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Viscount Mills: My Lords, I had prepared a long speech in relation to this amendment because I believe that the issue is crucially important. However, it is clear that the House is not keen to have a long debate on the issue at this time of night. Therefore, I shall keep my speech extremely short and say merely that at the end of the day the function of the environment agency is to protect and enhance the environment. I believe that the addition of a due diligence defence would greatly reduce its ability to do so.

The Earl of Lytton: My Lords, I warmly support the amendment, despite what was said by the noble Earl, Lord Onslow, about no one speaking in its defence. I believe that the test in law should be culpable neglect and there is no substitute for that. I am sorry to disappoint noble Lords who believe that there should be strict liability in every case because I do not think that that is satisfactory. I support the amendment.

Viscount Ullswater: My Lords, we are all at one on the need to protect the environment from pollution. We all welcome the very considerable improvement in the quality of our inland waters that has been secured in recent years following the establishment of the National Rivers Authority and its use of powers available under the Water Act 1989 and the Water Resources Act 1991. There is no doubt that the NRA has done so to good effect. Our presumption is therefore that the same powers should be available to the agency unless there are very strong arguments to the contrary.

The protection of the environment requires strict and effective controls to be exercised. It is a very long-standing principle that those who perform potentially polluting activities must be obliged to meet the high standards that the public expect. The issue is one of public policy. Legislation and regulation must strike a balance between the powers that are necessary to protect the environment from pollution and reasonable safeguards for those undertaking potentially polluting activities.

The offences with which we are concerned are offences of pollution to water. Very often, once such offences have taken place it is too late to act before serious damage has been done to the environment, and that is one reason why both the courts and Parliament have been ready to see strict liability attach to such offences. Our legislation has therefore been drafted to place responsibility for pollution directly on the polluter. I should, however, make clear that offences under Section 85 are not absolute offences; rather they are ones of strict liability. The prosecution is required to demonstrate that the defendant caused or knowingly permitted polluting matter to enter the water.

It is important to stress that this is not some novel proposition thought up for this Bill or for the Water Resources Act 1991. Section 85 of the Water Resources Act 1991 is based on Section 107 of the Water Act 1989. That in turn reflects similar provisions in the

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Control of Pollution Act 1974 and the Rivers (Prevention of Pollution) Acts of 1961, 1951 and 1876. We would, however, also expect the regulators to adopt a sensible prosecution policy, bringing cases to court only where it is in the public interest to do so. A major element of policy is to try to prevent pollution incidents in the first place. But prosecution, and the threat of prosecution, remains an effective and necessary sanction.

In our judgment, the amendment would significantly increase the time and expense of prosecutions, with implications not only for the regulators—who would have to obtain all the necessary evidence—and for the courts. It would also mean that many prosecutions could not be brought or would fail with potentially severe consequences for the protection of the environment.

If our primary aim is to protect the environment, I fear that the availability of a defence of this kind would potentially hobble the ability of the agency to do so. The agency must be able to carry out its functions effectively. Polluters must be under no illusions that the agency, like the NRA, will, where it is appropriate to do so, bring cases to court. If the responsibility of dischargers and other potential polluters to prevent pollution incidents is diluted, and the risk of appearances in court reduced, it seems to me perfectly arguable that potential polluters would in fact not take all the steps that they might currently feel are necessary or prudent to prevent incidents occurring.

The practical effects of all of that should not be underestimated. They were spelled out in Committee by my noble friend Lord Crickhowell, reiterated this evening by my noble friend Lord Mills. I believe that we really should think long and hard before setting real obstacles in the way of practical enforcement of some of the most important provisions in our environmental law. I therefore hope that my noble friend will feel able to withdraw the amendment.

The Earl of Onslow: My Lords, I regret to say that that is one of the most depressing speeches I have heard from the Government Front Bench. To say that pollution control would be hobbled by being able to prove that you had taken every single measure needed to stop that pollution is living in cloud cuckoo land. Your Lordships will consider that the Health and Safety at Work etc. Act 1974 allows that defence if you are maiming or marring human beings. Therefore, it seems very odd that the defence is not allowed when maiming or marring fish.

Having said that, I am obviously going to get nowhere. If and when my noble friend is hauled up before the European Court of Human Rights, I shall have immense pleasure in jumping up and down, saying, "I told you so." Having said that, I have enormous pleasure in withdrawing the amendment.

Amendment, by leave, withdrawn.

Schedule 12 [Minor and consequential amendments relating to fisheries]:

Lord Moran moved Amendment No. 248A:


Page 168, line 24, at end insert:
(" . In section 14 of that Act there shall be added after the word "mill", so often as it appears, the words "or fish farm".").

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The noble Lord said: My Lords, I was to have moved this amendment in Committee; in my absence, it was kindly moved by the noble Viscount, Lord Mills. It deals with gratings on fish farms to protect wild salmonids. I have tabled the amendment again because I understand that the Government may have plans to meet the substance of the amendment. It would be helpful if they could tell the House what those plans are. I beg to move.

Viscount Mills: My Lords, as the noble Lord, Lord Moran, said, I moved the amendment on his behalf in Committee. Therefore, I strongly support it. I hope that my noble friend Lord Howe will give us some encouraging news with respect to the amendment.

Earl Howe: My Lords, I am grateful to the noble Lord, Lord Moran, for re-tabling the amendment, which would have the effect of requiring the water intakes and outfalls of fish farms to be fitted with gratings to prevent salmon and migratory trout from becoming trapped. Noble Lords may recall that, when the amendment was originally moved during Committee stage, I expressed some sympathy with its aims and agreed to consider it. Since then we have looked carefully at the implications of what the noble Lord, Lord Moran, proposed and have been discussing these with interested parties, with a view to the possibility of the Government tabling their own amendment. However, I am sorry to say that we are not yet in a position to do so, though I hope that it will be possible to bring forward an amendment in another place. Unfortunately, that is as far as I can go at present. But I hope, nevertheless, that I have said enough to enable the noble Lord to withdraw his amendment.

Lord Moran: My Lords, I am most grateful to the Minister and am encouraged by his response. When the amendment is introduced in another place, I hope that it will solve the problem. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 249 had been withdrawn from the Marshalled List.]

Baroness Hamwee moved Amendment No. 250:


After Clause 89, insert the following new clause:

("Environmental information

.—(1) Subject to the following provisions of this section, any person ("the information holder") who—
(a) carries out any process or activity in connection with which he holds or is required to hold an environmental licence; and
(b) has relevant environmental information,
shall make that information available to any person requesting it ("the applicant") as soon as possible and at the latest within 20 days from the date of the request.
(2) It shall be the duty of the information holder—
(a) to secure that the information requested may be inspected by the applicant free of charge at such time and place as may be reasonable, and to provide facilities for taking copies of such information so inspected on payment of reasonable charges; or

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(b) to provide copies of the information requested on payment of reasonable charges,
provided that this subsection shall not entitle any person to enter any premises owned or occupied by the information holder without his consent.
(3) The provisions of this section shall apply whether or not the information requested may be held by any other person whomsoever (including the Agency), whether or not the information holder may be required to furnish such information to any person under the terms of any environmental licence, and whether or not the applicant may be entitled or able to have that information made available to him by any other person.
(4) In subsection (1) above "relevant environmental information" means any information relating to—
(a) the release into any environmental medium of any substances from the process or activity in question; and
(b) the state of the environment in the vicinity of the premises from which the process or activity is carried on, including information on background levels of any substances (whether of a kind released therefrom or not).").

The noble Baroness said: My Lords, the above amendment has been grouped with Amendment No. 253. Both amendments deal with the question of environmental information. My starting point is an item in the preamble to the relevant European Community directive—Directive 90/313/EEC—which says that,


    "access to information on the environment held by public authorities will improve environmental protection".

I agree with that. My stance is that all information should be freely available unless there is a good reason for that not being the case.

Before I speak to the detail of the two amendments, I should like to thank the Minister for providing today the new Government publication Environment Facts—A Guide to Using Public Registers and Environmental Information. I welcome the collation, although I do not believe that it takes public rights further forward. However, it is certainly an important starting point to know what rights exist.

I was struck by two particular items when I looked briefly through the document earlier today. I refer to the numerous references to the ability to inspect things during normal office hours—that is, 9.30 a.m. to 4.30 p.m.—on Monday to Friday. I look forward to seeing the extension of those arrangements by public bodies which I hope may begin to meet the needs of members of the public who do not always find it convenient to take days off from work to go and inspect such documents. I also note that most of the charges are referred to as being "small". I believe that the impression is given that they are perhaps lower than may always be the case, as we discussed on a previous occasion.

I turn now to my two amendments. Amendment No. 250 seeks more fully to implement the EC directive than I believe is the case in the environment protection regulations which have been published by the Government. The directive and the regulations require that information should be supplied as soon as possible with a longstop date of two months. In practice, that deadline is often used and becomes the time that is allowed rather than the limit of the time available. A two-month or, indeed, a longer lapse can considerably affect the usefulness of information obtained. Therefore, part of the amendment seeks to ensure that information

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would be made available at the latest within 20 days from the date of the request; in other words, within a shorter time period.

Secondly, I turn to the matter of charges. Article 5 of the directive states that the charge may not exceed a reasonable cost; in other words, the reasonableness relates to the overall cost. In Regulation 34A this provision has been transposed and the provision refers to the costs reasonably attributable to the supply of information. I think that goes further than was intended by the directive. In other words, some leeway has been used. As we have already discussed, there is a trend for the level of charges which some organisations levy for the supply of information to go up. Clearly, the charges are important because high prices effectively mean that information is not accessible.

As regards those to whom the provisions should apply, there is currently no general direct access right to environmental information from the polluter. To take one example, residents of a housing estate near a waste incineration plant have no right to see information which the operator may have about emissions from the plant or indeed about the general state of the environment around the plant affecting the estate. The provision in this amendment is based on a recommendation from the Royal Commission on Environmental Pollution in its 17th report on the incineration of waste. That makes a recommendation very much along the lines picked up in this amendment.

As regards the appeals tribunal—the subject of Amendment No. 253—the directive states that it must be possible for someone applying for environmental information to appeal against a decision. That must be so in all common sense. Our information regulations of 1992 make no provision for an appeal. The White Paper on open government, Cmnd. 2290 of 1993, discusses a right of access to other information—health and safety information. It states:


    "For an access right to be meaningful, a member of the public must have a clear and effective means of challenging the refusal of an organisation to disclose information".

It raised the possibility—because of the similarities between the two matters—of one tribunal to deal both with health and safety and with environmental legislation. A body along the lines of an industrial tribunal is what is proposed in this amendment. I beg to move.

10.15 p.m.

Viscount Ullswater: My Lords, Amendment No. 250 would insert a new clause after Clause 89 placing a duty on any person holding an environmental licence to make available environmental information on request. I am afraid that this provision would place an unnecessary and unfair burden on the many private sector bodies holding such licences.

It would place an unnecessary burden on such bodies because information about the details of licences, consents and authorisations and monitoring data is already available on many statutory registers to which the public have a right of access. My department has this week published a booklet—the noble Baroness

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confirmed it by quoting from the document —giving details of the registers in England and Wales. Copies are being placed in the Library.

I suggest that the amendment is unfair. It would duplicate existing arrangements and would require many companies to set up special arrangements—a place where documents could be inspected and facilities for photocopying—for dealing with requests. These arrangements would be required despite the fact that much information is available from the regulatory authorities and will be available direct from the new agencies, either as keepers of registers or under the Environmental Information Regulations 1992 which implement in Great Britain Directive 90/313 on the freedom of access to information on the environment. There also appears to be no possibility for companies to protect commercially sensitive information. The public have a right to check facts for themselves. Equally, I believe companies need to protect commercially sensitive information.

Amendment No. 253 would insert a new clause after Clause 95 to provide a power by regulations to establish a tribunal to hear appeals from any person dissatisfied with the way his request for environmental information had been dealt with under the Environmental Information Regulations 1992. I fully agree with the wish of the noble Baroness to make sure that people have adequate rights of redress under the regulations. Indeed, that is specifically required of member states by the directive.

We have implemented that requirement in our regulations by including provision in Regulation 3(6) to the effect that failure of any body subject to the regulations to comply with the requirements of the regulations will be a breach of statutory duty owed to the person making the request. That is quite apart from the possibility of aggrieved persons applying for judicial review and any internal review procedures which bodies may have.

We do not, however, reject the idea of a tribunal broadly along the lines suggested by the amendment. In our July 1993 White Paper Open Government (Cm 2290) we said that there was a case for an independent tribunal to hear disputes not only under the proposed new access right to health and safety information but under the environmental information regulations as well.

Powers to create such a dual purpose tribunal would be included in legislation to create the health and safety access right, when parliamentary time is available. I appreciate that the purpose of the amendment is to create a short cut to introduce half the measure, but this is not an instance in which a bird in the hand is worth two in the bush. Setting up a new body and then doubling its functions after what might be a very short interval is not likely to be the most effective way of proceeding.

I hope that, with that reassurance, the noble Baroness will be able to withdraw her amendment.


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