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Baroness Hamwee: Grouped with Amendment No. 335ZBB are Amendments Nos. 359, 374 and 378 in the names of my noble friend Lord Beaumont of Whitley and myself. The thrust of our amendments is similar to the others spoken to, though I tabled them very much in a spirit of inquiry. I felt that this was a matter of public policy which needed to be debated. Apart from anything else I am aware that Amendment No. 359 in particular contains considerable drafting defects.
I was concerned not only about the potential criminal convictions that would follow, but alsoI am not sure that it has been mentionedthat as a result of conviction under some of the areas referred to in this group of amendments, the person convicted may be declared not to be a fit and proper person, for instance, to hold a waste management licence or to carry waste. The implications therefore would be even widerand also narrowerthan perhaps have been already referred to.
I am grateful to the noble Lord, Lord Crickhowell, who himself, and in quoting Lord Justice Salmon, expressed what concerned methat is, that as a matter of public policy the balance should be as the legislation currently provides and as the Bill intends to provide. In an area where knowledge and technology are advancing rapidly, I am concerned among other things that somebody may say, "I did everything I could"; but had they inquired a little harder, because the world has advanced, it may have been possible to prevent the polluting incident.
This may be a minor point, but I am concerned also about the term "due diligence" acquiring a specific meaning. For instance, one undertakes due diligence in acquiring a company and investigates everything there is to be known about that company. It is perhaps becoming a term of art which may not now be appropriate to be used in legislation. But that is a minor point.
Lord Peyton of Yeovil: Lest it be thought that my noble friend Lord Crickhowell has no support on this side of the Committee, I should very much like to say that I do support him. We have said very clearly that we want to clean up our rivers, which are in a disgraceful state. Unless we stick to a very tough line on that, the burden on the National Rivers Authority or its successor will be very great, very complicated and very difficult to carry.
The Minister of State, Department of the Environment (Viscount Ullswater): I approach these amendments with some trepidation because the law is quite difficult in this areaI would be the first to appreciate thatand I understand the great concern that my noble friends have indicated by putting down what I would consider to be a series of amendments all to do with due diligence. Before I commence I should like to pay tribute to my noble friend Lord Crickhowell, because he brings with him a great deal of experience in these matters. The noble Baroness, Lady Hamwee, indicated that some form of public policy is involved. I should like to try to demonstrate to the Committee the requirement for that policy.
These amendments seek to add to Section 85 of the Water Resources Act 1991, to a similar provision of the Salmon and Freshwater Fisheries Act 1975, to Section 23 of the Environmental Protection Act 1990 and to Section 118 of the Water Industry Act 1991 the defence of due diligence. Section 85 of the Water Resources Act 1991 makes it a criminal offence for a person to cause or knowingly permit poisonous, noxious or polluting matter to enter controlled waters. It is probably the most important and significant provision in the armoury of the NRA's prosecution powers and I understand that it has been used in more than 2,000 cases since 1989, in which time, and perhaps partly as a result, there has been a halving in the number of serious pollution incidents involving controlled waters. Section 23 of the Environmental Protection Act 1990 creates the offences used to underpin the enforcement of the systems of integrated pollution control and local authority air pollution control in Part I of that Act.
Very importantly, the relationship between Section 85 of the Water Resources Act and the defences provided by that Act has recently been considered by the Judicial Committee of your Lordships' House in the case of NRA v. Yorkshire Water Services Limited. In that case the chemical should not have been put in the company's sewers and there was little it could have done to prevent it passing through and being discharged from its works. The opinion of their Lordships, delivered by my noble and learned friend the Lord Chancellor, was that the water company had caused the release of a chemical into controlled waters but, on the facts of the case, had available to it the defence now contained in Section 87(2).
The NRA, like any other prosecuting authority, must take full account of the judgments of the court in applying and adapting its prosecution policy and I know that that has already been done as regards the Yorkshire Water case. However, the practical effects of these amendments would be to place a very real additional burden on the prosecutionpresently the NRA and HMIP and the procurator fiscal in Scotlandin areas where it is already difficult to collect evidence. Prosecutors would not only have to prove that a polluter had caused pollution or knowingly permitted it, which I understand to mean a failure to prevent the pollution accompanied by knowledge.
In practice, the prosecutor, as well as having to be able to show that none of the existing defences applied, would in addition have to adduce sufficient evidence to overcome the due diligence defence. To my noble friend Lord Elton, who spoke to his amendment, I would say that the practical result of the amendment moved by my noble friend is that the prosecution would have to know enough and prove enough to be able to overcome the defence. In water pollution cases and cases involving prescribed processes the difficulties of doing so are enormous. I am sure your Lordships will wish to take careful note of what my noble friend Lord Crickhowell has had to say on that point. It would, I am sure, be echoed by those charged with the task of bringing prosecutions at HMIP.
I believe that my noble friend Lord Crickhowell put things into perspective. It is a question of balance between the need for effective enforcement of pollution offences and the rights of defendants. We should be careful not to make the job of the prosecutor so difficult in these cases that in effect they can seldom be brought. At the end of the day prosecutions are a necessary underpinning of an effective system of enforcement.
My noble friend Lord Onslow referred to other cases where, perhaps as a result of the availability of substantial mitigation, very low penalties were imposed by the courts in cases brought by the NRA. Few prosecution agencies bring cases for the sake of it and the general level of penalties in particular categories of case is certainly one factor which they will take into account in deciding whether to bring a prosecution. One should, however, be careful before drawing too many conclusions from the facts, as opposed to the law, of an individual case.
My noble friend Lord Onslow brought to the attention of the Committee a scenario which I do not believe really helped us in this matter. He would need to look very much to the state of his roof, as he described it, and he ought to check his liability insurance in case he faces a civil action brought on behalf of his deceased son. As to the spillage of the acid which he talked about, as always the NRA would have to consider carefully whether it had sufficient evidence to justify criminal proceedings and whether the public interest required such proceedings. I do not believe that the example given by my noble friend is any argument at all for imposing a due diligence defence in all water pollution cases.
Viscount Ullswater: I do not want to prolong the argument as to what is right in the case of my noble friend's roof and whether or not he is liable there. I have sought to demonstrate that it should not produce a defence of due diligence for the pollution of water.
My noble friend Lord Dixon-Smith has also drawn attention to the fact that a due diligence offence is available in other legislative provisions such as in the waste provisions in Part II of the Environmental Protection Act 1990. The facts of each case are different and, if one takes into account the defence to which I have referred in the Water Resources Act 1991, the contrast is not as great as may appear.
I believe that my noble friend Lord Crickhowell indicated that in most instances when a pollution incident takes place in water it is not possible for it to be remedied. The pollution incident has taken place and the destruction that follows is also very difficult to ameliorate whereas, as regards waste, if pollution takes place, there is very often an opportunity to ameliorate it before it causes any damage to water. There is a distinction which should be drawn between those two types of pollution incident.
We are advised that the amendments proposed will place very real practical difficulties in the path of effective enforcement of some of the most important provisions of environmental law. I do not believe that the amendments are necessary in order to address all the concerns expressed by those proposing them. Therefore, I hope that my noble friend will consider withdrawing his amendment.
Lord Dixon-Smith: I am grateful to those Members of the Committee who have taken part in what has been an absolutely fascinating debate. It seems to me that there are quite a number of levels of judgment in this matter. Nobody is quarrelling with the policy that any pollution of watercourses should be dealt with in the most rigorous and extreme way. That is not in question. It would be for the defendant to prove, if he can, that he has behaved with absolute propriety.
We should not attempt to second-guess the judgment of the court on a particular case. Each case is separate and its facts will be revealed in court. If the regulators are not prepared to make their case before the court then there is a problem. The third judgment that we have to make here is perhaps the more significant one. We are having to judge between the convenience and ease of the regulators and the possibility of an unjust judgment on a man who has behaved with absolute propriety and who could have done nothing about the circumstances in which he found himself. It was in that spirit that I moved the amendment. I have heard what my noble friend the Minister has said, but I cannot say that I am