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Earl Howe: As my noble friend explained, this group of amendments would provide for the costs that are incurred by the agency in relation to the administration of the fixed penalty system for which Clause 86 makes provision to be met by a fixed charge levied on those who are liable to pay the penalty.

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Let me say straightaway to my noble friend that I entirely understand the rationale behind this proposal. However, it could have wider implications, and it therefore needs to be considered with particular care. We wish to look more closely at what my noble friend has proposed. We shall do so between now and Report. Against that background, I hope that my noble friend will be content to withdraw the amendment at this stage.

Viscount Mills: I thank my noble friend the Minister for his comments. I should like to make just one further point which may be relevant. As I understand it, the new agency will not be compelled to use the fixed penalty scheme. It could therefore pursue cases through the courts. If the new agency is unable to recover its costs, will that not be a strong disincentive to using the new scheme, which in all other respects would seem to have some very great advantages? Perhaps the Minister might like to comment on this point.

Earl Howe: Again, that is a point that we shall have to consider very carefully. I am not sure that I agree with my noble friend. We believe that the fixed penalty system will prove attractive and far less bureaucratic. But I am grateful to him for the point that he made. We shall of course bear it in mind.

Viscount Mills: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 335ZAB to 335ZAE not moved.]

Earl Howe moved Amendment No. 335ZB:

Page 96, line 12, after ("above,") insert ("a water bailiff or other officer of the Agency").

On Question, amendment agreed to.

Clause 86, as amended, agreed to.

Clause 87 [Miscellaneous minor amendments relating to fisheries]:

Earl Howe moved Amendment No. 335ZBA:

Page 96, line 20, after ("Act") insert ("(which makes minor and consequential provision in relation to fisheries)").

The noble Earl said: In moving this amendment, perhaps I may also speak to government Amendments Nos. 335ZC, 335ZD, 335B, 335C, 335D, 399C and 402A together.

Clause 87 introduces Schedule 12 to the Bill. Amendment No. 335ZBA will make a small addition to the wording of this clause so that it states the purpose of that schedule.

Amendments Nos. 335C and 335D do likewise in respect of Clauses 88 and 89, which introduce Schedules 13 and 14 respectively. Amendments Nos. 335ZC, 335ZD and 335B are intended to rectify an omission from the Bill. The changes to fisheries legislation that they introduce are required as a consequence of the abolition of the NRA and the transfer of its fisheries function to the agency. The amendments provide that any provision in specified legislation which contains, or falls to be construed as containing, a reference to the National Rivers Authority, shall have effect on and after the transfer of responsibility to the agency as if it were a reference to the agency. They also provide for the

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replacement of certain references to the National Rivers Authority with references to the agency, and give the Minister or the Secretary of State the power to amend subordinate legislation by statutory instrument if it appears to them to be appropriate to do so for the purpose of, or in consequence of, the coming into force of this schedule.

The amendments to Schedule 12 are based on and follow closely the provisions of Schedule 17 to the Water Act 1989 which made similar changes to the same fisheries legislation in order to reflect the transfer of responsibility for fisheries matters from the water authorities to the National Rivers Authority. As a consequence of these amendments, some parts of Schedule 17 to the 1989 Act will become redundant. Amendments Nos. 399C and 402A provide for their repeal. These are essentially technical amendments. I beg to move.

On Question, amendment agreed to.

Clause 87, as amended, agreed to.

Lord Dixon-Smith moved Amendment No. 335ZBB:

After Clause 87, insert the following new clause:

("Due diligence defence to charge of polluting waters

.—(1) After subsection (6) of section 85 of the Water Resources Act 1991 there shall be inserted—
"(7) It shall be a defence for a person charged with an offence under this section to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence."
(2) After subsection (3) of section 4 of the Salmon and Freshwater Fisheries Act 1975 there shall be inserted—
"(4) It shall be a defence for a person charged with an offence under this section to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.").

The noble Lord said: In moving this amendment, I should just point out that two of the amendments with which it is grouped comprise words which make the substance of this amendment. Under the Water Resources Act 1991 and also the Salmon and Freshwater Fisheries Act 1975, as developed by the courts, it is an absolute offence to pollute a water course. As a result, any individual or business, even if they behave with the utmost propriety, is guilty of a criminal offence if a discharge of pollutant is proved to have taken place from their property. The court may find that an absolute discharge is appropriate to the circumstances of a particular case. But a criminal record, with all that that implies, is unavoidable. The purpose of my amendment is to provide a defence of due diligence to make it possible to bring in a not guilty verdict in appropriate circumstances and so avoid the possibility of an unjust criminal record.

My noble friend the Minister is aware of the case law in this matter; I do not need to take up the Committee's time in rehearsing the details. However, I should point out that due diligence is an acceptable defence in another area of environmental law. The Environmental Protection Act of 1990 accepts such a defence at Section 33(7) and also in Section 34. These clauses deal with the control and disposal of waste. Due diligence must be proved to the satisfaction of the court and only when that has been done is a not guilty verdict possible.

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Due diligence is an acceptable and proper defence in other countries. For instance, both Canada and Australia, which are Commonwealth countries with legal systems that are based on ours, accept that defence as a proper one in appropriate circumstances.

Finally, I shall refer to Schedule 13 to the Bill which deals with the pollution of rivers and coastal waters in Scotland. In new Section 30J(b) in line 31 on page 169 of the Bill it looks as though due diligence is an acceptable defence. I should tell the Committee that I am advised that that may not be the intention of the Government at this point in the Bill. Perhaps my noble friend the Minister will clarify the point when he comes to wind up this short debate. This is a small but very important matter. I look forward to hearing what my noble friend the Minister will have to say about it. I beg to move.

5 p.m.

The Earl of Onslow: Having put my name to this amendment, obviously I wish to support it. As my noble friend on the Front Bench knows, the amendment arose from the case of a company called CPC which was convicted of a discharge which arose in the following circumstances. The company bought a factory dealing with dairy produce from another company. It went through all the due diligence and survey procedures. Some nine months earlier some piping had been installed by the subcontractor of another company and some failed glue had been used to join two pipes together. As a result, some 164 gallons of caustic soda went into the stream and killed several thousand fish. The company immediately summoned the NRA. Even when prosecuting, the NRA admitted that the company had behaved in an exemplary fashion. The company was given a conditional discharge—with payment of £20,000 costs.

If people who behave in such an exemplary fashion are treated in that way, one is asking for trouble. People are tempted to duck and weave and not act properly. If people are satisfied in their own minds that in all honesty and integrity they have done the best that they possibly can, it is very silly to prosecute them and throw the book at them when they come to ask for help to do the right thing.

I have gone to considerable trouble and taken advice in constructing the following scenario. A man buys a house by the River Test. He has it surveyed and it is given a clean structural survey. He decides to go fishing with his son. On the way back from fishing, they call in at the garage to buy a container of sulphuric acid in order to fill up batteries. By chance, two tiles fall off the roof. One falls on the head of his son and kills him. The other falls onto the glass jar of sulphuric acid and breaks it. The sulphuric acid tips into the River Test and several fish are killed.

Because all due diligence has been taken, there can be no possible prosecution on his causing the death of his son. However, along comes the NRA or PC Plod and charges him with killing fish. I accept that that is a carefully constructed argument to show ridicule. But it

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is extremely silly for us to pass laws which produce absolute offences for killing fish when a defence of due diligence can be raised for killing your children.

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