Previous Section Back to Table of Contents Lords Hansard Home Page

Baroness Hamwee: My Lords, it is a pity that we have reached this amendment so late because there is a lot of meat in the subject.

9 Mar 1995 : Column 517

On the question of the provision of information being an unnecessary burden on companies because they have to supply the information for registers elsewhere, these matters are very much a question of balance. It seems to me to be only a small additional burden on companies to retain the information and make it available in response to direct requests.

I welcome what the Minister had to say about the appeals tribunal. Pursuing a claim for a breach of a statutory duty is more complicated and no doubt more expensive than going to a specialised tribunal. The mechanism of judicial review is a major issue. It is beginning to clog up the courts unacceptably and making the pursuit of civil claims on matters unrelated to the Executive very much more difficult because claims concerning the Executive are taking up the time of the courts. However, this is not the time to pursue that argument. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 14 [Statutory nuisances: Scotland]:

The Earl of Lindsay moved Amendment No. 250A:

Page 175, line 2, leave out from ("authority"") to ("in") in line 4 and insert (", before the word "outside" in paragraph (b) there shall be inserted "in England and Wales", the word "and" after paragraph (b) shall cease to have effect, and after paragraph (c) there shall be inserted "and
(d)".") .

The noble Earl said: My Lords, Amendment Nos. 250A and 309A are technical amendments. They will ensure that the existing definition of local authorities outside Greater London in Part III of the Environmental Protection Act 1990 will not conflict with the definition of Scottish local authorities to be inserted by the Bill. I beg to move.

On Question, amendment agreed to.

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

Viscount Ullswater moved Amendment No. 251:

Page 178, line 8, leave out ("relevant power,") and insert ("power conferred by section 90(2) (a) or (b) or (3) of this Act,").

The noble Viscount said: My Lords, Amendment No. 251 is a technical government amendment. It is intended to correct an unintentional effect of the drafting of paragraph 6 of Schedule 15, which could have made enforcing authorities exercising powers of entry for pollution control and related powers subject to compensation claims far wider than any claims which may currently be made against the existing organisations. I beg to move.

On Question, amendment agreed to.

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

The Earl of Lytton moved Amendment No. 251A:

Page 102, line 13, at beginning insert:
("Subject to subsections (1A) to (1C) below,").

The noble Earl said: My Lords, the noble Lord, Lord Stanley, takes a particular interest in Amendments Nos. 251A and 251B and the consequential Amendment No. 309B. Unfortunately he cannot be here this evening. Like his sheep, he is hefted to his hill, but I know that he supports the amendment strongly. This series of

9 Mar 1995 : Column 518

amendments has industry-wide support. In particular, the Confederation of British Industry and the National Farmers' Union strongly support the amendments.

I moved amendments in Committee which attracted a certain amount of criticism, not least from the noble Lord, Lord Crickhowell. He felt that I was adding to the administrative burdens of the NRA. That was not the intention and in view of the hour I shall cut short the points that I would normally have made more extensively. In these amendments I have attempted to overcome the administrative difficulties that were suggested and to respond to that criticism.

The focus is on effluent. In dealing with it, I have tried to overcome the problems which I acknowledge of dividing samples of material which are difficult, if not impossible, to tripartite. Noble Lords will remember that the principle already exists of dividing samples taken into three parts so that the operator who might be accused of a pollution incident will have one of the samples.

The final words of subsection (1A) of the amendment are critical because they show that the "tripartiting" of the samples relates to prime samples of effluent and not to other samples that are taken upstream or downstream. I hope that that will overcome some of the difficulties.

The issue is whether it is appropriate—as I believe it is—to retain the tripartite sampling requirement, where it is reasonably practical to do so. That is particularly in relation to samples of effluent which will be used in evidence in legal proceedings. Noble Lords will remember that there was a discourse between the noble Lord, Lord Crickhowell, and me at Committee stage. I suggested that he was confusing the monitoring function of sampling and the prosecution function. The prosecution function demanded a reasonable standard of sampling which would satisfy the principles of natural justice and give reasonable safeguards to the accused. I have tried to deal with the problem by reducing it to its essential elements.

The second subsection is to provide for a statutory code of practice to give guidance and promote good practices,

    "in relation to the taking, service, preservation, carriage, and analysis of samples".

The courts would obviously have discretion to refuse to admit evidence which had been gathered in contravention of the code. That would be down to the courts on a case-by-case basis.

At an earlier stage we discussed the whole question of whether it would be possible to procure a prosecution if "tripartiting" and the giving of reasonable facilities to the person accused to defend themselves had not been complied with. I believe that those are an important safeguard. I am sorry to cover them with such brevity but the late hour calls for it. I beg to move.

Viscount Mills: My Lords, I do not intend to rehearse once again all the arguments that my noble friend Lord Crickhowell put forward at the Committee stage. However, I know that the NRA still supports the measures to remove the statutory requirement for taking tripartite samples as set out in the Bill.

9 Mar 1995 : Column 519

I am concerned, however, about subsections (1B) and (1C) of Amendment No. 251B. As drafted, the code of practice would have to be issued as secondary legislation via the Secretary of State. I believe that that would be a cumbersome, lengthy and inflexible process. In addition, it could be a lawyer's paradise. Potentially endless time, effort and money could be spent in trying to prove whether or not the agency had complied with all the details of the code of practice.

Surely voluntary guidelines are needed, certainly developed in consultation with others but which can be modified as necessary in response to changes both in technology and the law. I am convinced that we do not need a statutory code of practice. I therefore cannot support the amendment.

10.30 p.m.

Viscount Ullswater: My Lords, Clause 93 repeals the requirement for tripartite sampling in legislation applying both to England and Wales, and to Scotland. Amendments Nos. 251A and 251B seek to disapply these repeals—thereby retaining the tripartite procedure—in cases where the samples in question are of effluent rather than any other matter. There would be an exception where it was not reasonably practical to comply with existing requirements. Amendment No. 309B would delete repeals, in Schedule 20, of provisions which require a sample taken by the NRA to be tripartite sampled in order to be admissible in legal proceedings—thereby retaining the tripartite procedure for all samples taken by the NRA.

One of the reasons for removing tripartite sampling is the unintended practical difficulties which the NRA has experienced in applying the present procedure. I appreciate that Amendments Nos. 251A and 251B address this point by seeking to retain the tripartite procedure only for samples of effluent.

This was not the only reason for our proposal to remove the tripartite requirement. We are seeking, in setting up the agencies, to achieve a degree of consistency in the measures that will be used to control different kinds of pollution and to remove some existing anomalies. Removal of tripartite sampling will put scientific evidence in water pollution cases on the same footing as evidence brought by HMIP and waste regulation authorities in other pollution cases.

I know that there is some concern that the removal of tripartite sampling will mean that a discharger will not be able to question evidence used in legal proceedings. This is not the case. The general law on the admissibility of evidence is extensive. There will—and this is important—be nothing to prevent dischargers from challenging scientific evidence brought against them. We simply wish to remove an additional layer of procedures which applies only in water pollution cases and which is presently a precondition to the admission of any of the NRA's samples.

Amendment No. 251B also proposes that the Secretary of State should issue a code of practice on the taking, handling and analysis of samples. It has always been our view that the water regulatory bodies should

9 Mar 1995 : Column 520

have discretion in the way they exercise their powers, and the same should apply for the agencies. It will be for the agencies to develop their own procedures for the collection and handling of samples. If the agency so wished, it could of course take samples on a tripartite basis in cases where it was considered to be appropriate. The overriding consideration is that sample evidence must be of sufficient quality to satisfy the courts.

I hope that with these remarks the noble Earl will feel able to withdraw his amendment.

Next Section Back to Table of Contents Lords Hansard Home Page