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The Duke of Montrose: My Lords, I rise to support this amendment as one who is concerned about small businesses, particularly rural small businesses.

The Long Title of this Bill makes it clear that two approaches are being combined here to activities which cause pollution, one implementing the European Council directive and the other regulating otherwise,

"activities...capable of causing any environmental pollution". I find the European Council directive relatively easy to discuss. One of its beauties is that it is possible to distinguish within it what is a small business and what is a large business. But when we get beyond that, the line becomes blurred and difficult to determine. As I understand it, everything in the European directive is laid down in terms of the industries, the activities and the substances which are regarded as requiring regulation to prevent pollution.

The one missing element in that jigsaw is that it is left to the individual member states to define at what level or intensity each substance or detrimental activity should be regarded as causing pollution. Perhaps as a slight rider to this debate it would be interesting to know whether the British Government have now drawn up a list of the levels at which they regard pollution will have been created and whether that is available along with other consultation papers.

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I find it a rather different story when we come to the incorporation of the British approach, which must be what is contained in the phrase,

"regulating, otherwise...activities which are capable of causing any environmental pollution". I certainly took a certain amount of comfort from what the Minister told us at Report when he said that,


"the incorporation of the integrated pollution prevention and control regime will not extend these controls to areas which were not already covered by the 1990 Act".--[Official Report, 13/5/99; col. 1388.] But the worry is that the approach contained in the 1990 Act, shorn of its 28 sections of defining legislation, could lead to statutory instruments being applied in areas which are not presently under consideration.

As someone who has spent many years in farming and land management, I am particularly concerned with what until now has been regarded as acceptable rural or agricultural practice. Perhaps I can illustrate what I mean. One can have some understanding of the European directive's limit on agricultural units which, as the Minister explained to me at Second Reading, is fixed at 40,000 hens, 2,000 fattening pigs or 750 breeding sows. The various components of pollution that have been taken into consideration in arriving at that limit are not actually defined.

One of the substances pinpointed in the directive is any substance with a high level of biological oxygen demand. Such substances are already regarded as pollutants in this country if released into a watercourse, but having a production system which produces such substances at an agricultural level is not presently subject to licence. If the European directive is taken as giving an indication of the levels at which controls are likely to be introduced, one can calculate the estimated biological oxygen demand produced by a unit of 750 breeding sows. At a rough calculation, materials of a similar level of biological oxygen demand would be produced by a unit of somewhere between 250 and 500 dairy cows. Those noble Lords with rural backgrounds will realise that there is a difference as to whether one takes into account pollution produced by cows at grass as well as the pollution produced by cows when indoors.

At this point, one is bound to be considering rather more than the 1,000 agricultural units that the Government presently maintain are likely to be affected. I expect that that particular yardstick will not presently be considered. My worry is that there is nothing in the Bill which would prevent such a comparison being drawn at a later date. That is where we come to the difficulty that I see: that from now on any sanction that this House will be able to voice against statutory instruments will be governed by the practice concerning positive resolution. The present convention whereby this House does not oppose secondary legislation may well be strained beyond its limit. The extremely wide powers delegated by the Bill may compel Members of your Lordships' House to make an intervention, even if only to express their rejection.

Lord Harris of High Cross: My Lords, I wish to intervene in support of this amendment. I should

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perhaps apologise that I come rather late to this modest scrap. That is not due to the usual indolence, but to ignorance. It is a glorious thing to be a foot-loose, fancy-free Cross-Bencher, but we have no research department and no assiduous Whips to draw our attention to some of these stealthy measures on behalf of European integration.

At Report stage, which I read most carefully, almost all noble Lords paid tribute to the Minister, the noble Lord, Lord Whitty. We have all had experience of the conscientious and courteous way he treats even such fractious questioners as the noble Lord, Lord Pearson. Paradoxically, his high standing underlines the baleful influence of Euro-directives which landed even him in such trouble with the Select Committee on Delegated Powers and Deregulation.

I confess that I speak as a former economist--a relaxed, retired economist--but, nevertheless, wholly opposed to the eruption of this Bill, especially when the 1990 Act seemed to be working to general satisfaction. I am irreconcilably opposed in principle to having the words "best available techniques" detached from the specific clear qualification of "not entailing excessive costs". It reminded me of a phrase of a well remembered Member of this House, Lord George-Brown, who used to say that he opposed something "irregardless" of the intentions of the Minister.

The suppression of pollution is one of those good things, like the National Health Service, on which single-minded enthusiasts could easily spend the greater part of the national income. In an unceasing search for perfection, enthusiasts push for further improvements, which can always be justified without regard to their ever-spiralling expense. Our aim in this matter should never be a world of zero pollution, nor even a world of minimum pollution; it should be a world of optimal pollution. In this as in other policies we must be guided by what economists call the "opportunity cost", measured by the sacrifice of all other desirable improvements displaced by any single line of expenditure.

Whatever the extenuating circumstances or external pressures, I have a slight suspicion, which the Minister need not deny, that he shares some of our reluctance to abandon this mnemonic BATNEEC. In any event, I wish to restore it in place of this impoverished version of "best available techniques", which has me putting my hand over my wallet pocket.

4.30 p.m.

Lord Vinson: My Lords, before the noble Lord replies, I hope that he will bear in mind that this clause, which I fully support, has been drafted with the expertise of the Clerks of the House. But for all that, and because of the arcane use of double negatives, it may not be easy to follow and may be flawed. I hope that the Minister will not reject the amendment on that basis, if that is the case, but look more deeply into what previous speakers have put to him; namely, that there is real concern in industry against losing the well accepted, well understood, well drafted, excellent technique of BATNEEC and substituting an entirely unnecessary alternative.

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This is a matter of great importance. It brings in the smaller businesses which are specifically excluded by the EC directive. It is an example of gold-plating regulations at its worst. I hope that the Minister will bear that in mind when he replies.

Baroness Blatch: My Lords, I very strongly support this amendment. But that does not mean that we are in any way downgrading the importance of cleaning up the environment. I regard it as one of the privileges and great pleasures of the original Environmental Protection Act that its efficacy is manifest in the latest reports showing just how much improvement there has been in our rivers and industrial processes over the past decade. That government aim is very much supported.

An important point was made by the noble Lord, Lord Stoddart, which I support. Although we are praying in aid the protection of small businesses, which remains very important, this is a matter which applies to all businesses. If the burden of cost falling on a business results in lost jobs, lost market share or, worse, a company going out of business, it will impact on communities and on the health and wealth of our economy. That is an important point to bear in mind.

So much of the 1990 Act is being removed. I strongly support what my noble friend Lord Renton had to say about this Bill. To take a great swathe from the 1990 Act and then leave it to the vagaries of secondary legislation is simply not good enough. My noble friend the Duke of Montrose also made the point that, because of the limitations on the powers of this House, to take or leave secondary legislation suggests that matters will be very unsatisfactory in future. That sector of our business and commerce will be put very much more at risk.

I believe that my noble friend has done the House a service. He has read very carefully what the Minister had to say when we last considered this Bill. I see this amendment as a very important salvage exercise. It re-imports into the Bill the protection of small businesses and allows the flexibility which my noble friend set out so clearly as regards BAT and the businesses to which this Bill applies. But should there be any extension to the work of the regulators it seems to me that the NEEC part of BATNEEC (the best available techniques not entailing excessive cost) is absolutely crucial as a protection for the whole of industry and commerce, and in particular the small business sector.

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