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Baroness Hilton of Eggardon: My Lords, I have listened with interest to what the Minister said. However, I do not think that he has fully answered the points made to him. The Government gave certain undertakings during the passage of the Coal Industry Bill last year which I do not believe have been fully fulfilled. I believe that there should be a statutory obligation on the Coal Authority to deal with minewater pollutions from abandoned mines. In the circumstances, I propose to test the opinion of the House.

10.36 p.m.

On Question, Whether the said amendment (No. 168) shall be agreed to?

Their Lordships divided: Contents, 20; Not-Contents, 56.

Division No. 2


Barber of Tewkesbury, L.
Beaumont of Whitley, L.
Carmichael of Kelvingrove, L.
David, B.
Dormand of Easington, L.
Elis-Thomas, L.
Feversham, L.
Freyberg, L.
Graham of Edmonton, L. [Teller.]
Hamwee, B.
Hilton of Eggardon, B.
Kintore, E.
Lytton, E.
Morris of Castle Morris, L. [Teller.]
Nicol, B.
Northbourne, L.
Onslow, E.
Palmer, L.
Walpole, L.
Williams of Elvel, L.


Addison, V.
Astor, V.
Blatch, B.
Braine of Wheatley, L.
Brougham and Vaux, L.
Burnham, L.
Cavendish of Furness, L.
Chalker of Wallasey, B.
Clinton, L.
Courtown, E.
Cranborne, V. [Lord Privy Seal.]
Cumberlege, B.
Denton of Wakefield, B.
Dundonald, E.
Elton, L.
Fraser of Carmyllie, L.
Gage, V.
Gisborough, L.
Glenarthur, L.
Goschen, V.
Henley, L.
HolmPatrick, L.
Howe, E.
Inglewood, L. [Teller.]
Kingsland, L.
Knutsford, V.
Leigh, L.
Lindsay, E.
Long, V.
Lucas, L.
Lyell, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Marlesford, L.
McColl of Dulwich, L.
Miller of Hendon, B.
Norrie, L.
Northesk, E.
Rankeillour, L.
Rawlings, B.
Renton, L.
Rodger of Earlsferry, L.
Rodney, L.
Shaw of Northstead, L.
Shrewsbury, E.
Shuttleworth, L.
Skelmersdale, L.
Stewartby, L.
Strathclyde, L. [Teller.]
Thomas of Gwydir, L.
Trumpington, B.
Ullswater, V.
Vinson, L.
Willoughby de Broke, L.
Wise, L.
Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

7 Mar 1995 : Column 239

10.44 p.m.

Lord Stanley of Alderley moved Amendment No. 169:

Page 63, line 38, after ("apply") insert ("to the owner or operator of any mine").

The noble Lord said: My Lords, I was most unhappy about the last amendment and could not make up my mind, so I stayed in my seat. The question I must ask my noble friend yet again is this. As the downstream owner or occupier of land, I may know perfectly well that polluting water is coming on to my land from an abandoned mine. I knowingly permit it into the water course. Therefore, as I read the Bill, I am guilty. I am saying that that is incorrect in so far as it is not my fault. I am an innocent bystander, an innocent occupier, and I should be able to pass the responsibility back to the person who pollutes. The snag comes when I cannot find that person if he is dead or nobody owns the mine. What is the position so far as I am concerned? Am I protected as an innocent landowner? I have knowingly permitted that pollution to be in the water. I can see my noble friend Lord Crickhowell, in his former position, coming along to me and saying, "Stop that water going into the water course". As I see it, it is my liability, according to the Bill, to clear it up. I would be very pleased to hear my noble friend explain exactly what the position is. Unless he can say that I am innocent, I am most unhappy.

The Earl of Onslow: My Lords, it is extremely important to get this question of the interpretation of the word "cause" absolutely clear in our minds. There is the case (admittedly, it arose on another issue) of a company called CPC polluting a stream. There was no possible

7 Mar 1995 : Column 240

way that the company could have known about the pollution. It was completely innocent, and the NRA said that its behaviour was exemplary. However, the company was found, because of an interpretation of the word "cause", to have committed an offence. You can "cause" something in law, it appears now, completely and utterly innocently and unknowingly and you are still, according to the law, guilty of an offence. In spite of everything that my noble friend on the Front Bench said about "knowingly permit" implying that there has to be an element of negligence or knowledge, if the word "cause" is in the Act that "cause" allows no such defence. That is what the Appeal Court has found within the past five years. Can my noble friend confirm or deny that fact?

Viscount Ullswater: No, my Lords, of course I cannot deny that fact. But it is, I believe, a different point entirely from the one that troubles my noble friend Lord Stanley. My noble friend Lord Onslow is talking about "causing". I believe that my noble friend Lord Stanley is not so much interested in "causing" because I believe he understands that the pollution about which he is worried and which is appearing on his land he did not cause. The test, which I believe my noble friend accepted, is that if it is pollution of controlled waters, to be liable the landowner would have to know about the discharge and it would have to be within his or her power to do something to prevent it. If he were not in a position to prevent it, then he would not be liable. But if he was able to prevent it, and was asked by the agency to prevent it and failed to prevent it, then I dare say that he would be liable. But that is a different offence to causing it.

Lord Stanley of Alderley: My Lords, it is late at night. I shall not prolong this debate. I am still not happy. My noble friend says that I would not be guilty if I was in a position to prevent it. But what does that mean? Does it mean that I should have to go back to the mine and pump it out? I am not happy. Do I have to pump out every mine in the country because the pollution might be coming down to me? I might not be able to prevent it.

I shall leave the matter for the moment, but I may well come back to it—in fact, I am almost certain to come back to it—at Third Reading. I am most unhappy about it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 170 not moved.]

[Amendment No. 171 had been withdrawn from the Marshalled List.]

[Amendments Nos. 172 to 174 not moved.]

[Amendment No. 175 had been withdrawn from the Marshalled List.]

Baroness Hilton of Eggardon moved Amendment No. 176:

After Clause 57, insert the following new clause:

("Survey of water pollution from abandoned mines

. The Secretaries of State shall require the Agency and SEPA to carry out a national survey of potential and existing incidents of water pollution from abandoned mines which shall be publicly available and shall be updated annually.").

7 Mar 1995 : Column 241

The noble Baroness said: My Lords, we have been talking about the serious problem of water pollution from abandoned mines. This amendment seeks to ensure that we identify the extent of water pollution from abandoned mines. To some extent so far we have been dependent on anecdotes, newspaper accounts and possibly, in some instances, scare stories. The amendment would provide that there should be a national survey of potential and existing incidents of water pollution from abandoned mines. It is an attempt to assess the extent of the problem. I beg to move.

Viscount Ullswater: My Lords, The amendment moved by the noble Baroness, Lady Hilton, would place a significant new duty on the agencies. It proposes that they should be required to carry out a national survey of both existing and potential incidents of water pollution from abandoned mines. The survey should be publicly available and should be updated annually.

The National Rivers Authority produced a useful report in March 1994 entitled Abandoned Mines and the Water Environment. In fact, we took account of the report in our review of the legislation governing water pollution for abandoned mines, which resulted in the abandoned mines provisions in the Bill. In seeking to estimate the scale of the problem of water pollution from abandoned mines, the NRA reported on those discharges from abandoned workings which cause significant pollution. However, it pointed out the problems which would be encountered in undertaking a survey of all existing and potential polluting discharges. Among these are the fact that the effects of discharges from abandoned mines are often most acute in streams and upper reaches which are not routinely monitored; the lack of records of long abandoned mines; and the complexity of underground workings, particularly where mines have been worked over several centuries, which makes it difficult to predict where an outflow of minewater may occur. There would therefore be considerable practical difficulties in producing a survey of the kind envisaged by the noble Baroness.

Apart from those practical considerations, it has always been our view that the water regulatory bodies should have discretion in the way in which they exercise their powers, and the same should apply for the agencies. It will be for the agencies to consider whether they wish to produce surveys of particular kinds of pollution, and we would not wish to impose statutory duties for activities of that kind. If they do carry out surveys of pollution, the agencies will consider whether the likely environmental benefits will justify the costs involved.

I appreciate that the noble Baroness's concern will be to reduce the incidence of water pollution from abandoned mines. That is the intention of the measures which we have included in the Bill. In particular, the new requirement for mine operators to give the agencies at least six months' notice of their intention to abandon a mine will allow steps to be taken to prevent future incidents of minewater pollution.

7 Mar 1995 : Column 242

With that explanation, I hope that the noble Baroness will see fit to withdraw her amendment.

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