§ 9. After Clause 25, insert the following clause:—
§ Power of SEPA to obtain information about land
§ —(1) Where, with a view to performing a function conferred on it by any enactment, SEPA considers that it ought to have information connected with any land, it may serve on one or more of the persons mentioned in subsection
§ (2) below a notice—
- (a)specifying the land, the function and the enactment; and
- (b)requiring the recipient of the notice to furnish to SEPA, within such period of not less than 14 days from the date of service of the notice as is specified in the notice—
- (i) the nature of his interest in the land; and
- (ii) the name and address of each person whom he believes is, as respects the land, a person mentioned in subsection (2) below.
§ (2)The persons referred to in subsection (1) above are—
- (a)the occupier of the land;
- (b)any person—
- (i) who has an interest in the land as owner, creditor in a heritable security or lessee; or
- (ii) who directly or indirectly receives rent for the land; and
- (c)any person who, in pursuance of an agreement between himself and a person interested in the land, is authorised to manage the land or to arrange for the letting of it.
§ (3)A person who—
- (a)fails to comply with the requirements of a notice served on him in pursuance of subsection (1) above; or
- (b)in furnishing any information in compliance with such a notice makes a statement which he knows to be false in a material particular or recklessly makes a statement which is false in a material particular,
§ shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.'.
The Earl of Lindsay
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9, and at the same time I shall also speak to Amendments Nos. 175, 258, 260, 262, 266, 278, 281, 289, 305 and 323. These all make minor improvements to the provisions relating to the new agencies.
1484 Amendments Nos. 9 and 260 are intended to ensure that the agencies will be able to require the owner, tenant or occupier of a particular piece of land, and any other person with an interest in that land, to provide information as to which persons have an interest in that land. The power is needed by the agencies in order to enable them to carry out their pollution control and prevention functions.
Amendment No. 175 inserts a new clause which puts beyond doubt the ability of Ministers, the new agencies and local enforcing authorities to exchange information which will help them in carrying out their environmental functions. It makes clear that they can disclose such information to each other without risk of civil or criminal liability.
Amendments Nos. 262, 278, 289 and 323 are consequential on the new clause. They amend the disclosure of information provisions in other environmental legislation to ensure that they are consistent with its provisions.
My noble friend Lord Mills spoke to an amendment in Committee in this House, tabled in his name and that of my noble friend Lord Crickhowell, which would have extended the agency's powers to institute civil proceedings. At the time my noble friend Lord Ullswater said that he did not think the amendment was necessary. The Government have, however, decided that it would be desirable for the agency to have express powers to take proceedings in the High Court to secure compliance with an enforcement notice in cases where it considers that prosecution would be ineffectual.
We have therefore brought forward Amendments Nos. 258 and 281 which give both the agencies additional powers to make sure that holders of water discharge consents cannot ignore the conditions in their licences. Amendment No. 305 makes a similar provision in respect of registrations to keep radioactive materials or to accumulate or dispose of radioactive waste.
The provisions are modelled closely on powers already available to HMIP and HMIPI in respect of authorised IPC processes.
Amendment No. 266 seeks to deal with a concern about Section 4 of the Environmental Protection Act 1990. Under Section 4(4) my right honourable friend the Secretary of State has the power to direct that HMIP or HMIPI regulate an industrial process which would ordinarily be regulated by a local authority. Under Section 4(8) such a direction must be advertised. However, one of the reasons he may see fit to issue such a direction is that the operation of the process has implications for national security. In such cases it is clearly not desirable that there is an obligation to advertise.
This amendment would ensure that national security, which the Secretary of State is trying to protect in issuing the direction, will not be compromised by an obligation to advertise. I beg to move.
§ Moved, That the House do agree with the Commons in their Amendment No. 9.—(The Earl of Lindsay.)1485
§ Lord Renton
My Lords, I wish to refer to Amendment No. 175 on pages 45 to 47 in the list of Commons Amendments. I have tabled two amendments to the new clause which look rather technical, but they attempt to cure a defect in the Bill.
I hope that your Lordships will bear with me if I try to explain it. Subsection (3) of the new clause provides for the exclusion of confidential information from the public registers in relation to contaminated land. The subsection is designed to ensure that the enforcing authorities respect the confidentiality of information which they obtain in the course of carrying out their pollution control functions.
I have tabled Amendment No. 175A and with it, as a subsidiary amendment, Amendment No. 175B. Without my amendments, there would be a serious imbalance in the Bill. On the one hand, the authorities would be forbidden to place confidential information on the registers and, on the other hand, they would be at liberty to release that same information to anyone who requested it under entirely separate statutory provision; namely, the environmental information regulations. We are up against a conflict in the law.
If confidential information could be revealed in that way, industry and owners of property would inevitably be much less willing to share their information voluntarily with the regulatory authorities. If that were so, it would result in a much less healthy relationship between regulators and regulated. It would inhibit the Government's wise policy of encouraging voluntary reductions in pollution and a voluntary regeneration of contaminated or derelict land.
The amendment plugs the loophole. I am advised by a Queen's Counsel who is in practice—it is not an opinion which I first formed as a rusty old lawyer—that we must be careful. Disclosure of information may assist in the discharging authorities' environmental functions and therefore be expressly permitted by Section 111 of the Local Government Act 1972.
There is a further conflict between what will become an Act of Parliament when we pass the Bill and what is an Act of Parliament, the Local Government Act 1972. So we must be careful. From various points of view it seems to be in the public interest, first, to ensure the voluntary disclosure of as much information as is relevant; and, secondly, to ensure that we get our duty as legislators right.
Your Lordships may think it strange that I have to discuss the amendments which arise late on the Marshalled List of Commons Amendments, but I do so because of the groupings. If my noble friends on the Front Bench would prefer not to give an answer now because my amendments are starred, then I am quite willing to raise them later today when we reach Amendment No. 175. I do not believe it is appropriate for me to move my amendments now; I shall do so in due course. Meanwhile, I hope that your Lordships will forgive me for necessarily anticipating the situation.
§ Baroness Hamwee
My Lords, I had thought that it might be for the convenience of the House if the noble Earl responded first. However, since I am on my feet, I wish to make a short point on Commons Amendment 1486 No. 175 to which the Minister spoke. It enables the new agencies to provide information. In other words, it is a discretion for the new agencies, it is not mandatory. I understand the need for a statutory provision to enable a new agency to provide information and although it will be able to do that, it may also say: "No, we refuse to do so". It will be interesting to the House to know whether the Minister can confirm that the agency has those powers. I imagine that if the agency were to take that stand on too many occasions and refuse to provide Ministers with information, then the Ministers would exercise their ability as appointors of members of a quango and would dis-appoint those members. Perhaps the Minister can clarify that being able to provide information does not mean that the agency will be required to provide information.
The Earl of Lindsay
My Lords, as to my noble friend's Amendments Nos. 175A and 175B to which we shall come formally later on, I shall answer now. The issue of commercial confidentiality has been discussed on a number of occasions during the consideration of this Bill. I recognise that this is an important concern both to businesses which do not wish their commercial interest to be put at risk and to those seeking environmental information who wish to ensure maximum freedom of access.
As I understand it, my noble friend is concerned that, while the Government have made provision for commercially confidential information to be excluded from registers, there appears to be no general restriction in the Bill on release of information obtained by an enforcing authority in the carrying out of its functions. Under the access to environmental information regulations of 1992, whereas information affecting matters to which any commercial or industrial confidentiality attaches must not be released if it is the subject of statutory restrictions on disclosure, where there are no such statutory restrictions there is discretion as to whether it should be withheld. My noble friend therefore appears to be concerned that information which is acknowledged by the authorities to be commercially confidential, and to be withheld from the registers, could nevertheless be released in response to an inquiry under the environmental information regulations.
This matter has been considered carefully in the light of representations made to the department, including legal opinion. I cannot accept the proposed amendments which the Government continue to believe are unnecessary. Confidential information obtained in exercise of statutory powers for a particular purpose may only be used by them for that purpose. This general principle explains the need for, and is reinforced in the context of this Bill by, the terms of the Government's new clause making explicit provision for the disclosure of such information between enforcing authorities and Ministers. The environmental information regulations of 1992 require environmental information to be disclosed on request in certain circumstances. There is no obligation under those regulations to disclose environmental information which is commercially confidential. It follows that any regulatory authority would be most unwise to release environmental 1487 information obtained in exercise of statutory powers for a particular purpose and which it accepts is genuinely commercially confidential.
In response to the noble Baroness, Lady Hamwee, an agency can refuse but we do not expect it to do so in any circumstances other than exceptional ones.
I finish by saying that safeguards are built into the Bill on the disclosure of information. Nothing in the provisions will authorise the agencies to disclose to local enforcing authorities any information, the disclosure of which would be contrary to the interests of national security or employment census information obtained under the Statistics of Trade Act 1947. Nor is a local enforcing authority which is in possession of any such information authorised to pass it to any other local enforcing authority.
Moreover, no information disclosed by virtue of this provision which is commercially confidential or which relates to issues of national security may be disclosed to anyone else. A general legal presumption to the effect that information may be used only for the statutory purpose for which it is collected, or in this case disclosed, will also apply. I hope that I have laid to rest the anxieties of my noble friend and the noble Baroness.
§ 4 p.m.
§ Lord Renton
My Lords, perhaps I may have the leave of the House to reply briefly, instead of raising the matter later. I feel bound to point out that, according to advice that I have received from an experienced practising Queen's Counsel, there is no authority for the proposition that my noble friend has put forward. Statutory powers may generally be exercised for more than one statutory purpose. Disclosure of information may assist in the main statutory purpose, and therefore be in accordance with it.
Disclosure of information may also assist in the discharge of the authorities' environmental functions and therefore be permitted expressly by the Local Government Act, as I said. It is very regrettable that the department is not prepared to accept this offer of help to remove what is a defect in the Bill. I do not suppose in view of what I believe is the wrong advice that my noble friend received, that much can be done about it now. I merely express my regret.
§ On Question, Motion agreed to.