Previous Section Back to Table of Contents Lords Hansard Home Page


Baroness Hilton of Eggardon: My Lords, I am grateful for the detailed response given by the Minister and the attention that has been clearly paid to this important matter. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 82 [Meaning of "drainage" in certain enactments]:

The Earl of Lytton moved Amendment No. 247A:


Page 89, line 32, leave out (", other than spray irrigation").

The noble Earl said: My Lords, I have been asked by the noble Viscount, Lord Addison, to move the amendment on his behalf. He is unable to be here this evening and apologises for the fact that he cannot speak to the amendment.

9 Mar 1995 : Column 508

I moved a similar amendment at Committee stage. This is a subject which is not within my direct personal knowledge but I understand that the purpose of the amendment is to add a further aspect of water level management to the activities of internal drainage boards. We do not have those on Exmoor as far as I know.

The amendment seeks to enable the boards to be able to move water around drainage networks in order to facilitate extraction of water for spray irrigation. Such a power would be subject to the other environmental duties of the boards. The conditions attached to any extraction licence would have to be observed.

At Committee stage the Minister recognised that there might be merit in amending the definition of drainage in this way provided any adverse repercussions on water extraction provisions of the Water Resources Act 1991 could be avoided. Since that time I understand that there have been informal discussions with the Ministry of Agriculture, Fisheries and Food.

The purpose of moving the amendment is merely to inquire whether the Minister has been able to give any further consideration to the issue. I beg to move.

Earl Howe: My Lords, I am grateful to the noble Earl for introducing the amendment. While the Government cannot accept the amendment, mainly because we believe that it could cause problems for the management of water resources by the Environment Agency, we see the force of the underlying objective behind the amendment and are considering ways of addressing the issue.

I hope that it may be possible to bring forward a suitable Government amendment and that the noble Earl will feel able to withdraw the amendment.

The Earl of Lytton: My Lords, I am sure that the noble Viscount, Lord Addison, will be extremely grateful to the Minister for his reply, knowing that the matter is under discussion and that there is some sympathy with what lies behind the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 86 [Fixed penalty system for certain fisheries offences]:

Viscount Mills moved Amendment No. 247B:


Page 94, line 19, at end insert:
("( ) the monetary amount of the fixed cost which shall be paid;").

The noble Viscount said: My Lords, I put forward an almost identical set of amendments in Committee. The purpose is to enable the agency to recover costs—not the fines themselves—under the new fixed penalty scheme for fisheries offences. In his response, my noble friend undertook to look more closely at what was proposed before Report stage. I put down the amendment solely to elicit what my noble friend considers can be done. I shall be most grateful to hear his response. I beg to move.

Lord Moran: My Lords, I strongly support the amendment. It is extremely important that the NRA should be able to recover its costs. If it cannot, those costs would obviously fall on the NRA's fisheries

9 Mar 1995 : Column 509

account and would be paid by legitimate anglers who already suffer from a substantial reduction in grant-in-aid from the Government. That would have a bad effect on fisheries. I hope that the Government will be able to meet what the noble Viscount said.

Earl Howe: My Lords, I fully recognise the importance which my noble friend and the noble Lord, Lord Moran, attach to amendments which provide for the cost of administering the fixed penalty system, provided for in Clause 86, to be met by a fixed cost, payable by offenders, in addition to the fixed penalty. Your Lordships may recall that when I agreed to consider the amendments in Committee, I made the point that there could be implications for other fixed penalty schemes, which the Government would need to consider with care. I regret to say that we are not yet in a position to take a decision on the issue. However, I can assure the House that the proposal is being pursued actively and that if it is decided that an amendment should be made, we would aim to introduce it in another place. I recognise that that represents a limited reassurance only, but I hope that in the light of it my noble friend will feel able to withdraw the amendment.

Viscount Mills: My Lords, I thank my noble friend for his reply. I think that he recognises the importance of the matter, and I hope that an amendment will be brought forward in another place. With that hope, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 247C to 247F not moved.]

The Earl of Onslow moved Amendment No. 248:


After Clause 87, insert the following new clause:

("Pollution of water: defences

.—(1) After subsection (6) of section 85 of the Water Resources Act 1991 there shall be inserted—
"(7) It shall be a defence for a person charged with an offence under this section to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
(8) In any proceedings where a person wishes to rely on the defence provided in subsection (7) of this section, it shall be for him to prove that defence.
(9) A person charged with an offence under this section shall not, without leave of the Court, be entitled to rely on the defence provided in subsection (7) of this section unless at least 28 clear days before the hearing he has served on the Prosecutor a notice in writing setting out the evidence he wishes to rely on to establish that defence."
(2) After subsection (3) of section 4 of the Salmon and Freshwater Fisheries Act 1975 there shall be inserted—
"(4) It shall be a defence for a person charged with an offence under this section to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
(5) In any proceedings where a person wishes to rely on the defence provided in subsection (4) of this section, it shall be for him to prove that defence.
(6) A person charged with an offence under this section shall not, without leave of the Court, be entitled to rely on the defence provided in subsection (4) of this section unless at least 28 clear days before the hearing he has served on the Prosecutor a notice in writing setting out the evidence he wishes to rely on to establish that defence.".").

9 Mar 1995 : Column 510

The noble Earl said: My Lords, first, I have been asked by the noble Lord, Lord Dixon-Smith, to give his apologies to the House. He is not here because he has suffered a bereavement, and my noble friend Lord Jenkin of Roding is going to watch some heavily subsidised entertainment of the Royal Ballet.

I return to the point of an innocent man being prosecuted for polluting the water when he has no knowledge or possible ability to stop it. In Committee, my noble friend Lord Ullswater said that that would impose an intolerable burden upon the NRA. So, with the amendment, we have tried to relieve the NRA of that burden. We have said that one can only get off the charge if one proves beyond peradventure that one has made every possible and reasonable effort to ensure that nothing happened or could go wrong, and that one is not at fault; furthermore, such a person would have to give 28 days' advance notice to the NRA that he was going to run that defence. The NRA would have, as in the case of alibis, the duty to ensure that the defence was real or not real, so it could not be sprung upon it. If that were the case, I am sure that almost invariably the defence would be run only in genuine cases. Were the defence run in non-genuine cases, the defendant would be lumbered with extra costs in addition to the costs already incurred by the pollution offence.

On Tuesday, when talking about seepage from underground mines, my noble friend Lord Ullswater went to considerable effort to point out that:


    "To be liable a landowner would have to know about the discharge and it would have to be within his or her power to do something to prevent it".—[Official Report, 7/3/95; col. 238.]

I thought that he was going a little down the way towards what I am trying to suggest tonight.

I do not believe that I am going to get anywhere with the amendment; in fact, I have already been told that I am not. Therefore, I hope that no other noble Lord will speak in favour of the amendment because everyone wants to get home to bed. However, I should like the Government to answer one question: why not? Secondly, I warned the Government that they must hope that no one will take the matter to the European Court. If someone does so, the Government will be seriously embarrassed. I beg to move.

10 p.m.

Lord Moran: My Lords, prior to the Committee stage I was approached by the solicitors Clifford Chance, who asked whether I would support this general provision. I told them that I was afraid that I could not do so because it appeared to me to be designed to make life easier for polluters and I was on the other side of the fence. Even as modified, the proposal will seriously weaken the ability of the NRA to prosecute serious polluters. In many cases, it will make it impossible for the authority to produce sufficient evidence to overcome the due diligence defence and to show also that the defendant caused or knowingly permitted the pollution. The NRA's current powers have helped towards halving the number of serious pollution incidents in controlled

9 Mar 1995 : Column 511

waters. That is most important and it ought to continue while the NRA exists and in the new agency, and it should not be weakened on any account.


Next Section Back to Table of Contents Lords Hansard Home Page