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Lord Crickhowell: I am glad that the noble Earl referred to the question of self-monitoring. I believe increasingly in the years ahead both industry and the agency will want to depend upon a considerable degree of self-monitoring, checked by adequate audit procedures. We are moving into a different world. Indeed, we are certainly in a different world compared to the time, to which the noble Earl referred, when the legislation was introduced in its present form. We are seeing the advances in sampling methods. We are seeing new technologies developed, especially analytic techniques and laboratory accreditation procedures. And we have seen the introduction of automatic and remote monitoring equipment. I believe that the latter create a new situation where the relevance of the tripartite arrangements are not as strong as they perhaps were in the past. Indeed, it is now held in the courts that a sample taken by an automatic machine sitting in the river is not taking a sample at all in that sense and is not affected by the particular requirement, although it can be produced in evidence.
The noble Earl referred to some of the difficulties inherent in the present arrangements. Perhaps I may spell out the kind of difficulties with tripartite sampling that confront an environment agency. The definition of "samples" has been held to include not just effluent samples but also samples of river water. Tripartite sampling of river water is neither practical nor in line with the aims of an agency. I believe that it can be argued that a "person"I use the word, so to speak, in quotesmust take a sample in order to apply the tripartite requirements. Therefore, we are not in a position to take admissible samples by automatic machines, although we now have such machines which do the job rather well. So there is a problem in that respect.
The meaning of the term "analysis of samples" might be held to imply that, for example, biological samples need to be divided into three. In many cases, that is simply not a practical requirement. Similarly, the tripartite requirement is very difficult to apply to samples which are not fully homogeneous. One could go on.
I shall not delay the Committee for too long, but I must explain the considerable practical difficulties inherent in the present arrangements. For example, the legislation requires the service of a portion of the sample not on the defendant but on the occupier who may not be the same person. A contractor might be the defendant and not the occupier. Moreover, how does one identify the occupier in many cases where a pollution incident has occurred? Is he an employee of a farm manager? Further, in the case of a company, does the NRA have to contact the secretary who may, perhaps, be in the Cayman Islands? As I said, there are considerable, practical difficulties in the whole arrangement.
Surely the agency should be given the flexibility to create a best practice policy. It may still take tripartite samples in some cases. Indeed, it may be very sensible for it to do so. But why should the agency have a tougher requirement in that respect than HMIP which is not required to take such samples? That also applies to the waste regulation authorities and private environmental organisations which can take a prosecution case without a tripartite sample. We have the rather bizarre situation whereby Friends of the Earth, or an organisation of that kind, can take a case to court and not produce the kind of evidence which is called for from the agency.
The NRA currently monitors and takes samples from about 4,000-plus sewage treatment plants. The process takes place between 12 to 48 times a year according to the volume and seriousness of the effluent discharge. All those samples need to be tripartite in case there is a breach of consent conditions and non-compliance has to be demonstrated over a period of time of up to one year. Surely that is an over-bureaucratic and unnecessary procedure.
If we are to have arrangements that work in practice and take advantage of the developments of modern technology, I believe that we should change the arrangements if they make such things impractical. It is very much in the interests of the industry for it to be able to play its part by self-monitoring and to be dependent more and more on low-cost, automatic monitoring systems. The onus will be on the agency to satisfy the courts that its evidence is reliable. That is the way to proceed.
I believe that the NRA's experience in recent years has shown increasingly that tripartite arrangements cause difficulties and unnecessary cost. Moreover, they add to bureaucracy and make it more difficult for us to have an effective environmental pollution policy. Indeed, they make it much more difficult to move to a sensible arrangement in which costs and monitoring equipment are shared for the interests of everyone. For all those reasons, I beg the noble Earl not to press his Motion.
Lord Stanley of Alderley: I am afraid that I am not in the least bit keen to move into the new world of my noble friend Lord Crickhowell. However, I am not in the least surprised by my noble friend's love of the NRA's methodology; indeed, it certainly took him quite some time to explain it. That surely must show a guilty conscience.
Viscount Ullswater: Clause 93 is concerned with the admissibility in evidence of information obtained from samples. It deals in particular with the two aspects of this issue: tripartite sampling and the admissibility in legal proceedings of information provided or obtained under certain pollution control licences or consent, as indicated by the noble Earl, Lord Lytton.
To deal first with tripartite sampling. Clause 93 repeals the requirement for tripartite sampling in legislation applying to England, Wales and to Scotland. The repeals will apply both to samples taken by the agencies in respect of effluent discharged into controlled waters and to samples taken by sewerage undertakers of trade effluent discharged into sewerage systems.
We have proposed the removal of tripartite sampling for a number of reasons. First, there have been genuine and unforeseen practical problems which have arisen under the present system, as my noble friend Lord Crickhowell indicated. The existing requirement applies in legal proceedings in respect of effluent, and the legislation refers to any sample. The courts have held that the tripartite procedure must be applied to all samples not just those of effluent. While samples of effluent may readily be divided into three, there can be difficulties with other substances due to their chemical or physical nature which could prevent the agencies from taking action against polluters. My noble friend Lord Crickhowell told us of some of the difficulties experienced with some samples.
The NRA has told us that it decided not to bring a prosecution in one case because the evidence would have rested only on samples of sediment and fish tissue which had been chemically analysed but not tripartite sampled. Secondly, these repeals are in keeping with the approach which we have adopted in setting up the agencies, of seeking to achieve a degree of consistencyor the balance that my noble friend Lord Stanley would want me to mentionin the measures which will be used to control different kinds of pollution, and removing some existing anomalies. The tripartite procedure does not currently apply to enforcement action taken under IPC, as my noble friend has said, where monitoring data is provided by the process operator. That really is self-monitoring. This does not appear to have caused difficulties. Again, as my noble friend has said, nor is it a requirement for waste regulation authorities.
Thirdly, there is a more general argument that the requirements of tripartite process do not apply to samples taken by third parties such as environmental groups, as we have heard. Without these repeals, the agency for England and Wales as regulator might be unable to prosecute in some cases where an environmental group could. That seems to us to be completely undesirable.
I am aware that there are fields in which tripartite sampling is employed. Equally there are others where it is not. Our concern is for the control of the kinds of pollution for which the agencies will be responsible. As I have said, the removal of the requirement will bring the water regulatory bodies into line with the other existing regulators who will make up the agencies.
I know that this proposal has been opposed. Some have argued that it is inequitable as they suggest that a discharger would in future be unable to contest evidence used in legal proceedings. There is nothing in this proposal that would prevent a discharger contesting evidence. That evidence would, as in all legal proceedings, have to satisfy a court in order for a successful prosecution to be secured. Our proposal simply addresses the narrower point that the agencies should not be disadvantaged in exercising their enforcement powers in respect of discharges to water by a requirement which in some cases may be impractical to observe and which does not apply in respect of other work undertaken by the agencies. That does not in any way alter the responsibility of the agencies to provide evidence of the highest quality nor does it remove the right of defendants to question the evidence brought against them. The agencies will of course be free to use tripartite sampling if there are circumstances where they consider it to be appropriate.
Moving to the second issueadmissibility as evidenceClause 93 also provides necessary clarification of the types of information which may be used as evidence. It makes it clear that information provided or obtained under the conditions in certain pollution control licences shall be admissible as evidence whether against the person subject to the condition or any other person. This establishes that evidence cannot be ruled inadmissible by virtue of the general presumption against self-incrimination. It also makes clear that such information includes that obtained or recorded by means of a wide range of apparatus.
My noble friend Lord Crickhowell has drawn our attention to the improvements which have taken place in recent years in monitoring equipment and chemical analysis. In this light, Clause 93 creates a presumption that apparatus which provides information in connection with pollution control licences has registered or recorded accurately unless the contrary is shown or the licence provides otherwise. This is similar to a presumption which already exists for apparatus which provides information in connection with consents for the discharge of trade effluent into a sewer. Installations of automatic effluent and water sampling devicesa move towards self-monitoring by dischargersare trends which it is expected will continue under the agencies. They should reduce the costs of monitoring which are of course passed on to the dischargers.
Finally, where records are required to be kept as a condition of a licence, the fact that an entry has not been made will be admissible in proceedings. This is in keeping with an existing provision under IPC. I believe that Clause 93 as it stands should stand part of the Bill.
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