Lords Sitting of 7 March 1995

Preamble
>The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Sheffield.

Breast Cancer: Specialist Care
Baroness Jay of Paddington Baroness Jay of Paddington asked Her Majesty's Government:
Whether they will develop a national strategy to provide uniform specialist care for women with breast cancer.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege):Yes, my Lords. We have a national strategy which we are developing further.
Baroness Jay of Paddington: My Lords, I thank the Minister for that reply; but I find it slightly disappointing. I had hoped that in this week of International Women's Day she might have taken the opportunity to express broader support for a wide initiative to reduce our appalling rate of mortality from breast cancer which, as I am sure noble Lords know, is the worst in the world. Does the noble Baroness intend that the Government will support the all-party Bill recently introduced in another place to develop a formal national strategy?
Baroness Cumberlege: My Lords, I am not sure how the noble Baroness can say that our rates are the worst in the world. International comparisons are misleading. Only the UK, Denmark and the Netherlands have comprehensive cancer registry systems. With regard to the Bill—wait and see.
Baroness Young: My Lords, does my noble friend agree that this is an extremely serious issue for women, and that the Government have taken a great many steps to improve the situation? Can she confirm whether it is the case that breast cancer is far more prevalent in countries in northern Europe than in southern Europe, and in northern parts of the United States than in southern states? If that is the case, are we undertaking research into that aspect? That should reveal factors which we clearly do not understand at present.
Baroness Cumberlege: Yes, my Lords, my noble friend is right. We are doing more research into cancer, and particularly breast cancer. We spend £100 million a year on research and development work.
We do not have comprehensive cancer registry systems across the world; and in the USA only 8 per cent. of the population is covered. Therefore it is a difficult area in which to research. My noble friend is right in that we are taking a number of initiatives, and recently we undertook consultation with the publication of the document entitled, A Policy Framework for Commissioning Cancer Services. The results of that
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consultation are now in and officials are considering the 300 replies that we received. The results will be submitted to Ministers very shortly.
Baroness Robson of Kiddington: My Lords, does the noble Baroness agree that one of the problems is that in this country we suffer from a great shortage of clinical oncologists? I am informed that we have 272 clinical oncologists, all of whom see about 560 new patients a year (whereas the recommended maximum is 350 new patients a year) and in the United States the figure is only 200. Does the noble Baroness agree that if we doubled the number of clinical oncologists, we could save thousands of lives a year?
Baroness Cumberlege: My Lords, that is one of the issues that has been addressed in the consultation document to which I referred, The noble Baroness is right; we need more oncologists. Indeed, the Government have encouraged health authorities to expand the manpower rate of 2 per cent. a year.
Baroness Jeger: My Lords, can the noble Baroness assure the House and the public that they will make sure that the Royal Marsden Hospital is safe from any depredations of this Government? The Royal Marsden is a world-renowned hospital for teaching and training; and if there is any reduction in the work of that hospital, among others (I do not say it is the only one), it will be very difficult to staff the new breast cancer units which we, the Government and everybody want.
Baroness Cumberlege: My Lords, the noble Baroness is right. The Royal Marsden has a very fine reputation, as do other hospitals in the country, including the Christie Hospital in Manchester. The noble Baroness will remember that when we looked at the reorganisation of clinical services in London, we agreed that the Royal Marsden should stay as a trust and should offer its services in the same way as other hospitals.
Lord Renton: My Lords, can my noble friend say to what extent breast cancer has so far been found to be hereditary?
Baroness Cumberlege: My Lords, we believe that it is one of the factors, but we cannot pinpoint exactly how strong it is in relation to others such as diet and lifestyle. That is part of the research which is being carried out.
Lord Molloy: My Lords, does the noble Baroness agree that the great value of the noble Baroness's Question is that it has the support of the Minister and members of all parties in this House? Intensified research is now called for so that we in this House can ensure that women who suffer from breast cancer know that their case is understood and that tremendous research will now be undertaken.
Baroness Cumberlege: My Lords, the noble Lord is right. Indeed, as I have said, we spend £100 million a year on research; and £400 million is spent by the cancer

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charities. Pharmaceutical companies spend a further £300 million. Therefore investment in research into this cancer is incredibly large.
Lord Ironside: My Lords, is my noble friend aware that the European Union third action plan on cancer now proposes that women who have a "suspect image"—those are not my words but the words of the Commission in Brussels—should be screened in addition to those who are in the 50 to 69 year age group? The plan also emphasises that proper quality assurance controls should be put in place in all the processes involved with breast cancer. Does the Minister therefore believe that our own programme on screening should be expanded so that it includes those people with a symptomatic background? I shall not use the Commission's words but those that the Minister has used before. Will she therefore ask the British Standards Institution whether it will draw up an interpretation of ISO 9000 which will provide sufficient quality assurance control, for the profession to use?
Baroness Cumberlege: My Lords, I should like to take this opportunity to pay a tribute to my noble friend who has worked tirelessly for the organisation, RAGE, which concentrates on breast cancer. I know that he feels strongly about quality assurance standards. However, we believe that to have a single quality assurance standard would be difficult because different cancers require a whole range of different treatment machines. It depends on the site, the stage, the size and the kind of cancer as well as the age and general health of the patient. However, my noble friend will know of the work that we have been doing in Manchester and Bristol and of the two reports that were issued in July 1991.
Baroness Macleod of Borve: My Lords, can the Minister assure the House that enough money is being poured into this problem? Does she know that 520 different charities are raising money for this project, and indeed for the whole of the cancer problem?
Baroness Cumberlege: My Lords, I am convinced that, as in other fields, the National Health Service could always spend more money, albeit that every year we increase its budget. However, in this specific field, the cancer charities are remarkable. They raise an enormous amount of money. They do some very interesting and worthwhile work. But I also should like to remind your Lordships that ours was the first country to introduce a full screening programme for breast cancer. Indeed, we put a huge amount of investment into that.

Buckingham Palace: Traffic Delays
2.47 p.m.
Lord Brabazon of Tara Lord Brabazon of Tara asked Her Majesty's Government:
Whether they are satisfied with the operation of the new traffic arrangements at the Queen Victoria Memorial opposite Buckingham Palace.
The Parliamentary Under-Secretary of State, Department of National Heritage (Viscount Astor): My Lords, yes.
Lord Brabazon of Tara: My Lords, I am grateful to my noble friend for that reply. However, he must be one of the few people who are so satisfied. He should try asking one or two London taxi drivers for their opinion. Will my noble friend confirm that the experiment is to be reviewed after a six-month period? Why, then, does the work look so permanent? Can the Minister assure me that, if the scheme is as unpopular in six months' time as it now is, it will be scrapped and matters will return to normal?
Viscount Astor: My Lords, the new traffic arrangements have been in place for six weeks and are generally working well. There should be an improvement once the construction works are complete. That is scheduled for early April. At present road widths are reduced, temporary traffic lights are in operation, and construction vehicles are on site. However, when those are cleared away, we believe that traffic should move easily through the area. My noble friend is absolutely right. The approval which Westminster City Council gave included a condition requiring a traffic survey to be carried out within six months of completion of the scheme. We intend to do that and review the arrangements after six months.
Lord Stoddart of Swindon: My Lords, it is reputed that Her Majesty herself has expressed concern about the new traffic arrangements. Will the noble Viscount tell me whether Westminster City Council undertook its proper statutory duty of consulting the Queen as a resident of that area?
Viscount Astor: My Lords, I am happy to tell the noble Lord that Her Majesty the Queen was consulted about the plans to pedestrianise the area in front of Buckingham Palace. We have recently been monitoring the traffic at each of the junctions. We have no evidence of lengthy delays occurring. The maximum waiting time for one change of lights is 65 seconds. Even if a motorist has to wait for two or three changes of lights—that is not generally the norm even during the rush hour—the delay would be just over three minutes. I realise that some noble Lords may have had to wait slightly longer. However, the worst build up of traffic has generally occurred when guard changes are taking place and the horse guards pass through the area. But that was the case previously, before the recent arrangements.
Baroness Macleod of Borve: My Lords, will the Minister assure the House that when the six months have elapsed, due consideration is given to all those who in exasperation have written or telephoned concerning the difficulty they have experienced in reaching your Lordships' House via the Palace?
Viscount Astor: My Lords, we shall obviously take account of all views. However, there are supporters for the changes which, I remind your Lordships, follow a recommendation by the Royal Parks Review Group, chaired by Dame Jennifer Jenkins, in May 1993. The alterations are part of a scheme to provide better

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segregation of traffic and pedestrians and safe crossing facilities for pedestrians at each junction. There have been over 60 accidents to individuals over the past three years near the Queen Victoria Memorial. We must ensure that this important area of London is not an accident black spot.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that his original Answer indicates that he never travels along that route? Is he further aware that those of us who have to do so regularly consider that there has been a great deterioration in traffic conditions since the changes were introduced?
Viscount Astor: My Lords, I travel by that route every morning on the way to work. I must point out that the arrangements arc not finalised; they are temporary. The roadway is narrower than it will be when finished. We must wait for the full work to be completed and then consider how it is working.
Lord Clinton-Davis: My Lords, will the Minister give an assurance to the House that the next time his driver takes him around the area he puts his newspaper down and looks at what is happening? Will he convey to his right honourable friend that on all sides of the House there is great anxiety about the matter? Simply to say that the arrangements are generally working well is completely contrary to the opinions of the overwhelming majority, not just of those in this House but of all users of the area. The sooner it gets back to what it was the better.
Viscount Astor: My Lords, the scheme was drawn up following wide-ranging consultations with bodies which included English Heritage, Westminster City Council, the traffic director for London, the police and the Army. Planning approval was given by the council. I appreciate your Lordships' anxieties and merely point out that the works are not yet completed. It is a site; it is not the final plan. I reiterate that we shall review the traffic arrangements within six months of the work being completed. I can give that assurance to your Lordships' House.
Lady Saltoun of Abernethy: My Lords, will the mess he cleared away by 17th June, when the Trooping the Colour takes place?
Viscount Astor: Yes, my Lords, the work will be completed by April.
Baroness Hooper: My Lords, will my noble friend confirm that the pedestrianisation of the area immediately outside Buckingham Palace is not part of a secret agenda on the part of the Royal Parks Agency for the whole of the St. James's Park area to become pedestrianised? That would in effect create a theme park in which tourists would reign supreme.
Viscount Astor: My Lords, I can confirm that there is no secret agenda. Indeed, there have been wide-ranging consultations. There have been a number of serious accidents in the area and it is important that we get the
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pedestrian crossings right so that tourists who come to this country are not mown down, least of all by some noble Lords on their way to your Lordships' House!
Lord Orr-Ewing: My Lords, can the Minister give the estimated total cost of the undertaking?
Viscount Astor: My Lords, the estimated costs are £2.4 million, including fees and VAT. In addition to the new pedestrian area in front of the palace, the scheme involves replacing crash barriers with bollards and railings, repairs to the balustrade wall, reinstatement of the terraced walk, re-landscaping of the memorial gardens, and new permanent flagpoles.

EU Accounts Proposal: Cost
2.54 p.m.
Lord Bruce of Donington asked Her Majesty's Government:Lord Bruce of Donington asked Her Majesty's Government:
What is their response to the proposal of the European Commission on the establishment of a European system of national and regional accounts (COM(94)593 Final of January 19th 1995); and what is their estimate of (a) the annual cost to the Exchequer and (b) the annual compliance cost, on the assumption that the proposal is adopted.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, the proposed regulation will lead to the availability of harmonised national accounts statistics for all member states. The implications for UK contributions to the Community budget will depend on the final form of the regulation. The costs of statistical developments will be met from within running cost limits for the departments involved. Any increase in compliance costs on business is expected to be small.
Lord Bruce of Donington: My Lords, I am grateful to the noble Lord for that reply. Is he aware that the regulation to which I referred is no fewer than 543 pages long? That is roughly 50 times the length of the average Council regulation, decision or directive. Is the Minister aware that there must be some cost to the Exchequer on rendering, in accordance with Community rules, the statistics set out in Appendix B to the regulation? Will he particularise in a little more detail as to the cost beyond the vague generalities to which he has so far treated the House?
Lord Mackay of Ardbrecknish: My Lords, on compliance costs, I have nothing to add to the point I made that the cost to business is expected to be small. Many of the statistics are already collected by the British Government. The point at issue is that statistics collected around the Community should be gathered on the same basis so that harmonisation will lead to an ability to compare GNP statistics and other statistics between member states on a fair and equitable basis.
Lord Peston: My Lords, is the noble Lord aware how deeply embarrassed I am in saying how much I agree with everything he has just said? Does he accept that it is obvious that this is exactly the kind of area where the

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Community has a valuable role to play, in terms not merely of national accounts but also of the excellent harmonised employment statistics that it gathers as well as, in due course, inflation and other statistics? Does the Minister agree that that is precisely what the Community ought to do at Community level? In many ways it ought to divert itself from its sillier activities to this most excellent activity.
Lord Mackay of Ardbrecknish: My Lords, I am happy to agree with the noble Lord in both those sentiments. He rightly points to the advantage of harmonised statistics—an advantage accepted by the Court of Auditors' report in 1993. The report said that:
"In spite of the measures already taken by the Commission, the degree of comparability, exhaustiveness and reliability of the data in respect of the Member States' national accounts should be improved and considerable progress may still be made so as to obtain a genuinely harmonized system".
Lord Bruce of Donington: My Lords, is the Minister aware that standards of accounting practice throughout the 12 member' states vary considerably? Although accounting standards in the United Kingdom, the Netherlands and Germany may measure up to those that we normally expect in the United Kingdom, the professional standards in preparing accounts throughout the rest of the Community are—I put the word in quotation marks—"dodgy". Is the noble Lord aware that the task of assembling the total results of the accounts, which are dealt with in the first part of the regulation, and of translating them into national figures for central assimilation must involve hours, weeks or even years of work? In view of that, will the Minister reconsider his vague estimate as to the cost? I ask that irrespective of the view of my noble friend on the Front Bench that the whole exercise may be well worth while.
Lord Mackay of Ardbrecknish: My Lords, it is true that the Commission puts the cost over the period 1995–97 at about 9 million ecus. One million of that will be for the central collection work; the other 8 million will be for those countries identified rightly by the noble Lord as having poorly developed collection systems. I am sure that the noble Lord will be glad to hear that the process has already led to countries with less developed statistical systems significantly increasing the value of the GNP base on which their fourth resources contributions are calculated. So we are already seeing some progress from those countries with systems which are not so well developed improving to the level of the best.
Lord Bruce of Donington: My Lords, is the noble Lord aware that most of us, while supporting the generality of the desirability of some standardised figures and some standardised way of going about it, may look at the cost and hope for a wing and a prayer?
Lord Mackay of Ardbrecknish: My Lords, I must say that the noble Lord seldom flies on a wing and a prayer on the subject of Europe. I simply re-emphasise one of the points that he continually makes, that some countries are not very good at looking after their money or that of other people. I should have thought that better statistical information would help that.

Mobile Telephones: Use While Driving
3 p.m.
Lord Stoddart of Swindon asked Her Majesty's Govemment:Lord Stoddart of Swindon asked Her Majesty's Govemment:
Whether they will bring forward legislation to make it a specific offence for the driver of a moving vehicle to use a mobile telephone or car phone.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, we have no plans to introduce specific legislation on the use of telephones while driving. We believe that the offences of "failure to exercise proper control of a vehicle" and "careless driving" provide sufficient powers of prosecution.
Lord Stoddart of Swindon: My Lords, is the noble Viscount aware that I find his Answer rather disappointing? Has he been on a motorway (I am sure that he has) and seen a driver who is quite obviously concentrating on the telephone rather than the driving tearing past at over 80 miles an hour with just one hand on the wheel and the other holding a telephone? Has the Minister seen cars whose drivers are using the telephone come up so close behind him that he almost has a heart attack? Does he agree that people cannot be mentally and physically in charge of their cars while they are concentrating on talking to other people on the telephone? Does he agree that the only way forcibly to make people aware of the danger is to create a specific offence? I hope that he will do so.
Viscount Goschen: My Lords, the noble Lord has already listed a specific offence which in his example had been; namely, that of speeding. That committee illustrates that having a specific offence is not necessarily the catch-all. The Association of Chief Police Officers agrees with the Government's view that under the offences that I listed there are sufficient powers to prosecute. If the police feel that a motorist is driving dangerously, or is abusing a situation and is not able to control his vehicle properly, they will prosecute him.
Lord Elton: My Lords, is my noble friend aware that paragraph 43 of The Highway Code states:
"You MUST exercise proper control of your vehicle at all times. Do not use a hand-held telephone or microphone while you are driving"?
Does that not provide for prosecution on grounds of unsafe driving—rendered, I would have thought, more effective if it were done anywhere near the Victoria Memorial?
Viscount Goschen: My Lords, my noble friend is quite right about the provisions that we have included in The Highway Code. However, as regards prosecution, the two offences that I have listed are the means that the police can use if they feel it necessary.
Lord Graham of Edmonton: A phoney argument!
Lord Clinton-Davis: My Lords, is the Minister aware that this could apply only to hand-held telephones, which are not specifically mentioned in the Question but

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which are, I assume, within the contemplation of my noble friend? While he says that there are ample grounds for prosecution if the offences to which he referred have taken place, does he agree that perhaps there is some lack of comprehension on the part of many drivers that they are acting in breach of an instruction in The Highway Code which in any event does not constitute a specific offence, and that there might be some deterrent value in having a specific offence? This could excite in the minds of the people involved the fact that they are involved in doing something that is very specifically illegal. Does the Minister accept that there would be some advantage in that?
Viscount Goschen: My Lords, there are any other statements in The Highway Code that are put forward as advice but for which there are not specific offences. There are many other things that can be done in a car with one hand which do not come under the category of specific offences—
Noble Lords: Oh!
Viscount Goschen: —such as perhaps operating a tape-recorder or indeed taking a drink. These are not specific offences. We certainly condemn the practice of using a hand-held telephone. I agree with the noble Lord that using a hands-free set is preferable, although indeed that too can be distracting.
Lord Clinton-Davis: My Lords, is the Minister suggesting that there might be pending another ministerial resignation?
A Noble Lord: Not worthy!
Viscount Goschen: My Lords, I think noble Lords would have to read a great deal into my remarks to reach that conclusion.
Lord Brougham and Vaux: My Lords, can my noble friend say how many prosecutions have taken place, if any?
Viscount Goschen: No, my Lords, I am not able to give that figure. We should have to go back through all the court records to determine that information. That would not logically be possible or indeed practical. The important point is that the Association of Chief Police Officers believes that the current law gives sufficient powers to act where it is thought necessary.
Lord Jenkins of Putney: My Lords, is the noble Lord aware that I asked the driver of the cab that brought me here this morning what he thought about this question, and whether or not the matter should be pressed? To my surprise, he was very strongly in favour of it. In view of this unusual support coming from a taxi-driver, will the Minister perhaps reconsider his lukewarm attitude?
Viscount Goschen: My Lords, I am very glad that the noble Lord has consulted on this issue—and indeed with an expert. We do not want to have an over-specific, over-regulatory system. The police have powers; they can, and do, act where they believe it to be necessary.
Lord Stoddart of Swindon: My Lords, in spite of what the Association of Chief Police Officers might say,
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it is not always right. As a matter of fact, it is very often wrong. Does the Minister agree that the use of in-car telephones is growing at a very fast rate, and therefore the problem will become worse as time goes on? Does he accept that the only thing that will prevent people from using them—this is my view, and I hope that he will agree—is to make such use a specific offence resulting in quite a high fine for those who break the law? Will the Minister ask his colleagues to reconsider this matter?
Viscount Goschen: No, my Lords. The police are in a particularly good position to judge. They are the ones who would have to enforce any such law, as they enforce the current law. They have powers to act and they use them. We do not believe that there is any specific need for a specific power. However, I agree with the noble Lord that in-car mobile telephones are increasingly being used.
Baroness Faithfull: My Lords, can the Minister say whether advice has been taken from Australia. where this is an offence?
Viscount Goschen: My Lords, I have not personally taken advice from Australia on this matter. We have our own laws in this country, which are geared to the problems that are prevalent. The police do not support the idea of a specific offence in relation to this problem. They believe that the powers that exist cater for it adequately.

Business of the House: Debate, 8th March
3.8 p.m.
The Lord Privy Seal (Viscount Cranborne): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, that the debate on the Motion in the name of the Lord Jenkins of Hillhead set down for tomorrow shall be limited to 6 hours.—(Viscount Cranborne.) On Question, Motion agreed to.

Deputy Chairmen of Committees
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Lord Burnham be added to the panel of Lords appointed to act as Deputy Chairmen of Committees for this Session.—(The Chairman of Committees.)
On Question, Motion agreed to.

Environment Bill [H.L.]
3.9 p.m.
The Minister of State, Department of the Environment (Viscount Ullswater): My Lords, I beg to move that the Bill be now further considered on Report.

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Moved, That the Bill be further considered on Report.—(Viscount Ullswater.)
On Question, Motion agreed to.
Lord Campbell of Croy Lord Campbell of Croy: moved Amendment No. 125:
Before Clause 54, insert the following new clause:
("Planning permission for ironstone extraction
. After section 22 of the Planning and Compensation Act 1991 there shall be inserted—
"Ironstone extraction.
22A.—(1) Any person with planning permission to win or work ironstone or to deposit waste from such working but who no longer intends to win or work ironstone shall, within 5 years of the date of coming into force of section (Planning permission for ironstone extraction) of the Environment Act 1995, apply to the relevant planning authority for approval of the environmental conditions to which the permission is subject.
(2) The planning permission shall cease to have effect—

(a) if no application is made under this section, on the day following the last day on which such an application may be made; or

(b) if the application is refused, on the day following that on which the application is finally determined.".").

The noble Lord said: My Lords, in Committee I spoke to an amendment covering a range of minerals. My particular concern was, and remains, one substance; namely, ironstone. I have now tabled a separate amendment, the one under discussion, because ironstone is a special case. Its extraction ceased 15 years ago. It is no longer wanted.
It may be asked: why then are some of the ironstone permission sites still being worked? The answer is that there are other substances to be extracted. Limestone and clay lie above the ironstone. It was permissible at the time of ironstone operations to extract also the limestone and clay in order to get at the ironstone. Those permissions are enabling work to continue for a quite different purpose to the one intended.
Ironstone was essential for our steel industry after World War Two. Decisions to grant the permissions were taken by central government, not by local authorities, because they were of national importance. A condition was attached that the ironstone should be transported by rail. The last ironstone was extracted in 1979 and the associated railway system no longer exists. As a result, heavy lorries now cart limestone around rural roads and through small villages, thereby causing disturbance, especially to the environment.
Permissions are due to last until the year 2042, which is nearly 50 years ahead. To conclude them now would not, in my opinion, be contractually incorrect because the permissions are no longer being used for the purpose for which they were applied for and ironstone is no longer wanted. In that context, perhaps I may quote from a letter dated only five days ago which I received from the British Aggregate Construction Materials Industries. It states:
"Mineral planning permissions by their very nature are temporary. Once the mineral is exhausted the site is restored to some other use".
I was delighted to receive that letter. It is very reassuring when the permissions are to last for 40 years or more. However, ironstone extraction can be regarded as being over. It ceased to be needed 15 years ago. However, extraction of other minerals, not the subject of the permissions, continued. They were incidental to the operations for which permission was sought.
A year ago the Government issued a consultation paper. It proposed revocation of the ironstone permissions without compensation. Primary legislation would be necessary. That could be done in this Environment Bill. My amendment carries out the intention declared by the Government in their consultation paper a year ago.
My amendment also provides time for the operators to apply to extract other minerals at the sites if they so wish. Up-to-date conditions to protect the environment could then be attached to the new permissions. The amendment is not expertly drafted; nor does it cover every point to be considered. It is aimed at illustrating clearly the action that I believe is required. I hope that a government amendment at a later stage, using this Bill as primary legislation, will be moved.
In Committee my noble friend Lord Ullswater envisaged that he would make a statement at this stage—Report stage. I recognise that he may wish to make a general statement about minerals which would come after our next debate on Amendments Nos. 126 and 127. My amendment is a special case because it relates only to ironstone. That is why I move it separately. No doubt the Government will take into account the progress of the discussions which have been taking place involving the local authorities concerned, the industrial operators and landowners. I understand that the gap which existed in reaching agreement has been much narrowed during discussions,
I would prefer a solution agreed outside Parliament, if possible, among all those concerned. If that is not possible, legislation will be necessary, for the reasons I have given. I am sure that the Government would also prefer agreement outside Parliament, if possible. That is my reason for moving the amendment after speaking on the issue in Committee. I beg to move.
3.15 p.m.
Lord Boardman: My Lords, I am aware of the sites covered by my noble friend's amendment. I share with him the wish that they should be remedied as soon as possible. There is a very real need for that to be done for environmental reasons.
I must correct my noble friend on one small point. He referred to limestone having been extracted in order to get at the ironstone. Limestone and ironstone were an essential part of steelmaking. Presumably, limestone is now required for a whole range of purposes, including agriculture. That does not in any way weaken my wish to see the areas remedied and environmentally restored as closely as possible to a respectable state of affairs.
I have one worry about the amendment. It involves withdrawing existing permissions without any compensation being paid. I believe that that would create a very unfortunate precedent. I would hope—my

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noble friend said that it was his hope also—that agreement could be reached with the ironstone companies, the landowners and the county council to enable this matter to be resolved on terms acceptable to all. I hope that that may still be possible. Perhaps my noble friend will have some comments to make. Any withdrawal of permissions without compensation, which involved having to pay for additional planning permission for subsequent use of the site, would create a precedent I could not support.
Viscount Ullswater: My Lords, I thank my noble friend Lord Campbell of Croy for his eloquent presentation of the issue of old ironstone consents. The Government have considered that issue extremely carefully. We have had useful and detailed meetings with the ironstone operators, the landowners and Northamptonshire County Council, among others. I have been much encouraged by the very real efforts made by all sides to try to find a local, negotiated solution to the problem.
However, I have to say clearly that, notwithstanding the analysis of the problem by my noble friend, with which I very much agree, the Government have decided that it is wrong in principle to revoke the old consents without compensation. That was a point that troubled my noble friend Lord Boardman. Therefore, I do not intend to proceed with the consultation paper proposal. That does not mean that the existing position can be allowed to remain as it is.
I understand that at the great majority of ironstone sites the quality and quantity of limestone available is not commercially viable and therefore is unlikely to be worked. Where that is the case, the sensible way forward is for the planning authority to bring forward prohibition orders. My noble friend is right. I intend to announce proposals dealing with the issue of old mineral consents on the next group of amendments. Those proposals will do much to lead to a speedy resolution of the major problems posed by old ironstone permissions. In the light of those remarks, perhaps my noble friend will feel able to withdraw his amendment.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend Lord Boardman, who is an expert on this subject, for supporting the amendment and for pointing out that limestone was needed for the steel industry in earlier days. Of course, the permission sought was for extracting ironstone. Limestone is still very much needed but it should be the subject of a separate application. I hope that as a result of the discussions and the Government's further considerations ultimately that will happen.
I am also grateful to the Minister for what he has said. A year ago the Government proposed that the ironstone permissions should be revoked without any compensation at all. Naturally, my amendment followed that line. I appreciate that, as a result of the discussions that have taken place, even in the case of the ironstone sites compensation may he appropriate, and certainly ought to be considered. I understand that change in the Government's view. I will listen carefully to what the
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Minister says in his statement at the end of our next debate, which involves a number of other minerals, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Addison moved Amendment No. 126:Viscount Addison moved Amendment No. 126:
Before Clause 54, insert the following new clause:
("Old mineral planning permissions
. After section 22 of the Planning and Compensation Act 1991 there shall be inserted—
"Old Mineral Planning Permissions.
22A.—(1) For the purposes of this Act "old mineral planning permission" means any planning permission for development—

(a) consisting of the winning and working of minerals; or

(b) involving the depositing of mineral waste,

which was deemed to have been authorised after 1st July 1948 and before 22nd February 1982.
(2) Any person with an old mineral planning permission to win or work minerals or to deposit waste shall, within 5 years of the date of coming into force of section (Old mineral planning permissions) of the Environment Act 1995, apply to the relevant mineral planning authority for approval of the environmental conditions to which the permission is subject.
(3) Where the mineral planning authority refuses an application under subsection 2 above, or in granting such an application determines conditions that differ in any respect from the conditions set out in the application, the applicant may appeal to the Secretary of State.
(4) An old mineral planning permission shall—

(a) if no application for the registration of the permission is made under this section, cease to have effect on the day following the last date on which such an application may be made; and

(b) if such an application is refused, cease to have effect on the day following the date on which the application is finally determined.".").

The noble Viscount said: My Lords, I should like to return to the issue of old mineral planning permissions which I raised in Committee. The issue is addressed by Amendments Nos. 126 and 127, They tackle the environmental problems of old mineral permissions granted between 1948 and 1981. They were widely welcomed both within and outside the House when they were discussed during Committee.
In previous debates I highlighted the particular environmental problems caused by old mining permissions. It is perhaps worth reminding ourselves just how serious the problem is. These permissions often lack proper working conditions, such as noise limits, and frequently contain no requirement for the restoration of sites. By operating to lower standards than those applied to other mineral planning permissions, they also introduce distortions in the market.
In addition to the large number of active quarries currently operating with outdated working and restoration conditions, there are about 1,600 old mineral permissions which are dormant. They can be reactivated at any time, and many are in environmentally sensitive areas. I believe that this is an issue that requires urgent action if we are to avoid serious environmental consequences. I am aware of a number of shocking examples of environmental harm that has been caused by old mineral permissions. A particularly disturbing case can be seen at Druridge Bay on the Northumberland coastline. Here, a planning permission

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for sand extraction was granted in the 1960s on the condition that only a small mechanical digger should be used. This digger now scoops 2 tonnes in its bucket and erodes the beach and dunes by the extraction of 40,000 tonnes of sand a year. Similar damage occurs in the national parks. Eldon Hill quarry in the Peak District was granted permission in the 1950s and is now called the best known eyesore in the Peak. Currently, it is the subject of a further planning application to extend the workings.
There is general agreement both within the minerals industry and more widely that these old mineral planning permissions are in need of review. The Government have consulted widely on review options, and I believe that my amendments reflect the outcome of those consultations. The amendments offer a real opportunity to get things moving. I was delighted by the positive response of the Minister at Committee stage and in discussions since then.
I should like to explain the exact purpose of my amendments to ensure that there is no misunderstanding. Amendment No. 126 would introduce a statutory time limit of five years for mineral operators to register their old mineral planning permissions with the mineral planning authority for the approval of modern working conditions. Since Committee I have modified the amendment to include a right of appeal for mineral operators, as it is important that the system is as fair as possible to all parties. This issue was tackled originally in the Town and Country Planning (Minerals) Act 1981 which placed a statutory duty on mineral planning authorities to review mineral sites in their areas. The measures set out in that Act, however, have failed as they establish no time limit on the duty. Consequently, very little progress has been made in reviewing permissions that cause damage. This is a real problem, especially in designated areas like national parks. In my view, these areas should be given priority when updating old permissions. By requiring mineral operators to register their old permissions with the mineral planning authority for review within five years, the first amendment would ensure that real progress could be achieved. I hope that my noble friend will be supportive of my amendment.
The second amendment tackles the problem that old mineral planning permissions remain valid for much longer than any other type of planning permission. Consequently, working and restoration conditions fall below current environmental standards. At the moment, mineral permissions granted before 1982 are valid until 2042. It is widely acknowledged and accepted by the Government that that is too long a period. The purpose of the second amendment is to shorten the period to 2012. I believe that this approach brings significant environmental benefits without causing problems for the mineral industry. Under current legislation a mineral planning permission granted in the 1950s could remain valid for nearly 100 years. During that time the importance attached to the environment and the attitudes and needs of society would be likely to alter greatly.
Obviously, the review of old permissions is crucial to bringing their operating standards up to date, but it will not address the fundamental question of whether or not the workings should carry on at all. In some cases, for example in SSSIs, there may be a real argument that workings should cease. At the moment, those workings can continue until 2042. My amendment will bring the end date forward to 2012. At that point mineral operators would be free to reapply for planning permission to carry on. If no environmental damage is being caused by the mineral extractions they should have little to fear from the procedure.
I believe that the amendment strikes the right balance between reducing the time during which old permissions that cause damage may remain valid and allowing ample time for mineral operators to secure a return on any investment. I believe that it is a reasonable approach to this difficult issue and will greatly help to reduce the lurking environmental threat posed by old mineral permissions. I beg to move.
Baroness Hilton of Eggardon: My Lords, we on these Benches support both amendments moved by the noble Viscount, Lord Addison. He has dealt with them comprehensively. I merely add that this is a consequence of the early years of planning after 1948. Many planning permissions were granted at a time when there was less understanding than now of the effects of mineral workings on the environment, those who lived near them and the roads that served them. The permissions granted in those early years were not made subject to the kind of conditions which would be imposed if granted today. Modern working practices are much less environmentally destructive than those of 50 years ago.
The 1981 Act was intended to equip mineral planning authorities with power to review old permissions and impose new ones where necessary. However, it contained compensation provisions which in practice were so broad as to make it prohibitively costly for authorities to make extensive use of that power. Mineral planning authorities are concerned about the local economy, local environment and the overall well-being of local people. They have to balance those different considerations. They fully understand the importance of the minerals industry as a provider of jobs and essential raw materials. However, county councils, London boroughs and metropolitan authorities believe that the noble Viscount's new clause will establish a proper framework for an orderly staged review of old permissions, balancing all of the relevant considerations.
Moreover, in relation to Amendment No. 127 there is a general perception that the date 2042 is too far in the future and that a reduction in the end date will afford an opportunity to reconsider sites which may now be considered to be in the wrong place: for example, national parks and SSSIs. A reduction of the end date to, say, 2022 will give the industry ample time to amortise its assets and yet also emphasise that the very long permission periods are inconsistent with the current need to protect the environment.
Baroness Hamwee: My Lords, I should like the support of these Benches for the two amendments that

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have been moved. They seem to us to be very well balanced, I hope that the House will take the opportunity that this Bill offers to rectify a matter that I know has been of widespread concern.
3.30 p.m.
Baroness Lockwood: My Lords, my name is attached to these amendments and I therefore wish to speak in support of them. The noble Viscount, Lord Addison, has clearly outlined the purposes of the amendments but I should like to illustrate the problems involved by giving two examples. Many of your Lordships will realise that, because of the magnificent limestone formations in the Yorkshire Dales, which is the area I know best, the dales have suffered in recent years through the quarrying of the limestone. That has made a great impact on the environment of the dales, both the living environment and the landscape.
The amendments would not stop the quarrying of limestone. Recent planning permissions have been given in the Yorkshire Dales for further quarrying. However, the conditions that have been attached to those planning permissions are far more stringent than those attached to the permissions that were given in the early 1950s. If the old planning permissions are to remain, it is important that they should be subjected to the same stringent environmental considerations as the newer planning permissions. The effect of the amendments would be to ensure that that was done.
One of the areas in the Yorkshire Dales is an example of a dormant planning permission which could be reactivated at any time up to the year 2042. The area is at Ribblehead in the centre of the Three Peaks which arc well known to fell walkers. They are also well known to railway travellers as they are on the scenic railway route from Settle to Carlisle. Planning permission for quarrying there goes hack to 1952 and 1956. The quarries have not been worked since the 1970s but they could be reactivated at any time, and reactivated on conditions which are far less stringent than the conditions that would be imposed today. If they were brought into line with new planning permissions, any reactivation of work in the quarries would mean that it was being done on a level playing field.
A further example is an area for which, again, planning permission was given in the early 1950s. It is for the removal of limestone from a limestone pavement known as Winskill Stones, just north of Settle. The planning permission gave unlimited scope for the removal of that limestone paving and I understand that around 1,000 tonnes of limestone are cut from the pavement each year, the main reason being to provide stones for rockery gardens. This is an irreplaceable heritage which is gradually being eroded and destroyed at a time when limestone pavements are being given priority status under European legislation.
Limestone is a finite resource and its use should be limited strictly to those processes where its qualities are essential. It should not be used as just another aggregate or as a garden ornament and decoration. In the quarrying process the unique limestone formations which have led to the designation of these areas as national parks in the first place should be carefully preserved.
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The amendments seek to provide the proper framework in which planning permissions could be given for work within the national parks as well as in other areas. We should respect the purposes behind the amendments. I hope that the Minister will be able to accept them.
Lord Gisborough: My Lords, about a fortnight ago I was in Wharfedale. I am sure that there can be few finer places to walk. There I saw some old scars on the hillside which had obviously been made many years before and had been left as eyesores. It is interesting to compare those scars with the results of more modem quarrying. Very often the replaced quarry looks better than the original site.
What is required to achieve good environmental standards without threatening the quarry industry, which is so important, with what amounts to retrospective compensation? I am sure that there is a way but I do not think it is the way set out in the proposed new clause. My noble friend Lord Ullswater referred today and in Committee to the steps taken by the industry to improve its performance. That should be recognised. Some of us have had material from the British Aggregate Construction Materials Industries and it is clear that their environmental code, strongly supported by the member companies, is already having a beneficial effect. That should be encouraged. There is no reason why in essence that could not be incorporated into legislation. It would be wrong to attack the underlying assets and economic operation of companies' sites while formalising the continuous uprating of the environmental performance of the industry.
The line proposed in the new clause is quite unique in planning law. How many other industries would be threatened in this way? The key issues that go right to the heart of the economic operation of aggregates sites are those of the area, depth, rate and hours of working and the total quantity to be extracted. Surely those rights should not be forcibly removed or diminished without full compensation. However, we know that this policy area has been the subject of consultation and subsequent discussion for nearly a year. The industry has come forward with positive proposals that, subject to the safeguards I have just covered, would allow regular updating of all sites to the benefit of the environment but without unreasonably prejudicing the economics of the operation. I support that approach.
This is not an abstract issue. We are debating the future of an important industry. It is one vital to the construction industry and to the economy, particularly rural areas and the rural economy, where often it is one of the rare sources of jobs. We want the quarry industry to be good neighbours. That is what the industry says it wants too. A better and fairer framework than the new clause proposed by the noble Viscount, Lord Addison, could help to get the right result.
I should like to add a special comment on what are called dormant sites—those with full planning permission but which have not been worked for some time. I have some sympathy for those near such a site that suddenly opens up after perhaps decades. I understand that dormant sites can still be important

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assets and part of companies' and local authorities' land banks, but some carefully considered special regime might not be unreasonable. Those which have been dormant since before 1982 should not reopen without completely updated conditions being attached.
Lord Desai: My Lords, I rise to support the amendment moved by the noble Viscount and supported by my noble friends. An asset which exists now is only worth what its future net income will be. What we face right now is a planning permission which was given long ago when environmental benefits were underpriced or not priced at all. Therefore, by not paying the proper cost for the environmental costs imposed, extra profits were made. We are not asking the industry to give back those extra profits. I should like to see that, but neither I nor the noble Viscount is proposing that. We are saying that from here on an appropriate price should be paid for making good the environmental damage done. That is not recontracting. It is basically reflecting an uncertainty that any investor faces when prices change. If prices change we have to pay the changed prices. Therefore, under those conditions, no extra compensation should be paid but we should say that the people who operate the planning permissions should pay the appropriate price for making good the damage done.
Perhaps I may say something about compensation. That arose regarding the amendment moved by the noble Lord, Lord Campbell of Croy. In that case, I believe that there is perfect justification for saying that no compensation should be paid. The mineral extraction for which planning permission was given is no longer applicable because the mineral is no longer being extracted. That planning permission has no future income. It may have alternative incomes because everything has such alternative incomes. The permission was for extracting ironstone and if that is not being extracted, the position changes. Therefore, in such cases no compensation is necessary because future income as regards extracting ironstone as a result of granting the permission is zero. One can add together any number of zeros, and the result is zero. Therefore, there is no compensation to be paid, and that particular asset has no value whatsoever in economic terms.
Lord Renton: My Lords, as with all excavation, quarrying and mineral extraction, the crux of the matter is that the licence or planning permission should ensure that conditions are attached for restoration of the site. It is that restoration to which we have to apply our minds in particular. I am not sure of the technicalities of this matter. We have heard various views expressed. I shall be very interested to hear what my noble friend Lord Ullswater has to say.
I am quite sure that the Government should bear in mind—as was done with the opencast coalmining sites—that most of them had very stringent conditions attached. In most cases, there has been exceedingly good restoration work which has fitted in well with the countryside. That is what we need to go for. I hope that my noble friend will be able to say whether the
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amendment of my noble friend Lord Addison achieves that objective or whether something slightly technically different is needed.
Lord Moran: My Lords, I am quite sure that the noble Lord, Lord Renton, is right to stress the importance of restoration. But the problem is that many of the old planning permissions had no conditions attached to ensure restoration. That is one of the biggest problems being faced. They also did not have proper environmental conditions attached such as restriction on noise limits, hours of working, depth limits and so forth.
I support the proposed amendments. I was encouraged by what the Minister said at Committee stage. I look forward very much to hearing what he has to say about the government review which they have been carrying out. They have had consultations, but it has been a very slow process. It is important that the matter should be speeded up.
One of the problems about old planning permissions is that as they were granted on much less stringent conditions than would be given today, and very often for areas where one would never obtain planning permission today, such as in national parks, SSSIs and areas of outstanding natural beauty, there is a distortion in the market between people operating on the old and lax permissions and those who are operating with today's rightly much more stringent conditions.
I am also very worried about dormant permissions. I believe that there may be as many as 1,600 of them. In some areas they are a kind of time bomb ticking away with no restrictions at all at the moment on when those permissions will expire. That is a source of great worry. Therefore, I hope that the Government will be able to go some way to meet the arguments put forward by the noble Viscount, Lord Addison.
3.45 p.m.
Lord Glenarthur: My Lords, I have considerable difficulty with the amendment of my noble friend Lord Addison. I must declare an interest in that for five or so years I have worked for Hanson PLC which owns ARC, a company heavily involved in the aggregates business throughout the United Kingdom. During the five years I have been involved with it I have become familiar with many different aspects of the industry and the issues which it faces.
While I recognise the sentiments which lie behind my noble friend's amendment, I have to ask him whether he has really considered the damaging effects of what he proposes. The effect of economic loss was very much glossed over by the noble Lord, Lord Desai. The loss of asset value cannot be ignored to those companies which are engaged in winning minerals and it is, as my noble friend Lord Gisborough said, considerably greater than anything which exists if other types of planning permission are taken away. To that extent, what my noble friend proposes will result in a measure which is not only retrospective, but to a very large extent confiscatory. I very much echo the remarks of my noble friend Lord Boardman.

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When my noble friend Lord Ullswater replies, I hope that he will bear in mind two important matters. Although I am aware that there may be bad examples up and down the country, I hope he is aware that in general the quarrying industry has proved itself to be much more adaptable, responsive and responsible than perhaps my noble friend Lord Addison gave credit for.
I believe that the industry has demonstrated a readiness to accept proper constraints which contemporary environmental awareness necessitates. I believe that my noble friend Lord Renton and the noble Lord, Lord Moran, will find plenty of examples of really first-class restoration of works which returned what was perhaps a large hole in the ground to its original state, but also enhanced in a way which people never imagined before, environmental amenity and other aspects which the work gave scope for.
There are numerous examples throughout the country of the industry accepting restrictions on the sensory aspects of quarrying such as noise, control of vehicles, blasting and visual amenity. I have no doubt that more can be done where the cost of so doing would not be excessive, But there is a major difference between those sorts of conditions and those limiting, for example, depth, area, quantity and rate at which minerals can be extracted. To that extent, the noble Lord, Lord Moran, seemed to connect the sensory factors with those later examples which I have given.
It is very much that second point which I ask my noble friend on the Front Bench to bear in mind. Those later conditions limiting depth, area, and so on, represent the asset value of the operation which the noble Lord, Lord Desai, seems to believe does not really exist, Imposing revised and restrictive conditions without compensation is wholly unacceptable. During the passage of the Planning and Compensation Act 1991, the then Minister, the right honourable Sir George Young, made a statement, in relation to interim development orders, advising that a distinction should be drawn between conditions which deal with the environmental and amenity aspects of working a site which would not affect asset value, and conditions that would fundamentally affect the economic structure of the operation. Conditions that would significantly affect the asset value would be more appropriate for reviews under the provisions introduced by the Town and Country Planning (Minerals) Act 1981. The difficulty was that that matter was merely addressed as a statement of intent and was not enshrined in legislation.
Since 1948 much enhanced legislation, notably the Town and Country Planning (Minerals) Act, has been introduced. Consents granted for mineral extraction since then have been given with a much greater degree of control. I believe that everyone is prepared to acknowledge that, but I urge my noble friend to make plain on the face of the Bill under what conditions compensation will be payable. If the principle of Sir George Young's statement is worth the paper on which it is written, putting that in the Bill cannot make much difference to the Government, but it would certainly make a difference to its acceptability to the industry,
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particularly since it has been demonstrated that mineral planning guidance has subsequently weakened the intention of that statement.
If my noble friend can go that far, he will find that the industry is responsive to him. However, if what he is going to say does not recognise the fact that mineral planning permissions are integral to the stability of the industry and thus form a key part of the asset base (and hence the balance sheets of companies) with all that that entails for employees, shareholders and the industry's contribution to the economy, and that, if removed, the rights that were granted under the planning system will not be compensated in law, I am afraid that the scope for a meeting of minds on that issue is very much diminished. I very much hope that my noble friend will see the force of those arguments and produce a statement from which all concerned can derive confidence.
Lord Howie of Troon: My Lords, I apologise for my late arrival. Unfortunately, I missed the opening speech of this debate and will consequently speak extremely briefly. I hope that my few remarks will be construed as supporting entirely every word that has just been spoken by the noble Lord, Lord Glenarthur, including his comments on the asset base, a matter on which I disagreed with my noble friend Lord Desai in Committee.
I cannot support the amendment for the following reasons. Whereas planning authorities would be unable to withdraw planning permissions instantly, they could however apply new conditions without any hindrance with the sole protection of an appeal to the Secretary of State. That would be without compensation. I agree with British Aggregate Construction Materials Industries that that would be a complete negation of natural justice. It would put the Secretary of State in a position of being able to confiscate the rights of mineral operators in a wholly arbitrary way. I should add, however, that I do not expect the noble Viscount to act in such a way. There is no parallel for that approach in any other form of land use planning. There can be no justification for introducing a more severe restriction here than is normal in other aspects of land use planning.
Having said that, and having arrived late, I shall say no more except to repeat that I strongly support the words of the noble Lord, Lord Glenarthur. I hope that the amendment will be withdrawn and, if it is not withdrawn. that it will be defeated.
Lord Marlesford: My Lords, I rise to support the sentiments that have been expressed by my noble friend Lord Addison in moving the amendment. We know that the wording is not likely to form part of the legislation and we eagerly await what my noble friend Lord Ullswater will say that the Government have in mind.
The essence of the discussion is that things have changed from the time when many of the permissions were granted. Higher standards are demanded now. I very much agree with what my noble friend Lord Renton said about the reinstatement of mineral workings being of great importance, but I do not think that that is everything. Perhaps I may give just two examples which

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show how the practice of the time when the permission was originally granted might be regarded as unacceptable today.
The first is an example relating to minerals, but from the United States. As your Lordships know, it was in 1848 that John Sutter discovered gold in California—a most exciting and romantic event. Subsequently, in the early days after the war, huge machines were introduced into northern California which used mega-sized jets of water to mine the gold. The result was huge pollution affecting the Sacramento River. Some 20 years ago the United States abandoned that process because it was no longer acceptable. Your Lordships can now spend a happy weekend with your frying pans, panning for gold. I am told that we are more likely to find a good nugget than to win the National Lottery, but the mega-sized jets of water can no longer be used. The United States believes very much in free and private enterprise, but that is an example of how things change and of the fact that what was originally regarded as acceptable is no longer so regarded.
Perhaps I may take another humble example. I refer to bridleways. They were made for the traffic of the day, and I suggest that it is not acceptable for four-wheel drive vehicles to career over the Ridgeway, for example. All that we are really saying is that in this important area of mineral workings, it is important to bring the law up to date with what is acceptable today.
Viscount Ullswater: My Lords, I am grateful for the way in which my noble friend Lord Addison moved his amendment and for the many contributions that have been made to the debate. My noble friend indicated some of the problems that need to be addressed. In supporting the amendment, the noble Baroness, Lady Hilton, made it clear that a responsible attitude to the economics of local communities and to the industry should he adopted.
The industry is of considerable importance for the economy and our standard of living, and it is to he commended on the steps it has taken in recent years to improve environmental standards. My noble friend Lord Gisborough mentioned the BACMI environmental code. I agree with my noble friend Lord Glenarthur that that was a very responsible move. However, not all operators work to the same high standards, and it is in the long-term interests of the industry as a whole for the problems created by old permissions to be resolved at the earliest date,
The principle that mineral permissions should be updated and that the industry should bear some of the costs was recognised in the procedures introduced by the 1981 Town and Country Planning (Minerals) Act, but these have not worked well, as the noble Baroness. Lady Hilton, indicated. We have consulted extensively on proposals to ensure the updating of old mineral permissions and the elements of a decision are now in place.
The Government therefore intend to bring forward amendments in another place to deal with those problems. We intend that the amendments will provide for the following. First, they will require the initial
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updating of planning permissions where the predominant planning permission was granted before 22nd February 1982. We intend to make a distinction between "dormant" sites—that is, sites where no development has taken place to any substantial extent for a number of years—and "active" sites—that is, sites which are currently operating or where working has been only temporarily suspended in recent years.
To spread the workload, we intend that active sites should be reviewed in two consecutive phases, dealing with the oldest sites first. Phase I, to be completed within three years, would deal with sites where the predominant permission was granted before 1st April 1969. Phase II, to be completed in the following three years, would deal with sites where the predominant permission was granted after 31st March 1969 but before 22nd February 1982. To deal with the particular problem of sites wholly or partly within national parks, areas of outstanding natural beauty and sites of special scientific interest, I propose that all these should be reviewed in the first phase. I hope that that will reassure my noble friend Lord Addison.
Mineral planning authorities would be required to compile lists of sites, specifying in which phase active sites would be reviewed and the date by which the owner or operator must submit a scheme of updated planning conditions for the Authority's approval. If no scheme was submitted the permission would fall. Dormant sites would not be allowed to recommence working until a new scheme of conditions had been approved.
This broadly follows the approach we adopted for interim development orders. This approach is working well and real improvements are being achieved. I therefore intend to follow the approach set out by Sir George Young, which is that there should be no compensation for any new environmental, amenity and restoration conditions imposed on sites—I hope that that will reassure my noble friends Lord Renton and Lord Marlesford and the noble Lord, Lord Moran—whether active or dormant, but there would be a right of appeal to the Secretary of State.
Guidance would make clear that for "active" sites a distinction should be drawn between conditions that deal with the environmental and amenity aspects of working the site, which would not affect the asset value, and conditions that would fundamentally affect the economic structure of the operation. Conditions that would significantly affect the asset value, or fundamentally affect the economic structure of the operation, should be imposed only by agreement with the operator or by the use of revocation, modification or discontinuance orders which would attract compensation. My noble friend Lord Glenarthur today, and the industry, have suggested to me that this approach should be enshrined in statute. I am giving careful consideration to that proposition.
I recognise the concerns that some sites are simply in the wrong place and their permissions should be revoked. The Government do not believe in the revocation of planning permissions without

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compensation. However, for dormant sites, full modern conditions will be appropriate before reactivation. These would be imposed without compensation.
I wish to encourage greater use of prohibition orders to remove the problem of long dormant sites where there is no real intention to work them. In considering whether or not to confirm such orders, the Secretary of State will wish to satisfy himself that the land or mineral owner can demonstrate a real and genuine intention to work the site and that the site is capable of being worked to full modern conditions. A vague indication that the site might be worked sometime in the future will be insufficient. I believe the proposals for full modern conditions and the policy I have set out for prohibition orders will go a long way to resolving the problem of dormant sites.
The amendments will also provide for periodic reviews of all mineral sites every 15 years. This is important to ensure that the conditions attached to permissions keep pace with the standards of the day—a point made by my noble friend Lord Marlesford—and that we do not re-create the problem we now have. Mineral planning authorities would have to notify operators when a review was due and the date by which a scheme of conditions should be submitted for approval. If no scheme was submitted the permission would fall. There would be a right of appeal against the imposition of unreasonable conditions and a clear entitlement to compensation.
I turn now to the issue of the end date for permissions granted prior to 1982. I have given careful consideration to whether the date of 2042 should be brought forward. The primary task is to get the permissions updated to modern standards. The measures I have outlined will ensure that active permissions have to be reviewed within six years and that dormant sites cannot be reactivated until full modern conditions have been imposed. This, combined with increased use of prohibition orders to deal with sites that are unlikely to be worked in the future, will ensure that any problems caused by the current end date will be minimised. I therefore propose to leave the end date unchanged.
I return briefly to the subject of old ironstone consents. I indicated earlier that our proposals would do much to resolve the main issues posed by these permissions. Active ironstone sites must be reviewed and upgraded within the first phase. Dormant sites will not be able to reactivate until full modern conditions are approved, including provision for proper access and transport which are of particular importance for the sites. Taken as a whole, together with the increased use of prohibition orders, this approach will lead to substantial improvements on the ground without the need for revocation of consents.
I shall briefly mention the position on peat. As noble Lords may know, much peat extraction takes place from within old permissions which are now also SSSIs. I have had constructive discussions with the industry, which has agreed that all old peat permissions should be reviewed in the first phase of the initial reviews. The industry will also have regard to the safeguarding of adjacent areas which are of nature conservation value, the phasing of remaining extraction, and proposals for
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rehabilitation, wherever practicable, to provide future areas for nature conservation. The industry has voluntarily agreed to surrender substantial working rights to achieve this approach.
The package we propose follows broadly the proposals we consulted on last year, refined in the light of consultees' comments. It will ensure that old permissions are brought up to acceptable standards; that dormant sites cannot be reactivated without warning or proper conditions; and that all mineral permissions will be regularly reviewed in future. I believe it represents a significant step forward while maintaining an equitable balance between the rights of those who hold longstanding, valid planning permissions and the proper protection of the environment and amenity.
In the light of what I have said, and the undertakings I have given, I hope that my noble friend will withdraw his amendment.
Viscount Addison: My Lords, I thank my noble friend for all he said in his very long reply to my two amendments. I would like to study more fully what he said in Hansard tomorrow. In view of all that he said and the helpful way he put the message across, I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
[Amendment No.]27 not moved.]
The Deputy Speaker (Lord Murton of Lindisfarne): My Lords, in Clause 54, Amendment No. 128—standing in the name of the noble Earl, Lord Kintore—and Amendment No. 128A appear to be alternatives. If either of the amendments is agreed to, I would not be able to call Amendments Nos. 128B to 128E inclusive because of pre-emption.
Clause 54 [Contaminated Land]:
The Earl of Kintore The Earl of Kintore moved Amendment No. 128:
Page 45, leave out lines 9 to 15 and insert:
("()"Contaminated land" is any land or interest in land, whether comprising of the surface or of any substratum, mine, mineral or underground space, which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in or on the land, that—

(a) significant harm, or

(b) pollution of controlled waters,

is being or is likely to be caused.").
The noble Earl said: My Lords, I welcome the attempt that is being made by Clause 54 to clarify and improve the law on contaminated land. I fear, however, that there are serious flaws which, if not corrected, will result in significant prejudice to innocent owners and occupiers.
The amendment seeks, first, to provide that any harm emanating from substances in the land must be significant for the definition of "contaminated land" to be met. There are many situations where substances in the ground—such as normal levels of agricultural pesticides—cause harm to certain organisms, even where the overall effect of the substance in question may be beneficial.
Secondly, the definition of "contaminated land" must be tight enough to ensure that where contamination is in an underground seam or mine which does not belong to the surface owner, the surface owner will not be held

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liable. The wording of the Bill, which refers to substances under the land, places full liability on owners and occupiers of the surface—even tenant farmers—for contamination in underground mineral seams or mines which belong to someone else. This would place an immediate liability on surface owners for polluted water in disused coalmines. It may be that that is an unintentional effect of the Bill, but it would be highly unsatisfactory and unfair.
The conveyancing theory in both Scottish and English law is that ownership of land has no vertical limits unless these are specified in the title. There is therefore no need to refer to substances under the land because the surface owner is assumed to own everything below ground unless the title says otherwise. There are, however, many exceptions where mines and minerals belong to a third party. In the terms of the Coal Act 1938, all coal mines were vested in the coal commissioners, subsequently the National Coal Board, and now the Coal Authority.
In moving the amendment—which is grouped with others, including government ones—I hope that the Minister will take an early opportunity to give the Government's views. I beg to move.
Viscount Ullswater: My Lords, it may be for the convenience of the House if I were to address the amendments standing in my name on the Marshalled List. By doing so, I hope to be able to explain the Government's intentions. I hope that the House will allow the debate to continue and then, with the leave of the House, perhaps I may wind up at the end.
I am speaking to Amendments Nos. 128C, 128F, 129F, 129G. 135A, 141A, 144D and the others in my name grouped with those amendments. I am pleased to have been able to table the amendments before today's debate. They all relate to the overall definition of "contaminated land" and the process by which it is determined whether individual sites qualify as such. I must of course apologise for their relatively late arrival, and, while I would not normally wish to table amendments so close to the day on which they are to be debated, I felt that it would be better for them to be tabled and debated as soon as they were ready, rather than to leave them until the Bill is debated in another place.
Amendment No. 128C is the most important in this package of amendments, as it adds the qualification that harm must be significant into the definition of "contaminated land". That reflects the Government's original intentions, and our overall "suitable for use" approach. It will also, I believe, meet many of the concerns as to the scope of these provisions raised by noble Lords in our debate on this clause in Committee.
That notion of "significant" harm includes the consideration together of the extent of any harm and of the nature of what might be affected—what is called in the technical jargon, the "target". For some potential targets—human health, for example,—quite small amounts of harm might be unacceptable. But when considering damage to property, as another example, the test might be less stringent.
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Moving beyond that, some targets will be disregarded altogether. It is not the Government's intention, for example, to introduce through these provisions new requirements for the protection of habitats and ecological systems over and above those already in place under existing wildlife and habitat legislation.
The second major element of Amendment No. 128C is the new test relating to the "significant possibility" of harm being caused. In deciding whether remediation might be required on any site, a balance needs to be struck between the probability of any harm arising, and the consequences if it does. For example, the chances of methane gas on a site actually resulting in an explosion at any given time may not be all that high, but the consequences of an explosion to people living nearby would be so great as to require action to be taken to reduce even that slight possibility.
The amendment deliberately leaves unchanged the existing test in respect of pollution of controlled waters. That reflects the existing test under water legislation, in particular Section 161 of the Water Resources Act 1991, which can also be used to deal with land which is likely to pollute waters. The Government's intention in including water pollution within the definition of "contaminated land" for the purposes of these provisions was to try to ensure that individual sites did not face dual regulation, and so that a single process could address all of the problems associated with contaminants in the land. That purpose would be frustrated if this legislation sought to impose a different test from that which applies under the water legislation.
The process of determining whether there is, in fact, a significant possibility of significant harm arising on any individual site requires a detailed risk assessment on that site. Amendments Nos. 128F and 135A provide for local authorities to act in accordance with guidance from the Secretary of State with respect to the manner in which they both seek to identify contaminated land and determine whether the land is contaminated. That will ensure that the local authorities act in a technically sound way, reflecting best scientific practice in this area.
Amendment No. 129F provides for guidance to set the parameters within which the questions can be determined as to whether any harm is significant; whether the chances of its occurrence are significant; and whether pollution of controlled waters is likely to be caused. This provides for the guidance to be able to ascribe different degrees of importance to different types of target and different categories of harm. Specifically, it allows for particular descriptions of these to be disregarded, where that is appropriate. We believe that that overcomes the problems of vires identified with the guidance in the original provisions, by the noble Lord, Lord Northbourne, in particular.
There is understandable concern that that important material should be in guidance, rather than on the face of the Bill or set out in regulations. I believe, however, that our approach is the best in the circumstances. The decisions on each individual site will be based on detailed technical judgments, relying on the consideration of a wide range of factors in each case. It would quite simply not be possible to prescribe for all possible circumstances what answers those technical

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judgments should arrive at. The best that can be achieved is for the parameters of the necessary technical judgments to be set through guidance in accordance with which local authorities must act, and which will be subject to parliamentary scrutiny. That guidance would, in any case, carry strong evidential weight in the courts if any remediation requirements were to be challenged on the grounds that the guidance had not been followed.
A further benefit from the production of that guidance will be to improve certainty in the property market. At present, local authorities are able to use their powers under the statutory nuisance powers in Part III of the Environmental Protection Act 1990 with very little by way of guidance. The guidance under this part, with its strong status, will provide a guide to anyone interested in knowing what might be required of them by way of remediation. That will enable them to plan their property in vestments accordingly.
But aside from those benefits, the guidance will obviously have a central impact on the effect of these powers as a whole. That is why we feel that it is appropriate that it should come from the Secretary of State, and should be subject to parliamentary scrutiny through the negative resolution procedure. That is the effect of Amendment No. 165A.
That amendment also introduces two further requirements with respect to any guidance to be issued by the Secretary of State under this part. First, before it is issued he will have a duty to consult the appropriate agency, and such other bodies and persons as he considers appropriate. And I am happy to confirm that that consultation will be detailed and involve a wide range of interests. Secondly, the amendment states explicitly that any such guidance will be published.
I wish to commend this package to your Lordships. I believe that it provides a technically robust, and legally secure, basis for delivering the "suitable for use" approach which gained widespread support in the responses to our consultation paper Paying for our Past.
4.15 p.m.
Baroness Hilton of Eggardon: My Lords, the late arrival of the amendments on Friday evening makes it difficult to comment upon them in detail. I shall therefore address my remarks largely to the crucial amendment (Amendment No. 128C) which introduces the concept of significant harm.
The Bill as originally drafted had a wide definition of harm to any living organism. That might have caused great difficulty in relation, for example, to the application of pesticides to land, which could have resulted in it being automatically designated as contaminated. However, we are left with the words "significant harm", and their definition will be dependent upon guidance. So, in a sense, although we are slightly further forward, we are not entirely clear about what is intended by that definition of "contaminated land".
Amendment No. 128C appears to be inherently contradictory. The Minister said that it created a balance, but on one side it makes more stringent the definition of "harm", while on the other it introduces the
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possibility of harm, which widens the provision to the extent that it no longer provides a clear definition of what is contaminated land. One goes from a narrow definition at one end to what might be interpreted as a very broad definition at the other end.
The fact that we do not have the guidance before us makes real comment on the amendments difficult at this stage. I hope that we can obtain an assurance from the Minister that at least the draft guidance will be available when the Bill appears in another place.
Lord Coleraine: My Lords, I rise to speak to Amendments Nos. 128A, 129A and 133A, which stand in my name. They reflect the anxiety of the Law Society that the Bill's definition of "contaminated land" is inadequate. That was recognised by my noble friend in Committee in reply to the noble Lord, Lord Northbourne.
The Law Society's principal criticism of the definition was that it was too wide, requiring action where there was no real risk justifying expenditure. What was the point, for example, of requiring remediation where soil isolated from human contact or from groundwater was toxic to micro-organisms or invertebrates? The amendments in my name operate principally, first, by redefining harm by reference to harm to human health and property; and, secondly, by tempering the protection afforded to micro-organisms and the like by providing that land may be contaminated if it is in such a condition that serious harm to nature conservation interests is being or is likely to be caused.
My Amendment No. 133A would amend the definition of "pollution of controlled waters" so that the definition does not catch the entry into water of solid waste matter or poisonous, noxious or polluting matter in insufficient quantities to have harmful effect.
The amendments in the name of the noble, Lord Northbourne, and other noble Lords—which stand in danger of being partially pre-empted if an amendment is passed before they are called—take a less radical approach to the definition. They provide that proscribed harm must be serious and that harm to malign micro-organisms is permitted. These amendments would still leave an unnecessary and troublesome general protection in place for all other micro-organisms.
I have not been advised by the Law Society as to its views on these eleventh-hour amendments tabled by the Minister. I know that he is on record as considering that "serious harm" is a test that is too restrictive. My immediate thought is that his "significant harm" test is inadequate for reasons of certainty and clarity. It may be that this very lack of clarity has commended itself to the Government as allowing the infiltration of the Bill by further guidance provisions.
The Law Society is anxious about the time that must elapse before all the guidance in respect of contaminated land is promulgated. The timescale will not be bridged in any way when new Section 78R is added to the Environmental Protection Act 1990. The question of contaminated land, in particular where contamination arises in the land of various owners and it is necessary to apportion liability for remediation, is very complex and deserves a parliamentary Bill of its own. A

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considerable planning blight is already affecting the market and that will not be improved by the inadequacy of this clause as primary legislation so clearly reflected in the perceived need to regulate so much by guidance. I had hoped that the definition of "contaminated land" at least would be on the face of the legislation and not left to guidance.
Lord Stanley of Alderley: My Lords, will my noble friend reply to a specific question? If an area is in a nitrate sensitive zone, can it also be contaminated land?
Lord Northbourne: My Lords, it may be for the convenience of the House if I speak to my Amendments Nos. 128D, 128E, 128G, 129B to 129E, 142A and 144F. They cover the same issues as the amendments tabled by the noble Viscount, Lord Ullswater. I wish to speak separately in turn to Amendment No. 144G, which addresses a slightly different issue.
I welcome the Minister's amendments. They do much to address the anxieties of the House on the definitions of "contaminated land" and "harm", which I raised in Committee. The outstanding problem is that we do not know what the guidelines will state. Will the Minister assure the House that the Government will recognise the point made by the CBI? It stated:
"British industry and the current owners of industrial land have the legacy of roughly 200 years of industrial activity since the start of the Industrial Revolution. The total cost of remediation far exceeds the capacity of one generation to provide the requisite resources. Inevitably, this raises questions of priority. In some cases, the contamination may represent a significant risk calling for urgent action. But in many cases the contamination is contained and presents little risk".
I am not too happy about the Minister's comments on the pollution of controlled waters. If one refers to serious harm but the word "serious" is not used in defining polluted waters, it may mean that the pollution of waters must be taken as an absolute issue. "Pollution of controlled waters" is defined at the top of page 48 of the Bill. It refers to:
"any poisons ... or any solid waste matter",
which may be going into the water. That is a tough definition and I ask the Minister to reconsider whether a modification of the definition of "pollution of controlled waters" should he built into the Bill.
The Earl of Kinnoull: My Lords, I support what was said by the noble Lord, Lord Northbourne. I too congratulate my noble friend on the amendments that he has brought forward. However, I have a question about the guidance. When will the draft guidance be published? The timing appears to be out. One has the framework of the Bill; but the guidance, which will be at the nub of the issues, is to follow. Contaminated land is a critical issue and I hope that my noble friend will he able to give a timescale for the publication of the guidance.
Lord Elton: My Lords, I feel like a dowager at the edge of a ballroom, having many years ago sat in my noble friend's office and long since finished dancing the minuets that he is forced to dance before Parliament. However, I wish to reassure my noble friend on one matter. On Friday, he had a difficult decision to make;
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whether to table the amendments and suffer your Lordships' indignation because they had insufficient time to digest them or not to table the amendments and suffer your Lordships' indignation because they would not be discussed in this House before going to another place. I believe that he took the difficult but correct decision. Third Reading is scarcely the opportunity for a technical debate; but, in any case, I cannot conduct an exchange with seated Members of your Lordships' House.
I repeat that I believe that my noble friend made the right decision. He appears to have met a large majority of the anxieties that were expressed at an earlier stage. Any residual anxieties can be discussed later, and I hope that your Lordships will accept the amendments.
The Earl of Lytton: My Lords, I too believe that, notwithstanding the conventions, the Minister made the right decision in tabling the amendments. They have gone a long way towards allaying some of the fears expressed about the way in which the Bill will operate in practice. I welcome the amendments because they represent a clear sign that some of the anxieties have been heard. Certainly they deal with many of my own anxieties about the Bill.
I support what was said by the noble Lord, Lord Northbourne, and the noble Earl, Lord Kinnoull, about the need to know what will be in the guidelines. It is necessary for the House to have a reasonably full explanation of them so that, before the Bill goes to another place, we can reach a considered opinion on its impact. That is not in any way to seek to pre-empt the necessary discussions in which the Government must engage with others about how the matter is to be implemented. Otherwise, it seems to me that we are firing blind. That is extremely unsatisfactory bearing in mind the overriding need, as pointed out in the quotation from the CBI given by the noble Lord, Lord Northbourne, to remedy a long legacy of contamination. We need to get it right, and we need to know what the guidance will contain.
4.30 p.m.
Viscount Ullswater: My Lords, despite a certain amount of reservation from the Benches opposite, I am pleased to be able to introduce the amendments. I believe that they move us more than slightly further forward, which was the phrase used by the noble Baroness, Lady Hilton.
The main effect of Amendment No. 128 would be to specify that contaminated land includes any land or interest in land so that it covers specifically sub-strata and mines. It would also introduce the test of significant harm being, or likely to be, caused.
Amendments Nos. 128A and I 29A proposed by my noble friend Lord Coleraine seek to amend the definition of contaminated land so that different tests would apply to different categories of target which may be affected by the harm arising from the contamination. That is broadly in line with the Government's intentions, as I indicated in my earlier comments.

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I understand that my noble friend has not had sufficient time to take proper advice from his advisers because of the lateness of the tabling of the amendments. I hope that when he has had the opportunity to study them, he will see that they go a long way towards allaying his anxieties.
The formulation adopted in the amendments of my noble friend reflects in particular the widespread anxiety about how the existing definitions in the Bill address damage to habitats and ecological systems. While it was not the Government's intention to introduce new protections in those areas which do not exist under other legislation, it was argued that that would be the effect of existing provisions. We have sought to remove those problems through government amendments which I shall move.
However, I suggest that the amendments of my noble friend Lord Coleraine and the noble Earl would not achieve the goals set for them. First, they would leave an essentially subjective test of serious harm to nature conservation interests. That is probably still too broad in many respects .as it fails to distinguish between those aspects of nature conservation which need to be protected under those powers and those which do not.
Conversely, the test of any harm to nature conservation interests having to be serious is potentially too narrow and restrictive where particular habitats and organisms need protecting. In some cases, that test of serious harm would not enable us to meet our European obligations, in particular in respect of those sites we are required to protect under the habitats directive.
Amendment No. 133A seeks to amend the definition of pollution of controlled waters. The noble Lord, Lord Northbourne, asked whether the test for polluting controlled waters is made more stringent by the Bill. Sites would still be open to regulatory action under Section 161 of the Water Resources Act 1991, which includes the test as currently included in those contaminated land provisions. Therefore, there is no change.
My noble friend Lord Kinnoull and other noble Lords indicated that they wish to see the guidance and asked when it will he available. The Government intend to publish an outline of the guidance on the question of significant harm before the Bill reaches Committee stage in another place. I agree with my noble friend Lord Elton that it would not be suitable to discuss that in detail on Third Reading. It will have to be draft guidance because apart from saying that we shall publish it we have said that we shall consult widely on it.
My noble friend Lord Stanley of Alderley asked a direct question about nitrate sensitive areas. I shall need to take further advice to be specific about that but I stress that this relates to pollution of controlled waters. Our intention is not to increase existing liabilities under the legislation. We are considering whether our present provisions achieve that particular state. Therefore, having had the opportunity to reply to noble Lords in relation to amendments which have been moved and spoken to, I ask the noble Earl, Lord Kintore, to withdraw the amendment.
The Earl of Kintore: My Lords, I thank the Minister for his helpful reply. I thank him also for tabling the
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government amendments which I shall study carefully. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 128A not moved.]
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 128B:
Page 45, line 9, at beginning insert:
("Subject to subsection (2A) below").
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 128H, 170 and 174. I shall speak to those other amendments because they form part of a package, as I propose to explain.
There is a general problem of pollution from abandoned mines. That is recognised and I do not wish to go into detail or repeat the arguments which have taken place in your Lordships' House both during the passage of the Coal Industry Bill and also in Committee on this Bill. The severity of the problem has been illustrated by several bodies and studies, not least the review of November last year by the Department of the Environment.
Of course, the problem is not confined to abandoned coal mines. Metalliferous mines are affected also. They have the same toxic effects and are liable to pollute waters. As the Minister said in Committee, there is a somewhat anomalous legal position about who should or might be responsible for pollution caused by water from abandoned mines.
The Coal Authority, I understand, deals with abandoned coal mines, although the remit of the authority is not entirely clear. There are also abandoned metal mines. It is not clear from the regulations who is meant to deal with the pollution which arises or may arise from them. There are various categories of abandoned mine which have been dealt with by different bodies as and if problems arise. I do not wish to deal with the Coal Authority; it is the subject of a later amendment to he moved by my noble friend Lady Hilton. I wish to deal specifically with the amendments which I have placed before your Lordships.
In my view, there are two categories of abandoned mine. There is the category of existing abandoned mines, if I may use that expression; that is, mines which have already been abandoned and which constitute a threat. Those may be coal mines—many of which have been closed down over the past few years—or they may be metal mines of one kind or another.
The second category is mines which may be abandoned after the Bill becomes an Act. That is a slightly different category. I propose to deal with the two categories in that order.
So far as concerns existing abandoned mines, my amendments would ensure that any mine abandoned during the period between the date of Royal Assent of the legislation and the date from which the defence provided by Section 89(3) of the Water Resources Act 1991 ceases to apply should be treated as contaminated land. As we know, there are several procedures for the mediation of contaminated land which will apply even if the

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amendments that the Government are about to move—and which I imagine your Lordships will accept —are put into the Bill.
There is no intention in our proposal that the definition of "contaminated land" would normally apply to land under which abandoned mines are situated; indeed, it is not intended that any such question should be raised. All that matters is that the definition would refer to such land during the period specified irrespective of whether it did so otherwise. In other words, during that very limited period —and I shall say later just how limited that should be—the abandoned mine or mines would be treated as contaminated land.
I recognise that that proposal is a short-term solution. However, it is designed simply to ensure that there is no hole through which anyone can escape. In a way, it is a half-way house. It is so for two reasons. First, it is designed to give the Government time to determine what the role and, indeed, the funding of the Coal Authority should be; in other words, what should be the long-term solution for existing abandoned coal mines. We have heard many ministerial statements in that respect, but there is substantial doubt about the role and funding of the Coal Authority. Secondly, it would allow the Government to decide what to do about existing abandoned metal mines for which, at present, there appears to be no solution.
I turn now to the second category. So far as concerns any mines abandoned between Royal Assent and the date from which the defence against polluting controlled waters ceases to apply, they would be treated as contaminated land. But, again, I recognise that that is not an ideal solution. It is another holding situation. It is a holding situation which leads to the conclusion—and, because it is so, it should not last too long—that the date upon which the defence ceases to apply should be brought back and that it should not be a five year business. We believe that it should be put back to 1st January 1996. That is the object of Amendments Nos. 170 and 174.
At that point—if our proposal is adopted—the situation would become quite clear both for coal mines and for metal mines which are subsequently abandoned. Therefore, the amendments which I am putting before the House all hang together. They provide, first, an intermediate holding situation to what I acknowledge to be a difficult problem. They would allow space for the Government to come out into the open, if I may put it that way, on the Coal Authority's funding, and on its responsibilities, and on their proposals to deal with existing abandoned mines of other minerals. The Government could use that period to declare their hand.
The amendments also allow a new structure of responsibility to start operating from the date at which it should and not five years hence. As such, the amendments form a package which I hope will commend itself to the House. I beg to move.
4.45 p.m.
Lord Mason of Barnsley: My Lords, I should like to speak to Amendment Nos. 170 and 174. I believe that the Government must now be aware of the dismay that
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met their proposal in the coal legislation that effective legal responsibility on mine waters from abandoned mines would not come into force until 1999. The amendments seek the immediate abolition of the defence available to the owner of an abandoned mine and would not allow the defence to continue for another five years.
When the Bill was introduced to the House, noble Lords will remember that there was, in the Explanatory and Financial Memorandum, a special passage marked "Abandoned mines" which said:
"Since these proposals are coming forward in parallel with the privatisation of the coal industry, there could be some adverse effect on proceeds to the Government. Accordingly, the removal of the statutory protections is being timed to reduce any possible effect".
In my opinion, that is the Government blatantly admitting that the reason for the delay in abolishing the defence is to reduce the possibility of an adverse effect on the proceeds of privatisation of the coal industry. Therefore, they have given a five-year safeguard. I find that quite incredible. It is a total disregard for the environment and for the likely pollution problems emanating from the cessation of pumping at abandoned mines.
Local authorities and National Rivers Authority regional officers in the coalfields are aghast. They fear the pollution of rivers and lakes allied with no responsibility being placed on the owner of an abandoned mine. The all-party Coalfield Community Campaign has expressed its concern that the Government's intention has been to maximise the proceeds from the sale of the coal industry and not the need to protect the environment of mining areas. That is a charge which should be answered.
The Government must be aware of the NRA report, Abandoned Mines and the Water Environment, which was published in March last year. It stated that in England and Wales alone 200 kilometres of rivers, streams and brooks are already affected by varying degrees of pollution from abandoned coal mines. In the Scottish coalfield alone, the report states that there are 134 kilometres of surface waters polluted from 110 discharges in the Clyde and Forth catchment areas alone.
If existing pumping by the Coal Authority were to stop before 31st December 1999, the length of polluted rivers would extend greatly and threaten some of our rivers of national importance. It also seems relevant that the Coal Authority, which is at present continuing to pump in areas such as Durham, South Wales and Yorkshire (where mines have already been abandoned), might become criminally liable if it stopped pumping, whereas it might not if, as proposed, there is a five year delay in abolishing the defence.
The Secretary of State for the Environment described the latter as "unique statutory exemptions". Well, of course, they are: they are favouring the potential polluters. The Government have given a commitment that the responsibilities of British Coal and the historical legacy of mining would be taken on by the new Coal Authority. Therefore, is it not unfair and unjust that the authority may be able to shelter behind that exemption in favour of abandoned mines? So far as concerns water pollution or even potential water pollution, there can be

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no doubt: the Government should not be content to rest on the present effect of the exemptions. If the existing rules remain, particularly on minewater pollution, private mine owners would have few environmental liabilities. The public sector would be placed in the position of having to clean up the pollution caused by privately operated mines. Moreover, what of the principle that the "polluter pays"? In those cases, the public would pay.
The Bill also fails to address the problems of long-time abandoned mines where pollution is already occurring. That is a problem, and a most worrying one, which faces mining communities. It concerns us that the legal loophole is to be removed only for coal mines abandoned up to the end of 1999.
There are approximately 23 former British Coal mines left, but scores of pits have been closed in recent years, with all the worries about cessation of funding. The Bill does not demand that, on abandonment, mine operators contribute to environmental protection costs or take account of the environment when they abandon a mine.
The Minister said:
"we have taken the view that it would be right to allow those involved a period until the end of 1999 in which to adjust to the proposed changes in the existing regulatory regime because of the obvious practical and financial implications".—[Official Report, 31/1/95; col. 1484.)
Again it is a question of financial implications. So the Government remove a potential environmental liability and aid the sell off, irrespective of the pollution problems that might flow from cessation of pumping from an abandoned mine.
The truth is a disgraceful disregard of the looming environmental problems likely to hit our coalfield communities on top of the environmental degradation that we have suffered over the years from burning muckstacks, opencast coal mining, tipping sites and general industrial pollution. All of that is on top of the heartless mass closures of our coal mines, the massive rise in unemployment and wholesale misery in our mining villages. It is just not on.
I say therefore, on the environmental plane alone, that our people are worthy of a better, cleaner way of life. Mine water pollution of our rivers and reservoirs from abandoned mines will certainly affect the quality of life. Yet there is no sanction on private owners; they have no liability until after 1999. I believe that they should come under a legal statutory sanction immediately.
Also, the Coal Authority must not shelve its responsibility for its working mines by hiding behind this five-year exemption. It must be aware of its responsibilities for the countless numbers of abandoned mines in all our coalfields and the increasing dangers of pollution outbreaks from these old mines. There is a fear of a series of major pollution incidents from mine water discharges. The National Rivers Authority report identifies many significant water quality problems, including serious discharges from abandoned mines: 15 in Northumbria, 24 in the North West, four in Severn Trent, 21 in Wales and 36 in Yorkshire. There are over 10,000 abandoned mines, many containing pollution time bombs. We have already had a series of frightening
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reminders and there are likely to be many more. The Coal Authority, in alliance with the NRA, must start tackling those outbreaks.
Finally, the Coal Authority, now the owner of and responsible for all abandoned mines, should be required by statute to prevent, control and treat pollution from its abandoned mines regardless of when they were abandoned. Money should be afforded to the authority from the £1,000 million from coal mine sales and the moneys, estimated at £500 million, that will be made from the forthcoming land sales.
There is always a price to pay to protect the environment and to avoid environmental damage. The Government should now recognise their responsibilities in this regard and abolish the five-year defence for all mines and provide the moneys to the Coal Authority to help it protect our coalfield communities from these environmental dangers.
Lord Crickhowell: My Lords, the noble Lord, Lord Mason, speaks with vast authority on these matters. The House will understand why we miss his formidable contribution to the affairs of the NRA.
I do not need to add much to what the noble Lord said about the five-year gap before the removal of the defence afforded by Section 89 of the Water Resources Act 1991. He quoted the comments of my noble friend Lord Ullswater on 31st January. He did not quote an introductory remark by my noble friend, when he said that the decision:
"to remove the defence and exemption was taken in the knowledge that that would be a step of great significance not just as a means of improving the quality of discharges from mines abandoned in the future, but with the practical and financial implications for the current owners and operators of mines".—[Official Report. 31/1/95; col. 1484.]
The noble Lord, Lord Mason, spoke of the impact and the financial implications and whether that was a good reason for acting. However, we are faced with a dilemma. While there are clearly financial implications, if this measure is of great significance as a means of improving the quality of discharges, then one needs a good reason for delaying its introduction. The delay causes me concern.
There are other matters which also worry me. My noble friend Lord Strathclyde, speaking as long ago as 26th April 1994, made it clear that the Coal Authority will be the owner of abandoned mines throughout Great Britain irrespective of when they may have been worked. There comes a point when the Coal Authority takes over responsibility. But, as the noble Lord, Lord Williams of Elvel, reminded us, there are not only coal mines to worry about, there are also metalliferous mines. He said that metalliferous mines could be just as polluting as coal mines. In reality they may well cause greater pollution. Our experience, certainly for example with the Wheal Jane tin mine, is that the "nasties" that they release may be a great deal nastier than those normally experienced with coal mines.
There is a serious anxiety to be addressed here. If the Coal Authority is to pick up the responsibility for coal mines it is by no means clear where responsibility for metalliferous mines is to lie or from where the resources for dealing with the problem are to come.

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While it may be important that the removal of the defence is postponed for five years, there is a longer-term problem which also needs to be addressed. The Bill does not give the agency any new powers to require action to be taken to deal with already abandoned mines or mines that may be abandoned up to the year 2000. Essentially, the agency will have to continue to rely on the existing legislation and on non-statutory memorandums of understanding.
We need an answer to the question as to what route the Government think should be taken to deal with old, orphaned metalliferous mines. I do not pretend that it is an easy problem. The costs can be very great, as we discovered with Wheal Jane. It would at least be helpful if we had some indication from the Government as to how they think the problem might be tackled.
There is also one further issue which concerns me. It is the relationship of the legislation we are proposing to put in place with the directives of the European Union. Perhaps I would test my noble friend a little severely if I asked him to give me an immediate answer, but I should be grateful if at some stage he could say what is the legal position with regard to the dangerous substances and ground water directives. It is by no means clear to me whether coal or metalliferous mines are exempted from those directives. If they are not, how is it that the Government can allow the exemptions from the Water Resources Act to continue until the end of the century? It seems possible at least that the Government are opening themselves to the risk of challenge in the European Court. It is therefore not just a question of a gap. There is the real possibility of a conflict between our own and the European legislative position.
These are difficult issues. We have to face the fact that the costs of dealing with the problems can he great. I would be the first to argue that we have to choose our priorities, and to choose them with care. I do not for one moment argue that the new agency, or the Government, should be expected to rush in to deal with the discharge from every closed mine. There are mines which have been discharging discolouring water, often for centuries, without causing serious damage. Indeed, there are red rivers all around this country and the world. There are great companies—I refer to Rio-Tinto Zinc—named for that very reason. However, specific rivers which are affected by coal mine closure, and other metalliferous rivers, involve a very real threat and danger. We need some indication from the Government on how they intend to address the problems.
I conclude by reminding the House that the noble Lord, Lord Strathclyde, took us a considerable step forward in giving the commitments that he gave at an earlier stage about the role of the coal authority and the role that the Government envisage for the coal authority in tackling mines that have been abandoned.
5 p.m.
The Earl of Onslow: My Lords, I wish to muse for a small moment of time on the contrast between exemptions given to disused mines and the absolute offence of the pollution of a river by a private person or
150
a private company, however good the defence is. It seems to me that a difference in values is being applied here.
Baroness Hamwee: My Lords, in supporting the group of amendments, I make one comment. The Government took a welcome step forward on the last day of the Report stage when dealing with environmental costs and benefits. They accepted that in that context costs include costs to the environment and not only the cash costs to individuals. It would be helpful and welcome if that principle could be applied to this serious issue. The Government's thinking having moved forward, I hope that the particular as well as the general provision will illustrate that.
Lord Peyton of Yeovil: My Lords, I have no idea what my noble friend will say in reply to the debate. However, I hope that the words spoken by the noble Lord, Lord Mason, will receive particular attention. Those who live in the mining areas have strong feelings. Whatever difficulties the Government may have, or however the Government may feel, those who live in the mining areas feel that they have been treated shabbily and that their interests have not been taken into account. If I may say so, I thought that the noble Lord, Lord Mason, put the point with great restraint and effectively. I very much hope that his words will be carefully weighed.
Viscount Ullswater: My Lords, we have leapt from an amendment on the definition of contaminated land, which the noble Lord, Lord Williams, moved to redefine abandoned coal mines as contaminated land, into abandoned mine provisions which are the subject of Clause 55. Although I should like to reply to the noble Lord, Lord Mason, and to my noble friend Lord Crickhowell, it would probably he as well not to go into too much detail because we shall go over the issue substantially on the amendment in the names of the noble Lord, Lord Williams, and the noble Baroness, Lady Hilton, on abandoned mines.
Lord Williams of Elvel: My Lords, I am sorry to interrupt. However, if the House proposes to accept the amendment, we shall not move those amendments. I regard the group as a package.
Viscount Ullswater: My Lords, my noble friend Lord Crickhowell indicated from my remarks at Committee stage that the provisions in Clause 57 represented a significant step. Coal owners have had the exemption now enshrined in the Water Resources Act 1991 since 1875. Therefore to end an exemption is quite a significant step. People have relied on that exemption for 120 years. That is one of the reasons why the amount of time is considered to be important: that we should not make such change right away but allow a certain amount of time for the industry to get used to the change in values.
The amendments moved by the noble Lord, Lord Williams, would affect the potential overlap between these contaminated land provisions and the separate legislation concerning water pollution from abandoned mines.

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As noble Lords may be aware, Clause 57 removes, for mines abandoned after 31st December 1999, the defence against prosecution and the exemption from recovery of costs by the agency in cases where polluting water is permitted to flow from an abandoned mine.
It was no part of the Government's intention that the current clause, establishing the contaminated land powers, would have the effect of removing the existing defence and exemption which apply in the circumstances. However, that appears to have been the inadvertent result of the existing provisions in the Bill, and the Government will be bringing forward an amendment at a later date to rectify this.
The amendments in the name of the noble Lord, Lord Williams. would point in the opposite direction, however. Not only would they remove outright the existing defence and exemption, they would also provide that any abandoned mine would be treated as contaminated land as a matter of definition, no matter when it was abandoned. This would apply regardless of whether the mine was actually causing, or likely to cause, significant harm or the pollution of controlled waters. However, it would still place local authorities under a duty to serve remediation notices in respect of those mines.
This somewhat strange provision would then just as strangely lapse at the end of 1999, when the existing defence and exemption concerning permitting water from abandoned mines to enter controlled waters ceases to have effect for any mines abandoned after that date.
Instead of removing the statutory protections from 31st December 1999 in cases where water is permitted to flow from an abandoned mine, Amendments Nos. 170 and 174 in the name of the noble Baroness, Lady Hilton, would instead remove them for mines abandoned after 1st January 1996.
We consider that removal of the defence and the exemption will contribute towards the control of pollution from mines which are abandoned in the future. It is, however, a significant change which may create new potential liabilities and also has practical implications for existing owners and operators of mines. It is also possible that some land values will have taken account of the existence of the statutory protections. For those reasons we have allowed a period for adjustment in setting the date for their removal.
The noble Lord, Lord Mason of Barnsley, commented on the impact of Clause 57 on the proceeds from the privatisation of the coal industry. I am grateful to the noble Lord for giving me an opportunity to correct the impression that has been gained from the financial memorandum. It is obvious—I do not for a moment attempt to deny it—that proposing new legal liabilities affecting mine owners and operators in particular could have an adverse effect on privatisation and proceeds. Equally, it is obvious that the impact is likely to be larger if the industry is given less time to adapt to those new legal provisions.
However, the memorandum should not be read as meaning that this was the only or even the principal reason for choosing 31st December 1999 as the date after which the amended regime would take effect. But to lay to rest any suggestion that the Government have
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put privatisation proceeds above the proper protection of the environment, I point out that the arrangements under which British Coal's mines were privatised incorporate important safeguards in respect of any future abandonment. Under those arrangements, the mine operator has to give the Coal Authority six months' notice of any proposed abandonment and a report on the consequences, except in the case of real emergency.
As regards the consequences for the water environment, the report is to be based on consultation with the appropriate regulator, the agencies or the present bodies. The operator then has to take all steps necessary to ensure that the mine can be returned to the authority in a satisfactory condition; that is, a condition which does not expose the authority to future liability. If necessary, the operator would have to make an appropriate payment to the authority for any continuing cost before he could relinquish the lease. Any fair-minded person will agree that those measures, which are the basis on which the mines were privatised, anticipate to a large degree the new responsibilities which will be introduced with more general effect through the Government's proposals in the Bill. Consequently, any remaining impact on privatisation must be small.
The noble Lord, Lord Mason, said that he believed that the pollution from coal mines affected a considerable mileage of controlled waters. I am sure that my noble friend Lord Crickhowell would confirm that the latest NRA survey shows that pollution from abandoned mines currently affects only 1.5 per cent. of river length in England and Wales, and that only 0.5 per cent. is polluted by abandoned coal mines. So my noble friend's supposition is right. Pollution from other metalliferous mines is more damaging than from coal mines, at least on a percentage basis of the waters.
I understand the anxiety put forward by my noble friend Lord Peyton that these are important matters. We would not wish to minimise the problems. However, I have indicated that the steps we propose to take are significant and I suspect that we shall discuss them later this evening. We need to consider what my noble friend Lord Crickhowell said about the EC directives on dangerous substances and groundwater. We need to ensure that we do not fall foul of directives. However, I indicated that I do not wish to accept the amendment proposed by the noble Lord, Lord Williams, because of the difficulties it poses. I therefore ask him to withdraw it.
Lord Williams of Elvel: My Lords, I am grateful to the noble Viscount for his exposition of the reason why he does not feel that the amendments are appropriate. First, I emphasise that they form a package. I have said that three times and I say it again. I do not wish to convey the impression to noble Lords that a provision designating abandoned mines as contaminated land would last five years. I regard that as an intermediate solution, except for metalliferous mines, to which the noble Lord, Lord Crickhowell, drew our attention. I agree with him that at the moment there is no provision for dealing with metalliferous mines which have already been abandoned. We shall not oppose the government amendments about guidance on dealing with

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contaminated land. Dealing with metalliferous mines might well be included in that framework, perhaps in the form of guidance to local authorities or something similar.
I said at the outset that I believe that there is a real and immediate problem. I have heard many reasons for the Government wishing to postpone action for five years and I accept the noble Viscount's assurance that privatisation proceeds are not the only matter. We had the reason that the Government wanted to allow mine owners time to adapt to change. Another reason was the wish to allow land values to adjust. We now have the explanation that the exemption has existed for a long time and that we must give it time to run out so that everyone can accept that it no longer exists.
I do not believe that any of the explanations address the problems set out with great effect and sincerity by my noble friend Lord Mason of Barnsley. There is a real threat and danger. The coal mining communities and the metal mining communities have suffered and will continue to suffer. I do not believe that the Government have taken matters as seriously as they should. This is the time to introduce a package and for noble Lords to take the matter in hand and say to the Government, "This is what we want". We wish to ensure that the future of areas where pollution has been caused by industrial and mining activities is protected and the effects mediated soon. For that reason, I wish to ask the opinion of the House. I commend the amendment.
5.15 p.m.
On Question, Whether the said amendment (No. 128B) shall be agreed to?
Their Lordships divided: Contents, 105; Not-Contents, 175.

Division No. 1

CONTENTS

Acton, L

Fisher of Rednal,

Addington, L

Freyberg, L

Airedale, L

Gallacher, L

Archer of Sandwell, L

Gladwin of Clee, L.

Ashley of Stoke, L.

Gladwyn, L

Barnett, L

Glasgow, E.

Beaumont of Whitley, L.

Glenamara, L.

Blackstone, B.

Gould of Pottemewton, B.

Bottomley, L

Graham of Edmonton, L[Teller.]

Brooks of Tremorfa, L.

Bruce of Donington, L

Gregson, L.

Callaghan of Cardiff, L

Grey, E.

Carmichael of Kelvingrove, L.

Halsbury, E

Cledwyn of Penrhos, L

Hamwee, B. [Teller.]

Clinton-Davis, L.

Hams of Greenwich, L

Cocks of Hamliffe, L.

Haskel, L.

Crook, L

Hilton of Eggardon, B.

Darcy (de Knayth), B.

Hollick, L.

David, B.

Hollis of Heigham, B.

Dean of Thomton-le-Fylde, B.

Holme of Cheltenham, L

Desai, L

Hooson, L.

Diamond, L.

Howie of Troon, L

Donoughue, L.

Hughes, L

Dormand of Easington, L.

Jay of Paddington, B.

Elis-Thomas, L

Jeger, B.

EnnaIs, L.

Jenkins of Putney, L

Falkender, B.

Judd, L.

Falkland, V.

Kilbracken, L.

Farrington of Ribbleton B.

Kintore, E.

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Lester of Home Hill, L

Rochester, L

Lockwood, B.

Seear, B.

Longford, E.

Sefton of Garston, L

Lovell-Davis, L

Serota, B.

Mallalieu, B.

Shaughnessy, L

Mar and Kellie, E

Sheffield, Bp.

Mason of Barnsley, L.

Shepherd, L.

McIntosh of Haringey, L.

Stedman, B.

McNair, L

Stoddart of Swindon, L

Merlyn-Rees, L

Strabolgi, L

Milner of Leeds, L.

Taylor of Gryfe, L

Molloy, L.

Thomson of Monifieth, L

Monksweli, L

Tope, L

Morris of Castle Mortis, L

Tordoff, L

Mulley, L.

Varley, L.

Nicol, B.

Wallace of Coslany, L

Ogmore, L

Walpole, L

Parry, L.

Wedderbum of Charlton, L

Pesten, L

Whaddon, L

Prys-Davies,

L White, B.

Rea, L.

Williams of Crosby, B.

Redesdale, L.

Williams of Elva L

Richard, L.

Williams of Mostyn, L

Robson of Kiddington, B.

Winchilsea and Nottingham, E

NOT-CONTENTS

Aberdare, L

Elles, B.

Abinger, L.

Elliott of Morpeth, L

Addison, V.

Elton, L

Ailsa, M.

Erne, E.

Alexander of Tunis, E.

Faithfull, B.

Ampthill, L

Flather, B.

Annaly, L

Fraser of Carmyllie, L

Archer of Weston-Super-Mare, L.

Gage, V.

Astor of Hever, L.

Gainsborough, E.

Belhaven and Stenton, L.

Gardner of Parkes, B.

Birdwood, L

Gilmour of Craigmillar, L.

Blaker, L

Gisborough, L

Blatch, B.

Goschen, V.

Blyth, L

Gray of Contin, L.

Boardman, L

Grimston of Westbury, L

Borthwick, L

Hampden, V.

Boyd-Carpenter, L.

Harding of Petherton, L.

Brabazon of Tara, L

Hardinge of Penshurst, L

Braine of Wheatley, L.

Harmar-Nicholls, L.

Brougham and Vaux, L

Harrowby, E.

Bruntisfield, L

Hayhoe, L

Burnham, L.

Henley, L.

Burton, L

Hertford, M.

Butterworth, L.

Hesketh, L

Cadman, L.

Hogg, B.

Caithness, E.

Holderness, L.

Campbell of Alloway, L.

HolmPatrick, L

Camegy of Lour, B.

Howe, E.

Carnock, L

Hylton-Foster, B.

Cavendish of Furness, L

Inchcape, E

Chalker of Wallasey, B.

Inchyra, L

Charteris of Amisfield, L.

Inglewood, L. [Teller]

Chelmsford, V.

Jenkin of Roding, L.

Chesham, L.

Johnston of Rockport, L

Clanwilliam, E.

Killearn, L.

Clinton, L

Kimball, L

Coleraine, L

King of Wartnaby, L.

Courtovm, E.

Kinloss, Ly.

Cox, B.

Kinnoull, E.

Cranborne, V. [Lord Privy Seat]

Knutsford, V.

Crawshaw, L.

Lindsay, E

Cross, V.

Long, V.

Cumberlege, B.

Lucas of Chilworth, L.

Davidson, V.

Lucas, L

Dean of Harptree, L.

Lyell, L.

Denham, L

Mackay of Ardbrecknish, L

Denton of Wakefield, B.

Mackay of Clashfem, L. [Lord Chancellor.]

Dundee, E.

Dunrossil, V.

Macleod of Borve, B.

Elibank, L

Mancroft, L

Ellenborough, L.

Manton, L.

155

Marlesford, L

Renfrew of Kaimsthorn, L

McColl of Dulwich, L

Renton, L.

McConnell, L

Renwick, L.

Melville, V.

Rodger of Earlsferry, L.

Mersey, V.

Romney, E

Miller of Hendon, B.

Saint Oswald, L.

Milverton, L

Saltoun of Abernethy, Ly.

Monckton of Brenchley, V.

Sandford, L

Monk Bretton, L.

Savile, L.

Monson, L.

Seccombe, B.

Monteagle of Brandon, L.

Sharpies, B.

Morris, L.

Shaw of Northstead, L

Mottistone, L

Shrewsbury, E.

Mountevans, L.

Skelmersdale, L.

Mowbray and Stourton, L

Soulsby of Swaffham Prior, L.

Moyne, L.

Stanley of Alderley, L.

Munster, E.

Stewartby, L.

Murton of Lindisfarne, L.

Strathcarron, L

Newall, L.

Strathclyde, L [Teller]

Norfolk, D.

Strathcona and Mount Royal, L

Nome, L.

Strathmore and Kinghorne, E.

Northbourne, L

Sudeley, L.

Northesk, E

Swinfen, L.

O'Cathain, B.

Thomas of Gwydir, L

Orkney, E.

Trefgarne, L.

Orr-Ewing, L.

Trumpington, B.

Oxfuird, V.

Tugendhat, L.

Park of Monmouth, B.

Ullswater, V.

Pearson of Rannoch, L

Vinson, L

Pender, L

Wade of Charlton, L

Peyton of Yeovil, L

Wharton, B.

Plummer of St. Marylebone, L.

Willoughby de Broke, L

Prior, L

Wise, L

Quinton, L.

Wolfson, L.

Rankeillour, L

Wynford,

Rawlings, B.

Young, B.

Reay, L.

Zouche of Haryngworth, L

Resolved in the negative, and amendment disagreed to accordingly.
5.26 p.m.
Viscount Ullswater Viscount Ullswater moved Amendment No. 128C:
Page 45, leave out lines 13 to 15 and insert:

("(a) significant harm is being caused or there is a significant possibility of such harm being caused; or

(b) pollution of controlled waters is being, or is likely to be, caused;").

The noble Viscount said: My Lords, I spoke to this amendment when the noble Earl, Lord Kintore, spoke to his Amendment No. 128. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. I28D and 128E not moved.]
iscount UllswaterV iscount Ullswater moved Amendment No. 128F:
Page 45, line 15, at end insert:
("and, in determining whether any land appears to be such land, a local authority shall, subject to subsection (8A) below, act in accordance with guidance issued by the Secretary of State in accordance with section 78R below with respect to the manner in which that determination is to be made.").
The noble Viscount said: My Lords, I spoke to this amendment together with Amendment No. 128C. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 128G and 128H not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 128J:
Page 45, leave out lines 16 to 18
The noble Viscount said: My Lords, I also spoke to this amendment with a previous one. I beg to move.
On Question, amendment agreed to.
[Amendment No. 128K not moved.]
Lord Crickhowell Lord Crickhowell moved Amendment No. 129:
Page 46, line 6, leave out ("a closed landfill site") and insert ("contaminated land").
The noble Lord said: My Lords, I now return to a group of amendments which were moved by my noble friend Lord Mills at an earlier stage. They are in exactly the same form as that in which they were debated in Committee. My noble friend and I are continuing to ensure that highly contaminated sites, which may well not be closed landfills, may be open to designation as special sites, and thus fall within the remit of the agency, which should have the expertise and the resource to deal with sites of this kind.
Replying to a number of amendments put down at the earlier stage, including one by my noble friend Lord Lucas of Chilworth, my noble friend the Minister indicated that the Government felt that they were justified in paying particular attention to closed landfills because they presented:
"a particular range of technical and engineering problems on which staff in the agency are likely to be well qualified by virtue of their responsibilities for the regulation of operational landfills".
I quote from my noble friend's response in Committee on 31st January.
My noble friend also made it quite clear that the Government were willing to consider the question of expanding the range of sites that could potentially be designated as special sites. But he wanted to have a clear idea:
"of why the agency would be better qualified to regulate those other sites than would the local authorities".—[Official Report, 31/1/95; col. 1437.]
He indicated that he did not believe that the case had been adequately made.
Without making the case by way of examples, it seems almost on grounds of principle that there is a fairly strong argument. It is very hard to see why sites such as a closed steelworks or gasworks—to take two obvious examples—which may have been closed for decades or even longer, are likely to create less of a problem than the closed landfill sites. It is clear that such sites may well require the kind of skills possessed by the agency.
I could produce a long list of examples but I do not want to detain the House for too long. Certainly I could let my noble friend have a longer list than I shall give the House tonight. Let me give just two examples. One is a former chemical works. It is a property that had been a chemical factory since the 1960s and used for the production of pesticides and other products. The chemicals had been stored on site in drums and packages, many of which had been buried. The NRA, and possibly its predecessors, and the local waste regulation authority had been chasing the company for some considerable time to do something about the storage of those chemicals.
Then, in 1993 the site caught fire. Some of the water used to extinguish the fire inevitably soaked into the ground. Subsequent investigation by the NRA revealed ground water contamination which had spread at least one kilometre from the site. Much of that contamination is considered to be long term, and the problems of dealing with it have been hampered by the fact that there is no one authority with responsibility for the whole site; and the local authority has neither the resources nor the expertise to deal with the problems which have been encountered there. Under the provisions of the Bill as they currently stand, that site would be designated as contaminated land only and in the absence of an owner to pay for any remediation, the cost would ultimately reside with the local authority, which has already proved unable to deal with the issue.
Let me give another example with which I am familiar. I visited the site very soon after the NRA was set up. It is waste ground in the West Midlands. There is highly acidic water, which carries copper and nickel in strong concentrations, welling up on the site. It can be watched, highly coloured, going into the river. It is probably one of the principal sources of sulphuric acid, flowing eventually into the Trent and adding to the concentrations that emerge into the North Sea. It is a particularly difficult site because the land is in the ownership of various parties and development is unlikely. One attempt to establish light industrial use did not get very far because of the pollution problem. The pollution source probably originates from historical waste disposal into disused mineworkings from a nearby copper refinery. But proof would be difficult and extremely costly to obtain. We are in a situation in which all the industrial activity which is going on nearby meets modern pollution control requirements.
In that case, the site owners are neither responsible for the cause of pollution nor, individually, do they possess the resources to do anything about it. Indeed, the NRA has not been able to tackle the problem either, because it has not been able to find an adequate source of funding for it. It is very unlikely that pressure on the site owners or prosecution would resolve the issues. The local authority is not concerned to initiate action since the only impact is on water. The land is not close to housing and the contamination does not pose any obvious, immediate threat to human health. So that is a case in which, in my view, there is an urgent need for action, not least because I suspect that it is one of the major sources adding to the very considerable volume of dangerous or listed substances that eventually emerge by way of the estuary and cause problems in the North Sea with our neighbours in Europe. It seems to me that that is the kind of case in which we ought to put the agency in a position to act.
I can give examples of other sites; a retail site, a detergent factory and other examples are in front of me. I ask my noble friend to accept that there are many seriously polluted sites where we need the extension of the Bill in the way that I argue. I am glad that at an earlier stage he indicated that he was perfectly prepared to consider the proposition, if he could be given adequate supporting evidence. I hope he will accept that
158
the strongly held view of the National Rivers Authority that there is a case will be taken as fairly good grounds for believing that some kind of action is required. I beg to move.
5.30 p.m.
Lord Jenkin of Roding: My Lords, I should like to come to the support of my noble friend Lord Crickhowell and provide my noble friend on the Front Bench with a little more of the evidence that he was looking for when my noble friend Lord Mills moved an amendment at Committee stage. The Government said that they would want a clear idea of why the agency would be better qualified than the local authorities to regulate such sites.
I had some experience of this issue—not dealing primarily with the matter of pollution but with very large derelict sites which had been abandoned—when I found myself with that difficult title "the Minister for Merseyside", a title given by the press and not by No. 10 Downing Street. I found myself with a number of extremely difficult sites which had been abandoned by their previous owners. In particular, there was the site of the old Burmah Oil refinery at Ellesmere Port, which I toured with representatives of the local authority of Ellesmere Port and Neston. I was overwhelmed by the sense that that relatively small and not particularly well-off local authority had been left with the appalling problem of an oil refinery which had been there for many years and from which the company had simply walked away, One can remember the financial problems of the Burmah Oil company at that time and it would have been quite ridiculous to have required it at that stage to do anything about it, even if one had had any power to do so, which one did not. There was a sense that the local authority had to grapple with something which was a great deal bigger than itself. The difficulties that it faced were beyond its capacity, however well-meaning it was. I must say that I greatly admired the officers of that local authority, but this was something outwith their experience and beyond the scale of their normal operations.
Looking at the whole subject, I find that industry itself feels that it would be better if the monitoring of some of the very large sites were the responsibility of the agency and not of the local authorities. Some of the arguments advanced are quite persuasive. One needs consistency of approach across the country. The agency is inherently more likely to be able to provide that than a large number of different local authorities, which have different experience and very different resources for dealing with such major contaminated areas. To deal with these sites often requires lengthy and very expensive investigation which may well be accompanied by complex issues of risks and their acceptability. Parallels have been drawn with the risks from manufacturing covered by the major hazard regulations. These are rightly placed under the control of the Health and Safety Executive, not the local authority. That is one reason. Another reason that I put to my noble friend is the experience overseas. A number of companies which face problems here also have overseas experience. In particular, I draw to the attention of my noble friend the Environmental Protection Agency in the

159
United States. There, experience has shown that the development and application of new remediation technology to these types of sites is best carried out in conjunction with a single, central expert authority. Currently, remediation technology is evolving rapidly. I am quite certain that this country will be able to benefit enormously from the kind of environment that the agency can provide. It is much more likely to be able to keep up with, and perhaps keep ahead of, evolving technology abroad than a large number of local authorities.
I turn finally to the issue of prioritisation, to which I may wish to return in a later amendment. To place major remediation under the control of a central authority will greatly assist the decisions on where priorities should lie. That is very important for large manufacturing organisations whose sites are likely to be located in many different local authority areas. I urge my noble friend to look very seriously at the amendment that has been moved by my noble friend Lord Crickhowell. There are solid and substantial arguments in its favour, and I hope that those may be thought to tip the balance.
Lord Lucas of Chilworth: My Lords, I put my name to this series of amendments in the name of my noble friends Lord Crickhowell and Lord Mills. I felt that they better expressed the concerns that lay behind my amendments, which replicated those that I had put down at an earlier stage. I agree with all that my noble friend Lord Crickhowell has said. I also agree with what my noble friend Lord Jenkin of Roding has said against his background and experience.
I refer to the letter that the Minister wrote to me on 1st March. He said that the Government were trying to achieve regulation of the sites which would benefit from experience and skills available in the environment agency. He went on to say:
"We are currently considering whether we can find a means of removing from the Bill the elements of the proposed regime which you feel might stigmatise landfills, whilst protecting our objective of ensuring appropriate agency involvement".
I believe that these amendments offer a workable solution. For example, if one can remove one arm of the current definition of closed landfill it will more adequately address the significance of contamination, which is what we are concerned about, rather than the source of such contamination. At the same time, I believe that it avoids the necessity to add to the list of sites that might be designated special at some future time and, at that future time, will require the amendment of primary legislation—that is, the legislation that we are currently considering. That is another good reason for simplifying what in part lies behind this series of amendments.
My particular concern is that we will then be reliant on the guidance under the new Section 78B(6) to set out the criteria by which potentially special sites are to be assessed. I hope that my suggestions and those of my two noble friends will add to the message that the Minister invited us to put before him when he spoke on the last occasion.
Viscount Mills: My Lords, I believe that my noble friends Lord Crickhowell, Lord Jenkin of Roding and Lord Lucas of Chilworth have put forward a number of
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convincing examples of where contaminated land sites other than closed landfill sites can and should be designated as special sites. I believe that this series of amendments offers greater flexibility in the legislation to allow sites other than closed landfill sites to be designated as special sites; greater flexibility to utilise the staff with the necessary skills and experience, the bulk of whom will be employed by the new agency; and greater flexibility for local authorities which, as I understand it, will be those who recommend to the Secretary of State the designation of special site status. This will provide special site status for a wider range of contaminated land. I hope that my noble friend will now find it possible to accept these amendments.
Lord Beaumont of Whitley: My Lords, we on these Benches often urge that matters should be devolved to local authorities. However, that is part of an approach which says that matters should be dealt with at exactly the right level. It seems to me that overwhelmingly the case made out by the noble Lord, Lord Crickhowell, and the noble Lord, Lord Jenkin of Roding, among others, is that in this case the right level is the agency. I hope that the Government will find some way of meeting this particular point.
Viscount Ullswater: My Lords, the noble Lord, Lord Beaumont of Whitley, rightly considers that the determination of the right level is the task that is before the Government at the moment. It is one that in many instances we share very much with the movers of this amendment. Amendments Nos. 129, 135, 137 and 138, moved by my noble friend Lord Crickhowell, address a more particular question in respect of closed landfills and will change the definition of a special site such that it need not necessarily be a landfill. I know that that is a matter about which my noble friend Lord Lucas of Chilworth feels strongly. His amendments at Committee and those that he has not moved today but has spoken to indicate his concern.
As I said during the debate in Committee on the Bill in response to similar amendments moved by my noble friend Lord Lucas of Chilworth, the intention behind the creation of the category of special sites which the agency is to deal with is to enable the particular skills and expertise of the agency to be brought to bear on a kind of site—closed landfills—where the skills associated with the agency's waste regulatory functions are most directly relevant and applicable. I also said at that time that we would be willing to consider whether there were any other types of site where similar complementary skills might exist. I agree with my noble friend Lord Jenkin of Boding that local authorities face such problems. From his experience, he spoke of the problems faced by some small local authorities and also authorities overseas. But we do not wish all kinds of sites to be taken from local authorities and passed to the agency for regulation solely on the grounds that serious harm or water pollution is possible, regardless of whether the agency has more appropriate skills and expertise available to deal with them than the local authorities. In our view the question of the seriousness

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of the problems caused by a site is not sufficient on its own to suggest that it must automatically be the agency which should be in the lead.
My noble friend Lord Crickhowell was also interested in water pollution and special sites. Where water pollution is a factor on any site the agency will be able to take appropriate action under its own powers under Section 161 of the Water Resources Act 1991. In many cases that would be the appropriate power to use where there is water pollution in isolation.
Although we would consider this issue still to be open for further discussion—I have heard very much what noble Lords have said this afternoon—we would not ish to accept these amendments, as we believe they fail to address the question of who has the most relevant expertise to deal with the particular types of site. I indicated that we are still carefully considering this matter. Having said that, I hope—
Lord Crickhowell: My Lords, before my noble friend sits down,'I do not want to get into a position, if I can avoid it, where I have to take this matter into the Lobbies. If my noble friend would undertake to come forward with some suitable amendment to cover the point that he has perfectly reasonably made, that would be fine. But I am bound to say that it does not seem to me that he has given a very cogent argument, or indeed has even approached giving a cogent argument, against the almost overwhelming case that has been put from both sides of your Lordships' House and by some of his noble friends who have very considerable experience of dealing with these matters. Before he sits down I hope that he will be able to go rather further in undertaking to come back to the House at a later stage.
Baroness White: My Lords, is the Minister taking into account the changes in local government? Does he not think that the situation might well arise when it would be impossible for the local authority concerned to take suitable action and it would have to turn to the agency?
Viscount Ullswater: My Lords, I thought I had indicated to my noble friend Lord Crickhowell that I was still carefully considering the possibility of bringing forward an amendment. I should like to reaffirm the Government's undertaking that we would want to bring forward an amendment. Having said that, I cannot say to my noble friend that I want to bring forward this amendment because I still believe that the fundamental difficulty with it is that it fails to address who has the most relevant expertise to deal with the particular type of sites. I completely accept that there may be special sites which are not closed landfill sites and which need the expertise of the agency to deal with them. At the moment I do not believe that the amendment addresses that point. We shall need to look at the matter very carefully.
I also hear what the noble Baroness, Lady White, says about the reorganisation of local government. I believe that local authorities will continue to have the expertise
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even when they have been reorganised and when the operations will be perhaps more locally based. This should not be a problem for them in the future.
Baroness White: My Lords, has the noble Viscount considered the Welsh situation? Perhaps what is happening with local authorities them will make him hesitate.
Lord Crickhowell: My Lords, I am grateful for what my noble friend had to say. I have never pressed my own amendments in almost any situation, but then I am well aware of the drafting resources available to government. However, as my noble friend used the words "we would want to bring forward an amendment", I take that as a pretty firm indication that he will bring forward a suitable amendment at a later stage. On that basis, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 129A to 129E not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 129F:
Page 46, line 16, at end insert:
("(8A) The questions—

(a) what harm is to be regarded as "significant",

(b) whether the possibility of significant harm being caused is "significant",

(c) whether pollution of controlled waters is being, or is likely to be caused,

shall be determined in accordance with guidance issued for the purpose by the Secretary of State in accordance with section 78R below.
(8B) Without prejudice to the guidance that may be issued under subsection (8A) above, guidance under paragraph (a) of that subsection may make provision for different degrees of importance to be assigned to, or for the disregard of,—

(a) different descriptions of living organisms or ecological systems;

(b) different descriptions of places; or

(c) different descriptions of harm to health or property, or other interference;

and guidance under paragraph (b) of that subsection may make provision for different degrees of possibility to be regarded as "significant" (or as not being "significant") in relation to different descriptions of significant harm.").
The noble Viscount said: My Lords, I spoke to Amendments Nos. 129F and 129G with Amendment No. 128C. I beg to move.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 129G:
Page 46, line 28, leave out from ("any") to end of line 31 and insert ("significant harm, or any pollution of controlled waters, by reason of which the contaminated land is such land; or").
On Question, amendment agreed to.
[Amendment No. 12911 not moved.]
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 129J:
Page 47, leave out lines 34 to 48 and insert:
(""owner", in relation to any land in England and Wales, means a person who is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let, but does not include a mortgagee not in physical possession of the land or one who is in possession of the land for the purpose of

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preserving, protecting, repairing, securing or investigating the condition of it, or otherwise protecting a security interest pertaining to it, and otherwise performs no operational function in respect of it; nor does it include a trustee who has no beneficial interest in the land; nor a beneficiary who is not entitled to ask for the trust property to be vested in him;
"owner", in relation to any land in Scotland, means the person for the time being who is entitled to receive, or who would, if the land were let, be entitled to receive the rents of the land, and includes a factor, guardian or curator and in the case of public or municipal land, includes the persons to whom the management of the land is entrusted, but does not include a person who holds a security over the land (whether heritable or otherwise) not in physical possession or who exercises his rights as security holder for the purpose of preserving, protecting, repairing, securing or investigating the condition of it, or otherwise protecting a security interest pertaining to it, and otherwise performs no operational function in respect of it; nor does it include a bare trustee; nor a beneficiary who is not entitled to ask for the trust property to be vested in him;").
The noble Lord said: My Lords, we return to this issue, which we discussed in Committee on 31st January, about the extent to which lenders should become subject to the various powers and regulations in the Bill affecting contaminated land. In response to the amendment which I moved on that occasion, my noble friend said two things which have gladdened the hearts of the banks and building societies. He said:
"The Government are committed to the view that banks and others should not be treated as 'deep pockets' to pay for the restoration of environmental damage for which they bear no real responsibility. The Government accept that any attempt to treat financial institutions in that way would serve only to threaten the supply of normal financial services to many sectors of the economy".
In the next column he went on to say—and this was even more welcome:
"The Government are willing to consider this question further, and to examine whether changes to the definition of 'owner' are justified to deal with the possibility of mortgagees finding themselves involuntarily in possession of land".—(Official Report, 31/1/95; cols. 1448–1449.)
No amendments were tabled, whether late on Friday or at any other time, by my noble friend on this matter. We are left with the very unsatisfactory position that the definition of "owner" as it stands in the Bill will make these lenders liable if their property has been abandoned, the keys have been returned and they simply go in to make the place secure and perhaps take certain immediate remedial actions to minimise or even abolish the possibility that there might be contamination. As I said in Committee, one is dealing with properties such as petrol stations, dry cleaning establishments and other small establishments of that kind which handle potentially contaminating materials. I do not want to go over the arguments again because the Government have accepted the substance of the case: lenders should not be liable in these circumstances and they want to do something about it.
Without an amendment to the Bill action could be taken by the courts to make the lender a mortgagee in possession and thus liable as owner to clean up the site. If that position is left, lenders will simply walk away from a site. They will not make it secure. They will not take the steps perhaps to seal off and close valves and
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do other things which they might do to minimise the damage. I cannot believe that that is what the Government want.
It is important to deal, as I do in this amendment, with the point concerning trustees. As the Bill is drafted, trustees, including those who hold only bare legal title to the land—they have no beneficial interest in the trust assets—are presently caught by the definition of "owner" and personally held liable. That is the point. Trustees may be liable in certain circumstances, but why should they be personally liable in circumstances such as these?
I am grateful to the noble Lords, Lord Carmichael and Lord Williams of Elvel, because their amendment seeks to bring the Scottish provisions into line with those of England. However, it is fair to point out—my amendment covers the Scottish position as well as my advisers can draft it—that, while it is important that there is an exemption for "a heritable creditor" as well as for a mortgagee in possession, the overall position for lenders in relation to the definition of "owner" remains unsatisfactory.
I hope that my noble friend will be able to go a little further than he did at Committee stage and give us an assurance that there will be an amendment to deal with this problem which he says he does not want to arise in the circumstances that we have been considering. I beg to move.
6 p.m.
Lord Boardman: My Lords, I support my noble friend. There is no doubt that, unless the Bill is amended on the lines he suggests, it will become almost impossible for any owner of a site which has a high risk of being contaminated—such as near a petrol station or the like—to get a loan because the lender will be so conscious of the risk to which he is exposed that he will refuse to lend money. That would exclude from borrowing a very large band of people who are rather important to the economy. In so far as a loan was obtained, I am quite sure that the lender who is prepared to take the risk would insert terms requiring periodic inspections of sites to make sure that they are being looked after, at the borrower's cost. I hope that my noble friend will be prepared to accept an amendment, if not in the words put forward by my noble friend Lord Jenkin, then in terms which will carry out the intent of these amendments.
The Earl of Kintore: My Lords, I speak to Amendments Nos. 130 and 133 which are grouped with Amendment No. 129J. The purpose of these amendments, which clarify the definition of "owner", is to ensure that a surface owner who does not own the underground mineral seams or mines, cannot be held responsible for contamination in those mineral seams or mines. It may be bad enough for unlimited responsibility to be placed on innocent owners and occupiers of contaminated land, but it must be quite contrary to what anyone can consider just or reasonable for a person to be held strictly liable for property which he has not polluted; from which he has not received any benefit; which he does not own and does not occupy. The clause

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in the Bill provides just such a liability. It is hoped that the Government will agree to these amendments which remove this very serious potential for injustice.
Viscount Ullswater: My Lords, Amendment No. 1291 moved by my noble friend Lord Jenkin of Roding seeks to make particular changes to the definition of "owner" so as to protect the position of mortgagees who have taken possession of land only in order to secure and protect it, to protect the value of their security interests.
Following our discussion on a similar amendment moved by my noble friend at Committee stage, I undertook to consider whether any changes were needed to these provisions to deal with the situation where a secured lender found himself involuntarily in possession of land which might be contaminated.
On balance, I have concluded that no changes are justified to the definition of "owner" to deal with this question. Banks already have developed procedures to ensure that, wherever possible, they do not find themselves in possession of a mortgaged property. This reflects the general position in property law that where they are in possession, they are potentially liable to pay the outgoings of the property and also they are liable under various other statutory provisions such as the highways Acts, public health Acts and the building Acts. I can see no real case why we should depart from normal property law in a case of this particular kind of potential liability. Of course, banks will still retain the right not to go into possession of land over which they hold security if they believe that the land could have a negative net value.
This amendment would seek to go further, by specifically allowing the mortgagee to secure the property and take possession without being held to be the owner for the purposes of receiving a remediation notice. I do not believe that this would be justified, as it could prevent suitably prompt action to deal with contamination on a site. We have yet to reach a view as to whether trustees with no beneficial interest in the land should be exempt from any liabilities, as would also be suggested by this amendment. The problem of exemption for trustees is that it would open up an avenue through which people could seek unfairly, we believe, to evade liabilities by transferring their land into trust companies.
The noble Earl, Lord Kintore, spoke to Amendments Nos. 130 and 133 which seek to amend the definition of "owner" for both England and Wales and Scotland to specify that where contaminated land comprises substrata the "owner" would he the person who had the right to receive the full commercial rent in that substrata. This would have the practical effect of making the owner of the mineral rights or of a mine the "owner" for the purposes of the provisions where they comprised contaminated land and where ownership of such mine or mineral rights was distinct from that of the surface.
It is certainly the Government's intention that this should generally be the case and that it should be the owner of the mine or of the mineral rights in these cases who should potentially be liable if he is not already liable as a polluter.
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We believe this is already the position under the existing provisions in that the definition of "land" in the Interpretation Act 1978 includes any,
"estate, interest, easement, servitude or right in or over land"
so that the owner of mineral rights would already be identified as an owner of land. This would mean that where the only contaminated land was the mine itself, the person who would be potentially liable as owner would be the owner of the mine or of the mineral rights and not the owner of the surface. On that basis I hope that my noble friend will agree to withdraw his amendment and that the noble Earl will not seek to press his.
Lord Jenkin of Roding: My Lords, we shall want to study very carefully what my noble friend has said. At first hearing I am left somewhat puzzled over reconciling what he said about the position of lenders under this legislation with what he said at Committee about not wanting to regard lenders simply as having deep pockets who could be made to clean up the land, for the pollution of which they are in no sense responsible. It may be that we shall want to return to this matter, having taken advice on the short but complex argument which my noble friend has advanced. At the moment I remain unconvinced. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 130 not moved.]
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 131:
Page 47, line 46, after ("guardian") insert (", lessee, any person holding title in respect of land,").
The noble Lord said: My Lords, without in any way desiring to reflect on the statement made by the noble Lord, Lord Jenkin of Roding, on his amendment covering the Scottish position, which the Minister did not accept in the way which the noble Lord would have liked, my amendments, which have been put forward by legal people in Scotland, would extend the definition of "owner" to make it quite clear in the Scottish sense what that is. I am advised that the definition of "owner" should be expanded to include those holding title, the various types of lessee, including ground tenants, and should specifically exclude heritable creditors not in possession.
I confess that the law is difficult enough, but land law is even more complicated and more difficult as we have heard during the last two or three debates. I am reliably informed by people who are very knowledgeable about land matters in Scotland, that this amendment covers the point very adequately and, if true, rather elegantly. I beg to move.
The Earl of Lindsay: My Lords, Amendments Nos. 131 and 132 moved by the noble Lord, Lord Carmichael of Kelvingrove, seek to make changes to the Scottish definition of "owner", specifically to include lessees and to clarify the position on heritable creditors who are not in possession.
As my noble friend Lord Ullswater has already said, we have been considering the need for further changes to the definitions of "owner". In particular, we have

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been aware of the need to make sure that the definitions applying in England, Wales and Scotland are as nearly equivalent as possible, given the differences in land law between the two jurisdictions.
As part of the consideration of the position of mortgagees we undertook after the debate at Committee stage, we also addressed particular questions in respect of the Scottish definition of "owner". Following this, we will be bringing forward an amendment at Third Reading to clarify the position of heritable creditors who are not in possession, to bring it better into line with the definition which applies in England and Wales. On that basis, I invite the noble Lord to withdraw his amendment.
Lord Carmichael of Kelvingrove: My Lords, I should like to echo the proviso that was given by the noble Lord, Lord jenkin of Roding, that we shall be able to decide whether the Government's amendment is appropriate when we see it. However, as the noble Earl's explanation has satisfied me that he has every intention of accepting the spirit of my provisions, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 132 to 1338 not moved.]
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 134:
Page 48, line 28, after second ("time") insert ("and in any event at no more than five yearly intervals").
The noble Lord said: My Lords, this is another short amendment. It seeks to ensure that local authorities are required to inspect their areas at least every five years for the purpose of identifying contaminated land. The provisions of what will be new Section 78B(1) (a) would allow a local authority to inspect its land on an unstructured basis. The amendment merely seeks to include an ultimate time limit of five years to ensure that an authority inspects its area regularly and locates any contaminated land. I beg to move.
Viscount Ullswater: My Lords, Amendment No. 134, which has been moved by the noble Lord, Lord Carmichael of Kelvingrove, seeks to change the basis of the inspection duty of local authorities to be at no more than five-yearly intervals rather than "from time to time", as is currently provided.
As I mentioned during the debate on a similar amendment in Committee, I firmly believe that a rigid approach to the timing of the duty to inspect for contaminated land would be inappropriate.
The wording as it stands will enable local authorities to discharge their duty of inspection in a sensible way and carry out more frequent inspections of sites where this is needed to monitor the potential harm or water pollution which might arise. If a site is causing particular concern, the inspections are likely to be at intervals of much less than five years. However, to require a local authority to carry out quinquennial inspections of its whole area would place an unnecessary burden on its financial resources particularly. Authorities should concentrate their resources on those areas where they believe that new problems may have arisen.
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The operation of the inspection duty will obviously be central to the success of local authorities in using these powers to deal with the legacy of past contamination in an orderly and prioritised manner. This lies behind my amendment, Amendment No. I35A, which provides for specific guidance to be issued by the Secretary of State on the manner in which local authorities will carry out this duty. As part of the overall set of guidance documents relating to the definition of contaminated land and the process of its identification, this guidance on the inspection duty will receive parliamentary scrutiny through the negative resolution procedure. On that basis, I hope that I can persuade the noble Lord that his amendment is not necessary, and that he will therefore withdraw it.
Lord Carmichael of Kelvingrove: My Lords, the Minister has tried to convince me that the land will be inspected as required, but I did not quite follow him when he said that examining the land at five-yearly intervals would involve the local authority in a great deal more expense when the land might not require such inspections. I should have thought that there might be some form of rolling inspection of the land. Different categories of land might not need to be inspected except at five-yearly intervals, while other categories might need to be inspected much more frequently, particularly if a crisis arose.
Therefore, although I do not find the Minister's answer convincing, if he will allow me to read it carefully and to have it examined by those who are advising us on this matter, I shall beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 134A and 135 not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 135A:
Page 48, line 32, at end insert:
("(I A) In performing its functions under subsection (I) above a local authority shall act in accordance with any guidance issued for the purpose by the Secretary of State in accordance with section 78R below.").
The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 128C. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 136 to 138 not moved.]
6.15 p.m.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 139:
Page 49, line 14, after ("any") insert ("written").
The noble Lord said: My Lords, the Minister said that the Secretary of State will be issuing instructions. My question is: will they be in writing? It seems as though they should be in writing but I should be grateful if the Minister could clarify that, having had an opportunity to examine both the amendments and the guidance. I hope that that will he the case. I beg to move.
Viscount Ullswater: My Lords, Amendment No. 139 would require that the guidance from the Secretary of State on the criteria describing special sites should be in writing. That is, in any case, the effect of my

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amendment which I discussed earlier when considering the overall definition of "contaminated land". All guidance from the Secretary of State is published. With that explanation, I hope that the noble Lord will withdraw his amendment.
Lord Carmichael of Kelvingrove: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Ullswater Viscount Ullswater moved Amendment No. 140:
Page 49, line 23, leave out ("and").
The noble Viscount said: My Lords, in moving Amendment No. 140, I should like to speak also to Amendments Nos. 141, 144 and 276.
Amendments Nos. 140 and 141 provide for the Secretary of State to notify the occupier of any land which he has designated as a "special site". That appears entirely reasonable, as in some circumstances the designation could affect his interests, even if only to the extent of who might be seeking access to the site for the purposes of securing its remediation.
Amendment No. 144 removes the potential overlap between the agency's general cost-benefit duties and the provision stating that any remediation requirements must be reasonable in the light of the costs and the seriousness of the harm or the water pollution involved. It is an unnecessary duplication and an incorrect reference in the light of the fact that Clause 37 relates to the exercise by the agency of its powers and Section 78D relates to a duty. I should like to assure the House that the amendment leaves in place the requirement that an enforcing authority must have regard to the costs of what is required and the seriousness of the harm or pollution of controlled waters when specifying steps to be taken in a remediation notice.
Amendment No. 276 is consequential to the amendment moved by the noble Baroness, Lady Hamwee, and accepted by the Government at Committee stage, introducing the requirement for an affirmative resolution for any order to increase fines for non-compliance with remediation notices. It would prevent any such order having to pass through both the negative and affirmative resolution procedures. I beg to move.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 141:
Page 49, line 24, at end insert ("and
(d) to any person who appears to the Secretary of State to be in occupation of the special site.").
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 141A:
Page 49, leave out lines 29 to 31 and insert:

("(a) serious harm is being, or might be, caused, or

(b) serious pollution of controlled waters is being, or is likely to be, caused.").

The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 128C. I beg to move
On Question, amendment agreed to.
[Amendment No. 141B not moved.]
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 141C:
Page 49, line 43, at end insert ("shall, to the extent that it appears practicable to it to do so, consult the owner and occupier of the site and every person who appears to that authority to be, or who in its opinion might be considered to be, an "appropriate person" in relation to the site within the meaning of section 78E below, and").
The noble Lord said: My Lords, in moving Amendment No. 141C, it might be for the convenience of the House if we were to discuss also Amendment No. 141D, which stands in the name of my noble friend Lord Coleraine, and Amendment No. 144E which stands in my name.
In Committee, the noble Lord, Lord Northboume, moved an amendment in very similar terms to this, but which would have made the consultation optional. The Minister confirmed that he saw it as good practice that the enforcing authority should consult those concemed with the sites in the course of drawing up a remediation statement or a remediation notice.
From the point of view of those who might have to carry out the work, and the occupiers of the site—the use of which will undoubtedly be affected—such consultation is not just a matter of good practice but is essential, and it should appear on the face of the Bill. My amendment provides for such consultation.
Amendment No. 14IC relates to the drawing up of remediation statements. It makes it obligatory for the authority to consult all the parties who, in its estimation, are likely to be involved. The same applies to Amendment No. 144E, which deals with the remediation notice.
In each case, the duty is qualified by a reference to practicability. Of course it might not be possible to trace all the parties who should be notified or consulted in these cases—and it may be that the urgency of a situation would require the authority to act without much delay—but, nevertheless, where it can be done it should be done. I feel that the obligation should appear on the face of the Bill. I beg to move.
Lord Coleraine: My Lords, I shall speak briefly to Amendment No. 141D, which is in my name, and which broadly supplements the amendments to which my noble friend Lord Jenkin of Roding has spoken.
My amendment would go a stage further and provide that, except in emergencies, the enforcing authority should supply a draft of the remediation statement to the appropriate person so that that person can comment before the statement is made final. This is important because, apart from the reasons that my noble friend has given, the making of a remediation statement will be a matter which appears on the public register, and may have serious implications as to the value of the relevant land.
I certainly support all that my noble friend has said, and hope that his amendment will find favour with my noble friend the Minister.
The Earl of Kinnoull: My Lords, I too support the amendment. It strikes me that if a notice is served on the wrong person, enormous damage could be done, as my noble friend has said, and it would seem against

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justice that that should happen. I am sure that the appropriate authority would not wish that to happen. The Bill should contain a duty to that effect.
Viscount Ullswater: My Lords, dealing with my noble friend Lord Kinnoull's concern about whether the wrong person could be involved, there is an opportunity for that person to appeal to the Secretary of State under the meaning of "the appropriate person", which can be found in new Section 78E.
Amendments Nos. 141C and 144E, in the name of my noble friend Lord Jenkin of Roding, and Amendment No. 141D, in the name of my noble friend Lord Coleraine, all seek to introduce statutory requirements for consultation with interested parties before any regulatory action can be taken by enforcing authorities under these powers.
Consultation with those potentially affected by regulatory requirements should, at the very least, be a matter of professional good practice. I think similar words were quoted by my noble friend Lord Jenkin of Boding from my remarks at Committee stage. This would be true if for no other reason than that it is much more likely that any particular remediation requirements set by the enforcing authority will be accepted as "reasonable" if consultation has taken place.
But these amendments raise two particular questions. The first relates to the role of the "remediation statement"—required only for closed landfill sites—in the overall process set out in these provisions. This statement does not, of itself, require anyone to do anything by way of remediation. That is the role of the remediation notice. The statement is intended to act as a form of management statement, setting out in a published form what the enforcing authority sees as needing to be done on a particular site. It is not intended that the statement should go into great detail, but it could also cover questions of longer-term monitoring and control which might not be able to be specifically required in a remediation notice. The statement is intended to form a part of the process of arriving at the terms of the remediation notice, in particular providing a vehicle for consultation between local authorities and the agency. In the light of those considerations, I suggest that it is at the remediation notice stage that any consultation should take place.
The second question concerns who should be consulted. My noble friend's amendment would set a very broad net, in that it would include anyone who might be considered to be an "appropriate person". That would seem far too wide, and would impose a considerable bureaucratic burden on enforcing authorities, particularly as most of the people who would have to be consulted would not, in the end, be involved with the remediation process.
I do not believe that anything would really be gained by introducing statutory requirements for consultation. They would serve largely to add to the bureaucracy, expense and time involved in securing the remediation of any contaminated land.
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Having said that, I hope that my noble friend will consider that statutory consultation is not required and that he will withdraw his amendment.
Lord Jenkin of Roding: My Lords, I am grateful to my noble friend for the evident care that he gave to considering my amendment. The last thing I want to do is add to the time, cost and bureaucracy of what is an already complex procedure. I hope that when he is giving guidance to the agency, he will consider that one of the paragraphs might deal with the desirability, as a matter of good practice, of consulting the people who will obviously be involved. If he can do that, that would meet the case, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 141D not moved.]
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 142:
Page 50, line 4, after ("any") insert ("land as likely to be").
The noble Baroness said: My Lords, the amendment is intended to assist in relation to land which may be contaminated. The intention is to break out of the difficulty of not being able to identify land which is contaminated without the considerable expense of sinking bore holes, and so on.
Local authorities are required by the Bill to inspect their areas from time to time, to identify contaminated land—the closed landfill sites—and other areas which are candidates for designation as special sites. If they do so identify contaminated land, they then must serve a remediation notice which can specify the works needed to mitigate the effects of the contamination or to restore the land to its former condition.
However, as stated in Committee, the procedure for the service of remediation notices makes the assumption that the local authority knows in advance that the land is contaminated. It does not allow for the case where, quite clearly, the business that has been carried on at a particular site is inherently polluting or contaminating—for instance, where certain types of car breaking business or other historical uses by industry make it almost certain that land is contaminated. The amendment would obviate the need for the local authority to conduct tests or to sink bore holes, and so on, and would enable it to serve a remediation notice without first establishing absolutely that the land was contaminated.
The Minister, in reply in Committee, said that if an authority were to serve a remediation notice on scant or little evidence that the land was contaminated, then the notice could be subject to review. But the implication of what was said was that local authorities could in fact serve such a notice where it was likely that the land was contaminated. Therefore, the amendment is intended to provide statutory cover for such service of a remediation notice, so that appropriate remediation can be carried out where it is likely that the land is contaminated. I beg to move.
6.30 p.m.
Lord Peyton of Yeovil: My Lords, I moved an amendment at an earlier stage which was intended to require that contaminated land should be improved so as to be suitable for the intended use. My noble friend was not satisfied with that amendment. So I have now put down a new version which I hope he will find more acceptable. My point is that it is obviously desirable that there should be a demand and use for land which has been contaminated, and that a measure of improvement, making it suitable for the intended use, is better than no improvement at all. So I am rather hopeful that my noble friend will accept this version. If he does not, perhaps he will undertake to do better than I have been able to do.
Lord Jenkin of Roding: My Lords, two of the amendments which I have tabled have been grouped with Amendment No. 142. Perhaps I may say a few words about each of them. It is obviously sensible that we should discuss the detail of remediation notices in one group, although they raise a number of different points. The point made by my noble friend Lord Peyton has a great deal of merit, if he will allow me to say so.
I shall deal first with Amendment No. 143B. The Bill defines "Remediation" (Section 78A(9)) as including the whole process from assessing the condition of land, through actual clean-up or containment operations, to subsequent checks that the remediation has been effective. Section 78D places the enforcing authority under a duty to serve "a" remediation notice but it is not clear what that should contain.
In practice, the following would be the likely steps: first, there would be the assessment of the probable and actual contamination of the site, partly through detailed investigations of its history, and partly through site investigations. That having been done, there would have to be an assessment of the seriousness and urgency of the problem in terms of the actual risk posed to human health and the environment. Thirdly, the enforcing authority would need to decide what measures are appropriate to deal with it (taking into account technical feasibility, effectiveness, cost and the degree of hazard or risk), and how long the work is likely to take. Subsequently it would carry out the work, and later monitor its effectiveness.
That means that the requirements for "remediation" (as defined in the Bill) will need to be laid down in a stepwise approach; normally, there will be at least two remediation notices. The first will demand the detailed investigations needed to assess the problem and the risks. Only then can the authority (or the operator) be in a position to weigh the seriousness and costs (as required by subsection (2)), and issue a further notice requiring the appropriate work to be carried out. In some cases the assessment may establish that, provided the condition of the site is monitored appropriately, there is no immediate need to proceed with remediation work.
Paragraph (a) of the proposed amendment is intended to clarify and allow for those requirements.
My noble friend will recognise that the provisions for remediation notices are modelled on the long-standing provisions for serving abatement notices under statutory
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nuisance. I am advised that established case law insists that an abatement notice which requires the recipient to carry out building or engineering works to achieve compliance must state very clearly what works are needed. It is not sufficient simply to require him to achieve a particular end result. In many cases with contaminated land, it will be inappropriate for the remediation notice to require a particular technical solution. Until the work gets under way there will often be a high degree of technical uncertainty, and what seemed right in the early stages may turn out to be quite the wrong solution as the work proceeds.
Paragraphs (b) and (c) of the amendment seek to ensure, first, that the remediation notice can specify an end result rather than particular works, and that the notice can be modified or replaced should subsequent findings show that to be appropriate. In other words, one is there seeking to spell out what will be likely to happen in any particular case.
I turn now to Amendment No. I44C. My noble friend will remember that in the Framework for Contaminated Land the Government rightly pointed out—this was referred to earlier—that:
"it would be neither feasible nor sensible to try to deal with all land contaminated by past activities at once".
The noble Lord, Lord Williams, and others referred to the centuries of industrial activity which have given rise to a great inherited legacy of contaminated land. The document went on to point out that the "urgent and real problems" should be dealt with:
"in an orderly and controlled fashion with which the economy at large and individual business and landowners can cope".
Those sensible words and that practical way of approaching the matter does not seem to be reflected in the Bill, which makes no allowance for that. As currently worded, it requires all land which is "contaminated", however slightly, to be subjected to apparently immediate clean-up. That is just not practical. In Committee, the Government accepted (Col. 1428) that that was not their intention and undertook to bring forward amendments to exclude sites not posing "unacceptable risks". But that still implies an approach which divides sites simply into those requiring and those not requiring clean-up, with no suggestion of an "orderly and controlled fashion" for prioritising the approach.
I have tabled the amendment, advised by my industrial experts in the field, as being a way of trying to reflect in the Bill what the Government originally put in their policy document—Framework for Contaminated Land. It may well he that we do not have it right, but there needs to be some provision indicating the need for prioritisation. That is what the amendment seeks to do.
Viscount Ullswater: My Lords, Amendment No. 142 would enable a local authority to use the remediation notice procedure as a method of establishing whether contamination is present on a site.
That appears to the Government to be unreasonable. It would, in effect, burden business, landowners and even homeowners with the costs of proving that their land was or was not contaminated. We believe that the

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enforcing authority should have to be able to demonstrate that actual contamination existed on any site, and then that there was sufficient contamination for the site to qualify as contaminated land, before it could require any remediation work, including further assessment.
As I explained in Committee, the provisions for further assessment to be included within a remediation notice were included in order to transfer to the "appropriate person" the costs of assessing the full extent of the contamination on any site. In practice, the process of carrying out that full assessment would be linked inextricably with the means chosen by the appropriate person to deal with the contamination itself.
Amendment No. 143B, spoken to by my noble friend Lord Jenkin of Roding, seeks to expand on the nature of any possible remediation notice, by specifying that it could provide for assessment, remedial works and monitoring in separate phases, either through separate notices or through variations to one notice. It would also make explicit that remediation notices could be framed so as to set overall objectives to be achieved, rather than describe particular engineering solutions to be implemented.
The Government understand the intention behind the amendment, which broadly reflects the iterative nature of the process of actual remediation on any site, with each stage enabling a better understanding to be reached of how further progress should be shaped.
The possibility of notices being served, which included only one, or two, of the three phases of remediation, is already implied in the current provisions. There is also nothing which might preclude the service of subsequent notices for whatever additional purposes might be reasonable in the light of the possibility of significant harm occurring.
I am happy to clarify that it is the Government's intention that wherever practicable and reasonable, remediation notices should be framed in terms of objectives, as suggested by my noble friend. However, just as with the question of subsequent notices, I do not believe that this needs to be spelt out in detail on the face of the Bill, particularly as the provisions allow regulations to he made prescribing the form and content of remediation notices.
Amendment No. 144B, in the name of my noble friend Lord Peyton, seeks to introduce specific references to the use of the land into the considerations governing what might be required by way of remediation. Here again, I am happy to confirm that the Government's intention is that remediation should be required only to the extent that it is needed to ensure that land no longer qualifies as "contaminated land". But, with respect, neither of these amendments would actually achieve that, even with the narrowed scope of the definition of contaminated land.
As my noble friend's comments suggest, we have already been through one round of amendments seeking to put explicit references to site use on to the face of the Bill. On that occasion, I raised the difficulty of possible effects on the water environment which were not dependent on the use of the site. Both these amendments have sought to address that problem, but others still
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remain. We would want the definition of contaminated land to be triggered, for example, where damage was being caused to a site of special scientific interest. The difficulty then is that being an SSSI is not really a use of land. Similar considerations might apply if the condition of the land was adversely affecting the health of an endangered species.
The second major difficulty with both these amendments is that they are, in fact, too broad in their scope. Both refer to the uses to which land is likely to be put. The Government, however, do not intend that this regulatory regime should make that budgment. It should be restricted to the consideration of what are currently environmental problems. It is the role of the planning authorities, acting under the terms of the guidance note PPG23, Planning and Pollution Contrgl, for example, and the building control authorities, to ensure that the condition of land is suitable for proposed new uses and developments and that appropriate conditions are set to make sure that it is made so.
But even tying remediation requirements to current site uses would impose greater burdens than the Government would intend. In some circumstances, the only really cost-effective way of removing the possibility of significant harm on a site may, in the short term at least, be to change the pattern of use of the land to one that is less sensitive. For example, if a site used for public open space is contaminated to the extent that it presents health risks to those using the open space, the best way of removing those health risks may be to restrict public access to the site. Obviously, that is not going to be a universal or even long-term solution, but tying remediation requirements to an existing use would prevent it in all circumstances.
Amendment No. 144C, in the name of my noble friend Lord Jenkin of Roding, would seek to introduce various additional tests into the timing requirements for both the service of a remediation notice and the period within which remediation could be achieved. I do feel, however, that there are already sufficient protections against a person being required to do something in an unreasonable timescale, in that an enforcing authority must specify only things which are reasonable subject to the terms of Section 78D(2). This requires specifically consideration of the seriousness of the harm and the likely costs which would be involved. It is also intended that an unreasonable requirement would be a potential ground for appeal against the service of a remediation notice.
However, although I can understand the concerns that one company or individual may face if they receive a number of remediation notices in respect of different sites, I do not feel that this need necessarily be a consideration requiring the granting of extra time within which to comply with remediation requirements. If that company or individual is facing a number of remediation notices, that can only reflect the fact that it or he is responsible for contamination on a number of sites, whether as polluter or as owner. In such circumstances, it would appear reasonable that people should ensure that they are able to meet all their obligations; otherwise it will be public health or the environment which suffers. It could also result in those

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who have polluted many sites being dealt with more leniently than someone who is responsible for only one site. That could not be equitable.
I hope that, with that explanation as regards the assembled amendments, the noble Baroness will feel able to withdraw her Amendment No. 142.
6.45 p.m.
Baroness Hilton of Eggardon: My Lords, I find the Minister's answer disappointing on two grounds. The first is the implication that local authorities will act unreasonably in serving remediation orders. The implication that they will go around scattering them like confetti represented a deeply disappointing attitude toward local authorities. I am sure that they will act responsibly and will not issue such orders without appropriate evidence that a site is likely to be contaminated.,
The second reason why the answer was disappointing is that now the costs of assessing whether a site is contaminated will fall upon local authorities. As we know, they are very much strapped for cash and it means that contaminated sites will not be cleaned up. It will not be possible for local authorities to serve remediation notices when it is appropriate that they should do so because it is likely that a site is contaminated.
I find the Government's response disappointing but I shall read what the Minister has said. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 142A not moved.]
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 143:
Page 50, line 12, at end insert:
("() In any case where it appears to the local or enforcing authority that land has become contaminated by reason of the deposit of controlled waste in contravention of section 33(1) and that the owner or occupier of the land neither deposited nor knowingly caused nor knowingly permitted its deposit, the authority shall not serve a remediation notice upon the owner or occupier of that land.").
The noble Lord said: My Lords, I shall speak also to Amendment No. 143A. I note that Amendment No. 145 is grouped with this amendment, but I prefer to speak to it separately.
In Committee, I raised the irritating problem of fly-tipping. Having read Hansard of 31st January (cols. 1426 to 1429), I am far from happy. The purpose of the amendment is twofold. The first is to discourage the totally irresponsible practice of fly-tipping. The second is to protect the innocent occupier from prosecution. If your Lordships accept the amendment, it will achieve those two objectives in the following way. When contaminated waste is fly-tipped on land the local authority may serve a remediation notice on the owner or occupier of that land. If the occupier did not give permission for that waste to be tipped on his land, it will be up to him to prove that. That is spelt out in the second paragraph of my amendment. It will then be up to the
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local authority to use its best endeavours to try to find the fly-tipper. It may then serve a remediation notice on that person.
Nowadays, with the help of forensic science, it is much easier to discover where the contaminated waste originated. Moreover, fly-tippers usually use nearby sites. If your Lordships suggest that I am trying to allow an occupier to opt out of his responsibilities, I say that I am not. My amendment puts more responsibility on him than Section 59 of the Environmental Protection Act 1990. However, having listened to my noble friend's reply to my question about nitrate sensitive zones—he said that the Government's intention is not to increase existing liabilities under the Bill—I am tempted to take out that extra liability.
The problem of fly-tipping is likely to increase because of the landfill tax. That is all the more reason why the innocent bystander or occupier should be protected. As the Bill stands, he is not protected. Therefore, I ask my noble friend to accept the amendment or to tell your Lordships why the Government believe that the innocent should be made liable. I beg to move.
Lord Gisborough: My Lords, I support the amendment. I live in an area near which there is a great deal of industry. Fly-tipping is continually done on my land. On no occasion could I possibly prove that I had not permitted it. I caught one person tipping a lot of stuff and I told him that he must come with me to the police station. He was a policeman. Therefore, I made him pick up twice as much as he had tipped and left it at that. But I could not possibly have proved to anyone else that I had not given him permission to do that in the first place.
It is totally unfair that somebody should have to tolerate fly-tipping on his land and then must also meet the cost of removing it. Moreover, he perhaps runs the risk of being prosecuted.
Lord Renton: My Lords, I too support the amendment. We should not lose sight of the fact that Clause 54 contains 14 pages of new legislation to be added to the Environmental Protection Act 1990. The climax of those 14 pages is to be found at page 54, where we find that failure to comply with one of those notices is a crime which attracts enormous penalties—£20,000 on summary conviction. In accordance with our normal standards of British justice, we owe it to owners and occupiers not to place them in a position in which, through no fault of their own, their land is contaminated without their knowledge.
Even if a person has only a few acres, it may take him some time to discover that, for example, drums of poisonous material which may contaminate his land have been dumped on it. He would not know who dumped them there. If somebody owns a large estate in a remote part of the country where contamination has taken place in an obscure way—perhaps in a thicket at the side of the road—it may take him several weeks to find out.
We should not place the owners in an unfair position. I hope that your Lordships will not think it ridiculous if I say that that is analogous to the case of somebody

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being in possession of stolen goods and not knowing that they were stolen. The fact that he is in possession of stolen goods enables the prosecuting authority—the police—to find out why he had them. He merely has to prove that he did not know that those goods were stolen. He does not have to go further and say that he knows who stole them or anything like that.
Here, we have the position of somebody whose land has been contaminated, which is a criminal offence. Although the liability will not arise until a contamination notice has been served and there has been failure to comply with it, nevertheless, that potential criminal liability exists. We must ensure that justice is done.
Baroness Nicol: My Lords, I support the intention behind Amendment No. 143A in particular. It seems fair that the owner of land on which fly-tipping has occurred should have a defence where he can prove that the offence was committed without his knowledge. I take on board the point made by the noble Lord, Lord Gisborough, but we must guard against the fact that there may be landowners who would allow the tipping to take place and then say that they had not allowed it. Therefore, I am afraid that the burden of proof must be on the landowner.
The power would remain for the local authority to serve a remediation notice when the landowner's defence could not be substantiated. This amendment may help to avoid injustice without impairing the power of the local authority to deal with real offenders. I hope that the Government will find that acceptable.
The Earl of Lytton: My Lords, I warmly support the amendment. Like other noble Lords, on occasions I suffer from the attentions of fly-tippers so I have had first-hand experience of dealing with the stuff, including clearing it with my own fork and bucket.
There is a problem in that as the Bill stands, it clearly goes significantly further than the Environmental Protection Act 1990. On previous occasions the Minister has said that it is not the Government's intention to extend further liabilities. However, I believe that the Bill does exactly that. That is the first point.
The second point relates to what may be described as the wider moral issue. I accept entirely that we want to get at polluters. The polluter pays principle is at the heart of that. But it is not acceptable to have as a line of default that somebody who is not the polluter pays. Never mind whether the polluter should not pay twice but should pay once. It is not good enough for an innocent party to be paying at all. Therefore, I have considerable reservations about the onus of proof being placed on somebody who is ostensibly an innocent party. That onus of proof involves cost and risk, and the outcome is uncertain. For what? It is because some not very public-spirited person has taken the easy way out on his way home or on his way to his place of work and has decided to unload his van with that stuff in the back. I have no doubt that he has been paid something for his time and trouble.
It seems to me that there is a clear imperative to catch those people. I accept that the person who is most likely to have the resources and the local information may well
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be the owner or occupier of the land. But that cannot always be the case. Therefore, to make a general role along those lines must be regarded as offensive to common sense. I support Amendment No. 143A but I enter that caveat.
Lord Jenkin of Roding: My Lords, my noble friend's amendment contains the phrase "knowingly permitted". The House will remember that in Committee I raised the anxieties which are felt in some quarters in relation to what that actually means.
My noble friend said quite correctly, as I expected him to do, that there is no evidence that the case law in relation to the phrase "knowingly permitted", which is taken from previous environmental legislation, such as the Water Resources Act 1991 and the Environment Protection Act 1990, has led to the kind of interpretation which my noble friend sought to put on it. The House will remember that it was suggested that an interpretation of the words may be that one needed to know that it was there and that, therefore, one had knowingly permitted it.
There are still some commentators who have said that the words can bear that interpretation and that it may be only a matter of time before a judge decides that that is what they mean. I understand my noble friend's reluctance to deal with the matter on the face of the Bill. However, perhaps he will deal with the matter by making it clear in the guidance to the agency and to local authorities which he intends to publish, that the words "knowingly permitted" imply a degree of mens rea; namely, that the person has to know that something has been done and has acquiesced to it—for example, fly-tipping or depositing scheduled goods on the land. Given the state of the law, it is possible that it is neither necessary nor easy to put such a phrase into the Bill. However, there are still anxieties in that respect. I hope that my noble friend the Minister will be able to go some way towards relieving them.
7 p.m.
Lord Peyton of Yeovil: My Lords, I should just like to add my voice to the general plea and say that I should really be rather shocked if my noble friend the Minister found himself unable to help. I do not believe that that august building at No. 2 Marsham Street has ever been the subject of fly-tipping. Therefore, the collegiate experience of those within it as regards the nuisance of fly-tipping is probably rather limited. If my noble friend is unable to assist in the matter, I must say that I should be most tempted, one convenient evening, to assemble a suitable load of garbage and tip it on the steps of that awful building.
Lord Coleraine: My Lords, the amendment moved by my noble friend Lord Stanley of Alderley seeks to provide a reasonable measure of protection for an owner against fly-tipping. I should like to speak to Amendment No. 154B, which is tabled in my name and which has been placed in this group of amendments. It is designed to provide a similar reasonable measure of protection to the producer or transporter of controlled waste who

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places it on a licensed disposal site. The position in the Bill at present, under Section 78E(2) of the Environmental Protection Act 1990, provides that,
"the appropriate person is the person, or any of the persons, who caused or knowingly committed the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land".
I believe that that makes it quite clear that every time someone delivers controlled waste to a licensed disposal site he is bringing himself within the wording of that subsection. I do not think that that would really be considered reasonable.
Therefore, my amendment seeks to provide that the waste producer or the transporter shall not be,
"the appropriate person by virtue only of his having imported, produced, can-ied, kept, treated or disposed of that controlled waste".
The Earl of Kintore: My Lords, I should like to speak to Amendments Nos. 152 and 153, which are tabled in my name and which have been placed in this grouping. The amendments seek to provide a defence against enforcement action for an owner or occupier of proving that he could not reasonably have known, at the time when he acquired that land, of the existence of the substances which are causing contamination. That would be a very limited defence but, if the amendment were accepted, it would remove some of the worst possibilities of owners and occupiers being held responsible for contamination in situations where they could not reasonably have been aware of any problem.
A housing development was recently built in Livingston, in Scotland, on land which had been contaminated by heavy metals more than 80 years ago. It is understood that the contaminated soil is now being removed by Livingston Development Corporation at a cost of several million pounds. Under the terms of the Bill, the owners of the individual houses would have been liable for that remediation work if the Bill had been in force. A survey for house purchase or, in most cases, purchase of a farm, could not possibly be expected to disclose such problems unless some very comprehensive land use history were readily available from local authorities.
Contamination is very different from other latent defects in land such as potential for subsidence, as it is virtually impossible to obtain insurance against environmental liability. The Bill makes some provision for hardship to be taken into account by a local authority in deciding whether to enforce the costs of remediation notice, but that is really not a satisfactory solution as the decision is a subjective one by the local authority. There should instead be a fair, and clearly established, principle applying to all owners and occupiers.
Viscount Ullswater: My Lords, Amendment No. 143A concerns the position of landowners whose land may have been contaminated by fly-tipping. At present, the waste regulation authorities have powers under Section 59 of the Environmental Protection Act 1990 to ensure that fly-tipped or any other illegal deposits of waste, are removed. As my noble friend stated, the "innocent" landowner has a ground for appeal against any attempt to make him remove the waste or be
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responsible for the costs of removing the waste where he can prove that he did not deposit or knowingly cause or knowingly permit the deposit.
However, the landowner could, in some cases, still be held responsible under the statutory nuisance provisions in Section 80 of the Environmental Protection Act and under the "amenity" provisions of Section 215 of the Planning Act 1990. In practice, the latter powers are not normally used in those cases so that the landowner subjected to fly-tipping will not have to bear the financial consequences of its clearance. That is the right policy and the one that we should like to see under the Bill.
However, as the Bill currently stands, I accept that that position is not fully achieved. Through paragraph 64 of Schedule 18, we have disapplied Section 59 in those circumstances where the land also comes within the definition of "contaminated land". Therefore, instead of there being two parallel powers as is the case at present, only the contaminated land provisions would apply. We see the need to change that position. I am grateful to my noble friend Lord Stanley of Alderley for raising such an important issue.
In making the necessary changes, we consider that the best way of meeting my noble friend's concerns is to disapply the contaminated land provisions in those cases where Section 59 would apply. In that way, all fly-tipping cases would he for the agency to deal with under its Section 59 powers. Indeed, that goes further than the former position in providing a guarantee that the grounds for appeal available to innocent landowners under Section 59 would always be available in cases of land subject to fly-tipping.
I tum now to the point raised by the noble Baroness, Lady Nicol. Under Section 59 of the Environmental Protection Act, an occupier is potentially liable if he knew about the situation and did not prevent it when it was within his power to do so. Therefore, the noble Baroness's concerns are reflected within the provisions of Section 59.
My noble friend Lord Jenkin of Roding returned to the problem as to whether the phrase "knowingly permit" is well understood. That phrase has been a basis for liability in environmental legislation for over a century. It was used in the Rivers Pollution Prevention Act 1876 and more recently was the basis for liability in relation to the deposit of waste in the Control of Pollution Act 1974 and in Part II of the EPA 1990; and, indeed, it was used for liability in respect of water pollution under the Water Act 1989 and the Water Resources Act 1991.
Over that long period, no substantial problems have arisen in relation to the courts' interpretation of the words "knowingly permit". Indeed, case law already provides that the test of "knowlingly permit" requires both knowledge of the contaminating substances and that it must be within a person's power to do something to prevent the pollution occurring. I hope, therefore, that my noble friend can accept that they are the proper words to use in the statute.
Having said that, we shall bring our own amendments to restore the scope of Section 59 so that it applies to any illegally deposited waste, and to disable the

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contamination of land provisions where Section 59 powers would be available. That would also restore the ground for appeal currently available to the victims of fly-tipping. On that basis, I hope that my noble friend will agree to withdraw his amendment.
I turn now to Amendment No. 145B, which is tabled in the name of my noble friend Lord Coleraine. It seeks to specify that a person who consigns waste to a landfill, for example, could not be held responsible for any subsequent contamination so long as the deposit made was legal, he was not the holder of a waste management or disposal licence, and he had no duties, or had complied with any relevant duties, under the waste management duty of care requirements.
As a statement of policy, the Government fully support the intention behind the amendment. We do not intend that the words
"caused or knowingly permitted ... substances … to be in, on or under … land".
should be construed as including persons merely on the grounds that they had consigned materials to an authorised waste .stream. However, we believe that that is already the effect of the existing provision. As a result, we should be reluctant to introduce an amendment into this legislation along these lines, lest by inference it cast doubt on the interpretation of similar tests of responsibility in other legislation.
The Earl of Onslow: My Lords, is my noble friend not aware that, as a result of a House of Lords judgment, the meaning of the word "cause" has been tightened up so that it means something different from what it originally meant?
Viscount Ullswater: Yes, my Lords, indeed I am aware of that. That has been a helpful interpretation of the word "cause". Every future judgment must be made with that knowledge.
Amendments Nos. 152 and 153, in the name of the noble Earl, Lord Kintore, would enable an owner or occupier to appeal against a remediation notice on the grounds that at the time he acquired ownership or occupation of the land he could not have known of the presence of contamination in the land. During the debate in Committee on this Bill I stated that the Government will, at a later date, be setting out what we believe should be available as grounds for appeal against a remediation notice. We do not believe that the inclusion of grounds for appeal based on a state of knowledge in the past would be justified. It would have the undesirable effect of leaving real environmental problems unresolved, not as a result of consideration of their current seriousness but as a consequence of the time or manner in which they were originally created.
In cases where the original polluter cannot be found, it is reasonable for anyone who benefits from the ownership of the land to take responsibility for any adverse consequences of its condition and for any works needed to deal with the harmful effects of contamination. That is not a new concept. It has been the position under the statutory nuisance provisions now in Part III of the Environmental Protection Act 1990, which were in turn based on public health Acts dating from 1875 onwards. It also reflects principles in the
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common law, namely caveat emptor in property law and the fact that in the tort of nuisance a person can adopt a nuisance by acquiring a site, becoming aware of the nuisance and failing to do anything about it. In that situation the new purchaser can become liable for the nuisance at common law.
I hope that I have put Lord Stanley of Alderley's mind at rest in relation to fly-tipping and that my answers to other noble Lords allow them not to press their amendments.
Lord Stanley of Alderley: My Lords, I am very grateful to my noble friend for his reply. I trust that he will table the necessary amendment at Third Reading. If he cannot do so, I may be forced to table an amendment on lines that will satisfy my noble friends who supported the amendment.
I was grateful for the contribution of the noble Baroness, Lady Nicol. She too felt that it was necessary to place some onus on the landowner, although I believe that that is a minor point having listened to my noble friends Lord Renton and Lord Jenkin. I was a little chicken hearted including that particular part in the amendment. I did that to curry favour with the Department of the Environment. Perhaps I shall have to reconsider that aspect.
I gained the impression that there was considerable support for the amendment. I believe that my noble friend on the Front Bench also got that message. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
[Amendments Nos. 143A and 143E not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 144:
Page 50, line 13, leave out from beginning to ("the") in line 15.
The noble Viscount said: My Lords, I spoke to Amendment No. 144 with Amendment No. 140. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 144A to 144C not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 144D:
Page 50. line 26, after ("the") insert ("significant").
The noble Earl said: My Lords, my noble friend spoke to Amendment No. 144D with Amendment No. I28C. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 144E and 144F not moved.]
Lord Northbourne Lord Northbourne moved Amendment No. 144G:
Page 50, line 48, at end insert:
("() When an enforcing authority has served a remediation notice in accordance with this section, it shall be the duty of the authority to take appropriate steps to satisfy itself that the requirements of that notice have been complied with, and, if they have been, to issue and serve on the persons on whom that remediation was served a certificate of compliance with that notice.").
The noble Lord said: My Lords, it seems only reasonable that, if a local authority serves a notice requiring remediation of a particular site up to a certain standard, when that remediation has been carried out the local authority should acknowledge the fact. Indeed, as

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I understand it, the notice is recorded on a register. As the Act stands at present there appears to be no provision for striking that notice off the register or making any entry in the register to show that the work has been carried out.
Surely the local authority will have to satisfy itself that the work has been carried out. Otherwise landowners will simply get away with not doing the work. If the local authority has satisfied itself that the work has been done, then, in justice, it should acknowledge the fact in some form, either by making a note on the register or by providing a certificate of compliance. That must be extremely important in terms of the title to the land when future transactions take place. I beg to move.
The Earl of Kinnoull: My Lords, I strongly support the amendment. Perhaps my noble friend will be able to tell the House that this issue is already covered somewhere in the Bill. However, I am reminded of a similar situation in relation to a listed building. When a local authority seìves a notice of repair I am certain that, at the end of the repair work, a certificate is issued. Otherwise, as the noble Lord, Lord Northbourne, said, there would remain a stain on the title of the property that would make it virtually unsaleable. Therefore, in view of the importance of the matter, I hope that my noble friend has some encouraging news.
The Earl of Lytton: My Lords, I support the amendment warmly. It seems to me that there needs to be some comfort that an acceptable standard of remediation for a particular use has been achieved. That comfort applies on both sides, both to the local authority as the enforcing body and to the owner or occupier of the land on whom the remediation notice is served.
The purpose of the amendment is to provide some form of certification process to indicate that that has been achieved. That does not prevent a further remediation notice being served in the future. But it will mean that the present owner of the land can have some comfort that for the present or proposed use inherent in a particular scheme the land has been successfully remediated as regards contamination and the door is not left open to further demands for yet more action to clean up the land. That is entirely consistent with policy statements made in the past in terms of the need to lead the clean-up process from the front, if necessary, through the development process.
If there is uncertainty, risk is created where there is no need for risk. In certain circumstances it would be impossible to obtain funding for a scheme which relied in some part on a remediation approach. If that happens, important sites will be hostages to fortune as everybody tries to avoid liability in respect of those sites. Many of those sites are difficult enough to bring forward for development without adding to their problems. If such an amendment is not acceptable, I ask the Minister what will prevent a local authority enticing a developer to accept a clean-up programme as part of the development process and then progressively imposing more conditions? I hesitate to say that any significant number of local authorities would seek to do that but it might
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be a convenient way to circumvent the principles of cost benefits. The whole issue would become a moveable feast. I have some concerns about that.
I do not believe it right that new conditions should be added. I hope that the Bill does not provide for a rolling programme of additional encumbrances. I am sure that that is not the intention. However, the amendment seems an important safeguard in that respect.
Viscount Ullswater: My Lords, Amendment No. 144G, moved by the noble Lord, Lord Northbourne, imposes a specific duty on enforcing authorities to satisfy themselves that the requirements of remediation notices have been fully met and to issue a certificate of compliance accordingly. Quite apart from the additional workload associated with the duty to check that the requirements had been met and the extra bureaucracy implied by the service of another document, I do not believe that such a process would be appropriate. I shall explain why.
First, it would not readily address the problem of how to account for long-term remediation requirements, in particular, for example, where active venting or monitoring might be required to deal with landfill gas. In those cases the site would be in the process of complying with a remediation notice for a considerable period of time.
Secondly, a certificate of compliance might bring an unjustified implication that the site in question would be permanently exempt from further regulatory action. I know that the noble Earl, Lord Lytton, is concerned about that. But such a total assurance could never be given, even if the chances of further regulatory action can be greatly diminished. The circumstances on the site could change over time in a number of ways. New gas generation could start, containment measures could fail or a new and more sensitive used of the land could be introduced. Any one of those could lead to the land returning within the definition of contaminated land. If there were any sense that responsibility for further remediation would pass to the enforcing authorities, those authorities would display a marked reluctance ever to sign off a site as completely clear.
My noble friend Lord Kinnoull gave the comparison of a listed building. I do not believe that a listed building raises the same problems that we face with contaminated land. I hope that I have identified some of the problems which the amendment would pose for the regulatory authority. In view of that, I hope that the noble Lord will withdraw the amendment.
Lord Northbourne: My Lords, before the noble Viscount sits down, perhaps I may seek clarification. Is he saying that once a notice has been issued that certain land requires remediation up to a certain standard, that notice will always be on the record and can never be expunged?
Viscount Ullswater: My Lords, the whole point of the record is that it indicates what has been done to certain land which at the time was designated as contaminated. In the future it may be useful to indicate what has been done. We would consider the idea of adding other information to that register so that whatever has been done could form part of that valuable information.
The Earl of Lytton: My Lords, before the Minister sits down, perhaps I may say this. I think that I understood him correctly. What he said appears to preclude any identification of "suitable for use". One would never know what the term "suitable" meant. One could never attach the term to a use with the smallest degree of certainty. Perhaps the noble Viscount can explain that point further.
Viscount Ullswater: My Lords, I do not believe that I compromised the idea of "suitable for use". What I said was that if a contaminated land site needed further remediation over a period of years, then it would not be right for the agent), to assume that remediation by being able to sign off the previous owners as having stated they had complied with the remediation notice. Further remediation may be required in due course. The site may change and different and further remediation might be required.
The Earl of Kinnoull: My Lords, before my noble friend sits down, perhaps I may say this. While I accept that the listed building may not be a reasonable, practical example, there surely must be a division between contaminated land which can be cured—I refer to heavy metals, for instance—and contaminated land which might have problems of methane gas, or whatever, present for many years. When one considers the damage to the value of the land once it has received such a notice, it seems woefully wrong that the notice will never disappear off the record. There must be occasions when the contaminated land is completely cured. I hope that my noble friend will consider that point.
Viscount Ullswater: My Lords, with the leave of the House, perhaps I may say that of course I shall look at all the points made. However, I believe that it is right that the register should record what remediation has been done. There are circumstances when further remediation might be required, and I do not believe it right that the agency should assume those liabilities by signing off a previous owner with some certificate. As I indicated, the danger would be that the enforcing authority would show marked reluctance ever to sign off a site even if it had the power to do so.
Lord Northbourne: My Lords, I have just heard something very surprising. The noble Viscount said that he thought it right that the register should record what had been done. That is exactly what we ask for. Therefore, on that basis, I may well not have to bring hack the amendment. However, I should like to reserve the right to do so when I have read Hansard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Northbourne Lord Northbourne moved Amendment No. 144H:
Page 51, line 10, leave out ("be in, on") and insert ("come into, onto
The noble Lord said: My Lords, Amendment No. 144H refers to new Section 78E(2) which is beginning to get near the real crux of the problem that I and my noble friends have with the part of the Bill regarding who is the appropriate person. New Section 78E(2) states:
"Subject to the following provisions of this section, the appropriate person is the person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land".
One can read that subsection in this way: that the appropriate person includes anyone who knowingly permitted the substance to be in or on the land. It could be, for example, a neighbour who knew that the polluting substance was on the land but took no action to remove it. I suggest that the wording of the new section does not state what is intended. Subsection (2) is intended to define the polluter. It defines the polluter but also someone who might be an innocent bystander who knowingly permitted the substance to be there. I believe that my amendment makes the clause state what is intended. It defines the polluter. I beg to move.
Lord Coleraine: My Lords, I wish briefly to address Amendment No. 144J which stands in my name. It is a probing amendment. The amendment adds to new Section 78E the provision:
"A person shall not be treated as having knowingly permitted substances to be in, on or under land until such time as he becomes aware that the relevant land is contaminated land and fails, within a reasonable time of becoming aware, to take what appear to the enforcing authority to be satisfactory measures for remediation".
I have no doubt that it would not be the intention that an enforcing authority could draw to the attention of an owner or occupier previously unknown or unsuspected contamination and immediately serve notice on him for knowingly permitting the contamination to remain. There must, I am sure, be a reasonable period for response which should be given before formal action is taken. I am confident that that would be my noble friend's intention with regard to the Bill, but I should be grateful if he would make the position clear.
The Earl of Lytton: My Lords, I support the amendment and ask the Minister to confirm, in the light of what he said about "knowingly permit", that it is understood that the provision will not attach a liability to an owner or occupier of the land for the time being who just happens to discover that a contaminant is on his land. We go back to the common-sense approach of ensuring that the polluter pays and that the innocent party is not unnecessarily affected.
Viscount Ullswater: My Lords, Amendment No. 144H seeks to amend the basic test of liability so that it would refer to persons who caused or knowingly permitted substances to come into, onto or under land rather than to be in, on or under land. To an extent, the amendment is driven by the same concerns as Amendment No. 144J, spoken to by my noble friend

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Lord Coleraine, which seeks to clarify the meaning of the term "knowingly permit". However, it would cause a number of different problems itself.
It would ignore completely the responsibility which ought to attach to those who genuinely and actively permit the continued presence of contaminating substances in land, for example, as a result of a redevelopment of a site. This would become more of an issue where it was in fact the actions of that later person, rather than the original polluter, who set in train the circumstances by which significant harm became possible, for example, through breaching containment on the site and causing the migration of contaminants elsewhere, or by introducing a more sensitive site use.
The wording of the amendment could arguably broaden the net of potential liabilities as well. It could, for example, be taken to include anyone bringing materials onto the site, such as tanker drivers or those consigning waste to a landfill. The formulation of causing or knowingly permitting substances to be in, on or under the land provides a much narrower focus on those directly responsible for the particular location and circumstances of the contaminating substances. For those reasons, I could not support the amendment.
Amendment No. 144J, spoken to by my noble friend Lord Coleraine, seeks effectively to qualify the meaning of the phrase "knowingly permit" so that a person would not be "knowingly permitting" substances to be in, on or under land until they knew the land was contaminated and failed within a reasonable time to take satisfactory measures for remediation. I argue that the qualification is unnecessary. I indicated to my noble friend Lord Jenkin of Roding that "knowingly permit" has been a basis for liability in environmental legislation for over a century. It is therefore a well-known phrase. I do not believe that I could accept the amendment.
The noble Earl, Lord Lytton, asked me to go much further than that, but I do not believe that I can confirm that what he suggested is the current state of the law.
Lord Northbourne: My Lords, I hear what the noble Lord says and I am impressed with the inadequacy of the wording of the amendment. I wish to take it away and reconsider it. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No, 144J not moved.]
The Earl of Lindsay: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.35 p.m.
On Question, Motion agreed to.

Nigeria: Human Rights
7.35 p.m.
Viscount Torrington Viscount Torrington rose to ask Her Majesty's Government what plans they have to encourage the restoration of democracy and greater respect for human rights in Nigeria.
The noble Viscount said: My Lords, on 15th February the noble Lord, Lord St. John of Bletso, introduced a fascinating debate on South Africa in which I should very much like to have taken part. Unfortunately, I had another appointment which in the end finished early. Had I been able to speak, I might have been able to establish my credentials as yet another Peer in whose veins the blood of the 1820 settlers and the voortrekkers flowed.
Anyway, having been unable to speak on South Africa, I am glad to be able to introduce a short debate on another important part of Africa. I am sorry that the time allowed for the debate will be short, particularly since speakers include the noble Lord, Lord Thurlow, whose knowledge as a former High Commissioner to Nigeria will be invaluable. The list of speakers also includes the noble Viscount, Lord Waverley, who only last week sped off to Nigeria and who will no doubt bring first-hand knowledge to our debate.
Some people fall in love with Africa because, like me, they were born to it. Others catch the thrall of Africa, sometimes in a single short visit. Either way, it is a disease like malaria; it can never quite be purged from the system. For those who love Africa—I know that my noble friend on the Front Bench is one—and who feel pain at Africa's failures and elation at her successes, the last few years have been dramatic. South Africa has progressed from white supremacist apartheid to democratic government. It has done so at some considerable cost in lives but without a true civil war and without destruction to its infrastructure.
In Mozambique, a vicious civil war has been brought to an end. I know incidentally that my noble friend the Minister has done a lot to encourage Mozambique to achieve that desirable state of affairs. There now seems to be genuine movement towards ending the civil war in Angola, but it will be a slow process and the country will need a great deal of help to recover. The ghastly tribal warfare in Rwanda seems, at least for the present, more or less to have subsided and, turning to West Africa, the civil war in Liberia seems to have ground to a halt.
Compared with the catalogue of recent horrors in Africa, it may seem churlish to put Nigeria under the bright light of censure. However, Nigeria is a big country with a population of nearly 90 million people. And if we believe that people are more important than goods and chattels, Nigeria is in that sense three times as significant as South Africa. It is an important country, no small economic force in its region, and a major oil producer. It is vital that Nigeria should set, and be seen to set, an example of peace, stability and democracy.
Since independence in 1960, Nigeria has had one short, sharp civil war, the Biafran war. That finished 25 years ago. More significant is Nigeria's record in terms of democracy and civil rights. At independence Nigeria inherited a Westminster-style democratic system. That lasted only six years. In the 34 years of its existence as an independent state, Nigeria has had only 10 years of elected civilian government. Most of us cannot even remember the civilian rulers. The names of Nigerian leaders that spring to mind are Gowon, Ironsi, Obasanjo, Buhari, Babangida and now Abacha. Shagari and

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Tafawa Balewa are almost forgotten memories. And more importantly and sadly, Chief Abiola, the president who never was, is a fading image.
I do not personally know and have no interest to declare beyond the fact that I share a solicitor with Chief Abiola. I cannot beat my breast and say that Abiola is a saint beyond reproach, but there are honourable men who know him and speak well of him. In terms of some of Nigeria's recent leaders, it would be fair to say that in the land of the blind, the one-eyed man could be king—or perhaps more appropriately, president.
In June 1993, Chief Abiola won an election which I believe was pronounced broadly free and fair by an irreproachable team of international observers. The election was promptly annulled by the government, which presumably found the result unpalatable. After an uneasy year in which Babangida handed over power to Ernest Shonekan's unelected civilian puppet government, which in turn handed over to General Abacha, a frustrated Abiola, perhaps a little unwisely, declared himself to hold the office to which he had been elected. He was promptly arrested and locked up and has remained so in spite of being granted bail.
Since his arrest, he has been detained, I am told, in various places around the country, at least for some of the time, I am led to believe, without access to legal assistance, writing materials, newspapers or even visits from his family. The aim seems to have been to break his spirit. However, by all accounts, it is only his health which so far shows signs of breaking.
Surprisingly, I am told that human rights were not considered a major problem under previous Nigerian administrations, including that of Babangida. But the treatment of Abiola under General Abacha's government has apparently been mirrored at other levels in a growing disregard for the judiciary and the due processes of law.
Since the oil workers' strike in support of Abiola, there have apparently been numerous cases of detention of trades unionists, journalists and politicians without trial. Leaders of the Nigerian Labour Congress and the oil workers union were arrested or dismissed from their posts, and a government decree made it impossible for them to challenge their dismissal. In addition, a number of other decrees have retrospectively legalised otherwise illegal restrictions placed on the rights of citizens.
Three newspaper groups were closed down, including one owned by Abiola. The closure was subsequently challenged in the courts and damages were awarded against both the government and the police. In spite of this, the government promptly promulgated an order legalising the closure.
In September, General Abacha dismissed the attorney-general after the latter apparently publicly stated his opposition to decrees passed without his being consulted but which he believed effectively swept away many Nigerian civil liberties.
In order to pay, some might say, lip service to the principles of democracy, the government convened a constitutional conference, due to report last October, whose findings regarding a return to civilian rule they promised to implement. Due to its composition, the
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conference was regarded as something of a sham, but it is interesting that the government used the excuse of Ramadan to send the delegates home, possibly to delay the conclusions of the conference, which might not have been to General Abacha's liking. Possibly his poodle was about to bite its master's ankle.
To give credit where it is due, Abacha's government recently brought in a number of desirable economic reforms, including the effective ending of exchange controls, perhaps to convince people that a government which has sensible economic policies cannot be all bad. Come home, General Pinochet, all is forgiven!
I shall believe it when I see it, but the government are also said to be close to releasing Abiola on health grounds. He is not a fit man, but perhaps—just perhaps—the government are beginning to heed the pressures building up both within Nigeria and within the international community. I hope that Nigeria can, at the eleventh hour, pull back from the edge of the authoritarian abyss and find its way back to the highroad of democracy.
As I said before, I know that, like me, my noble friend on the Front Bench is a lover of Africa. Yesterday, in this context, The Times paid her the somewhat backhanded compliment of being a Tory Minister whom everyone likes. Well, I also know that when one day she ceases to hold her present office and ends her tireless round of African capitals she will be greatly missed by people of all walks of life on that continent. I know that, like me, she feels the pain of Africa's failures. I know that she is dedicated to doing what she can to right the wrongs.
I look forward to hearing the contributions of other noble Lords and the right reverend Prelate. I look forward particularly to hearing from my noble friend the Government's views on what they can do to encourage the restoration of democracy and human rights in Nigeria.
7.47 p.m.
Lord Thurlow: My Lords, we are all very grateful to the noble Viscount for asking this Question and for giving us an opportunity to discuss the affairs of Nigeria at what may very well be a critical time. The noble Viscount catalogued some of the concerns that have worried many of your Lordships. I preface my remarks with the obvious statement that we all speak basically from the same position. We value our long, traditional friendship and close associations with Nigeria. We have close friendships with Nigerians. We long for the day when this great country can resume its rightful position to help in leading the rest of Africa with stability into prosperity.
But of course we are troubled by what the noble Viscount referred to in relation to recent matters of human rights. Here, I urge that we are measured in our comment. Perhaps we tend to apply to Nigeria a higher standard than we are inclined to apply elsewhere in other continents and to other countries. Successive military governments have, in terms of human rights, had commendable records. We hope very much that

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President Abacha will feel able to make gestures to mollify the concerns in this country and elsewhere about recent events.
I speak with feeling about the need for moderation in criticism. When I had the privilege of serving in Nigeria, one of my greatest difficulties was in mending the fences between Nigeria and a new British Government after unmeasured criticism from Opposition Benches on the celebrated Enahoro extradition case. It was unmeasured criticism in the heat of political battle which nearly brought the Government down. Some of what was said was without factual basis. It caused the greatest offence. When the Opposition came to office, it was very difficult to induce the Nigerian Government to have any positive relationship with them at all. So criticism has to be careful and well-informed.
The Question concerns, first, the reintroduction of democracy. I must say that I have wondered about the timing of implementation of the recommendations of the constitutional conference when they are made. We hope that these are not far off. We believe, from what we are told, that they will contain much that is helpful and useful, and that they may lay a sound foundation for a new, accountable, democratic regime. It would be entirely unfair if the new democratic government, when it is introduced, should inherit an economic and social situation which makes it necessary only to take unpopular steps of belt-tightening to get matters straight. Therefore this seems to me to impose a very heavy obligation indeed on the military government to get on quickly with the further restructuring that is necessary to enable confidence at home and abroad to be restored, to enable investment to flow, and to enable the international community to do what it is straining to do; namely, to support the economic and financial fabric of Nigeria in recovering from its extremely difficult predicament.
I turn to human rights. The head of state has assured us—we welcome it—that (these are his own words) there is no going back on the commitment to restore democracy. That implies all that we respect in terms of human rights and freedoms. We all endorse the concerns of the noble Viscount, but we ask the present Nigerian Government to make early gestures to satisfy our concerns, so that the international community can once again do what it so much wishes to do; namely, to get hack into a positive relationship of support for the restoration of democracy and freedom.
7.50 p.m.
The Lord Bishop of Sheffield: My Lords, I speak in the debate with some hesitation. Unlike other noble Lords who have spoken, I entirely lack that personal knowledge of Nigeria and Africa which marks their contributions. However, I am glad to have the opportunity to let your Lordships know of the courageous part played by Church leaders in Nigeria in this distressing period in the life of their country.
I found particularly moving the communiqué issued by the Catholic bishops after their conference last September. Unfortunately, time forbids me to read it all. But I can bring your Lordships two paragraphs that
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speak of the yearning for good democratic government and of the government's response to that yearning; and a paragraph that points to the future.
The bishops say:
"Among the people of Nigeria the yearning for freedom and democracy and the loss of confidence in military rule and all those associated with it have been expressed in incessant strikes, demonstrations and at times violent protests. Nigerians have said it loudly and clearly and through the events of the last few months they have demonstrated that they no longer wish to subject themselves to bad government or military rule, however benevolent. After ten years of continuous military presence in power, Nigerians are convinced now more than ever before that the military has no monopoly of political wisdom, nor is patriotism a virtue to be found only in the rank and file of the armed forces. Under military regimes, evidences abound of ethnic and religious bigotry, corruption, greed and graft. Yet these are the ills the military purportedly came to correct. Therefore any attempt to prolong military rule under any guise whatsoever is a direct violation of the people's express will".
Speaking of the government response:
"The present military government has always spoken of dialogue, but it is disheartening to note that faced with the crisis of credibility and legitimacy, it has often resorted to one panic measure after another, and besieged Nigerians with a barrage of oppressive decrees, rather than appreciate fully and respond honestly to the people's anger and anguish. The consequence is a vicious circle of widespread protests, repressive ecrees, and further protests. The cumulative effect of this vicious circle is the loss of confidence in government and in public institutions, and a collapse of the moral, social and economic order in present-day Nigeria".
But the bishops look positively to the future:
"We salute our countrymen and women who, in the face of this dire situation, have been promoting and defending human rights and freedom. Some of them have been subjected to untold hardship, including indefinite detention without trial. May their suffering not be in vain. Nigeria is a nation of free people. We want to remind our beloved countrymen and women that we are a free people. We may be vulnerable but not helpless under the present circumstances. We must not allow anyone to reduce us to slaves through repressive decrees. We must continue to resist the violation of our fundamental human rights, including the right to free expression, and the right to choose our own leaders. We must continue to resist dictatorship by all peaceful but effective means".
A very similar message has been given by the Christian Association of Nigeria, which represents the Anglican, Roman Catholic and Protestant Churches. It says:
"Nigeria belongs to all Nigerians and not to any special group of Nigerian citizens, of particular religious persuasion or political ideology who believe they are predestined to hold tight eternally to sovereign rule, while poverty and squalor fast reduce the other citizens to wretched and miserable serfs".
The Church leaders say that they:
"find it impossible to look on and say nothing, while our nation continues to slide down a destructive precipice ... As one moves around, one discerns, boldly written on the faces of most Nigerians, sorrow, depression, anguish, frustration, hopelessness and helplessness".
Surely, this situation is a matter of great concern to all who are within the Commonwealth. The rulers of Nigeria, it would seem, are not impervious to what the world outside Nigeria thinks. Might this be an area where the Commonwealth secretary-general could help to achieve progress?
7.57 p.m.
Lord Thomas of Gwydir: My Lords, the House is grateful to my noble friend Lord Torrington for his impressive and clear exposition of the sorry situation in

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Nigeria today. It is a situation which has caused widespread international concern, particularly in Britain, where, as the noble Lord, Lord Thurlow, said, we greatly value our close, long-standing relationship with the state and the people of Nigeria.
So far, not much has been said about Nigeria's economy. It is tragic that that major oil-producing African nation, with its high level of educated people which promised such great potential on independence 34 years ago, is today in per capita terms among the world's poorest countries. One can think of many contributory factors that have led to that unhappy situation, but the main fault is the way in which Nigeria has been governed in recent years and in particular today.
My noble friend Lord Torrington said that over the 34 years since independence there have been military governments in Nigeria for 24 years. When General Abacha took over as head of state in November 1993, his was the eighth successful military coup. He dissolved democratic institutions and proscribed all political parties and organisations. Also, as we heard, there have been numerous arrests and detentions without trial, several newspapers have been closed, decrees limiting the jurisdiction of the courts have been issued and habeas corpus has been withdrawn. That is how Nigeria is governed today. Noble Lords may think it not surprising that unrest and resentment are widespread.
One must try to understand the problems and difficulties in governing Nigeria. It is the most populous African country and is divided into three regions. It has many ethnic and religious divisions. The proponents of military rule in Nigeria maintain that it is necessary in order to preserve national unity, but in the 24 years of military role it has clearly failed to produce that unity. Military government is now seen clearly as an anachronism. Nigeria, along with Gambia and Sierra Leone, is isolated in the Commonwealth. Its potential as an African leader in international fora is diminished. There is deep concern about where General Abacha's government is heading and about its lack of political direction.
The salvation of Nigeria lies in effecting change. There is an urgent need to put the country back on the path towards accountable civilian government. General Sanni Abacha has convened a national constitutional conference. That conference has recommended a handover to civilian government in January 1996. General Abacha should be very strongly advised to honour that recommendation. If he were to make the position clear, a great change might well take place. We all want a strong, united and prosperous Nigeria. It can be achieved if there is an early return to civilian democratic rule.
8.3 p.m.
Viscount Waverley: My Lords, in recognising the importance of this debate, I requested and was facilitated by the Government of Nigeria to visit the country for four days. I returned last week. The current political issues surround the elected, and in part appointed, constitutional conference commission comprised of 19 committees. The core objectives are: to
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establish a system of government reflecting the general consensus of Nigerians; a guarantee of good governance; accountability; and probity in public affairs.
I draw your Lordships' attention to accountability, which is crucial. A three-tier system of local government, state and federal legislatures is proposed, with devolved administration to the states. There is also a call for unbiased central government to ensure the equitable distribution of resources. There are many proposals of merit, not least the call for a rotational presidency. That addresses the difficult pluralistic relationship between ethnic groups in the northern and southern areas of the country.
The date January 1st 1996 for a return to democracy would, in my view, be difficult to achieve. Even if the military elected to hand over control today, the country would not be ready. If democracy is to stand the test of time it is essential to have a sufficient period to allow for the process to be nurtured from grass roots level. On this point I pressed General Abacha, head of state, to whom I expressed appreciation for face-to-face discussions. He would confirm only that a realistic timetable would be set after the constitutional conference—which reconvened on Monday, following Ramadan—had submitted its report to government for study and deliberation. However, it would be helpful to his country to have an early announcement of such a timetable. One point emphasised by Chief Shonokan, a past president, Justice Karibi-Whyte, chairman of the constitutional conference, and Mr. Dozie, governor of the central bank, was that only a viable economy could sustain democracy. I mention their names to reinforce the point.
The democratic process will be jeopardised without economic stability. Political distractions must not be allowed to divert attention from the restructuring of Nigeria's economy. The recent budget has moved the economy away from regulation, as evidenced by the repeal of the Exchange Control Act and the Nigerian Enterprise Promotion Decree. This has been welcomed by the business community, who want to do their part to ensure that the initiative is not derailed. The Economic Summit Group in Lagos has discussed with the head of state the changes necessary to develop Nigeria's economic potential and has been active in urging him not to head the advice of the exponents of regulation. This group is to meet the Finance Minister in Abuja tomorrow to labour the point.
Nigeria is an important country to the United Kingdom and is a fellow Commonwealth member. She is, however, a country with a multitude of problems. Although 90 per cent. of her export earnings are derived from oil, Shell, who, as operator of the consortium, account for 50 per cent. of output, have not been paid by their Nigerian joint venture partners and so have been unable to pay contractors for four months.
Nigeria should be a prosperous nation but is one of the poorest in the world. The average Nigerian seeks only a roof over his head, food to eat, education for his children and good governance. Illiteracy—the bane of Africa—affects approximately 70 per cent. of the population. A horrifying 30 per cent. of GNP is needed for the payment of debt.

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Commonwealth sentiment is illustrated by Chief Anyaoku's remarks at the parliamentary conference in Banff last October:
"Military intervention in politics is a political aberration and a derogation from the democratic development of a country. I believe that as we progressively pursue the objectives of the Harare Declaration, the day will not he far away when representatives of military regimes will find no welcome in the councils of the Commonwealth".
To ostracise a country is an extreme position. It is vital to have continual dialogue for the resolution of differences. However, there are senior sceptical political observers. I want to see their fears allayed. I believe that any differences with Nigeria will be resolved but the question is when. Nigeria feels that it has a relationship with the United Kingdom that transcends the usual diplomatic and trade ties. She feels that the United Kingdom is the driving force behind tomorrow's proposed human rights resolution in Geneva. I encourage the Minister to comment on that point in her remarks.
The key concerns of Nigerians are: the leadership crisis, the lack of political structure and the need for socio-economic development. I appealed to the head of state that he has it in his power to become the architect of a new Nigerian republic. I asked him to consider carefully the recommendations of the impartial constitutional conference. I trust that he will do this in a timetable that is acceptable to fellow Nigerians, thereby gaining the approbation of the world community, without which no country can prosper.
8.9 p.m.
Lord Avebury: My Lords, I believe that Nigeria stands on the edge of a precipice, with the polarisation between rich and poor, the economy a disaster, the Naira devalued four-fold last week, inflation running at 60 per cent. last year and climbing, unemployment spiralling, interest on foreign debt more than 7 billion dollars in arrears, and an estimated $12.2 billion of government revenue siphoned off by the kleptocracy in the years 1988–94. Nigeria has the third worst credit rating in the world. There is tension between north and south, between Moslem and Christian and between ethnic groups, all fostered by the narrow military clique that now holds power.
I know that the Government are concerned and have done their best to persuade the military regime to hand over to a democratic civilian administration as soon as possible. They have perhaps placed too much faith in the constitutional conference, as other noble Lords have done, and too little on the need to foster and encourage democratic institutions in Nigeria. But they have at least been ready to listen to the ideas of the Campaign for Democracy, NADECO and the CLO and to consider means of bringing pressure to bear on the regime.
I have a suggestion to make to the Minister. We could consult with the Americans, and any others who want to join in, to create a steering committee to plan our joint aid to democratic NGOs in Nigeria and thereby avoid overlap and make sure that we are delivering the most effective possible help to them.
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We and our EU partners have stopped all new supplies of arms and ammunition to Nigeria, all training of military personnel, all ministerial contacts and some other high level visits. Other suggestions have been made, such as a total embargo on Nigerian oil exports and the freezing of Nigerian assets in Britain. Those suggestions have been rejected. Under international law we could not take measures of that kind without the authority of the UN, and the Security Council would be unlikely to approve them. But to do nothing since 2nd December 1993, when the EU package was approved, would be to confess our impotence in the face of the serious worsening of the situation. The international community has to persuade the Nigerian regime to accept constructive advice on the restoration of human rights and the return to democracy. An extension of the anus ban might be one possibility. I was dismayed to note that only two weeks ago we were still delivering tanks to Nigeria against orders placed some time ago.
The international community, for its part, has to be specific about what it expects from Aso Rock. There have to be solid assurances that the regime means what it says about the transition, and that requires strict adherence to the timetable. I was sorry to hear that the noble Viscount, Lord Waverley, did not receive any assurances on that point. Secondly, those who want to participate in the return to democracy have to be allowed to do so. That means that Chief Abiola must be freed, as President Clinton's special envoy, Ambassador McHenry, requested when he was in Abuja three weeks ago. Mr. McHenry suggested a speedy retum to democracy in which Abiola would play a key role, and in response, according to reports, General Abacha said that he planned to leave office at the end of 1997 but that he would allow party activity, including activity by Mr. Abiola himself, to resume on 12th June. Meanwhile, I should like to ask the Government whether they will urge the regime to allow Chief Abiola to receive the medical treatment that he urgently needs. He has to go abroad for an operation for a laminectomy, which means that he is suffering from an extremely painful complaint.
The arbitrary detention of people like Ken Saro-Wiwa, Beko Ransome-Kuti, Gani Fawehinmi, Femi Falana and Ayo Opadukun, the Secretary of NADECO, who has now disappeared, must cease, and the decrees allowing imprisonment without trial must be repealed. The trumped up charges against six senators, whose cases are now before the Inter-Parliamentary Union, must be withdrawn.
Since the weekend it is reported that up to 200 officers, mostly retired or dismissed, have been arrested on charges of making statements that could cause disaffection in the armed forces. They were alleged to have criticised Abacha for his failure to appoint new ministers since he sacked the whole of the cabinet on 8th February, but really it was suspected that they were plotting a coup. All these arrests, and the suppression of newspapers and trade unions, are a measure of the strength of the opposition. The apparent quiescence of the moment should not deceive the outside world into believing that Nigerians accept the regime's existing policies. Just because there are no large scale violence, no big strikes and no demonstrations, does not mean

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that the democracy movement has been crushed. A wise observer from Oyo said that the situation was like a fire smouldering under a carpet: by the time it bursts out, it may set the whole house ablaze.
The international community cannot sit back and wait for the conflagration, which would be a huge disaster for the people of Nigeria, the west African region and Africa as a whole. The danger is so acute that the OAU, the Commonwealth, the US and the EU should act together, all conveying the same message to Aso Rock. The longer freedoms are withheld, and the greater the number of people who are arrested or forced into exile, the more difficult it will be to heal the divisions among the Nigerian people. If after all these delays they do get the chance to express their democratic will, the odds are shortening on their being offered choices based on ideological rather than religious, geographical or ethnic differences. Nigeria can only survive as a state if those differences can be accommodated in a framework of tolerance, non-discrimination, equality and reconciliation. Those qualities have not been the hallmark of recent Nigerian political life, and the year 1995 may be the last chance for them to be demonstrated.
8.14 p.m.
Lord Judd: My Lords, the noble Viscount's Question is rightly warmly welcomed on all sides of the House and, indeed, way beyond it among the wide range of humanitarian agencies, including those with which I work. This frustratingly timed debate for such a vital issue has clearly demonstrated that civil and human rights have little meaning for General Abacha's regime. A story of all too numerous political prisoners and their conditions and of the acute anxiety of their friends and families is disturbing. In the words of Jesse Jackson, following his visit last year, if the instability were to lead to war in Nigeria, we could suffer a disaster,
"50 tones worse than that of Rwanda",
and Rwanda was a case of massive genocide. The numbers of refugees and displaced people might well reach unprecedented levels. We surely cannot forget that in the Biafran war between 1967 and 1970 approximately 1 million Nigerian men, women and children perished.
Nigeria is potentially one of the richest nations in Africa but according to the United Nations Development Programme nearly half of Nigeria's inhabitants live in absolute poverty—46 million people. Per capita income, which stood at 1,000 dollars in 1980, had plummeted to 250 dollars by 1993. Since then things have gone from bad to worse. Recent world history grimly demonstrates that civil war often occurs when a critical mass of destabilising factors, including tyrannical and incompetent government, combine to exacerbate simmering regional religious and ethnic tensions. We could be precious near that point in Nigeria.
Nigeria could be the strongest and most influential nation in West Africa. It could act as a force for regional stability. At a time when the British Government are calling for the strengthening of regional institutions, such as the OAU, it is therefore logical that everything possible should be done to speed civilian rule in Nigeria
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as the basis for its critically needed leadership role. At the same time it would be strange to overlook the potential of Nigeria as an economic power. Nigeria has the capacity to produce 2 million barrels of oil a day, and it has proven reserves of 25 billion barrels. The potential loss in trade should the conditions in Nigeria still further deteriorate is substantial. It is significant to note that when the strikes took place in August last year Shell lost an estimated 400,000 barrels per day.
What should be done? First, the European Union moratorium on aid to the Nigerian military regime is to be welcomed. But why then have the British Government been so intent on honouring all the arms contracts signed before December 1993, including the supply of 80 main battle tanks? By contrast, what plans do the Government have for increasing and targeting humanitarian aid to those in need through non-governmental channels? The Nigerian Government still enjoy dialogue with western governments and international institutions. Our diplomatic representatives are still based in Nigeria, and Nigerian representatives are still based here. While I certainly recognise the force of the argument made both by the noble Lord, Lord Thurlow, with all his great experience, and the noble Viscount, Lord Waverley, in his interesting speech delivered so soon after his recent meeting with leaders in Lagos, I wonder whether the continuation of full-blooded arrangements does not serve to legitimise the current dictatorship. While keeping channels for dialogue open, is there not a case for the international community to denounce the military regime for what it is and to distance itself by appropriate political and diplomatic measures?
I understand the Abacha regime was supposed to reconvene a constitutional conference yesterday. Can the Minister enlighten us about whether that happened and whether any progress was made? Is there indeed any hope of civilian rule by January 1996, as—the noble Lord, Lord Thomas, reminded us of this point—some of those involved in the constitutional conference have been demanding?
We on this side of the House welcome the Government's support in principle for the conference; but that must surely go beyond the offer of books and documents. Are there no economic carrots and sticks which the Minister and her colleagues are prepared to bring to bear? As the noble Lord, Lord Avebury, has indicated, some key players in Nigeria are calling for an embargo on Nigerian oil as a means of pressuring the military regime into initiating new elections. Where do the British Government stand on that?
Nigeria is still a member of the Commonwealth and clearly values the political influence associated with that. Is there not therefore a proactive role for the Commonwealth? There has been some talk of a Commonwealth "good offices" mission to persuade the military regime to stand down. Would the British Government support that? Indeed, might there not well be a case for insisting that a positive feedback on such a visit should be a prerequisite for Nigeria's attendance at the December Commonwealth Summit?

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If we aspire to remain a permanent member of the Security Council, we must demonstrate the resolve that entitles us to such a position. As the noble Lord, Lord Avebury, has said, we cannot stand idly by. The Government will therefore have our full support in firm action. If all the words of the Prime Minister and the Foreign Secretary about the importance of pre-emptive diplomacy in Africa are to prove more than empty rhetoric, now is the time to act.
In Rwanda, together with our Security Council partners, the United Kingdom failed to take the action which we should have taken. Nobody suggests that all the genocide could have been prevented; but many of those in the front line are convinced that with more determined action, there would have been many more thousands of people still alive today. Such events must not be allowed to happen in Nigeria.
8.21 p.m.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, perhaps I may congratulate my noble friend Lord Torrington on his timely Question and all noble Lords who have participated in this debate. I am particularly keen to heed the wise words of the noble Lord, Lord Thurlow, to be measured in all our words. Those of us who rightly love Africa, although not born there, know how quickly words misapplied can be not only misunderstood, but blown up into quite remarkable stories and rumours. Much as I love Nigeria, and I always shall, I have been misquoted many times before in Nigeria when saying relatively innocuous things. I believe that if one is to help Nigeria, then one must be honest. But sometimes some of that honesty has to take place in private otherwise it will be misinterpreted.
The speeches tonight underline the importance of Britain's long-term interests in Nigeria and the close attention that we pay, day by day and week by week, to each and every development there. Britain's interests in Nigeria are many and varied. They include trade, investment, Nigeria's political importance as the most populous state in Africa, the leading role Nigeria has played in international peacekeeping and efforts to promote peace in regional conflicts; the important human and educational exchanges between Britain and Nigeria, and our shared history and culture. Let us never forget those important things. In sum, Britain strongly desires to see a united, prosperous Nigeria, capable of playing a strong role in Africa and in the larger world.
Her Majesty's Government remain intensely interested in events in Nigeria, but deeply concerned about the lack of progress towards democracy, and about the lack of respect for human rights. There is no loss of goodwill. Britain is a friend of Nigeria. But, sadly, Nigeria is not fulfilling her potential. Nigeria should be leading the search for solutions to Africa's problems, not adding to them. Nigeria is in danger of being left behind, as one of the few Commonwealth countries still ruled by a military government in the 1990s.
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There is an urgent need to set the country back on the path towards accountable civilian government. We have continued to make this clear to the Nigerian Government at the highest level, since the disruption of the democratic process in June 1993. Only a few hours after the removal of the civilian Interim National Government, in November 1993, we made clear that we regard the return of military government to Nigeria as a step backwards. That remains our firm view, and that of all our partners. We have read press reports here and in Nigeria about arrests of army officers. That emphasises the urgent need for a peaceful transition to democratic civilian rule.
Since the 1993 political crisis, we have been very careful not to be prescriptive in our approach to Nigeria. We have not pressed for the adoption of the Westminster, or any other democratic model, nor have we offered to devise or broker political solutions to Nigeria's problems. Nigeria must decide its own future. But accountable, democratic government is essential for political, economic and social progress in Nigeria, as so many of your Lordships have said. That is our main objective.
We seek therefore signs of movement towards an agreed timetable for an early transition to civilian rule. I was encouraged by the declaration in December by the National Constitutional Conference that the military should hand over to civilian rule on 1st January 1996. This declaration did not have the status of a final conference recommendation, and nor are its recommendations binding on the Nigerian administration. I note that the conference itself resumed yesterday. I believe that that answers the question raised by the noble Lord, Lord Judd. We hope that it will conclude its work soon. We strongly urge the Nigerian Government to respond positively to the work of the National Constitutional Conference and, as the noble Lord, Lord Thurlow, said, we hope that implementation of the recommendations is not far off. We want to see work for a transfer to civilian rule in the shortest time practicable. I noted what the noble Viscount, Lord Waverley, said, but I hope that all speed will be made because the Nigerian people are waiting most anxiously.
My noble friend Lord Torrington described the depressing situation over human rights. Her Majesty's Government and the European Union deplore the repressive decrees promulgated in 1994. They proscribed press freedoms, strengthened powers to detain without trial, and withdrew habeas corpus.
We have urged the release or fair trial of all those arbitrarily detained. We have appealed for travel restrictions to be lifted on those whose passports have been seized. Such repressive acts contradict the Nigerian Government's declared commitment to make early progress towards democratic civilian government, and damage the reputation of what was formerly one of Africa's proudest bastions of judicial independence and integrity.
All members of the European Union have consistently made their views on human rights known to the Nigerian Government. Nigeria is failing to live up to its human rights obligations. Nigeria has aspirations to the highest standards and is party to many international

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human rights instruments. We deplore all human rights abuses and shall continue to raise specific cases with the Nigerian Government.
The noble Viscount, Lord Waverley, asked about the debates in Geneva. It is the European Union that has tabled a resolution at the UN Commission on Human Rights which will be debated tomorrow. It is an expression of concern by all members of the European Union about human rights in Nigeria. We look to the Nigerian Government to commit themselves to specific improvements on human rights. We hope that that will happen.
My noble friend Lord Torrington and others spoke of the plight of Chief Abiola. We note the appeals for direct support for his claim to the presidency. But, with partners, we have condemned his arrest last June. The solution is for Nigerians to determine. Our EU role is to support the process of a return to democratic civilian rule. We hope that the talks going on between the Nigerian Government and Chief Abiola's supporters will lead to an early solution.
However, we deeply regret the long detention endured by Chief Abiola. We were encouraged by the decision in November of the Kaduna Appeal Court to grant him bail, but dismayed that he was not immediately released. We are concerned at reports that he has been ill-treated, and has been unwell. Like the noble Lord, Lord Avebury, we appeal to the Nigerian authorities to ensure that Chief Abiola has continuing access to proper medical attention. The detention of Chief Abiola cannot help to heal the political divisions in Nigeria, or aid progress towards a return to democratic civilian rule. We hope that Nigeria's leaders will have the courage and vision to release him soon, as my noble friend Lord Torrington said.
My noble friend Lord Thomas of Gwydir talked about the prospects for the Nigerian economy. Nigerian inflation is around 100 per cent. It has high unemployment, a budget deficit of 10 per cent. of GDP last year, and high external debt. But this January's budget signalled a positive change of direction. We welcomed the positive reforms it contained, particularly on the exchange rate, as many noble Lords have said. We hope that the deregulatory approach signalled by the budget is put into effect. As the noble Lord, Lord Thurlow, said, the economy supports the fabric of Nigeria in its recovery. That is vital. It is essential that investor and manufacturing confidence is restored because, as the noble Viscount, Lord Waverley, said, only a viable economy can stabilise Nigeria.
We welcome the declaration in the January budget that Nigeria would seek to restart an economic dialogue with the international financial institutions. We hope that Nigeria will be able to reach agreement on a medium-term economic programme this year. We continue to support Nigeria's case for debt relief in principle on the most concessionary terms available. But we, and Nigeria's other creditors in the Paris Club, will look first to see an agreement with the IMF, and a much improved payment of arrears, before debt relief can be considered. That may be the sort of carrot for which the noble Lord, Lord Judd, is looking.
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Trade with, and investment in, Nigeria is vital. Indeed, all our commercial relations are vital, and Nigeria remains Britain's second largest export market in Africa by far, with exports worth around £480 million in 1994. British companies hold investments in Nigeria worth over £500 million. We have key economic interests there, and a thriving two-way trade is the best way to help Nigeria to prosper. But that will take off again only when there is civilian democratic rule.
The noble Lords, Lord Judd and Lord Avebury, both asked about aid. Perhaps I may advise them briefly that, although we had to stop aid to Nigeria, we have managed to maintain (through the deployment of NG0s) new and relevant aid programmes. We have certainly responded with programmes in health, water, education and the natural resources sectors. I look forward to the day when we can normalise our aid relations, but I cannot do so until Nigeria has demonstrated a commitment to the restoration of democracy.
The European Union measures against Nigeria were in response to the annulment of the 1993 election, and the later return to power of military government. We suspended military co-operation and high-level visits; restricted visas for members of the military and their dependants; reviewed all new export licence applications for defence equipment with the presumption of denial, and reviewed all new aid projects on a case-by-case basis. It was the European Union which agreed that all measures should remain in force, They will be reviewed only in the light of clear progress towards a return to civilian rule.
I am sometimes asked to consider the imposition of additional measures or sanctions. We do not rule it out. To date we have resisted appeals for wider sanctions on the grounds that we have no wish to harm the interests or the livelihoods of the ordinary people of Nigeria. They would be the first to suffer from an oil embargo or trade sanctions. By contrast, our current measures remind the Nigerian military that it is responsible for the disruption to the democratic process. I hope that we shall soon see progress towards democracy and a resumption of co-operation in every sphere.
The Commonwealth is trying to help in Nigeria and I hope that long before the next Heads of Government meeting, in Auckland in November, General Abacha will have announced a firm timetable for the military's return to barracks.
In conclusion, Her Majesty's Government are deeply engaged over Nigeria. We owe it to the forces of democracy in Nigeria to keep up the pressure. Despite the suspension of high-level ministerial visits, we continue to talk and I have consulted a wide range of political and traditional rulers, as they visit London.
The vitality, spirit and intelligence of the Nigerian people will not be suppressed. I have confidence that Nigeria will find a way forward, but it is essential that that happens soon. I think that one of the lessons of this era in history is that nations cannot stand still. To do so is to invite competitors to attract the investment, the trade and the political interest. Nigeria cannot afford another wasted year. But there is no loss of goodwill.

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Britain is a friend of Nigeria. Nigeria's friends know that she needs accountable government as soon as possible—and certainly in 1996.

Environment Bill [H.L.]
8.36 p.m.
Consideration of amendments on Report resumed on Clause 54.
Lord Northbourne Lord Northbourne moved Amendment No. 144K:
Page 51, leave out lines 12 and 13.
The noble Lord said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 144L and 144M. The amendments get to the heart of the problem. They relate to the questions: who is the appropriate person upon whom the notice should be served and who should be required to put the matter right? The subject divides itself into three sections: the polluter; the question of the transfer of liabilities; and the residual liability of the landowner or occupier. The point about the polluter is covered by what will be new Section 78E(2). These are probing amendments on the basis of which I should like to ask the Minister a number of questions. I accept that he may not have the answer in every case tonight, but I hope that we can at least discuss them between now and Third Reading.
My first question is: which polluter? Subsection (2) talks about finding the person who, "knowingly permitted the substances"to be on the land. There may be several such persons. Is the polluter the largest polluter or the most guilty? Is the polluter the person who is the easiest to find or the one with the deepest pocket? If none of those descriptions applies, what other criteria will be used for the selection of the polluter?
My next question is: how hard must the authority try to find the polluter? We have to remember—we shall come to this later—that if the authorities fail to find the polluter, the landowner may he liable. We may be talking about many millions of pounds. The question of how hard the authority has to try to find the polluter is therefore significant.
Should not the authority be responsible for allocating the responsibility as between the polluters? And what happens if the polluter is found but cannot pay the whole cost—or even any of it? More specifically, what happens if the polluter is a company and that company has gone into liquidation? If the polluter can get off the hook by going into liquidation, that will become standard practice. As soon as any chemical works or any other polluting activity closes down, the structure of the company responsible will be changed so that it goes into liquidation. Those are my questions in relation to the polluter.
Subsection (3) of new Section 78E relates to the transfer of liabilities. What does the Bill really intend by the words,
"the liability … has been transferred directly or indirectly"
to the landowner? That seems desperately vague. For example, does the phrase include or exclude the termination of a lease or licence by the effluxion of time, the termination of a lease or licence by its surrender, or
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the transfer of the freehold for a price which does not make allowance for the liability of pollution? How can the landlord prevent the implied transfer of the liability?
In this context, perhaps I can quote the case of Tilmanstone colliery in Kent. When I was a boy it was owned by Pearson, Dorman, Long. Foul water was pumped out from that deep pit. I remember that it was hot. It was pumped into channels which ran across a field; it steamed. The pollution sank into the ground and affected one of the aquifers being used by the South East Kent water company. The aquifer has never been purified. After the war, the water company installed a pumping station and a seven-mile pipeline to the sea. It pumped and pumped for about three years but simply could not reduce the pollution. In the end the project was abandoned.
Who is responsible for that pollution? Is it Pearson, Dorman, Long? Was responsibility effectively transferred to the National Coal Board? If so, did the National Coal Board successfully transfer the liability to British Coal? If so, has British Coal successfully transferred the liability to the agency, and so on down the line? That is a very important question. I shall come back to it.
The landowner has residual responsibility. I, my colleagues whose names are attached to the amendment, the Country Landowners Association, the National Farmers Union and the CBI, are in agreement that the landowner or occupier should accept his share of the responsibility for pollution where he had knowledge that pollution was taking place and consented to it, or where he benefited financially from the activity which caused the pollution. New Section 78E goes far beyond that. What about the landowner or occupier who is not to blame and who has not benefited? Your Lordships may say, "How can this be'?" I shall give examples; I have divided them into three categories. There is the landowner who could not have known. This reverts to the amendment of the noble Lord, Lord Stanley of Alderley, on fly-tipping. A landowner cannot necessarily know when material is being illegally dumped on his land.
What about the landowner who has a mine driving a gallery 1,800 feet below his property? How can he know? What about the aquifer I was describing in connection with Tilmanstone pit? How can a landowner know that 10 miles away an aquifer is being polluted and that that pollution is drifting under his land? There is also, of course, the question of airborne pollution.
The second category is the landowner who could not prevent the pollution taking place—for example, a landowner who is subject to a compulsory purchase order or who has mining licences granted in respect of the ground under his land. There is also the question of the movement of contamination from neighbouring land.
Finally—an important and desperately difficult issue—what about the situation where the goalposts have been moved? I give an agricultural example because I am a farmer. When I trained in agriculture and for many years thereafter the great guru of British agriculture was Sir George Stapleton. His recommendation was "lay farming" The good guys in agriculture were those who practised lay farming. They

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grew grass and every three or four years ploughed it in, putting fertility and humus back into the soil and thereby producing good crops.
About five years ago we were suddenly told that ploughing grassland was wicked because it was a major contributor to nitrates in the groundwater. All those years I had been doing what I was told to do, what ADAS told me to do and what, I think, I was given subsidies to do. Suddenly, the goalposts were moved. Am Ito be punished for having acted as I did? That is only one example. There are many, and there will be many more. When new forms of pollution are discovered, technology will unearth new problems relating to human health. For example, I am told that the European Union is considering designating coal as a contaminant. That completely changes the ball game as far as abandoned colliery sites are concerned. Who will be responsible for that? It is a real question. Why should the landowner be liable?
On Second Reading the Minister said that the provision in the Bill does not alter the present position under statute and common law as regards the responsibilities of the landowner. I am sure that the Minister has been incorrectly advised. The Bill would, I am advised, greatly extend the existing liability of landowners and occupiers under statute and common law. Furthermore, it removes the defences which presently exist. My Amendment No. 150A reinstates those defences.
In my view, the objective of those drafting the Bill has been to find a scapegoat who could be made to pay if the guilty party could not be found. I am sorry that so few noble Lords are in their places because this is a very important issue. If the House wishes to connive at such injustice I shall seek an opportunity to vote on the issue at Third Reading. In the meantime, I hope that the Government will see the justice of making some change, that they will take away these amendments, consider them, and come back with some help. I beg to move.
The Earl of Lytton: My Lords, I support the amendment, to which my name is attached, and confirm my belief that there is a very substantial point of principle as to how liabilities for contamination can be transferred. Many types of contamination are new phenomena which were unknown a generation ago. Some types of chemicals that we understand now to be contaminants were marketed freely. So it is not surprising that types of land use and refuse disposal techniques involving putting materials into land which may now be regarded as potentially contaminated have produced, in some instances, significant environmental harm. I do not wish to understate that but at the time it was not realised.
Now we have the situation, so eloquently underlined by my noble friend Lord Northbourne, where practices once thought harmless are being called into question. I wrote recently to the Minister with regard to how the principles of caveat emptor and strict liability were to be reconciled. I understand clearly, that the polluter pays—a principle which I support—but I had in mind the desirability of avoiding liability falling on the innocent, which, to my mind, is an equally undesirable aspect.
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I was grateful to the Minister for what I describe as a most revealing reply. It was a genuine attempt to be helpful. Perhaps I may paraphrase what I understood it to say. First, it said that the polluter should not pay twice—I accept that—and that where there had been a valid transfer of land, reflecting the pollution presence, that transaction should be respected. Of course, I understand and accept that too. Then, something more than reliance on caveat emptor might be required where there was a known polluter. Of course, I can accept that principle as well, but there is a grey area where liability may arise out of a normal transfer under what are known as the standard conditions of sale, but where the polluter cannot be identified.
I have difficulty with the phrase "cannot be found". That may be capable of being interpreted in a number of ways: to include those who were in existence once, but are no longer; on the other hand, it may not be concerned with identity alone. This group of amendments seeks to obtain some guidance on those points. For if the polluter should not pay twice how much more important morally is it that the wholly innocent owner or occupier for the time being should be shielded from liability.
By "owner", I do not mean the well-heeled large estate owner so much as the householder, the smallholder, the small businessman, the small farmer. Those are the people who need protection. I wonder whether it is the intention of the Bill that the shirt should be taken off those people's backs for liabilities as regards which, patently, they may be innocent. As the Bill stands, some polluters may get away scot free while innocent parties struggle through the courts to try to clear their names. Worse still, for many of those people who happen to be owners or occupiers it will be pure chance. That cannot be allowed to stand, and I hope that the Minister will he able to give some further guidance on that point.
Baroness Hamwee: My Lords, I support the amendments. I am grateful to the noble Lord for having tabled them. I find some of the concepts contained in the paragraph difficult. English law does not normally recognise the transfer of a liability. It is something the Americans go in for, but the English by and large do not. I accept that this is not the same as attempting to transfer a liability under a contract, for instance, but, nevertheless, there is a culture which has affected the development of the law in this country.
The noble Earl, Lord Lytton, referred to the national conditions of sale. It might be appropriate to allow the customs of sale and purchase of land to take account of the new legislation, and for the provisions to come into effect from a specified date after the Act comes into force so that the provision would not be retrospective, something with which the practitioners would have little way of dealing as a matter of normal course.
Finally, if the noble Lord, Lord Northbourne, brings the matter back on Third Reading, he may like to think not retrospectively but prospectively of some type of long-stop —some long period of time after which some of these provisions may not bite.
Lord Stanley of Alderley: My Lords, this is an important amendment. I should like to ask my noble friend the Minister the same question as did the noble

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Lord, Lord Northbourne: what happens if the polluter is a man of straw? Does the liability then rest with the occupier? Then—this is similar to my previous amendment—can it really be right for an innocent occupier to be responsible in such cases, or in any case? Further—this is my overriding feeling about the whole Bill—it is the cavalier attitude shown towards the innocent bystander (occupier, or whatever he or she is) throughout the Bill that I find most unattractive.
Viscount Ullswater: My Lords, Amendments Nos. I44K, 144L and I44M seek to change the potential liabilities of owners and occupiers.
First, they would remove the liability which would fall under the existing provisions to the current owner or occupier where the original polluter could not be found. That would be a clear departure from the existing position under the statutory nuisance provisions in Section 80 of Part III of the Environmental Protection Act 1990 and under the caveat emptor rule at common law. It would therefore introduce a new exemption from liability for those groups.
My noble friend Lord Stanley of Alderley should refresh his memory as to what Section 80 of Part III of the Environmental Protection Act 1990 provides, because if he did so he would understand that there is an existing liability on owners.
As I have already said in my response to my noble friend Lord Stanley's amendment on liabilities arising from fly-tipping, we are going to restore the existing exemption that the innocent victims of fly-tipping enjoy currently. But the effect of the present amendment in practice would be either that there would be no means of dealing with significant harm in some instances, or it would require the public purse—the taxpayer—to pay to improve the condition of land not currently suitable for the use to which owners are putting it. That would give those owners significant, uncovenanted gains. I do not believe that that would be justified. It is a long-established principle that owners are responsible for the condition of their land, and I believe that that should continue.
My noble friend Lord Stanley and the noble Lord, Lord Northbourne, asked me about the position where the polluter cannot afford to pay. That would not imply that any responsibility would pass to the owner. That would happen only where the polluter could not be found. That might include the case of a company having gone into liquidation. We are considering possible anti-avoidance measures to prevent that route being taken deliberately to avoid liabilities.
The noble Lord, Lord Northbourne, cited also a coal mine in Kent. I am afraid that I do not know the details of the ownership of that coal mine, but where liability as a polluter lay with British Coal, if it did, it would pass to the latter's successors in tale; that is, from British Coal to any successor body, which would normally assume its liabilities with its functions. It was not the Government's intention to create new categories of potential liabilities. However, one area in which that may have been breached is in the case of liabilities arising under these provisions solely as a result of water
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pollution, especially where the contaminating substances may have escaped from one site to another without the knowledge of the owner of the site now affected. The Government are considering that issue. We expect to bring forward an amendment to deal with it at a later stage.
The second aspect of Amendment No. 144K seeks to change the way in which responsibility might transfer from the original polluter to the current owner or occupier. In our debate in Committee, I suggested that that was an area which the Government wished to consider in more detail before bringing forward their own amendments. I can now set out in some more detail the position which the Government believe ought to be reached.
There must, we feel, be some manner of proof that a transfer of responsibilities has taken place. There should be something more than just an assumption that that has happened, relying solely on the principle of caveat emptor. But that leaves the difficult question of whether such a transfer needs to have been provided for expressly in a sale contract. This would, of course, be the effect of these amendments. This is particularly an issue with respect to sales of land which have already taken place. We would expect that, as a matter of good legal practice, future contracts would address this question directly where it is likely to be an issue.
On balance, we believe that there should not be a need for "express" provisions if this is interpreted as an "express" reference to liability for contaminated land rather than as a reference to liabilities arising from the ownership of land. If the terms of an individual contract can be construed as bringing about a transfer of all burdens and responsibilities there does not appear to be any reason why responsibilities associated with contamination need be assumed to have been excluded. Owners are only too happy to accept benefits associated with their land which they had not anticipated at the time of their purchase. We can see no real reason why responsibilities should be treated any differently. On this basis, I would not wish to accept these amendments.
Amendment No. 150A, which was spoken to by the noble Lord, Lord Northbourne, seeks to introduce three specific grounds of appeal against the receipt of a remediation notice, The first of these grounds of appeal would be on the grounds that the "best practicable means" had been used to prevent or counteract the effects of the contamination. Despite a superficial reasonableness, a defence along these lines would run clearly against the polluter pays principle. The Government see no reason to depart from this general principle, which is widely accepted both nationally and internationally, and to pass the costs of remediation on to the taxpayers, who had no chance at all of preventing the contamination occurring.
In practice, the existence of a provision of this kind would tic up almost any attempt to secure remediation in detailed litigation on what precisely had been the supposed best practicable means available at some time in the past. This would be particularly difficult to ascertain where there had been consecutive contaminating activities on a site.

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The issue of this ground of appeal and defence to prosecution may be clouded somewhat by comparison with the defence available under the statutory nuisance provisions. In that regime, "best practicable means" is available in some cases as a defence against prosecution for non-compliance, or partial compliance, with the requirements of an abatement notice. It would not preclude the service of such a notice in the first place, as would be suggested by the current amendment. The spirit of the statutory nuisance defence is already implied in the structure of remediation notices under the contaminated land provisions. The requirements of a notice have to be "reasonable", and we also intend that there should be a ground of appeal on the basis that a requirement is unreasonable.
The second suggested ground of appeal is that of having neither caused nor knowingly permitted the contaminating substances to be in, on or under the land. That would totally disable the provisions passing responsibility to site owners or occupiers where the polluters cannot be found or where responsibilities have been transferred. For the reasons discussed earlier in the debate, the Government would not see that as justified.
The third suggested ground of appeal is that the person could not have reasonably foreseen that the land would become contaminated land. That raises all the difficulties present in the best practicable means defence, in terms of allowing polluters to evade responsibility for their actions and opening up the possibility of excessive litigation. For these reasons, the Government would not accept it. It would also be unworkable as it would be extremely difficult to ascertain whether any particular "harm" arising was reasonably foreseeable and at what point in time the test should be applied where there were a number of contaminants deposited at different times on the site.
That suggested ground of appeal raises difficult questions of comparison with the common law, where the "reasonable foreseeability" test must be satisfied in relation to damage suffered for certain tortious actions. However, the comparison is not apt. Common law actions seek to provide compensation to private parties for specific damage which has occurred. The test of "reasonable foreseeability" relates directly to the question of whether that specific damage was foreseeable. The statutory regulatory regime that we are discussing today is not seeking to provide compensation to individuals, nor is it necessarily tied to specific damage which has occurred. Instead, it is aimed at ensuring that harm to health and the environment can be prevented. For these reasons, the Government believe that them is no necessity for the same manner of provisions to be available.
I hope that, with that long explanation of why the Government are unable to accept the amendments, the noble Lord will withdraw them.
9 p.m.
Lord Williams of Elvel: My Lords, in a throwaway manner, almost as an aside, the Minister has said that he is studying the possibility of a company which is
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going into liquidation being prevented from avoiding liability. How precisely can one do that without rewriting all the company and insolvency Acts?
Viscount Ullswater: My Lords, I have to say, obviously, with great difficulty. The noble Lord knows only too well of the difficulties of limited companies. This is a considerable issue and that is why we are studying it most carefully.
Lord Northbourne: My Lords, I am very disappointed by the Minister's reply. He did not address the fact that this Bill enlarges and extends the liability of landowners under common law and statute as it stands at present. We must be absolutely clear about the matter. By Third Reading I shall have chapter and verse about the way in which that is happening. I do not mind whether it is difficult to investigate the problem. The courts are doing so at the moment in respect of statute and common law. Why suddenly can they not do so in respect of this Bill? I understand that it is not true to say that this Bill does not significantly enlarge the liability of landowners. If that is what the House wishes, so be it. I believe that the House may well see the injustice of the proposals. I intend to return to the matter at a later stage, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 144L and 144M not moved.]
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 145:
Page 51, line 20, at end insert:
("() Subsection (3) above shall not apply where compulsory powers existed to compel the owner or occupier to grant any Interest in the land related to the activity or activities which gave rise to the contamination of the land, whether or not such powers were used.").
The noble Lord said: My Lords, it is inappropriate for the Government to impose a liability for contaminated land where compulsory powers exist. There is no provision to protect an owner from the consequences of a remediation notice where he has been obliged to grant rights on his land for coal extraction, a pipeline or other purposes because compulsory powers have been used or, more importantly, threatened. The existence of compulsory powers is an under-rated weapon in the hands of the acquirer. Their mere existence is sufficient to secure rights by the Government with what they believe is agreement but it is not really agreement.
It is surely wrong that a person should be put at risk to the extent that he is liable for all the costs of remediation if the acquiring company or body no longer exists or cannot be found. That is more probable now, given the activities of the private sector companies with the benefit of compulsory powers. Moreover, what happens if the company which is responsible has gone bust?
I was fascinated by my noble friend's remarks in regard to those problems on the last amendments, as was, I gather, the noble Lord, Lord Williams. I shall be interested to see how the Government intend to deal with that problem because it affects us all.
I suppose that the problem revolves around compulsory rights orders. Somehow or other I feel that my noble friend would prefer not to discuss such orders. They received a rather rough reception in your Lordships' House. Perhaps he would prefer to accept the amendment in lieu. I beg to move.
Viscount Ullswater: My Lords, Amendment No. 145 seeks to exempt owners where land has been contaminated as a result of activities for which compulsory powers existed to compel owners or occupiers to grant interests in their land.
Essentially, we are considering here the issue of compulsory rights orders, as my noble friend indicated. Your Lordships debated the subject at some length in the last Session when considering the Coal Industry Bill. The anxiety underlying the amendment is that landowners may find themselves facing liabilities for contamination caused by activities which they never wanted on their land and which took place only as a result of the exercise of compulsory powers. While I understand that anxiety, I do not feel that it is justified not that an exemption from liability is needed or warranted. In particular, I do not believe that an exemption would be justified merely on the ground that compulsory powers existed, regardless of whether or not they had been used in an individual case.
The existing procedures for the granting of CROs already provide two particular safeguards for the position of landowners and occupiers. First, the planning authority will require appropriate restoration and aftercare as conditions of its planning consent. Those will be enforced by the planning authority in the normal way. Secondly, compensation arrangements include provision for the landowner to recover his reasonable expenses for any works necessary to bring the land back to its previous condition.
Taken together, those measures should ensure that any liabilities in respect of contaminated land which might result would fall to the operator and not to the landowner. The requirement on the planning authorities and relevant licensing authorities to satisfy themselves as to the financial capacity of the licence applicants to meet the restoration conditions should provide further safeguards. Having given my noble friend that reassurance, I hope that he will withdraw the amendment.
Lord Stanley of Alderley: My Lords, I will withdraw it, but we return to the same question, and I see that the noble Lord, Lord Williams, is smiling. What happens if the operator has gone walkabout or bust and is no longer there? In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay moved Amendment No. 145A:
Page 51, line 33, at end insert ("in accordance with section 78R below").
The noble Earl said: My Lords, my noble friend spoke to this amendment when he moved Amendment No. 128C. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 145E and 145C not moved.]
Lord Northbourne Lord Northbourne moved Amendment No. 145D:
Page 51, line 33, at end insert:
("() In the case referred to in paragraph (a) of subsection (4) above, the guidance shall include provision to ensure that liability is shared between the persons in proportion to their responsibility for the contamination.").
The noble Lord said: My Lords, the noble Lord, Lord Peyton of Yeovil, has asked me to speak also to his amendment, as mine is roughly the same as his amendment. The object is to avoid an extremely unfortunate situation which will undoubtedly arise if such an amendment is not accepted; namely, that there will be a cat fight between the various parties responsible for pollution.
In discussing an earlier amendment I asked the noble Viscount which body the local authority will go for as a matter of choice from among a selection of potential polluters. If the answer is that the local authority can go for whichever it likes, and then that body has to take all the others involved through the courts to achieve an equitable solution, it will be nothing but a feast for the lawyers. It seems to me that the responsibility should be with the local authority to allocate responsibility for pollution in proportion to the contribution which was made to the pollution by each of the polluters. I beg to move.
The Earl of Lytton: My Lords, I should like to speak briefly in support of the amendment. It seems to me that equity demands that there should be a proper apportionment and that we should not follow what is commonly described as the American pattern under the "superfund" where vast sums of money seem to have been spent in pursuing various people who, in turn, then pursue others. The purpose of the Bill is surely to ensure that maximum resources are applied to cleaning up the environment for the benefit of the present and future generations. I believe that the amendment merits careful consideration.
9.15 p.m.
Viscount Ullswater: My Lords, Amendment No. 145C and, for that matter, Amendment No. 145D moved by the noble Lord, Lord Northbourne, both seek to insert onto the face of the Bill the requirement that, where two or more persons have caused or knowingly permitted contamination to occur, liability for remediation should be apportioned between them in accordance with their share of responsibility for the contamination.
As I stated in our debate at Committee stage, that principle is fine in so far as it goes. In the situation where different persons have separately contributed to the creation of an overall problem with contamination, it is entirely the right principle to follow. The Government would wish to reject totally any suggestion that liability in those circumstances should be joint and several. However, that principle cannot properly address the question of how to allocate responsibility where different people have had effective control over the same contamination, and its possible effects, in sequence. One person may have "caused" the substances

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to be present, but another person, in "knowingly permitting" them to remain, may have brought about the circumstances under which they came to result in significant harm. In such cases, it may he entirely appropriate for the whole responsibility for remediation to rest on the person with the most recent involvement with the contamination.
However, the amendments before us would not allow a judgment of that kind to be made. On that basis, I would not wish to accept them. Therefore, I would ask the noble Lord to withdraw his amendment.
Lord Northbourne: Yes, my Lords, I will do so. I can foresee considerable difficulties in deciding who will pay and also enormous legal costs being involved. I accept what the Minister said. Accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 145E:
Page 51, leave out lines 34 to 48.
The noble Earl said: My Lords, my noble friend spoke to the above amendment when dealing with Amendment No. 128C. I beg to move.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 146:
Page 52, line 1, leave out ("appears to have") and insert ("has").
The noble Viscount said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 147, 148, 149 and 150. The effect of these technical amendments is to make sure that the basic test of liability for a polluter—someone who has caused or knowingly permitted contaminants to be present—is the same in new Section 78F as it is elsewhere in this part of the Bill. The question should be one of fact, and not of appearance. Following an amendment moved in Committee by the noble Lord, Lord Northbourne, I undertook to bring forward the amendments. I am happy to be able to do so now. I beg to move.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendments Nos. 147 to 150:
Page 52, line 16, leave out ("appears not to have") and insert ("has not").
Page 52, line 23, leave out ("harm, or") and insert ("significant harm is being caused, or there is a significant possibility of such harm being caused, or that").
Page 52, line 28, leave out ("appears not to have") and insert ("has not").
Page 52, line 36, leave out ("harm, or") and insert ("significant harm is being caused, or there is a significant possibility of such harm being caused, or that").
Page 52, line 40, leave out ("appears to have") and insert ("has").
Page 53, line 3, leave out ("it appears that").
On Question, amendments agreed to.
[Amendment No. 150A not moved.]
Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 151:
Page 53, line 14, at beginning insert:
("Any aggrieved person, or").
The noble Lord said: My Lords, this group of amendments also relates to the transference from the traditional statutory nuisance regime into the new regime proposed in the Bill. The amendments concern particularly the rights of citizens to achieve an abatement of a nuisance by applying to the magistrates' court to ask for that nuisance to be abated. Of course, that right is abolished by the Bill in that contaminated land is taken out of the statutory nuisance regime, as we have already debated, and is not to be replaced by a similar right for citizens in the new system proposed under the Bill.
The intention of Amendment No. 151 is to provide an equivalent citizens' right within the new clean-up regime. In my view, it would mean that the UK Government would in fact honour commitments in Principle 10 of the Rio Declaration. Amendments Nos. 157 and 158 similarly give an "aggrieved person" the ability to complain to a magistrates' court to require an enforcing authority to act to clean up land in accordance with a remediation notice where the person upon whom it was served has been convicted for not complying with it. Again, in that case, the transference from the previous legislative structure to the present one means that there will be no circumstance in which a local authority can be required to clean up contaminated land. It is my view that there should continue to be a local authority public sector involvement in this activity.
Under the present structure, if an aggrieved citizen applies to the magistrates' court for the abatement of a statutory nuisance from contaminated land the magistrates may order the local authority to abate the nuisance if a person against whom an order was originally made is convicted of failing to comply with a clean-up order. The intention of the amendments is to restore that right.
I believe that as we move into a new structure of environmental protection and of reduction of pollution it is important that we should not destroy existing rights which have worked well, but should increase the rights of citizens to take action to protect the environment. I beg to move.
Viscount Ullswater: My Lords, Amendment No. 151 moved by the noble Lord, Lord Elis-Thomas, would permit an aggrieved person to appeal against a remediation notice served on someone else. The intention is to allow the aggrieved person to ask the court to substitute alternative, possibly more stringent, remediation requirements than were contained in the original notice.
Not only would that be a totally novel approach to appeals; it would also, in our opinion, be entirely unjustified. The proper route by which individuals and companies can seek remedies for harm or nuisance caused to them by other individuals is through private actions at common law.
Enforcing authorities will have regard to statutory guidance in deciding what steps by way of remediation they are to require in any individual case. This will address the task of preventing the occurrence of the harm or water pollution which led to the land being identified as contaminated land, and it will do so in a

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technically robust way. There should therefore be nothing for the supposedly aggrieved person to be worried about, unless he wished to attempt to substitute his judgment of the remediation standards required on the site, replacing the requirements developed by the professional staff in the enforcing authority and the technical approach set out in the statutory guidance. In the unlikely case where an enforcing authority acted unreasonably or ultra vires, an aggrieved person would have the usual remedy of seeking judicial review of the decision taken.
Amendments Nos. 157 and 158 are somewhat different, in that, as the noble Lord indicated, there is a precedent contained in the statutory nuisance provisions in Part III of the Environmental Protection Act 1990 for an aggrieved person having the right to ask a court to order a local authority to act to abate a nuisance. The amendments seek to produce an equivalent effect in these contaminated land powers.
However, despite the apparent precedent in other legislation, the Government do not believe that it would be justified to follow it now. It may be instructive to note that the Department of the Environment is unaware of any cases where this supposed right of individual action has been used to deal with contaminated land.
The Government's intention in bringing forward these provisions and in developing the statutory guidance which will support it is to set up a modem, structured regulatory regime run by technically competent public authorities. This will enable the environmental priorities to be addressed in a systematic and ordered way. Much of this will take place in the way in which local authorities go about inspecting their areas to identify contaminated land, concentrating on the more vulnerable areas. But there will also be a need to allocate resources in terms of money and key staff in a structured way to deal with those sites where the appropriate person is either unwilling or unable to pay for the costs of remediation himself. Allowing what would essentially be freelance regulators to step in to the process and overturn those priorities would serve only to divert the available resources away from the more urgent and serious cases.
With that explanation I ask the noble Lord not to press his amendment.
Lord Elis-Thomas: My Lords, I am grateful to the noble Viscount for his detailed response. I can assure him that it was not the intention of the amendments to set up freelance regulators. On the basis that he intends to set up a modern, structured, regulatory regime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 151A to 154 not moved.]
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 155:
Page 54, line 26, leave out first ("of") and insert ("not exceeding").
The noble Lord said: My Lords, in moving the amendment, it may be for the convenience of the House if I speak to Amendment No. 156. Both amendments are designed to give the judiciary some opportunity to
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modify the daily fine. In the Bill as drafted, the daily fine is mandatory. In the light of the difficulties that we have encountered in previous debates on remediation notices, it would seem that the judge should be given some opportunity to modify the fine if he deemed it appropriate. I beg to move.
Viscount Ullswater: My Lords, Amendment No. 155, moved by the noble Lord, and Amendment No. 156 to which he spoke, seek to introduce flexibility into the level of fine applicable for each day on which non-compliance with a remediation notice continues after conviction for the offence. That would depart from similar provisions in Section 80(5) of the Environmental Protection Act 1990 and to maintain consistency we would need to move consequential amendments to a very large number of similar provisions. We would not wish to do that without very good reason. Having said that, I take note of what the noble Lord said. However, I ask him to withdraw the amendment.
Lord Williams of Elvel: My Lords, I hear what the noble Viscount says: "It is here because it is here because it is here, because it is in other enactments and we do not wish to change those other enactments"
. I am not sure that it would not be wise to consider all the other enactments. The position seems slightly absurd. However, I see that we shall not get far. However, I hope that the noble Viscount will consider the issue, and perhaps when the Bill reaches another place, it might consider the matter seriously. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 156 to 158 not moved.]
Lord Northbourne Lord Northbourne moved Amendment No. 158A:
Page 55, line 12, at end insert ("and whether having regard to all the circumstances it is reasonable to recover the costs from the person.").
The noble Lord said: My Lords, in moving Amendment No. 158A, I also speak to Amendment No. 158B. Although they are on slightly different points, the amendments are intended to be helpful suggestions of ways in which the Minister might be able to help a little on the question of liabilities of landowners.
Amendment No. 158A applies the test of reasonableness regarding whether a local authority which undertook work because it was not undertaken by the person on whom the notice was served should then seek to recover the cost. I hope that the noble Viscount will be able either to accept the amendment or to give me an assurance that the test of reasonableness is already implicit in the wording of the Bill.
Amendment No. 158B is an important suggestion. There is a very real danger that the cost of remediation in cases of contamination will impose liabilities upon the person responsible far in excess of the value of the land. That may be appropriate where that person has recklessly allowed pollution to take place. However, let us take the example of someone who inherits a piece of land. Let us consider the classic widow or orphan who has a reasonable competence and a reasonable level of income. Auntie Joanna leaves her a piece of property which subsequently turns out to be contaminated. That

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person might suddenly find herself wiped out, liable for millions of pounds of rehabilitation. She might have her whole assets removed, and be left destitute.
That clearly is not the intention of the Act. I believe that such a situation should be provided for. If we are talking about the innocent landowner, it seems reasonable that the amount of liability for remediation should be limited at least to the amount that he or she can recover from the sale of the land after remediation has been carried out and the liability should not impinge on such other assets as he or she has. I beg to move.
The Earl of Lytton: My Lords, I support the amendment, and perhaps I may add a little to the example of the widow or orphan. How would the Minister see the situation if, on inspection, the legacy were found to be contaminated land and the prospective beneficiary repudiated the legacy? What would happen then? Would the executor be responsible? What is the extent of the executor's liability? Is it the extent of the assets or how is it measured? That important point should be covered, otherwise the situation becomes like the National Lottery in reverse: the first prize for getting all the numbers in a row is complete financial ruin. I do not believe that it should he allowed.
9.30 p.m.
Viscount Ullswater: My Lords, both these amendments would change the provisions relating to the recovery of costs by an enforcing authority where it has acted on the default of the recipient of a remediation notice. Amendment No. 158A would require an enforcing authority to have regard to whether, in the circumstances, it was "reasonable" to seek to recover its costs.
It is not at all clear on the face of the amendment in what circumstances it might be held to be unreasonable to recover costs, except where questions of hardship were involved. That would potentially leave the question open to considerable doubt and legal argument on individual cases. This would itself be undesirable, but it might also open up the opportunity for the legitimate recipients of remediation notices to attempt to argue that they should not really have been held responsible and should not have received the notice. The Government could not accept the creation of such a back-door attempt to undermine the basic liability regime set out in these provisions.
I would point out that, in any case, the power to recover costs given to enforcing authorities is discretionary, and the Government would expect them to act reasonably in this respect, within the wider sense of the term. I would also point out that in preparing a remediation notice in the first place the enforcing authority can only specify things which are reasonable, having regard to the cost which is likely to be involved and the pollution in question.
Amendment No. 158B would seek to limit, to the value of the remediated land, the potential liability of any owner or occupier who was deemed to be the appropriate person to receive a remediation notice on account of his ownership or occupation. While
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calculations of that kind might he relevant in cases of potential hardship among home owners, they would not necessarily be appropriate in all cases.
The first effect of a provision of this kind would be to give such persons a potentially major incentive not to comply with the original remediation notice, because their exposure to any recovery of costs incurred by the enforcing authority would be limited. That would be perverse.
The second effect of the amendment would be to shield owners from the potentially negative net value of heavily contaminated land. The Government do not believe that this could be justified as a general principle. Even without having to meet the costs of regulatory requirements, owners in those circumstances would not be able to sell their land, as any purchaser would have to pay the costs of the necessary remedial action before he could seek to redevelop the site, for example. That could create another perverse incentive for owners to seek to be served with remediation notices, so that they could benefit from the limited liabilities they would then face. They would simply fail to comply with the notice and the public purse would then effectively bear the balance of the cost of any works in excess of the value of the site. The Government do not believe that the amendments would provide workable formulae for the recovery of costs, and would not wish to accept them.
To address the point put to me by the noble Earl, Lord Lytton, if a beneficiary repudiates a legacy, then I believe the legacy would pass to the next beneficiary named in the will, and maybe eventually to a residual beneficiary. But we are taking matters quite far in this context. Having explained where the Government stand on these amendments, I hope that the noble Lord will withdraw them.
Lord Northbourne: My Lords, the noble Viscount has rejected my efforts to produce some helpful suggestions. I am afraid that I have to accept that the problem is the injustice of the basic liability regime to which he referred; and I am afraid it is on that issue that we shall have to continue to attack. The injustice to the innocent landowner is, in my estimation, monstrous. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 158B not moved.]
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 159:
Page 56, line 29, at end insert:
("() An enforcing authority shall, for the purpose of enforcing in Scotland a charge under this section, have all the same powers and remedies under the Conveyancing and Feudal Reform (Scotland) Act 1970 as if it were a heritable creditor in possession.").
The noble Lord said: My Lords, in moving this amendment, it may be for the convenience of the House if I also speak to Amendment No. 160.
This amendment was suggested to us by the Law Society of Scotland. It would allow a local authority to create a charging order in order to obtain a security to recover costs incurred by the authority in carrying out the requirements of the remediation notice. It is clear to us that charging powers for Scottish local authorities require to be on all fours with their English counterparts. The amendment achieves this aim by enabling Scottish

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authorities to create a security for the purposes of recovering those expenses. I hope very much that the Government will see the merit of this argument. I beg to move.
The Earl of Lindsay: My Lords, at present the Bill makes provision in new Section 78J for a local authority in England and Wales to serve a charging notice on any person who fails to comply with any of the requirements of a remediation notice, and where the authority has incurred expenditure in carrying out work which that person should have done. Amendments Nos. 159 and 160, moved by the noble Lord, Lord Williams, would seek to introduce a similar system in Scotland.
I understand that the existing conveyancing practices in Scotland do not include the use of charging notices of this kind, and that the introduction of such a system would require fundamental changes to be made to the conveyancing system. I see no advantage in pursuing such changes and believe that the existing mechanisms under Scots law for recovering sums due are indeed adequate. I am therefore content that the Scottish local authorities should seek recovery through the courts of expenditure incurred under this section. I hope that, with that explanation, the noble Lord will withdraw his amendment.
Lord Williams of Elvel: My Lords, I am grateful to the noble Earl. His opinion obviously differs from that of the Law Society of Scotland. All I can do in my ignorance is to report what he said to the Law Society of Scotland and take the society's view. I hope that on his side he will check what he said with the lawyers in the Scottish Office and make sure that he is right. We shall possibly have to fight the matter out at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 160 not moved.]
Lord Coleraine Lord Coleraine moved Amendment No. 160A:
Page 57, line 24: at end insert:
(" (e) any information provided by the appropriate person or by the owner or occupier of land for the time being of action taken or information obtained pursuant to a remediation statement or remediation notice.").
The noble Lord said: My Lords, new Section 78L will provide that,
"Every enforcing authority shall maintain a register containing prescribed particulars of or relating to",
such matters as remediation statements and remediation notices. My noble friend has already replied in relation to an amendment moved by the noble Lord, Lord Northbourne, that it is not possible to require authorities to give certificates of compliance with remediation notices. Presumably one could not expect them to put anything on the register to say that an appropriate person had complied. On the other hand, the bare facts on the register will tend to make land unmarketable. This amendment is intended to alleviate that situation by providing that the appropriate person or the landowner may give details of how he has complied with a remediation notice and that those details will be entered on the register. It seems to me that that goes some way to meeting the points so reasonably made by the noble
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Lord, Lord Northbourne, earlier this evening. I hope that my noble friend can be encouraging on this occasion. I beg to move.
Viscount Ullswater: My Lords, Amendment No. 160A, moved by my noble friend Lord Coleraine, is close to the Government's desired solution for further information which might be included on the register. This is a point to which, as my noble friend indicated, I replied in a positive way when replying to an amendment of the noble Lord, Lord Northbourne. It would enable the recipient of a remediation notice, or the owner or occupier of the land where that is different, to have an opportunity to add his own information to the register of regulatory actions describing what has been done in pursuance of a remediation notice. Indeed, but for some minor concerns with the precise wording of the amendment, I should have been minded to accept it. Therefore, I hope that my noble friend will forbear and await a government amendment on this matter. Having said that, I hope that he will consider withdrawing the amendment.
Lord Coleraine: My Lords, I am very glad to learn that I correctly sensed the way that the wind was blowing when my noble friend replied to the amendment of the noble Lord, Lord Northbourne. I am happy to beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Viscount Ullswater Viscount Ullswater moved Amendment No. 161:
Page 57, line 29, at end insert:
("() It shall be the duty of each enforcing authority—

(a) to secure that the registers maintained by them under this section are available, at all reasonable times, for inspection by the public free of charge; and

(b) to afford to members of the public facilities for obtaining copies of entries, on payment of reasonable charges;

and, for the purposes of this subsection, places may be prescribed by the Secretary of State at which any such registers or facilities as are mentioned in paragraph (a) or (b) above are to be available or afforded to the public in pursuance of the paragraph in question.
() Registers under this section may he kept in any form.").
The noble Viscount said: My Lords, during the debate in Committee on this Bill, in response to an amendment moved by the noble Lord, Lord Carmichael of Kelvingrove, I confirmed that the registers of regulatory action to be kept under Section 78L were intended to be open to public inspection. The amendment appeared in the Marshalled List. I am not sure whether the noble Lord moved it, but I certainly took note of it.
Amendment No. 161 seeks to make that point explicit by requiring that the registers maintained by the various enforcing authorities should be available for public inspection free of charge and that facilities should be provided for the public to make copies of entries on payment of reasonable charges. The provisions are in common form with equivalent provisions relating to regulatory registers elsewhere in the Environmental Protection Act 1990. Given that both the noble Baroness, Lady Hilton, and the noble Lord, Lord Elis-Thomas, moved similarly worded amendments, I hope that your Lordships will feel able to accept the wording of my amendment.
However, my amendment goes somewhat further, in that it also provides for the Secretary of State to prescribe places at which the registers and facilities should be available to the public and permits the registers to be kept in any form. That is in common form with amendments to the other register provisions in EPA 1990 which are being made in Schedule 18 to the Bill. I hope that these will be equally acceptable.
Unfortunately, we have not yet been able to produce the amendment that I promised on the inclusion of further information on the registers relating to actions undertaken by the appropriate person to comply with the terms of a remediation notice. However, I can confirm that it is still our intention to do that at a later stage. I beg to move.
Lord Carmichael of Kelvingrove: My Lords, I thank the Minister. I am grateful to him. I remember moving the amendment and gave the example of the registry house in Edinburgh, where one can go and obtain copies. I am glad that the Minister has come just about as far as we expected. I thank him for that.
On Question, amendment agreed to.
[Amendment No. 162 not moved.]
[Amendment No. 163 had been withdrawn from the Marshalled List.]
[Amendment No. 163A not moved.]
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 164:
Page 58, line t7, at end insert:
("Power of enforcing authority to vest land in itself.

.—(1) Where no appropriate person can be found after diligent enquiry the enforcing authority may execute a declaration vesting the land in itself.

(2) The Secretary of State may by regulations specify the form and content of the notices announcing the intentions of the enforcing authority to make such declaration, to be exhibited publicly in such places and at such minimum period as he prescribes prior to the execution of a declaration under subsection (1) above.

(3) The enforcing authority may thereupon carry out any act by way of remediation, and may make such provision for the use of the land as it determines to be in the public interest, and may for that purpose enter into such arrangements with any other person as it deems necessary.").

The noble Baroness said: My Lords, we come again to amendments which we did not move at Committee stage owing to the lateness of the hour. Since then, I have exchanged letters with the Minister and I am grateful to him for his detailed response to the points I put to him on this matter.
This is an attempt to provide local authorities with the necessary power and means to develop town centres. It is in line with government policy, as most recently expressed in the document dealing with out of town shopping centres, which said that the Government desired to revitalise town centres. There are many areas of our towns and cities which continue to lie derelict and are wastelands because of old industrial processes that have been carried out there. Amendment No. 164 attempts to deal with what are called orphan sites, where the owners can no longer be traced. It will give local authorities a simple means to adopt them. At present
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there are complicated processes to enable local authorities to carry this out, but this will provide a simple statutory means to enable local authorities to take charge of such sites, include them in their structure plans and develop them.
Amendment No. 167 gives local authorities the means whereby they can develop such sites in consortia with business, central government and so on. As the Minister has said, the Government provide some funds to develop city centres under the urban regeneration agency, English Partnerships and various forms of city regeneration. But such measures are patchy and some are dependent upon competitions. That always seems to be a very strange way to ensure that we develop our cities. For example, City Challenge has dealt with some of the problems that are open to more entrepreneurial solutions but may not have dealt with those areas that are so derelict and depressed that they cannot put in a decent bid. Competition may work against cities which are in most need.
We are concerned that it is much easier for developers to adopt greenfield sites, where they do not have to clear away historic pollution and where access is easier. There are all sorts of reasons why they prefer to adopt greenfield sites rather than what are called brownfield sites. This amendment is an attempt to provide a framework and means whereby local authorities can regenerate cities and towns and relieve some of the pressure on the countryside, which is part of what any environment Bill should attempt to address. I beg to move.
9.45 p.m.
Baroness Hamwee: My Lords, it is unfortunate that we come to this so late. I merely add my voice to what has been said by the noble Baroness. Public expectations have turned around quite remarkably over the past few years. There is much greater understanding of the need to develop city centres and the jeopardy in which the non-development of city centres puts greenfield sites. Clearly, the Government recognise this, though, sadly, in the case of out of town retail centres, for example, perhaps too many applications have flowed under the bridge. We shall see. However, the aspirations and the means are still a long way apart. I support the amendment as an attempt to bring them closer together.
Viscount Ullswater: My Lords, Amendment No. 164, moved by the noble Baroness, Lady Hilton of Eggardon, would give a local authority power to vest contaminated land in itself where there was no person upon whom a remediation notice could be served. Although the total number of sites where that circumstance would occur is probably very small, the Government accept that without some available procedure a local authority will otherwise be unable to exercise its duties to secure the remediation of those sites. However, land may be acquired compulsorily by local authorities for many different purposes under a range of powers. If there is no specific compulsory purchase power, local authorities may also acquire land compulsorily under Section 121 of the Local

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Government Act 1972 for the purposes of many of their statutory functions which involve the holding or provision of land.
When an authority has been authorised to use compulsory purchase powers but the owners are unknown or untraceable, the authority may serve the relevant statutory notices by leaving them at the site. It may also pay compensation into court and vest land in itself by executing a general vesting declaration. Alternatively, it may pay compensation into court and execute a deed poll, after which the land vests in the authority.
Amendment No. 167 would give a local authority an enabling power to draw up plans for contaminated land in its area for the purposes of securing its return into effective use. The Government are certainly keen to see contaminated land brought back into effective use. In support of that objective, we have made available considerable sums of public money—in the order of £250 million a year—to support regeneration through dealing with land.contamination. This has been provided both to local authorities through, as the noble Baroness said, derelict land grant, and also through city grant and the work of the urban development corporations, Scottish Enterprise and the Welsh Development Agency. Since the start of the current financial year, English Partnerships has also been in full operation, and it recently announced details of its new investment fund which will replace the city grant and derelict land grant programmes.
Local authorities already have statutory powers to consult and to make plans for regeneration purposes, particularly as part of their development and planning control powers. In London and the metropolitan areas, councils produce unitary development plans setting out their policies, including those aimed at the improvement of the physical environment. Outside those areas, the district councils prepare local plans within the framework of county level structure plans; authorities are under a duty to include policies in respect of the improvement of the physical environment in their structure plans.
Planning Policy Guidance Note PPG12, Development Plans and Regional Planning Guidance, explicitly refers in this context to policies aimed at reclaiming contaminated and derelict land so that it can be brought back into use. Further guidance for local planning authorities on framing development plan policies and on controlling the development of contaminated land is set out in PPG23, Planning and Pollution Control. The Government do not therefore believe that the amendment is necessary. Having said that, I hope that the noble Baroness will withdraw her amendment.
Baroness Hilton of Eggardon: My Lords, it is disappointing that we have not had a more favourable response to the amendments. The local authorities feel, as I do, that there are insufficient powers and means for dealing with contaminated sites in town centres. We are therefore disappointed by the Government's response. However, I do not intend to press the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Ullswater Viscount Ullswater moved Amendments Nos. 164A to 164D:
Page 58, line 22, leave out from beginning to ("Part") in line 24 and insert:

("(a) significant harm is being caused or there is a significant possibility of such harm being caused, or

(b) pollution of controlled waters is being, or is likely to be, caused, this").

Page 58, line 27, leave out ("harm or") and insert ("significant harm is being caused, or there is a significant possibility of such harm being caused, or that").
Page 58, line 32, leave out ("harm, or") and insert ("significant harm is being caused, or there is a significant possibility of such harm being caused, or that").
Page 58, line 47, after ("(a)") insert ("significant").
The noble Viscount said: My Lords, I spoke to these amendments with Amendment No. 128C. I beg to move.
On Question, amendments agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 165:
Page 59, line 9, at end insert:
(""Application to the Isles of Scilly.

78Q.—(1) Subject to the provisions of any order under this section, this Part 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 Part 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—

(a) make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and

(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.".").

The noble Viscount said: My Lords, this is a technical amendment to ensure that we would be able to provide for the contaminated land provisions to be applied to the Isles of Scilly after consultation with the Council of the Isles of Scilly. If we did not have this power, it could result in there being no legislation in force covering contaminated land applicable in the isles and in there not being appropriate powers to make any necessary modifications. I think noble Lords will agree that to proceed on this basis to reflect the particular institutional arrangements in place on the islands is the right thing. I beg to move.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 165A:
Page 59, line 9, at end insert:
("Supplementary provisions with respect to guidance by the
Secretary of State.

78R.—(1) Any power of the Secretary of State to issue guidance under this Part shall only be exercisable after consultation with the appropriate Agency and such other bodies or persons as he may consider it appropriate to consult in relation to the guidance in question.

(2) A draft of any guidance proposed to be issued under section 78A(2) or (8A), 78B(1A) or 78E(4) above shall be laid before each House of Parliament and shall not be issued until

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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 later of the two days.

(3) If, within the period mentioned in subsection (2) above, either House resolves that the guidance, the draft of which was laid before it, should not be issued, the Secretary of State shall not issue that guidance.

(4) In reckoning any period of 40 days for the purposes of subsection (2) or (3) 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.

(5) The Secretary of State shall arrange for any guidance issued by him under this Part to be published in such manner as he considers appropriate.".").

The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 128C. I beg to move.
On Question, amendment agreed to.
Lord Crickhowell Lord Crickhowell moved Amendment No. 166:
Page 59, line 9, at end insert:
(""Default by local authority.

.— (1) If the, Secretary of State is satisfied that a local authority has failed in any respect to discharge any function under this Part which it ought to have discharged, he may make an order declaring the authority to be in default.

(2) The failure to discharge any such function may be a failure in a class of case to which the function relates or a failure in a particular case.

(3) An order made under subsection (1) above which declares an authority to be in default may, for the purpose of remedying the default, direct the authority ("the defaulting authority") to perform any function specified in the order (whether in relation to a class of case or a particular case) and may specify the manner in which and the time or times within which the function is to be performed by the authority.

(4) If the defaulting authority fails to comply with any directions contained in such an order the Secretary of State may, instead of enforcing the order by mandamus, make an order transferring to himself any function of the authority specified in the order, whether in relation to all the classes of case to which the function relates or to such of those classes or, as the case may be, such particular case as is specified in the order.

() Where any function of a defaulting authority is transferred under subsection (4) above, the amount of any expenses which the Secretary of State certifies were incurred by him in performing the function shall on demand be paid to him by the defaulting authority.

(6) Any expenses required to be paid by a defaulting authority under subsection (5) above shall be defrayed by the authority in like manner and shall be debited to the like account, as if the functions had not been transferred and the expenses had been incurred by the authority in performing them.

(7) The Secretary of State may by order vary or revoke any order previously made by him under this section.

(8) An order transferring any functions of a defaulting authority may provide for the transfer to the Secretary of Slate of such of the property, rights, liabilities and obligations of the authority as he considers appropriate; and where such an order is revoked the secretary of State may, by the revoking order or a subsequent order, make such provisions as he considers appropriate watt respect to the property, rights, liabilities and obligations held by him for the purposes of the transferred function.

(9) Any order under this section may include such incidental, supplemental and transitional provisions as the Secretary of State considers appropriate.

(10) This section shall not apply to Scotland.".").

The noble Lord said: My Lords, when my noble friend Lord Mills moved a similar and related amendment in Committee it was strongly resisted on the perhaps understandable ground that it appeared to be an attempt to allow the agency to take over the functions properly assigned to local authorities. My noble friend was aiming to ensure that, if for any reason local authorities failed to carry out the functions effectively, there was a fall-back position.
This amendment replaces the original attempt to transfer the responsibility to the agency with a proposal that we should place the default power with the Secretary of State. There is nothing very original about that because it is a frequent provision in a whole range of Bills. When speaking on the last occasion about this matter, my noble friend referred to the powers under the statutory nuisance provisions in Part III of the Environment Protection Act to deal with the problems posed by contaminated land. He pointed out that those powers were extensively used.
What he did not point out, although it seems relevant, is that there are default powers as regards the statutory nuisance provisions under Part III of the Environment Protection Act. I suppose it can be argued that local authorities have used those statutory nuisance powers extensively partly because there is a default power behind them. My noble friend's remarks can be found in the Official Report of 31st January at col. 1437.
I remain convinced that the Bill should include a default power, not because of any general failure on the part of local authorities in the past, but in recognition of the fact that, for a variety of reasons such as scarcity of resources and specialist expertise, there might be particular difficulties at some sites which would prevent local authorities acting effectively. Earlier this evening we debated an amendment on special sites. If my noble friend introduces an amendment at a later stage that picks up that special site provision effectively, I suppose that that will slightly weaken the requirement for default powers to go to the Secretary of State.
The case is strong and the form of provision is found in other administrative statutes. The exercise of default powers by the Secretary of State would be discretionary; the local authority would have an opportunity to comply with any directions given by the Secretary of State and only if the local authority then failed would the Secretary of State have to act. It is a reasonable proposal and, in view of the fact that the original suggestion has been modified, I hope that my noble friend may feel able to accept it. I beg to move.
Baroness Hilton of Eggardon: My Lords, I oppose this amendment. Naturally, the local authorities do not wish to be placed in a subservient position to the agency. I note that there is no suggestion that local authorities might be able to suggest that the agency was acting in default and that the Secretary of State should take over. It is merely local authorities which are viewed with suspicion.
The amendment is also unnecessary in the sense that it is the agency and not local government which has the responsibility for taking action as regards pollution from contaminated land to controlled waters. Moreover, local

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government has a good record in managing and remediating contaminated land. In the current year, for example, nearly £12 million has been made available by the Department of the Environment for supplementary credit approvals for contaminated land. Councils have bid in excess of £37 million, so it is clear that they are active in the area at present. There is no suggestion that they are lagging or not doing the appropriate things.
Moreover, the amendment threatens the integrated strategic approach to contaminated land which is laid down in the Bill. If contaminated land is to be dealt with in a strategic fashion, it is essential that there should be a partnership between local authorities and the agency. The local authorities should not have constantly to look over their shoulders and wonder whether they are going to be reported to the Secretary of State for not having carried out appropriate functions. It is essential that they work together as equal partners.
The understanding in the Bill is that contaminated land is essentially a local problem which requires local identification and management, but according to guidance issued by the agency. Such a partnership cannot survive or prosper if either of the partners believes that the other one cannot be trusted and must be placed in a subservient position in relation to them.
The agency is the best organisation to work with local government in determining appropriate standards and cannot, of course, be in a position to undertake the work itself. If the agency attempts to intervene over particular cases or sites by suggesting that the matter is not appropriate for local government, that will undermine the whole strategy which the authorities have carefully developed to cover their entire areas. For that reason alone, the amendment is misguided.
10 p.m.
Viscount Ullswater: My Lords, Amendment No. 166, which has been moved by my noble friend Lord Crickhowell, would enable the Secretary of State to declare a local authority to be in default for failing in any respect to discharge a function, to direct that local authority to carry out a function and, if it fails to comply with such a direction, to transfer the relevant functions to himself and recover his expenses in carrying out that function from the local authority.
My noble friend tabled an amendment in Committee with a similar intent, but which would have allowed a transfer of functions to the agency as opposed to the Secretary of State. The current amendment is, on that basis, better than the earlier version. However, I agree with the noble Baroness that it is still unnecessary, and undesirable.
There is no evidence that local authorities will fail significantly to exercise their functions under the powers. In any case, there is an argument that if they do fail, this should properly be a matter for local political judgments and remedies. The national report on the state of contaminated land which the agency will produce will also potentially reveal where any individual local authorities are doing little to exercise their function. To that extent, it would serve as a shaming mechanism.
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It also gives the Secretary of State the power to make an order transferring any local authority's functions to himself and to recover his costs incurred in carrying out the function from the relevant authority. I do not consider it appropriate to transfer the functions of an elected local authority directly to central Government in that way. Therefore, I cannot approve the amendment and I ask my noble friend to withdraw it.
Lord Crickhowell: My Lords, I suppose that in some ways we should welcome the Government's new-found concern for the independence and freedom of local government. If that is the case, I wonder why it was as recently as 1993 that default provisions were introduced into the Clean Air Act and why they exist in Part III of the Environmental Protection Act. However, having made my point and in the hope that my noble friend is right and that local authorities will always perform their functions splendidly, I do not intend to press the amendment tonight. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 167 not moved.]
Clause 55 [Abandoned mines: England and Wales]:
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 167A and 1678:
Page 60, line 46, leave out from ("that") to end of line 5 on page 61 and insert ("any land will, in consequence of the abandonment, become contaminated land, within the meaning of Part IIA of the Environmental Protection Act 1990,").
Page 61, leave out lines 9 and 10.
The noble Earl said: My Lords, my noble friend spoke to these amendments with Amendment No. 128C. I beg to move.
On Question, amendments agreed to.
Clause 56 [Abandoned mines: Scotland]:
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 167C and 167D:
Page 63, line 15, leave out from ("that") to end of line 22 and insert ("any land will, in consequence of the abandonment, become contaminated land, within the meaning of Part IIA of the Environmental Protection Act 1990,").
Page 63, leave out lines 26 and 27.
The noble Earl said: My Lords, my noble friend spoke to these amendments with Amendment No. 128C. I beg to move.
On Question, amendments agreed to.
Clause 57 [Amendments to sections 89 and 161 of the Water Resources Act 1991]:
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 168:
Page 63, line 38, after ("apply") insert ("to the Coal Authority or").
The noble Baroness said: My Lords, we discussed at length earlier the problems of the pollution of water due to mines in general. This group of amendments seeks to address specifically the problems of water pollution from coal mines. It seeks to place the responsibility for dealing with it quite specifically on the Coal Authority.
When I moved these amendments in Committee, I did so with the aim of seeking an effective and lasting solution to this particular problem. This subject was addressed last year during the passage of the Coal Industry Bill, and the noble Lord, Lord Strathclyde, made various statements to the effect that such mine water pollution would be the responsibility of the Coal Authority. He said:
"We do, of course, understand the concerns about the threat of pollution related to mine closures and the related concerns about the legal framework applicable to abandoned mines".—[Official Report, 26/4/94; col. 539.]
The noble Lord, Lord Strathclyde, stated last year that the Coal Authority will become the owner of all abandoned mines and will take on the responsibilities that go with the ownership of that property.
These amendments seek to place that responsibility on a statutory footing, and to bring the Coal Authority in line with other industrial sectors with regard to trade effluence.
The Minister responded to these amendments in Committee and said that all would he resolved. He said:
"The Government will expect [the Coal Authority] to go beyond the minimum standards of environmental responsibility which are set by its legal duties".—[Official Report, 26/4/94; col. 541.]
I hope that the Minister will clarify what those specific legal duties are, and in what way the Coal Authority will go beyond the minimum standards of environmental responsibility.
If it means, however, that the Coal Authority will be expected to do no more than was done by British Coal, then we can be certain that the pollution problem will worsen. The situation that exists today is clear enough testimony to the failure of British Coal in that role over the past 50 years since nationalisation. We know that there are already 150 miles of polluted rivers and streams in England and Wales, and a further 100 miles in Scotland.
The intention of the amendments is to give the Coal Authority the legislative tools that it needs. It does have sufficient finances, one would imagine, because the Government tell us that £1 billion was raised from the sale of the coal industry, and that a further £5 billion is expected from the sale of British Coal's substantial land and property portfolio. Therefore, the money is available to support the statutory duty which these amendments seek to impose on the Coal Authority.
In those circumstances, what are the statutory duties of the Coal Authority with regard to the coalfield environment? In what ways, specifically, do the Government expect the Coal Authority to go beyond its statutory environmental duties? What funding does the Coal Authority receive to deal with minewater pollution?
Finally, in view of the large sums of money that the Coal Authority will receive from the sale of its various assets and land, is it intended that some of those financial resources shall he devoted to dealing with the problem of minewater pollution? I beg to move.
Lord Stanley of Alderley: My Lords, I have some sympathy, to say the least, with the amendment, although, as I understand it, the amendment would mean
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that the Coal Authority would accept the first responsibility for polluted minewater, whereas I believe that the first responsibility should be on the polluter. Maybe I am wrong about that, but that is how I see it. Therefore I should like to speak to my Amendment No. 169, which follows this and which takes a very similar line.
I raised the problem of innocent occupiers being saddled with the liability for polluted minewater on 31st January. I was given, I am sorry to say, a Sir Humphrey answer—possibly in keeping with the time of the night, which I think was 12.45 a.m.
This amendment would define and protect the innocent landowner, the one who has not been the operator or played any part in the mining activity. My noble friend suggested at col. 1481 that I was trying to protect someone who had sold his interest in the mining operation. With respect, I believe that my noble friend was misinformed. Such a person could not escape liability because of Section 85 of the Water Resources Act 1991.
As the Bill is drafted, innocent owners who find, or are told, that water is percolating through their land into controlled waters are guilty because they knowingly permit it. The polluted water could come from a mine many miles away, particularly—this is likely—as the pumps may be turned off in future in abandoned mines, if that has not been done already. I have to ask my noble friend, as did the noble Baroness, to study carefully the Government's statement on polluted water at cols. 539–542 of the report for 26th April 1994, during the passage of the Coal Industry Bill.
My noble friend Lord Strathclyde then said:
"Once the lease has come to an end the authority will be responsible for the mine as for any other abandoned mines".—[Official Report, 26/4/94: col. 542.]
Unless the Government were being mealy mouthed, that means, to me anyhow, that any pollution caused by an abandoned mine where the owner cannot be traced or is the man of straw about whom we have heard on many occasions—I see the noble Lord, Lord Morris, laughing—will be the responsibility of the Coal Authority.
I hope therefore that my noble friend will accept the amendment, or something like it, or will assure noble Lords that the innocent occupier can never be liable for polluted minewater in which he had no interest flowing across the land.
Lord Northbourne: My Lords, perhaps I may draw the attention of the noble Lord, Lord Stanley, to the danger of polluted minewater flowing under his land, because there is a real danger, now that many shafts are being filled with rock, of polluted water from lower strata coming up and being sucked into aquifers at higher levels. That may be a long-term problem.
Lord Dormand of Easington: My Lords, I support Amendments Nos. 168, 172 and 177 and wish to express my deep and continuing disappointment at the Government's attitude toward the issue. During the debates last year on the Coal Industry Bill we received the clear impression that the Coal Authority would be

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responsible for all discharges from coal mines, and that, in addition, the date of the abandonment of the mines would not be irrelevant.
Can we take it that the seriousness of the effect of minewater pollution is not in dispute? Some of us have on numerous occasions spelt out what occurs when the pumping of minewater ceases. That is not a theory; it has already happened on a small scale in various parts of the country, including County Durham, which I know well. If it were to happen on a large scale, the outcome hardly bears thinking about. On that point, I was extremely surprised by the statement made the Minister earlier this evening—he will correct me if my impression is wrong—that only 1.5 per cent, of mine workings would be affected if pumping were to cease.
I remember that vividly—I hope that I am not doing the noble Lord, Lord Crickhowell an injustice—because when that figure was mentioned, I remember him shaking his head. He is an expert on this subject. He knows the details. I suspect that that figure may be wrong, but perhaps the Minister will comment upon it when he replies. I am bound to say that, even if it is 1.5 per cent, the people affected by that 1.5 per cent, will know what it is all about. I believe that the Minister has seen some of the photographs and diagrams produced by Durham County Council, which have made a big impression on Members of the House who are interested in this issue.
The question therefore is: who is to be responsible under a privatised coal industry? The Government have given a commitment that the responsibilities for British Coal and the historical legacy of mining will be taken on by the new Coal Authority. It would be manifestly unfair if the Coal Authority were to shelter behind the exemption in favour of abandoned mines. Are the Government saying—they certainly seem to be implying—that the problem of minewater pollution has nothing to do with the mining of coal?
During the Committee stage of the Coal Industry Bill, the noble Lord, Lord Strathclyde, said:
"I should like there to be no doubt that so far as water pollution or potential water pollution is concerned the Government will not be content for the authority to rest on the present effect of the exemptions".
The words "will not be content" appear to be pretty strong stuff and clearly mean that more will need to be done. Indeed, the noble Lord, Lord Strathclyde, went on to say that,
"we will expect it go beyond the minimum standards of environmental responsibility which are set by its legal duties in these areas".
Those words make the position even more clear. But there may be a sting in the tail. His next words were, "and to seek the best environmental result which can be secured from the use of the resources available to it for those purposes".—[Official Report 26/4/94; col. 541.]
What if the Coal Authority states at some point that it does not have the resources to deal with minewater pollution? I feel sure that it will, and that may be a legitimate point to make. I confess that I am not entirely sure about the way in which the Coal Authority obtains all its money. What I do know is that the Government have obtained millions of pounds—£1 billion has been
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mentioned on a number of occasions—from the sale of the coal industry and, moreover, have millions more to come from the sale of British Coal Corporation land and other assets. What is to be done with all of that money? We would like to know. Perhaps tonight is an opportune time to be told. I remind your Lordships that in County Durham alone, where all the pits have been closed, pumping costs exceed £1 million per year.
At Question Time last week I said that it was disgraceful that the stocking of coal on the sites of abandoned mines should be permitted because for decades mining communities have had to put up with the dust, dirt and pollution caused by pit heaps. If minewater is allowed to pollute former mining areas that would be yet another addition to the degradation of those areas.
Coalfield communities can and do feel proud of the contribution they have made for many years to the national wealth. Accepting the proposed changes would be at least some recognition of that contribution. I wish to repeat for the sake of emphasis that the main issue, which was clearly spelt out by my noble friend on the Front Bench, is whether the Coal Authority will be responsible for this most important issue. We ought to know that, and tonight is the time for us to be told.
Lord Crickhowell: My Lords, I do not intend to repeat what was said earlier arising from my noble friend's misunderstanding of what I said about the relative impact of seepage from metalliferous mines and coal mines. I was making the point that the substances which emerge from metalliferous mines are often more dangerous than those from coal mines. However, that is not to suggest that coal mines cannot present serious problems to our water environment. It is a mistake to talk just in terms of percentages. If rivers or parts of rivers are wrecked by seepage from coal mines, that is a disaster for that particular area whatever percentage of the total river mileage is affected. Therefore, I hope that my noble friend will not pursue that point too far.
I wish to repeat the question which I asked earlier. Has the Minister had time to consider, since I raised the matter earlier, the question I posed about the legal position with regard to the dangerous substances and groundwater directives? We should have some guidance as to whether or not mines are exempted from those directives because if they are not, the Government in particular should be concerned about the possibility that we render ourselves liable to challenge if we fail to comply with the requirements of those directives.
The Earl of Onslow: My Lords, I became depressed at an earlier time when this was discussed because my noble friend on the Front Bench produced the excuse that this sort of behaviour had been going on since 1875. It seems rather odd to pray in aid Mr. Henry Davis Pochin's pleading to the then Conservative Government—or was it a Liberal Government?—or the special interests of the then Lord Londonderry that they had to be relieved of duties to keep the water clean. That is not a sufficiently good reason to produce in 1995.
The Earl of Kintore: My Lords, as the noble Lord, Lord Stanley, went down one group of amendments, and

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spoke to Amendment No. 169, with which my Amendment No. 249 is grouped, it may be for the convenience of the House if I speak now to that amendment.
The key Scottish points on abandoned mines are contained in Schedule 13. Amendment No. 249, which amends Schedule 13, provides that the persons responsible, under the Control of Pollution Act 1974, for causing or knowingly permitting mine water from entering controlled waters are the owners or occupiers of the mine in question and not the surface owner.
The definition "knowingly permitting", which is accepted by the courts, is wide and may well place liability on a farmer or other surface owner of ground where polluted mine water emerges from underground shafts on to the surface.
It is hoped that the Minister will confirm that surface Owners should not be held liable in that situation and that the appropriate persons to be held responsible are the owners and occupiers of the mine in question as provided for in the amendment.
On the subject of abandoned mines, it will be helpful if the Minister will clarify whether polluted water presently in a disused mineshaft may result in the land or mine falling within the definition of contaminated land under Clause 54.
The Earl of Lytton: My Lords, I support the amendments. There is one thing worse than contamination for spreading around its ill effects and that is risk. There is one thing worse than risk in general and that is unquantifiable serious risk and, following on from that, people's reaction and their total aversion to it.
I said earlier in connection with the Bill that it is no good looking for scapegoats and, in particular, for innocent scapegoats. As usual, the noble Lord, Lord Mason of Barnsley, spoke with enormous authority about coalfield dereliction and the problems associated with that. I know a little of the problems caused in some areas of the Nottinghamshire and Leicestershire coalfields, from where some of my forebears come.
I accept that mines have been closed and I make no particular point on that. But does the economic blight caused by those closures have to be added to by the blight of uncertainty relating to how liability for mine water is to be apportioned?
I said earlier that there are certain aspects of old residual contamination that rightly and properly fall into the public domain. I also said that it is no good for the Government and the Minister to ask, "Why should the taxpayer pay?" It is a matter of fine judgment as to what is appropriate for society to bear generally via the taxpayer —also known as the Treasury—and what it is proper for the individual to bear. One of the failings of the Bill as it stands is that it makes no proper distinction between the two. I support the amendments because the Government will now have to consider whether to leave things as they are or face the music of the human and social disarray and economic dereliction which will otherwise be visited on areas which already have problems enough at present.
Viscount Ullswater: My Lords, Clause 57 removes the statutory protections for discharges permitted to flow from mines abandoned after the end of 1999. Section 30J(4) of the Control of Pollution Act 1974 added by paragraph 2 of Schedule 13 and the amendments in paragraph 25(16) of Schedule 18 have the same effect in Scotland. In proposing those changes, the Government have been concerned to remove an anomaly which resulted in discharges from abandoned mines being dealt with differently from other discharges.
In the Bill we are seeking to enhance the agencies' abilities to deal with water pollution from abandoned mines, and to remove anomalies in the existing legislation. There is at present a defence against prosecution and an exemption from recovery of costs by the National Rivers Authority in cases where polluting water is permitted to flow from an abandoned mine. We consider it right that those statutory protections should be removed, but have, for the reasons which I gave earlier, decided that they should only be removed in the case of mines abandoned after the end of 1999.
The effect of Amendments Nos. 168 and 172 tabled in the name of the noble Baroness, Lady Hilton, would mean, for the Coal Authority alone, that the removal of the statutory protection applied to all coal mines regardless of when they were abandoned. That would simply create a new anomaly. Surely it cannot be right for one discharger, whether it be the Coal Authority or anyone else, to have far heavier responsibilities than any other.;
The same point applies in the case of Amendment No. 177 which places on the Coal Authority responsibility for the prevention, control and treatment of water pollution from abandoned coal mines. That responsibility would apply to mines abandoned before 1st January 1996. It is not clear whether the amendment envisages that the statutory protections for such mines would continue to apply. It would in any event appear to envisage that the Coal Authority is responsible for water pollution from any abandoned coal mine. Under the water resources legislation, an offence is committed where a person causes or knowingly permits water pollution to occur. If pollution from an abandoned coal mine occurred but the Coal Authority had neither caused nor knowingly permitted the discharge, it would clearly be wrong for the authority to bear the responsibility.
My noble friend the Chief Whip said, while he was a Minister with the DTI, that the Government would expect the Coal Authority to go beyond the minimum standards of environmental responsibility that are set by its legal duties, and to seek the best environmental result which can be secured from the use of the resources available to it. We consider that the Coal Authority should have the discretion to take action where circumstances demand, rather than be placed under such an indiscriminate duty as Amendment No. 177 would appear to envisage. There is clearly a need to have proper regard to use of public funds in addressing environmental problems of that kind.

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While it is too soon to say what might emerge, the Coal Authority is currently consulting the regulators about concerns and priorities. I believe that that answers in part the questions posed by the noble Baroness, Lady Hilton, as regards the nature of the statutory duties and how the authority would go beyond its legal duties. I shall have to write to her on the question of the money it has, as I do not have the answer for her this evening.
I understand the concern expressed by the noble Lord, Lord Dormand of Easington, and by his noble friend Lord Mason of Barnsley in respect of a previous amendment, about the problems of the North East of England in particular, the closing of so many coal mines in Durham, and the consequent problems of the pumping of minewater from those abandoned mines. Perhaps the noble Lord misheard me. I indicated that the NRA' s recent report stated that 1.5 per cent. of river length in England and Wales is currently affected by minewater pollution. I did not refer to what would happen if pumping operations ceased in the future. I also indicated to my inoble friend Lord Crickhowell that I gather that, of that 1.5 per cent., only 0.5 per cent. of the river length in England is polluted by water from abandoned coal mines. I do not disagree with my noble friend that perhaps the 1 per cent. is more damaging than the 0.5 per cent.
It is right that my noble friend should draw attention to our European responsibilities. Earlier in the evening my noble friend raised the question of the provisions in the Bill concerned with abandoned mines and compliance with European Community legislation. My noble friend will be well aware that it is the Government's policy to comply with our European Community obligations in this area as in any other area.
The amendments tabled by my noble friend Lord Stanley of Alderley and the noble Earl, Lord Lytton, would maintain for landowners the defence against prosecution for pollution of controlled waters and the exemption from cost recovery by the agency where water is only permitted to flow from an abandoned mine unless they are the owner or operator of the mine. The amendment of the noble Earl, Lord Kintore, aims to achieve a similar effect as regards defence against prosecution in Scotland.
Under the provisions in the Bill, discharges from mines abandoned after the end of 1995 will be subject to the same rigorous controls as other discharges into controlled waters. That means that anyone causing or knowingly permitting such discharges will need to do so in compliance with a discharge consent. In addition, the provisions in Clauses 55 and 56 will place a requirement on mine operators to furnish the agencies with information regarding the consequences of abandonment for any future pollution of controlled waters. In those circumstances such abandoned mines will be well known to the regulator and it will be a matter of fact whether any landowner is either causing or knowingly permitting the discharge.
My noble friend Lord Stanley, in speaking to his amendments, drew attention to his concern at the possibility of innocent landowners being prosecuted for discharges from abandoned mines. An offence would be
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committed only if a person had caused or knowingly permitted the pollution of controlled waters. This is a strong test and there would be no liability for truly innocent landowners. To be liable a landowner would have to know about the discharge and it would have to be within his or her power to do something to prevent it. As I have already said, the provisions of Clauses 55 and 56 will greatly improve the agencies' knowledge of mines to be abandoned and enhance their ability to prevent pollution occurring in the first place. It is clear that in those circumstances the agencies would prefer to act against mine owners or operators in advance of pollution occurring wherever that was possible, since they are the people in the best position to do something about it.
The noble Lord, Lord Northbourne, and I believe the noble Earl, Lord Kintore, asked about the test of liability regarding "caused or knowingly permitted". The knowledge of an ability to prevent the pollution occurring is required to satisfy "knowingly permitted". That would be a difficult test to meet where there was pollution of an aquifer deep under ground. The owner of the surface land would be unlikely to know about it or be able to prevent such pollution.
The provisions in Clauses 55, 56 and 57 and Schedules 13 and 18 strike a balance between protecting the environment and creating a regime which is workable. They also remove a long-standing anomaly which is widely felt to be confusing and unnecessary. It would surely be wrong to remove that anomaly only to replace it with another, thus frustrating the Government's aim of putting all types of water pollution on the same footing.
Having said that, I ask the noble Baroness to withdraw the amendment.
Baroness Hilton of Eggardon: My Lords, I have listened with interest to what the Minister said. However, I do not think that he has fully answered the points made to him. The Government gave certain undertakings during the passage of the Coal Industry Bill last year which I do not believe have been fully fulfilled. I believe that there should be a statutory obligation on the Coal Authority to deal with minewater pollutions from abandoned mines. In the circumstances, I propose to test the opinion of the House.
10.36 p.m.
On Question, Whether the said amendment (No. 168) shall be agreed to?
Their Lordships divided: Contents, 20; Not-Contents, 56.

Division No. 2

CONTENTS

Barber of Tewkesbury, L.

Hilton of Eggardon, B.

Beaumont of Whitley, L.

Kintore, E.

Carmichael of Kelvingrove, L.

Lytton, E.

David, B.

Moms of Castle Morris, L. [Teller.]

Dormand of Easington, L.

Nicol, B.

Elis-Thomas, L.

Northbourne, L.

Feversham, L.

Onslow, E.

Freyberg, L.

Palmer, L.

Graham of Edmonton, L. [Teller.]

Walpole, L.

Hamwee, B.

Williams of Elvel, L.

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NOT-CONTENTS

Addison, V.

Long, V.

Astor, V.

Lucas, L.

Blatch, B.

Lyell, L.

Brain of Wheatley, L.

Mackay of Ardbreeknish, L.

Brougham and Vaux, L.

Mackay of Clashfem, L. [Lord Chancellor.]

Bumham, L.

Marlesford, L.

Cavendish of Furness, L.

McColl of Dulwich, L.

Chalker of Wallasey, B.

Miller of Hendon, B.

Clinton, L.

Norrie, L.

Courtown, E.

Northesk, E.

Cranbome, V. [Lord Privy Seal.]

Rankeillour, L.

Cumberlege, B.

Rawlings, B.

Denton of Wakefield, B.

Renton, L.

Dundonald, E.

Rodger of Earlsferry, L.

Elton, L.

Rodney, L.

Fraser of Carmyllie, L.

Shaw of Northstead, L.

Gage, V.

Shrewsbury, E.

Gisborough, L.

Shuttleworth, L.

Glenarthur, L.

Skelmersdale, L.

Goschen, V.

Stewartby, L

Henley, L.

Strathclyde, L. [Teller.]

HolmPatrick, L

Thomas of Gwydir, L.

Howe, E.

Trumpington, B.

Inglewood, L. [Teller.]

Ullswater, V.

Kingsland, L.

Vinson, L.

Knutsfonl, V.

Willoughby de Broke, L.

Leigh, L.

Wise, L.

Lindsay, E.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
10.44 p.m.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 169:
Page 63, line 38, after ("apply") insert ("to the owner or operator of any mine").
The noble Lord said: My Lords, I was most unhappy about the last amendment and could not make up my mind, so I stayed in my seat. The question I must ask my noble friend yet again is this. As the downstream owner or occupier of land, I may know perfectly well that polluting water is coming on to my land from an abandoned mine. I knowingly permit it into the water course. Therefore, as I read the Bill, I am guilty. I am saying that that is incorrect in so far as it is not my fault. I am an innocent bystander, an innocent occupier, and I should he able to pass the responsibility back to the person who pollutes. The snag comes when I cannot find that person if he is dead or nobody owns the mine. What is the position so far as I am concerned? Am I protected as an innocent landowner? I have knowingly permitted that pollution to be in the water. I can see my noble friend Lord Crickhowell, in his former position, coming along to me and saying, "Stop that water going into the water course". As I see it, it is my liability, according to the Bill, to clear it up. I would be very pleased to hear my noble friend explain exactly what the position is. Unless he can say that I am innocent, I am most unhappy.
The Earl of Onslow: My Lords, it is extremely important to get this question of the interpretation of the word "cause" absolutely clear in our minds. There is the case (admittedly, it arose on another issue) of a company called CPC polluting a stream. There was no possible
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way that the company could have known about the pollution. It was completely innocent, and the NRA said that its behaviour was exemplary. However, the company was found, because of an interpretation of the word "cause", to have committed an offence. You can "cause" something in law, it appears now, completely and utterly innocently and unknowingly and you are still, according to the law, guilty of an offence. In spite of everything that my noble friend on the Front Bench said about "knowingly permit" implying that there has to be an element of negligence or knowledge, if the word "cause" is in the Act that "cause" allows no such defence. That is what the Appeal Court has found within the past five years. Can my noble friend confirm or deny that fact?
Viscount Ullswater: No, my Lords, of course I cannot deny that fact. But it is, I believe, a different point entirely from the one that troubles my noble friend Lord Stanley. My noble friend Lord Onslow is talking about "causing". I believe that my noble friend Lord Stanley is not so much interested in "causing" because I believe he understands that the pollution about which he is worried and which is appearing on his land he did not cause. The test, which I believe my noble friend accepted, is that if it is pollution of controlled waters, to be liable the landowner would have to know about the discharge and it would have to be within his or her power to do something to prevent it. If he were not in a position to prevent it, then he would not be liable. But if he was able to prevent it, and was asked by the agency to prevent it and failed to prevent it, then I dare say that he would be liable. But that is a different offence to causing it.
Lord Stanley of Alderley: My Lords, it is late at night. I shall not prolong this debate. I am still not happy. My noble friend says that I would not be guilty if I was in a position to prevent it. But what does that mean? Does it mean that I should have to go back to the mine and pump it out? I am not happy. Do I have to pump out every mine in the country because the pollution might be coming down to me? I might not be able to prevent it.
I shall leave the matter for the moment, but I may well come back to it—in fact, I am almost certain to come back to it—at Third Reading. I am most unhappy about it. I beg leave to withdraw the amendment,
Amendment, by leave, withdrawn.
[Amendment No. 170 not moved.]
[Amendment No. 171 had been withdrawn from the Marshalled List.]
[Amendments Nos. 172 to 174 not moved.]
[Amendment No. 175 had been withdrawn from the Marshalled List.]
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 176:
After Clause 57, insert the following new clause:
("Survey of water pollution from abandoned mines
. The Secretaries of State shall require the Agency and SEPA to carry out a national survey of potential and existing incidents of water pollution from abandoned mines which shall be publicly available and shall be updated annually.").
The noble Baroness said: My Lords, we have been talking about the serious problem of water pollution from abandoned mines. This amendment seeks to ensure that we identify the extent of water pollution from abandoned mines. To some extent so far we have been dependent on anecdotes, newspaper accounts and possibly, in some instances, scare stories. The amendment would provide that there should be a national survey of potential and existing incidents of water pollution from abandoned mines. It is an attempt to assess the extent of the problem. I beg to move.
Viscount Ullswater: My Lords, The amendment moved by the noble Baroness, Lady Hilton, would place a significant new duty on the agencies. It proposes that they should be required to carry out a national survey of both existing and potential incidents of water pollution from abandoned mines. The survey should be publicly available and should be updated annually.
The National Rivers Authority produced a useful report in March 1994 entitled Abandoned Mines and the Water Environment. In fact, we took account of the report in our review of the legislation governing water pollution for abandoned mines, which resulted in the abandoned mines provisions in the Bill. In seeking to estimate the scale of the problem of water pollution from abandoned mines, the NRA reported on those discharges from abandoned workings which cause significant pollution. However, it pointed out the problems which would be encountered in undertaking a survey of all existing and potential polluting discharges. Among these are the fact that the effects of discharges from abandoned mines are often most acute in streams and upper reaches which are not routinely monitored; the lack of records of long abandoned mines; and the complexity of underground workings, particularly where mines have been worked over several centuries, which makes it difficult to predict where an outflow of minewater may occur. There would therefore be considerable practical difficulties in producing a survey of the kind envisaged by the noble Baroness.
Apart from those practical considerations, it has always been our view that the water regulatory bodies should have discretion in the way in which they exercise their powers, and the same should apply for the agencies. It will be for the agencies to consider whether they wish to produce surveys of particular kinds of pollution, and we would not wish to impose statutory duties for activities of that kind. If they do carry out surveys of pollution, the agencies will consider whether the likely environmental benefits will justify the costs involved.
I appreciate that the noble Baroness's concern will be to reduce the incidence of water pollution from abandoned mines. That is the intention of the measures which we have included in the Bill. In particular, the new requirement for mine operators to give the agencies at least six months' notice of their intention to abandon a mine will allow steps to be taken to prevent future incidents of minewater pollution.
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With that explanation, I hope that the noble Baroness will see fit to withdraw her amendment.
Baroness Hilton of Eggardon: My Lords, I thank the Minister for his response. Clearly, it would place an onerous duty on the agencies. I understand that. But this was an attempt to assess the extent of the problem. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 177 not moved.]
Lord Crickhowell Lord Crickhowell moved Amendment No. 178:
After Clause 57, insert the following new clause:
("Preventative and remedial action
. After section 161 of the Water Resources Act 1991 there shall be inserted—
"Preventative and remedial action.
161A.—(1) Without prejudice to section 161 above, where it appears to the Agency that any poisonous, noxious or polluting matter or any solid waste matter is likely to enter, or to be, or to have been, present in any controlled waters, then the Agency may, by notice, require the person on whom the notice is served to carry out the following works and operations, that is to say—
(a) in a case where the matter appears likely to enter any controlled waters, works and operations for the purpose of preventing it from doing so; or
(b) in a case where the matter appears to be, or to have been, present in any controlled waters, works and operations for the purpose—
(i) of removing or disposing of the matter,
(ii) of remedying or mitigating any pollution caused by its presence in the waters, or
(iii) so far as it is reasonably practicable to do so, of restoring the waters, including any flora and fauna dependent on the aquatic environment of the waters, to their state immediately before the matter became present in the waters,
and, in either case, the Agency shall be entitled to carry out investigations for the purpose of establishing the source of the matter and the identity of the person who has caused, or knowingly permitted, it to be present in controlled waters or at a place from which it was likely, in the opinion of the Agency, to enter controlled waters.
(2) Subject to subsection (5) below, a notice under this section may he served on any person who, as the case may be—
(a) caused or knowingly permitted the matter in question to be present at the place from which it was likely, in the opinion of the Agency, to enter any controlled waters; or
(b) caused or knowingly permitted the matter in question to be present in any controlled waters.
(3) A notice under this section shall—
(a) state that the Agency is of the opinion that works and operations are needed;
(b) specify the nature and location of the matter in question and its point of entry into controlled waters, or its likely point of entry;
(c) specify the steps to be taken by way of works or operations to be undertaken;
(d) specify the period within which those steps must be taken.
(4) Any person who fails to comply with any requirement imposed by a notice under this section shall be guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding £20,000 or to imprisonment for a term not exceeding three months or to both; or

243
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
(5) A person on whom a notice is served may, within the period of twenty-one days beginning with the day on which the notice is served, appeal against the notice to the Secretary of State.
(6) On any appeal under this section the Secretary of State may confirm the notice, with or without modification, or quash it.
(7) Where the Secretary of State confirms a notice, with or without modification, he may extend the period specified in the notice for doing what the notice requires to be done.
(8) Regulations may make provision with respect to—
(a) the grounds on which appeals under this section may be made; or
(b) the procedure on any such appeal.
(9) Regulations under subsection (8) above may (among other things)—
(a) include provisions comparable to those in section 290 of the Public Health Act 1936 (appeals against notices requiring the execution of works);
(b) prescribe the cases in which a notice is, or is not, to be suspended until the appeal is decided, or until some other stage in the proceedings;
(c) prescribe the cases in which the decision on an appeal may in some respects be less favourable to the appellant than the notice against which he is appealing;
(d) make provisions as respects—
(i) the particulars to be included in the notice of appeal;
(ii) the persons on whom notice of appeal is to be served and the particulars, if any, which are to accompany the notice; and
(iii) the abandonment of an appeal; and
(e) make different provision for different cases or classes of case.
(10) A notice under this section may not be served on a person requiring works and operations in respect of water from an abandoned mine which that person permitted to reach such a place as is mentioned in subsection (2) above or to enter any controlled waters unless the mine in question became an abandoned mine after 1st April 1996.
(11) In this section "controlled waters" and "mine" have the same meaning as in section 161 above.".").
The noble Lord said: My Lords, I know that the House is anxious to jump the hurdle or hedgerow into national parks and I shall try to be as brief as I possibly can.
Amendment No. 178 and Amendments Nos. 280A and 282 cover related but rather different subjects. Amendment No. 178 would give the agency a new power to serve a notice requiring anti-pollution works to be carried out by a polluter or potential polluter of controlled waters. These works could include the removal of polluting matter, remedying or mitigating pollution or, so far as reasonably practical, restoration of waters to their state before the pollution occurred.
When a similar amendment was moved on 31st January, my noble friend said that he recognised that:
"the underlying principle that the agency should be able to require polluters to take action to remedy water pollution and pay for that action merits further consideration".—[Official Report. 31/1/95; col. 1486.]
He criticised the amendment then before the House on the ground that it provided no right of appeal. This amendment has introduced a right of appeal. The appeal provisions are modelled on those in the Bill for
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contaminated land enforcement notices, which I hope will satisfy my noble friend's desire to achieve as much consistency between provisions in the Bill as possible. On 31st January the Minister asked my noble friend Lord Mills to withdraw the amendment while he undertook consideration of the problem. I press the matter again tonight to see what that consideration has produced and whether or not the Government have come to any conclusion upon it.
Amendment No. 280A raises an issue that 1 have raised before. Following the decision of the House of Lords last year in the Yorkshire Water Services case, we have been forced reluctantly to the conclusion that discharge consents issued by the NRA restrict or control only the discharge of substances that are identified within the terms of the consent. The net effect is that the holder of a discharge consent will have a defence as regards pollution caused by the discharge of matter or substances which are not controlled or regulated by the consent purely because the consent exists. If that is really so, a discharge consent can in effect become a licence to pollute. I cannot believe that that is the intention of Parliament. The NRA and all its predecessor bodies have taken the view that a discharge consent is exclusive; in other words, anything that is not identified in a consent is not permitted to be discharged. Surely, that must have been the intention of Parliament when the legislation was introduced. I know that the Government are considering the problem, and I do not expect my noble friend to produce a solution tonight. But it is important that some indication be given of the way that the Government intend to act.
If legislative action is taken—which may be the neatest way—we have to ensure that it is not retrospective in effect. We must also ensure that it does not make dischargers responsible for that for which they cannot reasonably be held responsible. Section 87 of the Water Resources Act 1991 probably satisfactorily relieves sewerage undertakers of the responsibility for the wrongdoing of trade effluent dischargers. On the other hand, if the new agency is forced to proceed by way of amendment of all existing consents, I think it is perfectly fair to suggest that there ought to be prior consultation between the DoE, the agency (or the NRA if the matter comes up sooner) and such organisations as the Water Services Association, the CBI, the Chemical Industries Association and so on. I do not suggest that we rush in without proper consideration of the issues. If there is not to be a major void created in effective pollution control there must be either legislative action or large-scale amendment of existing consents.
That takes me to Amendment No.282. I confess that I do not expect my noble friend to accept it. I urge that, if the agency has to go down the route of amending its consents and that stimulates a rush of appeals against those amended consents, as it almost certainly will, those appeals should be dealt with expeditiously by the department. I suggest that there be a 12-month limit before the Secretary of State deals with the appeal. If the appeal is not determined in that period, it will fail. We must address the realities of the situation.
That brings me back to a point that I believe I made fairly forcefully at Second Reading. I said that this legislation created a partnership between the agency and government. If the department does not play its part effectively, the agency will be totally ineffective. If we have a situation where discharge consents are amended and appeals are not dealt with promptly, the agency will be rendered powerless.
I am prompted to make that observation because in the five years and more of the NRA's existence a very large number of appeals have been made against revised consent conditions and virtually none of them has been dealt with by the department. That has proved a major weakness. I really do fear that it could be a crippling weakness for the new agency. I hope that if my noble friend is not prepared to put in a 12 months' limit—I suspect that he will find all kinds of faults with my amendment—he will at least give a very clear undertaking that the Government recognise the seriousness of the problem that I have identified and will come along with, a solution and give undertakings that every attempt will be made to deal with the problem speedily and effectively. I beg to move.
11 p.m.
Viscount Ullswater: My Lords, Amendment No. 178 revisits a proposal made in Committee for the agency to be able to exercise a new power to serve a notice on a polluter or potential polluter of controlled waters requiring the performance of anti-pollution works. This amendment sets out in more detail the procedure envisaged, and I am grateful to my noble friend for the further work which has been undertaken.
We are giving very careful consideration to the proposal for the introduction of a pollution notice procedure. I appreciate that the NRA considers that such a power would be of considerable benefit in preventing pollution incidents and that such a power would have proved useful in respect of a number of recent cases. As I indicated in Committee, the proposal does raise some difficult issues and we need to complete our consideration of them. If we are able to develop a suitable proposal, I am sure that we would wish to discuss it with interested parties.
We considered an identical amendment to Amendment No. 280A during the Committee stage. I appreciate that my noble friend has a very strong interest in this matter which, as I have previously indicated, we are looking at carefully. The amendment would amend Section 88 of the Water Resources Act 1991, which provides certain statutory defences against a charge of pollution, so that any consent granted by the agency in respect of discharges to controlled waters is not to be taken as authorising the discharge of substances other than those specifically identified in the relevant consent. The intended effect would be to establish that a discharge under and in accordance with a consent should not attract a statutory defence against a charge of pollution as regards any substance in respect of which there is not specific provision in the consent. In short it would limit the scope of the current defence.
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I know that there is a long history underlying this proposal and I appreciate that my noble friend Lord Crickhowell takes the view that enforcement actions by the National Rivers Authority have been constrained. However, as I explained to the House previously, we cannot accept the proposal which he has put forward.
As I mentioned in Committee, many of the perceived difficulties stem from the drafting of the consents that have been granted. My noble friend indicated that he agrees with that. Legislation is unlikely to be the right vehicle to try to solve the contentious but clearly technical matters affecting individual consents which vary greatly and have been granted over a long period of time by different regulatory authorities. Retrospective effects are of particular concern to the Government and also to my noble friend.
We are, however, looking at the effect of recent judgments on the law governing these matters. That is a prerequisite before considering whether corrective action is required or, if so, whether a legislative route would be either desirable or practicable. Changes in this area are of great importance, affecting a substantial number of dischargers, and potentially controversial. We therefore need to be quite sure of our ground before any action can be considered.
My noble friend recognised these issues to be extremely difficult and complex. I should also signal that, were the conclusion to be reached that action might be required, given the potentially major implications for those currently holding discharge consents and those applying for consents in future, we should want to hear from all the interested parties.
Amendment No. 282 would give the Secretary of State, or the inspector acting on his behalf, 12 months to decide an appeal against a discharge consent, otherwise it would be treated as refused.
The intention behind the proposal is to reduce the time taken by my department to reach decisions on appeals. It is the case that delays have occurred in the past in a number of discharge consent appeal cases which have involved complex policy issues. However, through discussion primarily with the National Rivers Authority and the water industry, these issues have largely been resolved. A general review by the NRA and the water industry of affected consents and related appeals is now well under way.
For the future, it is envisaged that numbers of new appeals in respect of decisions by the environment agency on discharge consent applications will be very substantially fewer and the timescale for resolving them significantly shorter, especially through the use of inspectors appointed by my department's planning inspectorate. I hope that in the light of this response my noble friend will feel able to withdraw his amendments.
Lord Crickhowell: My Lords, I am grateful to my noble friend for the assurances which he has given. A member of the department complained rather sadly that it was perhaps inconvenient that the House of Lords judgment did not come until December, which virtually coincided with the introduction of the legislation. These things tend to come at inconvenient moments. The reality is that a solution has to be found because, as my

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noble friend said, these consent wordings go back a very long time to predecessor bodies, which suggests that people have been working on certain assumptions about their meaning and indeed that they have been generally accepted because they have not been previously challenged in the courts.
Therefore, we have a problem and I believe that my noble friend recognises that. In the light of the clear assurances which he has given that serious consideration is being given to the best way to resolve the problem, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Norrie Lord Norrie moved Amendment No, 178A:
Before Clause 58, insert the following new clause:
("Major development test
. Any proposal for development within the National Parks which is likely to have significant effects on the environment shall not be permitted unless it can be demonstrated by rigorous public examination, prior to a decision on consent being made, to be necessary in the national interest and there are no practicable alternatives.").
The noble Lord said: My Lords, I take as my brief in bringing this new clause before the House the recommendations of the most thorough and highly respected National Parks Review Panel. Part III of the Bill represents a considerable step forward in the internal management and protection of the parks, but it still does nothing to protect them against the arguably far greater threats which they face from external pressures for development.
At Committee stage there was overwhelming support for the principle that that issue should be addressed. There was also strong support for the concept that because national parks are such precious assets they deserve special and different protection from such external development threats. It is for that reason, and with the Edwards Report ringing in my ears, that I bring forward this new amendment.
It will ensure that development proposals in national parks which have potentially significant environmental effects will not be permitted unless environmental criteria are satisfied. I hope that noble Lords will find that this much simplified amendment responds to the criticisms of the earlier amendment at Committee stage. I shall return to that point.
The national parks cannot be entirely insulated from major development pressures. However, I believe that their special status requires a statutory test to ensure that such development is allowed only in certain circumstances. It should be demonstrated through rigorous public examination that the development meets a national need and that there is no alternative means of achieving the desired objective. The need for such a test is strongly endorsed both by the Countryside Commission and Countryside Council for Wales.
The Government have already agreed in principle the need for such a test. That is demonstrated by the 1992 policy statement on national parks and by Planning Policy Guidance Note No. 7. However, the weakness of PPGs is that they constitute advice only and that they are but one material consideration among others. Also they do not cover all forms of development, the main
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categories being electricity, infrastructure and major road proposals. As I have mentioned, this new amendment has been drafted in response to criticism of an earlier amendment in Committee that "major development" would be difficult to define.
My amendment overcomes that problem because the test would apply to any proposal requiring an environmental assessment. Whether a development requires such an assessment is already established in legislation. The trigger is whether a development is likely to have "significant effects" on the environment. That term is well understood and has a precise legal meaning, being used in the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. Environmental assessment legislation applies to developments under the electricity and highways legislation, so, unlike PPGs, this test would apply to the necessary range of projects. The Government rightly regard national park designation as conferring a high status of protection as far as landscape and scenic beauty are concerned. I believe that we should take the advice of the Edwards Report that that cannot be achieved without a statutory test for assessing major development. I beg to move.
Lord Williams of Elvel: My Lords, the House will be aware that we supported the amendment moved by the noble Lord, Lord Norrie, in Committee —and we support this amendment. It is difficult to achieve a balance between policy planning guidance on the one hand and practice on the other. As we have discovered on many occasions, the major developments which may take place are not necessarily subjected to the rigorous examination that they need. The noble Lord mentioned developments under the Electricity Act. I should like to refer also, as I did in Committee, to developments under the Telecommunications Act whereby BT has rights to override the planning mechanisms.
In Committee the Minister said that his right honourable friend the President of the Board of Trade was aware of those matters. I very much hope that the Government feel that something needs to be built into this part of the Bill to ensure that those who are on the fringes of the planning process, if I may put it that way, can be brought fairly and squarely within the ambit of the Bill—although they abide by the legislation that is relevant to them.
There is a danger at present that, although environmental assessments may well be undertaken by those who are outside the normal planning procedures, the crucial questions are not asked. They include questions as to whether a certain development is necessary and whether there are alternatives to it. I noted that, in their 1992 policy statement on the national parks, the Government said that, when an environmental impact assessment is to be carried out, the national park authorities may reasonably expect a prospective developer to examine alternatives to his preferred option. I believe that the amendment would help to ensure that that happens in practice. I very much hope that the Government will give it a fair wind.
Lord Chorley: My Lords, I have added my name to the amendment and should like to make three points on

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it. First, I believe that it would bring transparency to the decision-making process. I should like to make it clear that what we are trying to do does not relate only to public inquiries. Whether a decision is being made by a national park authority, the Secretary of State or an inspector, and whether a proposal falls within the town and country planning system or the consent procedure operated by the President of the Board of Trade, the proposal should be subject, as the noble Lord, Lord Norrie, said, to rigorous examination of need and alternatives, and there should be an opportunity for public input into the decision-making process.
My second point is parenthetical. I had the impression in Committee that some noble Lords thought that major developments in national parks were usually subject to parliamentary scrutiny. The Okehampton bypass was cited. As I understand it, that proposal came before Parliament because the compulsory purchase of an open space was involved and therefore the parliamentary procedure under the Acquisition of Land Act 1981 applied. In fact, parliamentary scrutiny does not normally apply just because the land targeted for development may lie within a national park, nor, as I see it, does this introduce scrutiny by Parliament.
Thirdly, in Committee, as I understood it, the main thrust of what the Minister and other noble Lords said was that we have in place, through statute and the PPG system, clear planning procedures and criteria. National parks are planning authorities, and we have laid down in statute for structure plans and local plans, procedures and so forth. But PPG7, taken with these statutory procedures, is argued to be a better control mechanism—better because, implicitly, the guidance element is a more flexible tool than statute for detailed definition. In a sense, solutions can be "negotiated", in that appropriate solutions can be achieved on a case by case basis.
The system usually works well within its terms, but I accept that it only on the basis that the existing statutory backing—fine though it is for its purposes—is entirely different in kind from what is needed for national parks. I emphasise the point "different in kind." That is what this amendment seeks to provide. Moreover—and the noble Lord, Lord Williams, raised this in Committee - PPGs can be changed; Secretaries of State change; Governments change. I do not think that the noble Lord, Lord Williams, received a satisfactory answer from the Minister on that point.
We need to set out the broad principles in the Bill—as this amendment seeks to do—and those principles should underpin the guidance procedure.
Lord Beaumont of Whitley: My Lords, I will speak very briefly at this hour of the night. We on these Benches feel that national parks should have the highest possible protection from the kind of development that we are talking about. The amendment includes a reservation about the national interest, because in an on-going parliamentary democracy you cannot have total, absolute protection. The Bill provides the most protection we can give and, that being so, we should give it.
Lord Elis-Thomas: My Lords, the Edwards Report lists the national development pressures on national parks as being mining, quarrying, major roads, electricity, water supply, sewage treatment, major tourism and military installations and defence training grounds. I could speak for hours on all of those aspects as they have affected the national parks in Wales, but I will not do so.
Lord Marlesford: Shame!
Lord Elis-Thomas: If there is enthusiasm on the Government side to keep the debate going, I am sure that noble Lords on all sides would enjoy doing so.
The time has come—and this, surely, is the time—for national park legislation to state the priorities for sustainable development in national parks, and to relate them to this major development test. When arguing for sustainable development within national parks we are sustained by the support of the national concept in another sense. I use "national", obviously, in the ambivalent national Welsh and national English context.
With regard to national parks, the concept is about a clear designation of land for a particular environmental, social and amenity purpose. Therefore it follows that, having made that definition, there are certain other national interferences with that concept that should not be allowed to play. That is what the amendment is about. It is about stating quite clearly that within a particular designated area there is a test which limits developments to those which have a value that overrides the initial environmental, social and amenity value given to designated areas.
In fulfilling their national parks obligations in terms of existing legislation and sustainable development, the Government continue to repeat in This Common Inheritance and other papers the importance of national parks—we heard that in earlier debates—as areas where sustainable development can be tested. But it seems to me that what is sustainable in national parks is what relates to the local socio-economic and environmental structure. That structure is sustained by the further concept of the amendment that there should be no interference with that externally by major developments.
I could obviously cite power stations, nuclear power stations, reservoirs and road building—my noble friend Lord Chorley raised the issue of the A.5 in Committee—which are all examples of potential or existing interference with sustainable development within the national parks, which have been allowed by previous governments. Obviously, I do not hold the present Government responsible for that, but I ask them, at this stage of our legislation on national parks and environmental policy, to take seriously the whole issue that there should be no interference with sustainable development within national parks unless it is an overriding necessity.
It is self-evident that at this stage, or later in the Bill, the Government should return to the Edwards Committee's recommendation and legislate clearly to ensure that an underpinning of the planning basis for national parks is set out clearly in the Bill.
The Earl of Onslow: My Lords, my noble friend the Minister sent me a letter on this issue, from which I should like to quote. He wrote:
"We have an objection of principle to putting planning policies in statute which we consider both unnecessary and undesirable. Putting selected planning policies on a statutory basis would consume a great deal of Parliamentary time to keep them up to date. We will continue to uphold the test for major development in National Parks set out in Planning Policy Guidance note 7".
If the Government resist the amendment, what they are saying —as I read the letter—is that they want to be able to change PPG7 easily. Those of us who are worried about a major development in national parks do not want the Government to be able to change PPG7 easily. As I understand it, what my noble friend said in the letter was that he wants to be able to change something easily. In this case he should not be allowed to do so.
The Earl of Lytton: My Lords, at the risk of delaying the House further, perhaps I may make just a few points on the amendment. First, I have always held the view that planning schemes should be dealt with on their merits—that includes their demerits —and I hesitate before accepting that there should be a blanket provision in the Bill.
My first impression was that the amendment was very widely drawn, but the noble Lord, Lord Norrie, pointed out the formula which he said was well tried and tested. I take it that he meant the formula of words, "likely to have significant effects on the environment". The noble Lord nods in affirmation, so I take it that I have it right.
I did not know that that form of wording was statutorily defined. I should like to ask the Minister whether he is satisfied that that is the case and whether the wording suits the particular purposes of national park authorities. The noble Lord, Lord Norrie, referred to environmental assessments. As I understand it, in the little blue book which I have there are two categories where environmental assessment, in one case for major petro chemical installations and that type of thing is mandatory, and another where it is more discretionary. I am not clear about whether the noble Lord, Lord Norrie, intends that his new clause shall apply to everything in both categories or only one.
I was even more confused when the noble Lord, Lord Elis-Thomas, fluidly rolled off a list of items from the Edwards Report. It covered items which might or might not fall within the environmental assessment category. I am a little bemused but believe that there are grounds on which there should be a presumption against certain types of intrusive and disruptive developments in national parks. I do not believe that anyone disputes that but I am a little anxious about the wording as it stands.
Lord Marlesford: My Lords, I believe that the wording is not good. We know what is meant and are sympathetic to what Edwards had in mind. However, the phrase "significant effects on the environment" is better than "major development". It is interesting that the latter phrase has been omitted.
We are talking about what is not only a development but also an activity and therefore I should have preferred the phrase "development or activity". Furthermore,
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rather than the phrase "significant effect on the environment", it would have been better to have thought in terms of "any significant effect on the character of the park". Finally, the phrase "rigorous public examination", certainly in the context of the history of the House of Lords, almost implies the use of the rack and therefore I do not believe that the use of the word "rigorous" is ideal.
Viscount Ullswater: My Lords, when in Committee we considered the amendment tabled by my noble friend Lord Norrie, I made it very clear that we had an objection in principle to putting planning policies in statute because we considered that to be both unnecessary and undesirable. I am glad that I managed to repeat the same words that I put in a letter to my noble friend Lord Onslow. There is some method of consistency somewhere.
I also made clear in Committee, however, and shall repeat again tonight, that the test for major development in the national parks is set out in Planning Policy Guidance Note 7. That states unequivocally that major developments should not take place in national parks save in exceptional circumstances. Because of the serious impact that major developments may have on the natural beauty of the parks, applications must be subject to the most rigorous examination, including a demonstration that they are in the public interest. All major development proposals in the national parks must be examined against this test.
The noble Lord, Lord Williams, asked whether such considerations should include those assessments. I wish to draw his attention to the considerations that are quoted in PPG7. It states:
"Consideration of such applications should therefore normally include an assessment of: (1) the need for the development in terms of national considerations and the impact of permitting it or refusing it upon the local economy".
That is a point which the noble Lord, Lord Elis-Thomas, also considered. It then says:
"(2) the cost of and the scope for developing elsewhere outside the area or meeting the need for it in some other way; (3) any detrimental effect on the environment and the landscape and the extent to which that should be moderated".
The document continues:
"Any construction or restoration should be carried out to high environmental standards".
The Government's planning policies, as set out in planning policy guidance, are material considerations which the town and country planning Acts require local planning authorities to take into account both in preparing their development plans and in deciding individual planning applications. The Secretary of State is bound by the same requirement and shall have regard to the same policies on matters which come before him on appeal or where he may have called in applications for his own determination.
A number of noble Lords expressed concern that perhaps other statutory undertakers would not be bound by the same kind of test. I confirm that the test also applies to those major developments which are controlled under other legislation. Those responsible for that legislation, as, for example, those bodies responsible for consents associated with the provision of

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statutory services, are well aware of the test for major development in national parks set out in PPG7 and the need to take government policy on these matters fully into account when considering major proposals.
I do not accept that policies for major developments in national parks are unique and therefore justify this exceptional treatment in statute. National parks are extremely important areas of the countryside and fully deserve the protection that our policies already provide for them. However, I know that there are others—for example, with a close interest in he future of green belts—who could claim the same treatment.
That would introduce a degree of inflexibility which I believe to be unreasonable. An enormous amount of effort and parliamentary time would be absorbed by the need to keep such tests up to date.
My noble friend Lord Onslow indicated that he wanted to make certain that the amendment should be accepted and that that would override PPG7. I cannot accept that. Planning decisions always involve judgments. Putting a planning test into statute will not make it any more or less likely that some people will disagree with particular decisions. I believe the present system works well and is underpinned by strong and effective legislation.
I do not believe that my noble friend's amendment raises substantial new issues, and I have not heard anything this evening which persuades me that we should review the principle that it is not appropriate for this and other planning policies to be put in statute. I therefore ask him to withdraw this amendment.
11.30 p.m.
Lord Norrie: My Lords, I am grateful for the Minister's reply. At this late hour, I shall not pursue the matter. I shall look very carefully at Hansard to see whether we can come hack on Third Reading with something about which we agree. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 58 [Purposes of National Parks]:
The Earl of Lytton The Earl of Lytton moved Amendment No. 178B:
Page 64, line 26, leave out ("the next following subsection") and insert ("subsection (2) of this section").
The noble Earl said: My Lords, in moving Amendment No. 178B, I should like to speak also to Amendment No. 178C and 178D in the name of the noble Lord, Lord Barber.
The purpose of this group of amendments is to explore further the amendment which was moved and agreed to in Committee to revise the second national park purpose. I thank the Minister and his officials for the help which they gave in relation to the wording of the amendment. I also declare an interest as a farmer in a national park.
In Committee, the noble Lord, Lord Norrie, gave an extremely comprehensive explanation as to what he meant, and in particular what he did not mean, by the
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term "quiet enjoyment". My amendment is intended to reinforce that explanation and to ensure that it is defined clearly on the face of the Bill.
The noble Lord referred in particular to his amendment being concerned with the type of recreations which national parks were to have a statutory purpose to promote. My amendment is nothing to do with banning any recreational purpose but is everything to do with the purpose of promoting. I should like to make that very clear.
The purpose of the amendment is to define "quiet enjoyment". It defines it as:
"enjoyment in ways which are not likely to disturb the tranquillity, or otherwise detract from the special qualities, of the areas in question".
That is what national parks will have a purpose to promote. That is the first part of the amendment and I hope that we can all agree that that is the intention underlying the amendment that was agreed to in Committee and that my interpretation is correct.
In Committee, we heard a great deal about noisy activities and the effect that they have on the enjoyment of the parks by others. A view is held in some quarters that such activities should be banned. As I understand it, in Committee, the noble Lord, Lord Norrie, explained that he did not intend that any activities should he banned as a result of the introduction of the term "quiet" in the second national park purpose. Therefore, my second amendment sets out to ensure that that intention is made explicit on the face of the Bill. It makes clear that,
"no person shall be under a duly to prevent"—
and I stress the last three words—
"reduce or restrict noise in [national parks] by reason only of the reference…[to promote] opportunities for the quiet enjoyment of those areas".
There may well be other reasons why noise should be prevented or reduced and I believe that there are other means to control noisy activities, but concentrating on the particular point at issue, the purpose of my second amendment is to make it clear that the word "quiet" in the Bill would not in itself be a reason to prevent such activities from taking place.
More particularly, I would go further and say that it is certainly not my intention that the existing powers to prevent noisy or damaging activities should be circumscribed —far from it. The whole idea is that the amendment should leave them intact. I believe that that was the noble Lord's intention in Committee. The amendment is intended to probe whether that is in fact the case. My intention is to clarify the term "quiet enjoyment"
The wording of the amendment, into which a good deal of careful thought has been put by others, may not be perfect. I would be the first person to recognise the fact that reconciling the different views of what is actually meant by the word "quiet", and from whose standpoint, is a vexed and difficult area.
I turn now to the amendment tabled in the name of the noble Lord, Lord Barber. On my yardstick, if I may put it that way, I believe that his amendment takes matters quantifiably further than the comments of the noble Lord, Lord Norrie, by introducing the concept of

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"lasting" damage and conflict with enjoyment by the public, in addition to the concept of acoustic disamenity. In my opinion, that highlights the dangers of leaving the term "quiet enjoyment" undefined on the face the Bill. I believe that that is something of a slippery slope due to poor definition.
The concept that I should like to flag here is that of multi-use recreational facilities in national parks as an integrated entity with existing land use activities. National parks are not wilderness areas, although parts of them may be—and, in that respect, some more than others. Nor are they mere tourist fleshpots, though that certainly applies in some limited areas. In many cases, they have to cope with extremely large visitor numbers at times and I feel that that poses the greatest challenge of all. However, in the past, the parks have catered for a broad spectrum of activity. I believe that that should continue and that no single interest should be unnecessarily pre-emptive of others. I beg to move.
Lord Williams of Elvel: My Lords, I was not sure whether the noble Lord, Lord Marlesford, wished to intervene at this point, but perhaps I may make our views of the amendment as clear as I can. I recognise that there is some need for a definition of the term "quiet enjoyment". However, after the noble Earl's introduction, I am unclear whether the amendment is a government effort—he seemed to imply that it was drafted by officials in the Department of the Environment—or whether it is an individual, solo performance by the noble Earl. Nevertheless, I am sure that the Minister will clarify the position in his response. I see that the noble Earl wishes to intervene. I give way.
The Earl of Lytton: My Lords, I am much obliged. I expressed my concerns in the past about the lack of definition of the words "quiet enjoyment" and, indeed, did so in a letter to the Minister. I must admit that the formula of words in the amendment is not mine; it comes from the department. The purpose of the amendment is purely to open the way for debate on this matter and to try to achieve a better definition. As it is a probing amendment, it is not one that has any consequence for us this evening.
Lord Williams of Elvel: My Lords, I am not quite sure where that gets us. Perhaps it gets us one step further.
I find the first half of the noble Earl's amendment perfectly acceptable but I have some difficulty in understanding the second half. Its language seems rather tortuous. Clearly, it would be very difficult for a national park authority, which is after all a planning authority, to make a distinction when called on to make a planning decision as to whether it was accepting or refusing the application by reference only to quiet enjoyment or for other reasons. That requires a sudden change of hats which would be difficult to put into practice.
I am therefore more attracted to the amendment which I hope will be spoken to by the noble Lord, Lord Marlesford. If some conjunction between the two could be achieved by the Government, they would do the whole House and the Bill a service. I believe that some
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definition is needed. I am not sure that the noble Earl, Lord Lytton, has got it absolutely right. However, I believe that the Government have an opportunity to include a provision which makes sense and improves the Bill.
Lord Elis-Thomas: My Lords, far be it from me to speak for draftsmen in the Department of the Environment or the Welsh Office, or for my noble friend, but the amendment has a certain attraction. It sets out at greater length the general principle of quiet enjoyment. It attempts to define it, but then does not relate it to specific activities. That seems to be the intention of the amendment.
We are on a positive track. Earlier in the debate some of us may have sidetracked the House by referring to specific examples of noise or activity which disrupted the "quiet enjoyment" of parks. That may have prevented the Government from seeing the validity of utilising this definition. If we can reach a definition of quiet enjoyment as a general principle in terms of park objectives which does not predetermine decisions in respect of specific activities that might seem to conflict with that principle, we shall have achieved something. For those reasons, on balance I am attracted by the amendment.
Lord Chorley: My Lords, we have two entirely different amendments on the same point. I hope that we can treat them both as probing amendments. The noble Earl, Lord Lytton, said that his was a probing amendment. I hope that we can treat them both as such, because I believe that we need to explore the question more thoroughly.
On reflection, I have been wondering since the Committee stage whether we need to define quiet enjoyment in the Bill. Reference was made at Second Reading to similar phrases in landlord and tenant law. So far as I am aware, quiet enjoyment in that sense has never been defined by statute but in the courts we nevertheless seem to get along quite well.
As regards Amendment No. 178C, I too find it acceptable up to the semicolon. Then I run into difficulty with the second part. I listened very carefully to what the noble Earl said about the second part of the amendment, but I read it as having the opposite effect to that intended. The amendment states that:
"no person shall be under a duty to prevent, reduce or restrict noise".
It seems to me that, whatever level of noise emerged over time, the authority would have no power to reduce or restrict it. I hope that that is wrong. Since we have learned that the provision was drafted at the DoE, perhaps the noble Viscount will tell me whether I have it right or wrong. It is rather crucial.
Amendment No. 178D seems reasonably satisfactory, although I should like some reference to the words "intrusive activities"—a phrase used by the Edwards Review Panel. I believe that the key lies in the word "intrusive" in relation to special qualities of a park rather than concentrating narrowly on noise. If we need a statutory definition, do we need to spell it out in detail? Would we not do better to arrange perhaps for some guidance note, although clearly not the kind of guidance used in the 31st January draft circular?

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It seems to me that the problem is getting the right balance. I thought that the Edwards Review Panel got it about right. The Edwards Report states:
"We recognise the intrusion caused by several noisy sports…While we do not support their total prohibition in national parks, they should only take place on those rare sites where they do not cause undue annoyance to other park users or damage to the fabric of the parks themselves. In most cases, there may be more appropriate sites outside the parks, and recreational provision of this kind should be determined on a regional scale".
That is the essence of the Edwards Report. Perhaps that could be the basis of guidance.
11.45 p.m.
Lord Barber of Tewkesbury: My Lords, I had not realised that we had got as far as the amendment in my name. My noble friend Lord Lytton has, happily, helpfully said nearly everything that I was going to say. My main aim in moving the amendment is to seek to bring a sense of purpose and urgency in finding a definition that will fit.
I do not wish to repeat much that has been said, but I wish to make this background point. I refer to the sense of relief that we all had when the amendment in the name of the noble Lord, Lord Norrie, was carried. It dealt with the question of "quiet enjoyment". All of us who work with the parks in one way or another realise how vulnerable and fragile these marvellous places are. However well we try to protect them, any close personal association with them brings a sense of unease because their integrity will be extremely difficult to maintain; such is the strength and variety of the inevitable pressures which beset them. Here, in this successfully amended clause, was some provision to help.
Perhaps I may make clear a few points, even if they have been made before. It was made clear in the debate on Second Reading that the purpose of "quiet enjoyment" does not preclude a wide range of other activities taking place. It does not preclude noisy sporting undertakings. Planning controls, traffic regulation orders and by-laws are mechanisms available for quelling noisy sports. It does not affect field sports, as some people have mistakenly suggested. The sweet cry of hounds and the sound of 12 bores remain unaffected. It means primarily that the parks do not have the statutory purpose of promoting the whole recreational range.
However, it was also made clear at the Committee stage that much difficulty lay in defining the term of "quiet enjoyment". I do not believe that we have got much further forward at this stage, beyond suggesting that Amendment No. 178D is slightly less obscure than the amendment in the name of my noble friend Lord Lytton. I still cannot understand the latter part of his amendment.
I have no intention of wandering idly into legal fields which are terra incognita to me and out of bounds. But I am advised by one legal source that a statutory definition of "quiet enjoyment" in the context of national parks is not essential because the expression does not have an existing statutory definition elsewhere. An accepted understanding of its meaning in landlord
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and tenant affairs, for example, has evolved through case law. But clearly there is a need to explore further as to legal and non-legal definitions that are proper and practical in application.
The amendment, which is supported by many bodies—not least the Countryside Commission and the Countryside Council for Wales—has been stitched together with some care as a step down the road to a clearer view. I offer it for consideration, although I have no doubt that some refashioning and re-honing may well be desirable. I repeat that I feel anxious—and I think I speak on behalf of large numbers of people—that we must have a sense of purpose and urgency in eventually establishing precisely what the definition should be. In that spirit, I commend Amendment No. 178D.
Lord Marlesford: My Lords, I believe we all agree that it is important to get this amendment right in one form or another. Inserting the words "quiet enjoyment" was useful in reinforcing the Bill in carrying out one of the essential themes of Edwards. We had difficulty in Committee, possibly caused by the noble and learned Lord, Lord Ackner. I am not a lawyer, like some who have spoken, but I had the impression that somehow he felt that the words "quiet enjoyment" had a well-established common law meaning which may not be appropriate in a statute. Unfortunately, he is not here to help us further tonight.
Setting that aside, assuming that for that reason or others, we need a definition, I prefer the one put down by the noble Lord, Lord Barber and myself, except for the frightful word "quietude", which I cut out. Perhaps I may put the word of the noble Earl, Lord Lytton, "tranquillity" in place of "quietude" and then we would have a useful definition. We need quiet enjoyment in the Bill as a concept; it must be in the statute. Secondly, if it needs to be defined, let it be defined and let us at least say that it is a starting point. My impression is that the Government are well seized of the desirability of what we have been talking about and will help us, if not tonight, at some later stage.
Lord Norrie: My Lords, I wish to add my strong support for Amendment No. 178D in the names of the noble Lord, Lord Barber, and my noble friend Lord Marlesford. In addition, I am interested in Amendment No. 178C in the name of the noble Earl, Lord Lytton. I have had less opportunity to study it, but I understand it to be probing. It is a constructive contribution.
As noble Lords will know, I brought forward an amendment in Committee to make it clear that national parks should promote quiet enjoyment. I was worried that as it stood the Bill required the parks to promote all kinds of enjoyment, even noisy and intrusive activities. Noble Lords agreed that the Bill should be amended in that way.
There was also agreement during the Committee stage that it would be helpful to define "quiet enjoyment" in the context of the national parks. I am advised that, as the noble Lord, Lord Barber, said, such a definition need not be on the face of the Bill. However, I hope that we can agree that a definition in some form of the quiet

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enjoyment of national parks as used since 1945 will greatly assist those responsible for implementing the legislation.
When I moved my amendment in Committee, I used as my point of reference the description of "quiet enjoyment" in the Dower report of 1945 which laid the foundations of our national parks. It is significant that the Dower definition provided the basis for the Countryside Commission's proposed definition. That demonstrates that we are not talking about a new concept. There has been great consistency in what kind of recreation is intended for promotion in the parks. The only difference is that in 1949 no one thought it necessary to qualify in the statute the type of enjoyment intended. The escalation of modem, noisy and incongruous pursuits was understandably not foreseen. It is important that any definition should capture the three elements of the Dower description. They were that any recreational activity should be considered in terms of its impact on, first, the natural qualities of the parks; secondly, the quietude of the area; and, thirdly, people's enjoyment. Amendment No. 178D captures those three dimensions. Amendment No. I78C captures the first two dimensions most elegantly, but not the third.
The noble Earl, Lord Lytton, asked me to return to the distinction between "promoting" and "banning". As I said in Committee, the promotion of quiet enjoyment is not equivalent to banning other activities. There are mechanisms already in place, such as planning controls, by-laws and traffic regulation orders, for controlling noisy or intrusive activities on a case by case basis. I also wish to repeat the statement that I made in Committee that I do not wish to see the promotion of quiet enjoyment used as a basis for banning field sports.
I strongly endorse the Countryside Commission's advice, published for Report stage, that national park authorities should take a positive approach to recreation in the parks. They should make extensive use of positive management methods so that, wherever possible, multi-purpose use can take place without causing damage to the essential quality of the parks.
I also note the Government's position as described in the 1992 policy statement on national parks. Not only did this state that park purposes shall refer expressly to "quiet enjoyment"; it also provided a detailed strategy. I shall quote the relevant paragraph to the House, because I consider it to be most pertinent:
"The Government believes that cooperation is the best means of encouraging sensitive use of the National Parks. Nonetheless, it is clear that those experiences which are unique to the Parks—and which are largely related to the quiet enjoyment of these areas—should be protected and fostered. New recreational uses which threaten those qualities are inappropriate. The question of existing activities, some of which support long established businesses, has to be examined on an individual basis".
I believe that this existing policy provides a very sensible way forward. I further suggest that Amendment No. 178D is consistent with the Government's policy that I have just described.
I welcome clarification on Amendment No. 178C. I ask the following questions. What would the impact be on existing controls over noisy or intrusive activities? Would the amendment mean that action could be taken only if an activity affected the landscape of the park and
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never on the basis of excessive, troublesome noise? What effect would the amendment have on the use of by-law procedures where issues of noise are currently decided on a case by case basis? I shall be interested to hear what the Minister has to say in response.
I hope that the two amendments before us tonight will provide a very good basis for discussions with the Government. There is much common ground. I hope that it will perhaps be possible at Third Reading for the Government to bring back a definition of their own upon which we can all agree.
Lord Northbourne: My Lords, I welcome the two amendments. It is so very necessary in a crowded island such as ours to have places where we can escape from the tyranny of the noisy internal combustion engine. I suspect that the national parks are one of the places where this should be made possible. I support the amendment.
Lord Annaly: My Lords, I shall be very brief at this time of night. I opposed the amendment on "quiet enjoyment" when it was passed. The noble and learned Lord, Lord Ackner, made a very powerful speech. No one tonight has answered the points that he raised. "Quiet enjoyment" is totally subjective. I fully respect all noble Lords who have made the point tonight that it will not affect field sports and this, that and the other. But at the end of the day the national park authorities will interpret the legislation when it is passed. I have no confidence that they will necessarily interpret it the same way.
Therefore, short of doing what the noble and learned Lord, Lord Ackner, said in Committee—that is, making a list of activities, whatever they may be, that are not allowed as they do not pass the "quiet enjoyment" test—I am not happy. I cannot support these amendments.
Midnight
Viscount Ullswater: My Lords, we have had a further interesting discussion about the meaning of the second national park purpose, as amended in Committee. The fact that nine noble Lords have spoken about this matter indicates the level of their concern about how "quiet enjoyment" describes that purpose.
The amendments of the noble Earl, Lord Lytton, the noble Lord, Lord Barber of Tewkesbury, and my noble friend Lord Marlesford, defining the term "quiet enjoyment" have, I believe, helped to expose the very important issues which surround the use of the term. The amendment proposed by the noble Earl, Lord Lytton, represents what I believe many noble Lords said in Committee, explaining the intention underlying my noble friend Lord Norrie's amendment. Indeed, the noble Earl sought my assistance on the amendment, as he described.
There is clearly some concern among your Lordships about how the term might be interpreted. However, our debate has produced some measure of agreement about the meaning of "quiet enjoyment". The majority view seems to be that it means enjoyment by the public in

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ways which are not likely to disturb the tranquillity of the parks or otherwise detract from their special qualities.
There seems to be less agreement about what "quiet enjoyment" excludes. I feel that it was useful that my noble friend Lord Annaly drew attention to his concern on that matter. On the one hand, there are those who think that the revised second national park purpose provides a justification for banning some noisy activities, such as motor-bikes and four-wheel drive vehicles driven across open countryside. In Committee the noble Lord, Lord Elis-Thomas, would perhaps have liked to get rid of low-Flying aircraft. On the other hand, there is a view, as my noble friend Lord Norrie explained in Committee, and as the amendment of the noble Earl, Lord Lytton, makes clear, that the parks should be areas where quiet activities are to be promoted but noisy activities are not to be prevented from taking place by reason of the introduction of the term "quiet enjoyment".
In addition, the noble Lord, Lord Barber, expressed his view that "quiet enjoyment" goes beyond the concept of tranquillity and quietude to embrace the physical condition of the parks so that activities that may cause lasting or serious damage to their fabric should be brought within the scope of the term. That is an interesting point of view.
I have listened with great interest to what has been said this evening. I believe that we need to study very carefully the points that have been made. I expect that there will be a further opportunity for this matter to be considered in another place. In the meantime, I ask the noble Earl, Lord Lytton, to withdraw his amendment.
The Earl of Lytton: My Lords, clearly, I do not want to prolong the debate. I thank the Minister for that very helpful reply. I also thank other noble Lords who have spoken to the amendments. I am sorry if the second part of the amendment was so baffling to a number of noble Lords. Perhaps I should reinforce what I thought I had said earlier; namely, that it endeavours to make sure that there will not be a consequential duty to prevent along with the purpose to promote. That was a point mentioned by the noble and learned Lord, Lord Ackner, in Committee. He was concerned that the one was the obverse side of the coin to the other. I am trying to separate the two.
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By that separation, I wish to reassure noble Lords that the intention is to leave completely intact all the existing powers available to national park authorities. They would not be circumscribed by the amendment. I thought that the wording was reasonably clear and that it meant that there was no duty to prevent arising out of the particular purpose to promote, but all other duties and powers from wherever they are derived remain.
Obviously, I should like to answer a number of the points made by many noble Lords, but the hour is late and it would be wrong for me to prolong matters. I shall read carefully what has been said. I hope that perhaps with the Minister we can sit down with other interested noble Lords and try to find a better formula of words if mine is not acceptable. For the time being, while reserving my position, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 178C not moved.]
Lord Barber of Tewkesbury Lord Barber of Tewkesbury had given notice of his intention to move Amendment No. 178D:
Page 64, line 30, at end insert:
(" () In section 5 of the National Parks and Access to the Countryside Act 1949 (National Parks) after subsection (3) there shall be added—
"(4) For the purposes of this Part of this Act, the expression "quiet enjoyment" in subsection (1) above means recreation, active or passive, which does no lasting or serious damage to the natural beauty, wildlife or cultural heritage of a National Park, respects its quietude and does not diminish enjoyment of its special qualities by the public.".").
The noble Lord said: My Lords, I should like to echo what has been said by my noble friend. (That is something that I appear to have been doing for the past half hour.) I thank the Minister for his constructive reply. It is hoped that there is a general feeling that we should press on with this as a matter of urgency. I would hate to think that we would lose that quiet enjoyment as a result of getting into a legal tangle and finding it difficult to find a way through it. I shall not move the amendment.
[Amendment No. 178D not moved.]
The Earl of Lindsay: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at five minutes past midnight.