Environmental Protection Bill

HL Deb 15 October 1990 vol 522 cc584-649

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 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 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 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 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 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 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 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 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 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.

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) 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 moved Amendment No. 154: Page 84, line 33, at end insert: ("() Subsection (1) (b) and (g) above do not apply in relation to premises—

1. (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
2. (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 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 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 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 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 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 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.

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 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.

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.

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 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 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 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.

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 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 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—

1. (a) applications to the Secretary of State for consent under section 78(9) above;
2. (b) notices served under section 79 above;
3. (c) appeals under section 79(3) above;
607
4. (d) the occasions on which the authority has exercised any power under section 80(3) and (4) above;
5. (e) orders made under section 81(2) below;
6. (f) convictions for offences under this Part;
7. (g) the results of any measurements or tests carried out or obtained by it in connection with its functions under this Part;
8. (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—

1. (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
2. (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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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—

1. (a) except in a case falling within paragraph (b) or (c) below, against the person responsible for the nuisance;
2. (b) where the nuisance arises from any defect of a structural character, against the owner of the premises;
3. (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 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—

1. (a) in the case of a nuisance falling within paragraph (g) of section 78(1) above, not less than three days' notice; and
2. (b) in the case of a nuisance of any other description, not less than twenty-one days' notice;

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 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 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 moved Amendment No. 167: Page 89, line 34, leave out ("and").

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 168 Page 89, line 36, at end insert (; and,

1. (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 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 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 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. (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 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 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 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 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 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, 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 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 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 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 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 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 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 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.

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 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 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 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 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 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"). 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 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 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 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.

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 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 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 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 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 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 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, 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 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 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 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.