I am surprised that both the Minister and Deputy Shatter concluded that there was not a lot between the three of us on this issue. There certainly is a very great deal between us. I would agree that we all want to stop water pollution and that we all want to see water polluters prosecuted but the only way we will stop water pollution and ensure that water polluters are prosecuted and that those prosecutions are effective, is not by speeches in the House but by what is actually in the legislation.
Why are we here at all? We are here because it has been found that the 1977 Act was not adequate to deal with the problem of water pollution. The present Bill was born out of the number of fish kills which occurred, particularly in 1987 when it became apparent that there was a necessity to improve the legislation which was weak. The area where the legislation was particularly weak was this section we are now addressing. Why was section 3 of the 1977 Act weak? It was weak because subsection (1), a superb subsection, says that a person shall not cause or permit any polluting matters to enter waters but subsection (3) states that it shall be a good defence to a prosecution under this section to prove to the satisfaction of the court that the person charged took all reasonable care to prevent the entry prohibited under subsection (1).
It was generally accepted that that subsection in the 1977 Act was one of the principal weaknesses in that Act and was the escape hatch through which polluters could avoid prosecution. That conclusion is not an invention of mine. That is quite clear in the explanatory memorandum which was circulated with the Bill when it was first published and which stated that the very first provision of the new Bill was an amendment of the good defence provision in section 3 (3) of the 1977 Act, to put a greater onus on the person charged to prove he could not reasonably have foreseen that his act or omission might cause pollution of the waters. The Government's position was that subsection 3 (3) of the 1977 Act was inadequate and the formula they put forward in the Bill as originally published was an effort to tighten that up.
The local authorities, who have had the responsibility of implementing the 1977 Act, have told the Department — the Minister will be aware of this — that they found that section 3 (3) of the 1977 Act was unworkable and was primarily responsible for their failure to effect prosecutions. The regional fishery boards would not use that subsection. That was one reason that they, when effecting a prosecution, relied on the 1959 Fisheries Act rather than the 1977 Water Pollution Act. They found this subsection was the hatch through which polluters could escape.
Before we get into the semantics of the various amendments it is worth reflecting on why we have a good defence provision at all in this legislation. It seems to be a somewhat unusual provision in legislation. For example, the Road Traffic Acts have nothing like this. If you are caught speeding you make your case to the judge and the judge will decide whether your defence is a good one, but nothing in the Road Traffic Acts provides that it shall be a good defence, for example, if you tell the judge you were in a hurry on your way to the maternity hospital. Ambulances and fire engines all have to comply with the provisions of the Road Traffic Acts, and the reason we do not get a glut of what Deputy Shatter describes as unreasonable prosecutions under the Road Traffic Acts is that the prosecuting authorities use a certain amount of common sense when applying them, as by and large do the Judiciary.
Why then is it necessary to have a good defence provision at all in the Water Pollution Bill? We are, after all, dealing with something that is quite serious. Section 3 (1) of the 1977 Act, which is what all this relates to, provides that a person shall not cause or permit any polluting matter to enter waters, and polluting matter is defined in quite a serious way. It "includes any poisonous or noxious matter, and any substance (including explosive, liquid or gas) the entry or discharge of which into any waters is liable to render those or any other waters poisonous or injurious to fish, spawning grounds or the food of any fish, or to injure fish in their value as human food, or to impair the usefulness of the bed and soil of any waters as spawning grounds or their capacity to produce the food of fish or to render such waters harmful or detrimental to public health or to domestic, commercial, industrial, agricultural or recreational uses". Therefore, polluting matter as defined in the 1977 Act is quite serious. We are not talking about any old thing that goes into water; we are talking about matter that is poisonous, noxious, damaging to public health, damaging to food — quite serious matter getting into water. Therefore, why should there be a provision in the Water Pollution Bill at all which provides that it is a good defence if somebody took all reasonable care to prevent it occurring?
The reason is very simple. It is one of those classic double standards one gets in legislation. On the one hand you are saying that here we have fine legislation, no water pollution, but here is the way out of it. I suppose it is a very Irish form of legislating. The phrase "took all reasonable care" was wide open, as it was proved, and could not be operated by the local authorities and by the fishery boards. There is a very strong argument for the deletion altogether of that subsection of the 1977 Act, and I gave serious consideration to tabling an amendment to its total deletion. However, having regard to the debate on Second Stage and to the sensitivities my comments on that Stage provoked, I felt that perhaps it was more prudent and there was a better possibility of getting a more moderated amendment through the House.
The Minister when initially tabling the Bill agreed that the provision in the 1977 Act should be tightened, that the phraseology "took all reasonable care" was wide open and something was needed to replace it. This was one of the areas seized on by the IFA in particular in their criticism of the Bill when it was published, presumably because they felt — in my opinion rightly — that the new Bill would increase the possibility of prosecutions and would increase the success rate of those prosecutions.
After the Bill had gone through the Seanad and the Minister had successfully fended off the criticisms of the original replacement of the subsection in the 1977 Act, the new "good defence", clause, we then had a general election. As very often happens in general elections, commitments were made. I would like to put on record a document which was circulated by the Minister before the general election mainly to farmers: General Information on Provision of the Local Government (Water Pollution) (Amendment) Bill, 1989, which says that the new good defence provision in the Bill is intended to put a greater onus on a defendant than the existing provision in the 1977 Act, to prove that he could not have reasonably foreseen that his act or omission might cause water pollution. It states that the Bill also provides that the good defence will be available in cases of prosecution under the Fisheries Acts. No such defence is available under the legislation at present. Some local authorities and other interests had sought the removal of the good defence provision based on the experience of attempting to enforce the Water Pollution Act. The fisheries boards also regard the present defence as unsatisfactory and instead have preferred to seek prosecutions under the Fisheries Act, 1959. The IFA regarded the modified defence provision as going too far and had suggested that the 1977 Act provision should be retained and possibly extended to include a requirement in relation to taking precautionary measures. It states that the Minister is agreeable to the retention of the 1977 Act provision expanded to include a requirement to provide and maintain reasonable facilities to prevent water pollution, and on Committee Stage an amendment to this effect will be put down for consideration by the Dáil.
There you have it, a general election, a commitment made after the Bill had gone through the Seanad that the Government would retain the same old good defence clause that in the 1977 Act was proved unworkable. Not only that, the Government agree that they will extend it, so that they will make it even more wide open for people to escape prosecution under it. The Minister has talked about it as being an improvement. In my opinion it worsens the provision in the 1977 Act which was already found to be unworkable. Not only does it retain precisely the same wording of "taking all reasonable care" as was the case in the 1977 Act, but it is further qualified by the phrase "having regard to all the circumstances, were suitable for the purpose of such prevention." As I am sure Deputy Shatter as a lawyer would be aware, as such clauses "having regard to all the circumstances" are the kind of clauses which are open to wide interpretation in the courts. Experience has shown that it is precisely those kinds of clauses which make it impossible for prosecutions to be effective under an Act such as this. In fact the situation is worsened. The 1959 Fisheries Act did not have this good defence clause and that was one of the reasons the fisheries boards used the 1959 Act but now the 1959 Act will have this good defence clause applied to it by this legislation.
The wording used in the Minister's amendment is precisely the same wording as was agreed with the IFA. I have no objection in principle to the IFA or any organisation coming in and making their case of a Minister — in fact I support it — and negotiating their position. That is in the nature of democracy. However, I do not think that should blind us to the fact that what is actually involved is a watering down of the Bill as presented originally. That is quite clear from the fact that the IFA in communication with their members represented it as such. They said they were in disagreement with the amendment to this provision — the good defence provision — that they had been successful in getting the term "could not have reasonably foreseen" changed to "took all reasonable care by providing, maintaining, and supervising facilities suitable having regard to all the circumstances for preventing pollution," precisely the wording of the amendment the Minister has presented to us. In other words, the amendment the Minister puts before us is the amendment which was agreed by the IFA who argued their case that the Bill as presented would tighten up the situation.
As I mentioned earlier, I had considered tabling an amendment for the deletion of section 3 (3) of the 1977 Act, but I felt that an amendment of that kind would not get the support of the House, having regard to the debate which took place on Second Stage. The case was made that a distinction should be drawn between persons who cause pollution and persons who permit pollution. The argument was made that if, for example, some polluting matter happened to be passing through a farm on its way to a watercourse, it would be unreasonable not to have some defence provision built into the Bill to protect somebody who might be prosecuted in that situation. That is a reasonable point and my own amendment would extend the original wording in the Bill as initiated to a situation where it would not apply to people who had caused pollution.
Finally, it is important to remember that this Bill applies not only to farmers but to all potential polluters of water, whether from agriculture, industry and indeed I hope, if other amendments are accepted, to local authorities as well. It is important that there is a clear determination by the Legislature to deal with water pollution and to deal effectively with those who transgress in that area. I think it would be quite wrong to have a provision retained in the Bill and, under the Minister's amendment, extended which would enable polluters to escape prosecution.