Environment Bill [H.L.]

HL Deb 14 February 1995 vol 561 cc595-688

3.55 p.m.

The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 81 [Consultation before making or modifying certain subordinate legislation for England]:

Baroness Hilton of Eggardon moved Amendment No. 316:

Page 88, line 1, after first ("The") insert ("appropriate").

The noble Baroness said: I shall speak also to Amendments Nos. 317, 320, 321B and 324. Many of the amendments in the group relate to improved consultation with various bodies and persons. Amendment No. 316 is a consequential amendment which would insert the word "appropriate" before the word "Minister" in order to make it clear that we are talking about the Secretaries of State for Scotland and Wales as well as the Secretary of State for the Department of the Environment.

Amendment No. 317 inserts the words "or modifying any legislation" in order to make clear those who shall be consulted when the legislation to which this clause applies is changed as well as when it is made ab initio.

Amendment No. 320 provides that for Scotland and Wales the same people should be consulted as are consulted in relation to England. Therefore, the subsection is split into three parts. The present legislation contains an anomaly which does not require the Secretaries of State for Scotland and Wales to consult the statutory bodies before changing or modifying the legislation. Therefore, the amendment is intended to be helpful to the Government.

Amendment No. 321B relates to consultation and provides that local authorities are consulted in relation to important hedgerows. That covers some of the issues we dealt with last week. It suggests that in determining which hedgerows are important it is important that local people are consulted.

Amendment No. 324 seeks to apply environmental conditions to arable area payments. Those would then be put on all fours with set-aside payments, which also require environmental conditions to be attached to them. I beg to move.

Lord Stanley of Alderley

I support this group of amendments and wish to speak to those standing in my name and in the name of my noble friend Lord Peel. They are Amendments Nos. 320A, 322, 323, 325 and 326. I hope that I shall not muddle my noble friend on the Front Bench but, with the permission of the Committee, I would prefer to deal separately with Amendments Nos. 318 and 321.

The amendments support the line taken by the noble Baroness, Lady Hilton. As the Bill is drafted, the Minister of Agriculture in England is required to consult his statutory advisers on conservation matters before formulating or modifying environmental land management schemes. There is no similar duty on the Secretaries of State for Wales or Scotland. I appreciate that both are Ministers of Agriculture in their area. However, it is odd that those two Secretaries of State should not have a duty to consult their statutory conservation advisers about land management schemes. I hope that my noble friend will see the sense of the amendments.

4 p.m.

Baroness White

I should like to comment on Amendment No. 320. Needless to say, I am looking at it from the point of view of Wales. Some of us were informed by the Countryside Council for Wales that it had not been consulted and that it had been left out against its will. That is astonishing. Surely somebody somewhere should have realised that there would be strong indignation and complaint about the fact that the Countryside Council for Wales and our heritage body, Cadw, were left out without any consultation whatever. I hope that that is not significant but merely an error of administration or judgment to which, I am afraid, we are all too accustomed in relation to legislation coming before us these days. I could not allow the situation to pass without drawing attention to it. Those of us who are concerned about the environmental problems of Wales were very much put out by the omission.

Lord Walpole

I wish to speak to Amendments Nos. 316A, 321A and 324A standing in my name and that of the noble Baroness, Lady Nicol. The amendments aim to widen and deepen the consultation process. However well informed the Minister's advisers may be, there is a wealth of experience outside that magic circle. When strategies are developed and changes are made, it is essential to seek the benefit of the experience of those at the sharp end.

I am sure that the Minister has been briefed by his department and has also received the briefing from the Countryside Commission which was, after all, set up to advise the Minister. I understand from the Countryside Commission that it is broadly in sympathy with the type of amendments which are put forward but that it does not support them as such because they are unnecessary. I am sure that that is what the Minister is about to tell us.

I have looked back several years to Volume 520 of Hansard when, at col. 2188, I was arguing with the Minister's predecessors on the Environmental Protection Bill. At that time also I was fighting for greater co-operation and information concerning what was being done. And that is what today's amendments are about. On the previous occasion the problem was overcome by letters of intent. In replying to this group of amendments, perhaps the Minister will make a ministerial announcement on letters of intent or the intention of Ministers to co-operate with one another. I am referring, of course, to the Ministry of Agriculture and the Department of the Environment.

Indeed, I hope that the Minister will go further—I suspect that he would like to—and say that the letters of intent should go beyond the Department of the Environment, the Ministry of Agriculture and the statutory bodies. Perhaps the Minister will be willing to discuss that with the noble Baroness, Lady Nicol, and myself before Report stage.

I feel very strongly that wider consultation is needed. There have been no complaints about the 1990 letters of intent, so obviously they have worked. I hope that the Minister will think seriously about better communication.

Earl Howe

All of these amendments would, in one way or another, extend the scope of the consultation arrangements set out in Clause 81. The clause requires the Minister of Agriculture, Fisheries and Food in England to consult the specified environmental agencies, as well as the Secretary of State for the Environment, before making or significantly amending legislation which aims to conserve or enhance the countryside or to promote public enjoyment of the countryside.

Amendments Nos. 316, 320, 320A, 322, 323, 325 and 326 seek to require similar consultation of environment bodies in Scotland and Wales by the relevant Secretaries of State. The Government do not consider that that extension is either necessary or appropriate because in Scotland and Wales the institutional arrangements and powers of existing bodies are different from those in England. For example, Historic Scotland and Cadw are not separate statutory agencies, unlike English Heritage, but are executive agencies of the Scottish and Welsh Offices. The amendment, if agreed, would require the Secretaries of State for Scotland and Wales to consult themselves on issues affecting the built heritage and clearly that would not be sensible. In addition, Scottish Natural Heritage and the Countryside Council for Wales already have statutory power to provide advice to their respective Secretary of State.

Amendments Nos. 316A, 317, 324, 324A would widen substantially the scope of Clause 81 in three ways. First, they would require the Minister of Agriculture to consult the Secretary of State for the Environment and the three countryside agencies before making any amendment to the specified statutory instruments, regardless of whether or not he considers it material. Secondly, they would require the Minister to consult those persons and bodies before making or in any way modifying any land management legislation which has a subsidiary environmental objective, even though its primary purpose is not related to conservation or public enjoyment of the countryside. Thirdly, they would require that the scope of the consultation should cover the objectives, delivery and performance of schemes at national and, where appropriate, local level.

The purpose of Clause 81 is to draw in the full range of environmental expertise available within all the relevant government agencies to ensure that we are getting the most out of schemes with specific environmental objectives. We consider that such formal statutory consultation as is proposed would be out of all proportion in relation to other policy developments where environmental purposes are not the primary objective. It could, for example, require the Minister to consult the specified bodies on minor amendments to the Crop Residues (Burning) Regulations.

We consider also that it would be undesirable to provide for formal statutory consultation where proposed modifications to statutory instruments are of a purely technical nature. That would be bound to create unnecessary additional bureaucracy and delays in operating schemes. It would, for example, mean that the Minister would be obliged to consult on every routine adjustment made to payment rates and grant ceilings in environmentally sensitive areas.

We believe that the extension of the clause to refer specifically to consultation on the objectives, delivery and performance of schemes is unnecessary because the requirement in the present text for Ministers to consult before making or significantly modifying legislation will, where necessary, encompass these elements as well as other aspects. The idea that consultation should, where appropriate, take place at local as well as national level is one which we support but we believe that it is already catered for in the current wording. By consulting the statutory countryside agencies, all of which have locally based staff, and through the Ministry of Agriculture's own local consultation arrangements, local views will be fully taken into account.

The purpose of Amendments Nos. 321A and 321B is, first, to extend the list of statutory organisations which the Minister of Agriculture is required to consult to include the Forestry Commission and local government representatives; and, secondly, to add to that list non-statutory bodies representing the interests of land managers as well as wider environmental, business and community bodies.

The noble Lord, Lord Walpole, asked about letters of intent. The consultation arrangements set out in Clause 81 are, as I said, designed to extend the approach which already operates successfully in setting up new environmentally sensitive areas. The Department of the Environment and the three countryside agencies have specific expertise with regard to conservation on agricultural land which is uniquely valuable in developing schemes of this type and it is right that their advice should be sought on a statutory basis. Since those schemes are not directed principally at woodland or afforestation, in our view it would not be appropriate to extend such statutory consultation procedures to the Forestry Commission. However, the Forestry Commission, local authorities and other statutory bodies are, in practice, consulted as appropriate on specific issues affecting their interests.

In introducing and developing conservation schemes we also recognise the importance of seeking advice and comments from non-statutory organisations outside government, representing both agricultural and environmental interests. However, whereas it is appropriate to provide a legal basis for the consultation of statutory bodies under certain conditions, more general consultation with non-statutory bodies is carried out on an ad hoc basis as the need arises. Those arrangements work very effectively and we do not consider it necessary to alter them.

I trust that the fact that the arrangements are working as well as we all hoped will reassure the noble Lord, Lord Walpole, to the extent that, perhaps, letters of intent may assume a lesser degree of importance. However, I would be more than happy to talk to the noble Lord about the issue between now and Report stage. With that somewhat lengthy explanation of the purposes of Clause 81, I hope that Members of the Committee will feel comfortable in withdrawing the amendments.

With the leave of the Committee and before I sit down, perhaps I may respond to the point raised by the noble Baroness, Lady White. I apologise for not so doing earlier. The noble Baroness mentioned the upset felt by the Countryside Council for Wales. The review of the functions of the council, which my right honourable friend the Secretary of State for Wales is currently undertaking, will not affect the fact that he would continue to consult the council on such matters. The council's statutory functions will not be changed, even if local authorities become more involved in some aspects of its present activities. I should stress that no decisions have yet been made in that respect. The council will remain the Secretary of State's adviser on nature conservation and on countryside and access issues. Therefore, there is no need for the Secretary of State for Wales and the Countryside Council for Wales to be included in the clause.

Baroness Hilton of Eggardon

I thank the Minister for his detailed response. However, it seemed to me that it was inherently contradictory on certain points. For example, if it is appropriate for agencies to give advice to Ministers, then surely it is appropriate for Ministers to consult agencies, even if they are within their own particular set-up within the Scottish Office. I thought the idea of having agencies was that they would be, to some extent, at arm's length from Secretaries of State or Ministers. Therefore if they are at arm's length to some extent, it must be appropriate to consult them. I imagine that our Scottish and our Welsh colleagues will be most disappointed with the Minister's response. It seems to me that there is a case for reciprocity in consultation and in seeking advice. It is not just a duty on the agency; it should also be a duty on the Secretary of State to seek it.

The Minister argued that consultation would entail delays. That is inevitable. Surely it is important to ensure that the action is right in the end, even if there is some delay. It is possible that consultation will improve the final decision. I believe that the Minister also said that it was appropriate to provide legislation in relation to consultation with statutory bodies. That is exactly what we are seeking by way of Amendment No. 324 which requires consultation with local authorities. It seems to me that some of the Minister's arguments can actually be turned against him as regards some of the amendments that have been tabled. However, we are dealing with a most complex issue. Obviously we shall need to study the Minister's response in some detail. Therefore, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

The Deputy Chairman of Committees (Lord Skelmersdale)

I understand that the following raft of amendments on the Marshalled List is not to be moved. I shall, therefore, read out the numbers slowly and if any noble Lord wishes to speak to any of the amendments he is, of course, at liberty to do so.

[Amendments Nos. 316A and 317 not moved.]

Lord Stanley of Alderley moved Amendment No. 318:

Page 88, line 9, at end insert: ("( ) The appropriate Minister shall also consult the bodies and persons specified in subsection (2) below as appropriate, and in any case at intervals of not less than three years, regarding the development, establishment of targets, implementation, monitoring and evaluation of any schemes already existing or introduced under any legislation to which this section applies.")

The noble Lord said: I should like to address the amendment. I warned my noble friend the Minister that I should like to move it separately. I listened very carefully to my noble friend's response to Amendment No. 316. I hope that my noble friend will confirm that I have got the message correct.

As I understand it, organisations like Cadw or CCW are automatically consulted by the Secretary of State. Therefore, Amendment No. 318 which suggests that consultation is necessary during the implementation of schemes will presumably receive the same response. I believe that I am right in that respect. Like the noble Baroness, Lady Hilton, I am not entirely sure as to whether there is a two-way approach involved. I believe that "reciprocity" is the right word. Perhaps my noble friend will confirm that I have the right message. I beg to move.

Earl Howe

Amendment No. 318 would require the Minister of Agriculture to consult the specified persons and bodies not only when making or significantly modifying legislation designed to encourage countryside conservation but also periodically on the subject of targeting, implementing, monitoring and evaluating schemes introduced under such legislation. The Government do not consider that such a statutory requirement is appropriate.

Clause 81 is designed to build on the type of consultation arrangements laid down under the Agriculture Act 1986 for legislation setting up new environmentally sensitive areas (ESAs). It: does so by requiring consultation on statutory instruments modifying existing ESA legislation and on a wide range of other statutory instruments concerned with conservation and public enjoyment of the countryside. That constitutes a major expansion of the statutory consultation procedures.

Quite outside the statutory arrangements there is, as I indicated earlier, a less formal range of contacts and consultations regularly occurring on the sorts of issues referred to in the amendment. The Ministry of Agriculture, the Department of the Environment and the countryside agencies are currently considering sympathetically how to develop those contacts further. We shall bear in mind the aspects referred to in the amendment. The Government will make a further statement on the subject during the passage of the Bill. I hope that my remarks will be of help to my noble friend and that he will feel able to study my response between now and Report stage. If my noble friend requires further clarification, I shall be more than happy to talk to him on the matter.

Lord Stanley of Alderley

I am most grateful to my noble friend the Minister. I shall study my noble friend's response with great care. It seemed to me a little more encouraging than I expected. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 319 had been withdrawn from the Marshalled List.]

[Amendments Nos. 320 and 320A not moved.]

Lord Stanley of Alderley moved Amendment No. 321:

Page 88, line 14, at end insert: ("(e) bodies representing the interests of land managers.").

The noble Lord said: As before, I warned my noble friend the Minister that I should like to deal separately with the amendment. Of course, it is possible that I have, again, got the message wrong. I believe that my noble friend gave an assurance in this respect when addressing Amendment No. 316. However, I should be grateful if he would confirm that the Minister will consult bodies representing land managers—they are obviously different to CCW and Cadw—in making any legislation relating to environmental land management schemes or modifying such legislation.

Land managers have ultimate responsibility for delivering environmental land management under government schemes. Taking full account of the views of bodies representing land managers in formulating or modifying such schemes should help to ensure their success. For example, consultations could enable potential problems to be identified and resolved before schemes are launched, rather than subsequently. Equally, land managers have a growing fund of practical experience in delivering environmental land management which I believe could be usefully tapped.

I believe that consulting such bodies as the CLA and the NFU, both of which represent land managers, offers an effective way of drawing on that experience. I hope, therefore, that the Bill will provide for such bodies representing land managers to be consulted. I beg to move.

Earl Howe

I am grateful to my noble friend for speaking to this amendment so clearly. As he has indicated, it would add land managers to the list of consultees in the Bill. The Minister would also be required to consult such other organisations as he considers appropriate. As I indicated in my earlier remarks, I have no difficulty with the principle of the amendment as such, but I would invite my noble friend to remember that the environmental schemes we are talking about are all about delivering specific environmental benefits through certain specific types of land management. The consultees laid down in the Bill all have specific technical expertise alongside the expertise of MAFF and the Department of the Environment.

The expertise which land managers have is, I suggest, of a different kind. We believe that it is necessary to include the statutory bodies on the face of the Bill but more general consultation with non-statutory bodies is something that is carried out on an ad hoc arrangement as the need arises. I do not believe it is appropriate to put those bodies on the face of the Bill. I say again to my noble friend that I hope he does not feel that the arrangements as currently practised fall short in any way. I do not think that they do, and I do not believe there is any underlying need, or underlying disquiet, which should give rise to pressing this amendment.

The Earl of Lytton

If I understood the Minister correctly, the view taken by Government is that the best people to determine what happens in the area of land management are the Ministry of Agriculture, the Countryside Commission and so on. If I may say so, I think he seriously underrates the private sector land manager as opposed to what I might describe as the theoretical approach of the established government adviser in these fields. Before the noble Lord, Lord Stanley, decides what to do with the amendment, I must say I have grave misgivings about the quality of consultation and decision making, and about the quality of understanding among many of these agencies about what really happens on the ground when one has to make long-term decisions using one's own money and in the knowledge that the policy may change several times in the course of the period in which one has to see that policy through.

In years gone by it seems to me that policies were almost as durable as the timescale over which they had to be unfolded, but that is no more because everything is on a fundamentally short term arrangement. We have seen environmental schemes that have disappeared after a few years and we have seen forestry schemes that have been wound up and turned into something different. No land manager can take long-term decisions or have a long-term sustainable approach on that basis. I would say in response to what the Minister has just said that that is not satisfactory. I certainly have grave misgivings and, irrespective of what the noble Lord, Lord Stanley, might have to say, I believe my misgivings are shared by a large number of land managers. I would be particularly concerned that, having a university degree in a relevant subject and a certain amount of hands-on experience in difficult country in the Exmoor National Park, my views could somehow be shovelled aside.

We have spent far too much time putting aside the views of competent traditional land managers who may not have had degrees in anything but—my goodness me!—who knew what would grow on a particular site. They knew about the weather and about the soil, and they had an intuitive understanding that was passed down to them from their grandfathers. That may not carry much clout; but in my view it carries a great deal more clout than the opinion of someone straight out of university who will be paid £20,000 or whatever a year, and who will then tell people who have worked on the soil and who have to pitch in with their own resources and take risks how they can get on and manage their own affairs. That is wrong and it would be wrong if I did not stand up and tell the Minister that that is what I think.

Lord Stanley of Alderley

I must be the only member of my family for the past 100 years who does not have a degree so perhaps I speak from the other side having seen how the rest of my family behave. I support much of what the noble Earl, Lord Lytton, said. I feel quite strongly—if I may say so to my noble friend on the Front Bench—that the worry over this particular Bill as I have followed it is that it has been driven by the academic and the non-practical. Having listened to some of the debates the other night, I was horrified at the impracticality of some of the suggestions coming forward. I am a little worried as regards the idea that we are always listened to on the ground. I take the point that my noble friend made that land managers are different. Thank God they, are different, and pray God they will be listened to! However, between now and Report I shall read carefully what my noble friend said because he gave some good answers. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Walpole moved Amendment No. 321A:

Page 88, line 14, at end insert: ("(e) the Forestry Commission; (f) such bodies or persons which are representative of local government, environmental, business and community interests.").

The noble Lord said: I am not sure that the Minister has completely answered the arguments. I am still firmly of the opinion that the Forestry Commission or the Forestry Authority, or whatever one likes to call it, is highly relevant. Perhaps that is a personal opinion. As regards the other bodies, the Minister said that consultation—in spite of what my noble friend Lord Lytton has just said—is fairly good on the whole. With the possible exception of land managers, I think it is fairly good on the whole but this is what these amendments are designed to ensure. When we discussed the Environmental Protection Bill, things were going quite well; but some people were worried whether they would continue to go well. That is why I feel this amendment is important. I thank the Minister for the suggestion that we could meet with him before the Report stage. I would very much like to take him up on that suggestion. I beg to move.

Baroness Hamwee

First of all, I apologise to the Committee for arriving a little late. I am probably one of a number of people who have been caught out by the timing. If the Minister feels that I am pushing my luck in referring to this point now, I will entirely understand if he tells me so. In supporting this amendment, I wish to relate it to Clause 81(1) which sets out the items on which consultation is to be carried out. I wish to ask the Minister about Clause 81(1) (b). I re-read that paragraph last night and it made me gulp a little as it refers to the modification of legislation, in a way which changes the purpose of the legislation in question". I find that a curious notion. The Minister may say that there are other safeguards which would prevent an inappropriate change to the purpose under this heading; in other words, the mechanisms that have to be carried out. But to have buried within this clause a reference to a change in the purpose of legislation took me a little by surprise when I read the paragraph rather more slowly than clearly I had done the first time. Perhaps I am pushing my luck in raising the matter outside the group of amendments which deal with this topic. If the Minister does not wish to reply now perhaps we can discuss it later.

4.30 p.m.

Earl Howe

As always, I am happy to help the noble Baroness as far as I can. I indicated earlier that the purpose of that clause was to avoid a situation in which we would create bureaucratic consultations for minor modifications in environmental schemes. We do not want to have to consult each and every time a tiny amendment is made for example, to the rates of payment of ESAs or whatever it may be. The point is that only a substantive change in the scheme should trigger the consultation procedure.

In answering the noble Lord, Lord Walpole, I apologise to him because I thought that his amendment was included in the previous group of amendments. That is why I referred to forestry matters when I spoke to that group of amendments. I can only say again that the interest of the Forestry Commission in environmental schemes is of a different order from the interest of the environmental agencies. I reiterate that we frequently consult bodies which are representative of a whole range of interests, including the Forestry Commission where appropriate. We shall continue to do that. There is no intention to do anything differently.

I am sorry to hear the sentiments expressed by some Members of the Committee, particularly the noble Earl, Lord Lytton, and that there is dissatisfaction with the way the current arrangements are working and that they have fallen short in some way. We shall continue to listen to—and we greatly value—the views of farmers and landowners in particular, but also the Forestry Commission, whose expertise the Committee will agree is unquestioned. However, that expertise is not required for every scheme.

This is not something that we feel needs to appear on the face of the Bill. I believe that the arrangements work well in practice. I look forward to my discussions with the noble Lord on that point at a later date.

Baroness Hilton of Eggardon

I should like to associate myself with the remarks of the noble Baroness, Lady Hamwee, in relation to Amendment No. 316A. I had not fully appreciated the point. Changing the purpose of legislation is rather more than changing mere rates of pay and so on. That is a serious issue to which we shall have to return at Report stage.

Lord Walpole

The last arguments are slightly beyond this amendment. In the light of what the Minister said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 321B to 326 not moved.]

Clause 81 agreed to.

Clause 82 [Meaning of "drainage" in certain enactments]:

The Earl of Lytton moved Amendment No. 327:

Page 89, line 5, leave out (", other than spray irrigation").

The noble Earl said: I move the amendment at the request of the noble Viscount, Lord Addison, who unfortunately is unable to be present today.

The purpose of the amendment is to add a further aspect to the water level management activities of internal drainage boards. The boards already do excellent work in managing water levels. The amendment would enable the boards to move water around the drainage networks in such a way as specifically to facilitate direct abstraction of water for spray irrigation purposes.

The exercise of such a power would be subject to all the other duties of the boards in relation to the environment and in no way supersedes those. The conditions attached to any specific licence for abstraction of water for spray irrigation purposes would also have to be observed.

The circumstances in which such a power is needed exist in particular in the low-lying fenlands of East Anglia. The dense networks of drainage channels in those areas extend over many square miles. They are managed by a number of internal drainage boards. The land drained by those networks constitutes some of our highest grade and most productive agricultural land. Horticultural crops are widely grown in those areas, often under contract to major supermarket suppliers. Therefore, this is very much the sharp end of commercial horticulture. Because reliable supplies of water are essential, there is widespread use of spray irrigation using water abstracted directly from the drainage channels under licences granted by the National Rivers Authority. Spray irrigation is the predominant method of irrigation in this country.

The aim of the amendment is to enable internal drainage boards to respond to requests from irrigators to ensure that surplus water—and I stress "surplus"—is directed down the channels from which the water is abstracted for irrigation purposes rather than simply being allowed to flow out to sea. I submit that that is a role which is entirely consistent with the efficient augmentation, redistribution and use of water resources.

Ensuring that internal drainage boards are able to manage water resources in that way would bring important benefits to the horticultural industry and no little comfort to its long-term prospects. I repeat that boards would be able to respond to requests from irrigators for water to be managed in this manner.

This would happen only if the actions were consistent with the other duties of the boards and with any conditions attached to specific abstraction licences. That is vitally important.

I invite the Minister to give an assurance that the Government will look favourably on proposals to allow IDBs to play a fuller role in this area and manage water levels to benefit spray irrigators as well as the other interests already covered by Clause 82. I beg to move.

Lord Crickhowell

I was not sure what the purpose of the amendment was until the noble Earl moved it. It gives me some anxiety, particularly because it seems likely to cause confusion about responsibilities. Drainage is described in the clause. It is essentially the moving of water about in order to maintain the right levels. We are suddenly confusing that with the provision of water for a particular purpose, which, as the noble Earl said, is controlled by abstraction licensing.

I have not had an opportunity to examine the legal implications, but I would be concerned if the effect of the amendment were to undermine the ability of the agency to protect the environment through its licensing arrangements. Extensive spray irrigation, about which we have been told, can have immediate and sometimes extremely damaging consequences for the environment during times of drought. I suspect that that is .a subject to which the noble Earl may return later in a debate on the Motion that the clause stand part of the Bill.

My concern at present is to ensure that there is effective protection of the environment and that that is not undermined by this proposed change. It is always open to agricultural interests to obtain abstraction licences. For 30 years or more they have been urged by government and those responsible to provide, as far as possible, reservoirs or other impoundments on farms or coastal farms so that they can take water in times of drought when it may not otherwise be available without damage to the environment.

We are dealing with an important issue and I shall listen with great interest to what the Minister says. I suspect that his advisers and lawyers will have examined the impact of the amendment more carefully than I confess I have.

Earl Howe

The main effect of Amendment No. 327, spoken to by the noble Earl, would be to allow internal drainage boards, and local authorities acting as drainage bodies, to undertake drainage works and water level management in order to facilitate spray irrigation. It would not, however, amend the corresponding definition in Section 113(1) of the Water Resources Act 1991, and the result would be that the agency would not have similar powers to those of other drainage bodies in relation to its flood defence functions. I think it would be undesirable for the definitions of "drainage" in the Water Resources Act 1991 and the Land Drainage Act 1991 to diverge, since they derive from a single provision in the Land Drainage Act 1976.

Further, the amendment would reverse the decision taken in 1976 when the Land Drainage (Amendment) Bill was being considered. Then the definition of "drainage" was amended to exclude spray irrigation, for consistency with the definition in water resources legislation which has now also been consolidated in the Water Resources Act 1991.

Although in the past IDBs concentrated on drainage matters, over the years there has been a change of emphasis, and indeed the purpose of Clause 82 is to clarify that drainage bodies can undertake water level management, for example for conservation purposes. I recognise that there are also arguments for changing the definition so as to include spray irrigation but, on the other hand, it would be important to ensure that any such change did not have unforeseen adverse repercussions on the water abstraction provisions in Part Il of the Water Resources Act 1991, which will continue in force, in particular Section 29, which deals with the right to abstract for drainage purposes. We do not think it would be appropriate to extend the exemption from restrictions on abstraction, which drainage operations enjoy, to cover spray irrigation.

Given that the definitions were made consistent in 1976, the Government could not accept an amendment of this kind unless they were satisfied that it would not cause problems for the management of water resources by the agency. Against that background, I hope that the noble Earl will wish to reflect and at this stage would not wish to press the amendment.

The Earl of Lytton

I am grateful to the Minister for that reply. As is always the way when dealing with amendments at second hand, I have to declare that there are elements where, to use a colloquialism, I am out of my tree! The Committee will already know from what I have said previously that I farm on top of a hill and not on the level areas of the eastern counties.

As I understand it, the anxiety is that the internal drainage boards have duties now not only to drain away water and ensure that it goes out to sea, but also to maintain water levels, perhaps for environmental reasons. All I wish to ascertain is whether the interests of spray irrigators and, therefore, the economic aspects of the areas which are so heavily dependent on that type of activity will be among those taken into account. It is no more nor less than that.

In answer to the noble Lord, Lord Crickhowell, obviously I did not stress sufficiently that the existing environmental duties remain in place. All I seek is to ensure that we do not reach a situation where we are managing the water only for environmental purposes and not in any way for economic purposes as well.

It is obviously a complicated area. I am not entirely sure that I am satisfied with what the Minister said, but I shall read it carefully in Hansard. In the meantime, while reserving my position, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 82 agreed to.

Clause 83 [Grants in connection with drainage works]:

4.45 p.m.

Earl Howe moved Amendment No. 328:

Page 89, line 19, leave out ("protection") and insert ("defence against sea water").

The noble Earl said: In moving this amendment, I wish also to speak to Amendments Nos. 329 to 333. All the amendments are of a minor, technical nature. Amendments Nos. 328 and 332 are to clarify that grant applications must relate to plans for sea defences rather than coast protection works, which are subject to separate legislation.

Amendments Nos. 329 and 331 change singular words to plural equivalents for consistency with references to drainage bodies in Section 59(4) of the Land Drainage Act 1991. Amendment No. 333 deletes subsections (3) and (4) of Clause 83, as we think it is unnecessary to extend the new grant provisions to works carried out by an internal drainage board or local authority on behalf of another person, as in practice such cases are extremely rare and the new provisions are unlikely to be relevant. I beg to move.

On Question, amendment agreed to.

Earl Howe moved Amendments Nos. 329 to 333:

Page 89, line 33, leave out ("it") and insert ("them").

Page 89, line 40, leave out ("it") and insert ("them").

Page 89, line 41, leave out ("its") and insert ("their").

Page 89, line 41, leave out ("protection") and insert ("defence against sea water").

Page 90, leave out lines 8 to 31.

On Question, amendments agreed to.

Clause 83, as amended, agreed to.

Clause 84 agreed to.

Clause 85 [Other marine or aquatic environmental conservation powers]:

The Earl of Lindsay moved Amendment No. 334:

Page 92, line 19, leave out from ("section") to end of line 21 and insert: 2 of the Inshore Fishing (Scotland) Act 1984 there shall be inserted—

"Powers to restrict fishing, or to prohibit the carriage of specified types of net, for marine environmental purposes.

2A.—(1) Any power to make an order under section 1 or 2").

The noble Earl said: In moving Amendment No. 334, I shall also speak to Amendment No. 335. Clause 85(2) matches the provision in Clause 84 relating to inshore fisheries. It proposes to authorise the Secretary of State for Scotland to exercise his regulatory powers under Section 1 of the Inshore Fishing (Scotland) Act 1984 for marine environmental purposes. That brings the Secretary of State's powers into line with the powers of those bodies that regulate inshore fisheries in the rest of Great Britain. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 335:

Page 92, line 23, after ("1") insert ("or 2").

On Question, amendment agreed to.

Clause 85, as amended, agreed to.

Clause 86 [Fixed penalty system for certain fisheries offences]:

Earl Howe moved Amendment No. 335ZA:

Page 93, line 43, leave out ("(4) (b)") and insert ("(4) (a)").

The noble Earl said: I shall speak to Amendments Nos. 335ZA and 335ZB together. They are both minor technical amendments. The first simply corrects a reference to an earlier subsection, while the second reinstates words that were unfortunately omitted in error from the Bill as published. Without the amendments, the relevant provisions would not make sense. I beg to move.

On Question, amendment agreed to.

Viscount Mills moved Amendment No. 335ZAA:

Page 94, line 17, at end insert: ("( ) the monetary amount of the fixed cost which shall be paid").

The noble Viscount said: I welcome the introduction of the new fixed penalty scheme for fisheries offences in Clause 86. The purpose of my amendment is simple. It would allow the agency to recover costs—not the fines themselves—from offenders in fisheries cases. That would be consistent not only with the other cost recovery provisions in the Bill but also with the present situation. At present the costs awarded in fisheries cases are paid to the NRA. In contrast, Clause 86 does not enable the agency to recoup costs in a similar situation.

Although the overall costs of administering the new scheme will be less, the inability of the fisheries service to recover its own costs will result in a significant loss of income. The NRA currently takes some 5,000 cases a year against unlicensed fishermen fishing for trout and coarse fish. I estimate that the costs of taking each case under the new system would be £20, totalling some £100,000. That is a considerable sum. It will be lost to the agency and will no longer be spent on enforcing fisheries regulations. Furthermore, the cost of regulating the fisheries will fall entirely on those anglers who have purchased a rod licence rather than on the offenders who break the regulations.

It might previously have been argued that, because the Government partly fund the fisheries service, it is reasonable for the costs that are recovered to be repaid to the public purse. However, following a further reduction in grant-in-aid last year, trout and coarse anglers now pay, through the purchase of their rod licences, for all of the management and regulation of their fisheries. I suggest that it is inappropriate that the Government receive the costs from offending anglers when legitimate anglers have to foot the Bill.

The Government have made it very clear that they wish for the fisheries service to recover costs wherever possible. It is only a matter of consistency that the agency should have that facility. Indeed, this amendment provides that facility in relation to fisheries cases. I hope that my noble friend the Minister will find it possible to accept this amendment. I beg to move.

Earl Howe

As my noble friend explained, this group of amendments would provide for the costs that are incurred by the agency in relation to the administration of the fixed penalty system for which Clause 86 makes provision to be met by a fixed charge levied on those who are liable to pay the penalty.

Let me say straightaway to my noble friend that I entirely understand the rationale behind this proposal. However, it could have wider implications, and it therefore needs to be considered with particular care. We wish to look more closely at what my noble friend has proposed. We shall do so between now and Report. Against that background, I hope that my noble friend will be content to withdraw the amendment at this stage.

Viscount Mills

I thank my noble friend the Minister for his comments. I should like to make just one further point which may be relevant. As I understand it, the new agency will not be compelled to use the fixed penalty scheme. It could therefore pursue cases through the courts. If the new agency is unable to recover its costs, will that not be a strong disincentive to using the new scheme, which in all other respects would seem to have some very great advantages? Perhaps the Minister might like to comment on this point.

Earl Howe

Again, that is a point that we shall have to consider very carefully. I am not sure that I agree with my noble friend. We believe that the fixed penalty system will prove attractive and far less bureaucratic. But I am grateful to him for the point that he made. We shall of course bear it in mind.

Viscount Mills

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 335ZAB to 335ZAE not moved.]

Earl Howe moved Amendment No. 335ZB:

Page 96, line 12, after ("above,") insert ("a water bailiff or other officer of the Agency").

On Question, amendment agreed to.

Clause 86, as amended, agreed to.

Clause 87 [Miscellaneous minor amendments relating to fisheries]:

Earl Howe moved Amendment No. 335ZBA:

Page 96, line 20, after ("Act") insert ("(which makes minor and consequential provision in relation to fisheries)").

The noble Earl said: In moving this amendment, perhaps I may also speak to government Amendments Nos. 335ZC, 335ZD, 335B, 335C, 335D, 399C and 402A together.

Clause 87 introduces Schedule 12 to the Bill. Amendment No. 335ZBA will make a small addition to the wording of this clause so that it states the purpose of that schedule.

Amendments Nos. 335C and 335D do likewise in respect of Clauses 88 and 89, which introduce Schedules 13 and 14 respectively. Amendments Nos. 335ZC, 335ZD and 335B are intended to rectify an omission from the Bill. The changes to fisheries legislation that they introduce are required as a consequence of the abolition of the NRA and the transfer of its fisheries function to the agency. The amendments provide that any provision in specified legislation which contains, or falls to be construed as containing, a reference to the National Rivers Authority, shall have effect on and after the transfer of responsibility to the agency as if it were a reference to the agency. They also provide for the replacement of certain references to the National Rivers Authority with references to the agency, and give the Minister or the Secretary of State the power to amend subordinate legislation by statutory instrument if it appears to them to be appropriate to do so for the purpose of, or in consequence of, the coming into force of this schedule.

The amendments to Schedule 12 are based on and follow closely the provisions of Schedule 17 to the Water Act 1989 which made similar changes to the same fisheries legislation in order to reflect the transfer of responsibility for fisheries matters from the water authorities to the National Rivers Authority. As a consequence of these amendments, some parts of Schedule 17 to the 1989 Act will become redundant. Amendments Nos. 399C and 402A provide for their repeal. These are essentially technical amendments. I beg to move.

On Question, amendment agreed to.

Clause 87, as amended, agreed to.

Lord Dixon-Smith moved Amendment No. 335ZBB: After Clause 87, insert the following new clause:

("Due diligence defence to charge of polluting waters

—(1) After subsection (6) of section 85 of the Water Resources Act 1991 there shall be inserted—

"(7) It shall be a defence for a person charged with an offence under this section to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence."

(2) After subsection (3) of section 4 of the Salmon and Freshwater Fisheries Act 1975 there shall be inserted—

"(4) It shall be a defence for a person charged with an offence under this section to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.'').

The noble Lord said: In moving this amendment, I should just point out that two of the amendments with which it is grouped comprise words which make the substance of this amendment. Under the Water Resources Act 1991 and also the Salmon and Freshwater Fisheries Act 1975, as developed by the courts, it is an absolute offence to pollute a water course. As a result, any individual or business, even if they behave with the utmost propriety, is guilty of a criminal offence if a discharge of pollutant is proved to have taken place from their property. The court may find that an absolute discharge is appropriate to the circumstances of a particular case. But a criminal record, with all that that implies, is unavoidable. The purpose of my amendment is to provide a defence of due diligence to make it possible to bring in a not guilty verdict in appropriate circumstances and so avoid the possibility of an unjust criminal record.

My noble friend the Minister is aware of the case law in this matter; I do not need to take up the Committee's time in rehearsing the details. However, I should point out that due diligence is an acceptable defence in another area of environmental law. The Environmental Protection Act of 1990 accepts such a defence at Section 33(7) and also in Section 34. These clauses deal with the control and disposal of waste. Due diligence must be proved to the satisfaction of the court and only when that has been done is a not guilty verdict possible.

Due diligence is an acceptable and proper defence in other countries. For instance, both Canada and Australia, which are Commonwealth countries with legal systems that are based on ours, accept that defence as a proper one in appropriate circumstances.

Finally, I shall refer to Schedule 13 to the Bill which deals with the pollution of rivers and coastal waters in Scotland. In new Section 30J(b) in line 31 on page 169 of the Bill it looks as though due diligence is an acceptable defence. I should tell the Cornmittee that I am advised that that may not be the intention of the Government at this point in the Bill. Perhaps my noble friend the Minister will clarify the point when he comes to wind up this short debate. This is a small but very important matter. I look forward to hearing what my noble friend the Minister will have to say about it. I beg to move.

5 p.m.

The Earl of Onslow

Having put my name to this amendment, obviously I wish to support it. As my noble friend on the Front Bench knows, the amendment arose from the case of a company called CPC which was convicted of a discharge which arose in the following circumstances. The company bought a factory dealing with dairy produce from another company. It went through all the due diligence and survey procedures. Some nine months earlier some piping had been installed by the subcontractor of another company and some failed glue had been used to join two pipes together. As a result, some 164 gallons of caustic soda went into the stream and killed several thousand fish. The company immediately summoned the NRA. Even when prosecuting, the NRA admitted that the company had behaved in an exemplary fashion. The company was given a conditional discharge—with payment of £20,000 costs.

If people who behave in such an exemplary fashion are treated in that way, one is asking for trouble. People are tempted to duck and weave and not act properly. If people are satisfied in their own minds that in all honesty and integrity they have done the best that they possibly can, it is very silly to prosecute them and throw the book at them when they come to ask for help to do the right thing.

I have gone to considerable trouble and taken advice in constructing the following scenario. A man buys a house by the River Test. He has it surveyed and it is given a clean structural survey. He decides to go fishing with his son. On the way back from fishing, they call in at the garage to buy a container of sulphuric acid in order to fill up batteries. By chance, two tiles fall off the roof. One falls on the head of his son and kills him. The other falls onto the glass jar of sulphuric acid and breaks it. The sulphuric acid tips into the River Test and several fish are killed.

Because all due diligence has been taken, there can be no possible prosecution on his causing the death of his son. However, along comes the NRA or PC Plod and charges him with killing fish. I accept that that is a carefully constructed argument to show ridicule. But it is extremely silly for us to pass laws which produce absolute offences for killing fish when a defence of due diligence can be raised for killing your children.

Lord Jenkin of Roding

I too support the amendment. I cannot compete with my noble friend Lord Onslow in a graphic description of the circumstances; but I shall quote one sentence from the judgment in the case: The fact that the appellants were unaware of the existence of the defect and could not be criticised for failing to discover it meant that the defect was latent rather than patent, so far as they were concerned, but this was not relevant in law, because the statute does not require either fault or knowledge to be proved against them". It seems to me that it is inherently repugnant for Parliament to create offences which, however careful the accused may have been and however little he may have known about the circumstances—or should or could have known about them—nevertheless he can still be held guilty of an offence.

My noble friend Lord Dixon-Smith gave an example from the sphere of environmental law in the Act from which he quoted. I have with me a whole fistful of examples from other legislation where a due diligence defence is allowed. It is not as though it is used in possible offences of less importance. In the Consumer Protection Act under the "general safety requirements": In any proceedings against any person for an offence under this section … it shall be a defence for that person to show … that he reasonably believed that the goods would not be used or consumed in the United Kingdom". That is one exception. I continue: it shall be a defence … to show that, at the time he supplied the goods or offered or agreed to supply them or exposed or possessed them for supply, he neither knew nor had reasonable grounds for believing that the goods failed to comply with the general safety requirement". After all, one can imagine that the consequences of supplying defective goods could possibly be very serious indeed and perhaps much more serious than killing a number of fish.

There is also the Trade Descriptions Act, where there is a "defence of mistake, accident, etc.": In any proceedings for an offence under this Act of supplying or offering to supply goods to which a false trade description is applied it shall be a defence for the person charged to prove that he did not know, and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods". Again, in the Weights and Measures Act 1985 if somebody takes "reasonable precautions and due diligence", that is a defence. Again, in the Food Safety Act 1990: it shall … be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control". Yet, when it comes to a question of accidentally spilling something into a river, in circumstances where one could not know or have known and therefore could not have taken any precautions against it, one can still be brought before the courts by the NRA (or, as it will be, the agency). That seems to me to offend against all canons of fair treatment. I do not believe that Parliament should pass laws in their defence. We seem to have let this matter go through in the Water Resources Act 1991. However, the case has now shown that it is no defence that one did not know anything about the matter.

I warmly support the amendment. I cannot help feeling that the innate sense of justice of my noble friend on the Front Bench will leave him no alternative but to accept the amendment.

Lord Crickhowell

Parliament may be doubtful about passing such legislation and the courts doubtful about enforcing it, but they have been doing so since at least 1846. They have done so for good reasons. It is true that in 1846 the case of Woodrow dealt with a matter other than the pollution of a river. It dealt with the adulteration of tobacco. At that time the courts held that: It is very true that in particular instances it may produce mischief, because an innocent man may suffer … but the public inconvenience would be much greater, if in every case the officers were obliged to prove knowledge. They would seldom be able to do so". My noble friend quoted a number of instances in which the defence is valid. But that is not so in a large number of other cases; for instance, driving while over the prescribed limit, driving without insurance or using a motor vehicle without an MOT.

If one's drink is laced without one's knowledge, or one is driving a car ignorant of the fact that it has not passed an MOT, one may be just as innocent as in the case described by my noble friend. But one does not have that defence. I cannot do better than to produce the other side of the argument and quote from a judgment of Lord Justice Salmon in the 1972 case of Alphacell v. Woodward, wherein he states: It is of the utmost public importance that our rivers should not be polluted. The risk of pollution, particularly from the vast and increasing number of riparian industries, is very great. The offences created by the 1951 Act seem to me to be prototypes of offences which 'are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty'. In the case of a minor pollution such as the present, when the justices find that there is no wrongful intention or negligence on the part of the defendant, a comparatively nominal fine will no doubt be imposed. This may be regarded as a not unfair hazard of carrying on a business which may cause pollution on the banks of a river. If this appeal succeeded and it were held to be the law that no conviction could be obtained under the 1951 Act unless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred to the relief of many riparian factory owners. As a result, many rivers which are now filthy would become filthier still and many rivers which are now clean would lose their cleanliness. The legislature no doubt recognised that as a matter of public policy this would be most unfortunate". I believe that the consequences of accepting this amendment would be most unfortunate. Due diligence would inevitably be raised in a large number of cases. It would depend upon the circumstances of each case, but it would place a major and almost intolerable burden on the regulatory body to obtain all the necessary evidence to take such cases. It would entail the regulator finding out and understanding a great deal about the operator's practices, site management, operation and matters of that kind. And tough though it may be, there is no doubt that the legislation as it stands—it has stood for much longer than since 1991—has had a salutary impact on the way in which management approaches the matter of running its factories and individuals on preventing pollution.

The NRA's prosecution policy was referred to. In the case of a serious pollution incident, the NRA can take the case if necessary to the Crown Court and go for the penalties that can be imposed there. In such cases as those referred to it has always been our practice to pursue the case in the magistrates' courts and put forward all the grounds for mitigation that are offered. But where there is a serious pollution incident causing heavy pollution of a river and a large loss of fish life, we have judged—rightly or wrongly—that such a case should result in prosecution. It comes into our category of most severe pollution incidents. In lesser cases, where damage is light, such a case would not be pursued anyway. But where a serious pollution incident occurs and where it may not be easy to establish exactly the degree of innocence in a complex system of a factory on the banks of a river, for example, it would impose an almost intolerable burden on the regulator if he had to overcome that defence.

My noble friends say that it would be justice; I understand that. But I am not sure that it would be justice to see a rapid deterioration in river quality or at best a halt to the considerable improvements that have been obtained because we have effective law that can be effectively enforced. Before the Committee accepts the amendment too readily, it must be recognised that from the point of view of the regulator it will impose a massive handicap. The example of Canada was cited. Has my noble friend inquired as to the extent of litigation in Canada as a consequence? I believe he will find that it is extremely heavy. My inquiries did not lead me to think that it would he an encouraging precedent if we want effective regulation.

The Earl of Onslow

Before my noble friend sits down—

5.15 p.m.

Lord Elton

Amendments Nos. 358ZA and 378BA in my name are grouped with Amendment No. 335ZBB. Perhaps I may interpolate briefly because I may say what my noble friend Lord Onslow was about to say. I tabled the amendments in ignorance of the amendment to which he and my noble friend spoke and therefore I want only to touch the edge of the matter and respond to what my noble friend Lord Crickhowell said. I am not sure that the difficulty that he sees is as real as he believes it to be.

My noble friend said that the result of accepting the amendment would be to place upon the regulator the duty to prove knowledge. But the defence proposed does not require that proof, as I understand it. I am not a lawyer and I hope that somebody who is a lawyer will correct me if I am wrong. It is proposed that the onus of proof should lie with the defendant to show that he did everything in his power to prevent such an occurrence. That does not mean saying, "I am sorry, I did not know about it", which is the defence which my noble friend Lord Crickhowell believes would lead to these calamitous consequences.

Like my noble friend, I should like to avoid those calamitous consequences. I do not believe that in order to do so it is necessary to saddle with a criminal conviction a person who, to all moral appearances, is entirely guiltless. My noble friend says that mitigation would be taken into consideration and only a nominal fine imposed. But that does not mitigate the fact that the person in question holds a criminal record if not for the rest of his life, until the record expires after many years, which will prevent him from, among other things, visiting the United States. If my noble friends and I have this matter right, I hope that my noble friend Lord Ullswater will look kindly on the amendment.

Baroness Hamwee

Grouped with Amendment No. 335ZBB are Amendments Nos. 359, 374 and 378 in the names of my noble friend Lord Beaumont of Whitley and myself. The thrust of our amendments is similar to the others spoken to, though I tabled them very much in a spirit of inquiry. I felt that this was a matter of public policy which needed to be debated. Apart from anything else I am aware that Amendment No. 359 in particular contains considerable drafting defects.

I was concerned not only about the potential criminal convictions that would follow, but also—I am not sure that it has been mentioned—that as a result of conviction under some of the areas referred to in this group of amendments, the person convicted may be declared not to be a fit and proper person, for instance, to hold a waste management licence or to carry waste. The implications therefore would be even wider—and also narrower—than perhaps have been already referred to.

I am grateful to the noble Lord, Lord Crickhowell, who himself, and in quoting Lord Justice Salmon, expressed what concerned me—that is, that as a matter of public policy the balance should be as the legislation currently provides and as the Bill intends to provide. In an area where knowledge and technology are advancing rapidly, I am concerned among other things that somebody may say, "I did everything I could"; but had they inquired a little harder, because the world has advanced, it may have been possible to prevent the polluting incident.

This may be a minor point, but I am concerned also about the term "due diligence" acquiring a specific meaning. For instance, one undertakes due diligence in acquiring a company and investigates everything there is to be known about that company. It is perhaps becoming a term of art which may not now be appropriate to be used in legislation. But that is a minor point.

Lord Peyton of Yeovil

Lest it be thought that my noble friend Lord Crickhowell has no support on this side of the Committee, I should very much like to say that I do support him. We have said very clearly that we want to clean up our rivers, which are in a disgraceful state. Unless we stick to a very tough line on that, the burden on the National Rivers Authority or its successor will be very great, very complicated and very difficult to carry.

The Earl of Onslow

No one is disagreeing for one tiny moment with the noble Lord, Lord Peyton. I agree word for word with what he says. But an important point was raised by the noble Lord, Lord Elton, when he picked up my noble friend Lord Crickhowell quoting the very aptly named Lord Justice Salmon in a fish waters case saying that someone has to prove intent. It is the other way round. Provided the person who is accused can show beyond all reasonable doubt that he took every reasonable and proper precaution and did nothing criminal at all, it seems fundamentally wrong that he should have a criminal charge falling around his neck. There is a difference between proving intent on the NRA's part and proving in defence that one took every reasonable and proper precaution.

The Minister of State, Department of the Environment (Viscount Ullswater)

I approach these amendments with some trepidation because the law is quite difficult in this area—I would be the first to appreciate that—and I understand the great concern that my noble friends have indicated by putting down what I would consider to be a series of amendments all to do with due diligence. Before I commence I should like to pay tribute to my noble friend Lord Crickhowell, because he brings with him a great deal of experience in these matters. The noble Baroness, Lady Hamwee, indicated that some form of public policy is involved. I should like to try to demonstrate to the Committee the requirement for that policy.

These amendments seek to add to Section 85 of the Water Resources Act 1991, to a similar provision of the Salmon and Freshwater Fisheries Act 1975, to Section 23 of the Environmental Protection Act 1990 and to Section 118 of the Water Industry Act 1991 the defence of due diligence. Section 85 of the Water Resources Act 1991 makes it a criminal offence for a person to cause or knowingly permit poisonous, noxious or polluting matter to enter controlled waters. It is probably the most important and significant provision in the armoury of the NRA's prosecution powers and I understand that it has been used in more than 2,000 cases since 1989, in which time, and perhaps partly as a result, there has been a halving in the number of serious pollution incidents involving controlled waters. Section 23 of the Environmental Protection Act 1990 creates the offences used to underpin the enforcement of the systems of integrated pollution control and local authority air pollution control in Part I of that Act.

Very importantly, the relationship between Section 85 of the Water Resources Act and the defences provided by that Act has recently been considered by the Judicial Committee of your Lordships' House in the case of NRA v. Yorkshire Water Services Limited. In that case the chemical should not have been put in the company's sewers and there was little it could have done to prevent it passing through and being discharged from its works. The opinion of their Lordships, delivered by my noble and learned friend the Lord Chancellor, was that the water company had caused the release of a chemical into controlled waters but, on the facts of the case, had available to it the defence now contained in Section 87(2).

The NRA, like any other prosecuting authority, must take full account of the judgments of the court in applying and adapting its prosecution policy and I know that that has already been done as regards the Yorkshire Water case. However, the practical effects of these amendments would be to place a very real additional burden on the prosecution—presently the NRA and HMIP and the procurator fiscal in Scotland—in areas where it is already difficult to collect evidence. Prosecutors would not only have to prove that a polluter had caused pollution or knowingly permitted it, which I understand to mean a failure to prevent the pollution accompanied by knowledge.

In practice, the prosecutor, as well as having to be able to show that none of the existing defences applied, would in addition have to adduce sufficient evidence to overcome the due diligence defence. To my noble friend Lord Elton, who spoke to his amendment, I would say that the practical result of the amendment moved by my noble friend is that the prosecution would have to know enough and prove enough to be able to overcome the defence. In water pollution cases and cases involving prescribed processes the difficulties of doing so are enormous. I am sure your Lordships will wish to take careful note of what my noble friend Lord Crickhowell has had to say on that point. It would, I am sure, be echoed by those charged with the task of bringing prosecutions at HMIP.

I believe that my noble friend Lord Crickhowell put things into perspective. It is a question of balance between the need for effective enforcement of pollution offences and the rights of defendants. We should be careful not to make the job of the prosecutor so difficult in these cases that in effect they can seldom be brought. At the end of the day prosecutions are a necessary underpinning of an effective system of enforcement.

My noble friend Lord Onslow referred to other cases where, perhaps as a result of the availability of substantial mitigation, very low penalties were imposed by the courts in cases brought by the NRA. Few prosecution agencies bring cases for the sake of it and the general level of penalties in particular categories of case is certainly one factor which they will take into account in deciding whether to bring a prosecution. One should, however, be careful before drawing too many conclusions from the facts, as opposed to the law, of an individual case.

My noble friend Lord Onslow brought to the attention of the Committee a scenario which I do not believe really helped us in this matter. He would need to look very much to the state of his roof, as he described it, and he ought to check his liability insurance in case he faces a civil action brought on behalf of his deceased son. As to the spillage of the acid which he talked about, as always the NRA would have to consider carefully whether it had sufficient evidence to justify criminal proceedings and whether the public interest required such proceedings. I do not believe that the example given by my noble friend is any argument at all for imposing a due diligence defence in all water pollution cases.

The Earl of Onslow

My noble friend is not arguing, is he, that the due diligence of the son being killed by the tile is a perfectly runnable defence? If I had not looked at my roof, if I knew that it had tile rot and that the thing was likely to fall down, negligence comes into it. If there is no negligence nothing can happen to me because of my son being killed. But it can if I kill fish. That must be wrong.

Viscount Ullswater

I do not want to prolong the argument as to what is right in the case of my noble friend's roof and whether or not he is liable there. I have sought to demonstrate that it should not produce a defence of due diligence for the pollution of water.

My noble friend Lord Dixon-Smith has also drawn attention to the fact that a due diligence offence is available in other legislative provisions such as in the waste provisions in Part II of the Environmental Protection Act 1990. The facts of each case are different and, if one takes into account the defence to which I have referred in the Water Resources Act 1991, the contrast is not as great as may appear.

I believe that my noble friend Lord Crickhowell indicated that in most instances when a pollution incident takes place in water it is not possible for it to be remedied. The pollution incident has taken place and the destruction that follows is also very difficult to ameliorate whereas, as regards waste, if pollution takes place, there is very often an opportunity to ameliorate it before it causes any damage to water. There is a distinction which should be drawn between those two types of pollution incident.

We are advised that the amendments proposed will place very real practical difficulties in the path of effective enforcement of some of the most important provisions of environmental law. I do not believe that the amendments are necessary in order to address all the concerns expressed by those proposing them. Therefore, I hope that my noble friend will consider withdrawing his amendment.

5.30 p.m.

Lord Dixon-Smith

I am grateful to those Members of the Committee who have taken part in what has been an absolutely fascinating debate. It seems to me that there are quite a number of levels of judgment in this matter. Nobody is quarrelling with the policy that any pollution of watercourses should be dealt with in the most rigorous and extreme way. That is not in question. It would be for the defendant to prove, if he can, that he has behaved with absolute propriety.

We should not attempt to second-guess the judgment of the court on a particular case. Each case is separate and its facts will be revealed in court. If the regulators are not prepared to make their case before the court then there is a problem. The third judgment that we have to make here is perhaps the more significant one. We are having to judge between the convenience and ease of the regulators and the possibility of an unjust judgment on a man who has behaved with absolute propriety and who could have done nothing about the circumstances in which he found himself. It was in that spirit that I moved the amendment. I have heard what my noble friend the Minister has said, but I cannot say that I am enthused by his reply. I shall consider what he has said and may need to come back to this matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 335ZBC not moved.]

Schedule 12 [Minor amendments relating to fisheries]:

Earl Howe moved Amendment No. 335ZC:

Page 164, line 2, at end insert:

("Interpretation

A1. In this Schedule— local statutory provision" means—

1. (a) a provision of a local Act (including an Act confirming a provisional order);
2. (b) a provision of so much of any public general Act as has effect with respect to particular persons or works or with respect to particular provisions falling within any paragraph of this definition;
3. (c) a provision of an instrument made under any provision falling within paragraph (a) or (b) above;
4. (d) a provision of any other instrument which is in the nature of a local enactment;

• "the Minister" means the Minister of Agriculture, Fisheries and Food;
• "subordinate legislation" has the same meaning as in the Interpretation Act 1978;
• "the transfer date" has the same meaning as in Part I of this Act.

General modifications of references to the National Rivers Authority

A2.—(1) Subject to—

1. (a) the following provisions of this Schedule,
2. (b) the provisions of sections 84 to 86 of this Act, and
3. (c) any repeal made by this Act,

any provision to which this paragraph applies which contains, or falls to be construed as containing, a reference (however framed and whether or not in relation to an area) to the National Rivers Authority shall have effect on and after the transfer date as if that reference were a reference to the Agency.

(2) Sub-paragraph (1) above is subject to paragraph 1(2) (a) of Schedule 17 to the Water Act 1989 (references in certain local statutory provisions or subordinate legislation to the area of a particular water authority to have effect as references to the area which, immediately before the transfer date within the meaning of that Act, was the area of that authority for the purposes of their functions relating to fisheries).

(3) Subject as mentioned in sub-paragraph (1) above, any provision to which this paragraph applies which contains, or falls to be construed as containing, a reference (however framed) to the whole area in relation to which the National Rivers Authority carries out its functions in relation to fisheries shall have effect on and after the transfer date as if that reference were a reference to the whole area in relation to which the Agency carries out its functions relating to fisheries.

(4) The provisions to which this paragraph applies are the provisions of—

1. (a) the Sea Fisheries Regulation Act 1966;
2. (b) the Salmon and Freshwater Fisheries Act 1975; and
3. (c) any local statutory provision or subordinate legislation which is in force immediately before the transfer date and—
1. (i) relates to the carrying out by the National Rivers Authority of any function relating to fisheries; or
2. (ii) in the case of subordinate legislation, was made by virtue of any provision to which this paragraph applies or under the Diseases of Fish Act 1937.

(5) The modifications made by this paragraph shall be subject to any power by subordinate legislation to revoke or amend any provision to which this paragraph applies; and, accordingly, any such power, including the powers conferred by section 102 of this Act and paragraph A3 below, shall be exercisable so as to exclude the operation of this paragraph in relation to the provisions in relation to which the power is conferred.

Power to amend subordinate legislation etc.

A3.—(1) If it appears to the Minister or the Secretary of State to be appropriate to do so for the purposes of, or in consequence of, the coming into force of any provision of this Schedule, he may by order revoke or amend any subordinate legislation.

(2) An order under this paragraph may—

1. (a) make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and
2. (b) contain such supplemental, consequential and transitional provision as the Minister or the Secretary of State considers appropriate.

(3) The power conferred by virtue of this paragraph in relation to subordinate legislation made under any enactment shall be without prejudice to any other power to revoke or amend subordinate legislation made under that enactment, but—

1. (a) no requirement imposed with respect to the exercise of any such other power shall apply in relation to any revocation or amendment of that legislation by an order under this paragraph; and
2. (b) the power to make an order under this paragraph shall be exercisable (instead of in accordance with any such requirement) by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

The Diseases of Fish Act 1937

A4.—(1) Subject to sub-paragraph (2) below, in the Diseases of Fish Act 1937—

1. (a) any reference which to any extent is, or falls to be construed as, a reference to the National Rivers Authority shall have effect, in relation to the area which by virtue of section 6(7) of this Act is the area in relation to which the Agency carries out functions under that Act, as a reference to the Agency; and
2. (b) references to an area (including references which fall to be construed as references to the area which by virtue of subsection (6) of section 2 of the Water Resources Act 1991 is the area in relation to which the National Rivers Authority carries out functions under the said Act of 1937), in relation to the Agency, shall have effect as references to the area described in paragraph (a) above.

(2) In section 8(3) of the said Act of 1937 (offences in relation to the Esk) for the words "National Rivers Authority" there shall be substituted the words "Environment Agency".

(3) Nothing in this paragraph or in that Act shall authorise the Agency to take legal proceedings in Scotland in respect of any offence.

The Sea Fisheries Regulation Act 1966

A5,—(1) The provisions of section I of the Sea Fisheries Regulation Act 1966 (establishment of fisheries committees) which provide that an order under that section modifying a previous such order is to be made only on such an application and after such consultation as is mentioned in that section shall not apply to an order under that section which contains a statement that the only provision made by the order is provision which appears to the Minister making the order to be appropriate in consequence of any of the provisions of this Act.

(2) In section 2(2) of that Act (constitution of local fisheries committee) for the words "the National Rivers Authority" there shall be substituted the words "the Environment Agency".

(3) In section 18(3) of that Act (provision where a water authority or harbour authority have the powers of a local fisheries committee) for the words "National Rivers Authority)" there shall be substituted the words "Environment Agency)".

The Sea Fish (Conservation) Act 1967

A6. In section 18(1) of the Sea Fish (Conservation) Act 1967 (enforcement of orders relating to salmon and migratory trout)—

1. (a) for the words "subsection (6) of section 2 of the Water Resources Act 1991" there shall be substituted the words "subsection (7) of section 6 of the Environment Act 1995"; and
2. (b) for the words "the National Rivers Authority" there shall be substituted the words "the Environment Agency".").

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

On Question, amendment agreed to.

Earl Howe moved Amendment No. 335ZD:

Page 164, line 7, at end insert: (" . In section 6(3) of that Act (definition of "unauthorised fixed engine") in paragraph (d) for the words "the National Rivers Authority" there shall be substituted the words "the Agency".").

On Question, amendment agreed to.

Viscount Mills moved Amendment No. 335A:

Page 165, line 7, at end insert: (" . In Section 14 of that Act there shall be added after the word "mill" so often as it appears the words "or fish farm".").

The noble Viscount said: The noble Lord, Lord Moran, regrets that he cannot be here today due to illness. He telephoned me this morning to ask me to propose Amendment No. 335A on his behalf. I am very glad to do so.

There has been a proliferation of fish farms in England and Wales during the past 20 years, to raise both rainbow trout for table consumption and brown trout for stocking. Many fish farms are situated adjacent to rivers containing wild populations of trout and also salmon and sea-trout. Many fish farms also take advantage of leats to obtain their water supply; both old leats which formerly served mills and new purpose-built ones.

Both the NRA and riparian owners have recorded instances where wild fish have entered these leats and have become entrapped. That is a problem which can be avoided if screens are inserted to prevent fish entering into the leat. However, at present, Section 14 of the Salmon and Freshwater Fisheries Act 1975 allows the NRA to compel only the owners of mill leats or conduits and artificial channels used for the purposes of a water or canal undertaking to install screens to prevent such problems. No such powers exist in relation to fish farms.

At the time when the 1975 Act was passed there were relatively few fish farms. Now that many more exist there is an urgent need to amend Section 14 to include fish farms. The need for such provisions has been recognised for some considerable time and there can be no doubt that the amendment of the noble Lord Lord Moran, would help to protect wild salmonid stocks.

However, I should also like to highlight two further issues as regards this amendment. First, concerning the timing of its introduction, there needs to be a reasonable "lead-in" time before any new regulations are enforced. The new agency should be allowed time to identify the design and location of any such gratings and time to allow fish farming interests to make the necessary preparations for their installation.

The second and possibly more important issue concerns an additional reason for gratings at the inlets and outlets from fish farms; namely, to keep farmed fish in as well as to keep wild fish out. The escape of farmed fish, especially of rainbow trout, is of considerable concern to both the NRA and riparian owners. Farmed fish in the wild may not only disturb the natural ecological balance, but also they are regarded by many anglers as being a nuisance.

I fear that the amendment, as drafted, may not overcome that problem because, while screens of a particular size across outfalls will prevent relatively large fish from migrating upstream into the farm, these would not prevent small juvenile farmed fish from migrating downstream via the same route.

Can my noble friend the Minister confirm whether the amendment as presently drafted will meet my concern? If not, will he possibly consider a modification to the amendment to overcome this additional problem which I have outlined? However, even without such a modification, this amendment will go a very long way towards protecting wild salmonid stocks. I beg to move.

Lord Stanley of Alderley

Before my noble friend replies, perhaps I may point out that there is an urgent need to provide productive work in the countryside and, for better or worse, fish farmers do that. I speak as a fisherman rather than as a fish farmer. When my noble friend replies, I hope that he will make quite sure that costly restrictions and practices are not placed on fish farmers.

Earl Howe

The amendment spoken to by my noble friend Lord Mills would have the effect of requiring the intakes and outfalls of fish farms to be fitted with gratings to prevent salmon and migratory trout from becoming trapped.

The fitting of gratings to fish farms is something that has been recommended by the Government's own Salmon Advisory Committee. We do, therefore, have some sympathy with what my noble friend has proposed. Nevertheless, it is clear, as I am sure he will acknowledge, that such a requirement would impose a financial burden on fish farmers, both in terms of the initial cost of buying and installing the gratings and of the ongoing cost of maintaining them and keeping them free from debris. I note the concern of my noble friend Lord Stanley on that issue. It is a point that cannot be ignored. Moreover, the amendment would have the effect of applying the requirement immediately to all fish farms. That would clearly be unreasonable.

The Government would therefore like to consider the amendment in more depth and, if appropriate, will bring forward a suitable amendment in due course. I should like to reassure my noble friend Lord Mills that, in considering the whole issue, we shall bear in mind his suggestion that gratings on outfalls should equally be capable of preventing the escape of farmed fish. Meanwhile, I hope that my noble friend will feel able to withdraw his amendment.

Lord Crickhowell

I have listened with some sympathy to the argument that we must not impose unreasonable costs on fish farmers. However, it is relevant to point out that if fish escape because the proper grilles are not in place, costs and losses can arise for others. Not very long ago, as chairman of the National Rivers Authority, I paid a visit to the West Country. A special meeting was convened of local hoteliers and others interested in the tourist trade who expressed their serious concern about the impact of escaping fish on the business of hotels which concentrated on fishing. People visited those hotels in order to fish for wild trout, but were faced with rivers filled with trout that had been bred. That was not what they were after. It was put to me that that was having a detrimental and damaging impact on the tourist industry in that valley.

Again, it is a matter of balancing different interests. When my noble friend considers the matter again, I hope that he will realise that we are not talking only about burdens, but are addressing a real problem about which other people are expressing a good deal of concern.

Earl Howe

I take on board my noble friend's points. We shall consider that part of the equation very carefully. As my noble friend said, it is a matter of balancing the different interests.

Viscount Mills

I am grateful to my noble friend the Minister and am encouraged by what he has said. I look forward to seeing the Government's amendment at a later stage. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 335B:

Page 165, line 36, at end insert: (" .—(1) In section 35 of that Act (power to require production of fishing licences) in subsection (3), for the words "the National Rivers Authority" there shall be substituted the words "the Agency".

(2) For subsection (4) of that section (definition of "the appropriate office of the National Rivers Authority") there shall be substituted—

"(4) In subsection (3) above, "the appropriate office of the Agency" means—

1. (a) in a case where the person requiring the production of the licence or other authority specifies a particular office of the Agency for its production, that office; and
2. (b) in any other case, any office of the Agency;

and for the purposes of that subsection where a licence or other authority which any person has been required to produce is sent by post to an office of the Agency that licence or other authority shall be treated as produced by that person at that office."

. In paragraph 1 of Schedule 1 to that Act (close seasons and close times) for the words "the National Rivers Authority" there shall be substituted the words "the Agency".

The Diseases of Fish Act 1983

. In section 9(1) (d) of the Diseases of Fish Act 1983 (disclosure of information for the purpose of enabling the National Rivers Authority to carry out any of its functions) for the words "the National Rivers Authority" there shall be substituted the words "the Environment Agency".

The Salmon Act 1986

. In section 37(3) of the Salmon Act 1986 (byelaws requiring consent of the National Rivers Authority) for the words "the National Rivers Authority has" there shall be substituted the words "the Environment Agency has".").

On Question, amendment agreed to.

Schedule 12, as amended, agreed to.

Clause 88 [Control of pollution water in Scotland]:

Viscount Ullswater moved Amendment No. 335C:

Page 96, line 22, leave out ("(which amends the control of pollution of rivers and coastal waters)") and insert ("to this Act (which amends the Control of Pollution Act 1974 as respects the control of pollution of rivers and coastal waters in Scotland)").

The noble Viscount said: My noble friend Lord Howe spoke to this amendment with Amendment No. 335ZBA. I beg to move.

On Question, amendment agreed to.

Clause 88, as amended, agreed to.

Schedule 13 agreed to.

Clause 89 [Statutory nuisances: Scotland]:

Viscount Ullswater moved Amendment No. 335D:

Page 96, line 24, after ("Act") insert ("(which makes provision with respect to statutory nuisances in Scotland)").

The noble Viscount said: Again, my noble friend Lord Howe spoke to this amendment with Amendment No. 335ZBA. I beg to move.

On Question, amendment agreed to.

Clause 89, as amended, agreed to.

Schedule 14 agreed to.

5.45 p.m.

Clause 90 [Powers of enforcing authorities and persons authorised by them]:

Baroness Hilton of Eggardon moved Amendment No. 335E:

Page 97, line 15, at end insert ("including carrying out experimental borings or other works on the premises and installing and keeping monitoring and other apparatus there.").

The noble Baroness said: This is an exploratory group of amendments, dealing with other legislation that will be amended by this Bill, and asking for explanations about why, in some cases, powers have been reduced. In speaking to Amendment No. 335E, I should like to speak also to Amendments Nos. 336C, 338A, 342ZB, 342ZC, 342ZD and 401ZA.

The first amendment probes the variation from the power contained in the Water Resources Act 1991, which has been disapplied in this legislation. It suggests that when entering premises there should be a power to examine and investigate what are possibly polluted areas and waters. It suggests that, in addition to the power to examine and investigate, there should also be a power to carry out experimental borings or other works on the premises, as provided under the Water Resources Act. We therefore wondered why that power has not been transferred into the current legislation.

Similarly, there are powers under Amendments Nos. 342ZB, 342ZC and 342ZD which relate to the provisions of the Environmental Protection Act. The amendments attempt to clear up some confusion which might arise. As drafted, Clause 92(2) defines the offence as failing, to comply with any requirement imposed under section 90".

But Clause 90 lists the "powers" of enforcing authorities and those authorised by them. The other word used is "requirements". The amendment is an attempt to refer to both and to make clear what is meant by "requirements".

Amendment No. 401ZA suggests that it might be possible to absorb the statutory nuisance entry power into the consolidated entry power that is given by this legislation.

In general, the group of amendments is intended to explore why the current powers of entry and examination of possible pollution have been reduced from those contained in the Water Resources Act. This is also an attempt to clarify references in this part of the Bill and to make them logically consistent with those in other parts of the Bill. I beg to move.

Viscount Ullswater

Amendment No. 335E, which has been moved by the noble Baroness, Lady Hilton, seeks to include in Clause 90(2) powers for an enforcing authority to carry out experimental borings or other works on relevant premises—

Lord Williams of Elvel

I am sorry to interrupt the Minister at such an early stage of his reply, but I understand that this group of amendments contains Amendments Nos. 337 and 338. I do not know whether the noble Lord in whose name they stand wishes to speak to them before the Minister replies—

Lord Crickhowell

I do not propose to move those amendments.

Viscount Ullswater

I thank the noble Lord, Lord Williams, for eliciting that fact.

Amendment No. 335E seeks to include in Clause 90(2) powers for an enforcing authority to carry out experimental borings or other works on relevant premises and to install and keep monitoring or other apparatus there. Such a power already exists under Clause 90(3), although it is purposely limited to the purposes of the function under Clause 90(1) (a)—determining whether any provision of the relevant pollution control enactments is being, or has been, complied with—and is not available for the general purpose of carrying out one of the authority's pollution control functions or determining whether, or how, such a function should be carried out.

This provision mirrors Section 169(2) of the Water Resources Act 1991. We believe that Clause 90(3) as it stands is what an enforcing authority needs: it can install monitoring equipment, for example, to determine whether the pollution control legislation is being complied with, and make borings to discover whether the legislation has previously been complied with. I cannot foresee any circumstances in which this power as it stands would be inadequate to meet the needs of an enforcing authority. It is extremely important that enforcing authorities should have sufficient powers of entry to carry out their pollution control functions and, where appropriate, enforce the relevant pollution control legislation. But it is also important that we do not give the authorities wider powers than they really need to carry out their functions effectively. Bearing in mind the potentially wide application of the powers—for example, to residential premises—we have not sought to extend them beyond the scope of existing legislation unless we have felt able to make out a good case for doing so, based on the necessary enforcement powers, to make the enforcing authorities effective. The amendment would indeed extend the authorities' powers more widely than they need, and therefore I ask the noble Baroness to withdraw the amendment.

I understand that Amendment No. 336C is also grouped with these amendments. I dare say that the noble Lord, Lord Carmichael, will want to address that amendment in particular.

I turn to Amendments Nos. 342ZB, 342ZC and 342ZD. They seek to expand Clause 92 to ensure that all the powers mentioned in Clause 90(2) are covered by the descriptions of the offences set out in Clause 92(2). I believe however that those amendments are unnecessary since the descriptions of the offences used in Clause 92 already cover the wider applications which the noble Baroness is concerned should be included—that is to say, a "requirement" of an enforcing authority should include a "direction" by it; "information" under Clause 92(2) (b) should include "records" and other information which an authorised person may reasonably require to be provided; and "inspection" in this clause is also of wide effect. I hope with that reassurance the noble Baroness will feel able to 'withdraw the amendment.

Baroness Hilton of Eggardon

I am grateful for that description which I shall read carefully. On the face of it, it appears reassuring, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Ullswater moved Amendment No. 336:

Page 98, line 19, leave out ("the purpose mentioned in subsection (1) (a) or (b)") and insert ("a purpose falling within any paragraph of subsection (1)").

The noble Viscount said: I should like to speak also to Amendments Nos. 337A, 339, 340, 341 and 342. The amendments are minor and technical. They correct a number of minor errors in Clause 90 and Schedule 15. I could indicate what each of them does, but it may be for the convenience of the Committee if I just beg to move.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 336A:

Page 98, line 35, after ("least") insert ("twenty-four hours notice in the case of residential premises or").

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 336B, 341A and 342ZA. I am concerned particularly with Amendments Nos. 336A and 336B which are both to the same effect. Their purpose is to question the need for a change to the existing regulations and law from the status quo with regard to residential premises. Clause 90 does not just provide a power of entry, it includes what can be done after gaining entry. It replaces wholesale similar powers of entry in Section 17 of the Environmental Protection Act 1990. The power will apply to local authorities administering Part I of the Environmental Protection Act and the new contaminated land regime.

On the whole, Clause 90 is a fairly faithful re-enactment. However, for residential premises at least seven days' notice prior to exercising the right of entry is required under Clause 90(4) unless it is an emergency. Under the statutory nuisance power, only 24 hours' notice for residential premises is required (Schedule 3, paragraph 2(2) of the Environmental Protection Act 1990). Similarly, only 24 hours' notice is required currently under Schedule 2 paragraph 3 of the Radioactive Substances Act 1993.

Authorities will continue to have the power to inspect to establish whether harm or pollution of controlled waters is likely or occurring. At the moment that will tend to be detected by sight or smell. A power of entry coupled with a power to examine and investigate may be sufficient, but the first amendment probes why the power under the Water Resources Act has been disapplied in relation to water pollution control functions. That is: to carry out experimental borings or other works on those premises and to install and keep monitoring and other apparatus there".

Were that power in existence, it might prove useful in dealing with contaminated land. There is a concern—it is not too far-fetched to think of this—that if a residential occupier is given seven days' rather than 24 hours' notice that may provide the occupier with more time than was previously the case to destroy evidence or remove articles or substances to other premises.

The second amendment probes why that change has been made. These are important amendments, and I hope that the Minister will give a satisfactory reply. I beg to move.

Lord Crickhowell

I wish to speak to Amendments Nos. 341A, and 342ZA which raises a point which is rather curiously grouped in this set of amendments. All the others deal with powers of entry, and that amendment deals with something rather different. The first amendment is a simple but technical one. If the relevant power to which we are referring means Clause 90, then, on the face of it, an investigation into a possible pollution offence cannot begin until someone can be shown an identity card.

Unless the provision in the Bill is altered in the manner that I propose, I am advised that the agency would need to rely upon a 1951 case (Groves v. Eastern Gas Board). That case held that words to the effect of "subject to the production when called on of such a document" could be read into a similar power. If that is so, we should not have to rely on case law; we should make the matter clear on the face of the Bill. I hope that my noble friend will clarify that point.

Amendment No. 342ZA deals with a different point. Having entered the premises, the agency's representative might find articles or substances which he had reasonable cause to believe were causing imminent danger of serious pollution of the environment or serious harm to human health. In that case the representative is entitled to seize the article or substance and render it harmless. The amendment seeks to enable the agency to recover the reasonable costs of such work from the person who caused the problem to exist in the first place.

Perhaps I may give the Committee an example. Let us assume that there was a factory closed for a public holiday and that there was a leaking drum of fuming waste adjacent to a surface water drain. That is not an unusual situation with which representatives of the NRA have to deal at present. In that case the agency would have to deal with the emergency containment; it would have to take the article to some safe place; it would have to deal with it; and it would undoubtedly incur costs. It seems unreasonable that those costs should fall on the agency. There should be some power to ensure that they can be recovered from the person responsible in the first place. That is the object of the amendment.

Viscount Ullswater

Clause 90(4) provides that where a person authorised by an enforcing authority needs to enter residential premises, seven days' notice of that entry should be given to the occupier of the premises except in an emergency. Amendments Nos. 336A and 336B seek to amend the requirement for seven days' notice and provide for 24 hours' notice only.

I consider it important that those enforcing authorities should have the power to enter residential premises if necessary in the course of performing their functions, but I consider it equally necessary that the Bill provide some safeguards for residential occupiers of such premises. The provision for seven days' notice, which is one such safeguard, mirrors part of the existing powers of entry legislation—namely, paragraph 1(2) of Schedule 20 to the Water Resources Act 1991—and reflects others, such as the Radioactive Substances Act 1993.

In the event of an emergency, authorised persons have powers to enter any premises immediately and, if necessary, by force. As regards non-residential premises, they may enter at any reasonable time. In some cases we recognise that authorised persons may need to enter premises in residential occupation and we have provided for that. However, I believe that it is vital that this Bill does not provide fewer safeguards than any of the existing enactments for people who occupy such premises. While of course I appreciate the noble Lord's desire to ensure that the enforcing authorities have sufficient powers of entry to operate effectively, I am not convinced of the need to decrease the notice provided to residents. I hope that the noble Lord is persuaded to withdraw his amendment.

Paragraph 3 of Schedule 15 requires a person authorised to exercise powers of entry, including a person designated to authorise these powers in accordance with a magistrate's warrant, to produce evidence of his designation and authority before he exercises the power. Amendment No. 341A seeks to amend this provision so that the designated person need only produce this evidence if he is required to do so.

This provision replicates one in the Water Resources Act 1991 under which the NRA operates (Schedule 20, paragraph 3) which we think it is reasonable should apply to the powers of entry for all enforcing authorities; that is, both agencies and local authorities as relevant. The requirement for designated persons to show evidence of their authority to enter the premises is another reasonable safeguard for the occupiers of residential premises. I do not think that the agencies should lag behind the utility companies in not producing this evidence unless asked to do so.

In line with the existing legislation, we have taken care to make impersonation of a person who is authorised to exercise powers of entry an offence. I see no reason why we should make it easier for anyone impersonating such a person by changing the legislation and not requiring legitimate agents of the enforcing authorities to establish their credentials from the beginning. I would be very surprised if the existing provisions in paragraph 3 of Schedule 20 to the Water Resources Act have caused the NRA difficulties in practice. Therefore, I ask my noble friends to withdraw their amendment.

Finally, I have some sympathy with the intention behind Amendment No. 342ZA. However, I am afraid that I cannot see how the process proposed would work fairly and effectively in practice. The amendment deals with incidents where a person authorised by the environment agency has rendered harmless an article or substance which had been a cause of imminent danger of serious pollution to the environment or serious harm to human health, as identified in the example given by my noble friend. In such circumstances, the amendment would entitle the agency to recover its expenses from any person who caused or knowingly permitted the article or substance to be the cause of such imminent danger.

The environment agency has powers under Clauses 39 and 40 to make charging schemes in order to recover its charges in respect of environmental and other licences. Under Clause 35 it may also charge fees in respect of work done as a result of a request for advice or assistance in connection with environmental licences. But not all costs will be recovered through charges; and I am sure that my noble friends would agree that the ability of the agency to act in the kind of cases that we are discussing should not depend upon the prospects of recovery.

None of the existing organisations has a power equivalent to the one proposed by this amendment. Clause 91 repeats most of Section 70 of the Environmental Protection Act 1990. It is an "emergency" type power where the priority would inevitably be prompt action. Where a pollution offence has actually been committed, and where the polluter is convicted, a prosecution can be brought; the prosecution's costs may be recovered and a fine may be levied on the offender. The issue raised by this amendment is whether the possibility of recovering costs in the very limited number of cases which might be captured by the amendment will further reduce the likelihood of such incidents and enhance the ability of the agency to act effectively. My feeling is that, on balance, it would not but it would increase the risks of complex litigation. With that explanation, I hope that my noble friend feels able to withdraw his amendment.

6 p.m.

Lord Carmichael of Kelvingrove

I am disappointed with the Minister's reply. It leaves many issues unanswered; for instance, the definition of "emergency". I accept that in an emergency authorised people would have powers of entry, but I can foresee litigation about whether there was an emergency.

While listening to the debate I recollected a Bill that went through this House some years ago—the Scottish salmon Bill. Under the provisions of that Bill the bailiffs had power on mere suspicion to blow open the boot of a car or to blow entry into a house. That was merely in connection with a few stolen salmon, but in this Bill we are talking about a serious threat. The authority must wait for 24 hours, and I believe that there is an imbalance. The salmon Bill is a good comparison and I shall check its powers—

Viscount Ullswater

Perhaps I may draw the noble Lord's attention to the definition of "emergency" in Clause 90(13).

Lord Crickhowell

I listened carefully to what my noble friend said about Amendment No. 341A and I am content for the time being. He referred me to various other parts of the legislation and I shall wish to look at those before deciding whether to return to the matter.

I find the Government's attitude towards Amendment No. 342ZA most curious. When I visit the Department of the Environment there, is hardly an occasion when I am not told that we should do more to recover the cost and that the polluter should pay. Yet I am now told that only in circumstances where we have allowed a pollution incident to happen and the offender has been prosecuted should we pursue him for the recovery costs. That does not appear to be a good approach.

The costs could be high. There may be a situation in which the agency realises that there is a serious risk of pollution if it does not take action and therefore it takes the appropriate action. It seems odd that there is no ability then to recover the costs. That is a complete breach of the polluter-pays principle.

If my noble friend wall not accept the amendment now, I shall wish to return to the matter because, I say with great respect, I did not find his argument convincing.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 336B to 337 not moved.]

Viscount Ullswater moved Amendment No. 337A:

Page 100, line 22, after ("I") insert (", IA").

The noble Viscount said: I spoke to this amendment with Amendment No. 336. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 338 and 338A not moved.]

Clause 90, as amended, agreed to.

Schedule 15 [Supplemental provisions with respect to powers of entry]:

Viscount Ullswater moved Amendments Nos. 339 to 341:

Page 173, line 28, leave out ("or that vessel").

Page 173, line 34, leave out ("or vessel").

Page 173, line 36, leave out ("or vessel").

The noble Viscount said: I spoke to these with Amendment No. 336. I beg to move.

On Question, amendments agreed to.

[Amendment No. 341A not moved.]

Viscount Ullswater moved Amendment No. 342:

Page 174, line 6, leave out (" 90(11)") and insert (" 90(10)").

The noble Viscount said: I spoke to this amendment when moving Amendment No. 336. I beg to move.

On Question, amendment agreed to.

Schedule 15, as amended, agreed to.

Clause 91 [Power to deal with cause of imminent danger of serious pollution etc.]:

[Amendment No. 342ZA not moved.]

Clause 91 agreed to.

Clause 92 [Offences]:

[Amendments Nos. 342ZB to 342ZD not moved.]

On Question, Whether Clause 92 shall stand part of the Bill?

Lord Williams of Elvel

I wonder whether I can persuade the Government to have another look at the drafting of Clause 92. It replaces various provisions of the Environmental Protection Act but it seems to us to create certain possibilities for confusion.

Clause 92(2) defines the offences referring to failure to comply with the requirements imposed under Section 90 of the Environmental Protection Act. In Section 90 of the Environmental Protection Act the only requirements are in paragraphs (j), (k) and (1) whereas paragraphs (a) to (m) relate to powers of an authorised person and paragraph (d) is a direction. Therefore, we are not quite sure whether the Government intend Clause 92(2) to catch those people who fail to comply with the requirements made in paragraphs (j), (k) and (1) of Section 90 of the Environmental Protection Act or whether they wish it to be wider.

There is some confusion there and I hope that the Government may be persuaded to look at that, unless I have it completely wrong, to see what they really mean.

Viscount Ullswater

I am not sure whether I heard correctly but I am not sure whether the noble Lord referred to Section 90 of the Environmental Protection Act or Section 90 of the Bill. Section 92 of the Environmental Protection Act is Clause 90 of the Bill. I do not know whether that alters the noble Lord's interpretation.

Lord Williams of Elvel

I believe that it does. I misread the clause. I do apologise.

Clause 92 agreed to.

Clause 93 [Evidence in connection with certain pollution offences]:

Viscount Ullswater moved Amendment No. 342A:

Page 103, line 2, at end insert: ("( ) any consent under Part II of the Sewerage (Scotland) Act 1968 to make discharges of trade effluent; ( ) any agreement under section 37 of that Act with respect to, or to any matter connected with, the reception, treatment or disposal of such effluent;").

The noble Viscount said: In moving this amendment, I shall speak also to Amendments Nos. 344, 353, 354, 355 and 356. The amendments in this group are all technical in nature. Amendment No. 342A would include references in the definition of "relevant licence" in Clause 93(5) to those sections of the Sewerage (Scotland) Act 1968 which parallel the sections of the Water Industry Act 1991 already listed in the clause.

Amendments Nos. 344, 354, 355 and 356 correct erroneous cross-references in the Bill as drafted. Amendment No. 353 deletes a reference to Section 42 of the Control of Pollution. Act 1974 from the list of provisions which require the existing term of river purification authorities to be replaced with SEPA. Its inclusion is unnecessary as Section 42 is being fully replaced by other provisions in the Bill. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 93, as amended, shall stand part of the Bill?

6.15 p.m.

The Earl of Lytton

In opposing the Motion, I shall refer also to Amendment No. 401C, which amends Schedule 20. Clause 93 and Schedule 20 repeal important parts of Section 209 of the Water Resources Act 1991. Those include the repeal of the long-standing requirement of the NRA to follow a tripartite procedure for samples that are to be admissible in water pollution cases and when the NRA is testing whether businesses have exceeded their discharge consents. Secondly, it removes the legal obligation on the NRA to notify the occupier of land that it has taken a sample.

Tripartite sampling involves dividing a sample taken into three parts immediately after it has been collected. One part is sent for analysis; one part is given to the discharger; and one part is kept by the NRA for production in court. That is a procedure similar to that used for enforcing certain areas of food regulation and by the police when testing alcohol in the blood. If they wish to prosecute someone for being over the limit, they must offer tripartite sampling. Therefore, it is a well-established principle in law.

At present, if compliance with the tripartite procedure is not possible, as I understand it, the results of any analysis are completely inadmissible. However, Clause 93 goes entirely in the opposite direction by allowing any information obtained or provided under the terms of an environmental licence, including information from any apparatus, to be admissible in legal proceedings.

In some cases, practical reasons may prevent tripartite sampling. But a wholesale removal of that procedure is not the way to resolve the problem. Tripartite sampling plays an important role in taking account of the uncertainties and inconsistencies associated with certain types of sampling techniques. Techniques for sampling in assessing water quality are a rapidly evolving area of technical expertise. Even now there is a significant potential for individual laboratories and test rigs to obtain different results. I am informed that there are examples of where that has happened.

I accept that there may be arguments in favour of self-monitoring. Businesses certainly recognise that and the CBI, which has given me a great deal of information on this, has indicated that its members recognise clearly the importance of self-monitoring. Nevertheless, it believes that tripartite sampling has a continuing role to play in providing an essential audit role in relation to the quality of the sampling. The reason for that is quite simple: machines do not necessarily last forever. They have to be checked, tested and calibrated to make sure that they are working properly.

Apart from the safeguards in any proceedings which tripartite sampling provides, its removal must be viewed in the context of what is happening generally in the law as regards the escalating levels of fines and the standards of proof which will apply in any given case. Those are critical. I ask the Committee to consider what effects removal would have on the confidence of those affected.

I am informed that tripartite testing has worked quite well over the years. I realise that there may be some official misgivings about it in the area of new technology but I feel that it should be carried forward in the new agency's functions. Water companies regularly analyse their samples and all business understands the safeguards which that provides. HMIP, which has no statutory duty to carry out tripartite sampling, nevertheless carries it out in sampling effluent when it is considering enforcement action. The National Farmers Union, which also supports the amendment, tells me that tripartite sampling goes back to the River Boards Act 1948. Therefore, the measure is very nearly 50 years old. Similarly, the Country Landowners' Association supports the principle behind the amendment.

There is a general principle of law that any defendant should be provided with a sample for his own independent analysis before he is taken to court so that he can compare it with the sample taken by the NRA and the findings can be weighed in the balance. As I said, similar provisions already apply in other areas of the general law. I do not see that there are sound reasons for throwing it out altogether.

If tripartite sampling is not an option in any given instance because of the nature of the material, I feel that it should be up to the NRA to justify the different approach in any given case. The responsibility of a prosecuting authority does, I believe, have to be appropriate to the nature of the offence. I stress again to Members of the Committee that the wholesale removal of tripartite sampling is something which I believe to be mistaken. It goes too far in that direction.

Lord Crickhowell

I am glad that the noble Earl referred to the question of self-monitoring. I believe increasingly in the years ahead both industry and the agency will want to depend upon a considerable degree of self-monitoring, checked by adequate audit procedures. We are moving into a different world. Indeed, we are certainly in a different world compared to the time, to which the noble Earl referred, when the legislation was introduced in its present form. We are seeing the advances in sampling methods. We are seeing new technologies developed, especially analytic techniques and laboratory accreditation procedures. And we have seen the introduction of automatic and remote monitoring equipment. I believe that the latter create a new situation where the relevance of the tripartite arrangements are not as strong as they perhaps were in the past. Indeed, it is now held in the courts that a sample taken by an automatic machine sitting in the river is not taking a sample at all in that sense and is not affected by the particular requirement, although it can be produced in evidence.

The noble Earl referred to some of the difficulties inherent in the present arrangements. Perhaps I may spell out the kind of difficulties with tripartite sampling that confront an environment agency. The definition of "samples" has been held to include not just effluent samples but also samples of river water. Tripartite sampling of river water is neither practical nor in line with the aims of an agency. I believe that it can be argued that a "person"—I use the word, so to speak, in quotes—must take a sample in order to apply the tripartite requirements. Therefore, we are not in a position to take admissible samples by automatic machines, although we now have such machines which do the job rather well. So there is a problem in that respect.

The meaning of the term "analysis of samples" might be held to imply that, for example, biological samples need to be divided into three. In many cases, that is simply not a practical requirement. Similarly, the tripartite requirement is very difficult to apply to samples which are not fully homogeneous. One could go on.

I shall not delay the Committee for too long, but I must explain the considerable practical difficulties inherent in the present arrangements. For example, the legislation requires the service of a portion of the sample not on the defendant but on the occupier who may not be the same person. A contractor might be the defendant and not the occupier. Moreover, how does one identify the occupier in many cases where a pollution incident has occurred? Is he an employee of a farm manager? Further, in the case of a company, does the NRA have to contact the secretary who may, perhaps, be in the Cayman Islands? As I said, there are considerable, practical difficulties in the whole arrangement.

The noble Earl pointed out that machines can deteriorate. However, I have to say that samples can also deteriorate. The keeping of large stocks of tripartite samples is a real problem, especially as, in the vast majority of cases, the second and third samples are never called for. There is the necessity to have properly accredited laboratories. I know that that is one concern of the CBI. The laboratories of the NRA are accredited—and, no doubt, those of the new agency will be—by NAMAS for a very large number of chemicals; indeed, that involves over 100 chemicals at present. Moreover, techniques for analysis, sampling methods, and so on, are improving all the time.

Surely the agency should be given the flexibility to create a best practice policy. It may still take tripartite samples in some cases. Indeed, it may be very sensible for it to do so. But why should the agency have a tougher requirement in that respect than HMIP which is not required to take such samples? That also applies to the waste regulation authorities and private environmental organisations which can take a prosecution case without a tripartite sample. We have the rather bizarre situation whereby Friends of the Earth, or an organisation of that kind, can take a case to court and not produce the kind of evidence which is called for from the agency.

The NRA currently monitors and takes samples from about 4,000-plus sewage treatment plants. The process takes place between 12 to 48 times a year according to the volume and seriousness of the effluent discharge. All those samples need to be tripartite in case there is a breach of consent conditions and non-compliance has to be demonstrated over a period of time of up to one year. Surely that is an over-bureaucratic and unnecessary procedure.

If we are to have arrangements that work in practice and take advantage of the developments of modern technology, I believe that we should change the arrangements if they make such things impractical. It is very much in the interests of the industry for it to be able to play its part by self-monitoring and to be dependent more and more on low-cost, automatic monitoring systems. The onus will be on the agency to satisfy the courts that its evidence is reliable. That is the way to proceed.

I believe that the NRA's experience in recent years has shown increasingly that tripartite arrangements cause difficulties and unnecessary cost. Moreover, they add to bureaucracy and make it more difficult for us to have an effective environmental pollution policy. Indeed, they make it much more difficult to move to a sensible arrangement in which costs and monitoring equipment are shared for the interests of everyone. For all those reasons, I beg the noble Earl not to press his Motion.

Lord Stanley of Alderley

I am afraid that I am not in the least bit keen to move into the new world of my noble friend Lord Crickhowell. However, I am not in the least surprised by my noble friend's love of the NRA's methodology; indeed, it certainly took him quite some time to explain it. That surely must show a guilty conscience.

I support the continuing of tripartite sampling. My noble friend on the Front Bench keeps saying that it is important in this Bill to keep the balance correct between one interest and another. I have to comment that doing away with tripartite sampling is a case of giving the bureaucrats of the NRA, or what will be the environment agency, too much power in order to abuse the rights of the accused individual, or indeed company.

6.30 p.m.

Viscount Ullswater

Clause 93 is concerned with the admissibility in evidence of information obtained from samples. It deals in particular with the two aspects of this issue: tripartite sampling and the admissibility in legal proceedings of information provided or obtained under certain pollution control licences or consent, as indicated by the noble Earl, Lord Lytton.

To deal first with tripartite sampling. Clause 93 repeals the requirement for tripartite sampling in legislation applying to England, Wales and to Scotland. The repeals will apply both to samples taken by the agencies in respect of effluent discharged into controlled waters and to samples taken by sewerage undertakers of trade effluent discharged into sewerage systems.

We have proposed the removal of tripartite sampling for a number of reasons. First, there have been genuine and unforeseen practical problems which have arisen under the present system, as my noble friend Lord Crickhowell indicated. The existing requirement applies in legal proceedings in respect of effluent, and the legislation refers to any sample. The courts have held that the tripartite procedure must be applied to all samples not just those of effluent. While samples of effluent may readily be divided into three, there can be difficulties with other substances due to their chemical or physical nature which could prevent the agencies from taking action against polluters. My noble friend Lord Crickhowell told us of some of the difficulties experienced with some samples.

The NRA has told us that it decided not to bring a prosecution in one case because the evidence would have rested only on samples of sediment and fish tissue which had been chemically analysed but not tripartite sampled. Secondly, these repeals are in keeping with the approach which we have adopted in setting up the agencies, of seeking to achieve a degree of consistency—or the balance that my noble friend Lord Stanley would want me to mention—in the measures which will be used to control different kinds of pollution, and removing some existing anomalies. The tripartite procedure does not currently apply to enforcement action taken under IPC, as my noble friend has said, where monitoring data is provided by the process operator. That really is self-monitoring. This does not appear to have caused difficulties. Again, as my noble friend has said, nor is it .a requirement for waste regulation authorities.

Thirdly, there is a more general argument that the requirements of tripartite process do not apply to samples taken by third parties such as environmental groups, as we have heard. Without these repeals, the agency for England and Wales as regulator might be unable to prosecute in some cases where an environmental group could. That seems to us to be completely undesirable.

I am aware that there are fields in which tripartite sampling is employed. Equally there are others where it is not. Our concern is for the control of the kinds of pollution for which the agencies will be responsible. As I have said, the removal of the requirement will bring the water regulatory bodies into line with the other existing regulators who will make up the agencies.

I know that this proposal has been opposed. Some have argued that it is inequitable as they suggest that a discharger would in future be unable to contest evidence used in legal proceedings. There is nothing in this proposal that would prevent a discharger contesting evidence. That evidence would, as in all legal proceedings, have to satisfy a court in order for a successful prosecution to be secured. Our proposal simply addresses the narrower point that the agencies should not be disadvantaged in exercising their enforcement powers in respect of discharges to water by a requirement which in some cases may be impractical to observe and which does not apply in respect of other work undertaken by the agencies. That does not in any way alter the responsibility of the agencies to provide evidence of the highest quality nor does it remove the right of defendants to question the evidence brought against them. The agencies will of course be free to use tripartite sampling if there are circumstances where they consider it to be appropriate.

Moving to the second issue—admissibility as evidence—Clause 93 also provides necessary clarification of the types of information which may be used as evidence. It makes it clear that information provided or obtained under the conditions in certain pollution control licences shall be admissible as evidence whether against the person subject to the condition or any other person. This establishes that evidence cannot be ruled inadmissible by virtue of the general presumption against self-incrimination. It also makes clear that such information includes that obtained or recorded by means of a wide range of apparatus.

My noble friend Lord Crickhowell has drawn our attention to the improvements which have taken place in recent years in monitoring equipment and chemical analysis. In this light, Clause 93 creates a presumption that apparatus which provides information in connection with pollution control licences has registered or recorded accurately unless the contrary is shown or the licence provides otherwise. This is similar to a presumption which already exists for apparatus which provides information in connection with consents for the discharge of trade effluent into a sewer. Installations of automatic effluent and water sampling devices—a move towards self-monitoring by dischargers—are trends which it is expected will continue under the agencies. They should reduce the costs of monitoring which are of course passed on to the dischargers.

Finally, where records are required to be kept as a condition of a licence, the fact that an entry has not been made will be admissible in proceedings. This is in keeping with an existing provision under IPC. I believe that Clause 93 as it stands should stand part of the Bill.

The Earl of Lytton

I listened with care to what the Minister has said and to what the noble Lord, Lord Crickhowell, said earlier. I accept to a degree what has been said but I would make the following observations. First, I believe that this clause puts administrative convenience and cost before a fair balance between parties in a court of law. Secondly, although the noble Lord, Lord Crickhowell, says how onerous tripartite testing is, he did not explain how it is that HMIP succeeds in doing it voluntarily, apparently without too much difficulty.

Lord Crickhowell

I am grateful to the noble Earl for giving way. However, there is all the difference in the world in being not required to do it but doing it from time to time because you think it may be relevant and helpful, and having to do it in effect on every single occasion if you are ever to get a prosecution. The result is that HMIP, if it thinks it will be valuable evidence or strengthen its case, can take a tripartite sample but it is not obliged to. The NRA, effectively at the present time is obliged to take a tripartite sample in a huge number of cases just in case it wishes subsequently to bring a prosecution.

The Earl of Lytton

I am grateful for that intervention by the noble Lord because it brings into sharp focus the point I was trying to make in my opening remarks; namely, that there may be circumstances when it is not appropriate to take a tripartite sample. But that is not the same as saying we will relieve all obligation to take any tripartite sampling at all. That is simply not the same thing. With the greatest respect to the noble Lord, Lord Crickhowell, I think we probably are ad idem here but if best practice means anything it is wrong to say in the context of Clause 93 that we will dispense with the measure altogether and that it is not necessary. I am saying that it may well be necessary and it may well be highly appropriate in certain circumstances. I believe the Minister alluded to that very point.

There is another point I wish to make. I believe there is a confusion here between automatic monitoring equipment as monitoring equipment and the function of an environmental agency as a prosecuting authority and as a body gathering evidence for prosecution. Automatic monitoring equipment is fine if one is testing flows and one is returning the sample to the water and that sort of thing. However, if there is a suspicion that there is a real pollution problem which needs to be dealt with by prosecution, that is a quantum leap in my opinion. I commend that thought to the Committee. It is a quantum leap away from the day-to-day monitoring function to the question of enforcement. The two have to be kept quite separate in this context. The clause muddies the water—if I may use that analogy—between the monitoring and prosecuting functions. Nor does it address the fact that some materials are easily subject to tripartite testing and should rightly be dealt with by that means.

The technological solution of the brave new world of automatic equipment is fine, but there is also a human interface—real people making real mistakes and misunderstandings. Legislation also has to come to terms with that possibility.

It is not appropriate to discuss the matter at further length. I shall consider what has been said and may return to the matter at a later stage. In the meantime, I shall not press my opposition to the clause.

On Question, Clause 93, as amended, agreed to.

[Amendments Nos. 342B to 342D had been withdrawn from the Marshalled List.]

Clause 94 agreed to.

Schedule 16 agreed to.

Clause 95 [Power of Secretary of State to delegate his functions of determining, or to refer matters involved in, appeals]:

[Amendment No. 343 not moved.]

Viscount Ullswater moved Amendment No. 344:

Page 103, line 28, leave out ("47B") and insert ("49B").

The noble Viscount said: I spoke to Amendment No. 344 with Amendment No. 342A. I beg to move.

On Question, amendment agreed to.

Baroness Hamwee moved Amendment No. 345:

Page 104, line 6, at end insert: ("( ) Regulations may be made by the Secretary of State in respect of appeals against the decisions of a competent authority acting under the EC Council Regulation on the supervision and control of shipments of waste within, into and out of the European Community (Regulation No. 259/93); and such Regulations may provide for such appeals to be dealt with under subsection (2) above.").

The noble Baroness said: Amendment No. 345, which is the only amendment to which I shall speak, is grouped with Amendments Nos. 363, 363A, 366C and 367 to 371.

This is a short, discrete point. The EC regulation which is referred to in the amendment allows a competent authority to refuse to permit shipments of waste to be made or to require shipments to return to the country of origin or to be dealt with in the UK in a manner other than that envisaged by the parties to the shipment. Someone who has been guilty of illegal trafficking can be barred from the industry through the operation of the regulation.

The regulation is implemented in the UK by the Transfrontier Shipment of Waste Regulations 1994. The regulations make no allowance for an appeal against any decisions. The purpose of the amendment is to alter that position. I beg to move.

Baroness Hilton of Eggardon

I shall speak to Amendments Nos. 363A and 366C. They are intended to be helpful.

Amendment No. 363A relates to site licences, which may be partly revoked for non-payment of charges or the holder having ceased to be a fit and proper person. Both situations can be remedied by the operator, but no mechanism currently exists to allow reinstatement of licences, even if the operator has taken appropriate action. The amendment seeks to provide that power within the Bill.

The purpose of Amendment No. 366C is to allow one licence to be replaced with another. At present the Environmental Protection Act does not permit that, but the amendment would allow it within the terms of the Bill.

6.45 p.m.

Lord Lucas of Chilworth

I shall speak to Amendments Nos. 367, 368, 369 and 370. I do not propose to speak to Amendments Nos. 363 and 371 which are included in the group.

Amendment No. 367 is a small amendment. As the Committee will note, the Bill adds a few words to Section 42 of the 1990 Act. Despite the inclusion in Schedule 18 (which I remind the Committee is entitled "Minor and consequential amendments") of these eight words: or is likely not to be complied with", that is neither a minor nor a consequential amendment to the Act. The effect of adding those words to Section 42 would be to extend considerably the agency's already wide-ranging powers to act against operators who breach licence conditions. In future the regulator will not be restricted to enforcing conditions which are breached but will be liable to initiate enforcement action where it considers a breach is likely.

It is not easy, but I suppose it is possible, to envisage instances where such an occurrence can be predicted with some degree of certainty. Without any doubt there will be many more instances where it cannot be predicted.

What problem has come to light since waste management licensing came into effect in May of last year? Has a new problem arisen, about which we know nothing, that necessitates this new power in order to deal with the problem? I do not know of one.

Perhaps my noble friend the Minister can sooth my fears. It is a sweeping new power. I cannot see the necessity for it. Nor can I see any safeguards for industry against potential misuse of the powers. Is the Secretary of State to issue guidance on the circumstances in which non-compliance can reasonably be predicted? We have to deal with facts, not guesswork or crystal ball gazing. What new authority is the agency to have that did not obtain before? What is so mysterious about the period between May of last year and the time when this Bill comes into force? Perhaps my noble friend can tell me. There seems to be an iniquity.

Viscount Ullswater

This group of amendments seeks to make various changes to the waste regulation functions of the agencies.

Amendment No. 345 moved by the noble Baroness, Lady Hamwee, seeks to make provision for appeals against decisions taken by competent authorities carrying out their duties under the EC Waste Shipments Regulation. In Great Britain those competent authorities are either the waste regulation authorities or the Secretary of State. The functions of the former are to be transferred to the new agencies.

The possibility of providing an appeals mechanism under the Transfrontier Shipment of Waste Regulations 1994—which supplement the EC Waste Shipments Regulation—was given careful consideration when the regulations were drafted. However, the EC regulation does not make specific provision for an appeals mechanism, nor would it readily accommodate an appeals process.

Amendment No. 363A in the name of the noble Baroness, Lady Hilton, would enable a waste management licence revocation under Section 38 of the 1990 Act to be rescinded by the authority which had issued it. Revocation of a waste management licence is one of a range of measures available to waste regulation authorities to ensure compliance with the requirements of a licence. These include temporary suspension of the licence under Section 38(6) of the 1990 Act, as well as partial revocation. In the case of partial revocation, the licence is still in force and hence the power to vary a licence—under Section 37(2) of the 1990 Act—provides a mechanism by which reinstatement of the revoked part can be effected, should that be appropriate.

Amendment No. 366C would prevent the surrender of a waste management licence while a licence for the site was still in force. We cannot see any need for this. If, for whatever reason, there are two separate licences for the same site, then the surrender of each will be considered on its merits and will only be accepted if the criteria set down in Section 39 of the 1990 Act are met.

Finally, Amendments Nos. 367 to 370 seek to remove the amendments to Section 42(5) of the Environmental Protection Act 1990 which are provided by paragraph 50 of Schedule 18 to the Bill. These are harmonising provisions. They create a power for an agency to issue an enforcement notice where a waste management licence condition is likely not to be complied with. At present an enforcement notice may only be served under this section where non-compliance has already occurred. The new provision is in line with the power currently available to enforcing authorities under Section 13(1) and (2) of the 1990 Act. A parallel power in relation to discharge consents is provided by new Section 90B of the Water Resources Act 1991, which is inserted by paragraph 105 of this schedule.

The serving of an enforcement notice before a licence condition has actually been breached, but where such a breach seems likely, will give the agency the opportunity to avert pollution before it happens, as well as giving the licence holder a chance to correct a problem before more serious—and expensive—consequences arise. Existing provisions under Section 42(8) will allow the Secretary of State to give directions to an agency as to whether and how it should exercise its powers under Section 42. This provides a safeguard against unreasonable use of the power.

This is a large group of amendments covering a wide range of issues. I hope I have offered an adequate explanation of the Government's policy in each case, and the reasons that we do not feel able to accept the amendments. I hope that the noble Baronesses, Lady Hamwee and Lady Hilton, will feel able to withdraw them.

Baroness Hamwee

I am grateful to the noble Viscount. I am sure that other Members of the Committee will press extremely hard on the relationship between our regulations and the EC directive, but I shall not do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Elvel moved Amendment No. 345ZA:

Page 106, line 4, at end insert: (" ( ) Subject to subsection (4) above—

1. (a) an application to an enforcing authority for—
1. (i) a waste management licence under Part II of the Environmental Protection Act 1990;
2. (ii) an authorisation under the Radioactive Substances Act 1993; or
3. (iii) a variation of an existing waste management licence and authorisation; and
2. (b) an appeal in connection with such an application, must be advertised, in each case in such manner as may be prescribed in regulations made by the Secretary of State.

( ) The regulations shall provide that—

1. (a) the advertisement shall explain that any person may make representations in writing to the enforcing authority or party considering the appeal in response to the advertisement; and
2. (b) any representations so made shall be considered by the enforcing authority or the party considering the appeal in determining the application or appeal.

( ) The regulations shall provide for—

1. (a) when the advertisement is to be placed;
2. (b) for what period or periods;
3. (c) in what publication or publications circulating in—
1. (i) the location where the licensed or authorised activity would occur; and
2. (ii) the location which is likely to be affected by the activity;
4. (d) what information the advertisement shall contain regarding—
1. (i) the application;
2. (ii) the applicant;
3. (iii) the enforcing authority or the party considering the appeal;
4. (iv) the availability of further information;
5. (v) the matters referred to in subsection (2) above;
6. (vi) the timetable for dealing with the application or appeal and in particular the period allowed for making representations;
5. (e) who is to place the advertisement.

( ) In this section, "enforcement authority" means those authorities identified in section 90(1) (a), (b) and (c) above.").

The noble Lord said: I beg to move this amendment, standing in the name of my noble friend Lady Hilton. Its purpose is to reinforce what is known as Principle 10 of the Rio Declaration, which allowed individuals the opportunity to participate in environmental decision-making. The Committee will recall that at the Earth Summit in June 1992 the United Kingdom Government agreed to the Rio principles, including the principle that: each individual shall have … the opportunity to participate in the decision-making processes (concerning the environment)". Since then, as I understand it, the United Kingdom Government have quoted in support of their compliance with that principle the requirements to advertise planning applications, applications for Part I IPC and APC applications, applications for licences and consents under the Water Resources Act.

However, the Committee will be aware that all those requirements predate the 1992 Earth Summit. The Government have taken no steps that we can see to expand the application of Principle 10 since 1992, despite opportunities to do so under, for example, the Radioactive Substances Act 1993 and the new waste management regime under Part II of the Environmental Protection Act 1990, introduced in spring 1994.

For example, currently no advertisement is statutorily required for an application for an authorisation to dispose of radioactive waste and no advertisement is required for an application for a waste management licence under Part II of the Environmental Protection Act 1990. There is simply no requirement for the public to be told. Although applications are placed on the register, the keepers of the register are not required to inform the public of the existence of the application. Additionally, there is no provision for the taking into account of representations made by members of the public in those instances. The amendment is designed to make those two requirements the norm for all environmental licence applications. That would make the Bill consistent with Principle 11) of the Rio Declaration. I beg to move.

Viscount Ullswater

I am very appreciative of the care that has been taken in the drafting of the amendment. I should be greatly concerned if arrangements to allow representations by the public on such important matters were not in place. However, with respect, I do not believe that the amendment is necessary. Under Section 36(2) of the Environmental Protection Act 1990, a waste management licence can only be issued if planning permission has first been given for use of that site for that purpose. The planning stage is much the most appropriate one for inviting and considering public representations regarding the land use and the impact on local amenity which a waste management facility would involve. Of course, related appeals—

Lord Williams of Elvel

Perhaps I may intervene on that point. Is it not the case that a planning application, if granted, gives authorisation for five years? That is to say, one does not have to re-apply for five years. Therefore, for any of those five years, the planning application having been granted by the appropriate authority, an authorisation may be given to dispose of radioactive waste without the public knowing about it. Is that not true?

Viscount Ullswater

I appreciate what the noble Lord says and I believe that it is correct. My point is that in view of the impact on the amenity which the waste management facility would involve, any related appeals are advertised in the usual manner prescribed by the relevant town and country planning legislation.

By contrast, a waste management licence is a technical authorisation dealing with the detailed operation of a facility. With matters on which specialist expertise is needed, there is, of course, consultation of appropriate bodies at that stage too—of the local planning authority and of the Health and Safety Executive. But we believe that it will be unnecessarily regulatory to require further advertisement as well.

Detailed information on waste management licence applications, applications for licence variations and related appeals will be available for public inspection at agency offices, in accordance with the regulations to be made under Section 64(6) of the 1990 Act, as amended by this Bill.

Current provisions in the Radioactive Substances Act 1993 require the regulating authorities to consult the appropriate local authorities and public bodies before granting authorisations for nuclear sites. The application, together with an explanatory memorandum, forms part of a consultation package and it is the regulator's practice to ensure, whenever necessary, that there is wider public consultation. The application is sent to the relevant local authorities and is available for public scrutiny at offices of Her Majesty's Inspectorate of Pollution.

It would be an added complication for small users of radioactive substances, whose activities are not radiologically significant, if such arrangements were extended unnecessarily. Existing regulations require the party considering the appeal—that is, the Secretary of State—to notify those bodies previously consulted on the application of their right to make representations concerning the appeal.

I appreciate what the noble Lord, Lord Williams, said about the requirement for public consultation. I hope that I have indicated that there is ample opportunity for the public to be consulted and notified on these matters.

7 p.m.

Lord Williams of Elvel

Well, no. The Minister has failed to persuade me that there is adequate opportunity. I am grateful for his long explanation. But I return to the principle that planning applications, if successful, give authorisation for five years before reapplication has to be made. A planning application can be for a change of use for a fairly wide variety of waste purposes. The application for an authorisation to dispose of radioactive waste—and I hope that I do not have to tell the Minister how sensitive this matter is; it may be low level radioactive waste, but it is still radioactive waste—is not publicised in any manner whatsoever. I find that somewhat contrary to the stated principle of the Rio declaration.

I hope very much that the Minister will give some thought to this point before the next stage. It is a point upon which we place a certain amount of importance. It is vital that in all these matters the public are kept fully informed about what is going on in relation to the disposal particularly of radioactive waste—of all waste, in my view, but radioactive waste in particular. I do not intend to pursue the matter further, unless the Minister wishes to add anything to what he has already said.

Viscount Ullswater

I appreciate the opportunity of being able to explain a little further. The department has undertaken a review of radioactive waste management policy. Our officials are carefully considering responses to the preliminary conclusions of the review. It would be premature to make any changes to the legislation while this process is still under way. I believe that that indicates the concern that the Government have about the disposal of radioactive waste. I do not believe that the picture is quite as the noble Lord paints it in suggesting that we are not taking the matter very seriously.

Lord Williams of Elvel

Now we are getting somewhere. I am grateful to the Minister for supplying that last piece of information. I certainly agree that it is pointless to try to change the legislation in Committee while officials are still studying the results of an investigation that they have carried out. Nevertheless, I very much hope that at a later stage of the Bill noble Lords will have some idea of what those conclusions might be; or at least that the Government will say, "We think this, that and thus", and will take the matter to another place, so that Parliament can have its say on what should be the right way of handling radioactive waste, and not least the right way for the public to be informed, in a sensible and rational manner, as to how radioactive waste is being dealt with. I hope very much that in giving the Committee the information that the Minister has he will accept that we look forward to further statements from the Government about this matter.

Lord Lucas of Chilworth

Before the noble Lord, Lord Williams, sits down, is he primarily concerned with the low level waste that mostly emanates from hospitals and with substances of that kind, or does he have some rather more serious underlying worry?

Lord Williams of Elvel

My worry is not serious and underlying. It is simply a general unease that the public may not be informed about authorisations given to dispose of radioactive waste, whether low level or high level. I am not specifying what sort of waste it is.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 95, as amended, shall stand part of the Bill?

Lord Williams of Elvel

Clause 95 allows the Secretary of State to delegate the functions of determining, or to refer matters involved in, appeals. The Committee will remember that we debated at some length the judicial functions that could be contracted out—that is to say, delegated—when we debated the Deregulation and Contracting Out Act 1994. Perhaps I may remind the Committee of Section 71 of that Act. It states that a function is excluded from Sections 69 and 70—that is, contracting out—if, its exercise would constitute the exercise of jurisdiction of any court or of any tribunal which exercises the judicial power of the State; or … its exercise, or a failure to exercise it, would necessarily interfere with or otherwise affect the liberty of any individual". There are also two other exceptions that I will not go into.

We need to be persuaded by the Government that Clause 95 of the Bill does not run directly contrary to Section 71 of the Deregulation and Contracting Out Act 1994. I look forward to hearing from the Minister exactly what the explanation is.

Viscount Ullswater

Clause 95 gives powers to the Secretary of State to delegate his functions of determining appeals against agency decisions or to refer matters involved in such appeals against agency decisions to persons appointed or nominated for that purpose. These powers apply to the Secretary of State for the Environment in relation to the environment agency for England and Wales and to the Secretary of State for Scotland in relation to SEPA.

Under the current legislation, applicants for or holders of certain environmental licences issued by the NRA, HMIP and HMIPI or other existing bodies have the right to appeal to the appropriate Secretary of State. This clause would give power to delegate this function to an appointed person who would have, with certain limited exceptions, the same powers and duties as the Secretary of State in deciding such appeals.

To a large extent these powers are not new. They are precedented in, for example, subsection 15(5) of the Environmental Protection Act 1990. Many environmental appeals are already dealt with by, for example, those members of the planning inspectorate of the Department of the Environment who have the relevant expertise and experience. However, under the existing provisions appeals can be delegated only on a case by case basis. Clause 95 would allow classes of cases to be delegated, thus streamlining the existing system.

I should stress that this is only a power to delegate. The Secretary of State will of course exercise his discretion in using it. Where it seems appropriate he will retain cases for his own determination and will have the power to call in cases if he thinks fit. Thus the Secretary of State would expect to deal with any case which involves difficult policy decisions or which raises particularly sensitive issues.

The purpose of this clause is to ensure that straightforward appeals, which represent the majority of cases referred to the Secretary of State, can be dealt with quickly and efficiently by those who have the experience and knowledge to do so. This should speed up the appeals procedure, and that must be in everyone's interest. But the powers are sufficiently flexible to ensure that the Secretary of State can retain his role in relation to appeals where it is appropriate for him to do so. I trust that with that explanation the noble Lord will feel able to withdraw his opposition to this clause.

Lord Williams of Elvel

I am grateful to the noble Viscount for explaining what this clause is about. But he has not addressed himself to the question that I put. All the precedents that he cited were prior to Royal

Assent to the Deregulation and Contracting Out Act 1994. The question that I put (and I must perhaps be more precise about it) is: are the powers that it is proposed will be granted under Clause 95 of this Bill in any way in conflict with the judicial functions excluded under Section 71 of the Deregulation and Contracting Out Act 1994?

The noble Viscount said that the Secretary of State will use his discretion in using this power. If the power granted to him is in contravention of Section 71 of the 1994 Act, he will not be able to use that power at all. So it is pointless to have the clause. I hope that an explanation in greater detail will come in due course.

Viscount Ullswater

I appreciate that the clause as it stands has been drafted when the Deregulation and Contracting Out Act is on the statute book. But I feel that I should investigate what the noble Lord has brought to my attention to make entirely certain that the power we are taking in Clause 95 is not in some way contradictory to Section 71 of the Act he mentioned. In the meantime, I propose that the clause should stand part of the Bill.

Clause 95, as amended, agreed to.

7.15 p.m.

Lord Jenkin of Roding moved Amendment No. 345A: After Clause 95, insert the following new clause:

("Efficient use of water and sewerage services"

Efficient use of water and sewerage services

.—(1) The Water Industry Act 1991 shall be amended in accordance with the following provisions of this section.

(2) In section 2(3) (d) after the word "undertaker" there shall be inserted the words "and the efficient use of water and of sewerage services supplied to consumers by a relevant undertaker".

(3) The following section shall be inserted after section 39A—

"Promotion of efficient use of water.

39B.—(1) The Director may, after consulting every undertaker and persons or bodies appearing to him to be representative of persons likely to be affected, from time to time—

1. (a) determine such standards of performance in connection with the promotion of the efficient use of water by customers as, in his opinion, ought to be achieved by water undertakers; and
2. (b) arrange for the publication, in such form and in such manner as he considers appropriate, of the standards so determined.

(2) Different standards may be determined for different water undertakers.

(3) Each water undertaker shall, in such form and manner and with such frequency as the Director may direct, take steps to inform its customers of—

1. (a) the standards determined under this section which are applicable to that undertaker; and
2. (b) that undertaker's level of performance as respects those standards."

(4) The following section shall be inserted after section 96A—

"Promotion of efficient use of sewerage services.

96B.—(l) The Director may, after consulting the sewerage undertakers and persons or bodies appearing to him to be representative of persons likely to be affected, from time to time—

1. (a) determine such standards of performance in connection with the promotion of the efficient use of sewerage services by customers as, in his opinion, ought to be achieved by sewerage undertakers; and
2. (b) arrange for the publication, in such form and in such manner as he considers appropriate, of the standards so determined.

(2) Different standards may be determined for different sewerage undertakers.

(3) Each sewerage undertaker shall, in such form and manner and with such frequency as the Director may direct, take steps to inform its customers of—

1. (a) the standards determined under this section which are applicable to that undertaker; and
2. (b) that undertaker's level of performance as respects those standards."

(5) In section 37 the following subsection shall be inserted after subsection (1)— (1A) It shall be the duty of every water undertaker, in meeting its obligations under this Part, to do so in such a manner as will promote—

1. (a) the conservation of water, whenever it is economic to do so; and
2. (b) the efficient and economic use of water by customers of that water undertaker."

(6) In section 37(2), for -the word "duty" there shall be substituted the word "duties".

(7) In section 94 the following subsection shall be inserted after subsection (1)— (1A) It shall be the duty of every sewerage undertaker, in performing its duty under subsection (1) above, to do so in such a manner as will promote—

1. (a) the conservation of water, whenever it is economic to do so; and
2. (b) the efficient and economic use of water and of sewerage services by customers of that sewerage undertaker."

(8) In section 94(3), for the word "duty" there shall be substituted the word "duties".").

The noble Lord said: With this amendment we return to a matter we discussed in Committee on 19th January. To me, and I know that I speak for my noble friend also, that seems a very long time ago. It is a question of a duty to conserve water and how we can best embody that duty in legislation.

The Committee may remember that the noble Baroness, Lady Nicol, moved an amendment which sought to put a very general duty to conserve water on the agency and various other bodies, including the undertakers. In his reply my noble friend on the Front Bench had some criticisms to make of part of the amendment. Referring to an amendment proposed by my noble friend Lord Marlesford, which put water undertakers under a duty to conserve water, he said: This seems to us a more promising approach. Coupled with the setting of standards by the director general, it could offer helpful possibilities". He went on to say: I am therefore happy to undertake that we will consider, during the passage of the Bill through Parliament, whether it should be amended to introduce now a duty on water undertakers to promote water conservation".—(Official Report, 19/1/95; cols. 822 and 823.) The Committee may remember that I drew attention to the fact that only that day I had tabled the new clause which is now before us. My noble friend had not had a chance to see it, but he undertook to consider it carefully. The new clause offers precisely what my noble friend thought was a more promising approach. In a sense it implements what the Government suggested in their publication Using Water Wisely; namely, that there was a case for requiring water undertakers to promote conservation and the efficient use of services by their customers, and that the Director General of Water Services might have the same powers as have the economic regulators of the electricity and gas industries concerning the promotion of efficient behaviour on the part of customers.

That is what the new clause seeks to do. It takes the form of extending the duties imposed on the Director General of Water Services, Ofwat, by Section 2 of the Water Industry Act 1991. It requires him to carry out his functions in the manner he considers best calculated not only to promote economic and efficient behaviour on the part of water and sewerage undertakers but also efficient use by their customers of the services they provide. As I said, there are close parallels with the Gas Act 1986 and the Electricity Act 1989.

Subsections (3) and (4) of the new clause would enable the director general to set standards of performance—precisely as my noble friend indicated on 19th January might be appropriate—to be achieved by water and sewerage undertakers, again for the promotion of the efficient use by customers of water and sewerage services.

Perhaps I may say at this point that it is important that the provisions should apply equally to sewerage undertakers as to water undertakers. For instance, it would be somewhat strange if there were a system which imposed duties on the use of water, with the result that in a particular area it might be appropriate to go in for metering of water but somehow one had a different system applying to sewerage. The words "integrated pollution control" must have some implications that these things should be treated together. For instance, sewerage undertakers might well be encouraged to embark on publicity programmes to try to persuade customers not to put down the drains inappropriate articles, such as plastic and so on, but to promote the Bag It and Bin It campaign with which we are all familiar and on which my right honourable friend the Secretary of State on one occasion made a speech that attracted a good deal of publicity.

There are a range of ways in which the duty might be carried out. But the structure of the clause is such that it puts a duty on undertakers to see that their customers use water and sewerage services economically and sensibly in order to promote conservation and broadly sustainable development. The clause also confers a power on Ofwat under the director general to set standards.

I may be pushing at an open door. It seems to me that the new clause, if not absolutely on all fours with what, in the earlier debate, my noble friend indicated he would smile on, is very close to it. I do not for a moment assert that the drafting is right. I have sufficient respect for parliamentary counsel to know that they will want to redraft the clause. It will not be necessary for me to argue the matter at great length at this stage. The case has been well made in earlier debates. My noble friend thought that he might be able to look at it during the passage of the Bill.

I make one further point. At least one water undertaking—Welsh Water—has expressed doubts and has written to a number of honourable and right honourable Members in another place to say that it believes that the new clause would give Ofwat the power to direct undertakers to install metering. As I understand it, that is not the director's policy which remains unchanged. He is anxious to encourage new developments to include metered supplies and that is now being done in many cases. But he fully recognises that it would be entirely inappropriate to impose a general duty to install meters in existing premises.

A short time ago, the director general published a document Paying for Water: the way ahead, in which he said: In the long term, metering is the only satisfactory way of achieving payments which are well related to the amount of water used. A rapid change to universal household metering would, however, be uneconomic. Instead, metering should be targeted, and should spread progressively". There are also obligations on the director general to consult widely before introducing metering. He must consult every undertaker and persons or bodies appearing to him to be representative of persons likely to be affected. So, with the greatest respect to Welsh Water—I say this in recognition that somebody present may wish to make the point—I think it has jumped the gun. The clause does not have the effect feared. It does not change in any way the policy of the director general on the question of the introduction of water metering. It puts the duty on undertakers to see that their customers use water and sewerage systems wisely so that Ofwat can set standards and monitor them. I beg to move.

Lord Williams of Elvel

I should like to speak to the last point made by the noble Lord, Lord Jenkin of Roding, in relation to the objections of Welsh Water and the fact that the amendment as drafted could be used by the director general of Ofwat to impose compulsory metering on undertakers. That was also the view of the all-party parliamentary water group in another place which, as the Committee will be aware, discussed charging policy, affordability and consumer interests in great detail. It reported that it was broadly in favour of the joint paper put to the Secretary of State for the Environment last November by the water companies and water services associations to which the Secretary of State has yet to respond. As I understand it, the paper was strongly opposed to the compulsory or widespread water metering of domestic properties.

That is the view of the all-party parliamentary water group; it is also the view of my party. We are strongly opposed to any form of compulsory metering for reasons which have been discussed at great length and with which I shall not weary the Committee this evening. Whatever the good intentions of the noble Lord, Lord Jenkin, in tabling the amendment, we from these Benches would not wish the Government to include it in the Bill.

Lord Bancroft

My name is attached to the amendment. Virtue and good sense often receive their right rewards in your Lordships' Chamber. I listened to the virtuous, sensible and persuasive words of the noble Lord, Lord Jenkin of Roding. I listened to the words of the noble Lord, Lord Williams. Although half Welsh myself, I am persuaded by the noble Lord, Lord Jenkin of Roding, rather than by the noble Lord, Lord Williams of Elvel. That being so and in order to get on with the business, I do not propose to add to the words of the noble Lord, Lord Jenkin, except to say that I warmly support the amendment.

Lord Dixon-Smith

The amendment is directed towards the efficient use of water resources. It is commonly held, for historical reasons, that there is an imbalance of water resources between water companies in the South-East. Southern Water, the former Southern Water Authority, is generously or almost over-provided for in respect of abstraction licences, whereas some of the smaller water companies are under-provided for. For instance, in the case of South-East Water, on forecasts agreed with Ofwat, there may be a shortage of water in dry conditions.

Both the Government and the NRA have a duty to promote the most effective distribution of water resources. I therefore ask my noble friend the Minister to look at the matter. It may be said that these problems should be addressed by bulk supply arrangements. But bulk supply arrangements do not address the fundamental problem of an imbalance of abstraction licences. Indeed, by deferring that correction, they could provide a less economically effective solution.

The NRA's water resources strategy for the southern region contemplates the possible option of using NRA powers of licence revocation as a means of reallocating water resources. I wonder whether the Minister feels that that may be a solution to some of these problems and that the time is now at hand when such action should be taken.

Viscount Ullswater

Amendment No. 345A proposed by my noble friend Lord Jenkin has many similarities with the group of amendments about the efficient use of water that we debated earlier in Committee. My noble friend reminds me just how long ago it was that we actually had that debate. The amendment goes further however in that it includes promotion of the efficient use of sewerage services by customers.

Perhaps I may remind Members of the Committee of the earlier debate. I said that we were sympathetic to the proposal for water undertakers to be given a duty to promote the efficient use of water so long as they also had regard to the economics of such activities. Similarly, I also accepted that consideration might be given to increasing the powers of the Director General of Water Services to allow him to set and make suitable arrangements to publish standards of performance that water undertakers should achieve in respect of the promotion of efficient use of water by their customers. However, I could not accept that the director general should be given a duty to promote the efficient use of water which would require him directly to organise campaigns among customers to persuade them of the benefits of using water efficiently. I note the anxieties of the noble Lord, Lord Williams, and his party in relation to metering. I do not need to say anything about that in this context.

Turning to the amendment before us, there are some parts concerning water with which, in the light of the earlier debate, I can sympathise. I am, however, concerned about the proposals for promoting the efficient use by customers of sewerage services. It is already an offence under Section 111 of the Water Industry Act 1991 to discharge harmful substances of a liquid or solid nature into a public sewer. As well as the possibility that such discharges could lead to blockage and damage to the customer's drain or the public sewer, they may also present costly problems for the sewerage undertaker at the treatment works.

It is in the water companies' own interests to try to ensure that customers do not discharge certain waste products into the public sewerage system. I understand that one water company was sued as a result of household waste being washed up on beaches after being discharged through an outfall pipe at sea. I understand that sewerage undertakers periodically give guidance to customers about this matter. Typically, such guidance provides advice about the proper use of sewerage services and the importance of disposing of certain waste products through the household waste collection service or at controlled waste disposal sites instead of down WCs, drains and manholes.

This month the Water Services Association intends to launch its Bag It and Bin It campaign to which my noble friend Lord Jenkin referred, which aims to encourage the public to dispose of household items in a responsible manner. The campaign is supported by a number of environmental pressure groups.

If customers are encouraged to use water efficiently, that in itself will have a knock-on effect in reducing the volume of water discharged to the sewerage system. The efficient use of water would also embrace re-use or recycling before water is discharged into the sewer system where such methods are economic. And volume-based sewerage charges may provide an added incentive to use less water. Indeed, where water is charged for by meter, it is generally the case that sewerage services are also charged for on the basis of the volume of water used, often with an allowance for water not returned to the system. But I do not consider that legislative provisions relating to the efficient use of sewerage services will achieve anything that is not already done or cannot be effected by provisions about the efficient use of water.

My noble friend Lord Dixon-Smith introduced another but perhaps not related point in relation to shared resources. Where one company provides another with a bulk supply, the director general of Ofwat has power to insert provisions in supply agreements. The terms of bulk supply agreements are important and should be drafted to protect the interests of both parties in the event of problems such as water shortage. In some cases it may be appropriate to set up joint management boards to oversee the operation of bulk supply schemes. I shall read my noble friend's remarks. If I find that my reply has not addressed the problem, perhaps I may be allowed to write to him.

In the earlier debate I gave a commitment to consider during the passage of the Bill through Parliament whether it should be amended to introduce provisions about water conservation. That consideration is in hand but is not yet complete. Although I sympathise with the general aims of the amendment, I believe that much of it is unnecessary and ineffective. I would therefore ask my noble friend to withdraw it.

Lord Jenkin of Roding

I am grateful to my noble friend for the points he has made, but I am not sure that I would feel able to accept them at this stage. I shall read carefully what he has said. He objected to imposing a duty on undertakers to get their customers to use sewerage services responsibly. The director general certainly feels that it is very important that he should have a parallel power to set performance standards for sewerage undertakers. It is not enough just to encourage the conservation of water. We should try to secure and facilitate integrated pollution control. We have heard a great deal about that during the passage of the Bill. Sewerage undertakers should, and of course do, make a charge for their services, including treatment and disposal, which is based broadly on the polluter pays principle. That is particularly true in relation to trade effluent charges. Without the parallel duty for sewerage it seems to me that these issues may not properly be addressed.

However, I shall study what my noble friend has said. I am grateful to him for repeating the undertaking to consider during the passage of the Bill the provisions about the conservation of water. It may well be that if measures come back from another place, probably in two or three months' time, we may have an opportunity to return to this subject again. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Miller of Hendon

I beg to move that the Committee be adjourned and begin again at 8.30 p.m.

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

[The Sitting was suspended from 7.32 to 8.30 p.m.]

Clause 96 [Application of this Act to the Crown]:

Lord Williams of Elvel moved Amendment No. 345B:

Page 106, line 20, leave out subsection (5).

The noble Lord said: In moving this amendment it may be for the convenience of the Committee if I also address Amendment No. 346, standing in the name of the noble Viscount, Lord Ullswater. The Bill as drafted provides for the Secretary of State to exempt any Crown premises from the powers contained in the Bill if he believes that it is in the interests of national security. We take the view that there needs to be a much clearer definition of when such a dispensation shall be available or used.

There are instances where property or operations covered by Crown immunity have resulted in serious acts of pollution. A particular case in point is the extremely damaging effects that radioactive and other discharges have had on the ground water beneath the Aldermaston plant. If the Bill is left as it is, its provisions would also seem to be against the general tenor of more openness on environmental matters which we believe is both demanded by the public and to some extent recognised by sites formerly covered by Crown immunity. An example is that, as I understand it, the present canteens are now subject to health and safety legislation whereas they had Crown immunity before.

I accept that this is a probing amendment and I hope that the Government will take that line. In the light of that explanation and to encourage more openness we would like to see a much clearer definition of when the dispensation written into the Bill will be used. I beg to move.

Viscount Ullswater

This amendment moved by the noble Lord, Lord Williams, seeks to remove the subsection which gives the Secretary of state power to issue a certificate under Clause 96. With certain limited exceptions, the provisions of this Bill would bind the Crown; and would give the Secretary of State power, where he thinks fit, to issue a certificate that it is not in the interests of national security that the powers of entry be exercised in relation to certain Crown premises.

I recognise that the noble Lord is concerned about exemptions to the way in which this Bill is applied to the Crown, but I consider it to be quite unacceptable for this power to be removed. The subsection is well precedented. It mirrors art existing provision in Section 159(4) of the Environmental Protection Act 1990 which, for the same reasons, we are not proposing to amend. I believe it is essential that if the exercise of any power of entry under this Bill to particular Crown premises could pose a threat to national security, the Secretary of State should have the ability to exempt those premises as appropriate.

Considering what the noble Lord has said, it is difficult to come up with a proposal which might satisfy him and yet protect the power of the Secretary of State. I should like to see whether this power can be looked at in view of what he has said. For the reasons I have indicated, I believe that it is quite unacceptable for the power to be removed.

Lord Williams of Elvel

I am most grateful to the noble Viscount. I agree with him in that I do not want the power removed. As I explained, this is a probing amendment. However, the expression "national security" is one which the noble Viscount might wish to think about and perhaps define a little more for us either in the context of the Bill itself and on the face of the Bill or by some future document in the form of a letter or a statement in the course of the passage of the Bill. We are worried that it is unclear what "national security" means. It could mean, for instance, action against riots or civil disobedience, which can come into national security. We need a little more from the Government on this. I understand that the noble Viscount is going to look at the matter to see what he can provide for us. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 96 agreed to.

Clause 97 agreed to.

Schedule 17 [Application of certain other enactments to the Crown]:

Viscount Ullswater moved Amendment No. 346:

Page 178, leave out lines 21 to 24.

The noble Viscount said: This is a minor technical government amendment which removes a duplicate reference in Schedule 17 to the Crown Proceedings Act 1947. Reference in subsection (8) of the amended Section 221 of the Water Industry Act 1991 which this amendment will delete is in fact already included in subsection (5). I beg to move.

On Question, amendment agreed to.

Schedule 17, as amended, agreed to.

Clause 98 agreed to.

Clause 99 [Application of certain other enactments to the Isles of Scilly]:

Viscount Ullswater moved Amendments Nos. 347 to 349:

Page 108, line 36, at end insert: ("(4) The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament").

Page 109, line 8 at end insert:

("(4) The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament."").

Page 109, leave out lines 9 and 10 and insert:

(6) For section 75 of the Land Drainage Act 1991 (application to the Isles of Scilly) there shall be substituted—

"Application to the Isles of Scilly.

75.—(1) Subject to the provisions of any order under this section, this Act shall not apply in relation to the Isles of Scilly.

(2) The Secretary of State may, after consultation with the Council of the Isles of Scilly, by order provide for the application of any provisions of this Act to the Isles of Scilly; and any such order may provide for the application of those provisions to those Isles with such modifications as may be specified in the order.

(3) An order under this section may—

1. (a) make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and
2. (b) contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate, including provision saving provision repealed by or under any enactment.

(4) The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Viscount said: In speaking to Amendment No. 347, I wish to address also Amendments Nos. 348, 349 and 402. In our Memorandum to the Delegated Powers Scrutiny Committee we undertook to bring forward amendments to subsections (4) and (5) of Clause 99 to ensure that the Secretary of State's order-making powers should be subject to the negative resolution procedure.

Amendments Nos. 347 and 348 take forward this undertaking. These subsections provide that the Secretary of State may make orders after consultation with the Council of the Scilly Isles to apply the provisions of the Water Industry Act 1991 and the Water Resources Act 1991 to the isles with such modifications as may be specified. Amendments Nos. 349 and 402 ensure that the provisions of the Land Drainage Act may also be applied to the Isles of Scilly by order. I beg to move.

On Question, amendments agreed to.

Clause 99, as amended, agreed to.

Clause 100 agreed to.

Clause 101 agreed to.

Clause 102 [Local statutory provisions: consequential amendments etc.]:

[Amendment No. 349A not moved.]

Clause 102 agreed to.

Clause 103 [Directions]:

Lord Williams of Elvel moved Amendment No. 350:

Page 111, line 40, at end insert: ("(6) A draft of any directions proposed to be issued by the Ministers, or either of them, or the Secretary of State under this Act shall be laid before each House of Parliament and shall not be issued until after the period of 40 days beginning with the day on which the draft was so laid or, if the draft is laid on different days, the latter of the two days. (7) If, within the period mentioned in subsection (6) above, either House resolves that the directions, the draft of which was laid before it, should not be issued, the Ministers, or either of them, or the Secretary of State shall not issue those directions. (8) In reckoning any period of 40 days for the purposes of subsection (6) or (7) above, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days. (9) Any directions issued, and any draft of any directions proposed to be issued by either Agency under this Act hall be in writing and shall be published.").

The noble Lord said: This amendment stands in my name and that of my noble friend Lady Hilton. Clause 103 specifies that directions "shall be in writing". The directions come from the Secretary of State. It is our view that, directions proposed to be issued by the Ministers"— that is the expression that is used— or the Secretary of State under this Act", should be reviewed by Parliament in a proper manner. We consider that ministerial and agency directions should be made public as a matter of law. The whole thrust of the policy on sustainable development has to be seen to be implemented in all the directions which the Government give to the agencies—either that in England and Wales or SEPA. I do not see that there can be much difficulty for the Government in conceding that Parliament ought to have an opportunity to comment on the directions to ensure that it can follow and, if necessary, correct the Government's policy with regard to the agencies. I beg to move.

Viscount Ullswater

Amendment No. 350 would require guidance issued by Ministers, such as on sustainable development or on contaminated land, to be subject to negative resolution in this House and in another place. It would also require guidance issued by the agencies to be produced in writing and to be published. I believe that the amendment is unnecessary. It would hinder the effective work of the agencies as they develop into centres of scientific excellence and expertise.

We have already had lengthy debates in the early days of Committee on the guidance to be issued on sustainable development. As can be seen from the draft scoping document we issued, the guidance will be lengthy and technical and we are committed to wide consultation with the agencies and other experts in the area. The proposed amendment would not help to improve the drafting or the scope of the guidance. It would merely act as a delay for at least 40 days, and much longer while Parliament is adjourned, with the final sanction of a veto. One can conceive of cases where it would be harmful to the work of the agency to stop Ministers from issuing guidance (with which all parties were content) for an extended period over, say, the Summer Recess.

The last subsection of Amendment No. 350 raises a different set of problems which could impede the effective day-to-day working of the agencies. It would require any guidance issued under the terms of this legislation, or any draft of such guidance, to be in writing and to be published.

In many instances, the appropriate response by the agencies could be speedy advice by telephone rather than a formal written response. The effect of the amendment could be to prevent that, thereby preventing the agencies' expertise being made available to others in the best manner, by introducing the rather artificial requirement that any guidance they produce must be written and published.

I believe that we have it about right and I hope that in the light of what I have said, the noble Lord will see fit to withdraw the amendment.

Lord Williams of Elvel

We must be speaking at cross purposes. Clause 103, to which my amendment relates, refers to any directions given to the agency or to SEPA, being a direction to any extent so given for the purpose of implementing any obligations of the United Kingdom under the Community Treaties". My amendment is directed at that provision.

In a previous amendment to this effect (on a previous Marshalled List), I used the word "guidance" but, on advice, changed it to "directions". I wonder whether the Minister is using a brief that relates to a former Marshalled List rather than that which is before the Committee at the moment.

If we are to follow the implementation of Community directives (or whatever) by a "direction" to implement those provisions, it must be right for Parliament to see and discuss such provisions. That is what the amendment seeks to achieve.

Viscount Ullswater

I have to confess to the Committee that neither I nor my advisers spotted that change of word. I apologise to the Committee because I feel that my reply was inadequate in that I dealt with "guidance". I shall certainly read carefully in Hansard what the noble Lord has said.

Lord Williams of Elvel

I am most grateful to the noble Viscount and shall not pursue the matter now. Perhaps we could discuss this at a later stage, by which time the noble Viscount will have read the amendment on the Marshalled List. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 103 agreed to.

8.45 p.m.

Clause 104 [General interpretation]:

[Amendment No. 351 not moved.]

The Earl of Lindsay moved Amendment No. 351A:

Page 112, line 8, at end insert: ("(2) The amendment by this Act of any provision contained in subordinate legislation shall not be taken to have prejudiced any power to make further subordinate legislation amending or revoking that provision. (3) In subsection (2) above, ''subordinate legislation" has the same meaning as in the Interpretation Act 1978.").

The noble Earl said: This is a technical amendment which clarifies the fact that any amendment made by the Bill to subordinate legislation does not prejudice the power to amend those provisions by further subordinate legislation. I beg to move.

On Question, amendment agreed to.

Clause 104, as amended, agreed to.

Clause 105 [Short title, commencement and extent]:

Lord Nathan moved Amendment No. 352:

Page 112, line 16, leave out ("on such day") and insert ("at the end of a period of two years beginning with the day on which this Act is passed or on such earlier date").

The noble Lord said: This is the last clause of a long Bill. Subsection (2) provides that Part III, which relates to the national parks provisions, shall come into force at the end of the period of two months beginning with the day on which this Act is passed", with one minor exception. After dealing with some not very important matters, subsection (3) provides that the remainder of the Act, shall come into force on such day as the Secretary of State may specify by order made by statutory instrument", and so forth. That means that the Government may never bring into force the provisions which have been so fully discussed, as we can say now, towards the end of this seventh day of the Committee stage of the Bill.

The amendment conforms closely to the recommendation of the 12th Report of 1993–94 of the Delegated Powers Scrutiny Committee. It provides that, instead of there being no limit of time within which the provisions of the Act are to be brought into force—that is the position that I have outlined—the provisions of the Act shall come into force, at the end of a period of two years", from the date of the passage of the Act unless brought into force earlier by a government order. I believe that your Lordships' House should be firm in requiring that the Government carry out provisions which have been enacted after such careful and detailed discussion.

As things stand, the legislation is optional. The Government can either bring it into force or not, as they wish. It may be thought that the possibility of the Government doing such a thing is fanciful; but experience in the environmental context shows that that is not so. I refer to Part II of the Control of Pollution Act 1974 which was central to the provisions of that Act and to the purposes of Parliament in enacting it, and related to water. That part of that Act did not come into force for 10 years after enactment.

Another example is closer to the Bill: Section 143 of the Environmental Protection Act and related sections were enacted in 1990. They related to contaminated land and were discussed exhaustively both here and in another place. The Government apparently decided not to bring those provisions into force, and now under the Bill seek to repeal and replace them. There is no certainty that after all the time and effort spent considering the provisions of the Bill that they will be brought into force within a reasonable time, or, indeed, at all. That is wholly unacceptable.

Of course I accept that there are some provisions where it is wise to leave to government the choice of time for bringing them into force. It would be foolish to require that all provisions should be brought into force on the passing of the Act or within, let us say, two months. A period of two years, which is the period that following the report of the Delegated Powers Scrutiny Committee I have chosen to insert in my amendment, is ample for that purpose. I believe that most provisions should come into force within months of the passing of the Act, as the provisions relating to National Parks will do as the Bill at present stands. Possible delays may be specified to apply to designated provisions, and those periods of delay can be identified with particular clauses or parts of the Bill.

It is a matter of deep regret that such an approach has not been adopted here or in many other Acts. For the sake of simplicity, I propose in my amendment that all the provisions, other than the National Parks provisions and the other minor provisions referred to in Clause 105, should come into force at the expiration of two years, unless previously brought into force by order. I beg to move.

Lord Crickhowell

I have listened to the noble Lord with considerable interest and a great deal of sympathy. We are repeatedly placed in an extraordinary position in Parliament where we are asked to spend long hours—and indeed days—passing legislation. We are told that the legislation is important, and then it is never implemented by government. At the very least I believe that it would be a good idea if Ministers were forced to come back to Parliament to explain why they are not introducing the legislation which they had previously said was important.

When the legislation that set up the NRA was introduced, we were told that the keystone to that legislation was the system of statutory water quality objectives; five and a half years later we do not have one statutory water quality objective, despite strong representations made over the period by the NRA. The difficulty of course is that departments, for very good reasons, can always find difficulties about introducing something: life is never simple and straightforward. For the very best possible reasons—I do not question their motives—cautious civil servants always identify the problems. There is always a good reason for not introducing something.

We always go on looking for perfection in an imperfect world. That process can go on almost indefinitely until we reach the point when the argument is advanced that of course the world has changed, and things are not what they were thought to be when the legislation was passed five, six or seven years previously.

I have just received such a letter from the Secretary of State about statutory water quality objectives. I am told that the life of the world is very complicated and very different, and we therefore have to move cautiously. I am glad to say that we have been told that the Secretary of State now at least intends to proceed to the point of a first cautious putting of a toe into the water by allowing the NRA to have a small trial run with about half a dozen SWQOs. There is a rather hopeful indication that we may take some time in coming forward with our proposals. If anyone is listening from the department, I can disabuse him of that suggestion. We shall come forward swiftly with proposals because we have been preparing them for a long time. We happen to think that they are important. But the toe is only just being dipped into the water, with a clear indication that it is hoped that the shock will be so great that it can be swiftly withdrawn.

I suppose I do not mind, because the world changes; but we have a situation where Ministers, instead of not proceeding with something that was at the heart of a Bill, should come before Parliament to explain why it is they are not implementing the legislation. What is intolerable is that important Bills should be passed in which great sections are introduced but never implemented, either because the system rolls so remorselessly on in its search for perfection that no decision is ever taken, or because Ministers find it all so difficult and complicated that they would rather not do it.

It may be that there are very good reasons for not doing things from time to time. I am sure that in the days when I was a Minister I often thought there were good reasons for not implementing legislation; but there is an increasing tendency to ignore Parliament in all this. If we are to have legislation on the statute book, it is a good idea to have some timetables, and so I strongly support the amendment. We shall have to have some rather better excuses than those advanced in the past for not doing something like this if we are to drop this proposal when the Bill returns at a later stage.

Baroness Hamwee

I too support the amendment for the reasons that have been voiced and for another reason. I recall, while we were waiting for provisions of the Environmental Protection Act to come into force, that I had to have a diary note on a regular basis to get someone in my office to telephone the department to check whether there was any news as to when particular sections were coming into force. That was on behalf of clients. It is not just the impression that Parliament gives, but those out there in the real world who have to apply the regulations need to have certainty. I endorse the amendment.

The Earl of Lytton

I support the amendment moved by my noble friend. I must say straight away that I am glad that Section 143 registered provisions were not introduced, because they were not as well thought out as they should have been. I dare say the noble Lord, Lord Crickhowell, might disagree with me, but they would have been a disaster. Having said that, there is a precedent here. When we were discussing the planning and compensation legislation, great concern was expressed about unimplemented compulsory purchase orders floating around. If I remember correctly, we put a five-year longstop date on implementation.

It is vitally important that pieces of legislation are not left rolling around like proverbial loose cannon to be implemented or not. It is disturbing for those who have to advise on implementation and who are responsible for dealing with implementation on their own behalf that there is no degree of certainty. I support the amendment to that extent.

9 p.m.

Viscount Ullswater

I appreciate the anxieties that lie behind the tabling of Amendment No. 352, moved by the noble Lord, Lord Nathan. I am aware of the anxieties expressed in the Hansard Society report and elsewhere that a number of provisions on the statute book have never been brought into force. That point was forcefully made by the noble Lord in the debate on the legislative process which he initiated on 14th December 1994. I know that he will have noted the reply to that debate which was given by my noble friend the Leader of the House.

Understandably, the noble Lord, Lord Nathan, has no wish to see the important provisions contained in this Bill left to moulder ineffectively on the shelves. He will wish to ensure that if the Secretary of State fails to specify a date for the provisions to come into force they will automatically do so after two years.

The report on this matter contained important recommendations which will need to be considered carefully for future legislation. However, I assure the Committee that we have no intention of not bringing the provisions of this Bill into force at the earliest opportunity. We have been planning for the agencies to take over their functions in April 1996 and we hope to establish the national parks authorities at the same time. Other provisions will come into force as soon as is feasible.

However, I am cautious about legislation coming into force automatically at a particular date. Circumstances may change or provisions may on reflection be seen to be faulty. The noble Earl, Lord Lytton, indicated a provision which he said he was pleased had not been brought into effect. As regards loose cannons, one needs to make certain that they are pointing in the right direction before they are fired.

There may be cases in which it is right not to bring a particular provision into force. I do not believe that that is likely to be the case with the Environment Bill. However, the whole question of bringing legislation into force without any further action deserves more consideration. In the meantime, I hope that I have reassured Members of the Committee that in the case of this Bill there is no need for the proposed amendment, which I ask the noble Lord to withdraw.

Baroness Hamwee

I believe that many Members of the Committee have debated the provisions in this Bill on the basis that they are to Some extent interdependent. If parts of the Act, as it will be, are brought into effect without others we may find that we have debated the provisions on a false premise. I ask the Minister to bear that in mind.

Lord Nathan

I am glad to have received so much support from all sides of the Committee. Perhaps I may say respectfully to the Minister that I am not at all happy with his response. As I said in the earlier debate to which he was kind enough to refer, the issue is important to the environment and to this Bill but it goes beyond the Bill. It goes to the question of bringing Parliament into disrepute. Parliament is spending a great deal of time, energy and thought on all these matters and in the end it is resolved that a certain enactment shall be made. That is turning into a meaningless exercise because, by reason of this clause, the Government decide that they are not going to do what Parliament has decided they should do.

I am aware that the question of whether government can be compelled to exercise their power has come before the courts and the courts have decided that a provision of this kind is effective to protect the Government from doing what in my view they ought to do. I am aware that that this a judicial decision and that that is the law. However, does not alter the fact that the Executive has certain responsibilities in relation to carrying out the decisions of Parliament. There will be decisions not only of your Lordships'. House but also of another place. Ignoring the enactments made by Parliament undermines not only Parliament but also government. That is most regrettable and has far-reaching and adverse consequences.

However, after long debates on environmental issues, this is not the moment to embark on constitutional discussions. For that reason, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 105 agreed to.

Schedule 18 [Minor and consequential amendments]:

The Earl of Lindsay moved Amendment No. 352A:

Page 181, line 11, at end insert:

("The Statistics of Trade Act 1947

.In the Statistics of Trade Act 1947, after section 9 (restrictions on disclosure of information) there shall be inserted—

"Exceptions from section 9.

9A.—(1) Nothing in section nine of this Act shall prevent or penalise the disclosure by the Secretary of State of information obtained under this Act—

1. (a) to the Environment Agency or the Scottish Environment Protection Agency; or
2. (b) to an officer of either of those Agencies authorised by that Agency to receive the information.

(2) A person to whom information is disclosed in pursuance of the last foregoing subsection shall not use the information for any purpose other than the purposes of any functions of the Agency in question."").

The noble Earl said: The disclosure of information obtained under the provisions of the Statistics of Trade Act 1947 is currently restricted to government departments and certain other public bodies. Amendment No. 352A will enable disclosure to the environment agency or SEPA or to an appropriately authorised officer of either agency.

The amendment is needed for the accurate and comprehensive surveys of national waste arisings, which will be essential to the preparation of effective national waste strategies. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 352AA:

Page 184, line 29, at end insert:

("The Local Government Act 1972

. In section 223 of the Local Government Act 1972 (which includes provision for authorised members or officers of the National Rivers Authority to conduct certain magistrates' court proceedings on its behalf) in subsection (2)—

1. (a) after the words "joint authority" there shall be inserted the word "and"; and
2. (b) the words "and the National Rivers Authority" shall cease to have effect.").

The noble Earl said: I shall speak also to Amendments Nos. 375, 380, 381, 382, 383, 396, 397, 397C, 398, 399 and 399CA. This is a group of government amendments which are all minor and technical. I beg to move.

On Question, amendment agreed to.

Viscount Ullswater moved Amendment No. 352B:

Page 184, line 37, at end insert: 13A.—(1) Section 5 of the Control of Pollution Act 1974 (licences to dispose of waste) shall be amended in accordance with the following provisions of this paragraph. (2) In subsection (3) (duty of recipient of application for licence where planning permission is in force)—

1. (a) for the words "Where a disposal authority receives an application" there shall be substituted the words "Where an application has been received"; and
665
2. (b) for the words "the authority", where first occurring, there shall be substituted the words "the appropriate Agency" and, where secondly occurring, there shall be substituted the words "that Agency".

(3) In subsection (4) (duty of disposal authority to refer to National Rivers Authority etc proposals to issue licences)—

1. (a) for the words "a disposal authority" there shall be substituted the words "the appropriate Agency";
2. (b) for the words "the authority" there shall be substituted the words "that Agency";
3. (c) for paragraph (a), there shall be substituted—
   • "(a) to refer the proposal to any collection authority whose area includes any part of the relevant land; and";
   • (d) in paragraph (b), for the words "the disposal authority", in both places where they occur, there shall be substituted the words "that Agency"; and
   • (e) the words following paragraph (b) (reference of proposal to Secretary of State in certain cases) shall cease to have effect.

(4) Subsection (5) (separate provision for Scotland) shall cease to have effect. 13B.—(1) Section 6 of that Act (provisions supplementary to section 5) shall be amended in accordance with the following provisions of this paragraph. (2) In subsection (2) (conditions which may be included in disposal licences)—

1. (a) for the words "the disposal authority which issues it" there shall be substituted the words "the appropriate Agency"; and
2. (b) for the words "the authority" there shall be substituted the words "that Agency".

(3) In subsection (3) (offence of contravening a licence condition without reasonable excuse) for the words "the disposal authority which issued the licence" there shall be substituted the words "the Environment Agency". (4) In subsection (4) (duty of each disposal authority to maintain registers etc)—

1. (a) for the words "each disposal authority" there shall be substituted the words "the Environment Agency and of SEPA";
2. (b) for paragraph (a) there shall be substituted—
• "(a) to maintain a register containing copies of all disposal licences which are for the time being in force in respect of land in England and Wales or, as the case may be, Scotland;" and
• (c) in paragraph (c), for the words "the authority" there shall be substituted the words "that Agency".

(5) In subsection (5) (applications deemed to be refused if not granted within two months of receipt)—

1. (a) for the words "a disposal authority receives an application duly made to it for a disposal licence" there shall be substituted the words "a duly made application for a disposal licence was received";
2. (b) for the words "the authority", in the first two places where they occur, there shall be substituted the words "the appropriate Agency"; and.
3. (c) for the words "the authority", wherever else occurring, there shall be substituted the words "that Agency".

13C.—( l) Section 7 of that Act (variation of conditions and revocation of licences) shall be amended in accordance with the following provisions of this paragraph. (2) In subsection (1) (modification of conditions of disposal licences issued by disposal authorities)—

1. (a) the words "issued by a disposal authority" shall be omitted; and
666
2. (b) for the words "the authority", where first occurring, there shall be substituted the words "the appropriate Agency" and, wherever else occurring, there shall be substituted the words "that Agency".

(3) In subsection (2) (application of section 5(4))—

1. (a) the words "or, in relation to Scotland, subsection (5)" shall cease to have effect; and
2. (b) for paragraphs (a) and (b) there shall be substituted—
1. "(a) the Environment Agency or SEPA, as the case may be, may postpone the reference in pursuance of the said subsection (4) so far as it considers that by reason of an emergency it is appropriate to do so; and
2. (b) the Environment Agency or SEPA, as the case may be, may disregard any collection authority for the purposes of the preceding provisions of this subsection in relation to a modification which, in the opinion of that Agency, will not affect that authority."

(4) In subsection (4) (revocation of disposal licences issued by disposal authorities)—

1. (a) the words "issued by a disposal authority" shall be omitted;
2. (b) for the words "the authority", where first occurring, there shall be substituted the words "the appropriate Agency" and, in the other place where they occur, there shall be substituted the words "that Agency".

13D.—(1) Section 8 of that Act (transfer and relinquishment of licences) shall be amended in accordance with the following provisions of this paragraph. (2) In subsection (1) (transfer of licences)—

1. (a) for the words "the authority which issued the licence" there shall be substituted the words "the appropriate Agency"; and
2. (b) for the words "the authority", in both places where they occur, there shall be substituted the words "that Agency".

(3) In subsection (4) (cancellation of licences)—

1. (a) for the words "the authority which issued it" there shall be substituted the words "the appropriate Agency"; and
2. (b) for the words "the authority", in the other place where they occur, there shall be substituted the words "that Agency".

13E.—(1) Section 9 of that Act (supervision of licensed activities) shall be amended in accordance with the following provisions of this paragraph. (2) In subsection (1) (duties of the authority which issued the licence) for the words "the authority which issued the licence" there shall be substituted the words "the appropriate Agency". (3) In subsection (2) (powers of entry of authorised officers to carry out works in an emergency)—

1. (a) for the words "a disposal authority" there shall be substituted the words "the Environment Agency or SEPA, as the case may be,"; and
2. (b) for the words "the authority", wherever occurring, there shall be substituted the words "that Agency".

(4) In subsection (3) (recovery of certain expenditure from licence holders)—

1. (a) for the words "a disposal authority" there shall be substituted the words "the Environment Agency or SEPA"; and
2. (b) for the words "the authority" there shall be substituted the word "it".

(5) In subsection (4) (breach of conditions of licences)—

1. (a) for the words "a disposal authority" there shall be substituted the words "the appropriate Agency";
2. (b) the words "issued by the authority" shall be omitted; and
667
3. (c) for the words "the authority", wherever else occurring, there shall be substituted the words "that Agency".

13F.—(1) Section 10 of that Act (appeals to Secretary of State from decisions with respect to licences) shall be amended in accordance with the following provisions of this paragraph.

(2) In subsection (1) (duty of disposal authority concerned to implement Secretary of State's determination) for the words "the disposal authority concerned" there shall be substituted the words "the appropriate Agency".

(3) In subsection (3) (cases where the decision under appeal is effective pending the determination of the appeal)—

1. (a) for the words "to a decision of a disposal authority" there shall be substituted the words "if the decision in question is a decision";
2. (b) for the words "in the opinion of the authority" there shall be substituted the words "in the opinion of the body making the decision in question";
3. (c) for the words "the authority acted" there shall be substituted the words "that body acted"; and
4. (d) in paragraph (b), for the words "the authority" there shall be substituted the words "the appropriate Agency".

13G. In section 11 of that Act (special provision for land occupied by disposal authorities: resolutions etc) subsections (1) to (11) shall cease to have effect.

13H.—(1) Section 16 of that Act (removal of waste deposited in breach of licensing provisions) shall be amended in accordance with the following provisions of this paragraph.

(2) In subsection (1) (power of disposal or collection authority to serve notice on occupier of land in its area) for the words from "in the area" to "the authority may" there shall be substituted the words "in contravention of section 3(1) of this Act, any authority to which this section applies may".

(3) After subsection (7) there shall be added— (8) The authorities to which this section applies are—

1. (a) the appropriate Agency;
2. (b) any collection authority in whose area the land mentioned in subsection (1) above is situated."

13J. In section 30 of that Act (interpretation of Part I) in subsection (1)—

(a) the following definition shall be inserted at the appropriate place— "the appropriate Agency" means—

1. (a) in relation to England and Wales, the Environment Agency;
2. (b) in relation to Scotland, SEPA;";

(b) for the definition of "waste" there shall be substituted— "waste" has the same meaning as it has in Part II of the Environmental Protection Act 1990 by virtue of section 75(2) of that Act;"; and

(c) the words from "and for the purposes" to the end (which provide a presumption that anything discarded is waste unless the contrary is proved) shall cease to have effect.").

The noble Viscount said: In moving this amendment I shall speak also to Amendments Nos. 357, 358, 372E, 372F, 394A, 399A, 399B, 399D, 400A and 404. This group of amendments makes a number of minor and consequential changes to legislation' as a result of the transfer of waste regulation to the agencies, as well as the transfer of the Secretary of State's functions under the Health and Safety at Work etc. Act 1974. I shall move the amendments without further explanation because they are quite straightforward.

Baroness Hamwee

I believe that the Minister referred to Amendment No. 399D which I understand has been withdrawn from the Marshalled List.

On Question, amendment agreed to.

Viscount Ullswater moved Amendments Nos. 353 to 356:

Page 185, leave out line 7.

Page 186, line 29, leave out ("41") and insert ("41(1)").

Page 188, line 46, leave out ("89") and insert (" 95").

Page 190, line 27, leave out ("89") and insert (" 95").

The noble Viscount said: Perhaps I should say to the noble Baroness that when we reach Amendment No. 399D of course I shall not move it. I spoke to these amendments when I moved Amendment No. 342A. I beg to move.

On Question, amendments agreed to.

Viscount Ullswater moved Amendments Nos. 357 and 358:

Page 191, line 15, leave out (" 2(2) (b)") and insert (" 2(2) (c)").

Page 192, line 15, leave out ("and "a river purification board"").

The noble Viscount said: I spoke to these amendments when I moved Amendment No. 352B. I beg to move.

On Question, amendments agreed to.

[Amendment No. 358Z4 not moved.]

[Amendment No. 358A had been withdrawn from the Marshalled List.]

[Amendment No. 359 not moved.]

The Earl of Lytton moved Amendment No. 359A:

Page 201, line 10, at end insert: ("( ) In subsection (4) after the words "or do the thing and" there shall be added the words "subject to subsections (4A) to (4C) below". ( ) After subsection (4) there shall be inserted— (4A) No person shall be required to grant rights in relation to any land in accordance with subsection (4) above unless—

1. (a) the person whose consent is required—
   1. (i) has been given notice of the application for a waste management licence and the full details of the proposed condition which will require the grant of the rights, and
   2. (ii) has been given the opportunity to make objections and to have those objections heard by a person appointed on behalf of the waste regulation authority; and
2. (b) the waste regulation authority is satisfied—
1. (i) that the holder of the licence gave details of the person whose consent is required in accordance with subsection (4B) (ii) below,
2. (ii) that there is no practical alternative to the imposition of the condition in a form which requires the grant of rights in the land,
3. (iii) that the applicant has sought to negotiate with the person whose consent is required and that person has been unreasonable, and
4. (iv) that it is reasonable in all the circumstances, taking full account of the objections made by the person whose consent is required, to impose the condition.

(4B) The waste regulation authority shall require the person who has applied for a licence—

1. (a) to certify that there is no other person who has an interest in any land to which the proposed licence or any condition relates at the time the application is made and at anytime thereafter if additional land is to be affected by a proposed condition, or
2. (b) to specify the names and addresses of each person who has an interest in any relevant land and that he has served notice of the application or the proposed condition on each person in such form as may be prescribed.

(4C) Where a person is required to grant consent, the holder of the licence shall make a payment equal to the amount which would be paid for the grant of the necessary rights in the land after negotiation between a prudent and willing owner with power to grant the rights and a prudent and willing holder of the relevant licence having regard to the burdens and benefits and all other relevant matters.".").

The noble Earl said: I move this amendment for the noble Lord, Lord Stanley of Alderley, who is not able to be here this evening. He has asked me to move it on his behalf.

Section 35(4) of the Environmental Protection Act 1990 confers an absolute power on anyone with a waste management licence to carry out works to comply with the conditions of that licence on land that he does not own. In effect, that is a power to requisition the land of others for certain works despite the fact that there may be other land, possibly owned by the licence holder himself, which could equally well be used.

I quite accept that there may be occasions when it is necessary for a waste licence holder to take such action and that proper protection of the environment must come first in certain instances. It may mean that such protection comes before private interests. I accept that that is proper. But before such measures are put in place, it is right for the conditions stated in the amendment to be met.

The amendment proposes in subsection (4A) that notice must be given to the adjacent owner and an opportunity provided for that owner to make objections; secondly, it seeks to ensure that there is no practical alternative and that the adjacent owner has been unreasonable in his objections. Subsection (4B) provides that the applicant for a licence must make sure that all those other owners of land which may be affected have been informed. Subsection (4C) provides that where a person is forced to grant consent, compensational considerations should be negotiated on the basis of what is reasonable between a prudent and willing owner of land and a prudent and willing licence holder.

I accept that there are in existence guidance notes which follow along the lines of the amendment. Therefore, it may well be that the Minister will say that the amendment is not necessary. However, I must inform the Committee that that is not so, because at the end of the day it is what is set down in statute rather than what is contained in guidance notes which counts. While many councils have voluntarily and consistently applied the guidance notes, some councils—I am advised that Merseyside is a particular case—have taken the view that the statutory duty is to be interpreted strictly, notwithstanding the guidance notes, and that it is up to the adjacent owner to make representations in the context of a planning application. I believe that the planning situation is an entirely different process and, therefore, that the protection of adjacent owners is deficient. For example, the interests in their land may not be a material consideration for town and country planning purposes.

The Association of County Councils has indicated its support for an amendment along the lines that I have suggested, although perhaps not necessarily in the precise wording. Moreover, the Country Landowners' Association is also most concerned that a safeguard of the sort proposed in my amendment should be included. I should remind Members of the Committee that adjacent owners may not be owners of large estates; indeed, they may be householders, small farmers and people whose interests are vulnerable and who do not have the resources to protect their interests in the way that might be imagined.

Therefore, it is important that the amendment or a provision along similar lines should be put on the face of the Bill, unless and until every authority complies as a matter of course with the guidance notes or the terms within them become mandatory. I beg to move.

9.15 p.m.

Viscount Ullswater

I know that there are concerns about the implications of Section 35(4) of the Environmental Protection Act 1990 for owners of land adjacent to licensed waste facilities. However, we have received no evidence that it has in practice caused any difficulties. In the light of the clear guidance that we have given, I do not believe that there is any reason why it should cause any difficulty.

Section 35(4) is not a wholly new provision. It re-enacts, with modifications, Section 6(2) of the Control of Pollution Act 1974, which has been in force for more than 18 years. The original provision enabled licence conditions to require works to be carried out—for instance on adjacent land—even though the licensee had no right to carry out those works. It was expected that the licensee would negotiate those rights if he wished to continue depositing waste. If he could not, then he was able to surrender his licence and cease all operations.

The 1990 Act modified that provision so as to give the licensee such rights in relation to any land as would enable him to comply with the requirements of his licence. That was necessary because it was no longer possible to surrender a waste management licence without obtaining a certificate of completion under Section 39 of the 1990 Act, with the consequence that licence holders are required to continue monitoring landfill sites for many years after the disposal of waste has ceased.

Under the 1990 Act, waste regulation authorities must satisfy themselves that landfill sites will not cause environmental pollution or harm to human health before they can accept the surrender of a site licence. That rightly ensures that licence holders cannot walk away from their responsibilities. However, it also means they have to be put in a position to carry out their responsibilities in cases where, for example, their lease has expired or access to adjoining land is required to monitor the migration of landfill gases or polluting leachates. It is essential that holders of licences for landfill sites monitor those sites to detect changes and take corrective action before any pollution of the environment or harm to human health is caused. To do that, monitoring of groundwater and gas concentrations in soil adjacent to landfills may be necessary. Nevertheless, we have made it clear that Section 35(4) of the 1990 Act should be used only when strictly necessary.

I believe that the public interest in ensuring that landfill sites do not cause environmental pollution or harm to human health strongly supports the retention of the existing provisions of Section 35(4) of the 1990 Act. In the light of the assurances that I have given, I hope that the noble Earl will feel able to withdraw his amendment.

The Earl of Lytton

Clearly I shall not press the matter at this stage of the proceedings, and certainly not at such a late hour. I shall read the Minister's response very carefully. I thank the noble Viscount for his response. I believe that there are problems involved. However, I take the Minister's point that, if no particular cases have been brought forward, he is in a difficult position as regards taking account of something which may be regarded as a speculative threat. I believe that the situation is worse than that. I shall consider the matter carefully. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas of Chilworth moved Amendment No. 360:

Page 201, line 43, leave out ("In").

The noble Lord said: In moving the above amendment, I shall, with the leave of the Committee, speak also to Amendments Nos. 361, 362, 364, 365 and 366. The primary amendments seek to prevent the planning authorities replacing the National Rivers Authority as statutory consultees in respect of applications for waste management licences and, of course, applications for the surrender of such licences.

Perhaps I may address my remarks to the future, to the time when the Bill becomes enacted and the agency takes over those responsibilities. The involvement of the NRA in those matters was justified by its responsibility for the protection of ground and surface waters. It is difficult however to see exactly what the planning authorities are expected to contribute over and above what they have already achieved through the planning function. The planning authority is dealing at the outset with land use issues and of course, to some extent, the environmental impact of such uses. It will have had ample opportunity to impose appropriate conditions through the planning process. Similarly, planning conditions relating to restoration will not be affected by the surrender of a licence. The planning authority will retain its powers to enforce such conditions.

The guidance of July 1994—departmentally, I think, referred to as PPG23; the Committee might like to know that it is a planning and pollution control guidance document—was issued by the department after four years of consultation. That guidance emphasises the very clear distinction which has to be drawn between the quite separate roles of planning and licensing. The matters which need to be addressed under each regime are set out in that document. I remind the Committee that to a great extent I am speaking with the advice of the National Association of Waste Disposal Contractors, and it is indeed its view, and certainly my view, that if we make the planning authorities statutory consultees on licences and allow the planning authorities a second bite at the cherry, so to speak, that will encourage a further blurring of the line between planning and licensing and that would certainly go against the spirit of the guidance. I have read the document PPG23.

The amendments I have down would not in any way prevent the agency consulting a wide range of bodies, including planning authorities, but that would be on a voluntary basis. But they would certainly—if my amendments were accepted—avoid excessive and pointless bureaucracy. It would be pointless as the agency is not to be required to take into account planning authorities' representations. If one runs—as I understand is common practice—a twin-track approach, both a planning application and a licence application, there seems little point in having the planning authority decide at one end that certain conditions should apply, the licensing authorities then proposing their own regulation and their own conditions, and then the planning authority having a second bite. That seems quite pointless.

I realise the planning authorities are perhaps somewhat bruised by the change of emphasis in their responsibilities that will occur when these powers move from the NRA to the agency. But, again, they will have to stomach the change. It is sad for them; they like to hold on to their bureaucratic authority. However, I am suggesting to the Committee that this is totally unnecessary and totally against the spirit of four years' work that finished with the planning guidance. Blurring of the responsibilities will cause confusion and will result in the licensees feeling deprived of natural justice, while a bureaucratic argument between licensing authority and planning authority will delay the procedures and cost an enormous amount of money. I beg to move.

Viscount Ullswater

These amendments would remove the provisions in paragraphs 44(3) and 46(3) of Schedule 18 to the Bill which require the agencies to refer any proposal to issue or to accept the surrender of a waste management licence to the appropriate planning authority, and to consider any representations from them. They would also remove the existing requirement to consult the Health and Safety Executive where it is proposed to issue such a licence.

Much has been said in Committee about the need to ensure that the agency is properly accountable at a local level. This provision in the Bill will ensure that planning authorities continue to be informed about waste licence proposals and have an opportunity to comment on them. They have an important role to play because of their responsibilities for the land use and amenity of their area and for drawing up development plans.

Planning authorities have a legitimate interest in whether the agency intends to grant a licence or accept its surrender and in any conditions it is proposed to impose. Waste facilities will normally require both planning permission and a waste management licence and although each regime has its own separate purpose and function the dividing line is not always clear cut. The Government have recently set out guidance on the respective roles of the planning and pollution control systems in Planning Policy Guidance Note 23, as my noble friend indicated. This stresses the need for proper consultation between planning and pollution control authorities. It is, for instance, important that licence conditions do not conflict with planning conditions already imposed and that planning authorities have the opportunity to comment on any possible land use implications. Planning authorities may also need to take account of relevant licence conditions in drawing up their development plans.

I hope that for those reasons my noble friend will feel able to withdraw the amendment.

Lord Lucas of Chilworth

I am grateful to my noble friend the Minister for his explanation, which I do not find encouraging. I believe that it is a fudging of the issue, with the exception of my noble friend's mention of the HSE. I had overlooked its role in the matter. If my amendment precludes the HSE then it is defective, but only in that regard.

My noble friend said in effect that the planning authority has the first bite of the cherry. It can then impose conditions to which the licensing authority will be bound to have regard. That is not necessary. It blurs the issue if the planning authority, perhaps five years or two months later, says to the licensing authority, "We have had second thoughts. We would like to do something else". If it wants to do something different the planning authority has the authority through the planning procedures to impose different conditions and different regulations. Therefore, I do not believe that my noble friend's answer holds much water.

The dividing line in the planning policy guidance is clear. There is no doubt about it. If it is not clear why spend four years getting all the parties involved to agree to it? It came out only in July last year. It has not been put to the test. Now, six or seven months later, in this Bill we are seeking to undo all that work.

I am not happy with my noble friend's answer. I accept the point concerning the HSE. I should like to have another look at what I have set down. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 361 and 362 not moved.]

Viscount Ullswater moved Amendments Nos. 362A and 362B:

Page 202, leave out lines 41 and 42 and insert: (""National Park authority", subject to subsection (11A) below, means a National Park authority established under section 60 of the Environment Act 1995 which has become the local planning authority for the National Park in question;").

Page 202, line 47, at end insert: ("(11A) As respects any period before a National Park authority established under section 60 of the Environment Act 1995 in relation to a National Park becomes the local planning authority for that National Park, any reference in this section to a National Park authority shall be taken as a reference to the National Park Committee or joint or special planning board for that National Park.").

The noble Viscount said: I spoke to the amendments with Amendment No. 258ZB on 2nd February. I beg to move the amendments en bloc.

On Question, amendments agreed to.

[Amendments Nos. 363 to 366 not moved.]

Viscount Ullswater moved Amendments Nos. 366A and 366B:

Page 203, leave out lines 49 and 50 and insert: (""National Park authority", subject to subsection (12A) below, means a National Park authority established under section 60 of the Environment Act 1995 which has become the local planning authority for the National Park in question;").

Page 203, line 52, at end insert: ("(12A) As respects any period before a National Park authority established under section 60 of the Environment Act 1995 in relation to a National Park becomes the local planning authority for that National Park, any reference in this section to a National Park authority shall be taken as a reference to the National Park Committee or joint or special planning board for that National Park.").

The noble Viscount said: I spoke to these amendments with Amendment No. 258ZB. I beg to move.

On Question, amendments agreed to.

[Amendment No. 366C not moved.]

9.30 p.m.

Lord Lucas of Chilworth moved Amendment No. 367:

Page 204, line 20, leave out sub-paragraph (4).

The noble Lord said: I apologise to the Committee, but I now wish to move Amendment No. 367 and speak to Amendments Nos. 368 to 370. I accept that the Committee allowed me to speak to the amendments in the group led by Amendment No. 345, moved and subsequently withdrawn by the noble Baroness, Lady Hamwee. The Minister replied to me at that time, but, due to the procedure, I had no opportunity to reply to his remarks.

I asked the Minister specifically what problem had arisen since the licensing regulations came into force in May last year which had given rise to the necessity for the agency to have a crystal ball to look into the future and find out what might happen in terms of a breach. The Minister did not give me a reason for the wording but said—and I paraphrase—that they were harmonising provisions. He then referred to Section 13(1) and (2) of the Environmental Protection Act, although I may be wrong about that. He did not give me an answer about the breaching of the licensing conditions which had applied since May last year. In my submission, it is not good enough that harmonisation should be the sole reason for bringing in the diabolical words: or is likely not to be complied with".

At about 7 o'clock this evening I referred to crystal ball gazing and that is what it would amount to. Unless my noble friend can give me a good hard reason why the agency should be invited to project its ideas and determine the result of an action which has not yet taken place, I fail to see why the industry should be subjected to the quite radical and severe element of jurisdiction. My noble friend talked about the agency being there to avert a breach, to correct a problem at an early stage, to safeguard sound working practices. But he produced to the Committee no instance since licensing began to show that there is a necessity for the provision. The purpose of the amendment is to remove those totally unnecessary words from the Bill. I beg to move.

Viscount Ullswater

When the amendments were moved, I said that the serving of an enforcement notice before a licence condition had actually been breached, but where such a breach seems likely, will give the agency the opportunity to avert pollution before it happens. In addition, it will give the licence holder a chance to correct a problem before more serious and expensive consequences arise. This is a perfectly proper provision. As my noble friend said, it is a parallel power which is the same as that governing discharge consents provided by new Section 90B of the Water Resources Act and under Section 13 subsections (1) and (2) of the 1990 Act. I do not see arty reason why these parallel powers, which I believe will be in the interest of cleaning up pollution or averting pollution when it is likely to take place, should not be included in the Bill.

Lord Lucas of Chilworth

I thank my noble friend for his further remarks. Harking back to the original harmonising provisions, I am sorry that there is no harmony between me and my noble friend this evening. I should like to consider his remarks much more deeply. But at this moment I cannot accept his response. This is not a time to take the matter further. I gave notice of my intentions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 368 to 371 not moved.]

The Earl of Lindsay moved Amendment No. 372:

Page 205, line 8, leave out ("so far as extending to England and Wales").

The noble Earl said: In moving this amendment, I speak also to Amendment No. 400. These amendments would extend to Scotland the repeal of Section 50 of the Environmental Protection Act 1990. I beg to move.

On Question, amendment agreed to.

[Amendment No. 372A not moved.]

Viscount Ullswater moved Amendment No. 372B:

Page 205, leave out lines 22 to 26 and insert:

(" .—(1) Section 62 of that Act (special provision with respect to certain dangerous and intractable waste) shall be amended in accordance with the following provisions of this paragraph.

(2) In subsection (3), for paragraph (a) (regulations providing for the supervision of certain activities and the recovery of the costs from persons carrying on the activities) there shall be substituted— (a) for the supervision by waste regulation authorities—

1. (i) of activities authorised by virtue of the regulations or of activities by virtue of carrying on which persons are subject to provisions of the regulations, or
676
2. (ii) of persons who carry on activities authorised by virtue of the regulations or who are subject to provisions of the regulations, and for the recovery from persons falling within sub-paragraph (ii) above of the costs incurred by waste regulation authorities in performing functions conferred upon those authorities by the regulations;".

(3) After that subsection (which also includes provision for regulations to provide for appeals to the Secretary of State) there shall be added— (3A) This section is subject to section 95 of the Environment Act 1995 (delegation or reference of appeals etc).

. In section 63 of that Act (waste other than controlled waste) for subsection (2) (offences relating to the deposit of waste which is not controlled waste but which, if it were such waste, would be special waste) there shall be substituted— (2) A person who deposits, or knowingly causes or knowingly permits the deposit of, any waste—

1. (a) which is not controlled waste, but
2. (b) which, if it were controlled waste, would be special waste, in a case where he would be guilty of an offence under section 33 above if the waste were special waste and any waste management licence were not in force, shall, subject to subsection (3) below, be guilty of that offence and punishable as if the waste were special waste."").

The noble Viscount said: I spoke to this amendment with Amendment No. 216A. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 372C to 372DA had been withdrawn from the Marshalled List.]

Viscount Ullswater moved Amendment No. 372E:

Page 206, line 32, at end insert:

(" . —(1) Section 75 of that Act (meaning of "waste" etc.) shall be amended in accordance with the following provisions of this paragraph.

(2) For subsection (2) (definition of "waste") there shall be substituted— (2) "Waste" means any substance or object in the categories set out in Schedule 2B to this Act which the holder discards or intends or is required to discard; and for the purposes of this definition—

• "holder" means the producer of the waste or the person who is in possession of it; and
• "producer" means any person whose activities produce waste or any person who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of this waste."

(3) Subsection (3) (presumption that anything discarded is waste unless the contrary is proved) shall cease to have effect.

(4) After subsection (9) there shall be added— (10) Schedule 2B to this Act (which reproduces Annex Ito the Waste Directive) shall have effect.

(11) Subsection (2) above is substituted, and Schedule 2B to this Act is inserted, for the purpose of assigning to "waste" in this Part the meaning which it has in the Waste Directive by virtue of paragraphs (a) to (c) of Article I of, and Annex I to, that Directive, and those provisions shall be construed accordingly.

75/442/EEC

(12) In this section "the Waste Directive" means the directive of the Council of the European Communities, dated 15th July 1975, on waste, as amended by—

91/156/EEC

(a) the directive of that Council, dated 18th March 1991, amending directive 75/442/EEC on waste; and

91/692/EEC

(b) the directive of that Council, dated 23rd December 1991, standardising and rationalising reports on the implementation of certain Directives relating to the environment"").

The noble Viscount said: I spoke to this amendment with Amendment No. 352B. I beg to move.

On Question, amendment agreed to.

[Amendment No. 372EA had been withdrawn from the Marshalled List.]

[Amendments Nos. 372EAA to 372EBB not moved.]

[Amendment No. 372EC had been withdrawn from the Marshalled List.]

[Amendment No. 372ED not moved.]

Viscount Ullswater moved Amendment No. 372F:

Page 208, line 28, at end insert: (" .After Schedule 2A to that Act there shall be inserted—

"SCHEDULE 2B

CATEGORIES OF WASTE

1. Production or consumption residues not otherwise

specified below.

2. Off-specification products.

3. Products whose date for appropriate use has expired.

4.Materials spilled, lost or having undergone other mishap, including any materials, equipment, etc., contaminated as a

result of the mishap.

5.Materials contaminated or soiled as a result of planned actions (e.g. residues from cleaning operations, packing

materials, containers, etc.).

6.Unusable parts (e.g. reject batteries, exhausted catalysts,

etc.).

7. Substances which no longer perform satisfactorily (e.g. contaminated acids, contaminated solvents, exhausted

tempering salts, etc.).

8.Residues of industrial processes (e.g. slags, still bottoms,

etc.).

9.Residues from pollution abatement processes (e.g. scrubber sludges, baghouse dusts, spent filters, etc.).

10.Machining or finishing residues (e.g. lathe turnings,

mill scales, etc.).

11.Residues from raw materials extraction and processing

(e.g. mining residues, oil field slops, etc.).

12. Adulterated materials (e.g. oils contaminated with

PCBs, etc.).

13. Any materials, substances or products whose use has been banned by law.

14. Products for which the holder has no further use (e.g. agricultural, household, office, commercial and shop discards,

etc.).

15. Contaminated materials, substances or products resulting from remedial action with respect to land.

16. Any materials, substances or products which are not

contained in the above categories."").

The noble Viscount said: I spoke to this amendment with Amendment No. 352B. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 373 and 374 not moved.]

Lord Crickhowell moved Amendment No. 374A:

Page 213, line 50, at end insert:

(" . In Section 196 of that Act (trade effluent registers) in subsection (1) (which identifies the matters required to be kept available for inspection) there shall be inserted after subparagraph (e)—

• "(f) information provided or obtained pursuant to or by virtue of a condition of any consent referred to in paragraph (a) above, or of a provision of any direction, agreement or notice referred to in paragraphs (b) to (e) above;
• (g) information produced by analyses of any samples taken in connection with or for the purposes of any of the matters referred to in paragraphs (a) to (e) above".").

The noble Lord said: I am sorry to delay the Committee at this moment, but we hurried over a group of amendments earlier, and I am afraid that I missed the opportunity to speak to Amendment No. 374A. I warned my noble friend that I might wish to come back to it.

This amendment would create a requirement for sewerage undertakers to keep a record of the quality and quantity of trade effluent discharges to sewers. The agency will have powers to seek information, but the nub of the problem is that the water companies may not be able to provide the information when asked because there is no obligation on them to keep records of analytical results or information on trade effluents apart from the limited documentation—consents, agreements, directions and notices—held on the register.

What is needed is a duty on the companies to maintain a record, either on a public register or elsewhere, so that when the agency approaches the companies for information under existing duties and powers, there are data that they can give. That is the bare minimum that should be required of the water authorities. I am assured that the amendment will not require the water companies to obtain any information that they do not obtain already. They would have to have that information in the course of their trade effluent control operations. We simply seek to ensure that they keep a record of it, so that the law can be effectively enforced. I beg to move.

Viscount Ullswater

I fully appreciate the concern which lies behind the amendment. It is important that the public should have easy access to environmental information, including that held by the agencies, and that exclusions from environmental registers should be kept to the absolute minimum. This is not the first time that we have discussed the issue of the role of the new agencies and other bodies in providing environmental information to the public. I believe that we agree on the principle involved; our differences are over the details of the legislative provisions needed.

Amendment No. 374A, moved by my noble friend Lord Crickhowell, seeks to include additional information on trade effluent registers. Section 196 of the Water Industry Act 1991 puts a duty on sewerage undertakers to make available for public inspection registers which contain certain information about trade effluent consents. I believe that the registers already contain sufficient information. I am not aware of any problem in the operation of the registers. Therefore, I see no reason to add to the information that they already contain.

With that reassurance. I hope that my noble friend will see fit to withdraw his amendment.

Lord Crickhowell

The hour is late and I shall not press the amendment. I am not entirely convinced by the argument. Our experience is that the information is not necessarily always available. I shall think about what my noble friend said before we return to the matter again.

Amendment, by leave, withdrawn.

Viscount Ullswater moved Amendment No. 375:

Page 214, leave out lines 23 to 25.

The noble Viscount said: My noble friend Lord Lindsay spoke to this amendment with Amendment No. 352AA. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 376 and 377 not moved.]

Lord Crickhowell moved Amendment No. 377A:

Page 215, line 14, at end insert: 1".—( I) In section 50 (succession where person becomes occupier of part of the relevant land), for the words "to which section 49 above applies" there shall be substituted "in which the holder of a licence under this Chapter to abstract water ("the prior holder") is the occupier of the whole or a part of the land specified in the licence as the land on which water abstracted in pursuance of the licence is to be used ("the relevant land"). (2) This paragraph shall be deemed to have been in force from 1st December 1991.").

The noble Lord said: In moving this amendment, I shall refer briefly also to Amendments Nos. 378ZA and 378ZB. They were spoken to briefly by my noble friend, although I understand that they were not moved by my noble friend Lord Mills at the time. I am afraid I was not in the Committee at that time.

My noble friend the Minister made some helpful comments about the amendments. With regard to Amendment No. 378ZA, he asked noble Lords to take comfort from an undertaking to consider the amendment further. On Amendment No. 378ZB, he said that the Government had already published their intention to bring forward changes of that nature and were broadly in agreement with the amendment. With regard to Amendment No. 377A, he noted that while the amendment afforded the ideal opportunity, at that stage he could only undertake to give it further consideration.

It always seems very surprising that, although the Government accept that the amendments are admirable and should be considered, they are never prepared to accept any of them. I rise simply to register that, if they do not produce amendments at the next stage, I shall certainly ask the Chamber to approve my amendments. I beg to move.

Viscount Ullswater

Amendment No. 377A would correct the confusion caused by the 1991 consolidation over succession to water extraction licences. As I mentioned in the context of a previous amendment tabled by the noble Baroness, Lady Nicol, it is our intention to put that right. We cannot accept Amendment No. 377A as drafted, but we intend that a suitable amendment should be brought forward.

I also spoke in the same kind of glowing terms about Amendments Nos. 378ZA and 378ZB. As with Amendment No. 377A, we cannot accept those amendments as drafted, but we intend that a suitable amendment should be brought forward. With those very comforting remarks, I hope that my noble friend will see fit to withdraw his amendment.

Lord Crickhowell

I am grateful to my noble friend and I hope that in due course I shall be able to speak in glowing terms of his drafting abilities or those of his advisers. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 378 to 378ZB not moved.]

9.45 p.m.

Lord Crickhowell moved Amendment No. 378ZC:

Page 215, line 20, at end insert: (". After section 88(2) of that Act (Defence to principal offences in respect of authorised discharges) there shall be inserted— (2A) Nothing in any consent given under this Chapter shall be treated for the purposes of subsection (I) above as authorising a discharge containing substances or having properties other than those identified in the consent.".").

The noble Lord said: In moving Amendment No. 378ZC I shall speak also to Amendment No. 378B, though briefly. I had hoped not to speak because I believed discussions to be taking place outside the Chamber which would give me encouragement to wait for the Government to provide solutions to some problems that have arisen. However, I am not satisfied that that is likely to be the outcome, and in those circumstances I want to signal what is a serious problem and one to which we must find a solution.

Amendment No. 378ZC is a probing amendment to seek an explanation of the way in which the Government may approach a problem that has arisen. The Committee may recall a pollution incident that occurred last year at Wem in Shropshire in a tributary of the River Severn. A discharge from a factory to a sewer got into the river, passed down the river and caused serious pollution problems—smell problems and so forth—to the drinking water of the town of Worcester.

In normal circumstances, following such an incident, the NRA would certainly have wished to prosecute. However, the wording of discharging consents, as they have been prepared in the past not only under the present legislation but also under previous legislation, do not provide a satisfactory legal basis. I do not want to pursue the matter much further. I am giving information which is well known to all the water companies involved and which goes to the heart of the pollution control regime of the NRA at present and the agency in the future.

Confronted by such a situation, the department has a tendency to say that it is all rather difficult and legislation is not the answer—it may be a good idea to rewrite the thousands of discharge consents to try to solve the problem in that way; or it may be said that the Minister is not minded to do this or that. That will not be satisfactory. A significant problem exists and we shall have to return to it later. I am speaking therefore not because I expect my noble friend to give a detailed answer to what is an extremely difficult and complicated problem but to enable him at least to indicate that he understands that the problem is serious and that we should return to it while we have a legislative opportunity to correct the position. Otherwise, the environment agency may find that it is confronted with difficulties.

Amendment No. 378B seeks to provide additional powers to enable the agency to prevent pollution in respect of discharges to controlled waters. In a debate on an earlier amendment I suggested that it was slightly bizarre that we should allow pollution to occur and then seek to recover costs and that the agency should not be able to recover the costs of seeking to prevent pollution. I am again trying to prevent pollution by enabling the agency to serve a notice on a person carrying on a licensed discharge in a manner that involves imminent risk of pollution to require that person to take steps to remove that risk.

HMIP has such powers to issue prohibition notices and waste regulation authorities have powers under Section 38 of the Environmental Protection Act 1990 to revoke or suspend waste management licences where it appears that continuation of licence activities would cause, among other things, pollution of the environment or harm to human health. But no similar powers currently exist in relation to consented discharges under the Water Resources Act 1991. That is an anomaly.

Again, I have indications that the Government will say, "Oh well, it may be necessary for HMIP and it may be necessary for the waste regulation authorities, but we do not want to do any more about pollution and it is not necessary". I have to say, as I have said on previous occasions, that I disagree with that view, and I disagree with it at least with the authority of speaking for those who have had the job of trying to prevent pollution over the past five years and to clear it up when it has occurred. So once again, without much hope but in the confident view that such an amendment is sensible and necessary, I beg to move.

Viscount Ullswater

We have had such harmony until this moment. I know that there is a long history underlying the proposal in Amendment No. 378ZC. I also appreciate that my noble friend takes the view that enforcement actions by the NRA have been constrained by the law as it currently stands. However, we cannot accept the proposal which my noble friend has put forward for a legislative solution to the problems that the NRA has experienced. In the interests of brevity I shall mention only two major concerns in respect of the proposal.

First, we are not convinced that a legislative route is the correct one. In essence, the perceived difficulties stem from the nature of the consents that have been granted. I understand, however, that other regulatory bodies have developed consenting procedures which operate satisfactorily in these respects without the need for a legislative provision of the kind proposed. These bodies are, of course, now coming together in the agency. I am also concerned about the retrospective nature of the provision which would affect a substantial number of discharges. These concerns are all the more important given the very great variation in consents that have been granted by the NRA so that the effect of the change on a discharger would be dependent to a considerable extent on the wording which happened to be used in a particular consent perhaps granted many years before.

A legislative approach would also impose the change in respect of all existing consents without any of the safeguards that attend the usual process of modification, including the right of appeal. Perhaps in the interests of brevity I shall mention only one major concern in respect of the proposal.

Amendment No. 378B would introduce yet another element—the power to serve a prevention notice on a discharger if the agency considered that the continuation of the discharge, albeit under and in accordance with an existing consent, would carry an imminent risk of serious pollution—into the regulatory framework governing discharges to water. A prevention notice as envisaged in the amendment would be a fairly draconian measure modelled on the current powers of HMIP—and the future powers of the agency—to issue prohibition notices under Section 14 of the Environmental Protection Act 1990 in respect of prescribed processes. I do not think that adoption of this additional, and very strong, power is justified.

I say that for two main reasons. First, the provisions of the Environmental Protection Act 1990 already extend to risks of serious pollution from discharges to water, as well as air and land, from prescribed processes. It is already open to HMIP, and it will be open to the agency, to issue a prohibition notice under that Act to prevent a pollution incident. But these powers, which operate even where the process is operating in accordance with the conditions of its authorisation, are justified by the potentially dangerous nature of the processes and the substances involved. I am not convinced that this procedure should be extended to all discharge consents in respect of water.

Secondly, and this follows on from my previous comment, under the provisions of the Bill the agency will inherit the already extensive powers to control discharges to water currently operated by the NRA, including the power to prohibit certain discharges to water. We are adding to those powers through the enforcement notice procedure and we are considering extending the powers available to the agency to serve a notice on a polluter or a potential polluter, requiring the discharger to carry out anti-pollution works rather than the agency performing the works and then attempting to recoup the costs. I know that my remarks will not please my noble friend, but I hope that with what I have said he will feel content to withdraw the amendment.

Lord Crickhowell

My noble friend will be glad to hear that I am partially pleased because I have prompted him to put on the record the most hopeful aspect of the advice that his department has been giving the agency, particularly about a proposal to insert a new Section 161A to the Water Resources Act 1991. That is helpful and it may take us some way forward.

As regards my first amendment and my noble friend's response, while I understand what he said and his reluctance to go down the legislative route, there is a problem. I have identified one possible way of solving that problem. Before the Bill becomes law we need a public explanation from government of what their alternative way would be for solving the problem if it is not to be done by legislation.

I have to tell my noble friend that there are literally many thousands of discharge consents in existence going back many, many years. If we do not have a legislative change it will probably be necessary to rewrite a very high percentage of them. Furthermore, knowing what happens then, there would almost certainly be appeals against the revisions. Over the past five-and-a-half years the department has not found itself able to deal with any of the very large number of appeals that have been issued against revised discharge consents.

Luckily, I shall not have any responsibility for the situation because it will be the job of the new agency. I shall have retired contentedly to an easier life. The new agency will be faced with a nightmare situation of ineffective consents, the Government refusing to find a solution to the problem and the condition of our rivers deteriorating. I understand why my noble friend is not accepting my amendment tonight and indeed I never thought for one moment that he would. I hoped that I might not even have to amend it because we might have some useful discussions. I beg him to note that this is a very serious problem and the Government will have to find a solution to it.

Viscount Ullswater

Before my noble friend withdraws his amendment, which I hope he will do, as regards his very detailed comments on the discharge consents I would very much like to look carefully at the points he made.

Lord Crickhowell

I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

[Amendments Nos. 378A, 378AA, 378B, 378BA and 379 not moved.]

The Earl of Lindsay moved Amendment No. 380:

Page 218, line 25, leave out ("Section 126(6) (which") and insert ("Sections 126(6) and 129(4) of that Act (each of which").

The noble Earl said: I spoke to this amendment with Amendment No. 352AA. I beg to move.

On Question, amendment agreed to.

[Amendment No. 380A not moved.]

[Amendment No. 380B had been withdrawn from the Marshalled List.]

[Amendment No. 380C not moved.]

The Earl of Lindsay moved Amendment No. 381:

Page 227, leave out lines 26 to 31.

The noble Earl said: I also spoke to this amendment with Amendment No. 352AA. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 381ZA to 381A not moved.]

The Earl of Lindsay moved Amendments Nos. 382 and 383:

Page 231, line 22, leave out ("(3) or (4)") and insert ("(2) or (3)").

Page 231, line 27, leave out ("(3) or (4)") and insert ("(2) or (3)").

The noble Earl said: I spoke to these two amendments with Amendment No. 352AA. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendments Nos. 384 to 386:

Page 232, line 45, after ("authorities)") insert ("as it applies to Scotland").

Page 233, line 9, after ("Act") insert ("as it applies to Scotland").

Page 233, line 12, after ("Act") insert ("as it applies to Scotland").

The noble Earl said: This is a small group of amendments. Amendments Nos. 384, 385, 386 and 394, to which I should also like to speak, are clarifying amendments. Amendment No. 403 is a technical amendment. Amendment No. 395 is in line with our proposals to amend the period allowed for representations about proposals to issue a waste management licence. I beg to move.

On Question, amendments agreed to.

[Amendment No. 386A not moved.]

The Earl of Lindsay moved Amendment No. 387:

Page 233, line 40, leave out ("England or Wales, the Environment") and insert ("any part of Great Britain, the appropriate").

The noble Earl said: I spoke to this amendment with Amendment No. 222A on 31st January. I beg to move.

On Question, amendment agreed to.

10 p.m.

The Earl of Lindsay moved Amendments Nos. 388 to 393:

Page 233, line 46, leave out ("the Environment") and insert ("that").

Page 234, line 13, leave out ("England or Wales") and insert ("any part of Great Britain").

Page 234, line 27, after ("Wales") insert ("or Scotland").

Page 234, line 32, leave out ("England or Wales, the Environment") and insert ("any part of Great Britain, the appropriate").

Page 234, line 38, leave out ("the Environment") and insert ("that").

Page 236, line 16, leave out ("Environment Agency") and insert ("Agency to which it is given").

The noble Earl said: Again, I spoke to these amendments on 31st January when I dealt with Amendment No. 222A. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 394:

Page 236, line 34, leave out ("In section 27 (procedure on appeals under section 26)") and insert:

("(1) Section 27 of that Act (procedure on appeals under section 26) shall be amended in accordance with the following provisions of this paragraph. (2) In subsection (1) (power of Secretary of State to refer appeal to appointed person) after the word "26" there shall be inserted the words ", other than an appeal against any decision of, or notice served by, SEPA,". (3) After that subsection there shall be inserted— "(1A) As respects an appeal against any decision of, or notice served by, SEPA, this section is subject to section 95 of the Environment Act 1995 (delegation or reference of appeals)." (4)").

The noble Earl said: I spoke to this amendment with Amendment No. 384. I beg to move.

On Question, amendment agreed to.

Schedule 18, as amended, agreed to.

Schedule 19 [Transitional and transitory provisions and savings]:

Viscount Ullswater moved Amendment No. 394A:

Page 240, line 23, at end insert:

("The Control of Pollution Act 1974

As respects England and Wales, any resolution passed in pursuance of section 11 of the Control of Pollution Act 1974 (special provision for land occupied by disposal authorities: resolutions etc) which is in force immediately before the day on which the repeals in that section made by this Act come into force shall have effect on and after that day as if it were a waste management licence granted by the Environment Agency under Part II of the Environmental Protection Act 1990 subject to the conditions specified in the resolution pursuant to subsection (3) (e) of that section.").

The noble Viscount said: I spoke to this amendment with Amendment No. 352B. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendments Nos. 395 to 397:

Page 242, line 12, leave out ("21") and insert ("28").

Page 242, line 36, leave out ("subsection (5) of section 97 of') and insert ("sub-paragraph (4) of paragraph 2 of Schedule 17 to").

Page 242, line 39, leave out ("subsection") and insert ("sub-paragraph").

The noble Earl said: I spoke to these amendments with Amendment No. 384. I beg to move.

On Question, amendments agreed to.

Schedule 19, as amended, agreed to.

Schedule 20 [Repeals and revocations]:

Viscount Ullswater moved Amendments Nos. 397A and 397B:

Page 244, line 11, column 3, at end insert ("In section 11A(5), in paragraph (b) of the definition of "local authority", the words "district council".").

Page 244, line 49, column 3, leave out ("onwards") and insert ("to "such a National Park").

The noble Viscount said: I spoke to these amendments with Amendment No. 258ZB. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendments Nos. 397C to 399:

Page 245, line 51, column 3, at end insert ("In section 223(2), the words "and the National Rivers Authority".").

Page 246, line 14, column 3, after ("(3) (c) (ii)") insert (", so far as extending to England and Wales,").

Page 246, line 20, column 3, leave out from ("(5) (b)") to end of line 23 and insert (", so far as extending to England and Wales, the words "the National Rivers Authority".").

The noble Earl said: I spoke to these amendments when speaking to Amendment No. 352AA. I beg to move.

On Question, amendments agreed to.

Viscount Ullswater moved Amendments Nos. 399A and 399B:

Page 246, line 24, column 3, at beginning insert:

	("In section 5, in subsection (4), the words following paragraph (b), and subsection (5).
	In section 7, in subsections (1) and (4), the words "issued by a disposal authority" and, in subsection (2), the words "or, in relation to Scotland.subsection.
	(5)". In section 9(4), the words "issued by the authority"
	In section 11,subsections (1) to (11)
	In section 30(1), the words from "and for the purposes" to the end.").

Page 248, line 53, column 3, at end insert ("In Schedule 2, paragraph 9(2) and (3).").

The noble Viscount said: I spoke to these amendments with Amendment No. 352B. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsaymoved Amendments Nos. 399C and 399CA:

Page 250, line 44, column 3, at end insert ("In Schedule 17, paragraphs 3(2) and (3), 5(2), 7(9) (d) and 9(1).").

Page 250, line 44, column 3, at end insert ("In Schedule 25, paragraphs 43(1) and 48(3) and (4).").

The noble Earl said: My noble friend Lord Howe spoke to Amendment No. 399C with Amendment No. 335ZBA, and I spoke to Amendment No. 399CA with Amendment No. 352AA. I beg to move.

On Question, amendments agreed to.

[Amendment No. 399D had been withdrawn from the Marshalled List.]

Viscount Ullswater moved Amendments Nos. 399E and 399F:

Page 253, line 4, column 3, after ("(6)") insert ("in subsection (11), in the definition of "National Park authority", the words "subject to subsection (11A) below" and subsection (11A)").

Page 253, line 9, column 3, leave out ("and subsection (8)") and insert ("subsection (8), in subsection (12), in the definition of "National Park authority", the words "subject to subsection (12A) below" and subsection (12A)").

The noble Viscount said: I spoke to these amendments with Amendment No. 258ZB on 2nd February. I beg to move.

On Question, amendments agreed to.

The Earl of Lindsay moved Amendment No. 400:

Page 253, line 17, column 3, leave out ("so far as extending to England and Wales").

The noble Earl said: I spoke to this amendment with Amendment No. 372. I beg to move.

On Question, amendment agreed to.

Viscount Ullswater moved Amendment No. 400A:

Page 253, line 31, column 3. at end insert ("Section 75(3).").

The noble Viscount said: I spoke to this amendment with Amendment No. 352B. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 401 to 401C not moved.]

Viscount Ullswater moved Amendment No. 402:

Page 255, leave out line 53.

The noble Viscount said: I spoke to this amendment with Amendment No. 347. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsaymoved Amendment No. 402A:

Page 256, line 2, column 3, at end insert ("18(a),").

The noble Earl said: My noble friend Lord Howe spoke to this amendment with Amendment No. 335ZBA. I beg to move.

On Question, amendment agreed to.

[Amendment No. 402B not moved.]

Viscount Ullswater moved Amendments Nos. 403 and 403A:

Page 257, line 45, column 3, leave out from ("(9),") to end of line 47 and insert ("and 119(54) (a) (ii) and (h) (iii) and, in paragraph 167, sub-paragraph (2), in sub-paragraph (3) the words "(1) (g),", and sub-paragraphs (4), (5), (7) and (9).").

Page 257, line 48, leave out column 3 and insert ("In section 8, in the definition of "National Park authority" in subsection (5), the words "subject to subsection (6) below" and subsection (6).").

The noble Viscount said: I spoke to these amendments with Amendment No. 258ZB. I beg to move.

On Question, amendments agreed to.

Viscount Ullswatermoved Amendment No. 404:

Page 257, line 48, column 3, at end insert ("In Schedule 18, paragraphs 13A to 13J .").

The noble Viscount said: I spoke to this amendment with Amendment No. 352B. I beg to move.

On Question, amendment agreed to.

Schedule 20, as amended, agreed to.

House resumed: Bill reported with amendments.

House adjourned at seven minutes past ten o'clock.