Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Crickhowell: I do not propose to move those amendments.

Viscount Ullswater: I thank the noble Lord, Lord Williams, for eliciting that fact.

Amendment No. 335E seeks to include in Clause 90(2) powers for an enforcing authority to carry out experimental borings or other works on relevant premises and to install and keep monitoring or other apparatus there. Such a power already exists under Clause 90(3), although it is purposely limited to the purposes of the function under Clause 90(1) (a)—determining whether any provision of the relevant pollution control enactments is being, or has been, complied with—and is not available for the general purpose of carrying out one of the authority's pollution control functions or determining whether, or how, such a function should be carried out.

This provision mirrors Section 169(2) of the Water Resources Act 1991. We believe that Clause 90(3) as it stands is what an enforcing authority needs: it can install monitoring equipment, for example, to determine whether the pollution control legislation is being complied with, and make borings to discover whether the legislation has previously been complied with. I cannot foresee any circumstances in which this power as it stands would be inadequate to meet the needs of an enforcing authority. It is extremely important that enforcing authorities should have sufficient powers of entry to carry out their pollution control functions and, where appropriate, enforce the relevant pollution control

14 Feb 1995 : Column 627

legislation. But it is also important that we do not give the authorities wider powers than they really need to carry out their functions effectively. Bearing in mind the potentially wide application of the powers—for example, to residential premises—we have not sought to extend them beyond the scope of existing legislation unless we have felt able to make out a good case for doing so, based on the necessary enforcement powers, to make the enforcing authorities effective. The amendment would indeed extend the authorities' powers more widely than they need, and therefore I ask the noble Baroness to withdraw the amendment.

I understand that Amendment No. 336C is also grouped with these amendments. I dare say that the noble Lord, Lord Carmichael, will want to address that amendment in particular.

I turn to Amendments Nos. 342ZB, 342ZC and 342ZD. They seek to expand Clause 92 to ensure that all the powers mentioned in Clause 90(2) are covered by the descriptions of the offences set out in Clause 92(2). I believe however that those amendments are unnecessary since the descriptions of the offences used in Clause 92 already cover the wider applications which the noble Baroness is concerned should be included—that is to say, a "requirement" of an enforcing authority should include a "direction" by it; "information" under Clause 92(2) (b) should include "records" and other information which an authorised person may reasonably require to be provided; and "inspection" in this clause is also of wide effect. I hope with that reassurance the noble Baroness will feel able to withdraw the amendment.

Baroness Hilton of Eggardon: I am grateful for that description which I shall read carefully. On the face of it, it appears reassuring, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Ullswater moved Amendment No. 336:

Page 98, line 19, leave out ("the purpose mentioned in subsection (1) (a) or (b)") and insert ("a purpose falling within any paragraph of subsection (1)").

The noble Viscount said: I should like to speak also to Amendments Nos. 337A, 339, 340, 341 and 342. The amendments are minor and technical. They correct a number of minor errors in Clause 90 and Schedule 15. I could indicate what each of them does, but it may be for the convenience of the Committee if I just beg to move.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 336A:

Page 98, line 35, after ("least") insert ("twenty-four hours notice in the case of residential premises or").

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 336B, 341A and 342ZA. I am concerned particularly with Amendments Nos. 336A and 336B which are both to the same effect. Their purpose is to question the need for a change to the existing regulations and law from the status quo with regard to residential premises. Clause 90 does not just provide a power of entry, it includes what can be done after gaining entry. It replaces wholesale

14 Feb 1995 : Column 628

similar powers of entry in Section 17 of the Environmental Protection Act 1990. The power will apply to local authorities administering Part I of the Environmental Protection Act and the new contaminated land regime.

On the whole, Clause 90 is a fairly faithful re-enactment. However, for residential premises at least seven days' notice prior to exercising the right of entry is required under Clause 90(4) unless it is an emergency. Under the statutory nuisance power, only 24 hours' notice for residential premises is required (Schedule 3, paragraph 2(2) of the Environmental Protection Act 1990). Similarly, only 24 hours' notice is required currently under Schedule 2 paragraph 3 of the Radioactive Substances Act 1993.

Authorities will continue to have the power to inspect to establish whether harm or pollution of controlled waters is likely or occurring. At the moment that will tend to be detected by sight or smell. A power of entry coupled with a power to examine and investigate may be sufficient, but the first amendment probes why the power under the Water Resources Act has been disapplied in relation to water pollution control functions. That is:

    "to carry out experimental borings or other works on those premises and to install and keep monitoring and other apparatus there".

Were that power in existence, it might prove useful in dealing with contaminated land. There is a concern—it is not too far-fetched to think of this—that if a residential occupier is given seven days' rather than 24 hours' notice that may provide the occupier with more time than was previously the case to destroy evidence or remove articles or substances to other premises.

The second amendment probes why that change has been made. These are important amendments, and I hope that the Minister will give a satisfactory reply. I beg to move.

Lord Crickhowell: I wish to speak to Amendments Nos. 341A, and 342ZA which raises a point which is rather curiously grouped in this set of amendments. All the others deal with powers of entry, and that amendment deals with something rather different. The first amendment is a simple but technical one. If the relevant power to which we are referring means Clause 90, then, on the face of it, an investigation into a possible pollution offence cannot begin until someone can be shown an identity card.

Unless the provision in the Bill is altered in the manner that I propose, I am advised that the agency would need to rely upon a 1951 case (Groves v. Eastern Gas Board). That case held that words to the effect of "subject to the production when called on of such a document" could be read into a similar power. If that is so, we should not have to rely on case law; we should make the matter clear on the face of the Bill. I hope that my noble friend will clarify that point.

Amendment No. 342ZA deals with a different point. Having entered the premises, the agency's representative might find articles or substances which he had reasonable cause to believe were causing imminent danger of serious pollution of the environment or serious harm to human health. In that case the representative is

14 Feb 1995 : Column 629

entitled to seize the article or substance and render it harmless. The amendment seeks to enable the agency to recover the reasonable costs of such work from the person who caused the problem to exist in the first place.

Perhaps I may give the Committee an example. Let us assume that there was a factory closed for a public holiday and that there was a leaking drum of fuming waste adjacent to a surface water drain. That is not an unusual situation with which representatives of the NRA have to deal at present. In that case the agency would have to deal with the emergency containment; it would have to take the article to some safe place; it would have to deal with it; and it would undoubtedly incur costs. It seems unreasonable that those costs should fall on the agency. There should be some power to ensure that they can be recovered from the person responsible in the first place. That is the object of the amendment.

Viscount Ullswater: Clause 90(4) provides that where a person authorised by an enforcing authority needs to enter residential premises, seven days' notice of that entry should be given to the occupier of the premises except in an emergency. Amendments Nos. 336A and 336B seek to amend the requirement for seven days' notice and provide for 24 hours' notice only.

I consider it important that those enforcing authorities should have the power to enter residential premises if necessary in the course of performing their functions, but I consider it equally necessary that the Bill provide some safeguards for residential occupiers of such premises. The provision for seven days' notice, which is one such safeguard, mirrors part of the existing powers of entry legislation—namely, paragraph 1(2) of Schedule 20 to the Water Resources Act 1991—and reflects others, such as the Radioactive Substances Act 1993.

In the event of an emergency, authorised persons have powers to enter any premises immediately and, if necessary, by force. As regards non-residential premises, they may enter at any reasonable time. In some cases we recognise that authorised persons may need to enter premises in residential occupation and we have provided for that. However, I believe that it is vital that this Bill does not provide fewer safeguards than any of the existing enactments for people who occupy such premises. While of course I appreciate the noble Lord's desire to ensure that the enforcing authorities have sufficient powers of entry to operate effectively, I am not convinced of the need to decrease the notice provided to residents. I hope that the noble Lord is persuaded to withdraw his amendment.

Paragraph 3 of Schedule 15 requires a person authorised to exercise powers of entry, including a person designated to authorise these powers in accordance with a magistrate's warrant, to produce evidence of his designation and authority before he exercises the power. Amendment No. 341A seeks to amend this provision so that the designated person need only produce this evidence if he is required to do so.

14 Feb 1995 : Column 630

This provision replicates one in the Water Resources Act 1991 under which the NRA operates (Schedule 20, paragraph 3) which we think it is reasonable should apply to the powers of entry for all enforcing authorities; that is, both agencies and local authorities as relevant. The requirement for designated persons to show evidence of their authority to enter the premises is another reasonable safeguard for the occupiers of residential premises. I do not think that the agencies should lag behind the utility companies in not producing this evidence unless asked to do so.

In line with the existing legislation, we have taken care to make impersonation of a person who is authorised to exercise powers of entry an offence. I see no reason why we should make it easier for anyone impersonating such a person by changing the legislation and not requiring legitimate agents of the enforcing authorities to establish their credentials from the beginning. I would be very surprised if the existing provisions in paragraph 3 of Schedule 20 to the Water Resources Act have caused the NRA difficulties in practice. Therefore, I ask my noble friends to withdraw their amendment.

Finally, I have some sympathy with the intention behind Amendment No. 342ZA. However, I am afraid that I cannot see how the process proposed would work fairly and effectively in practice. The amendment deals with incidents where a person authorised by the environment agency has rendered harmless an article or substance which had been a cause of imminent danger of serious pollution to the environment or serious harm to human health, as identified in the example given by my noble friend. In such circumstances, the amendment would entitle the agency to recover its expenses from any person who caused or knowingly permitted the article or substance to be the cause of such imminent danger.

The environment agency has powers under Clauses 39 and 40 to make charging schemes in order to recover its charges in respect of environmental and other licences. Under Clause 35 it may also charge fees in respect of work done as a result of a request for advice or assistance in connection with environmental licences. But not all costs will be recovered through charges; and I am sure that my noble friends would agree that the ability of the agency to act in the kind of cases that we are discussing should not depend upon the prospects of recovery.

None of the existing organisations has a power equivalent to the one proposed by this amendment. Clause 91 repeats most of Section 70 of the Environmental Protection Act 1990. It is an "emergency" type power where the priority would inevitably be prompt action. Where a pollution offence has actually been committed, and where the polluter is convicted, a prosecution can be brought; the prosecution's costs may be recovered and a fine may be levied on the offender. The issue raised by this amendment is whether the possibility of recovering costs in the very limited number of cases which might be captured by the amendment will further reduce the likelihood of such incidents and enhance the ability of the agency to act effectively. My feeling is that, on

14 Feb 1995 : Column 631

balance, it would not but it would increase the risks of complex litigation. With that explanation, I hope that my noble friend feels able to withdraw his amendment.

6 p.m.

Lord Carmichael of Kelvingrove: I am disappointed with the Minister's reply. It leaves many issues unanswered; for instance, the definition of "emergency". I accept that in an emergency authorised people would have powers of entry, but I can foresee litigation about whether there was an emergency.

While listening to the debate I recollected a Bill that went through this House some years ago—the Scottish salmon Bill. Under the provisions of that Bill the bailiffs had power on mere suspicion to blow open the boot of a car or to blow entry into a house. That was merely in connection with a few stolen salmon, but in this Bill we are talking about a serious threat. The authority must wait for 24 hours, and I believe that there is an imbalance. The salmon Bill is a good comparison and I shall check its powers—

Next Section Back to Table of Contents Lords Hansard Home Page