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Lord Lucas of Chilworth: My Lords, I put my name to this series of amendments in the name of my noble friends Lord Crickhowell and Lord Mills. I felt that they better expressed the concerns that lay behind my amendments, which replicated those that I had put down at an earlier stage. I agree with all that my noble friend Lord Crickhowell has said. I also agree with what my noble friend Lord Jenkin of Roding has said against his background and experience.
I refer to the letter that the Minister wrote to me on 1st March. He said that the Government were trying to achieve regulation of the sites which would benefit from experience and skills available in the environment agency. He went on to say:
I believe that these amendments offer a workable solution. For example, if one can remove one arm of the current definition of closed landfill it will more adequately address the significance of contamination, which is what we are concerned about, rather than the source of such contamination. At the same time, I believe that it avoids the necessity to add to the list of sites that might be designated special at some future time and, at that future time, will require the amendment of primary legislationthat is, the legislation that we are currently considering. That is another good reason for simplifying what in part lies behind this series of amendments.
My particular concern is that we will then be reliant on the guidance under the new Section 78B(6) to set out the criteria by which potentially special sites are to be assessed. I hope that my suggestions and those of my two noble friends will add to the message that the Minister invited us to put before him when he spoke on the last occasion.
Lord Beaumont of Whitley: My Lords, we on these Benches often urge that matters should be devolved to local authorities. However, that is part of an approach which says that matters should be dealt with at exactly the right level. It seems to me that overwhelmingly the case made out by the noble Lord, Lord Crickhowell, and the noble Lord, Lord Jenkin of Roding, among others, is that in this case the right level is the agency. I hope that the Government will find some way of meeting this particular point.
Viscount Ullswater: My Lords, the noble Lord, Lord Beaumont of Whitley, rightly considers that the determination of the right level is the task that is before the Government at the moment. It is one that in many instances we share very much with the movers of this amendment. Amendments Nos. 129, 135, 137 and 138, moved by my noble friend Lord Crickhowell, address a more particular question in respect of closed landfills and will change the definition of a special site such that it need not necessarily be a landfill. I know that that is a matter about which my noble friend Lord Lucas of Chilworth feels strongly. His amendments at Committee and those that he has not moved today but has spoken to indicate his concern.
As I said during the debate in Committee on the Bill in response to similar amendments moved by my noble friend Lord Lucas of Chilworth, the intention behind the creation of the category of special sites which the agency is to deal with is to enable the particular skills and expertise of the agency to be brought to bear on a kind of siteclosed landfillswhere the skills associated with the agency's waste regulatory functions are most directly relevant and applicable. I also said at that time that we would be willing to consider whether there were any other types of site where similar complementary skills might exist. I agree with my noble friend Lord Jenkin of Roding that local authorities face such problems. From his experience, he spoke of the problems faced by some small local authorities and also authorities overseas. But we do not wish all kinds of sites to be taken from local authorities and passed to the agency for regulation solely on the grounds that serious harm or water pollution is possible, regardless of whether the agency has more appropriate skills and expertise available to deal with them than the local authorities. In our view the question of the seriousness
My noble friend Lord Crickhowell was also interested in water pollution and special sites. Where water pollution is a factor on any site the agency will be able to take appropriate action under its own powers under Section 161 of the Water Resources Act 1991. In many cases that would be the appropriate power to use where there is water pollution in isolation.
Although we would consider this issue still to be open for further discussionI have heard very much what noble Lords have said this afternoonwe would not wish to accept these amendments, as we believe they fail to address the question of who has the most relevant expertise to deal with the particular types of site. I indicated that we are still carefully considering this matter. Having said that, I hope
Lord Crickhowell: My Lords, before my noble friend sits down, I do not want to get into a position, if I can avoid it, where I have to take this matter into the Lobbies. If my noble friend would undertake to come forward with some suitable amendment to cover the point that he has perfectly reasonably made, that would be fine. But I am bound to say that it does not seem to me that he has given a very cogent argument, or indeed has even approached giving a cogent argument, against the almost overwhelming case that has been put from both sides of your Lordships' House and by some of his noble friends who have very considerable experience of dealing with these matters. Before he sits down I hope that he will be able to go rather further in undertaking to come back to the House at a later stage.
Baroness White: My Lords, is the Minister taking into account the changes in local government? Does he not think that the situation might well arise when it would be impossible for the local authority concerned to take suitable action and it would have to turn to the agency?
Viscount Ullswater: My Lords, I thought I had indicated to my noble friend Lord Crickhowell that I was still carefully considering the possibility of bringing forward an amendment. I should like to reaffirm the Government's undertaking that we would want to bring forward an amendment. Having said that, I cannot say to my noble friend that I want to bring forward this amendment because I still believe that the fundamental difficulty with it is that it fails to address who has the most relevant expertise to deal with the particular type of sites. I completely accept that there may be special sites which are not closed landfill sites and which need the expertise of the agency to deal with them. At the moment I do not believe that the amendment addresses that point. We shall need to look at the matter very carefully.
Lord Crickhowell: My Lords, I am grateful for what my noble friend had to say. I have never pressed my own amendments in almost any situation, but then I am well aware of the drafting resources available to government. However, as my noble friend used the words "we would want to bring forward an amendment", I take that as a pretty firm indication that he will bring forward a suitable amendment at a later stage. On that basis, I beg leave to withdraw my amendment.
Page 46, line 16, at end insert:
("(8A) The questions
(a) what harm is to be regarded as "significant",
(b) whether the possibility of significant harm being caused is "significant",
(c) whether pollution of controlled waters is being, or is likely to be caused,
shall be determined in accordance with guidance issued for the purpose by the Secretary of State in accordance with section 78R below.
(8B) Without prejudice to the guidance that may be issued under subsection (8A) above, guidance under paragraph (a) of that subsection may make provision for different degrees of importance to be assigned to, or for the disregard of,
(a) different descriptions of living organisms or ecological systems;
(b) different descriptions of places; or
(c) different descriptions of harm to health or property, or other interference;
and guidance under paragraph (b) of that subsection may make provision for different degrees of possibility to be regarded as "significant" (or as not being "significant") in relation to different descriptions of significant harm.").