subsequent meeting of the Standing Orders Committee. I agree with the noble Lord, Lord Tordoff. It is fortunate that the Chairman of Committees will be putting forward the views of the committee.
I understand that there are a number of petitions against the Bill. My noble friend Lord Stoddart said that members of the city council may be among the petitioners, in which case their views should be heard properly before the Select Committee. No one has approached me from the city council or from the county council. I have read the Hansard reports of proceedings in the other place when it dealt with the Bill which is now the 1989 Act. The problems which my noble friend Lord Cocks outlined as the reasons for the Bill—the congestion and so on—were clearly given during the Second Reading debate of what is now the 1989 Act. As my noble friend rightly said, the Bill in no way proposes the construction of a new railway. The intention is mainly to convert or to reopen lengths of rail which have not been used since 1931. Noble Lords will note what my noble friend Lord Cocks said about congestion in the city. There is no argument about that or other problems associated with traffic conditions in Bristol.
The 1989 Bill is now an Act. In other words, there has been agreement that there should be an Avon light railway transport system. Two further Bills are now before Parliament of which the Bill before us is one. I want to deal mainly with the general principle of why a Bill for a light rail transport system in the area should be considered and leave the arguments that have been raised on the technicalities of the standing orders to be dealt with by the Chairman of Committees.
In addition to the points made by my noble friend Lord Cocks, I understand that at the time the 1989 Bill was being considered a poll was undertaken by MORI, respectable and trustworthy pollsters who have carried out a lot of polling work for the Labour Party at different times. So they must be good! At that time, 85 per cent. of the persons interviewed said they wanted a light rail transport system introduced in the area. That factor must be taken into consideration.
I am sure we all appreciate, too, that light rail transit systems are environmentally friendly. I was pleased to see a copy of a draft report of an environmental assessment issued in September for consultation dealing with the whole question of the environment on two of the routes. That report covers 160 pages and is now open to public consultation.
Noble Lords should understand the general principle of light rail systems. The noble Lord, Lord Tordoff, said that Manchester has had such a system approved, as has Sheffield. A Bill has been tabled in Parliament for the West Midlands metro system. Light rail transit systems are not new in this country.
My own party, on page 15 of its transport policy states:
"Labour will also encourage public and private collaboration"—

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note that, public and private—
"in rapid transit systems which provide attractive, modern, clean and fast movement through cities. Now common in Western Europe, 11 schemes are already being considered in British cities. But their development has been hindered by the narrowness of the government's financial approach".
Therefore, the general principle of light rail transit systems is welcomed by my party.
I am prepared to accept that it would have been better if, right at the outset, public transport as such had been involved in the Avon transit system. That is where there was success in the metropolitan county areas. In the conurbations of Sheffield, Manchester and the West Midlands there is a public transport authority and a public transport executive who would be closely involved. I regret that that has not happened in this case because of the nature of the area.
I regret also that there is no government speaker to tell the House what might be the financial position, particularly on the Section 56 grants to which the noble Lord, Lord Tordoff, referred and also on the possibility of EC grants for this type of scheme. Therefore, we shall be considering a Second Reading without the advantage of the views of the Government on the financial aspects. That is very important. When the 1989 Bill, which is now an Act, was before the other place the opposition spokesman took the same view as the one I have just expressed—that is to say, it would have been preferable if the project had been included in an integrated and co-ordinated transport system in Bristol. Nevertheless, he made it quite clear that he had received an assurance from the ATA, which was the firm concerned with the project, of its intention to introduce a public transport system to be integrated with the bus services, which would allow a co-ordinated interchange, through-ticketing and other related services.
Therefore, we are in a position to hear what the noble Lord the Chairman of Committees has to say, and for the petitioners, I hope, to put their case before the Select Committee. That is why I believe that the Bill should be given a Second Reading so that the petitioners can have the advantage of putting their case before the Select Committee. The principle of a light transport system is one which we heartily support. When I say "we" I simply point out that, as with all Private Bills, I am speaking personally in this matter. I hope that the Bill will be given a Second Reading and that a full opportunity will be given for the matters that have been raised by the noble Lord, Lord Stoddart, and the general question of the scheme to be brought before the Select Committee.
7.41 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I am very grateful to the noble Lord, Lord Tordoff, and the noble Lord, Lord Underhill, for allowing me to come in rather later in the debate. I perhaps can bring them some reassurance. I may even bring some small reassurance to the noble Lord, Lord Stoddart of Swindon, though I rather doubt it. I cannot engage in discussion on the merits of the Bill, and noble Lords would not expect me to do that. I
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remind your Lordships that if you give the Bill a Second Reading you will not be approving the principle of the Bill, but simply permitting it to be considered by a Select Committee which will take into account both the principle of the Bill and the more detailed matters raised in the petitions which have already been deposited.
If your Lordships give the Bill a Second Reading it will go to a Select Committee. The intention is that the committee should consider both the Bill that is under consideration this evening, the Bristol City Centre Bill, and the other Avon Light Transit Bill mentioned by the noble Lord, Lord Cocks, which has already received a Second Reading. I can tell the noble Lord, Lord Underhill, that there are no fewer than 75 petitions deposited against these two Bills. There are 20 against the city centre Bill and 55 against the second Bill, including, in the first case, petitions from the city council and the county council. So clearly the Select Committee is going to be very busy and it is likely to sit for a number of weeks.
In the usual way, the committee will hear arguments from the promoters and the petitioners and it will take decisions on the Bill in the light of the arguments and the evidence put before it. As to the timing of the Select Committee, your Lordships will know that for a Private Bill to continue in the next Session of Parliament this House must approve an appropriate Motion known as a carry-over Motion. In the case of a Bill introduced in this House such a Motion also requires the subsequent consent of another place. I shall be tabling carry-over Motions in respect of both Avon Bills very shortly. However, I believe that your Lordships will agree that, in the circumstances, it would be inappropriate to arrange for an early Select Committee.
Accordingly, I have agreed on a provisional basis that arrangements should be made for a Select Committee to sit in January next year when the House resumes after the Christmas Recess. These arrangements can only be confirmed when the Bill is reintroduced in the new Session.
I now wish to turn to the preliminary proceedings on the Bill which were particularly mentioned by the noble Lord, Lord Stoddart of Swindon—that is to say, the proceedings before the examiners and before the standing orders committee. I do not think I need describe the background at any great length. The special report of the examiners covered the ground in some detail. Indeed, the noble Lord, Lord Stoddart, quoted extensively from their report. I thought it right to make available in the Printed Paper Office copies both of that report and, most importantly, of the subsequent decision of the standing orders committee.
Very briefly, in December last year Bristol City Council refused to give its consent to the introduction of a city centre Bill. That meant that the promoters of the Bill were unable to prove before the examiners that they had complied with this House's Private Business Standing Order 25, which in the case of a tramway Bill requires the consent of the local authority of the area through which the proposed tramway is to be constructed.

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Subsequently, in June this year, the promoters deposited in Parliament a certificate signed by the city clerk that the council had then given its consent to the Bill as required by Standing Order 25. Accordingly, the matter again came before the examiners. The validity of the council's decision to give consent was challenged by a number of memorialists. As they are entitled to do under the standing orders, the examiners referred to the standing orders committee by means of a special report the question of whether a certificate of consent duly signed by an authorised officer of a local authority was conclusive of the question of consent for the purposes of Standing Order 25. Those were the matter s raised by the noble Lord, Lord Stoddart.
The standing orders committee met in July and heard submissions from both the promoters and representatives of the memorialists. It gave the matter the most careful consideration and came to a unanimous decision. It held that a certificate of consent is not conclusive for all purposes. For example, the examiners could properly go behind such a certificate where it was alleged to be a forgery or obtained by fraud or where that consent had already been held to be invalid in legal proceedings. But the committee considered that only in such exceptional circumstances, which did not apply in the present case, should the examiners go behind the certificate.
The committee went on to say that it was doubtful whether the specific arguments used by the memorialists to question the validity of the certificate were well-founded. However, in any event there were arguments involving important questions of law and of the interpretation and the effect of the council's standing orders. The proper forum for the resolution of such questions was, in the view of the committee, the courts and not the examiners. That is the committee's answer to the points raised by the noble Lord, Lord Stoddart of Swindon. I hope that they will reassure both the noble Lord, Lord Tordoff, and the noble Lord, Lord Underhill.
The committee concluded that the certificate must accordingly be treated as conclusive and determined that standing orders had been complied with. Therefore, the Bill was read a first time on 13th July. I hope the House will agree that it should now proceed in the normal way.
Lard Cocks of Hartcliffe: My Lords, I should like to thank all colleagues who have taken part in this short debate. I thank in particular the noble Lord, Lord Underhill, for pointing out that the light rail system is a very popular concept now and that all parties support it. I also thank him for stating that the provision of both private and public funds in the construction of one of these systems is now accepted by the Labour Party in its recent policy statement. While at one time there was very strong resistance to that policy, it is now recognised that with the limited resources available governments, in the light of the overwhelming demands made on them, say that the involvement of private capital is very much to be desired.
I thank also the noble Lord, Lord Tordoff, for his remarks and general support and for reporting to this
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House the support of his party on Bristol City Council. I know that both my own party and the party opposite are extremely keen that this measure should proceed. The noble Lord, Lord Stoddart, became a little pejorative towards the end of his remarks. I remind him that the question of land enhancement was the basis on which the initial railway systems of this country were built in the the middle of the last century. I declare an interest because my mother's father was a porter on the old Southern Railway.
I am extremely grateful to the Chairman of Committees for guiding the House through the labyrinthine procedure matters. As a member of the usual channels I must say that having Members in both Houses who are prepared to concentrate on such detailed matters is of great service to us all. I am grateful to the noble Lord for his offices in respect of the Bill in addition to the other contributions that he makes to our proceedings.
I appreciate the intellectual honesty and integrity of my noble friend Lord Stoddart. However, should your Lordships be good enough to give the Bill a Second Reading tonight I believe that when it is reported tomorrow morning on local radio the motorists who will be queuing to drive into the centre of Bristol on the M32, Gloucester Road, Whiteladies Road, Cumberland Basin and Wells Road will be grateful for that permission to proceed and will not be interested in arguing between themselves about the merits of the intellectual point which my noble friend Lord Stoddart put forward.
On Question, Bill read a second time, and committed to a Select Committee.
Viscount Davidson: My Lords, I beg to move that the House do now adjourn until five minutes past 8 o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.52 to 8.5 p.m.]

Environmental Protection Bill
Consideration of amendments on Report resumed.
Clause 90 [Summary proceedings by persons aggrieved by litter]:
Lord Meston Lord Meston moved Amendment No. 189C:
Page 100, line 1, leave out subsection (12).
The noble Lord said: My Lords, I speak to this amendment with some diffidence because I am conscious of the fact that I am shooting at a target which has been moving during the course of debate today. However, having moved, I am not sure where it has gone.
At an earlier stage when discussing the amendment of my noble friend Lord Ross (Amendment No. 158) the noble Baroness, Lady Blatch, described the mandatory costs provision under Section 94(3) of the Public Health Act as "archaic and arbitrary". Since that time we have debated the Government's amendment, Amendment No. 169 to Clause 81. During the course of the debate the noble Lord, Lord

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McIntosh of Haringey, put his finger on the problem when he said that it was really a question of balancing the need not to discourage those with legitimate complaints about nuisance by fear of being out of pocket if they take matters to court with the fairness to the landowner or occupier who should have an opportunity to put matters right before proceedings are taken to court. The opportunity which ought to be available should be given to that person by proper notice so as to afford him the chance to do whatever is necessary to abate the nuisance.
As I understand it, the Government have recognised the need for prior notice for proceedings in the other part of the Bill, especially in relation to nuisance. It is in that context that I ask the Government to look again at Clause 90(12) which seems to give a mandatory power to order costs, even if at the end of the day the magistrates' court takes no action in respect of the complaint before it.
The position is that the complainant can only have reasonable grounds for bringing the complaint if he had given notice to the alleged offender before launching into proceedings. It is to be hoped that the scheme of the Bill will ensure that proceedings will be the last resort rather than the first. If I can have some assurance that the Government will reconsider subsection (12) in that light and that they will perhaps look at the wording again to ensure that it is consistent with the other provisions of the Bill, I shall not press my amendment. However, for the purpose of ascertaining the Government's view, I beg to move.
Lord Reay: My Lords, Amendment No. 189C would remove subsection (12) from Clause 90. That subsection was included for a specific reason which I hope that I shall be able to explain to the noble Lord and in so doing perhaps enable him to identify once again the target. Clause 90 provides for an aggrieved citizen to apply to the magistrates' court for a litter abatement order against a body under the duty to clean where the body has not been discharging that duty. The complainant must give the body concerned five days' notice of his intention.
Under the procedures of the Magistrates' Courts Act, costs in magistrates' courts normally follow the outcome of the case. So where a court grants a litter abatement order against a defendant, costs would normally be awarded to the complainant. Similarly, if the court decides that the issuing of an order was not justified, the defendant would normally be awarded costs.
The main point here is that the court has power to issue an order only where the land is defaced by litter at the time of the hearing. The order can require the defendant only to clear litter or refuse present at the time; it can have no retrospective effect with regard to litter which was defacing the land when the complaint was made. In a case where the court is satisfied that the litter was there at the time of the application but has subsequently been cleared, it cannot issue an order against the defendant and the defendant has not, in the normal sense of the term, lost the case.
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As it may take some months for a case to come to court and the land may be cleared only the day before the hearing, it is necessary to provide that, if the court were satisfied that the application was valid when it was made, the complainant may none the less be awarded costs. If it is not satisfied that the complaint was justified, it will not issue an order and in the normal way it will be able to award costs in favour of the defendant.
The amendment, which seeks to remove that power, seems to us to be unfair. It would leave bodies without any incentive to clean up until the last moment before the case was due to be heard. It would also effectively discourage any aggrieved citizen from applying for an abatement order to be made. I hope that that explanation reassures the noble Lord and that he will not therefore feel obliged to press his amendment.
Lord Meston: My Lords, I am reassured. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 91 [Summary proceedings by litter authorities]:
Lord Mountevans Lord Mountevans moved Amendment No. 189CA:
Page 100, line 29, at end insert ("which is land to which the public has access").
The noble Lord said: My Lords, Clause 91 authorises local authorities to impose abatement orders in respect of relevant land as defined in Clause 85. The amendment seeks to modify the definition of "relevant land".
I declare, as I have in the past, my interest as a judge of British Rail's best kept stations contest. During the Recess I travelled some 7,000 miles and claim some knowledge of the litter problem as it affects British Rail. Having judged for four years, I feel that British Rail is coping well with the litter deposited by its customers in areas to which the latter have access. Incentives by British Rail and the Tidy Britain Group have played a major part in the development of a much cleaner rail infrastructure, as has work done by British Rail's community unit.
The problem lies not in litter in areas such as stations to which the public has legitimate access; it lies with litter and refuse deposited by third parties on railway land to which the public does not legally have access. An extreme example given in last Friday's newspapers was the stolen car that was dumped on a piece of track near Workington in Cumberland which led to the derailment of a passenger train. A more relevant example might be a British Rail clean-up operation just outside Brighton. Television sets, mattresses, sofas and domestic refuse were removed. Another extreme example is a closed line in the Liverpool dock area where British Rail is still the proprietor of the waylink where builders' refuse is dumped to the height of tunnel crowns. Yet another example is the 34 tonnes of rubbish—all domestic I hasten to add—removed from track in and around Shrewsbury station under BR's own operation which is called operation clean-up.
As it stands, the Bill would enable district councils to serve abatement orders ordering British Rail to clear up such refuse and litter from such land. Such a provision seems, first, to give a degree of power to local authorities without imposing on them any responsibility. It could be easily abused. After all, it is always attractive to order someone to spend their money tidying up a problem which is not of their making. The abatement order process is a disincentive to district councils to co-operate with British Rail in clean-up projects. There have been a number of such projects ranging over large areas. There were successful ones in the Black Country in the corridor around Stoke-on-Trent and on Teesside.
I share the general view that we must do all we can to have a tidier Britain, but the Bill and the proposed code of conduct—codes of conduct can be flexible friends but they can also be nasty enemies—go about things in a negative way. We have talked much about the principle that the polluter pays, but the way I read the Bill it exposes British Rail, which is the victim, to paying for clean-up operations arising out of circumstances which are not within its control. Hence the amendment seeks to protect British Rail, its customers and the PSO grant. Under abatement order; it would be the customers and the PSO grant which would end up paying for the clean up and not the tippers or the dumpers.
I also seek to preserve an element of existing good practice —the partnership schemes that I have already mentioned. I beg to move.
8.15 p.m.
The Earl of Balfour: My Lords, perhaps I may raise one further point which might be helpful to the amendment. Normally there are no trespassing laws in Scotland. However, under Scots law it is a serious offence to trespass on railway or aircraft property. The legislation was placed on the statute book many years ago. I cannot quote chapter and verse, but the trespassing laws were written into Scottish legislation with L. view to protecting the life of the trespasser and for no other reason.
Lard Parry: My Lords, I have much sympathy with the ca se made by the noble Lord, Lord Mountevans. He has worked with the British Tourist Authority and had an early involvement with the environmental consequences to the travelling public of a dirty environment. He has also worked with Mr. David Perry, who for a number of years has been responsible for heading British Rail's effort to clean up the environment and make its track more attractive. It is an immense problem, as everyone in the House will be aware. I agree with him when he says that we do not necessarily want to emphasise the negative aspects of the problem. However, at various times I have tried to persuade British Rail to carry out one wholly negative award system.
British Rail would be justified in setting up a dirty dozen award to discover the dirtiest adjoining properties, the occupiers of which throw rubbish onto British Rail property and foul the entrances to many towns and cities. However, I appreciate that in the first
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instance British Rail would not want to force people onto British Rail property and into danger to clear it, nor would it, because it has been so positive in cleaning up its railway stations, want to become involved in a wholly negative enterprise.
I have no such doubts. It is time we began to show pictures of the people who throw their rubbish onto someone else's property, identify that property and make them pay for polluting the environment. I do not know what the Government's reaction will be, but I underline the positive aspects and the work that British Rail is doing to combat this massive problem.
Baroness Blatch: My Lords, I am sure that the whole House will join me in paying a tribute to my noble friend for the work that he does with British Rail in keeping the railways tidy. In recent years there has been discernible evidence of the improvements to our railway stations. My local station is not Cambridge but Huntingdon and I look forward to it receiving a prize one day. I also include in that tribute the noble Lord, Lord Parry, and his work with the Keep Britain Tidy organisation, which is complementary.
I understand the concern which has led my noble friend Lord Mountevans to table this amendment. British Rail and other statutory transport undertakers suffer considerably from the deplorable practice of fly-tipping. In the case of British Rail, for example, the urban railway embankments which we propose that the new litter duty should cover are often prime targets for fly-tipped refuse. We do not dispute that. Nor do we deny the benefit which undertakers like British Rail can derive from partnerships with local authorities to deal with the problem.
In recognition of the task facing British Rail, we are proposing that, exceptionally, the litter duty should apply to most urban railway embankments not from 1st April 1991 but from 1st April 1992. This will give British Rail an extra period of grace to deal with the accumulated refuse on the embankments. We would of course have preferred the duty to apply from 1991 but we have been persuaded otherwise in this case—and not only by arguments tonight.
We have also agreed to refer, in the code of practice which we will be issuing, to the need for partnerships between the statutory transport undertakers, local authorities and voluntary groups in order to deal with this problem. From this, I hope it will be clear to your Lordships that we are not blind to the realities of the situation.
However, there is another reality that we ignore at our peril. One of the prime reasons for the Government's initiative on litter was because of justified public indignation about the unsightly nature of motorway and railway embankments. The noble Lord's amendment would remove an important element of our package of measures to deal with the problem—the local authority would no longer be able to tackle the statutory undertaker if he were failing in his duty.
I should say that I do not believe the amendment would in any case help the situation where a local

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authority wished to back out of any existing arrangements for dealing with refuse on embankments. But I am not convinced that in practice that will be a widespread danger; since those arrangements are mutually beneficial, I would expect them to continue, as we urge in our code of practice.
Litter and refuse will persist until we persuade people that it is anti-social and degrading to treat our landscape in this way. The culprit in this instance is the irresponsible fly-tipper. Wherever possible—and this is the point brought up by the noble Lord, Lord Parry —he should be identified and required to clear up the fly-tipped material himself. Of course, this poses a particular problem for British Rail, as has already been mentioned—that of safety.
If necessary, it is possible to take legal action in some cases. I say this not because the noble Lord is unaware of the point but simply to remind your Lordships that our debate would not be necessary if it were not for the thoughtless actions of a minority of the population. Where it is possible, they should be made to deal with the consequences of their own actions. I hope with that explanation my noble friend will not press his amendment.
Lord Mountevans: My Lords, I am grateful to my noble friend for that explanation which I shall read with great interest. One proposal to which I did not understand my noble friend's answer was the reversal of the theory of the polluter pays which I put forward. Here it will be the taxpayer and the British Rail customer who will pay for the clearing up. Perhaps I may think a little more about that. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 93 [Street litter: supplementary provisions]:
Lord Meston Lord Meston moved Amendment No. 189D:
Page 103, line 28, at end insert:

("(aa) inform any other person whose property adjoins the land comprised in the specified area in the proposed notice;").

The noble Lord said: My Lords, I wish to speak also to Amendment No. 189E. Under Clauses 92 and 93 local authorities can require traders to take action to clear litter in the vicinity of their premises. The purpose of these amendments is to provide that neighbouring traders are informed of the requirement before it is imposed. Neighbouring traders ought to know that someone is to be served with a notice, both to be reassured that something is being done and also to have some say about how and when the frontage and the vicinity of the premises concerned are to be cleaned up. This is in order to minimise inconvenience and for them to have some say in the requirements which are to be imposed. I do not think that the amendments need further explanation. I beg to move.
The Earl of Arran: My Lords, Clause 93(6) requires local authorities, before serving a street litter control notice, to inform the person on whom the notice will be served and to take into account any representations he may make.
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Amendments Nos. 189D and 189E would also require local authorities to inform any other person whose property adjoins the land which will be the subject of the notice and to take their representations into account. Street litter control notices will impose certain requirements on the person on whom they are issued with the purpose of removing litter and refuse from his frontage and in some cases from the street adjacent to his premises. These notices can only have a positive effect on adjoining properties. The street will be cleaner as a result and the adjacent property owners will not have to face take-away wrappers outside their premises.
If it is just a case of the property owner learning of a notice on his neighbour, then, subject to a later amendment he will be able to see any notice which may be issued in a litter register. I must confess that unless there is any strong, compelling reason for this amendment—and we are not convinced that there is one—we do not feel that it is right to impose an unnecessary duty on local authorities who may be required to inform possibly an extra dozen people. I urge the noble Lord not to press this point.
Lord Meston: My Lords, the burden—if that is the right word—to be imposed on local authorities by this amendment was not meant to be great. The intention was to ensure that the interests of neighbouring traders were looked after. For example, at one extreme they may need to be protected from the over-zealous trader cleaning the street at awkward times from the point of view of the business of the neighbouring trader. At the other end of the spectrum, traders may need to be reassured that something is being done so as to prevent them taking action either through the courts or otherwise.
This is not a compelling reason, but it may be felt that the amendment contains a useful provision. I do not propose to press it at this stage; I wish to consider it further. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 189E not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 190:
After Clause 93, insert the following new clause:
Public registers
(" .—(1) It shall be the duty of each principal litter authority other than a county council, regional council or joint board to maintain, in accordance with this section, a register containing copies of—

(a) all orders made by the authority under section 89(3) above; and

(b) all street litter control notices issued under section 92(1) above.

(2) Where the requirements of a street litter control notice are varied or added to on an appeal under section 93(7) above a copy of the order making the variation or addition shall be included in the register.
(3) Copies of the orders and notices required to be kept in the register shall be so kept for so long as the order or notice is in force.
(4) It shall be the duty of each authority maintaining a register under this section—

(a) to secure that the register is available, at all reasonable times, for inspection by the public free of charge; and

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(b) to afford to members of the public facilities for obtaining copies of the documents kept in the register, on payment of reasonable charges.

(5) A register under this section need not be kept in documentary form.").
The noble Baroness said: My Lords, Amendment No. 190, in my name, follows up an undertaking made in Committee to consider further a similar one moved by the noble Lord, Lord Ross. The amendment will require local authorities to maintain a register containing copies of all the orders they have made designating land as a litter control area, together with all the street litter control notices they have issued. The register would be open to inspection by the public, who could also pay for copies of the relevant documents.
We accept the noble Lord's argument that the registers are necessary. I am pleased to be able to bring forward this amendment to replace the one which he tabled in Committee. I beg to move.
On Question, amendment agreed to.
[Amendment No. 191 had been withdrawn from the Marshalled List.]
Baroness Blatch Baroness Blatch moved Amendment No. 191ZA:
After Clause 93, insert the following new clause:
Transitional provision relating to section 88
(".—(1) The Secretary of State may, for the purposes of the transition to the duties imposed by section 88 above on local authorities and educational bodies, by regulations, make provision—

(a) modifying that section, or

(b) modifying Part I of the Local Government Act 1988 (competition rules for functional work or works contracts).

(2) Regulations under this section may make different provision for different descriptions of authorities, different areas or other different circumstances or cases.
(3) In this section—

"educational bodies" means the governing bodies and education authorities mentioned in section 88(1) (f) above; and

"local authorities" means the local authorities mentioned in section 88(1) (a) and (c) and (2) (a) above.").

The noble Baroness said: My Lords, the new clause gives the Secretary of State the power to make transitional provisions to protect the position of authorities who had already assigned contracts for the provision of the relevant services under the competitive tendering legislation before the new litter code was published.
We appreciate that such contracts are likely to have to be modified in many cases to take account of the standards of litter clearance now required by the code. Indeed, so far as concerns future contracts, we have already taken action by postponing the rounds of competition due to be completed by 1st January and 1st August next year to 1st August 1991 and 1st January 1992 respectively, so as to make it possible for authorities to take full account of the code when drawing up their specifications.
Where contracts had already been let before the code was promulgated, the new clause will give the Secretary of State the power to make the necessary transitional arrangements. These will provide for any
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additional work which may be necessary to be taken on board. They will also protect the position of authorities until such time as this can be done. They will cover cases in which contracts have been let to the private sector and also those in which work has been assigned to the authority's own direct service organisation following competition under the terms of the Local Government Act 1988. We intend to announce the nature of the provision to be made as soon as possible, once the details have been finalised.
As the noble Lord, Lord McIntosh, will be aware from my recent letter to him on this subject, the new clause as originally tabled has been modified so as to make it possible to extend protection to the governing bodies of educational institutions on whom the new litter duties bite, in cases where their LEAs have entered into a contract for the provision of the relevant services.
I understand that the noble Lord, Lord McIntosh, wishes to move a series of amendments to my amendment. For the time being I shall sit down and allow those amendments to be presented. I beg to move.
8.30 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved, as an amendment to Amendment No. 191ZA, Amendment No. 191ZB:
After Clause 93, line 4, after ("regulations") insert ("applicable to any authority which has not at the date of the regulations being laid decided to carry out functional work to which this part applies or let a contract for such work to any other persons").
The noble Lord said: My Lords, in moving Amendment No. 191ZB I wish to speak also to Amendments Nos. 191ZC, ZD, ZE, ZF and ZG. The Minister understood that I wished to speak to those amendments. I believe she will also understand that we had drafted those amendments to her previous version of Amendment No. 191. They only appear on the Marshalled List with asterisks because we had to re-draft them after the Minister had changed her own amendment. I hope that the House will acquit us of any discourtesy in producing amendments at the last minute. We tried not to do this, but it was the Government's own second thoughts that made life more difficult for us.
Government Amendment No. 191ZA is clearly intended to be helpful and to deal with some of the problems which may arise in the application of the litter codes to compulsory competitive tendering. Even by the fact of tabling these amendments, the Government show that they recognise that the litter codes will make substantial differences to the way in which local authorities have to deal with services which have either been contracted out or have been submitted for tender and kept within a local authority's services. We are primarily concerned that, as far as possible, local authorities should be spared the agony of having to relet tenders when they have already been negotiated and when it would be possible to deal with them by renegotiation within the scope of the same tender. We are concerned that they should

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not have to start again from scratch. To us, that would be the worst of all possible worlds. However, we think that is the Government's intention.
Amendment No. 191ZB standing in my name is intended to extend the no relet principle. I hope I may put it that way. The amendment seeks to extend it so that it applies not only to those contracts which have already been let—the Minister referred to those—but also to contracts which are far advanced in the tendering procedure and are awaiting contract.
Amendments Nos. 191ZC and 191ZD standing in my name are intended to explore what is meant by the phrase,
"different areas or other different circumstances"
which appears in the government Amendment No. 191ZA. We are anxious to secure that there should not be any discrimination against direct service organisations which have won in the competitive tendering process and which are subject to more stringent rules on renegotiation or reletting than is the case with tenders that have gone to outside contractors. I was to some extent encouraged by what the Minister said in introducing the government amendment on that matter.
Amendments Nos. 191ZE and 191ZF seek to make that provision more explicit. Amendment No. 191ZE states that tenders which have,
"fulfilled the first, second and third conditions specified in section 7 of the 1988 Act"
and which have been awarded to direct service organisations should not be discriminated against in a decision as to whether a contract should be renegotiated or relet. I remind the House that the first, second and third conditions are the stages of the tendering process.
Amendment No. 191ZG would require an affirmative resolution procedure if there were to be significant changes either to Clause 88 of this Bill or to the 1988 Act. I am sure all noble Lords would consider that appropriate. In other words, subordinate legislation should not be used to make major changes to primary legislation. I hope the Government will feel that the amendments are helpful as regards the tendering process and the renegotiation process when the litter codes are established. I hope the Government also feel that the amendments would help to remove the threat of unfairness and administrative impracticality which would otherwise arise. I beg to move.
Baroness Blatch: My Lords, as the noble Lord has explained, the intention behind these amendments is to restrict the regulation-making power which government Amendment No. 191ZA proposes should be given to the Secretary of State to make transitional arrangements in relation to the interaction between the competitive tendering requirements of the Local Government Act 1988 and the litter duty imposed by this Bill.
Amendment No. 119ZB seeks to provide that the regulations could apply only to authorities which had not completed the competition procedures and decided to assign work either to their own workforces
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—that is, the direct service organisations—or to external contractors. In consequence, those regulations could not bear on the case of authorities which had reached such a decision. I have to say that to limit the regulation-making power in this way would be to fail to address the real problem that we have identified.
Earlier this year the Minister responsible for local government, Mr. Portillo, announced our intention to put back the date of the deadlines by which those authorities which had not yet completed competition procedures for street cleaning were required to do so. Those authorities which had been working to a deadline of 1st January 1991 will now have until 1st August 1991 to complete the procedures. Those others whose deadline had been 1st August 1991 will now have until 1st January 1992 to complete the procedures, thereby being able to take into account the measures contained within the Bill.
We decided on this postponement precisely because we wanted to give those authorities a longer period during which they could take account of the standards of litter clearance that will result from the Bill, and to prepare tender specifications which would reflect them. We do not therefore expect that those authorities will face problems that will need to be addressed by the use of the proposed new regulation-making power. By contrast, we foresee that problems may well arise where authorities have completed the competition procedures and have assigned work to their workforces or to external contractors. This is because those authorities which have assigned work to their own work forces cannot simply revise a specification to meet higher standards. Section 7(8) of the Local Government Act 1988 constrains them from doing so.
If authorities have awarded work to private contractors, they are not constrained by the 1988 Act, but they may face difficult commercial negotiations if they wish to revise contracts to achieve higher standards. We are still considering the extent of such problems and the best way for local authorities to deal with them, but we want to be in a position to act on the relevant legislation—that is, the 1988 Act and the Environmental Protection Act, as it will become—if it appears to us to be necessary to do so to ease the problems of local authorities.
Amendments Nos. 119ZC, ZD, ZE and ZF are clearly ancillary to the purpose of Amendment No. 119ZB, reducing the flexibility of the regulation-making power in relation to authorities which have not completed competition procedures. For the reason that I have explained, we consider that the basic thrust of these amendments is misconceived. They would restrict the power to make transitional arrangements to future contracts. But, as I have explained, the real need is to make provisions for contracts which have already been met. That is why subsection (1) of the new clause, as contained in Amendment No. 119ZA, makes clear that the powers taken are very much for the purposes of transition to the litter duties imposed by this Bill. Given that transitional nature of the provisions, we see no need for the restrictions which would result from this set of amendments.

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Amendments Nos. 191ZG and 272A seek to make the regulations subject to affirmative resolution. We have given careful consideration to that proposal but we do not believe that such a procedure would be appropriate or justified in this case. As I have stressed, these are transitional provisions. The affirmative procedure is rightly regarded as appropriate only for major issues of principle which are likely to have a lasting impact on future action. For example, under the competition legislation the only power requiring affirmative procedure is that which makes it possible for the Secretary of State to bring whole new services into the framework of that legislation.
We accept, however, that local authorities have a major and legitimate concern with the form that these transitional arrangements will take. I can therefore give your Lordships a clear undertaking that we shall be consulting the local authorities through their associations on the nature of the provision to be made for protecting the position of authorities which had let contracts to the private sector or assigned work to their own workforces before the code of practice was promulgated.
The one question that I have not dealt with concerns different treatment for different authorities. Given that most authorities start from a very different base, it is my understanding that even those authorities which have already let contracts privately have determined very different specifications for those contracts and therefore the level of cleaning and of the tender specifications will vary considerably. The same will apply in respect of the variable base on which those authorities have the cleaning carried out by direct labour organisations. The standards required of the different organisations will differ in each authority. Therefore, when we find a formula to deal with the problem we shall have to take all of those variations into account.
Lord McIntosh of Haringey: My Lords, I am grateful to the Minister for that very complex reply and for the assurance that there will be consultation. I am sure that the local authority associations will also greet that assurance warmly. The fundamental point that we have to secure is that the consultation will produce a formula which will deal with the most difficult case that will arise.
It seems to me that the most difficult case that will arise will be one in which a contract has been let or has gone so far in the letting process that it cannot be resiled. There may be no money to meet the higher standards under this part of the Bill, or the drafting of the contract may not allow for renegotiation. Under those circumstances, if there is no possibility of renegotiation or of extra money, the two alternatives are either to throw the whole thing back into the melting-pot—which would seem to be the worse alternative of the two—or, however undesirable it may be, to provide that for the term of the contract the contractor and the local authority will have to be exempt from at least some of the provisions of this part of the Bill. In other words, they may have to be exempt from the public complaint procedures.
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If the Minister can show her appreciation of those difficult cases and give us some assurance that she recognises the problem and will take that into account in consultations it would be enormously helpful.
Baroness Blatch: My Lords, with the leave of the House, the noble Lord will understand that I can give no guarantees at this stage. However, I can give an assurance that all the various scenarios will be taken into account when determining the formula that we hope will be effective.
Lord McIntosh of Haringey: My Lords, I suppose that I shall not get any further than that at Report stage. However, the point has been made. There will be risk of a very expensive and unsatisfactory renegotiation procedure, which nobody wants, neither the local authority on one side nor the contractor or DSO on the other, or of some relaxation of the rules. Neither is perfect but the second is a good deal less imperfect than the first.
On the basis that the Minister recognises the fundamental reason for the reservations that we hold, I believe it is better that I beg leave to withdraw the amendment.
Amendment to Amendment No. 191ZB, by leave, withdrawn.
[Amendments Nos. 191ZC to 191ZG not moved.]
On Question, Amendment No. 191ZA agreed to.
8.45 p.m.
Lord Parry Lord Parry moved Amendment No. 191A:
After Clause 93, insert the following new clause:
("Application of Part II
.—(1) This section applies to litter and refuse collected—

(a) by any authority or person in pursuance of section 88(1) above;

(b) by a principal litter authority in pursuance of section 91(9) above; or

(c) by any person in pursuance of section 92 above.

(2) The Secretary of State may make regulations providing that prescribed provisions of Part II shall have effect, with such modifications (if any) as may be prescribed,—

(a) as if references to controlled waste or controlled waste of a prescribed description included references to litter and refuse to which this section applies or any description of such litter and refuse;

(b) as if references to controlled waste or controlled waste of a prescribed description collected under section 44 above included references to litter and refuse collected as mentioned in subsection (1) above or any description of such litter and refuse.

(3) The powers conferred by this section are exercisable in relation to litter and refuse to which it applies whether or not the circumstances are such that the litter or refuse would be treated as controlled waste apart from this section and this section is not to affect the interpretation of the expressions defined in section 74 above.").
The noble Lord said: My Lords, it is always pleasant to move a wholly friendly amendment. To do so in the post-prandial peace is equally pleasant, particularly when we have had compliments to Tidy Britain from the noble Baroness.
The House will have recognised that the clause offered here enables regulations to be made to bring within the controls of Part II of the Bill litter and refuse which has been collected by litter authorities

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and other bodies in pursuance of their duties under Part IV of the Bill. This ensures that any such waste collected must be disposed of or recycled at properly licensed facilities. It ensures that once the litter has been collected it falls within the definition of controlled waste in Part II of the Bill and therefore to dispose of it by fly tipping, which was mentioned earlier, or at a site not licensed to take it would be an offence.
The amendment also enables regulations to be made to define litter collected by waste collection authorities to be treated as household waste for the purpose of defining the responsibilities of the waste disposal authority's duties towards it. That would have the effect of placing a duty on waste disposal authorities to arrange for its disposal in the same way as they currently arrange for the disposal of all other waste collected by the collection authorities without charge to those collection authorities.
No matter what care has been taken over draftsmanship, no matter what unanimity may exist over proposals for cleaning up Britain, or indeed for anything else, there are always those who go through legislation with a small-toothed comb to try and find ways of avoiding the charges placed upon them. I therefore have pleasure in moving that this new clause be inserted in the Bill. I beg to move.
Baroness Blatch: My Lords, the noble Lord, Lord Parry, has moved his amendment with great enthusiasm. The amendment sets out the relationship between Parts II and IV of the Bill, the former dealing with waste disposal and the latter with litter. It provides that regulations can be laid to make litter collected by a waste collection authority or certain other persons a controlled waste under Part II, and, therefore, to dispose of it illegally would be an offence. It also allows regulations to be made to place waste disposal authorities under a duty to dispose of this waste in the same way as they are responsible for disposing of other waste collected by a waste collection authority.
I am indebted to the noble Lord for bringing the amendment to your Lordships' House. It highlights a confusion in the present provisions between the definitions of waste in Part II and of litter in Part IV of the Bill. The noble Lord is well placed to spot such anomalies through his excellent work with the Tidy Britain Group, to which I am pleased to pay tribute for the second time this evening. I am happy to accept the amendment.
On Question, amendment agreed to.
Clause 95 [Powers in relation to abandoned shopping and luggage trolleys]:
Baroness Blatch Baroness Blatch moved Amendment No. 192:
Page 105, line 14, after ("may") insert (", subject to subsection (2A) below,").
The noble Baroness said: My Lords, with the leave of the House, in dealing with the group of amendments comprising Amendments Nos. 192, 193 and 194 I should like to move Amendment No. 192,
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invite my noble friend Lord Lucas to present his amendment and then deal with all three amendments at the same time. I beg to move.
Lord Lucas of Chilworth: My Lords, I readily accede to my noble friend's invitation. As a result of discussion and correspondence during the Summer Recess the noble Baroness intimated that she would put down Amendments Nos. 192 and 193. I thank her for her letter. As a result I did not pursue the argument or indeed the amendments on this matter which I tabled at Committee stage. At that time I sought to give statutory backing to a set of voluntary guidelines.
I can readily accept what my noble friend suggests in her two amendments but I enter just a small caveat. The assumption is that the new provision for prior consultation will certainly encourage the negotiation of voluntary arrangements along the lines of those which have already been successful in some local authorities. For example, I instance Newbury in Berkshire—Berkshire comes at the beginning of the alphabet—and Bromley, which is around the middle in terms of this provision, because under the London Local Authorities Act 1990 what was broadly in the amendment that I tabled at Committee stage was agreed to.
Voluntary arrangements have been entered into in those two areas. It is important to note that Newbury —which is half way down in the alphabet—under the Berkshire Act charges £1.50 per trolley if a retailer collects within 24 hours and 50p per subsequent day thereafter. Bromley, which has set up voluntary arrangements, does not hide under or ask for the support of any Act. It uses a local contractor who charges £1 per trolley. That sets the scene for Amendment No. 194.
Amendment No. 194 invites the House to substitute the word "reasonable" for "sufficient" at line 22 on page 164. I accept totally that the letter of 28th September from my noble friend Lady Blatch obtains. In that letter she says:
"I can assure you that the Bill is deliberately worded to ensure that local authorities cannot make a profit, but allows them to break even in the long term. The phrase 'sufficient, taking one financial year with another' allows for the fact that it would be impossible, on the first day that the Schedule is brought into operation, for the authority to assess exactly what its costs will be throughout the year, and how many trolleys it will be handling".
That is all very well so far as it goes. But having instanced to your Lordships the practice of Newbury and Bromley—which charge £1.50 and £1—I draw noble Lords' attention to a letter which is addressed to a leading retailer from the Kensington and Chelsea local authority in which it says that there has been some correspondence. Further:
"notwithstanding … any measures you may have been prepared to take, it is now the intention to pass a Resolution in accordance with the London Local Authorities Act 1990 in which the issue of luggage and shopping trolleys is clearly dealt with in Section 43, Part IV of the Act".
The letter then goes on:
"For your further information a fee of about £40 is to be recommended as a reasonable payment for the return of abandoned trolleys".
That is absolute nonsense.

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When we discussed the London Local Authorities Bill, as it was in 1989, the question of charges arose. I recall discussing the matter. At that time I suggested that the wholesale price for buying a trolley was only £50 or thereabouts. Now Kensington and Chelsea suggest £40. At that time some noble Lords opposite supported my argument, because this is not a question only of supermarkets of one size, kind or another. It concerns airport trolleys, British Rail trolleys, super-supermarket trolleys, megamarket trolleys and shop trolleys.
Lord McIntosh of Haringey: My Lords, surely the noble Lord is not suggesting that Co-op supermarket trolleys become litter, is he?
Lord Lucas of Chilworth: My Lords, I do not suggest that, but the Act does if they are found in certain places, notwithstanding the great endeavours of that body to contain its trolleys. The noble Baroness's letter states that this year on year business will in fact prevent unreasonable charges being imposed.
Tonight I suggest to my noble friend something just a little different. I have a very good team of researchers. My noble friend the Minister will know some of them. We have looked at Jowitt's Dictionary of English Law.
Lord Parry: Hear, hear!
Lord Lucas of Chilworth: I thought that the noble Lord would agree with that. Page 1502 of Jowitt's Dictionary of English Law states:
"If there is a contract to do a thing or to buy goods, and no time or price is mentioned, the law implies the thing is to be done in a reasonable time, and that a reasonable price is to be paid".
The dictionary goes on to define what is reasonable. That is generally accepted in the courts of this land when deciding cases of this kind.
The Government want to remove the word "reasonable". They want to put "sufficient" year on year. Let me put the case to your Lordships. Suppose that a local authority imposes a charge of, say, £20 —let us be a little more moderate than Kensington and Chelsea, which suggests £40. At the end of the year, depending on the number of trolleys collected, there is a profit or a surplus. The local authority can do one of two things. It can reduce the charge for the next year and if at the end of that year there is a deficit, adjust it upwards the following year. Alternatively it can say, "This surplus is a jolly good egg. Let us now employ another lorry and two more wardens. We can use up the surplus, utilise labour and facilities and so on, and year on year we shall draw equal". I suggest to your Lordships that that is not reasonable.
Notwithstanding the noble Baroness's amendment, Amendment No. 193—and one hopes that these discussions before Schedule 4 provisions are entered into will result in an amicable agreement—Kensington and Chelsea does not appear to think that. It will go for £40. It seems to me that airports, British Rail, the bigger supermarkets—ASDA, Tesco's, Sainsbury's, the Co-op and so on—are not willing to lose their trolleys, which have cost them £50, £60 or £70. Indeed,
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some of the walk-down-the-steps ones used by the airports are fairly valuable pieces of equipment. They do not want to lose them. They want to recover them. They do not want them taken away. It seems reasonable in all the circumstances that they should have the protection within the Act of reasonable charges being made, one authority against another, which can be proven in court. My amendment simply seeks to bring a little sense of reasonableness to the Act.
9 p.m.
Baroness Blatch: My Lords, I hope that I am right in saying—I look to the Clerk for assurance—that my noble friend will have an opportunity to speak again because we are still technically on Amendment No. 192. I should hate to deny him the opportunity to respond to my response to his amendment. Amendments Nos. 192 and 193 in my name, and Amendment No. 194 in the name of my noble friend, Lord Lucas, relate to Clause 95 and Schedule 4, both of which concern new powers for local authorities to deal with abandoned shopping and luggage trolleys.
Schedule 4 contains detailed provisions on how a local authority may seize, detain, remove and ultimately dispose of abandoned trolleys. Clause 95 deals with the mechanics of applying the schedule. Under those provisions, the local authority can remove what appears to it to be an abandoned trolley. It must then notify the apparent owner of the trolley of its removal and inform him where it is being held. The owner may then reclaim the trolley within six weeks although he will have to pay a fee in order to do so. The fee must be set at a level sufficient to cover the costs to the local authority of applying the provisions of the schedule. The local authority may sell or otherwise dispose of any trolley unclaimed after six weeks.
Amendments Nos. 192 and 193 address a point first raised in Committee by my noble friend Lord Lucas of Chilworth. They provide that a local authority may not apply the provisions of Schedule 4 in its area unless and until it has consulted with those who appear to be affected by the application of the schedule. These amendments aim to give trolley owners the opportunity to come to a voluntary agreement with the local authority before coercive measures are contemplated. Many local authorities do have such voluntary schemes in operation already, adopting a code of guidance on trolley control which has been produced by the Retail Consortium. We would prefer to see this sort of measure applied throughout the country rather than allowing local authorities to go ahead without first listening to the views of the people they would be affecting. I am sure noble Lords would agree that co-operation is preferable to compulsion and I therefore commend these amendments to the House.
Amendment No. 194 would require that the fee charged by a local authority to the owner of a trolley which had been seized should be set at such a level as is reasonable rather than one which is sufficient, in covering the local authority's costs in removing, storing and disposing of abandoned trolleys. I

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understand my noble friend's concern that a local authority might take it upon itself to set punitively high charges for the return of trolleys to their owners. He has given some graphic examples in the presentation of the amendment. We take the view, however, that the term reasonable would allow local authorities to pitch the charge above what would be required to meet their expenses. What is reasonable to one authority might not be reasonable to the trolley owners in its area. An authority might think it reasonable to set the charge slightly (or indeed significantly) above the actual costs it incurs in operating the scheme, whereas the Bill as drafted is quite clear about the amount an authority can charge.
The wording of paragraph 4(1) allows the local authority to make the necessary adjustments to its scale of charges from time to time to ensure that all its costs are met. Charges can therefore be raised to offset a deficit or lowered to reduce a surplus. It would plainly be untenable—and therefore subject to challenge in the courts—for a local authority to make the charges punitive.
An example was given by my noble friend of using the surplus that may be made in any one year perhaps to over-provide for the service of collecting trolleys. I hope that what I say reassures my noble friend. The district auditor would have something to say if the provision that was engaged by a local authority was surplus to the job in hand of collecting trolleys.
There is no intention on the part of the Government that the system should be used as a taxation. That is what is being suggested by my noble friend. Given that at the outset it will be difficult to gauge the charge precisely, a charge will be made, and if there is a deficit that will be adjusted in making the charge to trolley owners in the following year. If there is a surplus, the surplus will be required to reduce the cost of collecting the trolleys in the following year. In other words, at the end of the day the charge that will be levied over a period of two, possibly three, years would be that which would equate to the sufficient costs for doing the job. I hope that my noble friend will not press his amendment.
Lord Lyell: My Lords, before my noble friend sits down, in the early part of her reply to the amendment spoken to by my noble friend Lord Lucas, the Minister referred to abandoned trolleys. I am afraid that I lost her after her reference to Clause 95. I did not find the relevant schedules. It shows what happens to noble Lords who become interested in one particular point under discussion. However, the Minister mentioned that the abandoned trolleys could be gathered up by the local authority and that if they were not reclaimed—I believe that she mentioned after a period of six weeks—they could be sold.
Perhaps the Minister will answer this question, or my noble friend Lord Lucas might inform me at a later stage or outside the Chamber. What is the market for those abandoned trolleys? A figure of £40 has been mentioned by my noble friend Lord Lucas. Such a figure of £40 or £50 would certainly encourage those concerned to take greater care of them when shopping
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in Chelsea and Kensington where I live. The large baggage trolleys at airports might be worth more than £40 or £50.
In connection with the sale or auction of abandoned trolleys, what do such trolleys fetch? What is the realistic price? I am curious to know this; I am a Scot. What is the second-hand value of those trolleys? What is the point of paying a charge of £40 to claim one's trolley? If one waits six weeks there will be an auction.
Baroness Blatch: My Lords, my noble friend is a Scot—and a canny one at that. I do not know the market price of a second-hand trolley. Whatever the price, and whatever the income to the authority, income under that activity will have to be recycled to benefit the public and the community charge payer in that area.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 193:
Page 105, line 21, at end insert:
("(2A) It shall be duty of a local authority, before making any resolution for the application of Schedule 4 to this Act in its area, to consult with the persons or representatives of persons who appear to the authority to be persons who will be affected by the application of that Schedule.").
On Question, amendment agreed to.
Schedule 4 [Abandoned Shopping and Luggage Trolleys]:
Lord Lucas Lord Lucas moved Amendment No. 194:
Page 164, line 22, leave out ("sufficient") insert ("reasonable").
The noble Lord said: My Lords, my noble friend Baroness Blatch, in her response to my earlier remarks, allowed me—and your Lordships' rules permit me—to discuss Amendment No. 194 in rather greater depth.
I accept in part what my noble friend the Minister had to say, most particularly with regard to the year-on-year surplus and deficit element. She said clearly that a charge that was punitive could be challenged in court, in any event, under this Bill. I do not believe that that is in fact so under the provisions of the Bill.
Again, I have to accept what she said about what the district auditor might have to say, and the point she made with regard to local taxation.
If I may answer my noble friend the noble Lord, Lord Lyell, one of the trolleys that walks down escalators guided by a canny Scot or other passenger is worth nearly £100, and an ordinary trolley about £50. If it is fished out of the river it is worth nothing. If a local authority decides, as Kensington and Chelsea has, to charge £40, the trolleys will be abandoned. It will then fall upon the community charge payer to meet the bill for disposal. There will be no encouragement to recover the trolley. That is the real point.
My noble friend the Minister talked about sufficient year-on-year, but I am suggesting to your Lordships that the term "sufficient" provides only for an assessment by a local authority of the projected costs incurred in collecting, storing and disposing by an

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unspecified method, which is bound to err on the side of never making a loss. It does not require any assessment of the method of collection and provides for an unlimited level of charging, although that charge can be adjusted in subsequent years. The term "sufficient" provides the local authority with the choice between an efficient method and an inefficient method. I admit that I described somewhat frivolously earlier what that might lead to. Of course the Government do not want to find additional moneys for local authorities for trolley collection.
Lord McIntosh of Haringey: My Lords, I wonder whether the noble Lord would permit me to say this. He has already spoken for 11 minutes on this amendment in an earlier group. Is he going to speak for another 11 minutes on the same amendment?
Lord Lucas of Chilworth: My Lords, not 11 minutes but perhaps three or four more.
Lord McIntosh of Haringey: My Lords, this is an abuse of the procedure of this House.
Lord Lucas of Chilworth: My Lords, the noble Lord, Lord McIntosh, may think it an abuse. He has wound up some of his amendments at very great length without anybody challenging the abuse.
I am answering my noble friend the Minister. The way the matters were grouped was not my fault; I went along with the suggestion. It is not an abuse. I am saying that it is not fair on railways, airport authorities and stores that this matter, which I have proven is open to abuse, should remain in the Bill. I am suggesting that the word "reasonable" is a more proper way of dealing with the matter.
Baroness Blatch: My Lords, very briefly, because of the way in which my noble friend has presented his amendment I think I should say more about the reason why I believe "sufficient" is a better word than "reasonable".
It might indeed be reasonable to pay £20 or £40, as has been graphically illustrated by my noble friend; but if the local authority were making a profit by charging that amount it would clearly be more than sufficient. So to use the words we have used, it would therefore be outside the provisions of the Bill as drafted and therefore could be challenged in court by the trolley owners. This is not a protection. The word "sufficient" would be a protection; but "reasonable" would not be a protection in court if the trolley owners felt aggrieved at the charging that has clearly been illustrated by my noble friend.
My noble friend also asked who decides what is sufficient. I have said that the courts could decide. The district auditor could also decide and be called upon to make a judgment as to whether the charge was sufficient or excessive. However, what is reasonable to one authority is unreasonable to another and it would be no defence in court.
I hope that my noble friend will not press his amendment. Given the word "sufficient", I believe that the Bill will achieve all the protection that my noble friend seeks.
On Question, amendment negatived.
9.15 p.m.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 195:
After Clause 96, insert the following new clause:
("Amendment to procedure in connection with registrations and authorisations on disposal
.—(1) In subsection (1) of section 11 of the Radioactive Substances Act 1960 (referred to in this Part as "the 1960 Act") (procedure in connection with registrations and authorisations), for the words "may afford to such local authorities or" there shall be substituted the words "to any local authority within whose area a disposal takes place (or is expected to take place) or which is otherwise affected by such an activity, and may afford to".").
The noble Lord said: My Lords, it may be for the convenience of the House if in moving this amendment I were to speak also to Amendments Nos. 196C to 196E, 197, 197A, 198A, 198B and 198D to 198G.
The burden of these amendments is to give local authorities the right to be consulted in cases concerning radioactive licensing. The main purpose of that is to provide local populations represented by such local authorities with a belief that they are part of the total consultation process. That is the purpose of the first batch of amendments. The second batch deals with certain lacunae in the Bill in such a way that it accords with intentions that have been stated by Ministers but have not perhaps been wholly honoured in terms of the Bill.
The case arises from a dispute affecting Dudley Metropolitan Borough Council which received from Her Majesty's Inspectorate of Pollution a copy of a grant of a licence for disposal of radioactive waste under Section 6 without any prior warning. The authority objected to that. It said that it had not been consulted and that the matter was clearly one of legitimate local concern.
The Government asserted in rebuttal that HMIP, which acted on their behalf in the matter, had observed the proper procedures under the Radioactive Substances Act 1960. They contended that they were required to consider whether to consult a local authority only where the applicant had exercised his right to a hearing. The matter was therefore resolved in court. It was resolved in favour of the Dudley local authority because the court found that the Secretary of State was required to consider whether to involve local authorities regardless of whether an applicant had exercised the option for a hearing.
Unfortunately, however, the matter did not end there because a further licence was issued by HMIP after the Department of the Environment had considered whether to consult the Dudley council. It decided against doing so and, in effect, Dudley was therefore excluded from the consultative process and with it the local population which clearly had no role to play. To my mind, that is in complete conflict with what the Government say in their much-heralded document This Common Inheritance in which they refer to the need for the public to receive environmental information and to demand improvements, and so on, which has been belied by what happened in that case.
In Amendment No. 195 and certain other amendments coupled with it we seek to give authorities an absolute right to a hearing in the more serious cases of disposal. I stress that I refer to the more serious cases of disposal of waste and its accumulation. The main purpose is therefore to enable public anxiety to be much more readily allayed than is the case at present. The Government must know what a sensitive issue this is and how deeply concerned the public are about matters of this kind. Consequently, when the Government protest that they want to establish greater public awareness about environmental issues I should have thought that they would jump at the opportunity to do precisely what we urge upon them now.
We understand that the Secretary of State may on occasion require to use his powers to exclude information relating to national security from any hearing or consultative procedure. Nonetheless, the burden of our case is that a more informed and mature view of the disposal of radioactive waste is required and this amendment would encourage that situation.
There is a feeling among local authorities—and no doubt the Minister realises this—that HMIP acts in an unaccountable manner and it cannot be to its own advantage that that should be the case. Consequently, a better regulated system of consultation would also be in the interests of HMIP.
Some authorities report that they have seen local communities become suspicious of disposal operations even where they do not involve radioactive waste because members of the public have no means through their local authority of being able to express their opinions or of receiving more than the most basic level of information. I hope that the Government will recognise the force of that argument.
As regards this grouping, I conclude by asking the Government to consider very seriously giving this automatic right of hearing in the more serious cases. Local authorities may not wish to take up that right in all instances but, nevertheless, they should have the right.
We have put forward the consultative procedure which is outlined in the rest of the amendments in this group in the event that the Government—and it looks as though this is the case—are unable to agree to an improved hearing procedure. This matter arose in earlier debates. The noble Lord, Lord Reay, said in Committee that applications will be passed to the councils before an authorisation is granted, thus giving the authority the necessary opportunity to comment. The difficulty to which we are pointing in these amendments is that there is no defined process after a notice has been sent whereby authorities' comments will be received or considered. That leaves both authorities and HMIP in a state of considerable uncertainty as to the status of comments which may be returned somewhat later in the process than the inspectorate would wish.
The amendments then go on to propose that the Secretary of State should have the power to make
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directions to the chief inspector setting out a period of notice. The inspectorate should have a duty to consider and have regard to any reply received within that period of notice. I understand that a typical time for an application to be processed is something like four months. Therefore, a period of six weeks' notice to local authorities may be appropriate in those circumstances.
I sincerely hope that the Minister will be rather more forthcoming than he has been in the past. I hope that he will see that it is important for local residents not to feel that they will be confronted with a blank wall, which would add to their anxieties. I look forward to hearing a positive response from the Minister to these reasonable amendments. I beg to move.
Lord Reay: My Lords, this is quite a large group of amendments and I hope that noble Lords will bear with me if my reply seems rather lengthy. These are complicated and important matters.
The effect of Amendment No. 195 would be to place a duty on the Secretary of State in respect of all authorisations for the disposal of radioactive waste to afford the opportunity of a hearing to the local authority either in whose area the waste was being disposed of or which was affected by that disposal.
Before coming to the arguments put forward by the noble Lord, I must point out that this amendment is defective. Paragraphs 9 and 10 of Schedule 5 have already amended the hearings procedures in Section 11 of the Radioactive Substances Act 1960. Except in the case of nuclear licensed sites, which are mainly nuclear power stations and Sellafield, the hearings procedure in Section 11 of the Radioactive Substances Act 1960 has been replaced by a procedure for applicants to appeal against the decision of the chief inspector to the Secretary of State. In addition, powers are given to the Secretary of State to call in for his determination any application to dispose of radioactive waste. All local authorities will receive copies of applications to dispose of radioactive waste, which will be available to the public, and it is open to any person or local authority to ask the Secretary of State to call in an application for his determination and to hold a local inquiry.
The position with respect to nuclear licensed sites in England is somewhat different, and in these cases the previous provisions for a hearing have been retained. After the operator has made an application to the chief inspector to dispose of radioactive waste, local authorities, the National Rivers Authority and other public bodies must be consulted before any authorisation is granted. It has been the practice of the Secretary of State to consult far more widely than is required by RSA60, and this will continue under the chief inspector.
Before the chief inspector and the Minister, MAFF, refuse such an application or grant it subject to limitations and conditions, the applicant may request a hearing before a person appointed by the Secretary of State and the Minister. It is at this point in the process of considering an application that the

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amendment put forward by the noble Lord would have an effect, in that local authorities would have a right to a hearing. As they will have already been consulted, we see no reason for the duplication which would result from local authorities also being given an automatic statutory right to a hearing.
There may of course be cases where it is felt that the opportunity for a hearing before a person appointed by the Secretary of State should be afforded to a local authority, and where the Secretary of State and the Minister consider it appropriate, they have the power to do this. In reaching a decision on this, factors such as the exposure to radiation of the critical group resulting from the authorisation would be considered. Indeed, following the ruling of the High Court in the Dudley case, for every relevant authorisation specific consideration is now given to the question of whether local authorities or other persons should be afforded the opportunity of a hearing. I must say that in the 27 years during which the Act has been in operation no applicant, as a result of being granted or refused an authorisation or registration, has requested a hearing.
In a similar way the effect of Amendments Nos. 198D and 198E would place a duty on the Secretary of State and the Minister to afford a hearing to the local authority in whose area radioactive waste was being disposed of or accumulated. They would also insert a reference to Section 7 of RSA60 dealing with the authorisation for the accumulation of radioactive waste into the provisions of paragraph 9 of Schedule 5. Paragraph 9 sets out the procedures for hearings in respect of authorisations requiring the authority of both the chief inspector HMIP and the Minister.
These amendments are also defective, since authorisations for the accumulation of radioactive waste are authorised by the chief inspector alone and not jointly with the Minister. Any person aggrieved by a decision of the chief inspector in relation to authorisations for the accumulation of radioactive waste will therefore be subject to the appeals procedure in paragraph 10 of Schedule 5 to the Bill. It is only disposals of radioactive waste where the authority of both the chief inspector and the Minister is required and which are subject to the hearing procedures set out in paragraph 9 of Schedule 5.
Furthermore, Amendment No. 198F would have the effect of removing the right to a hearing of any person, other than the local authorities, whom the Secretary of State and the Minister, MAFF, might consider appropriate. Thus any public authorities which may have been consulted would have no statutory entitlement to be heard. The substance of these three amendments is to seek to achieve the same as Amendment No. 195—to place the Secretary of State and the Minister under a duty to afford a hearing to the local authority in whose area the activity was to take place.
The effect of Amendments Nos. 196C, 196D, 196E, 197A, 198A, 198D and 198G would be to require that, when local authorities are copied applications relating to the keeping or use of radioactive materials, including the use of mobile radioactive apparatus or the accumulation or disposal of radioactive waste,
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they shall be given a period to comment on those applications. They further provide that the chief inspector and/or the chief inspector and the Minister shall consider and have regard to the views of the local authority before granting a registration or authorisation.
I am afraid that we cannot accept these amendments. The task of regulating radioactive substances has fallen to and been effectively carried out by Her Majesty's Inspectorate of Pollution in England and Wales and by Her Majesty's Industrial Pollution Inspectorate in Scotland and their predecessors for over 30 years. We do not see what local authorities could add.
In many cases—for example, where radioactive materials are to be used or kept—the local authority will have no executive or regulatory function. Indeed, most authorisations for the disposal of radioactivity to the environment are concerned with extremely small quantities of material which are disposed of; for example, by flushing down laboratory sinks or to dustbins. More generally local authorities do not have the range of highly specialist expertise which would be necessary to make an input. In these circumstances, it is difficult to see what consultation would achieve. Indeed, it would be a waste of scarce national radiochemical manpower resources if local authorities were to try to duplicate the work of HMIP. Furthermore, we are not convinced that most local authorities would welcome the imposition of further unnecessary burdens on them.
This is not to say that local authorities do not have a role to play in certain circumstances in fulfilling their normal local authority functions. Where they do—for example, in respect of major disposals from nuclear licensed sites such as nuclear power stations or where they are involved, as is frequently the case, in a disposal operation themselves—RSA60 already provides for them to be consulted, and this will continue. But to extend this to all cases, regardless of whether the local authority has a role to play, cannot be justified and I must ask the House to oppose the amendments.
Finally, government Amendment No. 197 provides that where applications are made under Section 3 of RSA60 for a certificate of registration of mobile radioactive apparatus, a copy of the application and a copy of the certificate of registration will be sent to those local authorities in whose area the apparatus will either be kept or used for releasing radioactive material to the environment. As with other documents, copies of the application and the certificate of registration must be made available to the public. These provisions were inadvertently omitted from the Bill but I am sure your Lordships will agree that it is appropriate for information on mobile radioactive apparatus to be placed in the public domain.
9.30 p.m.
Lord Clinton-Davis: My Lords, of course the Government, with their vast array of civil servants, have much greater access than the Opposition to the

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way in which amendments are drafted, but the Minister has significantly failed to concede the burden of the argument. Therefore, while I have to concede his point that the first group of amendments is defective, it is not nearly as bad as the situation where the government arguments in principle are so basically defective.
With respect, the Minister equated consultation with a hearing. The two are quite distinct. The public, the local populace, who are mainly concerned in areas such as this, would know what was going on if there was a hearing. The information that they get following a consultation is, by necessity, hearsay. There is, therefore, a vast difference in principle. Of course, the consultation procedures that we set out in the second group of amendments was always intended to be a fall-back. Indeed, that is precisely why the amendments were tabled. They were tabled largely as a result of the intervention of the noble Lord in Committee —to which he did not, if I recall aright, make any reference tonight—when he said:
"Applications will be passed to the councils before an authorisation is granted, thus giving the authority the necessary opportunity to comment"—[Official Report, 2/7/90; col. 1937.]
What is significantly lacking about the Minister's reply tonight is that he has not added to the procedure to be deployed. How are the councils to comment? I ask the Minister to he kind enough to define the procedures. This is important.
The Minister says that local authorities would not welcome additional burdens that would be imposed on them as a result of what we are saying here. That is a very strange argument coming from the Government after all the additional and unnecessary burdens that they have placed on local authorities in other respects in this Bill. I ask the Government to be a little more precise.
Lord Reay: My Lords, I have spoken at considerable length giving our reasons for not accepting these amendments. I do not think there is very much to add. In connection with hearings and the point the noble Lord made about the public not being informed, under the procedures as they now exist I can say that by copying all applications to local authorities and making them available to the public, there will be greater knowledge of what is to happen than ever before.
Lord Clinton-Davis: My Lords, notwithstanding the thoroughly unsatisfactory nature of the reply, I do not wish to press the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 100 [Application to Crown of 1960 Act]:
[Amendment No. 196 not moved.]
Schedule 5 [Further Amendments of the Radioactive Substances Act 1960]:
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 196A:
Page 165, line 1, after ("words") insert (" "Minister and the Minister" there shall be inserted "chief inspector and the Minister" and for the words").
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 196B. These are tabled as probing amendments. It would appear on the face of Schedule 5 that changes made to the Radioactive Substances Act 1960 may not be complete. The purpose of this part of the Bill is to give formal responsibility for exercising the function to the chief inspector in place of the Secretary of State for the Environment. This part of Schedule 5 makes the necessary drafting changes to the 1960 Act. It appears that the references in Section 8(1) and (3) of the 1960 Act may have been omitted. I beg to move.
Lord Reay: My Lords, these amendments seek to make consistent the references to the chief inspector and the Minister of Agriculture, Fisheries and Food in Section 8 of the Radioactive Substances Act 1960. I thank the noble Lord for the diligent way in which he has examined this part of the Bill. I am sure that he is aware that the drafting of this part of the Bill is extremely complex, amending as it does existing legislation. He may not be too surprised to learn that the effect of his amendment is already achieved by the provisions of Clause 96(2). That clause lists the section of the Radioactive Substances Act 1960 where the responsibilities of the Minister and thus the Secretary of State are transferred to the chief inspector. The effect of these amendments has already been achieved.
Lord Clinton-Davis: My Lords, I thank the noble Lord for his reply. We need to look very carefully at what he has said. I do not propose to press the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 196E to 196E not moved.]
Lord Reay Lord Reay moved Amendment No. 197:
Page 166, line 16, leave out from ("area") to end of line 17 and insert ("it appears to him the apparatus will be kept or will be used for releasing radioactive material into the environment." ").
[Amendment No. 197A, as an amendment to Amendment No. 197, not moved.]
On Question, Amendment No. 197 agreed to.
Lord Reay Lord Reay moved Amendment No. 198:
Page 166, line 20, leave out from ("area") to end of line 21 and insert ("it appears to him the apparatus will be kept or will be used for releasing radioactive material into the environment." ").
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 199, 200 and 201. They are government amendments and make a number of adjustments to the powers of inspectors and to the public access provisions. Amendment No. 198 provides that where a certificate of registration for mobile radioactive apparatus is issued a copy of the certificate of registration will be sent to those local authorities in whose areas the apparatus will be kept or used for releasing radioactive material to the environment. As with other documents, the certificate of registration must be made available to the public. Those provisions were inadvertently omitted from the Bill and I am sure your Lordships will agree that it is appropriate for information on mobile radioactive apparatus to be placed in the public domain.
Amendment No. 199 lifts an inadvertent restriction on the powers of entry of inspectors in respect of premises where they have reason to believe that mobile radioactive apparatus is being or has been used or kept. Inspectors have comprehensive powers of entry including the powers which are being added by paragraph 13 of Schedule 5. They will allow inspectors to enter upon any premises at any reasonable time where the premises have previously been registered under RSA60 and the inspector has reasonable grounds for believing that radioactive material is being kept on the premises. I am sure noble Lords will agree that it is equally important that inspectors have the rig it of entry in cases where they believe that mobile radioactive apparatus is on the premises.
Amendments Nos. 200 and 201 fulfil an undertaking which I gave in Committee when considering amendments tabled by the noble Lord, Lord Tordoff. They related to the need to make available records of persons convicted under RSA60. The amendments provide that records of conviction under RSA60 shall be copied to local authorities and made available to the public. I hope that that satisfies the noble Lord, Lord Tordoff. I beg to move.
Lord Tordoff: My Lords, I was delighted to see these amendments on the Marshalled List. I am grateful to the Government for taking up the broad hint that we gave in Committee. If my birthday had not been last Thursday I should have been happy to celebrate it today with these amendments.
On Question, amendment agreed to.
[Amendments Nos. 198A and 198B not moved.]
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 198C:
Page 168, line 53, at end insert:
("8B. In section 9 of the 1960 Act (Provisions as to functions of public and local authorities) in subsection (3) of that section—

(a) after the first words "local authority" there shall be inserted the words "waste disposal contractor"; and

(b) at the end of the subsection there shall be inserted the words "and, in any case involving precautions by a waste disposal contractor, the relevant Minister shall consult the local authority in whose area the contractor undertakes activities" ").

The noble Lord said: My Lords, the 1960 Act contains an additional provision for consultation with local authorities where a Secretary of State deems that they will need to take special precautions to deal with the consequences of an application. The usual state of affairs dictates that that will involve the disposal of radioactive waste in place on a local authority site. The Bill does not affect that provision but we are raising a point for the future.
Where the effect of Part II is to require local authorities to contract out waste disposal operations either to controlled companies or to the private sector the special precautions may in future be taken by the LAWDC rather than the local authority. We contend that in such a case it should still be the authority as the waste disposal authority which is consulted where such precautions are required. I beg to move.
Lord Reay: My Lords, before dealing with the argument put forward by the noble Lord I must point
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out that the amendment is flawed. The consultation process is now to be undertaken by the chief inspector or the Minister of Agriculture, Fisheries and Food and not the relevant Minister as the amendment suggests. This is because Clause 96(2) provides that in Section 9(3) of the Radioactive Substances Act 1960 the references to the Minister (other than the Minister of Agriculture, Fisheries and Food) are to be replaced by "chief inspector". It is also not clear whether the noble Lord intends that waste disposal contractors should be consulted when they are required to take special precautions or whether he intends that consultation should be restricted to the authorities in such circumstances.
The Secretary of State has already taken administrative action to extend the consultations with local authorities and other bodies which are required under Section 9(3) of the Radioactive Substances Act 1960. As a result, we now consult waste disposal contractors and local authorities where disposal is to private landfill sites or where disposal takes place on the authorised premises of the person who is disposing of the waste. Therefore, we are already achieving the objective set out in the amendment and we shall continue to do so. Flawed as it is, we see no need for the amendment to be accepted.
Lord Clinton-Davis: My Lords, I am not having a good night regarding drafting; indeed, I am constantly being "flawed". On this occasion, I willingly accept the observation made by the noble Lord. In the circumstances, I beg leave to withdraw the flawed amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 198D to 198G not moved.]
Lord Reay Lord Reay moved Amendment No. 199:
Page 173, line 42, at end insert:

("or in respect of premises on which there are reasonable grounds for believing that mobile radioactive apparatus has been or is being kept or used." ").

On Question, amendment agreed to.
9.45 p.m.
Lord Tordoff Lord Tordoff moved Amendment No. 199A:
Page 174, line 17, at end insert:
("() In subsection (3) (offences relating to the disclosure of information)—

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

(b) the definition of "relevant process" shall be omitted.").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 199B, 201A and 201B. The amendments do not hang together, but we shall deal with the situation as we proceed with the debate.
The first two amendments are not dissimilar to the ones which we tabled in Committee and which were rejected by the Government. They aim to replace a blanket offence under the Radioactive Substances Act 1960 of disclosing any information about "relevant process" where this is defined as,

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"any process applied for the purposes of, or in connection with, the production or use of radioactive material".
The Government stress that this does not apply to information about the final disposal of radioactive waste. However, discussion of the problems caused by waste inevitably require some discussion as to the purpose for which the radioactive substance was used in the first place. I cited a number of such instances in Committee.
A similar incident occurred in July of this year. The Observer newspaper reported that people were being contaminated by the presence of low level radioactive waste in drinking water in the Thames area. Researchers from St. Bartholomew's Hospital found radioactive iodine 125 in the thyroid glands of humans examined after post mortem. The presence of high levels in people in the Thames Valley region correlated with high levels in the River Thames, compared with lower levels in both tissue and rivers elsewhere in the country.
Such findings inevitably raise the question about the sources of the waste. Some of this information may be disclosed without contravening Section 13 of the Radioactive Substances Act hut, inevitably, questions will arise which involve some information about a,
"process applied … in connection with … the use of radioactive material".
For example, a disclosure which revealed how much radioactive material was used in the luminous dials of a particular brand of watch, or telephones where BT Trimphones have luminous radioactive dials, or a smoke detector may be covered by this provision. I should remind your Lordships that at present disclosure would be a criminal offence, punishable by up to two years' imprisonment. In my view that is going over the top. It may not be what is intended by the Bill; but it is what the Bill actually says.
Therefore, Amendment No. 199A proposes that an offence would only be committed if the information disclosed is harmful to national security or jeopardises trade secrets. We have already talked about trade secrets today—and to some good effect, I am glad to say. Disclosure of information which is not harmful in that way should not be an offence.
Amendment No. 199B allows justification for what would otherwise be illegal disclosure; namely, that the disclosure
"was necessary for the purpose of protecting the health of any person from serious injury".
That argument is similar to one we had earlier this evening.
Amendments Nos. 201A and 201B would provide for public access to the results of the monitoring of radioactive discharges and waste. Such information is obtained by the pollution inspectorate under the Radioactive Substances Act 1960. Paragraph 15 of the schedule provides for a certain amount of disclosure. As we have heard, the Government have been good enough to table an amendment in relation to one that we put down at the last stage requiring disclosure of
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details of convictions under the 1960 Act; but it appears that they still refuse to provide for full disclosure of the monitoring results.
The noble Lord, Lord Reay, argued that the amendment would swamp the system by making impractical demands. He went on to say that they intended that summary data would be immediately available and that more detailed information would be available on request. That is helpful, but it is not adequate. First there is no requirement in the Bill to disclose monitoring results. There is provision for the disclosure of documents sent by the pollution inspectorate to local authorities if the Secretary of State so dictates. That is presumably the mechanism for disclosure of monitoring results. However, without a statutory basis any directions of the Secretary of State can be modified or even cancelled.
A parallel solution arose in relation to information about genetically modified organisms, which are dealt with in Part VI. The Government initially gave a commitment that the Secretary of State would keep a public register of the relevant information. He was pressed to give that statutory force. The amendment which now appears in the name of the noble Baroness, Lady Blatch, provides for statutory registers in Part VI. We hope that in this part the Government will accept the case for putting disclosure on the face of the Bill.
Secondly, we still believe that the basis for disclosure should be the full monitoring results rather than the summaries. Summaries will inevitably be published several months after the event whereas we expect a scheme based on full data to involve much faster publication. Where there is a manageable number of sample results they should be made available as soon as possible. Why cannot registers of the type set up under Part I on integrated pollution control also be adopted here?
However Amendment No. 201B recognises that that requirement could create difficulties where monitoring is in the form of automated continuous read-out which may be capable of producing thousands of results in one day. The amendment makes provision for that.
The applicant would need to specify the period of time in which he or she was interested and the inspectorate would be required to provide figures showing the minimum, maximum and average readings during that period and the number of occasions upon which the level specified by the applicant had been exceeded. That presumably would require only a simple interrogation of the computer data upon which such results are based. That duty applies only so long as the relevant results have been retained by the inspectorate. Although they sound complicated, the amendments are straightforward. I hope that the Government, having had some time to think about them over the Summer Recess, are now able to be of more assistance to your Lordships. I beg to move.
Lord Reay: My Lords, I am not sure whether I am able to give the noble Lord much satisfaction. He

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obviously feels strongly about Amendment No. 199A and argued his case well. However, I am afraid that we are not able to accept the amendment. It would mean that certain processes which were not subject to national security restrictions or classified as trade secrets, but where disclosure might be prejudicial to the interests of the person concerned, would not be given the necessary protection from unwanted disclosure. We have in mind some university activities where disclosure of a process might be prejudicial if it took place in the development stage, and information on the operation of large irradiation sources.
I hope that your Lordships will agree that it would be wrong for persons with legitimate reasons for holding information on the whereabouts of radioactive material and data to be denied the protection they need. I equally hope that your Lordships will appreciate, as I emphasised in Committee, that a considerable amount of information is being made available to the public as a result of the provisions on access to information being introduced in the Bill. It is a case of striking a balance between the two, and I believe that we have struck the right balance.
Amendment No. 199B would have the effect of enabling a person to remain immune from the commission of an offence of unlawful disclosure of information if the disclosure was necessary for the purpose of protecting a person's health from serious injury. In our opinion, this amendment is unnecessary and inappropriate. Section 13(3) of the Radioactive Substances Act makes it an offence to disclose
"any information relating to any relevant process or trade secret used in carrying on any particular undertaking which has been given to or obtained by [a person] under [the] Act or in connection with the execution thereof unless disclosure is made in specified circumstances".
The important words here are:
"under [the] Act or in connection with the execution thereof".
Information relating to serious injury to a person's health as a result of radioactivity would not be obtained by any person under the Radioactive Substances Act 1960 or in connection with the execution thereof since matters of health are not within the scope of that Act. There is therefore no need to build any protection from prosecution into the Bill.
Amendments Nos. 201A and 201B seek to add to the list of documents which the chief inspector is required to copy to local authorities and make available to the public. Here, the noble Lord, Lord Tordoff, returned to the question of making available information on the analysis of samples. However this time his amendments are less widely drawn than they were in Committee in that they do not require the chief inspector to make available all data obtained through continuous automatic monitoring.
We appreciate the noble Lord's constructive approach, but unfortunately in our view the amendments are still too broad in scope for me to be able to recommend that your Lordships should accept them.
To take the proposals contained in Amendment No. 201A first, these would, with the exception of any
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information obtained through continuous automatic monitoring, which I shall come to in a moment, require every analysis of every sample to be sent to local authorities and kept and made available to the public by the chief inspector. I can only say, as the noble Lord pointed out I said at Committee stage, that in our opinion this procedure would swamp the system and make it less effective in giving the public the opportunity to examine documents of real significance. However, we intend that summary data will be immediately available and that more detailed information will be available on request. The data immediately available would indicate that further information was available.
Amendment No. 201B would have the effect of requiring the chief inspector to provide on request details of average, minimum and maximum figures from the results of any sample analysis obtained by continuous automatic monitoring. Any person requiring information obtained in this way would be able to stipulate any length of time he wished that information to cover. He would also be able to request a statement of the number of times a given level is exceeded. If the period specified is excessive and the threshold level is set very low, this could involve an unreasonable amount of data. Also, by specifying a very short period, it would be possible to require the production of equally large volumes of data. I do not believe it would be reasonable to ask that of the chief inspector. We consider that it is inappropriate for such powers to be placed in a Bill, as the requirements are too detailed. In the light of this, I hope that your Lordships will not accept the amendment.
10 p.m.
Lord Tordoff: My Lords, I am grateful to the Minister. I appreciate the difficulty which he faces, particularly as regards the previous two amendments to which I referred. We have been striving to reach the underlying problem behind these amendments but we have obviously not yet attained it. I suspect that we may not have either the time or the ability to do so before the next stage of the Bill. Nevertheless, I believe there is a problem here which the Government would be wise to address.
As regards the first two amendments to which I referred, I understand the reassurance that the noble Lord has given on Amendment No. 199B. I shall want to consider that assurance and see whether we cannot try to find a slightly different form of words because here again an important problem is involved. As regards Amendment No. 199A, I have a nasty feeling that whenever we get into the area of disclosing information on substances of this kind the shutters come down with a terrible bang. I wish that this part of the Government's environment department was able to be as understanding and as flexible as other departments.
The spectre of national security and all kinds of other matters seem to be thrown into the pot with reckless abandon. Frankly, I do not understand why the university dimension of this matter is seen as a horrific problem. I do not understand why universities should not be able to be treated sensibly as regards the

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terms of this Bill. That seems to me to be an astonishing state of affairs. However, I shall certainly reconsider that matter and see whether we can find yet another form of words which excludes the quite genuine cases the Minister has referred to but does not act as a blanket stoppage of information on all kinds of matters that the public should have a right to know about. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 199B not moved.]
Lord Reay Lord Reay moved Amendment No. 200:
Page 175, line 13, leave out ("and").
On Question, amendment agreed to.
Lord Reay Lord Reay moved Amendment No. 201:
Page 175, line 15, at end insert ("and

(d) such records of convictions under section thirteen of this Act as may be prescribed in regulations;").

On Question, amendment agreed to.
[Amendments Nos. 201A and 201B not moved.]
Clause 102 [Purpose of Part VI and meaning of "genetically modified organisms" and related expressions]:
The Earl of Arran The Earl of Arran moved Amendment No. 202:
Page 111, line 9, after second ("is") insert ("or is not").
The noble Earl said: My Lords, in moving Amendment No. 202 I wish to speak also to Amendments Nos. 203 and 211. These are all technical amendments over which I need not detain your Lordships long.
Amendments Nos. 202 and 203 are both drafting amendments which clarify the definition of "biological matter" in Clause 102(3). Amendment No. 211 is necessary to ensure that any limitations or conditions on genetically modified organism consents issued in Northern Ireland are not imposed for the purpose only of securing the health of persons at work. It complements the existing wording of Clause 108, which has the same effect in respect of Great Britain. I beg to move.
On Question, amendment agreed to.
The Earl of Arran The Earl of Arran moved Amendment No. 203:
Page 111, line 11, leave out ("or in the case of other") and insert ("and, in the case or).
On Question, amendment agreed to.
Lord Clinton Lord Clinton-Davis moved Amendment No. 204:
After Clause 103, insert the following new clause:
("Consultation with local authorities
. The Secretary of State shall before making any regulations under this Part consult such powers, including organisations representative of local authorities, as appear to him to be appropriate and he shall take account of any representations from such persons before issuing any regulation concerned.").
The noble Lord said: My Lords this amendment seeks to procure a commitment by the Government to consultation before regulations implementing Part VI are laid, and furthermore a specific commitment to consult local authority associations where it is appropriate so to do.
The Minister will know that the Secretary of State is given broad powers to set down in regulations what should or should not be considered harmful for the purposes of this legislation. Those powers are designed to cater for genetically-modifed organisms which are deliberately intended to cause harm. They are obviously powers that would have to be used with very great caution. They also require widespread consultation with those who have appropriate expertise and interests before there is any question of those powers of exemption being invoked by the Minister.
Other areas where the regulations will decide important issues of policy include the criteria for risk assessments, the circumstances under which consent will be required, and the circumstances under which exemptions from any parts of the system will be permitted.
In our submission it is wholly appropriate that local authorities, because of their environmental health roles, should be involved in such consultations. They have a representative on the Advisory Committee on Genetic Manipulation and on the new Advisory Committee on Releases to the Environment. They are actively involved in the process of authorisation on a day-to-day basis. Consequently, and because of their role in relation to the overall planning of the implementation of Part VI, I believe that it is wholly appropriate that they should be consultees in the processes that are to be undertaken. That is also appropriate in this context because if there is an accident or an escape they will be more appropriately involved than almost anybody else.
Having regard to those issues I hope that the Government will feel that it is appropriate to accept the new clause. I beg to move.
Baroness Blatch: My Lords, the concern underlying the amendment is understandable. It is, of course, right that the Secretary of State should take account of expert and lay opinion on the important matters which Part VI enables him to regulate. My noble friend Lord Hesketh gave an assurance during Committee that there will be full consultations on Part VI regulations. I am happy to make clear that that commitment applies to appropriate local authority organisations as well as to other relevant bodies and individuals.
The Government accept that they have, as a general rule, everything to gain from thorough and wide-ranging consultations on the complex issues surrounding biotechnology. A need could, however, arise to amend regulations rapidly in view of the speed with which biotechnology is developing. Statutory consultation could result in unworkable delay in cases of exceptional urgency, but I stress that such cases are likely to be the rare exception and not the general rule. It is for that reason that we do not wish to accept the amendment on the face of the Bill. With the assurance that local authorities will be consulted I hope that the noble Lord will not press the amendment.
Lord Clinton-Davis: My Lords, the House will recognise that the noble Baroness has been very

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forthcoming and helpful. I should have preferred it had she gone further, but having regard to the arguments that she adduced I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 104 [Risk assessment and notification requirements]:
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 205:
Page 113, line 3, leave out ("release").
The noble Lord said: My Lords, in moving Amendment No. 205 I should like to speak to Amendments Nos. 206 to 210 which stand in the name of my noble friend Lord McIntosh and myself.
The underlying purpose of the amendment is to require the Government to give effect to any international convention on pesticides or organisms in their regulations on marketing or release. The duty would apply to activities with organisms which as a result might be marketed or released abroad.
This was an issue that was raised at the Committee stage of the Bill. Noble Lords urged the Government to describe the progress that had been made towards an international convention on genetic manipulation. The noble Earl, Lord Arran, was able to say that the United Kingdom supported the pursuit of rigorous international action and had been influential to date in the European Community and OECD in securing rational and workable solutions. Tonight we should like to know the progress that is being made at the present time in OECD and the United Nations regarding the procurement of this extremely important international convention. I believe that there is nothing between the Government and ourselves in relation to that.
We say that regulations made applicable in this country should at the very least make such provision affecting those GMOs which may be exported as will give effect to any international convention. Consequently that is the underlying point in the request that I made a moment or two ago.
I hope that the Government will agree with my submission that an international convention is indeed critical. It is critical because companies within those countries which are currently regulated—that is to say, the European Community, Japan and the United States—might test or market GMOs in countries in which no such regulations exist. The biotechnology industry in Europe is already known to be discussing the possibility of experimental releases in Eastern European countries. In the same way a convention is needed because of the danger of indigenous companies in less regulated countries undertaking experimentation and releases which could undermine existing regulatory regimes.
I put this question to the noble Earl or the noble Baroness, whoever will reply to this debate. How can it be justifiable that the United Kingdom could debar the release of an organism within its boundaries yet permit the export of that organism for use elsewhere? Moreover, since GMOs by nature are capable of being replicated, escape may not easily be containable. The escape of a single organism might result in huge
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numbers in a relatively short time. Escape or uncontrolled release in any one country cannot be guaranteed to be limited in its effect to that country. One could have a situation in which organisms could be inadvertently reimported into the United Kingdom, possibly with disastrous consequences.
A further danger lies in the fact that GMOs could be designed in this country in the light of conditions in another part of the world. For example, organisms capable of survival in the tropics will not necessarily be capable of survival or replication in this country. Regulations need to take account of the fact that, as a country with currently superior technology, companies here may be engaged in manufacturing organisms which are not intended for release in domestic conditions.
I hope that the Government will be forthcoming about the generality of the issue relating to what is happening in international forums at the present time and also on the more specific points which I made in the latter part of my remarks. I beg to move.
The Earl of Arran: My Lords, while Amendment No. 210 would enable the Secretary of State to make regulations providing for general consents under Clause 107 for certain types of release, taken together the other five amendments would establish a regime for GMO releases which would be similar to but less sensitive and flexible than that already provided for in the Bill.
At present it seems probable that most if not all release activities will require specific consent, but there may be arguments for exceptions—for example, releases of GMOs and certain innocuous waste processes. We shall consider carefully the case for such exceptions. We should keep open sufficient options to deal with different types of cases.
Part VI enables the Secretary of State precisely to gauge the appropriate requirements for releases on a strict case by case basis. The amendments imply a step-by-step approach to releases in which the options for control would be more limited without any obvious advantages for environmental safety.
Amendment No. 207 would require the Secretary of State to make such regulations for the risk assessment of organisms used outside the United Kingdom as shall give effect to international agreements.
I can well understand the point behind this amendment and the noble Lord, Lord Clinton-Davis, is right to raise it in this debate. The implications of GMO biotechnology spread beyond the boundaries of the UK and the European Community. Equally, I am sure your Lordships will accept that this Bill is not the vehicle for achieving what the amendment seeks.
It would be impracticable in the Bill to seek to take account of risk assessment factors which are relevant to countries outside the Community. Lest your Lordships fear any complacency by the Government on the general issue, however, let me draw attention to Chapter 13 of the White Paper which contains a specific commitment to take an active part in work in

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the OECD and the UN towards achieving international guidelines on the worldwide control of GMO activities. The Government will pursue that commitment with vigour.
The noble Lord, Lord Clinton-Davis, asked about progress so far. Since Committee there has been no significant progress in the UN or OECD. However, the United Kingdom is firmly committed to developing wide international guidelines.
I hope that with those explanations and with that reassurance the noble Lord will feel obliged not to move these amendments.
10.15 p.m.
Lord Clinton-Davis: My Lords, I thank the noble Earl for that reply. As someone who has served in government before I am familiar with the "wrong vehicle" argument. It is useful and perhaps it is right in these circumstances. We have obtained from the Government today a clear commitment that they will continue to ensure that progress is made in these international fora.
Noble Lords will wish to have the assurance—I believe that the Government will have no great difficulty about it —that the House and indeed the
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public will be kept informed as to the progress on these extremely urgent matters and that the Government will be instrumental in furthering that progress. We cannot brook delay. I should like to have that assurance from the Minister. We do not anticipate that he will have much difficulty in giving it.
I thank the noble Earl for the courtesy that he extended when considering the purpose underlying the amendments. The points have been properly ventilated. The debate has given the Government the opportunity to be perhaps a little more forthcoming than in the previous debate. Perhaps I ought to invite the Minister to reply to the short point that I made before I beg leave to withdraw the amendment.
The Earl of Arran: My Lords, with the leave of the House, I can give the assurance to the noble Lord that he requires regarding information upon the continuing progress of the talks. I hope that with that reassurance he will be content.
ues
Lord Clinton-Davis: My Lords, in those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 206 and 207 not moved.]
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 207A:
After Clause 105, insert the following new clause:
("The Genetic Modification Commission
.—(1) There shall be established a body to be called the Genetic. Modification Commission (in this Part referred to as "the Commission") to perform the functions assigned to it by or under this Part.
(2) The members of the Commission, of whom there shall be not less than eight, shall be appointed by the Secretary of State after consultation with such organisations as they consider appropriate.
(3) The Commission shall give to the Secretary of State advice on matters relating to the execution of this Part of the Act or the exercise of any power conferred by it, or otherwise relating to genetic modification, where either the Commission consider it expedient, or they are requested by the Secretary of State to do so.").
The noble Lord said: My Lords, the amendment, which stands in the names of my noble friend Lord McIntosh and myself, seeks to establish a genetic modification commission. That is a commission that could give advice to the Secretary of State on matters concerning the implementation of this part of the Act or otherwise as far as concerns genetic modification. This would be broader than the purely technical advice available through the advisory committee on releases to the environment or other existing advisory bodies.
When this matter was raised at Committee stage the noble Earl, Lord Arran, said that it would add nothing to the roles already carried out by the advisory committee on genetic manipulation or the new advisory committee on releases to the environment. I submit that that is not consistent with the facts.
The work of the ACRE—I hate these acronyms, but I suppose at this time of night it is better to use them—is going to be concerned primarily with the operation of the legislation. Our anxiety is that there is nothing in the Bill and nothing in Amendment No. 218 which ensures that the ACRE will either be asked or will be practicably able to take into consideration broader issues. Precisely the same restrictions apply to the ACGM.
The Government need to be forthcoming about this point. I should like to put a number of specific questions to the Minister. First, am I right in asserting that neither the ACGM nor the ACRE would be able to refer to these broader issues as I have referred to them? After all, we are talking here about the environmental impact of plants which have been manipulated to be resistant to herbicides, allowing broader application of those herbicides. Would the ACRE consider the overall environmental impact of this type of development as well as the environmental safety of the manipulation itself?
The social and economic effects of a form of technology which could radically alter the structure of a particular industry are important. We have recently had the serious controversy over the bovine growth hormone used to produce increased quantities of milk. Some experts argued that this would put many small dairy farmers out of business. Is this a matter on which either of those two bodies would be able to offer its
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expertise in relation to the implications of what is involved, or would the bodies feel proscribed from being able to offer the necessary advice?
There are also ethical considerations. I am sure that the noble Baroness, Lady Blatch, would recognise only too well that in transferring genes between species, particularly where human genes may be involved, serious ethical considerations arise. Is there any committee capable of offering the Government advice about such ethical considerations? How are they to be dealt with?
Another point concerns the membership of the two organisations. One wonders whether what is currently envisaged in terms of the membership is to provide a broad enough membership which could consider issues of this kind even if the terms of reference of the committees permitted this to happen. What is required is participation from a very broad range of interest groups for a proper debate to take place on the impacts of such a powerful new technology. The genetic modification committee would be seen as including environmentalists, consumers, economists, representatives of the Church, industrialists and other concerned groups.
There have been general calls for the kinds of debates to which this amendment gives rise. It is a pity in many ways that it is being taken at such a late hour because I think the whole House recognises that these are fundamentally important matters.
Commenting on ethical aspects of developments in biotechnology, a recent report by the Government's Advisory Council on Science and Technology stated:
"We recommend that Government Departments need to be sufficiently alert to the ethical issues that are likely to cause concern in the future. We recommend that consideration be given as to how a detailed and systematic analysis of … ethical concerns can be carried out before public worries highlight particular issues".
Industry has made similar calls. The senior advisory group on biotechnology of CEFIC, which is the European body umbrella organisation for the chemicals industry, recently called for the European Community to appoint an independent advisory commission to,
"advise and provide guidance on matters, both European and international, concerning biotechnology and particular ethical issues".
It also emphasised the need for advice on the economic and social impact of biotechnology and underlined the need for such a body. After all, this is nothing new. Such bodies exist in several member states of the Community at present. One must ask why it should not apply here.
We ask the Government to agree to the appointment of a United Kingdom Genetic Modification Commission. It is a realistic proposal. I must be realistic too because I anticipate that the Government will respond negatively. But it is right that the Opposition should state their case clearly on this point, as we do. The next Government will appoint a Genetic Modification Commission.
Baroness Blatch: My Lords, Amendment No. 207A would require the establishment of a Genetic

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Modification Commission appointed by the Secretary of State. The purpose of the commission would be to advise the Secretary of State both on Part VI matters and genetic modification generally.
I hope that noble Lords will accept that the amendment is redundant because the Government have already made provision for the matters which it seeks to address. Perhaps I may take the question of general advice first. The Advisory Committee on Genetic Modification (ACGM), founded in 1984, exists to advise the Health and Safety Commission and the Secretary of State on general issues of genetic modification. So far as particular advice on Part VI matters is concerned, noble Lords will be aware that we have set up the Advisory Committee on Releases to the Environment (ACRE).
Like the noble Lord, I dislike acronyms. However, ACRE is the acronym for that body. We must be careful because I understand that there are two ACREs. We must qualify which one we are talking about.
Noble Lords expressed concern in Committee that ACRE should be able to function effectively and that it should be secure in its position. Amendment No. 218 ensures that that will happen by introducing a specific requirement for the Secretary of State to appoint a Part VI advisory committee—in practice ACRE—and to provide the means for enabling it to operate effectively.
There are certain technical differences between the two amendments, but the government amendment, taken together with the fact that ACGM already exists, provides the essence of the situation sought by the opposition amendment.
Dealing with the issue of ethics, which is one of the broader issues mentioned by the noble Lord, Lord Clinton-Davis, Part VI is designed only to provide a system of controls to protect the environment. Neither the 1989 consultation paper nor the Royal Commission on Environmental Pollution report covered ethical aspects of genetic modification. The Government appreciate that those aspects are important and arouse strong views. The Secretary of State is considering with colleagues the ethical implications of GMO activities and will make a statement in due course.
In addition, it is relevant that there are activities going on outside government. The Nuffield Foundation has taken a welcome initiative in that area by convening a conference on bioethics attended by distinguished scientists and senior members of professional bodies, as well as lawyers, philosophers, theologians and representatives of the public and consumers. The foundation is expected to pursue further consultations with official and unofficial bodies to consider whether there is scope for creating new national machinery to handle those ethical issues.
ACGM and ACRE serve distinct purposes. Both committees have the advantage of having not only pure scientists as representatives but also representatives from both sides of industry. Of course the main
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function of ACGM is to advise on general standards of safe working with GMOs and in particular on the suitability of facilities in which they are produced and the competence of the individuals handling them.
Since the committee is established under the health and safety legislation, its remit concentrates on the protection of human health and safety. On the other hand, ACRE is specifically concerned with the effect of GMOs on the environment. The expertise and experience of those composing ACRE reflect that particular and distinct function. I believe that any body which sought to combine the differing and equally demanding tasks of both ACGM and disparate kinds of expertise required to do the job properly.
The noble Lord, Lord Clinton-Davis, raised a particular point about the powers of ACRE. It has powers to advise the Secretary of State on broader issues as well as technical matters. I am advised that ACRE is not concerned with the particulars of the genetic modification on its own but rather with the possible impact on the environment. For example, the committee will be able to advise on pesticide development.
Having listened carefully to the noble Lord, while understanding many of the anxieties behind his amendments, I believe that all of them can be met by the proper functioning of the two bodies. I hope that he will not feel it necessary to press these amendments.
10.30 p.m.
Lord Clinton-Davis: My Lords, on this occasion I cannot say that I am satisfied with the Minister's reply. However, I anticipated that I should not be. There is a large gap between us in terms of the necessary application of principle here as well as the establishment of another organisation.
I should like to hear further from the noble Baroness on one important matter concerning the advice which the Government have received on ethical considerations. She said that the Secretary of State would be making a Statement in due course. Can she tell us something of the timescale of such a Statement? The need for an approach to be made in relation to the ethical considerations should be given the same priority as the Government have given to those other matters. They are all important and, indeed, indivisible.
When I was a member of the Commission I was very much involved in arguments relating to the bovine question, to which I referred earlier. One of the problems was great anxiety and, indeed, suspicion on the part of ordinary people about that area of policy-making. That was reflected in the debates which took place in the European Parliament. As a result of that public pressure, the decision was made, because the Commission has to take parliament very seriously —this arose after my mandate was finished —to defer action for a considerable period of time so that further research could be undertaken.
I am not entirely happy about that because I am not sure that the ethical considerations have been properly tackled at European Community level either. I hope

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that I am not reading too much into what the noble Baroness said, but the time-honoured assertion that the Secretary of State will make a Statement in due course is rather unsatisfactory in the circumstances. Therefore I ask her to be more specific about when that Statement is likely to be made and to give us some general indication—I do not expect it to be too particular—of the area to be covered by the Statement.
Baroness Blatch: My Lords, the noble Lord said earlier that he was not having a very good evening. I am afraid I shall not be able to make it any more bearable. I cannot comment specifically on the timing. However, I am able to assure him of two things: first, that there is absolutely nothing sinister behind the lack of information at this time; we are seized of the importance of the issue. Secondly, progress is being made, but regarding the specific time I must remain within the phrase that the Secretary of State will report in due course.
Lord Clinton-Davis: My Lords, again I am disappointed by that response, but now is not the time to pursue it. It will be pursued elsewhere. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 107 [Consents required by certain persons]:
[Amendments Nos. 208 to 210 not moved.]
Clause 108 [Consents: limitations and conditions]:
Baroness Blatch Baroness Blatch moved Amendment No. 211:
Page 117, line 41, at end insert ("or, in relation to Northern Ireland, Part II of the Health and Safety at Work (Northern Ireland; Order 1978)").
On Question, amendment agreed to.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 212:
After Clause 108, insert the following new clause:
("Strict liability in certain cases
. Where any loss or damage is caused by the acquisition, keeping or release of any genetically modified organism, the person who acquired, kept or released that organism shall be liable for the loss or damage, irrespective of fault on his part, except where such loss or damage—

(a) was done wholly to the fault of the person who suffered it; or

(b) was suffered by a person who voluntarily accepted the risk of the loss or damage being caused; or

(c) as a result of the keeping, acquisition or release of an organism within the terms of a consent issued by the Secretary of State.").

The noble Lord said: My Lords, this amendment, standing in the name of my noble friend Lord McIntosh and myself, relates to strict liability. We feel that the recommendations made by the Royal Commission on Environmental Pollution that strict liability should arise where any person releases a GMO without the necessary consents should be reflected in the legislation. It was an issue raised at Committee stage by my noble friend Lord Graham. We feel that it is right and proper that the issue should be ventilated again tonight.
The Royal Commission expressed strong views about civil liability in this context. Traditional liability law deals with damage in terms of persons and
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property, and there is anxiety about whether this is an adequate way to cater for the interests of the environment where it has common ownership within the community. Consequently, as the Government are aware, there is a draft European Commission directive, and we drew on that directive in the drafting of Amendment No. 332G at Committee stage. We are seeking to create strict liability for damage to the environment and to give public authorities and common interest groups a right to take action in such circumstances.
In the earlier debate the noble Earl, Lord Arran, cited the case of Rylands v. Fletcher, a well-known case to which all students of law are inured. It relates to liability for damage caused by the escape of dangerous things, without proof of negligence, from land. Of course there are exceptions to the Rylands v. Fletcher rule. It applies where dangerous objects escape from land, although the noble Earl sought to argue on that occasion that there would be liability where the damage occurred on land on which GMOs were kept. He went on to say that the rule of strict liability applies only when there is some special use bringing with it increased danger. However, he did not elaborate on that proposition. It is important for Ministers to indicate what "special use" means in the context of GMOs.
The Royal Commission was asserting that any use of a GMO is potentially at least a special use which can bring substantial consequential risks. Therefore, if the Government do not go along with that we have to ask which types of GMO use are intended to be special in this context and which are subject to normal rules of liability.
We are not arguing for strict liability, though frankly I might be tempted to do so at another time. This amendment falls short of strict liability, but I hope that the Government will now explain the position rather more clearly than they were able to do in Committee. I beg to move.
The Earl of Arran: My Lords, this amendment, as outlined by the noble Lord, is an attempt to impose a form of strict liability in certain cases where loss or damage is caused by the acquisition, keeping or release of a GMO.
This Bill is not the place to seek the establishment of the kind of rules on civil liability attempted by the amendment. The purpose of Part VI is to set up a regulatory system for the control of the environmental safety of GMOs, with appropriate sanctions against those who contravene the requirements of the system. The provisions of Part VI are admirably suited to that purpose. They impose certain specific requirements and general duties on those involved in GMO activities, with the object of preventing or minimising damage to the environment. The concept of environmental damage is very clearly defined. In particular, the definition of "harm" at Clause 103(6), on which this concept is dependent, covers a very wide range of possibilities, including damage to human health and other living organisms, interference with ecological systems and offence to man's senses or damage to his property.

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Those causing harm run the risk of committing one of the many offences imposed by Clause 114 and of having to bear a very stiff penalty in the worst cases. In addition, an offender can under Clause 116 be ordered by the court to take steps to remedy the matters in respect of which he has been convicted; and under Clause 117 he can be required by the Secretary of State to cover the costs of remedying the harm caused which could be a very serious burden in some cases.
Turning to the question of civil liability, I hope that your Lordships' concerns will be met when I explain that the question is under wider consideration than is possible in relation to Part VI. There is a Council of Europe draft convention on damage resulting from dangerous activities defined as,
"including the release of dangerous GMOs",
and a proposal from the European Commission for a Council directive on civil liability for damage caused by waste. We are actively discussing the principles behind these ideas.
In so far as there is a danger which is above that which is normal, it will be caught by strict liability. If it is not above that level there is no need for special provision. What is special is a matter for the courts. This is a fast developing area on which the courts will make their determinations according to the facts at that time. I hope that these explanations have been of some assistance to the noble Lord and that he will not press the amendment further.
Lord Clinton-Davis: My Lords, I cannot say that I am satisfied by that reply. To say that these are issues which should be ventilated in the courts by litigation is to surrender an important principle in terms of legislation. Legislation should be clear and it should as far as possible avoid litigation in order to obtain a definition.
The noble Earl has made a serious admission which causes me great concern. He referred to the draft directive to which I had earlier referred regarding civil liability for damage caused by waste which would give rise to strict liability. The Minister based his case on this aspect of the matter. Will he be kind enough to indicate what attitude the Government are taking? It is no use just saying that they are negotiating. Are they not obstructing that draft directive? If that is the case, it is a very serious matter. Strict liability in relation to that area of the law applies in France and Germany and works perfectly well. What are the Government doing about it?
10.45 p.m.
The Earl of Arran: My Lords, as Annex A to the White Paper states, strict liability is a concept that has a potential application to secure environmental protection objectives. It also points out the complexities of ramifications of the concept and the fact that the subject is being pursued in a number of international organisations including the European Court, OECD and the EC. I can tell the noble Lord
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that progress in developing strict liability regimes can only sensibly take place in the international context. It would not be productive to pursue them ad hoc.
Lord Clinton-Davis: My Lords, that is a prescription for further delay. There is nothing in the White Paper that holds out much hope that the positive draft directive proposed by the Commission is going to be supported by the Government. That will cause considerable anxiety to many people. However, I am not going to raise the issue further at this stage. As I say, I am not satisfied with the response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Arran The Earl of Arran moved Amendment No. 213:
After Clause 117, insert the following new clause:
("Publicity Public registers of information
.—(1) The Secretary of State shall maintain a register ("the register") containing prescribed particulars of or relating to—

(a) notices given or other information furnished under section 104 above;

(b) directions given under section 104(8) above;

(c) prohibition notices;

(d) applications for consents (and any further information furnished in connection with them) and any advice given by the committee appointed under section (advisory committee for purposes of Part VI) below in relation to such applications;

(e) consents granted by the Secretary of State and any information furnished to him in pursuance of consent conditions;

(f) any other information obtained or furnished under any provision of this Part;

(g) convictions for such offences under section 114 above as may be prescribed;

(h) such other matters relating to this Part as may be prescribed;

but that duty is subject to section (exclusion from register of certain information) below.
(2) It shall be the duty of the Secretary of State—

(a) to secure that the register is open to inspection by members of the public free of charge at all reasonable hours; and

(b) to afford to members of the public facilities for obtaining copies of entries, on payment of reasonable charges.

(3) The register may be kept in any form.
(4) The Secretary of State may make regulations with respect to the keeping of the register; and in this section "prescribed" means prescribed in regulations made by the Secretary of State.").
The noble Earl said: My Lords, on behalf of my noble friend and with the leave of your Lordships' House, in moving this amendment I propose first to speak to government Amendment No. 216, and then to deal with the other amendments in the group, having listened to the arguments of noble Lords opposite. The government amendments meet the undertaking given by my noble friend Lord Hesketh during Committee to give specific statutory backing to the Government's previously declared policy on the setting up of appropriate public registers of Part VI information. Amendment No. 213 provides for the setting up of the registers themselves while

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Amendment No. 216 allows for certain specified exclusions. The exclusions are based largely on the requirements of the European GMO directives.
I should like to draw your Lordships' particular attention to the fact that both information about consent applications and the advice given to the Secretary of State by the advisory committee set up by virtue of Amendment No. 218 will be among the matters included on the register. This meets a point previously raised in debate both inside and outside the House. It will permit the Secretary of State to allow a period of delay before reaching a decision on applications. During that period he may receive representations on the application both from the applicant and other parties. Let me assure the House that our administrative procedures will allow for this to happen.
In practice, when the advisory committee provides advice to the Secretary of State on matters such as consent limitations and conditions, or the need to revoke a consent, we intend to inform directly those persons such as the applicant for the consent or the consent holder who would be directly affected. In summary, I am sure that your Lordships will agree that these amendments handsomely meet my noble friend's undertaking and that they are thorough and apt to their purpose. I beg to move.
Lord Clinton-Davis Lord Clinton-Davis moved, as an amendment to Amendment No. 213, Amendment No. 214:
After Clause 117, Line 12, after ("below") insert ("or any other committee").
The noble Lord said: My Lords, I believe that it will be for the convenience of the House if we debate also Amendments Nos. 215, 216A, 216B, 217 and 217B. Perhaps I may at the outset thank the Government for Amendment No. 213 which responds positively to arguments that were raised by many noble Lords including noble Lords on this side of the House. I wish to raise a number of questions. I fear that I may take a few moments in so doing because they are important issues in relation to other amendments that stand in the names of my noble friend and myself.
As regards Amendment No. 214, the purpose is to put on the register advice from any committee in relation to applications. The reason is that other committees, including the Advisory Committee on Genetic Manipulation and that on novel foods and processes, are likely to provide advice on GMO activities covered by the Bill. That will be in addition to the advice produced by the Advisory Committee on Releases. However, there is no provision for the advice of these. committees to be published. Consequently, I should like to hear the Government's response to that. It would be inconsistent if the advice of the ACRE were the only advice to appear on the register where an application had been commented on by more that one committee.
Amendment No. 215 seeks to provide for a requirement for the publication of revocations or variations of consents, limitations or conditions. The reason for this is to test the logic for their apparent omission from the new clause as it stands. The new clause provides that consents and information
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furnished in pursuance of consent conditions should be published. Similarly, prohibition notices and convictions are to be published. The information to be in the public domain might, from the point of view of an applicant or subsequent operator, be more damaging than the information proposed in Amendment No. 215. It is possible that Amendment No. 215 merely represents an omission from the new clause and it is put forward in a constructive spirit to decide to test whether there is any practical reason why revocations or variations of consent and so forth which have already appeared on the register should be excluded. The amendment is also important in order to foster public confidence in the way the regulatory system is working.
Amendments No. 216A and 216B test the limits of the necessary national security exclusion in subsection (1) of the second new clause. The purpose is not to argue that there should not be exclusion in respect of national security but to test to what extent these involve deliberate releases to the environment. Surely, it is indefensible that such deliberate releases should take place without some form of public acknowledgement of their existence.
Amendment No. 217 removes subsection (2) of the new clause which enables the Government to exclude information from the register where, in the opinion of the Secretary of State, its inclusion might result in damage to the environment. That is a broad way of formulating the matter which, from the Government's statements in Committee, is intended to provide a safeguard against sabotage. However, the problem is that the formulation is much broader than the case it is intended to meet. The information that would need to be withheld to prevent vandalism would be little —in fact, probably only the exact location and the timing of a trial. Therefore, it is important that such a power is neither too broad nor used for purposes for which it was not originally inserted. In principle, it needs to be queried as to how access to information can lead to damage to the environment.
The words of Amendment No. 217A apply the mandatory inclusions more broadly than the subsection allows for at the present time. It is intended to reflect the current formulation in the European Community. Subsection (7) sets out six matters specified in (a) to (f) which must be included in respect of any GMO use. They correspond with the items enumerated in Article 19 of two Community directives on contained use and release. The respective articles specify that these matters may under no circumstances be kept secret for reasons of commercial sensitivity. The purpose is to require a minimum amount of information to exist in the public domain while respecting the need for secrecy in some cases. That is not unlike the position that appertains in the United States.
In their new clause the Government are going beyond the purpose of the Community directive in that there are no requirements for minimum information in the new clause concerning national security or environmental damage which are the two other areas of secrecy adopted by the Government in

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the new clause. What we are seeking to do by way of this amendment is to make the requirements of the directive applicable in all cases in order to plug this loophole. Considerable clarification is required from the Government in this connection.
It needs to be accepted that there will be some areas where absolute or near-absolute secrecy is probably sensible in the interests, at least, of national security. It is also understood that the Community directive may be interpreted narrowly in certain countries. For example, in France the Government are understood to be intending to interpret the directive sufficiently strictly to define the place of release as France and the organism involved as a micro-organism. However, the effect of the new clause is clearly much more restrictive than the directives intend. Therefore, once again, I look for clarification in the matter.
There is also continuing concern about the Government's amendment (Amendment No. 216) as it spells out in some detail exclusions from the register of certain information. In Committee it was accepted that certain information needs to be excluded on grounds of commercial confidentiality or national security.
The Government's move to registers also raises many issues concerning public access to information generally and the involvement of the public in the vetting procedure for GMOs. The Bill requires that advertisements concerning applications for consent should be made. We understand it is intended that advertisements should be placed before consideration of an application by ACRE, which would enable the committee to consider representations by the public. The question raised by the register amendments is what information would be available to those members of the public in responding to an advertisement. In that respect, I ask for greater clarification from the Government.
This is a matter of considerable importance because, in a recent letter to the Royal Commission on Environmental Pollution, the Secretary of State said:
"I can confirm that your proposal that applications for GMO release consents, and others, should have the opportunity to make representations before I reach a decision on the consent will in effect be implemented. Information on the application and the advice given to me by the Advisory Committee will be held on the register of publicly available information which will be established. I shall allow a delay during which representations may be made to me before I take a decision, taking account of any representations received".
On the face of it, that appears to be quite helpful. However, in my view, there are certain points of practicality which the Government should clarify tonight. First, will applications for consents be placed on the register contemporaneously with the advertisements? Secondly, will they be advertised, placed on the register or both as soon as they are sent to the regulatory authorities; or will either or both of these events be delayed until the committee has issued its advice? Thirdly, how long does the Secretary of State expect to delay an application between obtaining the committee's advice and making a decision?
Of course, many of these details of the system will arise in the regulations which will be tabled in due course. However, what we are looking at now are the underlying principles being considered by the Government. These are principles upon which the regulations will be based. I hope therefore that the Government will respond positively in the matter. I am sorry that I have taken up so much time, but there are many amendments which we believe are important in this respect and which we hope will assist us in securing the help of the Government which we seek. I beg to move.
The Earl of Arran: My Lords, I shall deal with all the amendments mentioned by the noble Lord, Lord Clinton-Davis. I propose to begin by dealing with Amendment No. 214 which requires details of advice given to the Secretary of State by "any other committee", in addition to that set out by virtue of Amendment No. 218, to be recorded on the register. Such a provision would be redundant as the register will relate only to Part VI matters, and the advisory committee appointed by the Secretary of State—namely, in practice, the Advisory Committee on Releases to the Environment—will be the only committee giving relevant advice in such matters. Further, there is some cross-membership of ACGM and ACRE and close collaboration between the secretariats of these two committees and other relevant advisory committees.
Amendment No. 215 would require details of revocations and variations of consents, and so on, to be included on the register. The amendment is also unnecessary because such information is information relating to consents covered by sub-paragraph (1) (d).
Amendments Nos. 216A and 216B would prevent the Secretary of State from excluding from the register any information about the deliberate release into the environment of an organism. The main reason for not accepting the amendment is that it would be inconsistent with the terms of the EC directive on deliberate releases. The directive reasonably permits the exclusion of certain information on the grounds of commercial confidentiality except for the kinds of information listed at subsection (7) of the new clause introduced by Amendment No. 216. The latter kinds of information must always be included and I think that the House will agree that the categories covered are such as to be able always to prevent any operation with implications for environmental safety being obscured by a smokescreen of excessive commercial secrecy.
Amendment No. 217 would remove the Secretary of State's ability to exclude from the register information which in his opinion might result in damage to the environment. Such an ability is necessary to avoid the possibility of wilful damage or sabotage by third parties of a kind which would itself risk the causation of damage to the environment. Let me make it clear, however, that exclusion on those grounds will not be used to cover sensitive work in a cloak of secrecy. For example, it might be reasonable, on environmental safety grounds, not to reveal the precise location of exposed or difficult to protect test

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sites if the risk of criminal trespass or damage was high. On the other hand, it would not be reasonable to extend that precaution to the point of removing from the register details of the individual, company or institution conducting the work and general information about the operations involved.
Similar arguments also make Amendment No. 217A unacceptable. Its effect would be to require the Secretary of State to include on the register certain kinds of information about matters which would otherwise be excluded on the grounds of national security or the need to prevent environmental damage. As I have indicated in relation to Amendment No. 217, the ability to exclude information in order to prevent environmental damage will be used with reasonable discretion. So far as concerns national security, it is a common feature of provisions of this kind to allow some means of protecting information related to national security interests. There is no reason why Part VI should be an exception to that general rule.
Advertisements will be placed before consideration by the committee. It is likely that consent applications will be placed on the register as they are received. I hope that that fairly long explanation of the amendments will have gone some ways towards helping the noble Lord.
11 p.m.
Lord Clinton-Davis: My Lords, at this time of night it is difficult to absorb everything. I am sure that the noble Earl did not absorb everything that I said and I am not sure that I absorbed everything that he said. It is a mutual situation. I should like to consider what he said. In the meantime, I beg leave to withdraw the amendment.
[Amendment No. 214, as an amendment to Amendment No. 213, by leave, withdrawn].
[Amendment No. 215, as an amendment to Amendment No. 213, not moved.]
On Question, Amendment No. 213 agreed to.
The Earl of Arran The Earl of Arran moved Amendment No. 216:
After Clause 117, insert the following new clause:
Exclusion from register of certain information
(" .—(1) No information shall be included in the register under section (public registers of information) above if and so long as in the opinion of the Secretary of State, the inclusion of the information would be contrary to the interests of national security.
(2) No information shall be included in the register if and so long as, in the opinion of the Secretary of State, it ought to be excluded on the ground that its inclusion might result in damage to the environment.
(3) No information relating to the affairs of any individual or business shall be included in the register without the consent of that individual or the person for the time being carrying on that business, if the Secretary of State has determined that the information—

(a) is, in relation to him, commercially confidential; and

(b) is not information of a description to which subsection (7) below applies;

unless the Secretary of State is of the opinion that the information is no longer commercially confidential in relation to him.
(4) Nothing in subsection (3) above requires the Secretary of State to determine whether any information is or is not
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commercially confidential except where the person furnishing the information applies to have it excluded on the ground that it is (in relation to himself or another person) commercially confidential.
(5) Where an application has been made for information to be excluded under subsection (3) above, the Secretary of State shall make a determination and inform the applicant of it as soon as is practicable.
(6) Where it appears to the Secretary of State that any information (other than information furnished by the person to whom it relates) which has been obtained under or by virtue of any provision of this Part might be commercially confidential, the Secretary of State shall—

(a) give to the person to whom or to whose business it relates notice that the information is required to be included in the register unless excluded under subsection (3) above; and

(b) give him a reasonable opportunity—

(i) of objecting to the inclusion of the information on the ground that it is commercially confidential; and

(ii) of making representations to the Secretary of State for the purpose of justifying any such objection;

and the Secretary of State shall take any representations into account before determining whether the information is or is not commercially confidential.
(7) The prescribed particulars of or relating to the matters mentioned in section (public registers of information) (1) (a), (d) and (e) above shall be included in the register notwithstanding that they may be commercially confidential if and so far as they are of any of the following descriptions, namely—

(a) the name and address of the person giving the notice or furnishing the information;

(b) the description of any genetically modified organisms to which the notice or other information relates;

(c) the location at any time of those organisms;

(d) the purpose for which those organisms are being imported, acquired, kept, released or marketed (according to whichever of those acts the notice or other information relates);

(e) results of any assessment of the risks of damage to the environment being caused by the doing of any of those acts;

(f) notices under section 108(3), (4), (5) or (7) above;

and the Secretary of State may by regulations prescribe any other description of information as information which the public interest requires to be included in the register notwithstanding that it may be commercially confidential.
(8) Information excluded from the register under subsection (3) above shall be treated as ceasing to be commercially confidential for the purposes of that subsection at the expiry of a period of four years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it or to whom or to whose business it relates may apply to the Secretary of State for the information to remain excluded on the ground that it is still commercially confidential.
(9) The Secretary of State may by order substitute for the period for the time being specified in subsection (8) above such other period as he considers appropriate.").
On Question, amendment agreed to.
[Amendments Nos. 216A to 217A, as amendments to Amendment No. 216, not moved.]
On Question, Amendment No. 216 agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 218:
Before Clause 118, insert the following new clause:
Advisory committee for purposes of Part VI
(".—(1) The Secretary of State shall appoint a committee to provide him with advice—

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(a) on the exercise of his powers under sections 107, 108 and 109 above;

(b) on the exercise of any power under this Part to make regulations;

and on such other matters concerning his functions under this Part as he may from time to time direct.
(2) The chairman and other members of the committee shall hold and vacate office in accordance with the terms of their appointment.
(3) The Secretary of State shall pay to the members of the committee such remuneration (if any) and such allowances as he may, with the consent of the Treasury, determine.").
The noble Baroness said: My Lords, I beg to move.
Lord Clinton-Davis: My Lords, I welcome the provision the Government have made by making statutory the advisory committee on releases. This was demanded at Committee stage and the Government have responded positively. I wish to pose one or two questions at this stage.
It looks as though the terms of reference are somewhat wider than appear to be contained in Amendment No. 218. The committee is not limited to modified organisms but covers novel organisms. It will be involved in the Wildlife and Countryside and Health and Safety at Work Etc. Acts. It has not been given many responsibilities which were suggested by the Royal Commission. The basic powers which exist would be to draw up regulations and guidelines.
The Royal Commission suggested in section 8.14 that it should also advise on the whole scope for categorising releases on the need for research, most particularly on matters relating to release; that it should be able to undertake reviews of the outcome of releases and also liaise with overseas organisations; advise on possible needs for changes in legislation procedures; and produce an annual report on activities, on developments in the subject and on lessons that might have been learnt. Is it intended that these should be involved in the activities of the committees?
The second question I wish to ask is: why have the terms of reference not been translated into the legislation? Those terms of reference allow the ACRE to advise the Ministry of Agriculture, Fisheries and Food. The phrase "Secretary of State" in legislation refers to any Secretary of State, but does it include the Minister of Agriculture? It may be that this is a term of art bound up with the definition of Secretary of State, but we should like to know.
There is no mention in the legislation, as in the terms of reference, to advising other bodies. As the amendment stands, without a specific direction, the committee's role appears to be severely limited compared with its terms of reference. It is even limited in relation to the legislation. Therefore it would be excluded from advising on the operation of Section 104 or any of the clauses bearing on enforcement, such as Clause 110 on the appointment of inspectors or Clause 112 on obtaining information.
We need from the Government a clear understanding that the committee will be able to comment on all aspects of human and environmental health and safety
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issues and the other functions which are referred to in the terms of reference. Finally, why is the committee's remit limited to Clauses 107 to 109 of the legislation?
Baroness Blatch: My Lords, I think we touched on at least one of the questions when we first discussed this amendment. That was the concern of the noble Lord, Lord Clinton-Davis, about other issues—the broader issues than those mentioned in my first response to the amendment. I am pleased to be able to give an assurance that these committees will be involved in the wider issues.
As for the terms of reference not being wider than the powers in Amendment No. 218 as regards genetically modified organisms, organisms coming under the provisions of the Wildlife and Countryside Act will also be covered by the committees. I believe the noble Lord's concern is that the remit is too narrow and that some subjects will fall outside the scope of the two committees. I believe I am right in saying that the noble Lord need have no fear on that issue. The request of the Secretary of State for advice and the information that the committees deem it important for the Secretary of State to take note of can cover a wide-ranging area of advice.
The other point concerned the cognisance given to the Royal Commission. Again I am advised that advice given by the Royal Commission is heeded by the two committees and that discussions will be comprehensive and will take the views of the Royal Commission into account.
Lord Clinton-Davis: My Lords, with the leave of the House, I hope that I may repeat a question that I put to the noble Baroness on the position of the Secretary of State. Does that cover the position of the Minister of Agriculture, Fisheries and Food? I hope that I may continue talking for a little longer while the fourth cavalry provides assistance.
The other matter that is important concerns the final point I raised on the specific direction of the committees' role. I realise that the noble Baroness dealt with that matter in part. The most important point here concerns nomenclature. I hope the noble Baroness will refer again to that matter. It would be helpful if she could be more specific. However, I feel that we shall learn by experience. Some further legislation may be required in due course, if my fears are realised.
Baroness Blatch: My Lords, with the leave of the House, I should say that we are happy to share the noble Lord's objectives that the committees should work and do their job and that major matters, particularly those mentioned by the noble Lord, should not be left outside the scope of the work of the two committees. I am advised that the appointment of the Minister of Agriculture, Fisheries and Food is dealt with under Clause 119. If that answer is not sufficient for the noble Lord, I shall write to him.
On Question, amendment agreed to.
Clause 120 [Definitions]:
The Earl of Balfour The Earl of Balfour moved Amendments Nos. 219 and 220:

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Page 127, line 13, leave out ("Great Britain") and insert ("United Kingdom").
Page 127, line 15, leave out ("Great Britain") and insert ("United Kingdom").
The noble Earl said: My Lords, I must apologise to your Lordships that I was unable to raise this point in Committee. This was due to my being unable to be in the Chamber on that one day. Although I am aware that Part VI basically applies only to Great Britain, I am concerned that the escape or release of certain genetically modified organisms could be detrimental to the environment over a wide area.
The words "United Kingdom" appear only in Clause 138(7) and Clause 154(4) which deal with transportation. I feel that this Parliament at the Palace of Westminster should take the lead in helping not only Northern Ireland but also those islands which have their own Parliaments such as the Isle of Man and the Channel Islands. This Parliament should control the production, for want of a better word, of any type of GMO anywhere within the territorial waters around our shores. These two amendments may not achieve what I am seeking, but I hope that some lead from the Government can cover the point I have raised. I beg to move Amendments Nos. 219 and 220 en bloc.
The Earl of Arran: My Lords, it is always a pleasure to be able to help my noble friend, even at this late hour. I can tell him that Part VI does not apply generally to Northern Ireland because environmental issues, including GMOs, are "transferred matter" under the Northern Ireland Constitution Act 1973. The only exception is imports of GMOs into that country. That is because imports are a "reserved matter" under the 1973 Act and are dealt with by the United Kingdom Government. In most cases
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imported GMOs are likely to be found in finished products, which present the lowest degree of risk. The effect of my noble friend's amendments would be to apply the full range of Part VI controls to the territorial seas and Continental Shelf adjacent to Northern Ireland. That would be inappropriate in view of the presently restricted application of Part VI to Northern Ireland.
I can, however, understand the noble Earl's concern about the application of the matters covered by Part VI to Northern Ireland. I can assure him that the Secretary of State for Northern Ireland intends in due course to make an Order in Council which will replicate Part VI in the Province. For the time being, however, his amendment is inappropriate for the technical reasons that I have given.
So far as concerns the Isle of Man and the Channel Islands, I understand that the authorities there have indicated that they will proceed by way of local legislation if they decide to adopt any of the measures in the Bill. I hope that those remarks help my noble friend.
The Earl of Balfour: My Lords, I am most grateful for that explanation. I now have a much clearer picture and understanding of the situation all round the British Isles. I beg leave to withdraw the amendments.
Amendments, by leave, withdrawn.
Lord Reay: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at seventeen minutes past eleven o'clock.