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Viscount Ullswater: Perhaps I may draw the noble Lord's attention to the definition of "emergency" in Clause 90(13).

Lord Crickhowell: I listened carefully to what my noble friend said about Amendment No. 341A and I am content for the time being. He referred me to various other parts of the legislation and I shall wish to look at those before deciding whether to return to the matter.

I find the Government's attitude towards Amendment No. 342ZA most curious. When I visit the Department of the Environment there is hardly an occasion when I am not told that we should do more to recover the cost and that the polluter should pay. Yet I am now told that only in circumstances where we have allowed a pollution incident to happen and the offender has been prosecuted should we pursue him for the recovery costs. That does not appear to be a good approach.

The costs could be high. There may be a situation in which the agency realises that there is a serious risk of pollution if it does not take action and therefore it takes the appropriate action. It seems odd that there is no ability then to recover the costs. That is a complete breach of the polluter-pays principle.

If my noble friend will not accept the amendment now, I shall wish to return to the matter because, I say with great respect, I did not find his argument convincing.

Lord Carmichael of Kelvingrove: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 336B to 337 not moved.]

Viscount Ullswater moved Amendment No. 337A:

Page 100, line 22, after ("I") insert (", IA").

The noble Viscount said: I spoke to this amendment with Amendment No. 336. I beg to move.

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On Question, amendment agreed to.

[Amendments Nos. 338 and 338A not moved.]

Clause 90, as amended, agreed to.

Schedule 15 [Supplemental provisions with respect to powers of entry]:

Viscount Ullswater moved Amendments Nos. 339 to 341:

Page 173, line 28, leave out ("or that vessel").
Page 173, line 34, leave out ("or vessel").
Page 173, line 36, leave out ("or vessel").

The noble Viscount said: I spoke to these with Amendment No. 336. I beg to move.

On Question, amendments agreed to.

[Amendment No. 341A not moved.]

Viscount Ullswater moved Amendment No. 342:

Page 174, line 6, leave out (" 90(11)") and insert (" 90(10)").

The noble Viscount said: I spoke to this amendment when moving Amendment No. 336. I beg to move.

On Question, amendment agreed to.

Schedule 15, as amended, agreed to.

Clause 91 [Power to deal with cause of imminent danger of serious pollution etc.]:

[Amendment No. 342ZA not moved.]

Clause 91 agreed to.

Clause 92 [Offences]:

[Amendments Nos. 342ZB to 342ZD not moved.]

On Question, Whether Clause 92 shall stand part of the Bill?

Lord Williams of Elvel: I wonder whether I can persuade the Government to have another look at the drafting of Clause 92. It replaces various provisions of the Environmental Protection Act but it seems to us to create certain possibilities for confusion.

Clause 92(2) defines the offences referring to failure to comply with the requirements imposed under Section 90 of the Environmental Protection Act. In Section 90 of the Environmental Protection Act the only requirements are in paragraphs (j), (k) and (l) whereas paragraphs (a) to (m) relate to powers of an authorised person and paragraph (d) is a direction. Therefore, we are not quite sure whether the Government intend Clause 92(2) to catch those people who fail to comply with the requirements made in paragraphs (j), (k) and (l) of Section 90 of the Environmental Protection Act or whether they wish it to be wider.

There is some confusion there and I hope that the Government may be persuaded to look at that, unless I have it completely wrong, to see what they really mean.

Viscount Ullswater: I am not sure whether I heard correctly but I am not sure whether the noble Lord referred to Section 90 of the Environmental Protection Act or Section 90 of the Bill. Section 92 of the Environmental Protection Act is Clause 90 of the Bill. I do not know whether that alters the noble Lord's interpretation.

Lord Williams of Elvel: I believe that it does. I misread the clause. I do apologise.

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Clause 92 agreed to.

Clause 93 [Evidence in connection with certain pollution offences]:

Viscount Ullswater moved Amendment No. 342A:

Page 103, line 2, at end insert:
("( ) any consent under Part II of the Sewerage (Scotland) Act 1968 to make discharges of trade effluent;
( ) any agreement under section 37 of that Act with respect to, or to any matter connected with, the reception, treatment or disposal of such effluent;").

The noble Viscount said: In moving this amendment, I shall speak also to Amendments Nos. 344, 353, 354, 355 and 356. The amendments in this group are all technical in nature. Amendment No. 342A would include references in the definition of "relevant licence" in Clause 93(5) to those sections of the Sewerage (Scotland) Act 1968 which parallel the sections of the Water Industry Act 1991 already listed in the clause.

Amendments Nos. 344, 354, 355 and 356 correct erroneous cross-references in the Bill as drafted. Amendment No. 353 deletes a reference to Section 42 of the Control of Pollution Act 1974 from the list of provisions which require the existing term of river purification authorities to be replaced with SEPA. Its inclusion is unnecessary as Section 42 is being fully replaced by other provisions in the Bill. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 93, as amended, shall stand part of the Bill?

6.15 p.m.

The Earl of Lytton: In opposing the Motion, I shall refer also to Amendment No. 401C, which amends Schedule 20. Clause 93 and Schedule 20 repeal important parts of Section 209 of the Water Resources Act 1991. Those include the repeal of the long-standing requirement of the NRA to follow a tripartite procedure for samples that are to be admissible in water pollution cases and when the NRA is testing whether businesses have exceeded their discharge consents. Secondly, it removes the legal obligation on the NRA to notify the occupier of land that it has taken a sample.

Tripartite sampling involves dividing a sample taken into three parts immediately after it has been collected. One part is sent for analysis; one part is given to the discharger; and one part is kept by the NRA for production in court. That is a procedure similar to that used for enforcing certain areas of food regulation and by the police when testing alcohol in the blood. If they wish to prosecute someone for being over the limit, they must offer tripartite sampling. Therefore, it is a well-established principle in law.

At present, if compliance with the tripartite procedure is not possible, as I understand it, the results of any analysis are completely inadmissible. However, Clause 93 goes entirely in the opposite direction by allowing any information obtained or provided under the terms of an environmental licence, including information from any apparatus, to be admissible in legal proceedings.

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In some cases, practical reasons may prevent tripartite sampling. But a wholesale removal of that procedure is not the way to resolve the problem. Tripartite sampling plays an important role in taking account of the uncertainties and inconsistencies associated with certain types of sampling techniques. Techniques for sampling in assessing water quality are a rapidly evolving area of technical expertise. Even now there is a significant potential for individual laboratories and test rigs to obtain different results. I am informed that there are examples of where that has happened.

I accept that there may be arguments in favour of self-monitoring. Businesses certainly recognise that and the CBI, which has given me a great deal of information on this, has indicated that its members recognise clearly the importance of self-monitoring. Nevertheless, it believes that tripartite sampling has a continuing role to play in providing an essential audit role in relation to the quality of the sampling. The reason for that is quite simple: machines do not necessarily last forever. They have to be checked, tested and calibrated to make sure that they are working properly.

Apart from the safeguards in any proceedings which tripartite sampling provides, its removal must be viewed in the context of what is happening generally in the law as regards the escalating levels of fines and the standards of proof which will apply in any given case. Those are critical. I ask the Committee to consider what effects removal would have on the confidence of those affected.

I am informed that tripartite testing has worked quite well over the years. I realise that there may be some official misgivings about it in the area of new technology but I feel that it should be carried forward in the new agency's functions. Water companies regularly analyse their samples and all business understands the safeguards which that provides. HMIP, which has no statutory duty to carry out tripartite sampling, nevertheless carries it out in sampling effluent when it is considering enforcement action. The National Farmers Union, which also supports the amendment, tells me that tripartite sampling goes back to the River Boards Act 1948. Therefore, the measure is very nearly 50 years old. Similarly, the Country Landowners' Association supports the principle behind the amendment.

There is a general principle of law that any defendant should be provided with a sample for his own independent analysis before he is taken to court so that he can compare it with the sample taken by the NRA and the findings can be weighed in the balance. As I said, similar provisions already apply in other areas of the general law. I do not see that there are sound reasons for throwing it out altogether.

If tripartite sampling is not an option in any given instance because of the nature of the material, I feel that it should be up to the NRA to justify the different approach in any given case. The responsibility of a prosecuting authority does, I believe, have to be appropriate to the nature of the offence. I stress again to

14 Feb 1995 : Column 635

Members of the Committee that the wholesale removal of tripartite sampling is something which I believe to be mistaken. It goes too far in that direction.

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