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Viscount Ullswater: Amendment No. 252ZA would give the agency a new power to serve a notice requiring anti-pollution works to be carried out by a polluter or potential polluter of controlled waters. These works could include the removal of polluting matter, remedying or mitigating pollution, or, so far as reasonably practicable, restoration of the waters to their state before the pollution occurred.
Under existing legislation, the NRA has a power to carry out such anti-pollution works and then to seek to recover from the person who caused or knowingly permitted the pollution to occur the expenses which it incurs. The intention of the amendment is that the agency will have the opportunity to require the polluter to take action before having to undertake and initially pay for such work itself. I am sure that the proposers see this as a way of ensuring more directly that the polluter pays.
In setting up the agency, we are seeking to achieve a degree of consistency in the measures which will be used to control different kinds of pollution. The notice procedure set out in the amendment is, in many respects, similar to the enforcement procedures proposed in respect of contaminated land. However, it departs from those and other measures in some significant respects. I am anxious, for example, because no right of appeal against a notice is envisaged, as it is proposed that a failure to comply with the requirements of a notice should be an offence for which the maximum penalty proposed would be imprisonment. While it may be open to a person upon whom a notice has been served to seek relief from the courts on the ground of unreasonableness, I find it difficult to accept that such a person should have no statutory right of appeal, in particular if his case is that the agency had no power to serve notice on him as he did not cause or knowingly permit pollution to occur.
A notice procedure would also be a significant change to the existing law which would have implications for industry, including the water industry. Those implications, together with some very important issues concerning the precise provisions of any such power, including the right of appeal, require very careful consideration. Therefore, we cannot take the amendment forward at this stage.
Nevertheless, I recognise that the underlying principle that the agency should be able to require polluters to take action to remedy water pollution and pay for that action merits further consideration. In the meantime, I ask my noble friend to withdraw the amendment while we undertake that consideration.
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