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Lord Coleraine: My Lords, I rise to speak to Amendments Nos. 128A, 129A and 133A, which stand in my name. They reflect the anxiety of the Law Society that the Bill's definition of "contaminated land" is inadequate. That was recognised by my noble friend in Committee in reply to the noble Lord, Lord Northbourne.
The Law Society's principal criticism of the definition was that it was too wide, requiring action where there was no real risk justifying expenditure. What was the point, for example, of requiring remediation where soil isolated from human contact or from groundwater was toxic to micro-organisms or invertebrates? The amendments in my name operate principally, first, by redefining harm by reference to harm to human health and property; and, secondly, by tempering the protection afforded to micro-organisms and the like by providing that land may be contaminated if it is in such a condition that serious harm to nature conservation interests is being or is likely to be caused.
My Amendment No. 133A would amend the definition of "pollution of controlled waters" so that the definition does not catch the entry into water of solid waste matter or poisonous, noxious or polluting matter in insufficient quantities to have harmful effect.
The amendments in the name of the noble, Lord Northbourne, and other noble Lordswhich stand in danger of being partially pre-empted if an amendment is passed before they are calledtake a less radical approach to the definition. They provide that proscribed harm must be serious and that harm to malign micro-organisms is permitted. These amendments would still leave an unnecessary and troublesome general protection in place for all other micro-organisms.
I have not been advised by the Law Society as to its views on these eleventh-hour amendments tabled by the Minister. I know that he is on record as considering that "serious harm" is a test that is too restrictive. My immediate thought is that his "significant harm" test is inadequate for reasons of certainty and clarity. It may be that this very lack of clarity has commended itself to the Government as allowing the infiltration of the Bill by further guidance provisions.
The Law Society is anxious about the time that must elapse before all the guidance in respect of contaminated land is promulgated. The timescale will not be bridged in any way when new Section 78R is added to the Environmental Protection Act 1990. The question of contaminated land, in particular where contamination arises in the land of various owners and it is necessary to apportion liability for remediation, is very complex and deserves a parliamentary Bill of its own. A
Lord Northbourne: My Lords, it may be for the convenience of the House if I speak to my Amendments Nos. 128D, 128E, 128G, 129B to 129E, 142A and 144F. They cover the same issues as the amendments tabled by the noble Viscount, Lord Ullswater. I wish to speak separately in turn to Amendment No. 144G, which addresses a slightly different issue.
I welcome the Minister's amendments. They do much to address the anxieties of the House on the definitions of "contaminated land" and "harm", which I raised in Committee. The outstanding problem is that we do not know what the guidelines will state. Will the Minister assure the House that the Government will recognise the point made by the CBI? It stated:
I am not too happy about the Minister's comments on the pollution of controlled waters. If one refers to serious harm but the word "serious" is not used in defining polluted waters, it may mean that the pollution of waters must be taken as an absolute issue. "Pollution of controlled waters" is defined at the top of page 48 of the Bill. It refers to:
which may be going into the water. That is a tough definition and I ask the Minister to reconsider whether a modification of the definition of "pollution of controlled waters" should be built into the Bill.
The Earl of Kinnoull: My Lords, I support what was said by the noble Lord, Lord Northbourne. I too congratulate my noble friend on the amendments that he has brought forward. However, I have a question about the guidance. When will the draft guidance be published? The timing appears to be out. One has the framework of the Bill; but the guidance, which will be at the nub of the issues, is to follow. Contaminated land is a critical issue and I hope that my noble friend will be able to give a timescale for the publication of the guidance.
Lord Elton: My Lords, I feel like a dowager at the edge of a ballroom, having many years ago sat in my noble friend's office and long since finished dancing the minuets that he is forced to dance before Parliament. However, I wish to reassure my noble friend on one matter. On Friday, he had a difficult decision to make;
I repeat that I believe that my noble friend made the right decision. He appears to have met a large majority of the anxieties that were expressed at an earlier stage. Any residual anxieties can be discussed later, and I hope that your Lordships will accept the amendments.
The Earl of Lytton: My Lords, I too believe that, notwithstanding the conventions, the Minister made the right decision in tabling the amendments. They have gone a long way towards allaying some of the fears expressed about the way in which the Bill will operate in practice. I welcome the amendments because they represent a clear sign that some of the anxieties have been heard. Certainly they deal with many of my own anxieties about the Bill.
I support what was said by the noble Lord, Lord Northbourne, and the noble Earl, Lord Kinnoull, about the need to know what will be in the guidelines. It is necessary for the House to have a reasonably full explanation of them so that, before the Bill goes to another place, we can reach a considered opinion on its impact. That is not in any way to seek to pre-empt the necessary discussions in which the Government must engage with others about how the matter is to be implemented. Otherwise, it seems to me that we are firing blind. That is extremely unsatisfactory bearing in mind the overriding need, as pointed out in the quotation from the CBI given by the noble Lord, Lord Northbourne, to remedy a long legacy of contamination. We need to get it right, and we need to know what the guidance will contain.
Viscount Ullswater: My Lords, despite a certain amount of reservation from the Benches opposite, I am pleased to be able to introduce the amendments. I believe that they move us more than slightly further forward, which was the phrase used by the noble Baroness, Lady Hilton.
The main effect of Amendment No. 128 would be to specify that contaminated land includes any land or interest in land so that it covers specifically sub-strata and mines. It would also introduce the test of significant harm being, or likely to be, caused.
Amendments Nos. 128A and 129A proposed by my noble friend Lord Coleraine seek to amend the definition of contaminated land so that different tests would apply to different categories of target which may be affected by the harm arising from the contamination. That is broadly in line with the Government's intentions, as I indicated in my earlier comments.
I understand that my noble friend has not had sufficient time to take proper advice from his advisers because of the lateness of the tabling of the amendments. I hope that when he has had the opportunity to study them, he will see that they go a long way towards allaying his anxieties.
The formulation adopted in the amendments of my noble friend reflects in particular the widespread anxiety about how the existing definitions in the Bill address damage to habitats and ecological systems. While it was not the Government's intention to introduce new protections in those areas which do not exist under other legislation, it was argued that that would be the effect of existing provisions. We have sought to remove those problems through government amendments which I shall move.
However, I suggest that the amendments of my noble friend Lord Coleraine and the noble Earl would not achieve the goals set for them. First, they would leave an essentially subjective test of serious harm to nature conservation interests. That is probably still too broad in many respects as it fails to distinguish between those aspects of nature conservation which need to be protected under those powers and those which do not.
Conversely, the test of any harm to nature conservation interests having to be serious is potentially too narrow and restrictive where particular habitats and organisms need protecting. In some cases, that test of serious harm would not enable us to meet our European obligations, in particular in respect of those sites we are required to protect under the habitats directive.
Amendment No. 133A seeks to amend the definition of pollution of controlled waters. The noble Lord, Lord Northbourne, asked whether the test for polluting controlled waters is made more stringent by the Bill. Sites would still be open to regulatory action under Section 161 of the Water Resources Act 1991, which includes the test as currently included in those contaminated land provisions. Therefore, there is no change.
My noble friend Lord Kinnoull and other noble Lords indicated that they wish to see the guidance and asked when it will be available. The Government intend to publish an outline of the guidance on the question of significant harm before the Bill reaches Committee stage in another place. I agree with my noble friend Lord Elton that it would not be suitable to discuss that in detail on Third Reading. It will have to be draft guidance because apart from saying that we shall publish it we have said that we shall consult widely on it.
My noble friend Lord Stanley of Alderley asked a direct question about nitrate sensitive areas. I shall need to take further advice to be specific about that but I stress that this relates to pollution of controlled waters. Our intention is not to increase existing liabilities under the legislation. We are considering whether our present provisions achieve that particular state. Therefore, having had the opportunity to reply to noble Lords in relation to amendments which have been moved and spoken to, I ask the noble Earl, Lord Kintore, to withdraw the amendment.
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