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of the regulations. What will this involve-- action taken in accordance with the biodiversity treaty, international discussions at Copenhagen on ozone depletion or in Paris about dumping at sea, safeguarding the shipment of plutonium at sea? All those could conceivably fall under the definition of the exclusion. None of them should.Let us take another specific example--matters relating to the import of toxic wastes. The Basle convention and the recent Luxembourg agreement are matters subject to international discussion and agreement and conceivably related to international relations. In this respect, I fear that the Minister has not been particularly forthcoming. During oral questions to the Secretary of State for the Environment on 9 December the Minister of State touched on the Basle convention and the import of toxic waste, following the Luxembourg agreement. He answered my hon. Friend the Member for Southampton, Itchen (Mr. Denham) as follows :
"We have just negotiated a regulation in the EC which will, for the first time, give this country the power to turn off the tap of waste coming from developed countries for disposal here."
Later he answered a subsequent question as follows :
"Waste for final disposal should be dealt with in developed countries. That is what we have negotiated and we are implementing national plans to ensure that it is put into place when the directive is ratified."-- [Official Report, 9 December 1992 ; Vol. 215, c. 836.]
That is all well and good. The impression given was that, following the agreement at Luxembourg, the Government would get stuck into the process of drawing up measures to ensure that waste coming into Britain from developed countries would be stopped.
Only six days beforehand, however, in an answer to my hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller), the Minister had said of the regulations that would be considered following the Luxembourg agreement :
"We expect no change as a result of the regulation to existing practice within the United Kingdom."--[ Official Report, 3 December 1992 ; Vol. 215, c. 289. ]
It appears, then, that the Government speak with two voices. On 9 December they give the House the clear impression that there will be change, new regulations, action. When they answer my hon. Friend on 3 December, they say that there will be no change.
Why? Having sight of the relevant documents would help, but I suspect that they will fall under the exclusion of matters "related to international affairs". That is a broad- brush exclusion. Fifthly, the regulations lack any realistic appeals procedure for occasions when access is denied. Article 4 of the directive speaks of the need for some such system :
"A person who considers that his request for information has been unreasonably refused or ignored, or has been inadequately answered by a public authority, may seek a judicial or administrative review of the decision in accordance with the relevant national legal system." So the Government are complying with the terms of the directive by saying that judicial review is possible when an access request has been refused.
There are, however, a number of problems. Judicial review can be a costly and cumbersome procedure. With the latest Government cuts in legal aid there is no guarantee that those in need of financial assistance to mount such a review would be able to do so. The only matter that can be considered by such a review is a matter of procedural fairness, not a matter of the real substance of a refusal. That too is a limiting factor.
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In most cases judicial reviews do not permit of thecross-examination of witnesses or the discovery of documents, so it would be difficult realistically to contest a claim of refusal of access on grounds of commercial confidentiality. It would be much better if the Government adopted the proposal that we submitted many months ago in our freedom of information Bill at the start of this year--a proposal for a proper system of appeal to a commissioner who would act on behalf of the citizen, with the back-up of an appeal to a tribunal for the citizen, the relevant authority or a third party, if the commissioner's action did not resolve the issue. The Government have not got the need for a genuine appeals mechanism right.
Sixthly, there is also an exclusion from access for matters subject to a local or public inquiry or hearing. It baffles me why the Government included this provision. The directive states that member states may--not shall--provide for refusal of access for a number of reasons. It may be refused where it affects
"matters which are, or have been sub judice, or under enquiry (including disciplinary inquiries), or which are the subject of preliminary investigation proceedings".
There is no requirement that the regulations should exclude public inquiries, and it seems that the Government are going rather further than the directive suggests they should by cluding local and public inquiries.
The regulations also fly in the face of existing practice at such inquiries, where the earliest disclosure of each side's case has consistently been argued for by the Department of the Environment. A vital feature of our public inquiry system is that full information is available to the public throughout the proceedings. These regulations would permit that principle to be overturned. Is this a case of backtracking by the Government, and if so why? I do not understand why the Government would want to diminish the public's access to information that they have at the moment. Why not omit public and local inquiries from the list of exceptions?
Mr. Roger Evans : Perhaps I can assist the hon. Gentleman. I have not examined the French text of the directive, but it looks as though the directive is directed towards a dossier in the process of compilation by, for instance, a French examining magistrate, which is not made public until the conclusion of that process. that would be logical and understandable. Meanwhile, I agree with the hon. Gentleman : I cannot see how that can possibly be relevant to the wording of regulation 4(2)(b). The other point to which he has drawn attention, regulation 4(5), seems a classic case of mistranslation.
Mr. Smith : The hon. Gentleman is quite likely to be right about the origin of this feature of the regulations. It seems on this point that the directive permits a Government to decide to be more open when drafting their own national regulations, and the Government should have followed that principle when drawing them up. Seventhly, one of the other exclusions from access mentions commercial confidentiality. Regulation 4(2)(e) tells us that information can be treated as confidential if it is
"information relating to matters to which any commercial or industrial confidentiality attaches".
Note the words "relating to". They allow a fairly broad scope.
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Compare and contrast this with the wording of the Environmental Protection Act 1990. Section 22(11) talks about information being commercially confidential"if its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or person."
The Government have therefore taken two different approaches. In the 1990 Act they specifically said that commercial confidentiality should be allowed only on tough grounds where it was judged that disclosure would
"prejudice to an unreasonable degree the commercial interests of that individual or person."
The definition of exclusion on the grounds of commercial confidentiality is remarkably broad in the regulations :
"information relating to matters to which any commercial or industrial confidentiality attaches".
The Government have adopted the easiest possible approach to drawing up the regulations. They have been minimalist in the way in which they have interpreted the requirements of the directive. Where it has been possible to exclude information from access, they have taken the opportunity to do so.
They should not have approached the exercise in that way. They have acted late and grudgingly. They have done the bare minimum that they needed to do, and even that is questionable in some respects. The regulations raise serious questions about definition, interpretation and exclusion. They could have represented a real provision for full access to environmental information and a real strengthening of citizens' power. Instead, we have a flawed set of proposals. I sincerely hope that the Government will think more carefully about this and come forward in the near future with revisions that meet some of the objections of which they need to take account. As they stand, I fear that the regulations, although a small step forward, are a sadly missed opportunity.
8.51 pm
Mr. Roger Evans (Monmouth) : I respectfully suggest that the hon. Member for Islington, South and Finsbury (Mr. Smith) has been a little curmudgeonly in his response to the regulations, which are a classic piece of Euro legislation in the very best sense. Enormous benefits will flow from the amount of environmental information that will become available as a result of the regulations. There is no virtue in deceiving people through ignorance. The opposition that has been mounted in certain parts of the press to the publication of the history of landfill sites, lest that adversely affects the development of houses thereon at a later time, is wholly unfair and unrealistic. People have a right to know. It is interesting that seven substantive criticisms have been made of the way in which the regulations have been drafted. However, it appears that the Government and the parliamentary draftsmen--with one exception, to which I have already referred--should be heartily congratulated and have followed the drafting of the directive. The first criticism made against the regulations was the test of "adversely affect." It may well be that that raises an issue of fact, but the actual wording is
"adversely affect or likely adversely to affect."
That is wide language, and, provided that there is something conceivable and practical in the way of a factual nexus between the information and the adverse reaction to it, a court will order disclosure. This is how, for example, the treaty of Rome is creating actionable rights for
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individual subjects for the first time in areas of public law that we have never known in this country. That is why it should be welcomed. That change represents, no doubt, in the language of the hon. Member for Islington, South and Finsbury, the spread of civil liberties in a practical, direct and important manner. I have no doubt that if there was a refusal to disclose information on the inputs to power stations, and provided that there is some scientific basis, as we strongly suspect that there must be, between what goes in and what might come out, that could be challenged in the courts for the first time.Mr. Chris Smith : Will the hon. Gentleman therefore give that message to the Secretary of State, who has said that precisely such information shall be kept confidential?
Mr. Evans : We are debating the regulations because we are going to change the law ; the Government have accepted that. Under the regulations that we are about, I hope, to pass, there will be power for the first time to challenge such a decision to refuse to disclose any information.
Let us re-examine Sellafield. I have no doubt that the undesirable and highly secretive practices of the nuclear industry will be exposed to the ray of truth and light to an extent that we have never seen before. Such disclosure will not be limited just to ourselves. Those of us who have always been suspicious of the French habit of putting nuclear power stations near Cherbourg and along the coast of Brittany, opposite the Channel islands, will now have an opportunity, for the first time, to press the French nuclear industry to reveal a whole host of information that might be of great interest. The whole point about Community action rather than national action is that pollution knows no national frontiers, and the regulations are an excellent example of the Community at work doing a great deal of good.
Complaint has been made about charging and overcharging for the supply of information. Surely some reasonable payment must be made for the burden on various organisations that must supply information. Otherwise, every otiose and unreasonable request would simply be imposed as an additional burden upon the taxpayer, ratepayer or a commercial concern, which would pass that on through its prices to the consumer. We have already accepted under the Data Protection Act 1984 a system of charging. If one has a right to know, it is reasonable that one should pay a reasonable charge.
I do not understand why a complaint about disclosure
"capable of affecting international relations"
should be laid at the door of my right hon. Friend. That is the precise language in paragraph 4(2) and, in any event, such a restriction, even if it were taken up, would not apply to inter-Community relations. I should be grateful to my hon. Friend the Minister for guidance on that when he winds up.
The hon. Member for Islington, South and Finsbury has also complained that there is no proper appeal procedure, but I would suggest to him that judicial review is a cheap, economical, speedy and effective process for challenging Ministers. Even on legal aid we have seen the radical growth of the ambit and scope of that remedy in recent years. Individual legally aided plaintiffs have challenged Ministers with increasing enthusiasm, backed up by the legal profession. law centres and so on.
There is a right under order 53 of the rules of the Supreme Court to obtain discovery of documents and a
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power to order interrogatories. Cross- examination is not impossible and it may be ordered at the discretion of the judge. Real remedies of substance are offered, by way of the process of judicial review, which is well established and is effective.As to confidentiality in respect of commercial transactions and the phrase "relating to", that phrase is customary and well known and it is used in the case of discovery of documents "relating to" the issues in an action. What is proposed in the regulations is perfectly conventional and has wide- reaching implications.
However, I share the amazement and puzzlement of the hon. Member for Islington, South and Finsbury about local inquiries. For years there has, quite properly, been an increasing degree of the prior disclosure of information. I do not understand how the exception of local inquiries has crept into the regulations, unless because of a mistranslation.
I am also puzzled about another, connected matter. Regulation 4(2)(b) refers to
"information relating to, or to anything which is or has ben the subject- matter of, any legal proceedings".
I would understand the enthusiasm of the French Government to preserve secrecy if a secret dossier were being compiled, given the inquisitorial system that operates in that country. Under the British system, however, all documents in the court process--whether they are pleadings or affidavits--are normally deemed to be public documents which are matters of public record.
The provision is peculiar ; I do not know why it was included in the first place. It also leads to a serious anomaly. Let us suppose that a plaintiff sues a polluter for defamation, or a polluter sues someone else on the same grounds, and those proceedings compromise in the traditional way of the record being withdrawn. The information will then become secret, and the regulation encourages it to remain secret. I do not see why matters that are the subject of litigation should not be in the public domain when our court system is public. My constituents are very anxious about the effect of proposals that are now the subject of a public inquiry : we are awaiting the results, which will eventually reach the Secretary of State for Wales. They are concerned about the health consequences, and the effect on the environment, of opencast coal mining on the Blorenge at a site called Pwll Du. There has been a good deal of community action of the classic variety, which advances human knowledge, understanding and public awareness. I am thinking particularly of the work of Doctors Taylor and Temple, who have exposed real public concerns about the environmental effects of opencast mining.
Such arguments should not take place in secret. The cards should be placed face upwards, and the promoters of opencast coal mining--or any other activity that may have adverse effects on health--should be forced to publish all the relevant information so that the public may form their own judgment and independent experts may do the same. That is precisely what the statutory instrument proposes, and I commend the European Community for its imagination. Here is a classic example of something that can be done better at Community level.
9 pm
Mr. Simon Hughes (Southwark and Bermondsey) : In February this year, on behalf of my party, I launched a document entitled "Good Government for a Greener
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Britain"--which no doubt was read assiduously by all hon. Members. I would like to remind the House of what I said then and I think that this is the first time in nearly 10 years that I have quoted my own words in this place, as I crave the House's indulgence.I said :
"Secrecy is the number one killer of the environment in Britain today, and a Freedom of Information Act is the best possible deterrent to this type of crime. Our eco-system is being let down by our political system.
The Government often uses the excuse of commercial confidentiality to keep facts from its citizens. Yet it is the countries which trust their citizens with information which are not only freer than us but more prosperous. Our unaided senses may tell us that something is wrong with the area we live in or the food we eat, but only hard information will point the way to remedy it.
The citizen must be properly informed. Green knowledge is green power."
Like the hon. Member for Monmouth (Mr. Evans), I am enthusiastic about what the treaty of Rome and subsequent legislation have done for freedom of information and for the environment. I have always been enthusiastic about the European Community, partly because it has pushed us further and faster towards good environmental practice. I therefore welcomed the directive requiring member states to introduce legislation to enact those proposals.
As the hon. Member for Monmouth rightly said, one of the great advances in our legal system in recent years is the interest in public law on rights to environmental information. The fact that many associations and individuals now practise environmental law is not unrelated. There is now an Environmental Law Federation, and some practitioners deal with almost nothing else. That is because the public want or require information, and often have to take legal action to avail themselves of their rights.
In recent years, Government legislation has done something to improve those rights. As he rightly reminded us, the initiative of the hon. Member for Islington, South and Finsbury (Mr.
Smith)--supported by freedom of information campaigns--also put a Private Member's Bill on the statute book ; but we needed more, and the statutory instrument gives us the opportunity to secure more. Like other hon. Members, I shall not vote against the regulations because to do so might prevent us from complying with our European Community obligations--and far be it from me to wish that on the House. As the hon. Member for Islington, South and Finsbury said, we are cutting it pretty fine. This is the last environmental debate of 1992 and of the British presidency, comment about which is often made elsewhere, and we are just in time in squeezing in these regulations, which we have an obligation to enact by the end of the year--so we had better be good and allow them to go through, even if we have some criticisms about their inadequacy.
The regulations are welcome but, as the hon. Members for Islington, South and Finsbury and for Monmouth have said, we could and should have done better. I, too, shall suggest where we must do better and hope that the Minister, it being the week before Christmas, will be in a responsive mood and will say, "Yes, I accept that this is not a perfect document and we shall see whether we can improve it in due course." I hope that there will be an
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opportunity to review the use of the regulations before too long. One of the problems with the House is that it passes much legislation that is not consolidated, which would help the public. Often we do not review legislation or regulations until we have discovered, far too late, that they are not working too well.Mr. Roger Evans : Article 8 of the directive places an obligation on the Government to report to the Commission within four years.
Given the importance of environmental information and legislation, I hope that we shall hold an annual debate on the state of the environment, in which Ministers and other hon. Members could comment on the progress being made. Additionally, as with most Community legislation, there is a duty on the Government to report back for a Communitywide review. One of the benefits of this legislation will be that we will have access to information about what is going on not only in Britain but in other European Community countries--for instance, about nuclear power in France, pollution of rivers and seas by coastal countries, and so on.
The Minister explained in his introduction that the regulations do not extend to Northern Ireland, and nearly told us why. We know why : the normal reason is that legislation for Northern Ireland is dealt with separately ; none the less, we have a duty under the treaty to ensure that Northern Ireland is covered. I should like to know when the people of Northern Ireland will be given the same rights as the rest of us. Unless I have missed something, there is barely any time left to comply, and I should be disappointed if on 1 January the people of Northern Ireland found themselves unable to avail themselves of the same rights as the rest of us.
I shall not elaborate on the criticisms that have been made but rather shall concentrate on those which seem the most germane. Lest I be accused of traditional Opposition churlishness, I should say that the regulations have been criticised by environmentalists as well. I ask the Government to take that criticism seriously.
There is a problem with the term "relates to the environment", which is the definition given in regulation 2(1)(a) and expanded in 2(2)(a), as the Labour spokesman said. However, regulation 2(2)(a) is a limited expansion and the definition is also very limited. If we went out into the streets of London on this damp and dismal evening and asked people what they understood by the term "relates to the environment" the reply would be not so limited as the list in regulation 2(2)(a).
Regulation 3 is entitled, "Obligation to make environmental information available", and covers the arrangements for replying to any response. There is also a problem with the test which is set out because it is deemed a failure only if there is no response after two months. As we know from parliamentary answers, a response can be anything and nothing--it can be helpful or unhelpful, minimalist or maximalist. It is inadequate to define a failure only as not having a request responded to at all after more than two months. I am sure that this will prove a loophole. People will be able to say that they have responded, but the response may often be nothing worth. Regulation 3(3) provides another let-out. When I worked in the secretariat for human rights at the Council of Europe in Strasbourg, we had to apply tests which
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debarred applicants from getting their case before the Commission, let alone the court. One of the tests was whether the issue was too general and not specific enough. We are creating a problem here by building in a threshold which states that a request for information can be refused when the request"is manifestly unreasonable or is formulated in too general a manner."
We, the public, may not know exactly what information is held. That is half the battle, because the information is held by the person whom we seek to challenge. Therefore, it is no good to be told, "Sorry, you are being too general--what exactly do you want?" when one does not know what information is held.
There is also a problem with charges, which are covered in the following paragraph. There is a qualification of the test for the charges, nevertheless the charges should be no greater than the cost to the provider of providing information to the person who asks. It is unreasonable to levy charges other than the cost of reproducing a copy and the cost of personnel time for information that is held. That is a weakness, because the regulation goes no further. The hon. Members for Monmouth and for Islington, South and Finsbury and I would probably put at the top of our list of concerns the exceptions in regulation 4. The most general criticism is that regulation 4 has been chosen by the Government as a mechanism for including more and wider exceptions than were required by the directive or by good environmental practice.
I expect that colleagues will have seen the report published in November this year in the journal of Environmental Data Services Ltd., but it is worth bringing it to the House's attention. Page 35 states :
"Obstructing in Whitehall seems set to restrict the impact of the 1990 EC directive on public access to environmental information, which is due to be brought into force at the end of the year. An official from the Department of the Environment has revealed that other Departments are likely to block requests for not only their own information but for industrial data claimed to be commercially confidential."
I have not made inquiries to see whether that official is in the Box tonight and I do not mean to embarrass him if he is. He is nonetheless quoted in the article, so I shall quote him now. The article continues :
"a DoE official, Dick Baxter, at a conference on international chemicals control in November"
said that whereas his Department was quite positive, other Departments were certainly less so. He noted that the exemptions were quite wide and that other Departments had told his Department that they would probably be able to find some means of not disclosing. Mr. Baxter said :
"If their culture is agin, I believe they can find a hook to hang it on."
That is not very encouraging. Even if the Department of the Environment is being good, all the other Departments may not be good.
The article continues :
"Mr. Baxter revealed that several Departments are insisting that if industry insists that information is commercially confidential, that would be sufficient reason not to disclose it. It will be open to Departments to ask companies to reconsider, he said, but some might not wish to challenge it, others may.' "
In summing up the situation in which people would be left, Mr. Baxter concluded :
"The directive's success is likely to depend on people being willing to go to court. Groups such as Friends of
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the Earth and the Freedom of Information Campaign have the resources to do so, and if I were in their shoes, I would go straight to the European Court of Justice.' "In the past few years, I have occasionally been to conferences where I have heard officials say interesting things--not only officials from the Department of the Environment. I remember a Department of Energy official saying that it was quite possible for Britain to do without the nuclear component for energy supply if we wanted to, provided that we had energy efficiency and energy conservation measures that worked.
If Mr. Baxter is right--he seems to know what he is talking about--we have substantial cause for concern. Departments can be obstructive and companies in the private sector can be obstructive. The regulations will rely on people going to court, which should not be the case. We should not make people go round a great obstacle course--we should be opening the doors wide so that people can go straight through.
The exception clause is therefore a great problem. Although we could argue that it is the normal legal text, the phrase in regulation 4(1)(a)--
"Nothing in these Regulations shall require the disclosure of any information which is capable of being treated as confidential"-- is far too wide. The other half of the regulation says : "or authorise or require the disclosure of any information which must be so treated."
The specific and obvious example of where the regulations are drawn in a way that is far too wide--I do not intend to elaborate on the well-made points about international negotiations which relate to regulaton 4(2)(a)-- regulation is 4(2)(b). The regulation says : "For the purpose of these Regulations information is to be capable of being treated as confidential if, and only if, it is information relating to, or to anything which is or has been the subject-matter of, any legal or other proceedings (whether actual or prospective)". It is a ridiculous proposition that one will allow an exemption--the hon. Member for Monmouth went down this road too--for anything that has ever been the subject of any sort of legal proceedings, no matter how widely defined. Once the case is over, whether traditional legal battle, public inquiry or any of the other proceedings set out in 4(5), under the British system, information should be open and available. There is no excuse at all for such documents to be exempt and it is completely unjustified.
Many issues are the subject of public inquiries. Examples are whether Sizewell B should be built, whether THORP--the thermal oxide reproducing plant--should be brought into operation, whether the M3 bypass should go across Twyford down and whether there should be an east London river crossing at Oxleas wood. All those are the subject of public debate, possible legal cases or applications for judicial review. All that should be in the open. It is disgraceful that we are seeking to grant that exemption, particularly as the directive, as I understand it, does not require it. It provides an opportunity, but not a requirement. The Government are being traditionally defensive on the subject. I do not know whether it is the Department of the Environment or other Departments which have urged the Government to be so.
The list of confidential information on the following page also allows room for ambiguity and prevarication. It states :
"information relating to the confidential deliberations"--
Mr. Mike O'Brien (Warwickshire, North) : At the end of regulation 4(2)(b) there is reference to
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"any legal or other proceedings (whether actual or prospective)". The word "prospective" makes the condition so expansive that anyone seeking to restrict any information, according to the regulations, need only say that they intend to consider taking legal proceedings and they will not have to reveal the information.Mr. Hughes : I am grateful to the hon. Gentleman. He is absolutely right. I was so carried away with my earlier point that I forgot to deal with that. It would be as if we, in this place, were told that matters could not be raised because they were sub judice simply because they might be the subject of legal action at some future date. That would allow anything to be exempted. If there were controversial proposals for orimulsion and it was reported in a newspaper that a campaign group would take legal action if BP went ahead, the regulations would threaten us if we revealed the information.
The regulations also refer to
"information relating to the confidential deliberations of any relevant person".
That contains a hidden question relating to the relevant person--who could be a local councillor, or a member of a Government Department or a quango-- and whether specific parts of their deliberations should be confidential.
Regulation 4(2)(d) could allow for real skulduggery. It refers to "information contained in a document or other record which is still in the course of completion".
We all know how hon. Members occasionally chance upon documents. If we wave our spoils about and say that we have found a secret document belonging to another party, the defence used is normally that what we have is not the final document, but only a draft. It is very difficult to know when a document has been completed, and it is always a defence to say that it has not. The regulations we are debating tonight are not complete--they are only draft regulations. We do not know whether it is a completed document or not. Would it be completed if it had been shown to one person in the Department, or to one person and an expert outside the Department, or to 25 people? The regulation provides a minefield of excuses.
Regulation 4(2)(e) refers to
"information relating to matters to which any commercial industrial confidentiality attaches or affecting any intellectual property". Public interest should override commercial confidentiality. It is not good enough for a private sector company or a nationalised company, or a company such as PowerGen, which is an in-between company, to say that the matter is commercially confidential. That assertion must be tested. We know that, if the matter is taken to court, a plea can be entered stating that the information is commercially confidential and the matter will not be aired. There should be a public interest test. Environmental information is no good if it is available only from the public sector. People living in Pontypool need to know what ReChem is doing, and people living just outside Presteigne or Kington near the borders of Powys need to know what the local garage is doing burning tyres--
Mr. Dennis Skinner (Bolsover) : Or Coalite.
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