HL Deb 15 October 1990 vol 522 cc660-716

Consideration of amendments on Report resumed.

Clause 90 [Summary proceedings by persons aggrieved by litter]:

Lord Meston moved Amendment No. 189C: Page 100, line 1, leave out subsection (12).

The noble Lord said: My Lords, I speak to this amendment with some diffidence because I am conscious of the fact that I am shooting at a target which has been moving during the course of debate today. However, having moved, I am not sure where it has gone.

At an earlier stage when discussing the amendment of my noble friend Lord Ross (Amendment No. 158) the noble Baroness, Lady Blatch, described the mandatory costs provision under Section 94(3) of the Public Health Act as "archaic and arbitrary". Since that time we have debated the Government's amendment, Amendment No. 169 to Clause 81. During the course of the debate the noble Lord, Lord McIntosh of Haringey, put his finger on the problem when he said that it was really a question of balancing the need not to discourage those with legitimate complaints about nuisance by fear of being out of pocket if they take matters to court with the fairness to the landowner or occupier who should have an opportunity to put matters right before proceedings are taken to court. The opportunity which ought to be available should be given to that person by proper notice so as to afford him the chance to do whatever is necessary to abate the nuisance.

As I understand it, the Government have recognised the need for prior notice for proceedings in the other part of the Bill, especially in relation to nuisance. It is in that context that I ask the Government to look again at Clause 90(12) which seems to give a mandatory power to order costs, even if at the end of the day the magistrates' court takes no action in respect of the complaint before it.

The position is that the complainant can only have reasonable grounds for bringing the complaint if he had given notice to the alleged offender before launching into proceedings. It is to be hoped that the scheme of the Bill will ensure that proceedings will be the last resort rather than the first. If I can have some assurance that the Government will reconsider subsection (12) in that light and that they will perhaps look at the wording again to ensure that it is consistent with the other provisions of the Bill, I shall not press my amendment. However, for the purpose of ascertaining the Government's view, I beg to move.

Lord Reay

My Lords, Amendment No. 189C would remove subsection (12) from Clause 90. That subsection was included for a specific reason which I hope that I shall be able to explain to the noble Lord and in so doing perhaps enable him to identify once again the target. Clause 90 provides for an aggrieved citizen to apply to the magistrates' court for a litter abatement order against a body under the duty to clean where the body has not been discharging that duty. The complainant must give the body concerned five days' notice of his intention.

Under the procedures of the Magistrates' Courts Act, costs in magistrates' courts normally follow the outcome of the case. So where a court grants a litter abatement order against a defendant, costs would normally be awarded to the complainant. Similarly, if the court decides that the issuing of an order was not justified, the defendant would normally be awarded costs.

The main point here is that the court has power to issue an order only where the land is defaced by litter at the time of the hearing. The order can require the defendant only to clear litter or refuse present at the time; it can have no retrospective effect with regard to litter which was defacing the land when the complaint was made. In a case where the court is satisfied that the litter was there at the time of the application but has subsequently been cleared, it cannot issue an order against the defendant and the defendant has not, in the normal sense of the term, lost the case.

As it may take some months for a case to come to court and the land may be cleared only the day before the hearing, it is necessary to provide that, if the court were satisfied that the application was valid when it was made, the complainant may none the less be awarded costs. If it is not satisfied that the complaint was justified, it will not issue an order and in the normal way it will be able to award costs in favour of the defendant.

The amendment, which seeks to remove that power, seems to us to be unfair. It would leave bodies without any incentive to clean up until the last moment before the case was due to be heard. It would also effectively discourage any aggrieved citizen from applying for an abatement order to be made. I hope that that explanation reassures the noble Lord and that he will not therefore feel obliged to press his amendment.

Lord Meston

My Lords, I am reassured. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 91 [Summary proceedings by litter authorities]:

Lord Mountevans moved Amendment No. 189CA: Page 100, line 29, at end insert ("which is land to which the public has access").

The noble Lord said: My Lords, Clause 91 authorises local authorities to impose abatement orders in respect of relevant land as defined in Clause 85. The amendment seeks to modify the definition of "relevant land".

I declare, as I have in the past, my interest as a judge of British Rail's best kept stations contest. During the Recess I travelled some 7,000 miles and claim some knowledge of the litter problem as it affects British Rail. Having judged for four years, I feel that British Rail is coping well with the litter deposited by its customers in areas to which the latter have access. Incentives by British Rail and the Tidy Britain Group have played a major part in the development of a much cleaner rail infrastructure, as has work done by British Rail's community unit.

The problem lies not in litter in areas such as stations to which the public has legitimate access; it lies with litter and refuse deposited by third parties on railway land to which the public does not legally have access. An extreme example given in last Friday's newspapers was the stolen car that was dumped on a piece of track near Workington in Cumberland which led to the derailment of a passenger train. A more relevant example might be a British Rail clean-up operation just outside Brighton. Television sets, mattresses, sofas and domestic refuse were removed. Another extreme example is a closed line in the Liverpool dock area where British Rail is still the proprietor of the waylink where builders' refuse is dumped to the height of tunnel crowns. Yet another example is the 34 tonnes of rubbish—all domestic I hasten to add—removed from track in and around Shrewsbury station under BR's own operation which is called operation clean-up.

As it stands, the Bill would enable district councils to serve abatement orders ordering British Rail to clear up such refuse and litter from such land. Such a provision seems, first, to give a degree of power to local authorities without imposing on them any responsibility. It could be easily abused. After all, it is always attractive to order someone to spend their money tidying up a problem which is not of their making. The abatement order process is a disincentive to district councils to co-operate with British Rail in clean-up projects. There have been a number of such projects ranging over large areas. There were successful ones in the Black Country in the corridor around Stoke-on-Trent and on Teesside.

I share the general view that we must do all we can to have a tidier Britain, but the Bill and the proposed code of conduct—codes of conduct can be flexible friends but they can also be nasty enemies—go about things in a negative way. We have talked much about the principle that the polluter pays, but the way I read the Bill it exposes British Rail, which is the victim, to paying for clean-up operations arising out of circumstances which are not within its control. Hence the amendment seeks to protect British Rail, its customers and the PSO grant. Under abatement order; it would be the customers and the PSO grant which would end up paying for the clean up and not the tippers or the dumpers.

I also seek to preserve an element of existing good practice —the partnership schemes that I have already mentioned. I beg to move.

8.15 p.m.

The Earl of Balfour

My Lords, perhaps I may raise one further point which might be helpful to the amendment. Normally there are no trespassing laws in Scotland. However, under Scots law it is a serious offence to trespass on railway or aircraft property. The legislation was placed on the statute book many years ago. I cannot quote chapter and verse, but the trespassing laws were written into Scottish legislation with L. view to protecting the life of the trespasser and for no other reason.

Lard Parry

My Lords, I have much sympathy with the ca se made by the noble Lord, Lord Mountevans. He has worked with the British Tourist Authority and had an early involvement with the environmental consequences to the travelling public of a dirty environment. He has also worked with Mr. David Perry, who for a number of years has been responsible for heading British Rail's effort to clean up the environment and make its track more attractive. It is an immense problem, as everyone in the House will be aware. I agree with him when he says that we do not necessarily want to emphasise the negative aspects of the problem. However, at various times I have tried to persuade British Rail to carry out one wholly negative award system.

British Rail would be justified in setting up a dirty dozen award to discover the dirtiest adjoining properties, the occupiers of which throw rubbish onto British Rail property and foul the entrances to many towns and cities. However, I appreciate that in the first instance British Rail would not want to force people onto British Rail property and into danger to clear it, nor would it, because it has been so positive in cleaning up its railway stations, want to become involved in a wholly negative enterprise.

I have no such doubts. It is time we began to show pictures of the people who throw their rubbish onto someone else's property, identify that property and make them pay for polluting the environment. I do not know what the Government's reaction will be, but I underline the positive aspects and the work that British Rail is doing to combat this massive problem.

Baroness Blatch

My Lords, I am sure that the whole House will join me in paying a tribute to my noble friend for the work that he does with British Rail in keeping the railways tidy. In recent years there has been discernible evidence of the improvements to our railway stations. My local station is not Cambridge but Huntingdon and I look forward to it receiving a prize one day. I also include in that tribute the noble Lord, Lord Parry, and his work with the Keep Britain Tidy organisation, which is complementary.

I understand the concern which has led my noble friend Lord Mountevans to table this amendment. British Rail and other statutory transport undertakers suffer considerably from the deplorable practice of fly-tipping. In the case of British Rail, for example, the urban railway embankments which we propose that the new litter duty should cover are often prime targets for fly-tipped refuse. We do not dispute that. Nor do we deny the benefit which undertakers like British Rail can derive from partnerships with local authorities to deal with the problem.

In recognition of the task facing British Rail, we are proposing that, exceptionally, the litter duty should apply to most urban railway embankments not from 1st April 1991 but from 1st April 1992. This will give British Rail an extra period of grace to deal with the accumulated refuse on the embankments. We would of course have preferred the duty to apply from 1991 but we have been persuaded otherwise in this case—and not only by arguments tonight.

We have also agreed to refer, in the code of practice which we will be issuing, to the need for partnerships between the statutory transport undertakers, local authorities and voluntary groups in order to deal with this problem. From this, I hope it will be clear to your Lordships that we are not blind to the realities of the situation.

However, there is another reality that we ignore at our peril. One of the prime reasons for the Government's initiative on litter was because of justified public indignation about the unsightly nature of motorway and railway embankments. The noble Lord's amendment would remove an important element of our package of measures to deal with the problem—the local authority would no longer be able to tackle the statutory undertaker if he were failing in his duty.

I should say that I do not believe the amendment would in any case help the situation where a local authority wished to back out of any existing arrangements for dealing with refuse on embankments. But I am not convinced that in practice that will be a widespread danger; since those arrangements are mutually beneficial, I would expect them to continue, as we urge in our code of practice.

Litter and refuse will persist until we persuade people that it is anti-social and degrading to treat our landscape in this way. The culprit in this instance is the irresponsible fly-tipper. Wherever possible—and this is the point brought up by the noble Lord, Lord Parry —he should be identified and required to clear up the fly-tipped material himself. Of course, this poses a particular problem for British Rail, as has already been mentioned—that of safety.

If necessary, it is possible to take legal action in some cases. I say this not because the noble Lord is unaware of the point but simply to remind your Lordships that our debate would not be necessary if it were not for the thoughtless actions of a minority of the population. Where it is possible, they should be made to deal with the consequences of their own actions. I hope with that explanation my noble friend will not press his amendment.

Lord Mountevans

My Lords, I am grateful to my noble friend for that explanation which I shall read with great interest. One proposal to which I did not understand my noble friend's answer was the reversal of the theory of the polluter pays which I put forward. Here it will be the taxpayer and the British Rail customer who will pay for the clearing up. Perhaps I may think a little more about that. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 93 [Street litter: supplementary provisions]:

Lord Meston moved Amendment No. 189D: Page 103, line 28, at end insert:

The noble Lord said: My Lords, I wish to speak also to Amendment No. 189E. Under Clauses 92 and 93 local authorities can require traders to take action to clear litter in the vicinity of their premises. The purpose of these amendments is to provide that neighbouring traders are informed of the requirement before it is imposed. Neighbouring traders ought to know that someone is to be served with a notice, both to be reassured that something is being done and also to have some say about how and when the frontage and the vicinity of the premises concerned are to be cleaned up. This is in order to minimise inconvenience and for them to have some say in the requirements which are to be imposed. I do not think that the amendments need further explanation. I beg to move.

The Earl of Arran

My Lords, Clause 93(6) requires local authorities, before serving a street litter control notice, to inform the person on whom the notice will be served and to take into account any representations he may make.

Amendments Nos. 189D and 189E would also require local authorities to inform any other person whose property adjoins the land which will be the subject of the notice and to take their representations into account. Street litter control notices will impose certain requirements on the person on whom they are issued with the purpose of removing litter and refuse from his frontage and in some cases from the street adjacent to his premises. These notices can only have a positive effect on adjoining properties. The street will be cleaner as a result and the adjacent property owners will not have to face take-away wrappers outside their premises.

If it is just a case of the property owner learning of a notice on his neighbour, then, subject to a later amendment he will be able to see any notice which may be issued in a litter register. I must confess that unless there is any strong, compelling reason for this amendment—and we are not convinced that there is one—we do not feel that it is right to impose an unnecessary duty on local authorities who may be required to inform possibly an extra dozen people. I urge the noble Lord not to press this point.

Lord Meston

My Lords, the burden—if that is the right word—to be imposed on local authorities by this amendment was not meant to be great. The intention was to ensure that the interests of neighbouring traders were looked after. For example, at one extreme they may need to be protected from the over-zealous trader cleaning the street at awkward times from the point of view of the business of the neighbouring trader. At the other end of the spectrum, traders may need to be reassured that something is being done so as to prevent them taking action either through the courts or otherwise.

This is not a compelling reason, but it may be felt that the amendment contains a useful provision. I do not propose to press it at this stage; I wish to consider it further. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 189E not moved.]

Baroness Blatch moved Amendment No. 190: After Clause 93, insert the following new clause:

Public registers

(" .—(1) It shall be the duty of each principal litter authority other than a county council, regional council or joint board to maintain, in accordance with this section, a register containing copies of—

  1. (a) all orders made by the authority under section 89(3) above; and
  2. (b) all street litter control notices issued under section 92(1) above.

(2) Where the requirements of a street litter control notice are varied or added to on an appeal under section 93(7) above a copy of the order making the variation or addition shall be included in the register.

(3) Copies of the orders and notices required to be kept in the register shall be so kept for so long as the order or notice is in force.

(4) It shall be the duty of each authority maintaining a register under this section—

  1. (a) to secure that the register is available, at all reasonable times, for inspection by the public free of charge; and
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  3. (b) to afford to members of the public facilities for obtaining copies of the documents kept in the register, on payment of reasonable charges.

(5) A register under this section need not be kept in documentary form.").

The noble Baroness said: My Lords, Amendment No. 190, in my name, follows up an undertaking made in Committee to consider further a similar one moved by the noble Lord, Lord Ross. The amendment will require local authorities to maintain a register containing copies of all the orders they have made designating land as a litter control area, together with all the street litter control notices they have issued. The register would be open to inspection by the public, who could also pay for copies of the relevant documents.

We accept the noble Lord's argument that the registers are necessary. I am pleased to be able to bring forward this amendment to replace the one which he tabled in Committee. I beg to move.

On Question, amendment agreed to.

[Amendment No. 191 had been withdrawn from the Marshalled List.]

Baroness Blatch moved Amendment No. 191ZA: After Clause 93, insert the following new clause:

Transitional provision relating to section 88

(".—(1) The Secretary of State may, for the purposes of the transition to the duties imposed by section 88 above on local authorities and educational bodies, by regulations, make provision—

  1. (a) modifying that section, or
  2. (b) modifying Part I of the Local Government Act 1988 (competition rules for functional work or works contracts).

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

(3) In this section—

The noble Baroness said: My Lords, the new clause gives the Secretary of State the power to make transitional provisions to protect the position of authorities who had already assigned contracts for the provision of the relevant services under the competitive tendering legislation before the new litter code was published.

We appreciate that such contracts are likely to have to be modified in many cases to take account of the standards of litter clearance now required by the code. Indeed, so far as concerns future contracts, we have already taken action by postponing the rounds of competition due to be completed by 1st January and 1st August next year to 1st August 1991 and 1st January 1992 respectively, so as to make it possible for authorities to take full account of the code when drawing up their specifications.

Where contracts had already been let before the code was promulgated, the new clause will give the Secretary of State the power to make the necessary transitional arrangements. These will provide for any additional work which may be necessary to be taken on board. They will also protect the position of authorities until such time as this can be done. They will cover cases in which contracts have been let to the private sector and also those in which work has been assigned to the authority's own direct service organisation following competition under the terms of the Local Government Act 1988. We intend to announce the nature of the provision to be made as soon as possible, once the details have been finalised.

As the noble Lord, Lord McIntosh, will be aware from my recent letter to him on this subject, the new clause as originally tabled has been modified so as to make it possible to extend protection to the governing bodies of educational institutions on whom the new litter duties bite, in cases where their LEAs have entered into a contract for the provision of the relevant services.

I understand that the noble Lord, Lord McIntosh, wishes to move a series of amendments to my amendment. For the time being I shall sit down and allow those amendments to be presented. I beg to move.

8.30 p.m.

Lord McIntosh of Haringey moved, as an amendment to Amendment No. 191ZA, Amendment No. 191ZB: After Clause 93, line 4, after ("regulations") insert ("applicable to any authority which has not at the date of the regulations being laid decided to carry out functional work to which this part applies or let a contract for such work to any other persons").

The noble Lord said: My Lords, in moving Amendment No. 191ZB I wish to speak also to Amendments Nos. 191ZC, ZD, ZE, ZF and ZG. The Minister understood that I wished to speak to those amendments. I believe she will also understand that we had drafted those amendments to her previous version of Amendment No. 191. They only appear on the Marshalled List with asterisks because we had to re-draft them after the Minister had changed her own amendment. I hope that the House will acquit us of any discourtesy in producing amendments at the last minute. We tried not to do this, but it was the Government's own second thoughts that made life more difficult for us.

Government Amendment No. 191ZA is clearly intended to be helpful and to deal with some of the problems which may arise in the application of the litter codes to compulsory competitive tendering. Even by the fact of tabling these amendments, the Government show that they recognise that the litter codes will make substantial differences to the way in which local authorities have to deal with services which have either been contracted out or have been submitted for tender and kept within a local authority's services. We are primarily concerned that, as far as possible, local authorities should be spared the agony of having to relet tenders when they have already been negotiated and when it would be possible to deal with them by renegotiation within the scope of the same tender. We are concerned that they should not have to start again from scratch. To us, that would be the worst of all possible worlds. However, we think that is the Government's intention.

Amendment No. 191ZB standing in my name is intended to extend the no relet principle. I hope I may put it that way. The amendment seeks to extend it so that it applies not only to those contracts which have already been let—the Minister referred to those—but also to contracts which are far advanced in the tendering procedure and are awaiting contract.

Amendments Nos. 191ZC and 191ZD standing in my name are intended to explore what is meant by the phrase, different areas or other different circumstances which appears in the government Amendment No. 191ZA. We are anxious to secure that there should not be any discrimination against direct service organisations which have won in the competitive tendering process and which are subject to more stringent rules on renegotiation or reletting than is the case with tenders that have gone to outside contractors. I was to some extent encouraged by what the Minister said in introducing the government amendment on that matter.

Amendments Nos. 191ZE and 191ZF seek to make that provision more explicit. Amendment No. 191ZE states that tenders which have, fulfilled the first, second and third conditions specified in section 7 of the 1988 Act and which have been awarded to direct service organisations should not be discriminated against in a decision as to whether a contract should be renegotiated or relet. I remind the House that the first, second and third conditions are the stages of the tendering process.

Amendment No. 191ZG would require an affirmative resolution procedure if there were to be significant changes either to Clause 88 of this Bill or to the 1988 Act. I am sure all noble Lords would consider that appropriate. In other words, subordinate legislation should not be used to make major changes to primary legislation. I hope the Government will feel that the amendments are helpful as regards the tendering process and the renegotiation process when the litter codes are established. I hope the Government also feel that the amendments would help to remove the threat of unfairness and administrative impracticality which would otherwise arise. I beg to move.

Baroness Blatch

My Lords, as the noble Lord has explained, the intention behind these amendments is to restrict the regulation-making power which government Amendment No. 191ZA proposes should be given to the Secretary of State to make transitional arrangements in relation to the interaction between the competitive tendering requirements of the Local Government Act 1988 and the litter duty imposed by this Bill.

Amendment No. 119ZB seeks to provide that the regulations could apply only to authorities which had not completed the competition procedures and decided to assign work either to their own workforces —that is, the direct service organisations—or to external contractors. In consequence, those regulations could not bear on the case of authorities which had reached such a decision. I have to say that to limit the regulation-making power in this way would be to fail to address the real problem that we have identified.

Earlier this year the Minister responsible for local government, Mr. Portillo, announced our intention to put back the date of the deadlines by which those authorities which had not yet completed competition procedures for street cleaning were required to do so. Those authorities which had been working to a deadline of 1st January 1991 will now have until 1st August 1991 to complete the procedures. Those others whose deadline had been 1st August 1991 will now have until 1st January 1992 to complete the procedures, thereby being able to take into account the measures contained within the Bill.

We decided on this postponement precisely because we wanted to give those authorities a longer period during which they could take account of the standards of litter clearance that will result from the Bill, and to prepare tender specifications which would reflect them. We do not therefore expect that those authorities will face problems that will need to be addressed by the use of the proposed new regulation-making power. By contrast, we foresee that problems may well arise where authorities have completed the competition procedures and have assigned work to their workforces or to external contractors. This is because those authorities which have assigned work to their own work forces cannot simply revise a specification to meet higher standards. Section 7(8) of the Local Government Act 1988 constrains them from doing so.

If authorities have awarded work to private contractors, they are not constrained by the 1988 Act, but they may face difficult commercial negotiations if they wish to revise contracts to achieve higher standards. We are still considering the extent of such problems and the best way for local authorities to deal with them, but we want to be in a position to act on the relevant legislation—that is, the 1988 Act and the Environmental Protection Act, as it will become—if it appears to us to be necessary to do so to ease the problems of local authorities.

Amendments Nos. 119ZC, ZD, ZE and ZF are clearly ancillary to the purpose of Amendment No. 119ZB, reducing the flexibility of the regulation-making power in relation to authorities which have not completed competition procedures. For the reason that I have explained, we consider that the basic thrust of these amendments is misconceived. They would restrict the power to make transitional arrangements to future contracts. But, as I have explained, the real need is to make provisions for contracts which have already been met. That is why subsection (1) of the new clause, as contained in Amendment No. 119ZA, makes clear that the powers taken are very much for the purposes of transition to the litter duties imposed by this Bill. Given that transitional nature of the provisions, we see no need for the restrictions which would result from this set of amendments.

Amendments Nos. 191ZG and 272A seek to make the regulations subject to affirmative resolution. We have given careful consideration to that proposal but we do not believe that such a procedure would be appropriate or justified in this case. As I have stressed, these are transitional provisions. The affirmative procedure is rightly regarded as appropriate only for major issues of principle which are likely to have a lasting impact on future action. For example, under the competition legislation the only power requiring affirmative procedure is that which makes it possible for the Secretary of State to bring whole new services into the framework of that legislation.

We accept, however, that local authorities have a major and legitimate concern with the form that these transitional arrangements will take. I can therefore give your Lordships a clear undertaking that we shall be consulting the local authorities through their associations on the nature of the provision to be made for protecting the position of authorities which had let contracts to the private sector or assigned work to their own workforces before the code of practice was promulgated.

The one question that I have not dealt with concerns different treatment for different authorities. Given that most authorities start from a very different base, it is my understanding that even those authorities which have already let contracts privately have determined very different specifications for those contracts and therefore the level of cleaning and of the tender specifications will vary considerably. The same will apply in respect of the variable base on which those authorities have the cleaning carried out by direct labour organisations. The standards required of the different organisations will differ in each authority. Therefore, when we find a formula to deal with the problem we shall have to take all of those variations into account.

Lord McIntosh of Haringey

My Lords, I am grateful to the Minister for that very complex reply and for the assurance that there will be consultation. I am sure that the local authority associations will also greet that assurance warmly. The fundamental point that we have to secure is that the consultation will produce a formula which will deal with the most difficult case that will arise.

It seems to me that the most difficult case that will arise will be one in which a contract has been let or has gone so far in the letting process that it cannot be resiled. There may be no money to meet the higher standards under this part of the Bill, or the drafting of the contract may not allow for renegotiation. Under those circumstances, if there is no possibility of renegotiation or of extra money, the two alternatives are either to throw the whole thing back into the melting-pot—which would seem to be the worse alternative of the two—or, however undesirable it may be, to provide that for the term of the contract the contractor and the local authority will have to be exempt from at least some of the provisions of this part of the Bill. In other words, they may have to be exempt from the public complaint procedures.

If the Minister can show her appreciation of those difficult cases and give us some assurance that she recognises the problem and will take that into account in consultations it would be enormously helpful.

Baroness Blatch

My Lords, with the leave of the House, the noble Lord will understand that I can give no guarantees at this stage. However, I can give an assurance that all the various scenarios will be taken into account when determining the formula that we hope will be effective.

Lord McIntosh of Haringey

My Lords, I suppose that I shall not get any further than that at Report stage. However, the point has been made. There will be risk of a very expensive and unsatisfactory renegotiation procedure, which nobody wants, neither the local authority on one side nor the contractor or DSO on the other, or of some relaxation of the rules. Neither is perfect but the second is a good deal less imperfect than the first.

On the basis that the Minister recognises the fundamental reason for the reservations that we hold, I believe it is better that I beg leave to withdraw the amendment.

Amendment to Amendment No. 191ZB, by leave, withdrawn.

[Amendments Nos. 191ZC to 191ZG not moved.]

On Question, Amendment No. 191ZA agreed to.

8.45 p.m.

Lord Parry moved Amendment No. 191A: After Clause 93, insert the following new clause:

("Application of Part II

.—(1) This section applies to litter and refuse collected—

  1. (a) by any authority or person in pursuance of section 88(1) above;
  2. (b) by a principal litter authority in pursuance of section 91(9) above; or
  3. (c) by any person in pursuance of section 92 above.

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

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

(3) The powers conferred by this section are exercisable in relation to litter and refuse to which it applies whether or not the circumstances are such that the litter or refuse would be treated as controlled waste apart from this section and this section is not to affect the interpretation of the expressions defined in section 74 above.").

The noble Lord said: My Lords, it is always pleasant to move a wholly friendly amendment. To do so in the post-prandial peace is equally pleasant, particularly when we have had compliments to Tidy Britain from the noble Baroness.

The House will have recognised that the clause offered here enables regulations to be made to bring within the controls of Part II of the Bill litter and refuse which has been collected by litter authorities and other bodies in pursuance of their duties under Part IV of the Bill. This ensures that any such waste collected must be disposed of or recycled at properly licensed facilities. It ensures that once the litter has been collected it falls within the definition of controlled waste in Part II of the Bill and therefore to dispose of it by fly tipping, which was mentioned earlier, or at a site not licensed to take it would be an offence.

The amendment also enables regulations to be made to define litter collected by waste collection authorities to be treated as household waste for the purpose of defining the responsibilities of the waste disposal authority's duties towards it. That would have the effect of placing a duty on waste disposal authorities to arrange for its disposal in the same way as they currently arrange for the disposal of all other waste collected by the collection authorities without charge to those collection authorities.

No matter what care has been taken over draftsmanship, no matter what unanimity may exist over proposals for cleaning up Britain, or indeed for anything else, there are always those who go through legislation with a small-toothed comb to try and find ways of avoiding the charges placed upon them. I therefore have pleasure in moving that this new clause be inserted in the Bill. I beg to move.

Baroness Blatch

My Lords, the noble Lord, Lord Parry, has moved his amendment with great enthusiasm. The amendment sets out the relationship between Parts II and IV of the Bill, the former dealing with waste disposal and the latter with litter. It provides that regulations can be laid to make litter collected by a waste collection authority or certain other persons a controlled waste under Part II, and, therefore, to dispose of it illegally would be an offence. It also allows regulations to be made to place waste disposal authorities under a duty to dispose of this waste in the same way as they are responsible for disposing of other waste collected by a waste collection authority.

I am indebted to the noble Lord for bringing the amendment to your Lordships' House. It highlights a confusion in the present provisions between the definitions of waste in Part II and of litter in Part IV of the Bill. The noble Lord is well placed to spot such anomalies through his excellent work with the Tidy Britain Group, to which I am pleased to pay tribute for the second time this evening. I am happy to accept the amendment.

On Question, amendment agreed to.

Clause 95 [Powers in relation to abandoned shopping and luggage trolleys]:

Baroness Blatch moved Amendment No. 192: Page 105, line 14, after ("may") insert (", subject to subsection (2A) below,").

The noble Baroness said: My Lords, with the leave of the House, in dealing with the group of amendments comprising Amendments Nos. 192, 193 and 194 I should like to move Amendment No. 192, invite my noble friend Lord Lucas to present his amendment and then deal with all three amendments at the same time. I beg to move.

Lord Lucas of Chilworth

My Lords, I readily accede to my noble friend's invitation. As a result of discussion and correspondence during the Summer Recess the noble Baroness intimated that she would put down Amendments Nos. 192 and 193. I thank her for her letter. As a result I did not pursue the argument or indeed the amendments on this matter which I tabled at Committee stage. At that time I sought to give statutory backing to a set of voluntary guidelines.

I can readily accept what my noble friend suggests in her two amendments but I enter just a small caveat. The assumption is that the new provision for prior consultation will certainly encourage the negotiation of voluntary arrangements along the lines of those which have already been successful in some local authorities. For example, I instance Newbury in Berkshire—Berkshire comes at the beginning of the alphabet—and Bromley, which is around the middle in terms of this provision, because under the London Local Authorities Act 1990 what was broadly in the amendment that I tabled at Committee stage was agreed to.

Voluntary arrangements have been entered into in those two areas. It is important to note that Newbury —which is half way down in the alphabet—under the Berkshire Act charges £1.50 per trolley if a retailer collects within 24 hours and 50p per subsequent day thereafter. Bromley, which has set up voluntary arrangements, does not hide under or ask for the support of any Act. It uses a local contractor who charges £1 per trolley. That sets the scene for Amendment No. 194.

Amendment No. 194 invites the House to substitute the word "reasonable" for "sufficient" at line 22 on page 164. I accept totally that the letter of 28th September from my noble friend Lady Blatch obtains. In that letter she says: I can assure you that the Bill is deliberately worded to ensure that local authorities cannot make a profit, but allows them to break even in the long term. The phrase 'sufficient, taking one financial year with another' allows for the fact that it would be impossible, on the first day that the Schedule is brought into operation, for the authority to assess exactly what its costs will be throughout the year, and how many trolleys it will be handling". That is all very well so far as it goes. But having instanced to your Lordships the practice of Newbury and Bromley—which charge £1.50 and £1—I draw noble Lords' attention to a letter which is addressed to a leading retailer from the Kensington and Chelsea local authority in which it says that there has been some correspondence. Further: notwithstanding … any measures you may have been prepared to take, it is now the intention to pass a Resolution in accordance with the London Local Authorities Act 1990 in which the issue of luggage and shopping trolleys is clearly dealt with in Section 43, Part IV of the Act". The letter then goes on: For your further information a fee of about £40 is to be recommended as a reasonable payment for the return of abandoned trolleys". That is absolute nonsense.

When we discussed the London Local Authorities Bill, as it was in 1989, the question of charges arose. I recall discussing the matter. At that time I suggested that the wholesale price for buying a trolley was only £50 or thereabouts. Now Kensington and Chelsea suggest £40. At that time some noble Lords opposite supported my argument, because this is not a question only of supermarkets of one size, kind or another. It concerns airport trolleys, British Rail trolleys, super-supermarket trolleys, megamarket trolleys and shop trolleys.

Lord McIntosh of Haringey

My Lords, surely the noble Lord is not suggesting that Co-op supermarket trolleys become litter, is he?

Lord Lucas of Chilworth

My Lords, I do not suggest that, but the Act does if they are found in certain places, notwithstanding the great endeavours of that body to contain its trolleys. The noble Baroness's letter states that this year on year business will in fact prevent unreasonable charges being imposed.

Tonight I suggest to my noble friend something just a little different. I have a very good team of researchers. My noble friend the Minister will know some of them. We have looked at Jowitt's Dictionary of English Law.

Lord Parry

Hear, hear!

Lord Lucas of Chilworth

I thought that the noble Lord would agree with that. Page 1502 of Jowitt's Dictionary of English Law states: If there is a contract to do a thing or to buy goods, and no time or price is mentioned, the law implies the thing is to be done in a reasonable time, and that a reasonable price is to be paid". The dictionary goes on to define what is reasonable. That is generally accepted in the courts of this land when deciding cases of this kind.

The Government want to remove the word "reasonable". They want to put "sufficient" year on year. Let me put the case to your Lordships. Suppose that a local authority imposes a charge of, say, £20 —let us be a little more moderate than Kensington and Chelsea, which suggests £40. At the end of the year, depending on the number of trolleys collected, there is a profit or a surplus. The local authority can do one of two things. It can reduce the charge for the next year and if at the end of that year there is a deficit, adjust it upwards the following year. Alternatively it can say, "This surplus is a jolly good egg. Let us now employ another lorry and two more wardens. We can use up the surplus, utilise labour and facilities and so on, and year on year we shall draw equal". I suggest to your Lordships that that is not reasonable.

Notwithstanding the noble Baroness's amendment, Amendment No. 193—and one hopes that these discussions before Schedule 4 provisions are entered into will result in an amicable agreement—Kensington and Chelsea does not appear to think that. It will go for £40. It seems to me that airports, British Rail, the bigger supermarkets—ASDA, Tesco's, Sainsbury's, the Co-op and so on—are not willing to lose their trolleys, which have cost them £50, £60 or £70. Indeed, some of the walk-down-the-steps ones used by the airports are fairly valuable pieces of equipment. They do not want to lose them. They want to recover them. They do not want them taken away. It seems reasonable in all the circumstances that they should have the protection within the Act of reasonable charges being made, one authority against another, which can be proven in court. My amendment simply seeks to bring a little sense of reasonableness to the Act.

9 p.m.

Baroness Blatch

My Lords, I hope that I am right in saying—I look to the Clerk for assurance—that my noble friend will have an opportunity to speak again because we are still technically on Amendment No. 192. I should hate to deny him the opportunity to respond to my response to his amendment. Amendments Nos. 192 and 193 in my name, and Amendment No. 194 in the name of my noble friend, Lord Lucas, relate to Clause 95 and Schedule 4, both of which concern new powers for local authorities to deal with abandoned shopping and luggage trolleys.

Schedule 4 contains detailed provisions on how a local authority may seize, detain, remove and ultimately dispose of abandoned trolleys. Clause 95 deals with the mechanics of applying the schedule. Under those provisions, the local authority can remove what appears to it to be an abandoned trolley. It must then notify the apparent owner of the trolley of its removal and inform him where it is being held. The owner may then reclaim the trolley within six weeks although he will have to pay a fee in order to do so. The fee must be set at a level sufficient to cover the costs to the local authority of applying the provisions of the schedule. The local authority may sell or otherwise dispose of any trolley unclaimed after six weeks.

Amendments Nos. 192 and 193 address a point first raised in Committee by my noble friend Lord Lucas of Chilworth. They provide that a local authority may not apply the provisions of Schedule 4 in its area unless and until it has consulted with those who appear to be affected by the application of the schedule. These amendments aim to give trolley owners the opportunity to come to a voluntary agreement with the local authority before coercive measures are contemplated. Many local authorities do have such voluntary schemes in operation already, adopting a code of guidance on trolley control which has been produced by the Retail Consortium. We would prefer to see this sort of measure applied throughout the country rather than allowing local authorities to go ahead without first listening to the views of the people they would be affecting. I am sure noble Lords would agree that co-operation is preferable to compulsion and I therefore commend these amendments to the House.

Amendment No. 194 would require that the fee charged by a local authority to the owner of a trolley which had been seized should be set at such a level as is reasonable rather than one which is sufficient, in covering the local authority's costs in removing, storing and disposing of abandoned trolleys. I understand my noble friend's concern that a local authority might take it upon itself to set punitively high charges for the return of trolleys to their owners. He has given some graphic examples in the presentation of the amendment. We take the view, however, that the term reasonable would allow local authorities to pitch the charge above what would be required to meet their expenses. What is reasonable to one authority might not be reasonable to the trolley owners in its area. An authority might think it reasonable to set the charge slightly (or indeed significantly) above the actual costs it incurs in operating the scheme, whereas the Bill as drafted is quite clear about the amount an authority can charge.

The wording of paragraph 4(1) allows the local authority to make the necessary adjustments to its scale of charges from time to time to ensure that all its costs are met. Charges can therefore be raised to offset a deficit or lowered to reduce a surplus. It would plainly be untenable—and therefore subject to challenge in the courts—for a local authority to make the charges punitive.

An example was given by my noble friend of using the surplus that may be made in any one year perhaps to over-provide for the service of collecting trolleys. I hope that what I say reassures my noble friend. The district auditor would have something to say if the provision that was engaged by a local authority was surplus to the job in hand of collecting trolleys.

There is no intention on the part of the Government that the system should be used as a taxation. That is what is being suggested by my noble friend. Given that at the outset it will be difficult to gauge the charge precisely, a charge will be made, and if there is a deficit that will be adjusted in making the charge to trolley owners in the following year. If there is a surplus, the surplus will be required to reduce the cost of collecting the trolleys in the following year. In other words, at the end of the day the charge that will be levied over a period of two, possibly three, years would be that which would equate to the sufficient costs for doing the job. I hope that my noble friend will not press his amendment.

Lord Lyell

My Lords, before my noble friend sits down, in the early part of her reply to the amendment spoken to by my noble friend Lord Lucas, the Minister referred to abandoned trolleys. I am afraid that I lost her after her reference to Clause 95. I did not find the relevant schedules. It shows what happens to noble Lords who become interested in one particular point under discussion. However, the Minister mentioned that the abandoned trolleys could be gathered up by the local authority and that if they were not reclaimed—I believe that she mentioned after a period of six weeks—they could be sold.

Perhaps the Minister will answer this question, or my noble friend Lord Lucas might inform me at a later stage or outside the Chamber. What is the market for those abandoned trolleys? A figure of £40 has been mentioned by my noble friend Lord Lucas. Such a figure of £40 or £50 would certainly encourage those concerned to take greater care of them when shopping in Chelsea and Kensington where I live. The large baggage trolleys at airports might be worth more than £40 or £50.

In connection with the sale or auction of abandoned trolleys, what do such trolleys fetch? What is the realistic price? I am curious to know this; I am a Scot. What is the second-hand value of those trolleys? What is the point of paying a charge of £40 to claim one's trolley? If one waits six weeks there will be an auction.

Baroness Blatch

My Lords, my noble friend is a Scot—and a canny one at that. I do not know the market price of a second-hand trolley. Whatever the price, and whatever the income to the authority, income under that activity will have to be recycled to benefit the public and the community charge payer in that area.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 193: Page 105, line 21, at end insert: ("(2A) It shall be duty of a local authority, before making any resolution for the application of Schedule 4 to this Act in its area, to consult with the persons or representatives of persons who appear to the authority to be persons who will be affected by the application of that Schedule.").

On Question, amendment agreed to.

Schedule 4 [Abandoned Shopping and Luggage Trolleys]:

Lord Lucas moved Amendment No. 194: Page 164, line 22, leave out ("sufficient") insert ("reasonable").

The noble Lord said: My Lords, my noble friend Baroness Blatch, in her response to my earlier remarks, allowed me—and your Lordships' rules permit me—to discuss Amendment No. 194 in rather greater depth.

I accept in part what my noble friend the Minister had to say, most particularly with regard to the year-on-year surplus and deficit element. She said clearly that a charge that was punitive could be challenged in court, in any event, under this Bill. I do not believe that that is in fact so under the provisions of the Bill.

Again, I have to accept what she said about what the district auditor might have to say, and the point she made with regard to local taxation.

If I may answer my noble friend the noble Lord, Lord Lyell, one of the trolleys that walks down escalators guided by a canny Scot or other passenger is worth nearly £100, and an ordinary trolley about £50. If it is fished out of the river it is worth nothing. If a local authority decides, as Kensington and Chelsea has, to charge £40, the trolleys will be abandoned. It will then fall upon the community charge payer to meet the bill for disposal. There will be no encouragement to recover the trolley. That is the real point.

My noble friend the Minister talked about sufficient year-on-year, but I am suggesting to your Lordships that the term "sufficient" provides only for an assessment by a local authority of the projected costs incurred in collecting, storing and disposing by an unspecified method, which is bound to err on the side of never making a loss. It does not require any assessment of the method of collection and provides for an unlimited level of charging, although that charge can be adjusted in subsequent years. The term "sufficient" provides the local authority with the choice between an efficient method and an inefficient method. I admit that I described somewhat frivolously earlier what that might lead to. Of course the Government do not want to find additional moneys for local authorities for trolley collection.

Lord McIntosh of Haringey

My Lords, I wonder whether the noble Lord would permit me to say this. He has already spoken for 11 minutes on this amendment in an earlier group. Is he going to speak for another 11 minutes on the same amendment?

Lord Lucas of Chilworth

My Lords, not 11 minutes but perhaps three or four more.

Lord McIntosh of Haringey

My Lords, this is an abuse of the procedure of this House.

Lord Lucas of Chilworth

My Lords, the noble Lord, Lord McIntosh, may think it an abuse. He has wound up some of his amendments at very great length without anybody challenging the abuse.

I am answering my noble friend the Minister. The way the matters were grouped was not my fault; I went along with the suggestion. It is not an abuse. I am saying that it is not fair on railways, airport authorities and stores that this matter, which I have proven is open to abuse, should remain in the Bill. I am suggesting that the word "reasonable" is a more proper way of dealing with the matter.

Baroness Blatch

My Lords, very briefly, because of the way in which my noble friend has presented his amendment I think I should say more about the reason why I believe "sufficient" is a better word than "reasonable".

It might indeed be reasonable to pay £20 or £40, as has been graphically illustrated by my noble friend; but if the local authority were making a profit by charging that amount it would clearly be more than sufficient. So to use the words we have used, it would therefore be outside the provisions of the Bill as drafted and therefore could be challenged in court by the trolley owners. This is not a protection. The word "sufficient" would be a protection; but "reasonable" would not be a protection in court if the trolley owners felt aggrieved at the charging that has clearly been illustrated by my noble friend.

My noble friend also asked who decides what is sufficient. I have said that the courts could decide. The district auditor could also decide and be called upon to make a judgment as to whether the charge was sufficient or excessive. However, what is reasonable to one authority is unreasonable to another and it would be no defence in court.

I hope that my noble friend will not press his amendment. Given the word "sufficient", I believe that the Bill will achieve all the protection that my noble friend seeks.

On Question, amendment negatived.

9.15 p.m.

Lord Clinton-Davis moved Amendment No. 195: After Clause 96, insert the following new clause:

("Amendment to procedure in connection with registrations and authorisations on disposal

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

The noble Lord said: My Lords, it may be for the convenience of the House if in moving this amendment I were to speak also to Amendments Nos. 196C to 196E, 197, 197A, 198A, 198B and 198D to 198G.

The burden of these amendments is to give local authorities the right to be consulted in cases concerning radioactive licensing. The main purpose of that is to provide local populations represented by such local authorities with a belief that they are part of the total consultation process. That is the purpose of the first batch of amendments. The second batch deals with certain lacunae in the Bill in such a way that it accords with intentions that have been stated by Ministers but have not perhaps been wholly honoured in terms of the Bill.

The case arises from a dispute affecting Dudley Metropolitan Borough Council which received from Her Majesty's Inspectorate of Pollution a copy of a grant of a licence for disposal of radioactive waste under Section 6 without any prior warning. The authority objected to that. It said that it had not been consulted and that the matter was clearly one of legitimate local concern.

The Government asserted in rebuttal that HMIP, which acted on their behalf in the matter, had observed the proper procedures under the Radioactive Substances Act 1960. They contended that they were required to consider whether to consult a local authority only where the applicant had exercised his right to a hearing. The matter was therefore resolved in court. It was resolved in favour of the Dudley local authority because the court found that the Secretary of State was required to consider whether to involve local authorities regardless of whether an applicant had exercised the option for a hearing.

Unfortunately, however, the matter did not end there because a further licence was issued by HMIP after the Department of the Environment had considered whether to consult the Dudley council. It decided against doing so and, in effect, Dudley was therefore excluded from the consultative process and with it the local population which clearly had no role to play. To my mind, that is in complete conflict with what the Government say in their much-heralded document This Common Inheritance in which they refer to the need for the public to receive environmental information and to demand improvements, and so on, which has been belied by what happened in that case.

In Amendment No. 195 and certain other amendments coupled with it we seek to give authorities an absolute right to a hearing in the more serious cases of disposal. I stress that I refer to the more serious cases of disposal of waste and its accumulation. The main purpose is therefore to enable public anxiety to be much more readily allayed than is the case at present. The Government must know what a sensitive issue this is and how deeply concerned the public are about matters of this kind. Consequently, when the Government protest that they want to establish greater public awareness about environmental issues I should have thought that they would jump at the opportunity to do precisely what we urge upon them now.

We understand that the Secretary of State may on occasion require to use his powers to exclude information relating to national security from any hearing or consultative procedure. Nonetheless, the burden of our case is that a more informed and mature view of the disposal of radioactive waste is required and this amendment would encourage that situation.

There is a feeling among local authorities—and no doubt the Minister realises this—that HMIP acts in an unaccountable manner and it cannot be to its own advantage that that should be the case. Consequently, a better regulated system of consultation would also be in the interests of HMIP.

Some authorities report that they have seen local communities become suspicious of disposal operations even where they do not involve radioactive waste because members of the public have no means through their local authority of being able to express their opinions or of receiving more than the most basic level of information. I hope that the Government will recognise the force of that argument.

As regards this grouping, I conclude by asking the Government to consider very seriously giving this automatic right of hearing in the more serious cases. Local authorities may not wish to take up that right in all instances but, nevertheless, they should have the right.

We have put forward the consultative procedure which is outlined in the rest of the amendments in this group in the event that the Government—and it looks as though this is the case—are unable to agree to an improved hearing procedure. This matter arose in earlier debates. The noble Lord, Lord Reay, said in Committee that applications will be passed to the councils before an authorisation is granted, thus giving the authority the necessary opportunity to comment. The difficulty to which we are pointing in these amendments is that there is no defined process after a notice has been sent whereby authorities' comments will be received or considered. That leaves both authorities and HMIP in a state of considerable uncertainty as to the status of comments which may be returned somewhat later in the process than the inspectorate would wish.

The amendments then go on to propose that the Secretary of State should have the power to make directions to the chief inspector setting out a period of notice. The inspectorate should have a duty to consider and have regard to any reply received within that period of notice. I understand that a typical time for an application to be processed is something like four months. Therefore, a period of six weeks' notice to local authorities may be appropriate in those circumstances.

I sincerely hope that the Minister will be rather more forthcoming than he has been in the past. I hope that he will see that it is important for local residents not to feel that they will be confronted with a blank wall, which would add to their anxieties. I look forward to hearing a positive response from the Minister to these reasonable amendments. I beg to move.

Lord Reay

My Lords, this is quite a large group of amendments and I hope that noble Lords will bear with me if my reply seems rather lengthy. These are complicated and important matters.

The effect of Amendment No. 195 would be to place a duty on the Secretary of State in respect of all authorisations for the disposal of radioactive waste to afford the opportunity of a hearing to the local authority either in whose area the waste was being disposed of or which was affected by that disposal.

Before coming to the arguments put forward by the noble Lord, I must point out that this amendment is defective. Paragraphs 9 and 10 of Schedule 5 have already amended the hearings procedures in Section 11 of the Radioactive Substances Act 1960. Except in the case of nuclear licensed sites, which are mainly nuclear power stations and Sellafield, the hearings procedure in Section 11 of the Radioactive Substances Act 1960 has been replaced by a procedure for applicants to appeal against the decision of the chief inspector to the Secretary of State. In addition, powers are given to the Secretary of State to call in for his determination any application to dispose of radioactive waste. All local authorities will receive copies of applications to dispose of radioactive waste, which will be available to the public, and it is open to any person or local authority to ask the Secretary of State to call in an application for his determination and to hold a local inquiry.

The position with respect to nuclear licensed sites in England is somewhat different, and in these cases the previous provisions for a hearing have been retained. After the operator has made an application to the chief inspector to dispose of radioactive waste, local authorities, the National Rivers Authority and other public bodies must be consulted before any authorisation is granted. It has been the practice of the Secretary of State to consult far more widely than is required by RSA60, and this will continue under the chief inspector.

Before the chief inspector and the Minister, MAFF, refuse such an application or grant it subject to limitations and conditions, the applicant may request a hearing before a person appointed by the Secretary of State and the Minister. It is at this point in the process of considering an application that the amendment put forward by the noble Lord would have an effect, in that local authorities would have a right to a hearing. As they will have already been consulted, we see no reason for the duplication which would result from local authorities also being given an automatic statutory right to a hearing.

There may of course be cases where it is felt that the opportunity for a hearing before a person appointed by the Secretary of State should be afforded to a local authority, and where the Secretary of State and the Minister consider it appropriate, they have the power to do this. In reaching a decision on this, factors such as the exposure to radiation of the critical group resulting from the authorisation would be considered. Indeed, following the ruling of the High Court in the Dudley case, for every relevant authorisation specific consideration is now given to the question of whether local authorities or other persons should be afforded the opportunity of a hearing. I must say that in the 27 years during which the Act has been in operation no applicant, as a result of being granted or refused an authorisation or registration, has requested a hearing.

In a similar way the effect of Amendments Nos. 198D and 198E would place a duty on the Secretary of State and the Minister to afford a hearing to the local authority in whose area radioactive waste was being disposed of or accumulated. They would also insert a reference to Section 7 of RSA60 dealing with the authorisation for the accumulation of radioactive waste into the provisions of paragraph 9 of Schedule 5. Paragraph 9 sets out the procedures for hearings in respect of authorisations requiring the authority of both the chief inspector HMIP and the Minister.

These amendments are also defective, since authorisations for the accumulation of radioactive waste are authorised by the chief inspector alone and not jointly with the Minister. Any person aggrieved by a decision of the chief inspector in relation to authorisations for the accumulation of radioactive waste will therefore be subject to the appeals procedure in paragraph 10 of Schedule 5 to the Bill. It is only disposals of radioactive waste where the authority of both the chief inspector and the Minister is required and which are subject to the hearing procedures set out in paragraph 9 of Schedule 5.

Furthermore, Amendment No. 198F would have the effect of removing the right to a hearing of any person, other than the local authorities, whom the Secretary of State and the Minister, MAFF, might consider appropriate. Thus any public authorities which may have been consulted would have no statutory entitlement to be heard. The substance of these three amendments is to seek to achieve the same as Amendment No. 195—to place the Secretary of State and the Minister under a duty to afford a hearing to the local authority in whose area the activity was to take place.

The effect of Amendments Nos. 196C, 196D, 196E, 197A, 198A, 198D and 198G would be to require that, when local authorities are copied applications relating to the keeping or use of radioactive materials, including the use of mobile radioactive apparatus or the accumulation or disposal of radioactive waste, they shall be given a period to comment on those applications. They further provide that the chief inspector and/or the chief inspector and the Minister shall consider and have regard to the views of the local authority before granting a registration or authorisation.

I am afraid that we cannot accept these amendments. The task of regulating radioactive substances has fallen to and been effectively carried out by Her Majesty's Inspectorate of Pollution in England and Wales and by Her Majesty's Industrial Pollution Inspectorate in Scotland and their predecessors for over 30 years. We do not see what local authorities could add.

In many cases—for example, where radioactive materials are to be used or kept—the local authority will have no executive or regulatory function. Indeed, most authorisations for the disposal of radioactivity to the environment are concerned with extremely small quantities of material which are disposed of; for example, by flushing down laboratory sinks or to dustbins. More generally local authorities do not have the range of highly specialist expertise which would be necessary to make an input. In these circumstances, it is difficult to see what consultation would achieve. Indeed, it would be a waste of scarce national radiochemical manpower resources if local authorities were to try to duplicate the work of HMIP. Furthermore, we are not convinced that most local authorities would welcome the imposition of further unnecessary burdens on them.

This is not to say that local authorities do not have a role to play in certain circumstances in fulfilling their normal local authority functions. Where they do—for example, in respect of major disposals from nuclear licensed sites such as nuclear power stations or where they are involved, as is frequently the case, in a disposal operation themselves—RSA60 already provides for them to be consulted, and this will continue. But to extend this to all cases, regardless of whether the local authority has a role to play, cannot be justified and I must ask the House to oppose the amendments.

Finally, government Amendment No. 197 provides that where applications are made under Section 3 of RSA60 for a certificate of registration of mobile radioactive apparatus, a copy of the application and a copy of the certificate of registration will be sent to those local authorities in whose area the apparatus will either be kept or used for releasing radioactive material to the environment. As with other documents, copies of the application and the certificate of registration must be made available to the public. These provisions were inadvertently omitted from the Bill but I am sure your Lordships will agree that it is appropriate for information on mobile radioactive apparatus to be placed in the public domain.

9.30 p.m.

Lord Clinton-Davis

My Lords, of course the Government, with their vast array of civil servants, have much greater access than the Opposition to the way in which amendments are drafted, but the Minister has significantly failed to concede the burden of the argument. Therefore, while I have to concede his point that the first group of amendments is defective, it is not nearly as bad as the situation where the government arguments in principle are so basically defective.

With respect, the Minister equated consultation with a hearing. The two are quite distinct. The public, the local populace, who are mainly concerned in areas such as this, would know what was going on if there was a hearing. The information that they get following a consultation is, by necessity, hearsay. There is, therefore, a vast difference in principle. Of course, the consultation procedures that we set out in the second group of amendments was always intended to be a fall-back. Indeed, that is precisely why the amendments were tabled. They were tabled largely as a result of the intervention of the noble Lord in Committee —to which he did not, if I recall aright, make any reference tonight—when he said: Applications will be passed to the councils before an authorisation is granted, thus giving the authority the necessary opportunity to comment"—[Official Report, 2/7/90; col. 1937.] What is significantly lacking about the Minister's reply tonight is that he has not added to the procedure to be deployed. How are the councils to comment? I ask the Minister to he kind enough to define the procedures. This is important.

The Minister says that local authorities would not welcome additional burdens that would be imposed on them as a result of what we are saying here. That is a very strange argument coming from the Government after all the additional and unnecessary burdens that they have placed on local authorities in other respects in this Bill. I ask the Government to be a little more precise.

Lord Reay

My Lords, I have spoken at considerable length giving our reasons for not accepting these amendments. I do not think there is very much to add. In connection with hearings and the point the noble Lord made about the public not being informed, under the procedures as they now exist I can say that by copying all applications to local authorities and making them available to the public, there will be greater knowledge of what is to happen than ever before.

Lord Clinton-Davis

My Lords, notwithstanding the thoroughly unsatisfactory nature of the reply, I do not wish to press the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 100 [Application to Crown of 1960 Act]:

[Amendment No. 196 not moved.]

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

Lord Clinton-Davis moved Amendment No. 196A: Page 165, line 1, after ("words") insert (" "Minister and the Minister" there shall be inserted "chief inspector and the Minister" and for the words").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 196B. These are tabled as probing amendments. It would appear on the face of Schedule 5 that changes made to the Radioactive Substances Act 1960 may not be complete. The purpose of this part of the Bill is to give formal responsibility for exercising the function to the chief inspector in place of the Secretary of State for the Environment. This part of Schedule 5 makes the necessary drafting changes to the 1960 Act. It appears that the references in Section 8(1) and (3) of the 1960 Act may have been omitted. I beg to move.

Lord Reay

My Lords, these amendments seek to make consistent the references to the chief inspector and the Minister of Agriculture, Fisheries and Food in Section 8 of the Radioactive Substances Act 1960. I thank the noble Lord for the diligent way in which he has examined this part of the Bill. I am sure that he is aware that the drafting of this part of the Bill is extremely complex, amending as it does existing legislation. He may not be too surprised to learn that the effect of his amendment is already achieved by the provisions of Clause 96(2). That clause lists the section of the Radioactive Substances Act 1960 where the responsibilities of the Minister and thus the Secretary of State are transferred to the chief inspector. The effect of these amendments has already been achieved.

Lord Clinton-Davis

My Lords, I thank the noble Lord for his reply. We need to look very carefully at what he has said. I do not propose to press the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 196E to 196E not moved.]

Lord Reay moved Amendment No. 197: Page 166, line 16, leave out from ("area") to end of line 17 and insert ("it appears to him the apparatus will be kept or will be used for releasing radioactive material into the environment." ").

[Amendment No. 197A, as an amendment to Amendment No. 197, not moved.]

On Question, Amendment No. 197 agreed to.

Lord Reay moved Amendment No. 198: Page 166, line 20, leave out from ("area") to end of line 21 and insert ("it appears to him the apparatus will be kept or will be used for releasing radioactive material into the environment." ").

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 199, 200 and 201. They are government amendments and make a number of adjustments to the powers of inspectors and to the public access provisions. Amendment No. 198 provides that where a certificate of registration for mobile radioactive apparatus is issued a copy of the certificate of registration will be sent to those local authorities in whose areas the apparatus will be kept or used for releasing radioactive material to the environment. As with other documents, the certificate of registration must be made available to the public. Those provisions were inadvertently omitted from the Bill and I am sure your Lordships will agree that it is appropriate for information on mobile radioactive apparatus to be placed in the public domain.

Amendment No. 199 lifts an inadvertent restriction on the powers of entry of inspectors in respect of premises where they have reason to believe that mobile radioactive apparatus is being or has been used or kept. Inspectors have comprehensive powers of entry including the powers which are being added by paragraph 13 of Schedule 5. They will allow inspectors to enter upon any premises at any reasonable time where the premises have previously been registered under RSA60 and the inspector has reasonable grounds for believing that radioactive material is being kept on the premises. I am sure noble Lords will agree that it is equally important that inspectors have the rig it of entry in cases where they believe that mobile radioactive apparatus is on the premises.

Amendments Nos. 200 and 201 fulfil an undertaking which I gave in Committee when considering amendments tabled by the noble Lord, Lord Tordoff. They related to the need to make available records of persons convicted under RSA60. The amendments provide that records of conviction under RSA60 shall be copied to local authorities and made available to the public. I hope that that satisfies the noble Lord, Lord Tordoff. I beg to move.

Lord Tordoff

My Lords, I was delighted to see these amendments on the Marshalled List. I am grateful to the Government for taking up the broad hint that we gave in Committee. If my birthday had not been last Thursday I should have been happy to celebrate it today with these amendments.

On Question, amendment agreed to.

[Amendments Nos. 198A and 198B not moved.]

Lord Clinton-Davis moved Amendment No. 198C: Page 168, line 53, at end insert: ("8B. In section 9 of the 1960 Act (Provisions as to functions of public and local authorities) in subsection (3) of that section—

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

The noble Lord said: My Lords, the 1960 Act contains an additional provision for consultation with local authorities where a Secretary of State deems that they will need to take special precautions to deal with the consequences of an application. The usual state of affairs dictates that that will involve the disposal of radioactive waste in place on a local authority site. The Bill does not affect that provision but we are raising a point for the future.

Where the effect of Part II is to require local authorities to contract out waste disposal operations either to controlled companies or to the private sector the special precautions may in future be taken by the LAWDC rather than the local authority. We contend that in such a case it should still be the authority as the waste disposal authority which is consulted where such precautions are required. I beg to move.

Lord Reay

My Lords, before dealing with the argument put forward by the noble Lord I must point out that the amendment is flawed. The consultation process is now to be undertaken by the chief inspector or the Minister of Agriculture, Fisheries and Food and not the relevant Minister as the amendment suggests. This is because Clause 96(2) provides that in Section 9(3) of the Radioactive Substances Act 1960 the references to the Minister (other than the Minister of Agriculture, Fisheries and Food) are to be replaced by "chief inspector". It is also not clear whether the noble Lord intends that waste disposal contractors should be consulted when they are required to take special precautions or whether he intends that consultation should be restricted to the authorities in such circumstances.

The Secretary of State has already taken administrative action to extend the consultations with local authorities and other bodies which are required under Section 9(3) of the Radioactive Substances Act 1960. As a result, we now consult waste disposal contractors and local authorities where disposal is to private landfill sites or where disposal takes place on the authorised premises of the person who is disposing of the waste. Therefore, we are already achieving the objective set out in the amendment and we shall continue to do so. Flawed as it is, we see no need for the amendment to be accepted.

Lord Clinton-Davis

My Lords, I am not having a good night regarding drafting; indeed, I am constantly being "flawed". On this occasion, I willingly accept the observation made by the noble Lord. In the circumstances, I beg leave to withdraw the flawed amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 198D to 198G not moved.]

Lord Reay moved Amendment No. 199: Page 173, line 42, at end insert:

On Question, amendment agreed to.

9.45 p.m.

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

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

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 199B, 201A and 201B. The amendments do not hang together, but we shall deal with the situation as we proceed with the debate.

The first two amendments are not dissimilar to the ones which we tabled in Committee and which were rejected by the Government. They aim to replace a blanket offence under the Radioactive Substances Act 1960 of disclosing any information about "relevant process" where this is defined as, any process applied for the purposes of, or in connection with, the production or use of radioactive material". The Government stress that this does not apply to information about the final disposal of radioactive waste. However, discussion of the problems caused by waste inevitably require some discussion as to the purpose for which the radioactive substance was used in the first place. I cited a number of such instances in Committee.

A similar incident occurred in July of this year. The Observer newspaper reported that people were being contaminated by the presence of low level radioactive waste in drinking water in the Thames area. Researchers from St. Bartholomew's Hospital found radioactive iodine 125 in the thyroid glands of humans examined after post mortem. The presence of high levels in people in the Thames Valley region correlated with high levels in the River Thames, compared with lower levels in both tissue and rivers elsewhere in the country.

Such findings inevitably raise the question about the sources of the waste. Some of this information may be disclosed without contravening Section 13 of the Radioactive Substances Act hut, inevitably, questions will arise which involve some information about a, process applied … in connection with … the use of radioactive material". For example, a disclosure which revealed how much radioactive material was used in the luminous dials of a particular brand of watch, or telephones where BT Trimphones have luminous radioactive dials, or a smoke detector may be covered by this provision. I should remind your Lordships that at present disclosure would be a criminal offence, punishable by up to two years' imprisonment. In my view that is going over the top. It may not be what is intended by the Bill; but it is what the Bill actually says.

Therefore, Amendment No. 199A proposes that an offence would only be committed if the information disclosed is harmful to national security or jeopardises trade secrets. We have already talked about trade secrets today—and to some good effect, I am glad to say. Disclosure of information which is not harmful in that way should not be an offence.

Amendment No. 199B allows justification for what would otherwise be illegal disclosure; namely, that the disclosure was necessary for the purpose of protecting the health of any person from serious injury". That argument is similar to one we had earlier this evening.

Amendments Nos. 201A and 201B would provide for public access to the results of the monitoring of radioactive discharges and waste. Such information is obtained by the pollution inspectorate under the Radioactive Substances Act 1960. Paragraph 15 of the schedule provides for a certain amount of disclosure. As we have heard, the Government have been good enough to table an amendment in relation to one that we put down at the last stage requiring disclosure of details of convictions under the 1960 Act; but it appears that they still refuse to provide for full disclosure of the monitoring results.

The noble Lord, Lord Reay, argued that the amendment would swamp the system by making impractical demands. He went on to say that they intended that summary data would be immediately available and that more detailed information would be available on request. That is helpful, but it is not adequate. First there is no requirement in the Bill to disclose monitoring results. There is provision for the disclosure of documents sent by the pollution inspectorate to local authorities if the Secretary of State so dictates. That is presumably the mechanism for disclosure of monitoring results. However, without a statutory basis any directions of the Secretary of State can be modified or even cancelled.

A parallel solution arose in relation to information about genetically modified organisms, which are dealt with in Part VI. The Government initially gave a commitment that the Secretary of State would keep a public register of the relevant information. He was pressed to give that statutory force. The amendment which now appears in the name of the noble Baroness, Lady Blatch, provides for statutory registers in Part VI. We hope that in this part the Government will accept the case for putting disclosure on the face of the Bill.

Secondly, we still believe that the basis for disclosure should be the full monitoring results rather than the summaries. Summaries will inevitably be published several months after the event whereas we expect a scheme based on full data to involve much faster publication. Where there is a manageable number of sample results they should be made available as soon as possible. Why cannot registers of the type set up under Part I on integrated pollution control also be adopted here?

However Amendment No. 201B recognises that that requirement could create difficulties where monitoring is in the form of automated continuous read-out which may be capable of producing thousands of results in one day. The amendment makes provision for that.

The applicant would need to specify the period of time in which he or she was interested and the inspectorate would be required to provide figures showing the minimum, maximum and average readings during that period and the number of occasions upon which the level specified by the applicant had been exceeded. That presumably would require only a simple interrogation of the computer data upon which such results are based. That duty applies only so long as the relevant results have been retained by the inspectorate. Although they sound complicated, the amendments are straightforward. I hope that the Government, having had some time to think about them over the Summer Recess, are now able to be of more assistance to your Lordships. I beg to move.

Lord Reay

My Lords, I am not sure whether I am able to give the noble Lord much satisfaction. He obviously feels strongly about Amendment No. 199A and argued his case well. However, I am afraid that we are not able to accept the amendment. It would mean that certain processes which were not subject to national security restrictions or classified as trade secrets, but where disclosure might be prejudicial to the interests of the person concerned, would not be given the necessary protection from unwanted disclosure. We have in mind some university activities where disclosure of a process might be prejudicial if it took place in the development stage, and information on the operation of large irradiation sources.

I hope that your Lordships will agree that it would be wrong for persons with legitimate reasons for holding information on the whereabouts of radioactive material and data to be denied the protection they need. I equally hope that your Lordships will appreciate, as I emphasised in Committee, that a considerable amount of information is being made available to the public as a result of the provisions on access to information being introduced in the Bill. It is a case of striking a balance between the two, and I believe that we have struck the right balance.

Amendment No. 199B would have the effect of enabling a person to remain immune from the commission of an offence of unlawful disclosure of information if the disclosure was necessary for the purpose of protecting a person's health from serious injury. In our opinion, this amendment is unnecessary and inappropriate. Section 13(3) of the Radioactive Substances Act makes it an offence to disclose any information relating to any relevant process or trade secret used in carrying on any particular undertaking which has been given to or obtained by [a person] under [the] Act or in connection with the execution thereof unless disclosure is made in specified circumstances". The important words here are: under [the] Act or in connection with the execution thereof". Information relating to serious injury to a person's health as a result of radioactivity would not be obtained by any person under the Radioactive Substances Act 1960 or in connection with the execution thereof since matters of health are not within the scope of that Act. There is therefore no need to build any protection from prosecution into the Bill.

Amendments Nos. 201A and 201B seek to add to the list of documents which the chief inspector is required to copy to local authorities and make available to the public. Here, the noble Lord, Lord Tordoff, returned to the question of making available information on the analysis of samples. However this time his amendments are less widely drawn than they were in Committee in that they do not require the chief inspector to make available all data obtained through continuous automatic monitoring.

We appreciate the noble Lord's constructive approach, but unfortunately in our view the amendments are still too broad in scope for me to be able to recommend that your Lordships should accept them.

To take the proposals contained in Amendment No. 201A first, these would, with the exception of any information obtained through continuous automatic monitoring, which I shall come to in a moment, require every analysis of every sample to be sent to local authorities and kept and made available to the public by the chief inspector. I can only say, as the noble Lord pointed out I said at Committee stage, that in our opinion this procedure would swamp the system and make it less effective in giving the public the opportunity to examine documents of real significance. However, we intend that summary data will be immediately available and that more detailed information will be available on request. The data immediately available would indicate that further information was available.

Amendment No. 201B would have the effect of requiring the chief inspector to provide on request details of average, minimum and maximum figures from the results of any sample analysis obtained by continuous automatic monitoring. Any person requiring information obtained in this way would be able to stipulate any length of time he wished that information to cover. He would also be able to request a statement of the number of times a given level is exceeded. If the period specified is excessive and the threshold level is set very low, this could involve an unreasonable amount of data. Also, by specifying a very short period, it would be possible to require the production of equally large volumes of data. I do not believe it would be reasonable to ask that of the chief inspector. We consider that it is inappropriate for such powers to be placed in a Bill, as the requirements are too detailed. In the light of this, I hope that your Lordships will not accept the amendment.

10 p.m.

Lord Tordoff

My Lords, I am grateful to the Minister. I appreciate the difficulty which he faces, particularly as regards the previous two amendments to which I referred. We have been striving to reach the underlying problem behind these amendments but we have obviously not yet attained it. I suspect that we may not have either the time or the ability to do so before the next stage of the Bill. Nevertheless, I believe there is a problem here which the Government would be wise to address.

As regards the first two amendments to which I referred, I understand the reassurance that the noble Lord has given on Amendment No. 199B. I shall want to consider that assurance and see whether we cannot try to find a slightly different form of words because here again an important problem is involved. As regards Amendment No. 199A, I have a nasty feeling that whenever we get into the area of disclosing information on substances of this kind the shutters come down with a terrible bang. I wish that this part of the Government's environment department was able to be as understanding and as flexible as other departments.

The spectre of national security and all kinds of other matters seem to be thrown into the pot with reckless abandon. Frankly, I do not understand why the university dimension of this matter is seen as a horrific problem. I do not understand why universities should not be able to be treated sensibly as regards the terms of this Bill. That seems to me to be an astonishing state of affairs. However, I shall certainly reconsider that matter and see whether we can find yet another form of words which excludes the quite genuine cases the Minister has referred to but does not act as a blanket stoppage of information on all kinds of matters that the public should have a right to know about. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 199B not moved.]

Lord Reay moved Amendment No. 200: Page 175, line 13, leave out ("and").

On Question, amendment agreed to.

Lord Reay moved Amendment No. 201: Page 175, line 15, at end insert ("and

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

On Question, amendment agreed to.

[Amendments Nos. 201A and 201B not moved.]

Clause 102 [Purpose of Part VI and meaning of "genetically modified organisms" and related expressions]:

The Earl of Arran moved Amendment No. 202: Page 111, line 9, after second ("is") insert ("or is not").

The noble Earl said: My Lords, in moving Amendment No. 202 I wish to speak also to Amendments Nos. 203 and 211. These are all technical amendments over which I need not detain your Lordships long.

Amendments Nos. 202 and 203 are both drafting amendments which clarify the definition of "biological matter" in Clause 102(3). Amendment No. 211 is necessary to ensure that any limitations or conditions on genetically modified organism consents issued in Northern Ireland are not imposed for the purpose only of securing the health of persons at work. It complements the existing wording of Clause 108, which has the same effect in respect of Great Britain. I beg to move.

On Question, amendment agreed to.

The Earl of Arran moved Amendment No. 203: Page 111, line 11, leave out ("or in the case of other") and insert ("and, in the case or).

On Question, amendment agreed to.

Lord Clinton-Davis moved Amendment No. 204: After Clause 103, insert the following new clause:

("Consultation with local authorities

. The Secretary of State shall before making any regulations under this Part consult such powers, including organisations representative of local authorities, as appear to him to be appropriate and he shall take account of any representations from such persons before issuing any regulation concerned.").

The noble Lord said: My Lords this amendment seeks to procure a commitment by the Government to consultation before regulations implementing Part VI are laid, and furthermore a specific commitment to consult local authority associations where it is appropriate so to do.

The Minister will know that the Secretary of State is given broad powers to set down in regulations what should or should not be considered harmful for the purposes of this legislation. Those powers are designed to cater for genetically-modifed organisms which are deliberately intended to cause harm. They are obviously powers that would have to be used with very great caution. They also require widespread consultation with those who have appropriate expertise and interests before there is any question of those powers of exemption being invoked by the Minister.

Other areas where the regulations will decide important issues of policy include the criteria for risk assessments, the circumstances under which consent will be required, and the circumstances under which exemptions from any parts of the system will be permitted.

In our submission it is wholly appropriate that local authorities, because of their environmental health roles, should be involved in such consultations. They have a representative on the Advisory Committee on Genetic Manipulation and on the new Advisory Committee on Releases to the Environment. They are actively involved in the process of authorisation on a day-to-day basis. Consequently, and because of their role in relation to the overall planning of the implementation of Part VI, I believe that it is wholly appropriate that they should be consultees in the processes that are to be undertaken. That is also appropriate in this context because if there is an accident or an escape they will be more appropriately involved than almost anybody else.

Having regard to those issues I hope that the Government will feel that it is appropriate to accept the new clause. I beg to move.

Baroness Blatch

My Lords, the concern underlying the amendment is understandable. It is, of course, right that the Secretary of State should take account of expert and lay opinion on the important matters which Part VI enables him to regulate. My noble friend Lord Hesketh gave an assurance during Committee that there will be full consultations on Part VI regulations. I am happy to make clear that that commitment applies to appropriate local authority organisations as well as to other relevant bodies and individuals.

The Government accept that they have, as a general rule, everything to gain from thorough and wide-ranging consultations on the complex issues surrounding biotechnology. A need could, however, arise to amend regulations rapidly in view of the speed with which biotechnology is developing. Statutory consultation could result in unworkable delay in cases of exceptional urgency, but I stress that such cases are likely to be the rare exception and not the general rule. It is for that reason that we do not wish to accept the amendment on the face of the Bill. With the assurance that local authorities will be consulted I hope that the noble Lord will not press the amendment.

Lord Clinton-Davis

My Lords, the House will recognise that the noble Baroness has been very forthcoming and helpful. I should have preferred it had she gone further, but having regard to the arguments that she adduced I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 104 [Risk assessment and notification requirements]:

Lord Clinton-Davis moved Amendment No. 205: Page 113, line 3, leave out ("release").

The noble Lord said: My Lords, in moving Amendment No. 205 I should like to speak to Amendments Nos. 206 to 210 which stand in the name of my noble friend Lord McIntosh and myself.

The underlying purpose of the amendment is to require the Government to give effect to any international convention on pesticides or organisms in their regulations on marketing or release. The duty would apply to activities with organisms which as a result might be marketed or released abroad.

This was an issue that was raised at the Committee stage of the Bill. Noble Lords urged the Government to describe the progress that had been made towards an international convention on genetic manipulation. The noble Earl, Lord Arran, was able to say that the United Kingdom supported the pursuit of rigorous international action and had been influential to date in the European Community and OECD in securing rational and workable solutions. Tonight we should like to know the progress that is being made at the present time in OECD and the United Nations regarding the procurement of this extremely important international convention. I believe that there is nothing between the Government and ourselves in relation to that.

We say that regulations made applicable in this country should at the very least make such provision affecting those GMOs which may be exported as will give effect to any international convention. Consequently that is the underlying point in the request that I made a moment or two ago.

I hope that the Government will agree with my submission that an international convention is indeed critical. It is critical because companies within those countries which are currently regulated—that is to say, the European Community, Japan and the United States—might test or market GMOs in countries in which no such regulations exist. The biotechnology industry in Europe is already known to be discussing the possibility of experimental releases in Eastern European countries. In the same way a convention is needed because of the danger of indigenous companies in less regulated countries undertaking experimentation and releases which could undermine existing regulatory regimes.

I put this question to the noble Earl or the noble Baroness, whoever will reply to this debate. How can it be justifiable that the United Kingdom could debar the release of an organism within its boundaries yet permit the export of that organism for use elsewhere? Moreover, since GMOs by nature are capable of being replicated, escape may not easily be containable. The escape of a single organism might result in huge numbers in a relatively short time. Escape or uncontrolled release in any one country cannot be guaranteed to be limited in its effect to that country. One could have a situation in which organisms could be inadvertently reimported into the United Kingdom, possibly with disastrous consequences.

A further danger lies in the fact that GMOs could be designed in this country in the light of conditions in another part of the world. For example, organisms capable of survival in the tropics will not necessarily be capable of survival or replication in this country. Regulations need to take account of the fact that, as a country with currently superior technology, companies here may be engaged in manufacturing organisms which are not intended for release in domestic conditions.

I hope that the Government will be forthcoming about the generality of the issue relating to what is happening in international forums at the present time and also on the more specific points which I made in the latter part of my remarks. I beg to move.

The Earl of Arran

My Lords, while Amendment No. 210 would enable the Secretary of State to make regulations providing for general consents under Clause 107 for certain types of release, taken together the other five amendments would establish a regime for GMO releases which would be similar to but less sensitive and flexible than that already provided for in the Bill.

At present it seems probable that most if not all release activities will require specific consent, but there may be arguments for exceptions—for example, releases of GMOs and certain innocuous waste processes. We shall consider carefully the case for such exceptions. We should keep open sufficient options to deal with different types of cases.

Part VI enables the Secretary of State precisely to gauge the appropriate requirements for releases on a strict case by case basis. The amendments imply a step-by-step approach to releases in which the options for control would be more limited without any obvious advantages for environmental safety.

Amendment No. 207 would require the Secretary of State to make such regulations for the risk assessment of organisms used outside the United Kingdom as shall give effect to international agreements.

I can well understand the point behind this amendment and the noble Lord, Lord Clinton-Davis, is right to raise it in this debate. The implications of GMO biotechnology spread beyond the boundaries of the UK and the European Community. Equally, I am sure your Lordships will accept that this Bill is not the vehicle for achieving what the amendment seeks.

It would be impracticable in the Bill to seek to take account of risk assessment factors which are relevant to countries outside the Community. Lest your Lordships fear any complacency by the Government on the general issue, however, let me draw attention to Chapter 13 of the White Paper which contains a specific commitment to take an active part in work in the OECD and the UN towards achieving international guidelines on the worldwide control of GMO activities. The Government will pursue that commitment with vigour.

The noble Lord, Lord Clinton-Davis, asked about progress so far. Since Committee there has been no significant progress in the UN or OECD. However, the United Kingdom is firmly committed to developing wide international guidelines.

I hope that with those explanations and with that reassurance the noble Lord will feel obliged not to move these amendments.

10.15 p.m.

Lord Clinton-Davis

My Lords, I thank the noble Earl for that reply. As someone who has served in government before I am familiar with the "wrong vehicle" argument. It is useful and perhaps it is right in these circumstances. We have obtained from the Government today a clear commitment that they will continue to ensure that progress is made in these international fora.

Noble Lords will wish to have the assurance—I believe that the Government will have no great difficulty about it —that the House and indeed the public will be kept informed as to the progress on these extremely urgent matters and that the Government will be instrumental in furthering that progress. We cannot brook delay. I should like to have that assurance from the Minister. We do not anticipate that he will have much difficulty in giving it.

I thank the noble Earl for the courtesy that he extended when considering the purpose underlying the amendments. The points have been properly ventilated. The debate has given the Government the opportunity to be perhaps a little more forthcoming than in the previous debate. Perhaps I ought to invite the Minister to reply to the short point that I made before I beg leave to withdraw the amendment.

The Earl of Arran

My Lords, with the leave of the House, I can give the assurance to the noble Lord that he requires regarding information upon the continuing progress of the talks. I hope that with that reassurance he will be content.


Lord Clinton-Davis

My Lords, in those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 206 and 207 not moved.]

Lord Clinton-Davis moved Amendment No. 207A: After Clause 105, insert the following new clause:

("The Genetic Modification Commission

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

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

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

The noble Lord said: My Lords, the amendment, which stands in the names of my noble friend Lord McIntosh and myself, seeks to establish a genetic modification commission. That is a commission that could give advice to the Secretary of State on matters concerning the implementation of this part of the Act or otherwise as far as concerns genetic modification. This would be broader than the purely technical advice available through the advisory committee on releases to the environment or other existing advisory bodies.

When this matter was raised at Committee stage the noble Earl, Lord Arran, said that it would add nothing to the roles already carried out by the advisory committee on genetic manipulation or the new advisory committee on releases to the environment. I submit that that is not consistent with the facts.

The work of the ACRE—I hate these acronyms, but I suppose at this time of night it is better to use them—is going to be concerned primarily with the operation of the legislation. Our anxiety is that there is nothing in the Bill and nothing in Amendment No. 218 which ensures that the ACRE will either be asked or will be practicably able to take into consideration broader issues. Precisely the same restrictions apply to the ACGM.

The Government need to be forthcoming about this point. I should like to put a number of specific questions to the Minister. First, am I right in asserting that neither the ACGM nor the ACRE would be able to refer to these broader issues as I have referred to them? After all, we are talking here about the environmental impact of plants which have been manipulated to be resistant to herbicides, allowing broader application of those herbicides. Would the ACRE consider the overall environmental impact of this type of development as well as the environmental safety of the manipulation itself?

The social and economic effects of a form of technology which could radically alter the structure of a particular industry are important. We have recently had the serious controversy over the bovine growth hormone used to produce increased quantities of milk. Some experts argued that this would put many small dairy farmers out of business. Is this a matter on which either of those two bodies would be able to offer its expertise in relation to the implications of what is involved, or would the bodies feel proscribed from being able to offer the necessary advice?

There are also ethical considerations. I am sure that the noble Baroness, Lady Blatch, would recognise only too well that in transferring genes between species, particularly where human genes may be involved, serious ethical considerations arise. Is there any committee capable of offering the Government advice about such ethical considerations? How are they to be dealt with?

Another point concerns the membership of the two organisations. One wonders whether what is currently envisaged in terms of the membership is to provide a broad enough membership which could consider issues of this kind even if the terms of reference of the committees permitted this to happen. What is required is participation from a very broad range of interest groups for a proper debate to take place on the impacts of such a powerful new technology. The genetic modification committee would be seen as including environmentalists, consumers, economists, representatives of the Church, industrialists and other concerned groups.

There have been general calls for the kinds of debates to which this amendment gives rise. It is a pity in many ways that it is being taken at such a late hour because I think the whole House recognises that these are fundamentally important matters.

Commenting on ethical aspects of developments in biotechnology, a recent report by the Government's Advisory Council on Science and Technology stated: We recommend that Government Departments need to be sufficiently alert to the ethical issues that are likely to cause concern in the future. We recommend that consideration be given as to how a detailed and systematic analysis of … ethical concerns can be carried out before public worries highlight particular issues". Industry has made similar calls. The senior advisory group on biotechnology of CEFIC, which is the European body umbrella organisation for the chemicals industry, recently called for the European Community to appoint an independent advisory commission to, advise and provide guidance on matters, both European and international, concerning biotechnology and particular ethical issues". It also emphasised the need for advice on the economic and social impact of biotechnology and underlined the need for such a body. After all, this is nothing new. Such bodies exist in several member states of the Community at present. One must ask why it should not apply here.

We ask the Government to agree to the appointment of a United Kingdom Genetic Modification Commission. It is a realistic proposal. I must be realistic too because I anticipate that the Government will respond negatively. But it is right that the Opposition should state their case clearly on this point, as we do. The next Government will appoint a Genetic Modification Commission.

Baroness Blatch

My Lords, Amendment No. 207A would require the establishment of a Genetic Modification Commission appointed by the Secretary of State. The purpose of the commission would be to advise the Secretary of State both on Part VI matters and genetic modification generally.

I hope that noble Lords will accept that the amendment is redundant because the Government have already made provision for the matters which it seeks to address. Perhaps I may take the question of general advice first. The Advisory Committee on Genetic Modification (ACGM), founded in 1984, exists to advise the Health and Safety Commission and the Secretary of State on general issues of genetic modification. So far as particular advice on Part VI matters is concerned, noble Lords will be aware that we have set up the Advisory Committee on Releases to the Environment (ACRE).

Like the noble Lord, I dislike acronyms. However, ACRE is the acronym for that body. We must be careful because I understand that there are two ACREs. We must qualify which one we are talking about.

Noble Lords expressed concern in Committee that ACRE should be able to function effectively and that it should be secure in its position. Amendment No. 218 ensures that that will happen by introducing a specific requirement for the Secretary of State to appoint a Part VI advisory committee—in practice ACRE—and to provide the means for enabling it to operate effectively.

There are certain technical differences between the two amendments, but the government amendment, taken together with the fact that ACGM already exists, provides the essence of the situation sought by the opposition amendment.

Dealing with the issue of ethics, which is one of the broader issues mentioned by the noble Lord, Lord Clinton-Davis, Part VI is designed only to provide a system of controls to protect the environment. Neither the 1989 consultation paper nor the Royal Commission on Environmental Pollution report covered ethical aspects of genetic modification. The Government appreciate that those aspects are important and arouse strong views. The Secretary of State is considering with colleagues the ethical implications of GMO activities and will make a statement in due course.

In addition, it is relevant that there are activities going on outside government. The Nuffield Foundation has taken a welcome initiative in that area by convening a conference on bioethics attended by distinguished scientists and senior members of professional bodies, as well as lawyers, philosophers, theologians and representatives of the public and consumers. The foundation is expected to pursue further consultations with official and unofficial bodies to consider whether there is scope for creating new national machinery to handle those ethical issues.

ACGM and ACRE serve distinct purposes. Both committees have the advantage of having not only pure scientists as representatives but also representatives from both sides of industry. Of course the main function of ACGM is to advise on general standards of safe working with GMOs and in particular on the suitability of facilities in which they are produced and the competence of the individuals handling them.

Since the committee is established under the health and safety legislation, its remit concentrates on the protection of human health and safety. On the other hand, ACRE is specifically concerned with the effect of GMOs on the environment. The expertise and experience of those composing ACRE reflect that particular and distinct function. I believe that any body which sought to combine the differing and equally demanding tasks of both ACGM and disparate kinds of expertise required to do the job properly.

The noble Lord, Lord Clinton-Davis, raised a particular point about the powers of ACRE. It has powers to advise the Secretary of State on broader issues as well as technical matters. I am advised that ACRE is not concerned with the particulars of the genetic modification on its own but rather with the possible impact on the environment. For example, the committee will be able to advise on pesticide development.

Having listened carefully to the noble Lord, while understanding many of the anxieties behind his amendments, I believe that all of them can be met by the proper functioning of the two bodies. I hope that he will not feel it necessary to press these amendments.

10.30 p.m.

Lord Clinton-Davis

My Lords, on this occasion I cannot say that I am satisfied with the Minister's reply. However, I anticipated that I should not be. There is a large gap between us in terms of the necessary application of principle here as well as the establishment of another organisation.

I should like to hear further from the noble Baroness on one important matter concerning the advice which the Government have received on ethical considerations. She said that the Secretary of State would be making a Statement in due course. Can she tell us something of the timescale of such a Statement? The need for an approach to be made in relation to the ethical considerations should be given the same priority as the Government have given to those other matters. They are all important and, indeed, indivisible.

When I was a member of the Commission I was very much involved in arguments relating to the bovine question, to which I referred earlier. One of the problems was great anxiety and, indeed, suspicion on the part of ordinary people about that area of policy-making. That was reflected in the debates which took place in the European Parliament. As a result of that public pressure, the decision was made, because the Commission has to take parliament very seriously —this arose after my mandate was finished —to defer action for a considerable period of time so that further research could be undertaken.

I am not entirely happy about that because I am not sure that the ethical considerations have been properly tackled at European Community level either. I hope that I am not reading too much into what the noble Baroness said, but the time-honoured assertion that the Secretary of State will make a Statement in due course is rather unsatisfactory in the circumstances. Therefore I ask her to be more specific about when that Statement is likely to be made and to give us some general indication—I do not expect it to be too particular—of the area to be covered by the Statement.

Baroness Blatch

My Lords, the noble Lord said earlier that he was not having a very good evening. I am afraid I shall not be able to make it any more bearable. I cannot comment specifically on the timing. However, I am able to assure him of two things: first, that there is absolutely nothing sinister behind the lack of information at this time; we are seized of the importance of the issue. Secondly, progress is being made, but regarding the specific time I must remain within the phrase that the Secretary of State will report in due course.

Lord Clinton-Davis

My Lords, again I am disappointed by that response, but now is not the time to pursue it. It will be pursued elsewhere. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 107 [Consents required by certain persons]:

[Amendments Nos. 208 to 210 not moved.]

Clause 108 [Consents: limitations and conditions]:

Baroness Blatch moved Amendment No. 211: Page 117, line 41, at end insert ("or, in relation to Northern Ireland, Part II of the Health and Safety at Work (Northern Ireland; Order 1978)").

On Question, amendment agreed to.

Lord Clinton-Davis moved Amendment No. 212: After Clause 108, insert the following new clause:

("Strict liability in certain cases

. Where any loss or damage is caused by the acquisition, keeping or release of any genetically modified organism, the person who acquired, kept or released that organism shall be liable for the loss or damage, irrespective of fault on his part, except where such loss or damage—

  1. (a) was done wholly to the fault of the person who suffered it; or
  2. (b) was suffered by a person who voluntarily accepted the risk of the loss or damage being caused; or
  3. (c) as a result of the keeping, acquisition or release of an organism within the terms of a consent issued by the Secretary of State.").

The noble Lord said: My Lords, this amendment, standing in the name of my noble friend Lord McIntosh and myself, relates to strict liability. We feel that the recommendations made by the Royal Commission on Environmental Pollution that strict liability should arise where any person releases a GMO without the necessary consents should be reflected in the legislation. It was an issue raised at Committee stage by my noble friend Lord Graham. We feel that it is right and proper that the issue should be ventilated again tonight.

The Royal Commission expressed strong views about civil liability in this context. Traditional liability law deals with damage in terms of persons and property, and there is anxiety about whether this is an adequate way to cater for the interests of the environment where it has common ownership within the community. Consequently, as the Government are aware, there is a draft European Commission directive, and we drew on that directive in the drafting of Amendment No. 332G at Committee stage. We are seeking to create strict liability for damage to the environment and to give public authorities and common interest groups a right to take action in such circumstances.

In the earlier debate the noble Earl, Lord Arran, cited the case of Rylands v. Fletcher, a well-known case to which all students of law are inured. It relates to liability for damage caused by the escape of dangerous things, without proof of negligence, from land. Of course there are exceptions to the Rylands v. Fletcher rule. It applies where dangerous objects escape from land, although the noble Earl sought to argue on that occasion that there would be liability where the damage occurred on land on which GMOs were kept. He went on to say that the rule of strict liability applies only when there is some special use bringing with it increased danger. However, he did not elaborate on that proposition. It is important for Ministers to indicate what "special use" means in the context of GMOs.

The Royal Commission was asserting that any use of a GMO is potentially at least a special use which can bring substantial consequential risks. Therefore, if the Government do not go along with that we have to ask which types of GMO use are intended to be special in this context and which are subject to normal rules of liability.

We are not arguing for strict liability, though frankly I might be tempted to do so at another time. This amendment falls short of strict liability, but I hope that the Government will now explain the position rather more clearly than they were able to do in Committee. I beg to move.

The Earl of Arran

My Lords, this amendment, as outlined by the noble Lord, is an attempt to impose a form of strict liability in certain cases where loss or damage is caused by the acquisition, keeping or release of a GMO.

This Bill is not the place to seek the establishment of the kind of rules on civil liability attempted by the amendment. The purpose of Part VI is to set up a regulatory system for the control of the environmental safety of GMOs, with appropriate sanctions against those who contravene the requirements of the system. The provisions of Part VI are admirably suited to that purpose. They impose certain specific requirements and general duties on those involved in GMO activities, with the object of preventing or minimising damage to the environment. The concept of environmental damage is very clearly defined. In particular, the definition of "harm" at Clause 103(6), on which this concept is dependent, covers a very wide range of possibilities, including damage to human health and other living organisms, interference with ecological systems and offence to man's senses or damage to his property.

Those causing harm run the risk of committing one of the many offences imposed by Clause 114 and of having to bear a very stiff penalty in the worst cases. In addition, an offender can under Clause 116 be ordered by the court to take steps to remedy the matters in respect of which he has been convicted; and under Clause 117 he can be required by the Secretary of State to cover the costs of remedying the harm caused which could be a very serious burden in some cases.

Turning to the question of civil liability, I hope that your Lordships' concerns will be met when I explain that the question is under wider consideration than is possible in relation to Part VI. There is a Council of Europe draft convention on damage resulting from dangerous activities defined as, including the release of dangerous GMOs", and a proposal from the European Commission for a Council directive on civil liability for damage caused by waste. We are actively discussing the principles behind these ideas.

In so far as there is a danger which is above that which is normal, it will be caught by strict liability. If it is not above that level there is no need for special provision. What is special is a matter for the courts. This is a fast developing area on which the courts will make their determinations according to the facts at that time. I hope that these explanations have been of some assistance to the noble Lord and that he will not press the amendment further.

Lord Clinton-Davis

My Lords, I cannot say that I am satisfied by that reply. To say that these are issues which should be ventilated in the courts by litigation is to surrender an important principle in terms of legislation. Legislation should be clear and it should as far as possible avoid litigation in order to obtain a definition.

The noble Earl has made a serious admission which causes me great concern. He referred to the draft directive to which I had earlier referred regarding civil liability for damage caused by waste which would give rise to strict liability. The Minister based his case on this aspect of the matter. Will he be kind enough to indicate what attitude the Government are taking? It is no use just saying that they are negotiating. Are they not obstructing that draft directive? If that is the case, it is a very serious matter. Strict liability in relation to that area of the law applies in France and Germany and works perfectly well. What are the Government doing about it?

10.45 p.m.

The Earl of Arran

My Lords, as Annex A to the White Paper states, strict liability is a concept that has a potential application to secure environmental protection objectives. It also points out the complexities of ramifications of the concept and the fact that the subject is being pursued in a number of international organisations including the European Court, OECD and the EC. I can tell the noble Lord that progress in developing strict liability regimes can only sensibly take place in the international context. It would not be productive to pursue them ad hoc.

Lord Clinton-Davis

My Lords, that is a prescription for further delay. There is nothing in the White Paper that holds out much hope that the positive draft directive proposed by the Commission is going to be supported by the Government. That will cause considerable anxiety to many people. However, I am not going to raise the issue further at this stage. As I say, I am not satisfied with the response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Arran moved Amendment No. 213: After Clause 117, insert the following new clause:

("Publicity Public registers of information

.—(1) The Secretary of State shall maintain a register ("the register") containing prescribed particulars of or relating to—

  1. (a) notices given or other information furnished under section 104 above;
  2. (b) directions given under section 104(8) above;
  3. (c) prohibition notices;
  4. (d) applications for consents (and any further information furnished in connection with them) and any advice given by the committee appointed under section (advisory committee for purposes of Part VI) below in relation to such applications;
  5. (e) consents granted by the Secretary of State and any information furnished to him in pursuance of consent conditions;
  6. (f) any other information obtained or furnished under any provision of this Part;
  7. (g) convictions for such offences under section 114 above as may be prescribed;
  8. (h) such other matters relating to this Part as may be prescribed;
but that duty is subject to section (exclusion from register of certain information) below.

(2) It shall be the duty of the Secretary of State—

  1. (a) to secure that the register is open to inspection by members of the public free of charge at all reasonable hours; and
  2. (b) to afford to members of the public facilities for obtaining copies of entries, on payment of reasonable charges.

(3) The register may be kept in any form.

(4) The Secretary of State may make regulations with respect to the keeping of the register; and in this section "prescribed" means prescribed in regulations made by the Secretary of State.").

The noble Earl said: My Lords, on behalf of my noble friend and with the leave of your Lordships' House, in moving this amendment I propose first to speak to government Amendment No. 216, and then to deal with the other amendments in the group, having listened to the arguments of noble Lords opposite. The government amendments meet the undertaking given by my noble friend Lord Hesketh during Committee to give specific statutory backing to the Government's previously declared policy on the setting up of appropriate public registers of Part VI information. Amendment No. 213 provides for the setting up of the registers themselves while Amendment No. 216 allows for certain specified exclusions. The exclusions are based largely on the requirements of the European GMO directives.

I should like to draw your Lordships' particular attention to the fact that both information about consent applications and the advice given to the Secretary of State by the advisory committee set up by virtue of Amendment No. 218 will be among the matters included on the register. This meets a point previously raised in debate both inside and outside the House. It will permit the Secretary of State to allow a period of delay before reaching a decision on applications. During that period he may receive representations on the application both from the applicant and other parties. Let me assure the House that our administrative procedures will allow for this to happen.

In practice, when the advisory committee provides advice to the Secretary of State on matters such as consent limitations and conditions, or the need to revoke a consent, we intend to inform directly those persons such as the applicant for the consent or the consent holder who would be directly affected. In summary, I am sure that your Lordships will agree that these amendments handsomely meet my noble friend's undertaking and that they are thorough and apt to their purpose. I beg to move.

Lord Clinton-Davis moved, as an amendment to Amendment No. 213, Amendment No. 214: After Clause 117, Line 12, after ("below") insert ("or any other committee").

The noble Lord said: My Lords, I believe that it will be for the convenience of the House if we debate also Amendments Nos. 215, 216A, 216B, 217 and 217B. Perhaps I may at the outset thank the Government for Amendment No. 213 which responds positively to arguments that were raised by many noble Lords including noble Lords on this side of the House. I wish to raise a number of questions. I fear that I may take a few moments in so doing because they are important issues in relation to other amendments that stand in the names of my noble friend and myself.

As regards Amendment No. 214, the purpose is to put on the register advice from any committee in relation to applications. The reason is that other committees, including the Advisory Committee on Genetic Manipulation and that on novel foods and processes, are likely to provide advice on GMO activities covered by the Bill. That will be in addition to the advice produced by the Advisory Committee on Releases. However, there is no provision for the advice of these. committees to be published. Consequently, I should like to hear the Government's response to that. It would be inconsistent if the advice of the ACRE were the only advice to appear on the register where an application had been commented on by more that one committee.

Amendment No. 215 seeks to provide for a requirement for the publication of revocations or variations of consents, limitations or conditions. The reason for this is to test the logic for their apparent omission from the new clause as it stands. The new clause provides that consents and information furnished in pursuance of consent conditions should be published. Similarly, prohibition notices and convictions are to be published. The information to be in the public domain might, from the point of view of an applicant or subsequent operator, be more damaging than the information proposed in Amendment No. 215. It is possible that Amendment No. 215 merely represents an omission from the new clause and it is put forward in a constructive spirit to decide to test whether there is any practical reason why revocations or variations of consent and so forth which have already appeared on the register should be excluded. The amendment is also important in order to foster public confidence in the way the regulatory system is working.

Amendments No. 216A and 216B test the limits of the necessary national security exclusion in subsection (1) of the second new clause. The purpose is not to argue that there should not be exclusion in respect of national security but to test to what extent these involve deliberate releases to the environment. Surely, it is indefensible that such deliberate releases should take place without some form of public acknowledgement of their existence.

Amendment No. 217 removes subsection (2) of the new clause which enables the Government to exclude information from the register where, in the opinion of the Secretary of State, its inclusion might result in damage to the environment. That is a broad way of formulating the matter which, from the Government's statements in Committee, is intended to provide a safeguard against sabotage. However, the problem is that the formulation is much broader than the case it is intended to meet. The information that would need to be withheld to prevent vandalism would be little —in fact, probably only the exact location and the timing of a trial. Therefore, it is important that such a power is neither too broad nor used for purposes for which it was not originally inserted. In principle, it needs to be queried as to how access to information can lead to damage to the environment.

The words of Amendment No. 217A apply the mandatory inclusions more broadly than the subsection allows for at the present time. It is intended to reflect the current formulation in the European Community. Subsection (7) sets out six matters specified in (a) to (f) which must be included in respect of any GMO use. They correspond with the items enumerated in Article 19 of two Community directives on contained use and release. The respective articles specify that these matters may under no circumstances be kept secret for reasons of commercial sensitivity. The purpose is to require a minimum amount of information to exist in the public domain while respecting the need for secrecy in some cases. That is not unlike the position that appertains in the United States.

In their new clause the Government are going beyond the purpose of the Community directive in that there are no requirements for minimum information in the new clause concerning national security or environmental damage which are the two other areas of secrecy adopted by the Government in the new clause. What we are seeking to do by way of this amendment is to make the requirements of the directive applicable in all cases in order to plug this loophole. Considerable clarification is required from the Government in this connection.

It needs to be accepted that there will be some areas where absolute or near-absolute secrecy is probably sensible in the interests, at least, of national security. It is also understood that the Community directive may be interpreted narrowly in certain countries. For example, in France the Government are understood to be intending to interpret the directive sufficiently strictly to define the place of release as France and the organism involved as a micro-organism. However, the effect of the new clause is clearly much more restrictive than the directives intend. Therefore, once again, I look for clarification in the matter.

There is also continuing concern about the Government's amendment (Amendment No. 216) as it spells out in some detail exclusions from the register of certain information. In Committee it was accepted that certain information needs to be excluded on grounds of commercial confidentiality or national security.

The Government's move to registers also raises many issues concerning public access to information generally and the involvement of the public in the vetting procedure for GMOs. The Bill requires that advertisements concerning applications for consent should be made. We understand it is intended that advertisements should be placed before consideration of an application by ACRE, which would enable the committee to consider representations by the public. The question raised by the register amendments is what information would be available to those members of the public in responding to an advertisement. In that respect, I ask for greater clarification from the Government.

This is a matter of considerable importance because, in a recent letter to the Royal Commission on Environmental Pollution, the Secretary of State said: I can confirm that your proposal that applications for GMO release consents, and others, should have the opportunity to make representations before I reach a decision on the consent will in effect be implemented. Information on the application and the advice given to me by the Advisory Committee will be held on the register of publicly available information which will be established. I shall allow a delay during which representations may be made to me before I take a decision, taking account of any representations received".

On the face of it, that appears to be quite helpful. However, in my view, there are certain points of practicality which the Government should clarify tonight. First, will applications for consents be placed on the register contemporaneously with the advertisements? Secondly, will they be advertised, placed on the register or both as soon as they are sent to the regulatory authorities; or will either or both of these events be delayed until the committee has issued its advice? Thirdly, how long does the Secretary of State expect to delay an application between obtaining the committee's advice and making a decision?

Of course, many of these details of the system will arise in the regulations which will be tabled in due course. However, what we are looking at now are the underlying principles being considered by the Government. These are principles upon which the regulations will be based. I hope therefore that the Government will respond positively in the matter. I am sorry that I have taken up so much time, but there are many amendments which we believe are important in this respect and which we hope will assist us in securing the help of the Government which we seek. I beg to move.

The Earl of Arran

My Lords, I shall deal with all the amendments mentioned by the noble Lord, Lord Clinton-Davis. I propose to begin by dealing with Amendment No. 214 which requires details of advice given to the Secretary of State by "any other committee", in addition to that set out by virtue of Amendment No. 218, to be recorded on the register. Such a provision would be redundant as the register will relate only to Part VI matters, and the advisory committee appointed by the Secretary of State—namely, in practice, the Advisory Committee on Releases to the Environment—will be the only committee giving relevant advice in such matters. Further, there is some cross-membership of ACGM and ACRE and close collaboration between the secretariats of these two committees and other relevant advisory committees.

Amendment No. 215 would require details of revocations and variations of consents, and so on, to be included on the register. The amendment is also unnecessary because such information is information relating to consents covered by sub-paragraph (1) (d).

Amendments Nos. 216A and 216B would prevent the Secretary of State from excluding from the register any information about the deliberate release into the environment of an organism. The main reason for not accepting the amendment is that it would be inconsistent with the terms of the EC directive on deliberate releases. The directive reasonably permits the exclusion of certain information on the grounds of commercial confidentiality except for the kinds of information listed at subsection (7) of the new clause introduced by Amendment No. 216. The latter kinds of information must always be included and I think that the House will agree that the categories covered are such as to be able always to prevent any operation with implications for environmental safety being obscured by a smokescreen of excessive commercial secrecy.

Amendment No. 217 would remove the Secretary of State's ability to exclude from the register information which in his opinion might result in damage to the environment. Such an ability is necessary to avoid the possibility of wilful damage or sabotage by third parties of a kind which would itself risk the causation of damage to the environment. Let me make it clear, however, that exclusion on those grounds will not be used to cover sensitive work in a cloak of secrecy. For example, it might be reasonable, on environmental safety grounds, not to reveal the precise location of exposed or difficult to protect test sites if the risk of criminal trespass or damage was high. On the other hand, it would not be reasonable to extend that precaution to the point of removing from the register details of the individual, company or institution conducting the work and general information about the operations involved.

Similar arguments also make Amendment No. 217A unacceptable. Its effect would be to require the Secretary of State to include on the register certain kinds of information about matters which would otherwise be excluded on the grounds of national security or the need to prevent environmental damage. As I have indicated in relation to Amendment No. 217, the ability to exclude information in order to prevent environmental damage will be used with reasonable discretion. So far as concerns national security, it is a common feature of provisions of this kind to allow some means of protecting information related to national security interests. There is no reason why Part VI should be an exception to that general rule.

Advertisements will be placed before consideration by the committee. It is likely that consent applications will be placed on the register as they are received. I hope that that fairly long explanation of the amendments will have gone some ways towards helping the noble Lord.

11 p.m.

Lord Clinton-Davis

My Lords, at this time of night it is difficult to absorb everything. I am sure that the noble Earl did not absorb everything that I said and I am not sure that I absorbed everything that he said. It is a mutual situation. I should like to consider what he said. In the meantime, I beg leave to withdraw the amendment.

[Amendment No. 214, as an amendment to Amendment No. 213, by leave, withdrawn].

[Amendment No. 215, as an amendment to Amendment No. 213, not moved.]

On Question, Amendment No. 213 agreed to.

The Earl of Arran moved Amendment No. 216: After Clause 117, insert the following new clause:

Exclusion from register of certain information

(" .—(1) No information shall be included in the register under section (public registers of information) above if and so long as in the opinion of the Secretary of State, the inclusion of the information would be contrary to the interests of national security.

(2) No information shall be included in the register if and so long as, in the opinion of the Secretary of State, it ought to be excluded on the ground that its inclusion might result in damage to the environment.

(3) No information relating to the affairs of any individual or business shall be included in the register without the consent of that individual or the person for the time being carrying on that business, if the Secretary of State has determined that the information—

  1. (a) is, in relation to him, commercially confidential; and
  2. (b) is not information of a description to which subsection (7) below applies;
unless the Secretary of State is of the opinion that the information is no longer commercially confidential in relation to him.

(4) Nothing in subsection (3) above requires the Secretary of State to determine whether any information is or is not commercially confidential except where the person furnishing the information applies to have it excluded on the ground that it is (in relation to himself or another person) commercially confidential.

(5) Where an application has been made for information to be excluded under subsection (3) above, the Secretary of State shall make a determination and inform the applicant of it as soon as is practicable.

(6) Where it appears to the Secretary of State that any information (other than information furnished by the person to whom it relates) which has been obtained under or by virtue of any provision of this Part might be commercially confidential, the Secretary of State shall—

  1. (a) give to the person to whom or to whose business it relates notice that the information is required to be included in the register unless excluded under subsection (3) above; and
  2. (b) give him a reasonable opportunity—
    1. (i) of objecting to the inclusion of the information on the ground that it is commercially confidential; and
    2. (ii) of making representations to the Secretary of State for the purpose of justifying any such objection;
and the Secretary of State shall take any representations into account before determining whether the information is or is not commercially confidential.

(7) The prescribed particulars of or relating to the matters mentioned in section (public registers of information) (1) (a), (d) and (e) above shall be included in the register notwithstanding that they may be commercially confidential if and so far as they are of any of the following descriptions, namely—

  1. (a) the name and address of the person giving the notice or furnishing the information;
  2. (b) the description of any genetically modified organisms to which the notice or other information relates;
  3. (c) the location at any time of those organisms;
  4. (d) the purpose for which those organisms are being imported, acquired, kept, released or marketed (according to whichever of those acts the notice or other information relates);
  5. (e) results of any assessment of the risks of damage to the environment being caused by the doing of any of those acts;
  6. (f) notices under section 108(3), (4), (5) or (7) above;
and the Secretary of State may by regulations prescribe any other description of information as information which the public interest requires to be included in the register notwithstanding that it may be commercially confidential.

(8) Information excluded from the register under subsection (3) above shall be treated as ceasing to be commercially confidential for the purposes of that subsection at the expiry of a period of four years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it or to whom or to whose business it relates may apply to the Secretary of State for the information to remain excluded on the ground that it is still commercially confidential.

(9) The Secretary of State may by order substitute for the period for the time being specified in subsection (8) above such other period as he considers appropriate.").

On Question, amendment agreed to.

[Amendments Nos. 216A to 217A, as amendments to Amendment No. 216, not moved.]

On Question, Amendment No. 216 agreed to.

Baroness Blatch moved Amendment No. 218: Before Clause 118, insert the following new clause:

Advisory committee for purposes of Part VI

(".—(1) The Secretary of State shall appoint a committee to provide him with advice—

  1. (a) on the exercise of his powers under sections 107, 108 and 109 above;
  2. (b) on the exercise of any power under this Part to make regulations;
and on such other matters concerning his functions under this Part as he may from time to time direct.

(2) The chairman and other members of the committee shall hold and vacate office in accordance with the terms of their appointment.

(3) The Secretary of State shall pay to the members of the committee such remuneration (if any) and such allowances as he may, with the consent of the Treasury, determine.").

The noble Baroness said: My Lords, I beg to move.

Lord Clinton-Davis

My Lords, I welcome the provision the Government have made by making statutory the advisory committee on releases. This was demanded at Committee stage and the Government have responded positively. I wish to pose one or two questions at this stage.

It looks as though the terms of reference are somewhat wider than appear to be contained in Amendment No. 218. The committee is not limited to modified organisms but covers novel organisms. It will be involved in the Wildlife and Countryside and Health and Safety at Work Etc. Acts. It has not been given many responsibilities which were suggested by the Royal Commission. The basic powers which exist would be to draw up regulations and guidelines.

The Royal Commission suggested in section 8.14 that it should also advise on the whole scope for categorising releases on the need for research, most particularly on matters relating to release; that it should be able to undertake reviews of the outcome of releases and also liaise with overseas organisations; advise on possible needs for changes in legislation procedures; and produce an annual report on activities, on developments in the subject and on lessons that might have been learnt. Is it intended that these should be involved in the activities of the committees?

The second question I wish to ask is: why have the terms of reference not been translated into the legislation? Those terms of reference allow the ACRE to advise the Ministry of Agriculture, Fisheries and Food. The phrase "Secretary of State" in legislation refers to any Secretary of State, but does it include the Minister of Agriculture? It may be that this is a term of art bound up with the definition of Secretary of State, but we should like to know.

There is no mention in the legislation, as in the terms of reference, to advising other bodies. As the amendment stands, without a specific direction, the committee's role appears to be severely limited compared with its terms of reference. It is even limited in relation to the legislation. Therefore it would be excluded from advising on the operation of Section 104 or any of the clauses bearing on enforcement, such as Clause 110 on the appointment of inspectors or Clause 112 on obtaining information.

We need from the Government a clear understanding that the committee will be able to comment on all aspects of human and environmental health and safety issues and the other functions which are referred to in the terms of reference. Finally, why is the committee's remit limited to Clauses 107 to 109 of the legislation?

Baroness Blatch

My Lords, I think we touched on at least one of the questions when we first discussed this amendment. That was the concern of the noble Lord, Lord Clinton-Davis, about other issues—the broader issues than those mentioned in my first response to the amendment. I am pleased to be able to give an assurance that these committees will be involved in the wider issues.

As for the terms of reference not being wider than the powers in Amendment No. 218 as regards genetically modified organisms, organisms coming under the provisions of the Wildlife and Countryside Act will also be covered by the committees. I believe the noble Lord's concern is that the remit is too narrow and that some subjects will fall outside the scope of the two committees. I believe I am right in saying that the noble Lord need have no fear on that issue. The request of the Secretary of State for advice and the information that the committees deem it important for the Secretary of State to take note of can cover a wide-ranging area of advice.

The other point concerned the cognisance given to the Royal Commission. Again I am advised that advice given by the Royal Commission is heeded by the two committees and that discussions will be comprehensive and will take the views of the Royal Commission into account.

Lord Clinton-Davis

My Lords, with the leave of the House, I hope that I may repeat a question that I put to the noble Baroness on the position of the Secretary of State. Does that cover the position of the Minister of Agriculture, Fisheries and Food? I hope that I may continue talking for a little longer while the fourth cavalry provides assistance.

The other matter that is important concerns the final point I raised on the specific direction of the committees' role. I realise that the noble Baroness dealt with that matter in part. The most important point here concerns nomenclature. I hope the noble Baroness will refer again to that matter. It would be helpful if she could be more specific. However, I feel that we shall learn by experience. Some further legislation may be required in due course, if my fears are realised.

Baroness Blatch

My Lords, with the leave of the House, I should say that we are happy to share the noble Lord's objectives that the committees should work and do their job and that major matters, particularly those mentioned by the noble Lord, should not be left outside the scope of the work of the two committees. I am advised that the appointment of the Minister of Agriculture, Fisheries and Food is dealt with under Clause 119. If that answer is not sufficient for the noble Lord, I shall write to him.

On Question, amendment agreed to.

Clause 120 [Definitions]:

The Earl of Balfour moved Amendments Nos. 219 and 220: Page 127, line 13, leave out ("Great Britain") and insert ("United Kingdom"). Page 127, line 15, leave out ("Great Britain") and insert ("United Kingdom").

The noble Earl said: My Lords, I must apologise to your Lordships that I was unable to raise this point in Committee. This was due to my being unable to be in the Chamber on that one day. Although I am aware that Part VI basically applies only to Great Britain, I am concerned that the escape or release of certain genetically modified organisms could be detrimental to the environment over a wide area.

The words "United Kingdom" appear only in Clause 138(7) and Clause 154(4) which deal with transportation. I feel that this Parliament at the Palace of Westminster should take the lead in helping not only Northern Ireland but also those islands which have their own Parliaments such as the Isle of Man and the Channel Islands. This Parliament should control the production, for want of a better word, of any type of GMO anywhere within the territorial waters around our shores. These two amendments may not achieve what I am seeking, but I hope that some lead from the Government can cover the point I have raised. I beg to move Amendments Nos. 219 and 220 en bloc.

The Earl of Arran

My Lords, it is always a pleasure to be able to help my noble friend, even at this late hour. I can tell him that Part VI does not apply generally to Northern Ireland because environmental issues, including GMOs, are "transferred matter" under the Northern Ireland Constitution Act 1973. The only exception is imports of GMOs into that country. That is because imports are a "reserved matter" under the 1973 Act and are dealt with by the United Kingdom Government. In most cases imported GMOs are likely to be found in finished products, which present the lowest degree of risk. The effect of my noble friend's amendments would be to apply the full range of Part VI controls to the territorial seas and Continental Shelf adjacent to Northern Ireland. That would be inappropriate in view of the presently restricted application of Part VI to Northern Ireland.

I can, however, understand the noble Earl's concern about the application of the matters covered by Part VI to Northern Ireland. I can assure him that the Secretary of State for Northern Ireland intends in due course to make an Order in Council which will replicate Part VI in the Province. For the time being, however, his amendment is inappropriate for the technical reasons that I have given.

So far as concerns the Isle of Man and the Channel Islands, I understand that the authorities there have indicated that they will proceed by way of local legislation if they decide to adopt any of the measures in the Bill. I hope that those remarks help my noble friend.

The Earl of Balfour

My Lords, I am most grateful for that explanation. I now have a much clearer picture and understanding of the situation all round the British Isles. I beg leave to withdraw the amendments.

Amendments, by leave, withdrawn.

Lord Reay

My Lords, I beg to move that further consideration on Report be now adjourned.

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

House adjourned at seventeen minutes past eleven o'clock.