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The Earl of Dundonald: My Lords, I thank my noble friend for his reply. I am sure that the noble Lord, Lord Carmichael, will welcome another example of a more listening Government.

On Question, amendment agreed to.

Clause 35 [Incidental general functions]:

Lord Coleraine moved Amendment No. 12:


Page 29, line 41, after ("criminal") insert ("and civil").

The noble Lord said: My Lords, this amendment returns to concerns that were demonstrated by an amendment in the names of my noble friends Lord Crickhowell and Lord Mills and moved by my noble friend Lord Mills in Committee. I see that my noble friends are not in their seats today.

I spoke to an amendment at Report which reflected the concern of the Law Society also that the drafting of Clause 35 should make it clear that the right of the agencies in paragraph (a) of Clause 35(1) to do anything which they consider to be,


extended to the bringing of civil proceedings as well as to the bringing of criminal proceedings.

My noble friend Lord Ullswater told my noble friend Lord Mills in Committee that these words are wide enough to enable the agencies to bring civil proceedings and that therefore no reference to civil proceedings was needed in paragraph (b) to match the specific reference to criminal proceedings. I tabled this amendment today to give my noble friend the opportunity to explain the drafting of this clause in a little more detail and why in effect civil proceedings are, but apparently criminal proceedings are not, to be understood to facilitate the carrying out by the agencies of their functions—for that is what his reply to my amendment at Report implies. I wrote to my noble friend after Report stage and I received a helpful letter from him today.

The reference to the power of the English agency to institute criminal proceedings in England and Wales was, in an amendment moved by my noble friend on Report,

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removed from paragraph (b) and added at the end of subsection (1). The reference to criminal proceedings now stands very boldly at the end of the subsection. The objections to the drafting that were expressed apply as strongly to the phrase in its present position, for it is a normal rule of construction that, where you have an instance of concepts such as "criminal proceedings" and "civil proceedings", if you take specific steps to refer to one, as is done in this case, the effect is to exclude the other. I know that this is not the intention of the Government, nor would it be the wish of the Law Society that civil proceedings should be excluded. It is very important that it should be quite clear on the face of the Bill that civil proceedings are included for the reason that I just mentioned. I beg to move.

Viscount Ullswater: My Lords, Amendment No. 12, introduced by my noble friend Lord Coleraine, purports to give the agency power to institute civil proceedings in England and Wales. He indicated that I suggested that this amendment is, however, unnecessary. Whereas it is necessary to give the agency express power to take criminal proceedings since it is to be a prosecuting authority under the legislation in respect of which it has functions, so far as civil proceedings are concerned the agency will be able to take any civil proceedings which in its opinion are calculated to facilitate or are conducive or incidental to the carrying out of its functions by virtue of Clause 35(1) (a), as mentioned by my noble friend.

A good example of why the specific reference to criminal proceedings is needed are the agency's functions under the Sludge (Use in Agriculture) Regulations 1989, transferred to the agency by Clause 2(2) (c) of the Bill. The agency's functions under these regulations are limited, for example, to inspecting the sludge producer's register and being provided with information, but it is wished that the agency be the prosecuting authority for any breach in the regulations. It could not be said in this case that prosecuting would facilitate or be conducive or incidental to the specific functions given to the agency by the regulations and thus fall within Clause 35(1) (a); therefore an express provision is required on the face of the Bill.

With that explanation, I hope that my noble friend will feel able to withdraw his amendment.

Lord Coleraine: My Lords, the drafting of this clause needs further thought. I know that those who advise me will read what my noble friend said. I hope that, if they are satisfied with what was said, it will leave the Bill in such a state that those who visit it in later years will understand why there is a reference to "criminal" but not to "civil" proceedings. In my opinion, this is not necessarily the end of the matter. There should be some other way of dealing with this. But my noble friend's remarks will need to be carefully considered. I beg leave now to withdraw my amendment.

Amendment, by leave, withdrawn.

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Clause 54 [Contaminated land]:

The Earl of Kintore moved Amendment No. 13:


Page 45, leave out lines 35 to 38 and insert:
("( ) "Contaminated land" is any land or interest in land, whether comprising of the surface or of any substratum, mine, mineral or underground space, which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in or on that interest in land, that—").

The noble Earl said: My Lords, in moving this amendment I should like to speak also to consequential Amendments Nos. 14 and 19. Amendment No. 13 would alter the definition of contaminated land and, with consequential Amendments Nos. 14 and 19 to the definition of "owner", would ensure that where contamination is in an underground mineral seam or mine which does not belong to the surface owner, the surface owner or occupier will not be held liable. If owners and occupiers are to be responsible for what they own and occupy, the use of the word "under" is unnecessary. Ownership has no vertical limits unless there are exceptions specified in the titles or by legislation. Coal, oil and gas, for example, are statutory exceptions belonging to the state and are under the land. The Bill could make surface owners and occupiers liable for cleaning up contamination in the underground seams if they become polluted because they are under the land. Most obviously, the definition in the Bill makes a surface owner liable for polluted water in abandoned coal-mines which were formerly worked by the National Coal Board and which belong to the Coal Authority.

The purpose of Clauses 55 and 57 of the Bill is to introduce responsibility for the discharge of polluted water from mines that are closed from the beginning of the next century. But the definition of "contaminated land" in Clause 54 will result in land, including the surface, where there is already contaminated water in old mine shafts underneath being classed as contaminated land and for an immediate responsibility to be placed on owners and occupiers.

There is therefore an inconsistency between Clauses 55 and 57 and the definition in Clause 54. The Minister stated that it was the Government's intention that the owner of the mineral or mine should generally be the person responsible for it. He referred to the Interpretation Act 1978 for the description of land. It may be that the owner of the mineral or mine could be responsible. However, the legal advice that I have received is that in the case of a disused mine there is considerable doubt whether the mine owner would be responsible: what he owns is an underground space rather than soil or rock, and an underground space may not be land. To a lawyer, the obvious interpretation is that unless the Bill is amended the surface owner would be held responsible.

The purpose of consequential Amendment No. 14 is to alter the definition of "owner" for the purpose of Scots law, to make clear that where underground strata are in different ownership from the surface and there is contamination in any of the strata, whether the surface or any underground mine or mineral seam, the person on whom the legal responsibility will be placed will be the owner or occupier of the appropriate stratum or layer of ground.

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Amendment No. 19 seeks to achieve the same purpose in English law. It would be wholly inequitable to make an owner or occupier liable for property which he does not own, does not occupy, has not polluted and from which he can receive no benefit. I hope that the Minister will state that he accepts the principle and that the Bill will be amended, either in the terms of my amendment or otherwise, to make it clear that such a possibility could not occur. I beg to move.

Lord Pearson of Rannoch: My Lords, I rise to support very briefly the noble Earl's amendment. I look forward to my noble friend's reply. I should have thought that, if my noble friend did not accept the spirit of the amendment, he would be going against the recent judgment in the Cambridge Water case. I am sure that that is something which the Government would not want to do.

The Earl of Harrowby: My Lords, at Report stage, five noble Lords from all sides of the House grumbled at the lack of guidelines. Therefore, I gather that the guidelines are not unimportant.

I am not a politician. However, I have some experience of boardrooms, as an executive and non-executive, in the chair and out of it, in big companies and small and at home and abroad. If I, as a non-executive, had told my chairman that I proposed to take to the board a proposition such as this one—the whole of Clause 54—which is so incomplete, ill thought out, prone to hostile reception and without any vestige of advance consultation, I would have expected him to say, "Take it away and don't bring it back until you've done your homework or you will come to grief." I am sorry to have to say that to my noble friend the Minister, who is one of the nicest of men. I am well aware too of the pressures on ministerial life. My remarks are aimed rather at the habits and the generality of government business.

In my brief time as a Member of your Lordships' House, I have seen such inefficiency exemplified on a number of occasions. There was, for instance, the Criminal Justice and Public Order Bill. Surely a quiet dinner party given by the Home Secretary to one of the many occupants of this House who have held that post before him would have been of considerable advantage and saved a great deal of time. Another instance that comes to mind was the Coal Bill, where five (or perhaps four) organisations made representations. Time with them would have saved a great deal of trouble. Instead, there was the humiliation which results when a number of amendments are forced on the Government. Parliamentary time would have been saved. We are told that it is always very short. Consultation with your Lordships at Committee stage, Report stage and Third Reading would have made it much more focused.

To be succinct and relevant, I feel that the presentation of half-baked clauses—as this one is—deserves a protest. I leave it to your Lordships to agree

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with me, if they feel so inclined, that the lack of guidelines in this instance should not have been forced upon us.


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