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7.15 pm
The point is, if one likes, to reverse the current burden where people are overcautious and therefore engage the individual in the court process when that is not absolutely necessary. We have to be balanced in our approach and ensure that those who go through the process are people who are identified as properly needing to be there. That will give greater confidence to people that proportionality is appropriate. As I said in relation to the other amendment, in cases where there is ambiguity or things are on the cusp, we can anticipate that the police will revert to type. We are all recidivists; we go back to the safe position, and the safe position is not to grant bail.
Home Office circular 61/2003 sets a maximum period of six weeks for answering bail, save in exceptional circumstances. We consider that retaining that operational flexibility will benefit both the investigators and avoid bringing people back unnecessarily. I am very grateful for the noble Baroness’s indication that the amendment is merely probing.
Lord Dholakia: I did not make that promise that this was a probing amendment, but as there is still plenty of time before we have the dinner break I shall say that I am grateful to the Minister for her comments. The matter was brought to our attention by Liberty, with which I shall discuss the Minister's response. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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Clause 9 [Power to detain pending DPP’s decision about charging]:
Lord Dholakia moved Amendment No. 88:
The noble Lord said: This is another amendment that was brought to our attention by Liberty. It would prevent people being detained for more than three hours pending a decision by the CPS on whether to charge.
On Report in the Commons, the Government added Clause 9. It expressly allows the police to detain a suspect pending a decision by the CPS on the appropriate charge. The only time limit that would apply to the power is the normal time limit for detention pre-charge, designed to enable the police to detain a suspect to secure or preserve evidence relating to the offence for which he was arrested, or to obtain such evidence by questioning.
These purposes are not appropriate after a custody officer has decided that there is sufficient evidence to charge the person and has referred the case to the CPS for this purpose. The evidence relating to the offence would already have been secured and the witness already interviewed. The only purpose for detention in this context is to ensure that the person who would be detained post-charge does not need to be released while the CPS is making a charging decision.
We agree that it is sensible to clarify that a person can be detained for these purposes. We would not wish to see those suspected of serious offences released pending a decision by the CPS because of a possible loophole in the law. However, a time limit is needed so that this power is not used to keep people in custody for longer than necessary. It is also needed to ensure that a person is not kept in detention because of the failure of the CPS to make a charging decision as soon as possible. Three hours may not seem a very long time but, in the Commons, the Minister suggested that the power should not be used when the officer thought that the CPS would take more than three hours to reach a decision. Referring a case to the CPS will frequently involve little more than a telephone call to the duty prosecutor or the out-of-hours duty prosecutor service, which is designed to ensure a 24-hour service.
There is understandable concern that the police should not be required to release someone who they consider to be a danger simply because the CPS has failed to provide a charging decision within three hours. To deal with that, there is already an emergency power for a custody officer to charge a person in cases that would normally be determined by the CPS. That applies where the officer is unable to consult the CPS, a time limit is about to expire, and if the suspect were not charged it would require his release in circumstances where that would not be appropriate. If the specified time limit elapses, a person can also be released on conditional pre-charge bail.
The
need for this safeguard was accepted by the Minister in the Commons,
Liam Byrne MP. He also acknowledged that the power should not be used
if a decision were expected to take more than three hours. However, he
suggested that the safeguard should be included in guidance rather than
in the Bill. When
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Baroness Scotland of Asthal: I understand the noble Lord’s concern, and he is right to say that three hours was the time limit referred to by my honourable friend in the other place. The only difference between us is whether the limit should be on a statutory basis or in guidance, and I shall explain why. The noble Lord will know that, under the Police and Criminal Evidence Act, a custody officer is required to charge a person if there is sufficient evidence to provide a realistic prospect of conviction for the offence, or to refer that person to the Crown Prosecution Service for consideration under the statutory charging process.
A sensible reading of PACE allows detention for a relatively short and reasonable time, for the purpose of referral to the CPS for a quick charging decision to be made. However, as the noble Lord knows, PACE is not explicit in providing for that detention, and we introduced a government amendment on Report in another place to provide that clarification. We could have left the position as it was, but we did not think it right.
We then indicated that guidance would be issued making it clear that such a period of detention awaiting a decision from the detention officer would be for a maximum of three hours. We remain of the view that guidance is the most appropriate vehicle for dealing with this issue. There may be occasions when the decision takes, say, 10 or 15 minutes more than three hours. If the matter is laid down in legislation, the person would have to be released prior to the expiry of the three-hour period, bailed and asked to return at a later date. That is bureaucratic and benefits neither the police nor, for that matter, the suspect. I am sure the noble Lord will be familiar with circumstances when that has happened.
The basis of the guidance and the three-hour suggested maximum is to require the custody officer and the prosecutor to consider at the very earliest stages the likelihood of a decision being reached within that period. If a decision is not thought likely, the presumption must be to bail that person at that time and not wait until the three-hour period has been reached.
The guidance will make it clear that this is not simply a means to keep a person in police detention and that suitability for bail is to be given first consideration. It will also place a requirement on the custody officer to provide the reasons for any period of detention in which bail was considered suitable but for which the person was detained for up to three hours to await a decision, and for those cases in which a decision was not reached within that period and the person was detained further or granted bail.
Setting a statutory
time limit has its attractions, but as we are seeking to ensure that
suspects are dealt with quicker and more effectively, we see merit in
providing a degree of flexibility and allowing an element of discretion
on the part of the custody officer when it is of benefit to the
detained person. The way we see it is
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Lord Dholakia:I thank the Minister, but the difference is that custody officers still have powers to take a decision, despite the fact that the CPS may not have reached a decision or may be late in reaching it. I shall take this matter up with the advisers who suggested this amendment to us and discuss it with them. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: I think this might be a convenient moment for the House to be resumed. I suggest that proceedings in Committee recommence not before 26 minutes past eight. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
Contaminated Land (England) Regulations 2006
7.26 pm
Lord Dixon-Smith rose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 23 May, be annulled (S.I. 2006/1380).
The noble Lord said: My Lords, in rising to move this Motion for an humble Address, I hope that the Minister will be able to resolve my concerns over certain parts of these regulations. We accept the need for proper control of contaminated land and the necessity of preventing water pollution, if at all possible. That said, there are one or two matters about the way in which these regulations are drafted that require clarification.
I shall first raise two relatively small matters about the drafting. On page 1, there is a list of the sections of the Environmental Protection Act 1990 and the Contaminated Land (Enabling Powers) (England) Regulations 2005 that authorise the contents of the regulations. That is completely understood and is a normal and helpful clarification. My problem relates to paragraphs 4(1)(i) and 4(1)(j) on page 4 that state that guidance is issued under Section 76(F) and Section 78(F), which are not mentioned at the start of the regulations. It may be that that is not necessary because of the context, but I ask the Minister for an assurance that there is no problem with that.
The second drafting question arises in Regulation 5 on page 5—it is interesting how the numbers run together in this. Paragraph (2) reads:
- “Where it appears
to the enforcing authority that the contaminated land in question is in
such a condition by reason of substances in, on or under it that there
is imminent danger of
4 July 2006 : Column 198
The questions of substance that I want to raise are, of course, more serious. On page 2, in Regulation 2, we are dealing with land that is required to be designated as a special site. Sub-paragraph (l) deals with land that is adjoining or adjacent to land which is contaminated land by substances which appear to have escaped from designated land. As far as it goes, that is absolutely fine and I can understand the problem. The real question is: how far does “adjacent” go? In Essex, about five years ago, we had rainfall that was a one in 800-year event, as described by our local people responsible for rivers, river basins and flooding. The consequence of that was—I merely mention it as a statement of how severe it was—that six inches of water fell in three hours and buildings were flooded that had never been flooded in the500 years since they were built.
That is the case. It has nothing to do with the issue here, but the issue here is that if you get that sort of precipitation on a contaminated site, it is almost certain to leach out of the contaminated site, properly designated, into the adjacent area. Then the question is: how far can the designation be extended, bearing in mind that the pollution is likely to be relatively slight and possibly temporary? I know that it was an extreme event that brought this to my mind—it is difficult when you consider extreme events, but extreme events happen. Regrettably, pollution is a movable commodity in particular circumstances, especially if it is soluble. So there is a question there. If the Minister could give me some reassurance that any extension of the contamination designation would be temporary, on the basis that the pollution would be likely to be temporary and that the designation would last only as long as the pollution could be identified, that would help.
On page 3, Regulation 3 deals with the pollution of controlled waters. Sub-paragraph (a) deals with waters being used for human consumption and refers to where they are affected by the land and, as a result, require a treatment process or a change in the treatment process. My concern is whether that argument could be used as an argument against nitrate run-off from agricultural land, which would of course have profound implications, which the Minister will understand as rapidly as I do.
The difficulty is that
concentrations of nitrates above a certain level are properly required
to be removed from the water before it is supplied to the mains system.
The question then is: because that requires a particular process, could
the argument be reversed so that it is said that because of the
4 July 2006 : Column 199
I hope that the Minister will tell me that there is absolutely no intention that that could possibly be the case or that the argument could possibly be turned around in the way that I suggested. Given the present state of agriculture, a farmer faced with such a proposition would be on a very quick road to ruin. I look forward to the Minister's reply and hope thathe will give me the assurance that I seek. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 23 May, be annulled (S.I. 2006/1380).—(Lord Dixon-Smith.)
Baroness Maddock: My Lords, the House will no doubt be pleased that I shall be brief. I first came across the regulations as a member of the Merits of Statutory Instruments Committee. As they passed through our committee, we saw no problem with them. As I understand it, they consolidate several sets of regulations. One of the things the committee has said is that we want more of that because one of our big worries about regulations such as these—in a sense, the noble Lord, Lord Dixon-Smith, has highlighted this point—is the ability of people outside this place to understand exactly how they work and what they are about. The process of consolidation is an attempt to help that.
As I understand it, the regulations make provision for an additional description of contaminated land that is required to be designated as a special site—land that is contaminated as a result of radioactivity in, on or under the land. I also understand that they extend Part 2A of the Environmental Protection Act 1990 and that it has been a long-standing ministerial commitment to extend that part of the Act to apply it to land contaminated by radioactive substances. I also understand that part of the provision is to comply with obligations under directives from the European Union. We on these Benches accept what the Government are trying to do. I understand that the changes in respect of radioactivity do not alter the way in which Part 2A currently works for non-radioactive contamination.
I know from studying the regulations as a member of the Merits of Statutory Instruments Committee that consultation was carried out with local authorities, environmental regulators, industry and many other stakeholders, including radiological specialists and environmental groups. We accept that they felt that this was the right way to go—notwithstanding the fact that the noble Lord, Lord Dixon-Smith, has also considered the matter in great detail. As I said, it is often difficult to get to grips with the legal language and exactly how the regulations will work.
Although I am not an expert on legal
matters, we have a lot of rather good legal brains on the Merits of
Statutory Instruments Committee. In this instance, they were not able
to point out to us any great
4 July 2006 : Column 200
The Minister of State, Department for Environment, Food and Rural Affairs (Lord Rooker): My Lords, I am pleased to confirm that all the understandings of the noble Baroness, Lady Maddock, are correct. The noble Lord, Lord Dixon-Smith, asked about the list at the beginning of the order. It sets out the powers of the Secretary of State to make regulations in the exercise of the powers conferred upon him by all those sections. The fact that Regulation (1)(i) refers to Section 78F (6) is not relevant because that is a reference to a section in an Act. It is not the provision that gives the power to make the regulations. The power to make the regulations comes from that other list, but it does not mean to say that the regulations will not refer to other sections in Acts of Parliament. I think that I have that correct; if I have not, I shall be corrected.
I hope to address the noble Lord’s concerns. The noble Baroness, Lady Maddock, made a far more succinct speech on the regulations than the one I have in front of me. As she said, the regulations honour a long-standing government commitment with regard to land contaminated as a result of radioactivity and bring the law into line with what we are required to do. To the best of my knowledge they have been fully consulted on and there is nothing controversial about them. But, nevertheless, that is what this place is for—to scrutinise the Government.
This is one of a series of regulations dealing with the extension to radioactivity of Part 2A of the Environmental Protection Act 1990. These particular regulations deal essentially with procedural matters. They do not affect the scope of the contaminated land regime in terms of the seriousness of harm or pollution which is covered, nor do they affect the remedies or the liability of individuals. The regulations are substantively the same as those originally made in 2000 when Part 2A was brought into effect, with a limited number of changes. The clarifications being sought relate to the features of the regulations unchanged from 2000.
We are not opposed to these regulations or the—I am sorry, my note does not make sense and I will not read it. That is my fault.
However, to clarify the specific points, the noble Lord has had discussions with officials and has told us of his concerns in relation to Regulations 2, 3, 4 and 5. Regulation 2 provides descriptions of land which, if and when they are found to be contaminated land as defined in the Act, are to be regarded as “special sites”. The approach of the Act is that it is always the local authority’s job to identify and formally determine the land as contaminated land. If, in addition, the land meets a description in Regulation 2, then it must designate it as a “special site”. This simply means that it becomes the job then of the Environment Agency rather than the local authority to take the subsequent steps of enforcement, which are, notably, identifying who is to pay for remedial work and ensuring that it is undertaken.
There
may be special sites where the condition of the land is also leading to
adjoining or adjacent land being contaminated by substances migrating
or escaping
4 July 2006 : Column 201
This mirrors what will happen in any other case under Part 2A where the condition of one piece of land leads to substances leaching or migrating onto another piece of land and causing a problem. Here, too, the approach is to regard this as a single case to be addressed because, of course, land contamination does not respect property boundaries and action may need to be taken in respect of both locations. The term “adjoining or adjacent” is not defined, so the words will carry their normal dictionary meanings. Of course, if a row occurs about that, it will be a matter for the scientists to go before my learned friends and explain matters.
Regulation 3 sets out the special site descriptions in respect of contaminated land which is causing pollution of controlled waters. The effect is to provide which “contaminated land” cases, once found, are then taken over and enforced by the Environment Agency rather than by the local authority. In the case, for example, of chemicals such as nitrates used on a farm, if these escape from the soil and into ground waters, or into surface waters, then it has long been the case that this may amount to “pollution of controlled waters”. The regulations here do not change that situation.
In some of these pollution cases the Environment Agency is better placed to enforce under Part 2A than the local authority. Regulation 3 provides the description of such cases. Broadly, these include cases where a source of drinking water supply is affected so badly that the test of wholesomeness of supply can no longer be met; where a statutory environmental quality standard can no longer be met; or where a classified dangerous substance is getting into a strategically important aquifer.
The Government intend to limit the scope of the Part 2A regime in future so that it would not apply to a case of trivial pollution of controlled waters but only to pollution which is “significant”. Work on this is proceeding and there will be a public consultation on detailed proposals in due course.
Regulation
4 sets out the matters which are to be included in a remedial notice,
in addition to those matters set out in the Act itself, in more general
terms. The power to prescribe the additional content is provided by
Section 78E(6), and this power is cited on the front of the
regulations. The power of the local authority to treat someone as not
being an appropriate person to bear the cost of something by way of a
remedial action, in certain circumstances, derives from Section 78F(6).
This is the reason that Section 78F(6) did not need to be cited as a
power on the face of the regulations.
4 July 2006 : Column 202
This is because the regulations are merely concerned with what has to be shown in a remediation notice in order for the recipient to know what he is required to do and on what basis. The content of a notice simply reflects the outcome of the allocation of liability, which is governed by the primary legislation and its related statutory guidance, not by the regulations.
The final regulation questioned by the noble Lord, Regulation 5, concerns the sending of copies of a remediation notice to people additional to the “appropriate persons” upon whom notices are formally served under the Act. The additional copies are provided for information purposes. In the cases where a remediation notice is served in respect of imminent danger, there is a requirement that the additional copies are sent as soon as practicable after service of the notice itself on the appropriate persons.
It would have been possible to deal with the service of these additional copies in the Act, but, generally, the approach taken is that matters of a procedural nature—which is what I have said these regulations are—are often elaborated in regulations under the Act rather than in the primary legislation itself. This appears to have been the approach adopted here in 1995 when the Environment Act was first enacted.
I hope I have answered the noble Lord’s points and that it will be quite useful for people who are subject to these regulations to have this explanation on the record in Hansard.
Lord Dixon-Smith: My Lords, the Minister has been most helpful. The concern, of course, was immediately for the people who are adjacent to sites of this nature and, therefore, might be caught. The Minister said that nothing in these regulations changes the position that existed in law before they were promulgated; nor, indeed, do they change anything. That is the reassurance that I was seeking and I am most grateful to him for that.
As to his remarks on the additional notices, I hear what the Minister says. But if we have to put into regulations what should be an automatic and standard procedure anyway, I find that slightly touching but also slightly peculiar and, as I said, tautologous. I am pleased to be able to tell the Minister that I am satisfied with his answer. I beg leave to withdraw the Motion.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.26 pm.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.49 to 8.26 pm.]
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