House of Commons Hansard Debates for 28 Jun 1995

Schedule 15

Minor and consequential amendments relating to fisheries

Amendments made: No. 78, in page 239, line 10, at end insert-- `. After subsection (1A) of section 39 of that Act (application of Act to River Esk in Scotland) there shall be inserted--

"(1B) Sections 31 to 34 and 36(2) of this Act shall, subject to the modifications set out in subsection (1C) below, apply throughout the catchment area of the River Esk in Scotland but a water bailiff shall exercise his powers under those sections as so applied only in relation to an offence--

(a) against this Act;

(b) against section 1 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951; or

which he has reasonable cause to suspect has been committed in a place to which this Act applies by virtue of subsection (1)(b) above.

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(1C) The modifications referred to in subsection (1B) above are-- (a) references in sections 31 to 34 of this Act to "this Act" shall be construed as including references to section 1 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (as applied to the River Esk by section 21 of that Act); and

(b) in section 33--

(i) references to a justice of the peace shall be construed as including references to a sheriff; and

(ii) in subsection (2), the reference to an information on oath shall be construed as including a reference to evidence on oath.".'. No. 79, in page 239, line 22, at end insert--

`. In subsection (3) of section 43 of that Act (extent of Act to Scotland), after the words "(1A)" there shall be inserted the words ", (1B), (1C)".'.- - [Mr. Atkins.]

Schedule 16

Pollution of rivers and coastal waters in Scotland: amendment of the Control of Pollution Act 1974

Amendments made: No. 222, in page 244, line 14, leave out from `person' to `shall' in line 15.

No. 223, in page 244, line 19, leave out

`if the mine or part of the mine'

and insert

`to the owner or former operator of any mine or part of a mine if the mine or part'.-- [Mr. Atkins.]

Schedule 20

Delegation of appellate functions of the Secretary of State

Amendments made: No. 80, in page 252, line 48, leave out `delegation' and insert `appointment'.

No. 81, in page 253, line 30, leave out `or 66(5)' and insert `, 66(5) or 78S(3)'.-- [Mr. Atkins.]

Schedule 21

Application of certain other enactments to the Crown

Amendments made: No. 24, in page 255, line 26, at end insert-- `Part I: Enactments Relating to England and Wales'.--

No. 25, in page 257, line 39, at end insert--

`Part II: Enactments Relating to Scotland--

The Sewerage (Scotland) Act 1968

. For section 55 of the Sewerage (Scotland) Act 1968 (Crown application) there shall be substituted--

"Application of Act to Crown

55.--(1) Subject to the provisions of this section, this Act shall bind the Crown.

(2) No contravention by the Crown of any provision made by or under this Act shall make the Crown criminally liable; but the Court of Session may, on the application of a sewerage authority, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(3) Notwithstanding anything in subsection (2) above, any provision made by or under this Act shall apply to persons in the public service of the Crown as it applies to other persons.

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(4) If the Secretary of State certifies that it appears to him, as respects any Crown premises and any powers of entry exercisable in relation to them specified in the certificate, that it is requisite or expedient that, in the interests of national security, the powers should not be exercisable in relation to those premises, those powers shall not be exercisable in relation to those premises.

(5) Nothing in this section shall be taken as in any way affecting Her Majesty in her private capacity.

(6) In this section "Crown premises" means premises held by or on behalf of the Crown.".'.

No. 26, in page 258, line 12, at end insert--

`The Water (Scotland) Act 1980

. After section 110 of the Water (Scotland) Act 1980 there shall be inserted--

"Application of Act to Crown

110A.--(1) Subject to the provisions of this section, this Act shall bind the Crown.

(2) No contravention by the Crown of any provision made by or under this Act shall make the Crown criminally liable; but the Court of Session may, on the application of a water authority, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(3) Notwithstanding anything in subsection (2) above, any provision made by or under this Act shall apply to persons in the public service of the Crown as it applies to other persons. (4) If the Secretary of State certifies that it appears to him, as respects any Crown premises and any powers of entry exercisable in relation to them specified in the certificate, that it is requisite or expedient that, in the interests of national security, the powers should not be exercisable in relation to those premises, those powers shall not be exercisable in relation to those premises.

(5) Nothing in this section shall be taken as in any way affecting Her Majesty in her private capacity.

(6) Subject to subsections (4) and (5) above, the powers conferred by sections 16 to 18 above shall be exercisable in relation to land in which there is a Crown interest only with the consent of the appropriate authority.

(7) In this section--

"the appropriate authority" has the same meaning as it has in section 253(7) of the Town and Country Planning (Scotland) Act 1972;

"Crown interest" means an interest belonging to Her Majesty in right of the Crown, or belonging to a government department or held in trust for Her Majesty for the purposes of a government department;

"Crown premises" means premises held by or on behalf of the Crown.

(8) The provisions of subsection (7) of section 253 of the Town and Country Planning (Scotland) Act 1972 (questions relating to Crown application) as to the determination of questions shall apply for the purposes of this section.".

The Local Government etc. (Scotland) Act 1994

. After section 125 of the Local Government etc. (Scotland) Act 1994 there shall be inserted--

"Application of Part II to Crown

125A.--(1) Subject to the provisions of this section, this Part of this Act shall bind the Crown.

(2) No contravention by the Crown of any provision made by or under this Part of this Act shall make the Crown criminally liable; but the Court of Session may, on the application of a new water and sewerage authority, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(3) Notwithstanding anything in subsection (2) above, any provision made by or under this Part of this Act shall apply to persons in the public service of the Crown as it applies to other persons.

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(4) Nothing in this section shall be taken as in any way affecting Her Majesty in her private capacity.

(5) Subject to subsection (4) above, the powers conferred by section 99 above shall be exercisable in relation to land in which there is a Crown interest only with the consent of the appropriate authority.

(6) In this section--

"the appropriate authority" has the same meaning as it has in section 253(7) of the Town and Country Planning (Scotland) Act 1972; "Crown interest" means an interest belonging to Her Majesty in right of the Crown, or belonging to a government department or held in trust for Her Majesty for the purposes of a government department;

"Crown premises" means premises held by or on behalf of the Crown.

(7) The provisions of subsection (7) of section 253 of the Town and Country Planning (Scotland) Act 1972 (questions relating to Crown application) as to the determination of questions shall apply for the purposes of this section.".'.-- [Mr. Atkins.]

Schedule 22

Minor and consequential amendments

Amendments made: No. 82, in page 260, line 34, leave out `52(3)' and insert `7(8)'.

No. 83, in page 260, line 34, after `1958' insert

`(definitions etc. for the purposes of section 7) in paragraph (i) of the definition of "statutory water undertakers" for the words "National Rivers Authority" there shall be substituted the words "Environment Agency".

(2) In section 52(3) of that Act'.

No. 84, in page 263, line 15, at end insert--

` The Prevention of Oil Pollution Act 1971

14A.--(1) The Prevention of Oil Pollution Act 1971 shall be amended in accordance with the following provisions of this paragraph.

(2) After section 11 (duty to report discharge of oil into waters of harbours) there shall be inserted--

"Certain provisions not to apply where a discharge or escape is authorised under Part I of the Environmental Protection Act 1990 11A.--(1) The provisions of sections 2(1) and (2A), 3(1) and 11(1) of this Act shall not apply to any discharge which is made under, and the provisions of section 11(1) of this Act shall not apply to any escape which is authorised by, an authorisation granted under Part I of the Environmental Protection 1990.

(2) This section does not extend to Northern Ireland."

(3) In section 25(1) (power to extend certain provisions of the Act to the Isle of Man etc.), after the words "other than section 3" there shall be inserted the word ", 11A".'.

No. 85, in page 266, line 50, at end insert--

` . In section 62(2)(a) of that Act (exceptions to restrictions on the operation of loudspeakers in streets), as it has effect in relation to England and Wales, for the words "National Rivers Authority" there shall be substituted the words "Environment Agency".'.-- [Mr. Atkins.]

Amendment proposed : No. 224, in page 269, line 14, at end insert--

`( ) After section 38 there shall be inserted--

"General review of consents

38A.--(1) If it appears appropriate to the Secretary of State to do so he may at any time direct SEPA to review--

(a) the consents given under section 34 of this Act; or (b) any description of such consents,

and the conditions (if any) to which those consents are subject.

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(2) A direction given by virtue of subsection (1) above-- (a) shall specify the purpose for which; and

(b) may specify the manner in which,

the review is to be conducted.

(3) After carrying out the review, SEPA shall submit to the Secretary of State its proposals (if any) for--

(a) the modification of the conditions of any consent reviewed pursuant to the direction; or

(b) in the case of any such consent which is unconditional, subjecting the consent to conditions.

(4) Where the Secretary of State has received any proposals under subsection (3) above in relation to any consent he may, if it appears appropriate to him to do so, direct SEPA, in relation to that consent--

(a) to make modifications of the conditions of the consent; or (b) in the case of an unconditional consent, to subject the consent to conditions.

(5) A direction given by virtue of subsection (4) above may direct SEPA to do, in relation to any such consent, only--

(a) any such thing as SEPA has proposed should be done in relation to that consent; or

(b) any such thing with such modifications as appear to the Secretary of State to be appropriate.".'.--[ Mr. Atkins .]

Madam Deputy Speaker: With this, it will be convenient to discuss also the following amendments: Government amendment No. 225. No. 119, in page 310, line 19, at end insert--

`129A. After section 88(2) of that Act (Defence to principal offences in respect of authorised discharges) there shall be inserted--

"(2A) Nothing in any consent given under this chapter shall be treated for the purposes of subsection (1) above as authorising a discharge of any significant quantity of poisonous, noxious or polluting matter or any solid waste matter other than is specified in that consent.".'.

Government amendments Nos. 101 to 103 and 109.

11.45 pm

Sir Cranley Onslow (Woking): I wish to speak briefly on this group of amendments, in particular my amendment No. 119.

I am grateful to my right hon. Friend the Minister for the Environment and Countryside for his patience and courtesy, and for the way in which he has dealt with this Bill and the improvements that I have tried to make to it. Also, this is the first opportunity that I have had to congratulate him on his admission to the Privy Council.

It may seem churlish of me to point out that, in spite of the courtesy that my right hon. Friend has shown me in Committee and subsequently in written exchanges, he has not been able to satisfy the National Rivers Authority, which is very concerned about a problem that has arisen. It has been legally advised that it cannot prosecute a discharge consent holder in respect of a pollution incident, no matter how serious, if the pollution is caused by substances that are not identified in, or limited by, the terms of the consent.

The Minister has seen the letter from the chairman of the NRA on the subject, and will know the details behind the position. I can summarise it by saying that the noble Lord Crickhowell is still of his original opinion that, of the two possible options for solving that problem, the legislative option is better than the administrative solution that the Government seem to be proposing.

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The House should know that that situation has arisen, and I hope that hon. Members will share my view that the NRA and the Environment Agency must be free to prosecute when a pollution incident occurs because of a discharge of unconsented or uncontrolled substances. The proposal embodied in the Government amendments does not deal with that problem.

My right hon. Friend the Minister will no doubt deploy a number of arguments against my proposal, which is for legislative change, but I hope that he will not pray in aid the fact that the proposal that he has advanced will be no burden on the agency.

The House should know that there are 95,500 consents on the register, of which 14,800 are currently monitored because of their potential or actual environmental significance. If the solution that the Government propose in the amendment is accepted, the cost of monitoring consents will be more than £1 million, and a great deal of NRA manpower and resources will have to be applied. I simply want to put the facts on the record, because it may well be that the matter will come up again for consideration in another place. But it would be wrong for the House to think that there is a solution yet to this tiresome problem.

Mrs. Helen Jackson: I associate myself with comments of the right hon. Member for Woking (Sir C. Onslow). The Minister said in Committee that he was not an unreasonable man, and that, if it was clear from further discussions with the NRA that there was a major problem with redrafting all the existing discharge consents, he would be prepared to consider that.

The Minister will know of the press release issued on 24 June by the NRA, in which the director of water management, Clive Swinnerton, said that the loopholes we are talking about here have effectively turned the NRA's discharge consents--which are intended to control pollution by setting limits on what the holders can discharge into rivers--into licences to pollute.

Dr. Swinnerton said that he felt the Government's proposal will place an impossible burden on the NRA, and added that it was vital that an amendment to close the loophole be immediately included in the Bill. It would have been nice if immediately were to mean tonight, but I am disappointed that the Government have not taken on board their further discussions with the NRA.

As hon. Members have placed the matter on record tonight, it may be taken up in another place before the Bill ends up as legislation. I am sure that the Minister will agree that there is an unresolved issue here, which needs to be resolved before the Bill becomes law.

Mr. Atkins: I am extraordinarily grateful to my right hon. Friend the Member for Woking (Sir C. Onslow). A compliment from one such as he-- particularly on matters relating to such a distinguished body as the Privy Council--is one to be treasured, and I do so.

In relation to his amendment, my right hon. Friend was kind enough to say that he and I have tried to address this matter together--so far, regrettably, without the success that my right hon. Friend apparently required. The effect of amendment No. 119 would be to change the law, but not in the largely declaratory manner suggested. In fact, the amendment would have the potential to change overnight the requirements placed on dischargers, without

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