COMMONS AMENDMENT (Hansard, 11 July 1995)

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 34. It may be helpful if I speak at the same time to Amendments Nos. 48, 58 to 62, 66, 76 to 86, 178 and 273.
Many of the amendments in this group make minor or technical changes to the provisions. But they also address a number of specific issues, which I think it only proper to draw to the attention of your Lordships.
Amendments Nos. 59 to 62 deal with the question of appeals against remediation notices. At first instance appeals of this kind go to the magistrates' court where the notice has been served by a local authority and to the Secretary of State where it has been served by the appropriate agency. Without specific further provision, appeals against decisions of the magistrates' court would only be available on points of law to the High 1492 Court. In the light of the complex legal issues and technical evidence which may be involved in some of the cases, we feel that it is appropriate that in some circumstances there should be a wider right to appeal against a decision of the magistrates' court. These amendments will allow regulations to be made providing for appeals to any specified court or tribunal.
Proceedings for the offence of non-compliance with a remediation notice will also be brought in the magistrates' court; or in Scotland, the sheriff court. The penalty in either case would be a fine. Amendment No. 66 enables an enforcing authority, if it is of the opinion that such proceedings would afford an insufficient remedy, to take proceedings in the High Court, or in Scotland in any court of competent jurisdiction, to ensure compliance with a remediation notice. That power, which matches equivalent powers already in place under the statutory nuisance regime and proposed elsewhere in the Bill for other pollution control regimes, will give enforcing authorities the ability to seek injunctive relief where that is appropriate.
Amendments Nos. 76 to 81 make changes to the provisions relating to the remediation registers to be maintained under this regime. At Committee stage, my noble friend Lord Ullswater, in response to an amendment moved by the noble Lord, Lord Northbourne, undertook to consider the question of the inclusion of information about actual remediation which is carried out on the land. Amendment No. 78 provides for the person who carries out the remediation, or the owner or occupier of the land, to provide such information for inclusion on the register. The Government do not believe that it would be appropriate for the enforcing authority to guarantee that information or to provide any "certificate of compliance". The amendment therefore makes clear that the authority maintaining the register is not responsible for the accuracy or otherwise of the information which is provided in it.
Amendment No. 81 provides for the exclusion of information from the remediation registers where questions of commercial confidentiality or national security are involved. These provisions broadly reflect their equivalents elsewhere in the Environmental Protection Act 1990 which deal with other registers of regulatory actions. But for the purposes of these remediation registers, commercial interests which relate only to the value of the contaminated land in question, or otherwise to the ownership or occupation of the land, are to be disregarded for the purposes of considering whether information should be regarded as commercially confidential.
Amendment No. 84 makes significant changes to the provision providing an exemption from personal liability for insolvency practitioners. The noble Earl, Lord Lytton, expressed concern in our earlier debates that receivers appointed under the Law of Property Act 1925 should be included within this exemption. I am happy to confirm that the definition of those persons "acting in a relevant capacity" who will benefit from the exemption includes all such receivers. The amendment also clarifies what the exemption covers. Insolvency practitioners and receivers will not be personally liable 1493 to bear any of the costs of remediation, nor can they be guilty of an offence of non-compliance with a remediation notice. However, the effect of this amendment is not intended to be the creation of a polluter's charter for insolvency practitioners. They will lose the benefits of the exemption with respect to any remediation which may be made necessary as a result of the presence of contaminants which are there in consequence of the acts or omissions of the insolvency practitioners which are unreasonable for a person who is acting in their capacity to do.
Amendment No. 86 achieves two purposes. First, it relocates provisions relating to the interaction of this contaminated land regime with other environmental regimes. That includes the provision relating to illegal deposits of waste and fly tipping which was introduced at Third Reading in response to an amendment by my noble friend Lord Stanley of Alderley. Secondly, the amendment provides for regulations to apply the contaminated land regime to radioactive contamination. The new Section 78T follows closely the model provided by Section 78 of the Environmental Protection Act 1990 which dealt with the application of the waste management licensing regime to radioactive waste. The White Paper on radioactive waste policy published on 4th July confirms that the Government intend to use this regulation-making power and to bring in a regime for radioactive contamination soon after the main provisions come into force.
Amendment No. 273 reworks the provision in Schedule 18 which removes the potential overlap between this contaminated land regime and the existing statutory nuisance regime in Part III of the Environmental Protection Act 1990. At Report stage my noble friend Lord Ullswater, in response to an amendment moved by the noble Baroness, Lady Hilton of Eggardon, promised that the Government would look further at this issue. Having done so, we have revised the formulation in order to ensure that, so far as is possible, there is neither an overlap between the two regimes nor a lacuna between them.

§ Lord Stanley of Alderley
My Lords, perhaps I may raise a point which concerns not only this amendment but the next three groups of amendments which deal with contaminated land.
First, I should like to thank the Government for accepting in principle many of the concerns on contaminated land raised by your Lordships and in particular, as my noble friend said, by the noble Lord, Lord Northbourne. I hope that my noble friend will not accuse me of looking a gift horse in the mouth when I say that it is a pity that a great deal is being left until we see the guidance and regulations. I wonder whether my noble friend can give me any idea of the how, why and when of them. Can he say who will be consulted on the guidance notes and regulations? However, I thank noble Lords and my noble friend for many of the amendments.

§ Lord Peyton of Yeovil
My Lords, I should like to make two brief points. First, I understood my noble friend to say just now that there would be no guarantee of the accuracy of the contents of a register which was managed by an agency. What is the point of being so coy about it? What is the point of having a register at all unless someone who needs to consult it has a reasonable chance of being able to rely upon its accuracy?
Secondly, in support of my noble friend Lord Stanley of Alderley, I should like to comment on the guidance. Again and again we are faced with long and complicated Bills. There are many clauses in the present Bill which do not yield up their meaning to casual inspection. They need to be studied with very great care before any meaning can be discovered with accuracy or some feeling of confidence.
An awful lot is left to guidance. I do not feel that that should go without some mild protest on the part of your Lordships to say to the Government that they should endeavour to make their purposes clear at the time of legislating. They should not leave it until after the event, when there is no one to argue with them and, so far as I can see, they are entirely free to say, "This is what we meant and this is our advice to those who are affected by the Act". I hope my noble friend will take the point seriously. It is one which is of great concern.

§ Lord Jenkin of Roding
My Lords, I echo what was said by my noble friend Lord Stanley of Alderley regarding the Government recognising many of the anxieties voiced while the Bill was passing through this House. The number of pages devoted to the Commons amendments on contaminated land is evidence of the substantial changes made when the Bill was in another place.
The specific aspect about which I should like confirmation relates to the role of lenders; that is, bankers, building societies and so forth. It was raised at every stage of the Bill in this House and again in another place. My right honourable friend the Secretary of State, Mr. Gummer, was good enough, when meeting a delegation of lenders, to make it absolutely clear that in the Government's mind there was no intention whatever that lenders per se should become liable to have remediation notices served and to all the consequences that would flow from that.
I am informed that some provisions have been made in the Bill—it is a little difficult to identify them in the many pages we have—which have gone part of the way to reflect that undertaking. What was said in another place by my right honourable friend Mr. Atkins was that this would be made abundantly clear in the guidance. While I understand the anxieties of my noble friend Lord Peyton in relation to guidance, can my noble friend Lord Ferrers give an unequivocal assurance to the House today that when the guidance is published it will include a clear statement that lenders per se are not to be the subject of contaminated land proceedings by way of notice of remediation? The interests outside this House were given to understand that that is the Government's intention, but they would like to see it in the report of this debate and in the guidance when it is published.

Earl Ferrers
My Lords, first, I take any point made by my noble friend Lord Peyton seriously, not least his comment that these "technical" Bills, as he put it, do not yield up their meaning easily on casual inspection. I could not more heartily agree with him on that. But that often happens in legal matters. When matters become legal and technical they are difficult to understand. I cannot apologise to my noble friend for the Bill's complexity or for it being relatively difficult to understand; that is the nature of the beast.
My noble friend Lord Peyton was concerned that the register was not accurate. He asked what the point was of putting something into the Bill and then saying that its accuracy could not be guaranteed. The point is that Amendment No. 78 provides for the person carrying out the remediation to provide such information as he can to be placed on the register. We believe that that is absolutely right. However, it is not right that the agency which runs the register should be held responsible for the accuracy of the information it contains. One assumes that it will be accurate, and I hope that it will be. But technically it is not possible to give a once-and-for-all guarantee that a site is no longer contaminated. The physical circumstances of the site can change over time and contamination may occur or containment works which have been undertaken may fail. It is appropriate that the register should say that such-and-such happened, that such-and-such has been done, and for the correct conclusion to be drawn from that.
My noble friend Lord Stanley expressed an appreciation for the way in which some of the points have been met, and I am grateful to him for that. He asked when the guidance would be made: how, when and who would be consulted. The best that I can tell him is that consultation will probably be carried out at the end of the year and is expected to be very wide.
My noble friend Lord Jenkin referred to the lenders. That is an important matter. However, it may be more appropriate to deal with it when we come to the next group of amendments, if my noble friend is happy for me to answer him at that time.