Local Government (Water Pollution) (Amendment) Bill, 1989:[ Seanad ]:Committee Stage.

Section 1 agreed to.
NEW SECTION.

I move amendment No. 1:

In page 3, before section 2, to insert the following new section:

2. —Section 1 (1) of the Principal Act is hereby amended by the deletion of the definitions of ‘aquifer' and ‘sewer' and the insertion of the following definitions before the definition of ‘board of conservators';

"‘aquifer" means any stratum or combination of strata that stores or transmits groundwater;

"combined drain" means a drainage pipe, or a system of such pipes, that is not vested in or controlled by a sanitary authority and is used to convey trade effluent or other matter (other than storm water) from two or more premises to any waters or to a sewer;

"fisheries region" has the meaning assigned to it by the Fisheries Act, 1980, and includes the Foyle Area, within the meaning of the Foyle Fisheries Act, 1952;

"regional board" has the meaning assigned to it by the Fisheries Act, 1980, and includes the Foyle Fisheries Commission;

"sewer" means a sewer within the meaning of the Local Government (Sanitary Services) Acts, 1878 to 1964, that is vested in or controlled by a sanitary authority and includes a sewage treatment works, and a sewage disposal works, that is vested in or controlled by a sanitary authority;'.".

This amendment is concerned with the definition of various terms and, if adopted, would have the effect of replacing section 2 of the Bill and require a consequential change in section 22. The present section 2 defines two terms, "fisheries region" and "regional board" so as to take account of the transfer of fisheries functions, including those relating to water pollution, from the former boards of conservators to regional fisheries boards and to make express provision for the inclusion of the Foyle Fisheries Commission. These definitions are, in essence, being aligned with more recent fisheries legislation which is the responsibility of the Department of the Marine.

The definitions of "fisheries region" and "regional board" are being repeated in this amendment, which now includes the additional terms "aquifer", "combined drain" and "sewer". From a drafting point of view it is preferable to replace the section in full rather than attempt to cater for these terms through a series of piecemeal additions.

"Aquifer", which is already in section 1 of the 1977 Water Pollution Act, is being redefined so as to cater more fully for the requirements of an EC Directive on the protection of groundwater against pollution.

"Combined drain" and "sewer" are being redefined following a detailed review of the legislation on sewers and drains. The new definitions are intended to ensure the effective operation of the provisions of section 22 of the Bill. That section will allow a sanitary authority to declare a combined drain to be a sewer for the purposes of the 1977 Act and the Bill where they consider it desirable for the purposes of improving the level of control on trade effluent discharges. An order under section 22 would have the effect of requiring individual licences for each trade discharge to the drain, subject to appropriate conditions in each case. The present situation in relation to discharges to drains is, as I am sure Deputies are aware, that the combined effluent from a number of industries may only be licensed in respect of the point at which it discharges to waters or to a sanitary authority's sewer. In these circumstances it can be extremely difficult to identify the particular industry responsible should pollution occur. Section 22 and the new definitions of "combined drain" and "sewer" are intended to ensure that effluent discharges to drains are amenable to greater control, stricter monitoring and enforcement, just as would apply were the discharges in question to go to a sewer which is the responsibility of a sanitary authority.

I move amendment No. 1 to amendment No. 1:

After the definition of "sewer" to insert the following definition:

"‘waters' includes—

(a) any (or any part of any) river, stream, lake, canal, reservoir, aquifer, pond, watercourse, or other inland waters, whether natural or artificial,

(b) any tidal waters, and

(c) where the context permits any beach, riverbank and salt marsh and the channel or bed of anything mentioned in paragraph (a) which is for the time being dry,

but does not include a sewer.".

This amendment does not indicate any disagreement with the amendment the Minister has proposed. It relates to the definition of "waters" as contained originally in the Local Government (Water Pollution) Act, 1977. Concern was expressed at the time of the publication of the Bill that there was a possibility that prosecutions could be brought under the Bill against persons who were not responsible for causing pollution but on whose lands waters came and when the source of the pollution originated in lands other than theirs. It is proposed to amend the definition of "waters" as contained in section 2 of the 1977 Act and replace it with the definition proposed which is:

"‘waters' includes—

(a) any (or any part of any) river, stream, lake, canal, reservoir, aquifer, pond, watercourse, or other inland waters, whether natural or artificial,

(b) any tidal waters, and

(c) where the context permits any beach, riverbank and salt marsh and the channel or bed of anything mentioned in paragraph (a) which is for the time being dry,

but does not include a sewer.".

Some of the later amendments to the Bill may resolve the problems I am concerned with. I am anxious to ensure that under the Bill there will be full powers to properly prosecute any person who is the cause of the pollution. Every Member wants to ensure that the pollutor is prosecuted but that the person innocent of any wrongdoing does not find himself the subject matter of court proceedings. There is a variety of amendments, including ministerial amendments, tabled to later sections of the Bill. If ministerial amendments, or those tabled by this side of the House by Fine Gael, are accepted many of the worries we have may be resolved. Nevertheless, I am anxious to hear the Minister's response to my amendment.

I cannot accept Deputy Shatter's amendment. If adopted, the amendment would change the definition of "waters" in the 1977 Water Pollution Act by deleting the reference and, I quote, "or other area which is contiguous to anything mentioned in paragraph (a) or (b)" from paragraph (c) of his proposed amendment. In all other respects the definition would remain the same.

I am aware that there was some controversy about the definition of "waters" when the Bill was published, and going through the other House, with claims by certain members of the farming community that the changes being made would make it impossible for farmers to carry on their normal practices. These claims also made an issue over the likelihood of farmers being prosecuted because some slurry entered dry drains during normal land spreading, even though there was no prospect of waters or fish life being adversely affected. I am aware that the IFA sought changes to this effect in the Bill. It is clear from what Deputy Shatter has said in relation to his amendment that he has been influenced by such claims.

These claims are all the more difficult to understand when it is realised that the Bill does not contain any provision which seeks to change the definition of "waters" which has applied since the 1977 Act came into effect. Agriculture has not been brought to a standstill in the intervening years and I have no reason to believe that this will happen in the future either.

The reference to "contiguous areas" is necessary to afford some element of protection to waters. If polluting matter is placed so close to a river bank that it will inevitably gain entry to the river the practice is clearly unacceptable. There is no evidence of local authorities availing of the present definition of "waters" to act in an unreasonable manner. In the event that they did so act I have no doubt that the courts would ensure the proper application of the law and the non-conviction of the alleged polluter.

It is worth nothing that the definition of "waters" does not include any reference to "drain". The offence in the 1977 Water Pollution Act and the definition of what constitutes "polluting matter" clearly imply that fish or spawning grounds must in fact be placed at risk or that other legitimate uses of waters for domestic, industrial, commercial, agricultural or recreational purposes are jeopardised as a result of the entry of polluting matter to waters.

It is extremely difficult to envisage any court convicting a farmer of a water pollution offence where slurry entered a field drain in a situation in which no risk was involved to fish life or where disruption of other uses did not arise. I believe that the proposed amendment would represent a weakening of the legislation to protect waters and accordingly I am not prepared to accept it.

The other point raised by Deputy Shatter is covered in amendment No. 28 which will be moved later and which talks about only being able to prosecute where the pollution offence originated in a particular farm rather than elsewhere. That covers one of the points made by Deputy Shatter. In these circumstances I cannot accept the amendment which would substantially weaken the Bill and the 1977 Act. The purpose of this legislation is to strengthen the law in relation to water pollution.

On this issue I support what the Minister said. The purpose of the Bill is to strengthen the 1977 Act which, I think it is fair to say, was found to be less than adequate to deal with the problems of water pollution. It would be going in the opposite direction if we were to agree to Deputy Shatter's amendment which seeks to restrict the definition of waters. Even since the enactment of the 1977 Act there has been a greater awareness of what constitutes water, a greater awareness of the many ways in which waters can become polluted not just through surface water but through ground water. Deputy Shatter's amendment seeks to restrict the definition of waters.

The exclusion of other areas which is contiguous to anything mentioned in paragraphs (a) or (b) would, as I understand it, remove areas which are in the vicinity of a river. Suppose a river burst its banks and there was the kind of flooding that is now so prevalent as a result of storms, etc., the potential for polluting matter being brought into waterways would be considerable. Deputy Shatter's amendment would have the effect of restricting that.

As the Minister said what is behind Deputy Shatter's amendment is the representations made by the IFA following the publication of this Bill and what, in turn, is behind that is an attempt to avoid a situation where the Bill could be used to control either agricultural activity or other forms of activity in areas contiguous to waters. It would be a retrograde step if Deputy Shatter's amendment was accepted. I am somewhat surprised that he is proposing it and certainly I am opposed to it.

I am somewhat amazed at the Minister's sanctimonious response about my being influenced by the IFA and by Deputy Gilmore's response. From this side of the House we have made it clear for some considerable time that we want updated and more effective water pollution legislation on the Statute Book. This particular Bill was published in January 1989 and we are only now taking Committee Stage because there were serious defects in it. I presume the Minister will acknowledge, as we go through the Bill, that a substantial number of amendments the Minister is tabling, which will improve the Bill and make it workable, derive from amendments published by the Fine Gael Party last spring and also derived from detailed discussions which the Minister for the Environment had with the IFA and the ICMSA.

So far as the Fine Gael Party are concerned, we must have proper legislation on the Statute Book to tackle water pollution. We are not interested in prosecutions being brought against innocent people. The people we must get at are the polluters, the people who behave irresponsibly. A very real concern was expressed that ordinary farming practices which did not give rise to any real risks of pollution could result in wrongful prosecutions being brought. In acknowledgement of that there are a number of amendments tabled by the Minister which presumably will be taken on board as we go through Committee Stage.

I particularly made the point that in the light of the amendments now being tabled I felt my amendment to this section was not necessarily relevant at this stage, but I was anxious to get the Minister's response to it to ensure that the problem that existed when the Bill was originally published was being resolved. The Minister gave her answer and referred to a later amendment which she has tabled.

The Minister might be a little more respectful of the representations received from a variety of groups who, as I understand it, are as committed to ending problems of water pollution as we are in this House. They are also anxious to ensure that we have proper legislation on the Statute Book. The Minister might be more circumspect in her less than complimentary inclinations towards the IFA and the ICMSA who went to a lot of trouble to highlight problems with the legislation in various areas and without whose work the Minister would not be putting forward a number of her amendments.

Deputy Gilmore need not express any worries about the commitment of the Fine Gael Party to dealing with this particular problem. It was because of our concern about this area and the failure not just of agriculture or industry but of local authorities to tackle the problems of water pollution that we brought before this House the Environment Protection Agency Bill which the Minister opposite opposed.

I would be a little circumspect in expressing any criticism of the proposal; It is not a proposal I am pushing. I wanted the Minister's response to it. She confirmed that the concerns we have about this definition as it would interact with later sections will be resolved as we go through the Bill. I am happy to accept the various amendments the Minister is making to the definitions section.

I want to make it clear that we are not seeking in any way to weaken the legislation in terms of the definition of "waters". That is the reason we are opposed to this amendment. It is not the intention of this legislation, nor I am sure would it be the intention of any Deputy, to seek to prosecute anybody innocent or to seek to bring proceedings against anybody who is not responsible for a pollution offence. That is why in a later section I will be proposing an amendment to ensure that it is only where the pollution originates in a particular area that proceedings can be taken. That is different to seeking to limit the definition of "waters" to such an extent that if polluting matter is placed on the brink of waters or, as Deputy Gilmore rightly said, in circumstances where a river can overflow and the matter can be taken into the waters very easily, it can cause an incident of pollution. Besides the river overflowing, through seepage, and so on, polluting matter can very easily get into water courses. For that reason areas that are contiguous to waterways have to be included in the definition. I am opposing this amendment but if the Deputy is not pressing it we should leave it at that.

There is one brief matter I would like the Minister to clarify. In the definition of "combined drain" there is a reference to drainage pipes which are not vested in or controlled by a sanitary authority. I would like the Minister to clarify if in the 1977 Act or some other Act or in the Bill before us the drains which are controlled by sanitary authorities are included or excluded? I do not understand the reason the definition of "combined drain" excludes those which are controlled by a sanitary authority.

This is a difficult area. The position is that if it is controlled by a local sanitary authority it is actually called a "sewer" but if not, it is called a "combined drain".

Amendment No. 1 to amendment No. 1, by leave, withdrawn.
Amendment No. 1 agreed to.
Section 2 agreed to.
SECTION 3.
Amendment No. 2 not moved.

We now come to amendment No. 3 in the name of the Minister. Amendments Nos. 4 and 5 are alternatives and amendment No. 51 is consequential. I am suggesting therefore——

I seek clarification from you, a Cheann Comhairle, on one matter. I am not sure whether it has arisen out of a misunderstanding but section 2 of the Local Government (Water Pollution) Act, 1977, provides for the establishment of a Water Pollution Advisory Council. That Act is still in force as we are only debating this matter today. Such a council did exist up until the end of December 1986. No new appointees were appointed to that council following the 1987 general election. In amendment No. 2 I sought to slightly amend the manner in which the Water Pollution Advisory Council would work and proposed a less lengthy name for it, the Water Pollution Council. However, a Cheann Comhairle, you ruled that amendment out of order. As the Water Pollution Advisory Council is an existing body under the Act I cannot understand the reason for this. I was not trying to create a new body but simply to give the existing council a more modern name and to slightly change the method of appointment. In the circumstances I cannot understand why amendment No. 2 has been ruled out of order. I ask for an explanation. I could understand it if no such body was in existence as I know I could not provide for one. I fully appreciate that.

I have conveyed my decision to the Deputy. His amendment, amendment No. 2, clearly involves a potential charge on the Revenue. Section 30 of the Bill proposes to abolish the advisory council, to which he referred, provided for in section 2 of the Principal Act. Amendment No. 2 seeks to establish a somewhat similar body, the expenses of which must be paid for from the Exchequer. It therefore imposes a potential charge on the Exchequer.

Amendment No. 52 appears to be consequential on amendment No. 2 but even if it is intended as an alternative it has the effect of continuing in operation a body where the term of office of its members expired in 1986 and whose expenses were met from the Exchequer. Consequently, it is out of order as amendments must be considered in the manner they affect the Bill before us and not in the manner they affect existing law. This is a slight elaboration. My ruling has been carefully considered and is not open to discussion or challenge now, as the Deputy appreciates. I elaborate so that it will be clear to the Deputy and the House that it involves a potential charge on the Revenue.

On a point of order, are you saying, Sir, leaving aside amendment No. 2, that it is not open to an Opposition party in the context of amendment No. 52 to formally propose the deletion of a provision from a section of the Bill currently before the House which proposes to abolish a body provided for by statute? The Government have failed to comply with the statute and appoint members to the council. Surely this cannot inhibit the correctness of amendment No. 52 in trying to oppose the Government who intend abolishing an independent body established to deal with the problems associated with water pollution.

I have outlined my reasons. The Deputy may elaborate further when we come to section 30.

I do not understand why the amendment to section 30 has been ruled out of order. If that is the case we will never be in a position to deal with any legislation brought before this House by a Government who are intent on abolishing an independent body established by statute.

I have nothing to add to the reasons I have given to the House. It is quite clear to me and my office why the amendment is out of order. I call on the Minister to move amendment No. 3. Amendments Nos. 4 and 5 are alternatives and amendment No. 51 is consequential. I am suggesting therefore that we discuss amendments Nos. 3, 4, 5 and 51 together by agreement. Is that agreed?

I move amendment No. 3:

In page 3, subsection (1) (a), to delete lines 32 to 36 and substitute the following:

"‘(3) It shall be a defence to a charge of committing an offence under this section for the accused to prove that he took all reasonable care to prevent the entry of waters to which the charge relates by providing, maintaining, using, operating and supervising facilities, or by employing practices or methods of operation, that, having regard to all the circumstances, were suitable for the purpose of such prevention.', and".

I do not know whether you wish to move them all and to discuss them together——

We will discuss them together but only one amendment can be before the House.

Deputy Gilmore and Deputy Shatter's amendments relate to a prosecution of a water pollution offence under section 3 of the 1977 Act, while my related amendment, amendment No. 51, deals with the same issue in relation to offences under section 171 of the Fisheries (Consolidation) Act, 1959. The approaches adopted by Deputy Gilmore and Deputy Shatter have certain merits which we will probably discuss later and represent an improvement on the good defence contained in the 1977 Act. I believe however that the Bill can be improved further in this regard. I am, accordingly, proposing amendment No. 3 which will provide for a good defence in line with similar provisions contained in the more modern Air Pollution Act. This will entail the application of the best practicable means concept so as to prevent water pollution. There is a clear responsibility on everyone to take steps to prevent water pollution from their activities. I believe that not only is it necessary to require the installation of appropriate facilities to do this but also to impose an obligation to use and maintain these facilities so that pollution does not occur. In some situations taking appropriate measures may entail providing and using facilities, such as sufficiently large and well constructed effluent or slurry storage tanks. In others it may involve complying with the norms of good agricultural practice in relation to quantities and timing of slurry spreading on land.

My proposed good defence requires the defendant to prove to the court that the defence provision is applicable in the particular circumstances pertaining to his case. The amendment strikes the right balance and I am confident that the courts will apply this provision in a manner that only the most genuine cases will avoid conviction. In the circumstances I cannot accept the amendments proposed by either Deputy Shatter or Deputy Gilmore.

When this legislation was published considerable concern was expressed about the original provision contained in it which sought to displace a provision in section 3 of the Principal Act which states:

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 is proposed to replace this with the following:

It shall be a defence to a charge of committing an offence under this section for the accused to prove to the satisfaction of the court that either——

(i) he could not have reasonably foreseen that the act or alleged omission concerned might cause or permit polluting matter to enter waters.

Concern was expressed that the proposed amendment to the 1977 Act would remove what has become known as the good defence provision which the Minister has referred to, with the result that persons could be wrongly convicted of causing water pollution in circumstances in which they foresaw the possibility of pollution occurring and took all reasonable care to prevent such pollution. My amendment would ensure that where a person has acted responsibly and taken reasonable care to prevent pollution and pollution occurs without their being at fault they would have a good defence. My amendment reads:

It shall be a defence to a charge of committing an offence under this section of the accused to prove to the satisfaction of the court that either—

(i) he could not have reasonably foreseen that the act or alleged omission concerned might cause or permit polluting matter to enter waters, or

(ii) he did foresee the possibility of polluting matter entering waters and that he took all reasonable precautions to prevent such entry.

Last spring Fine Gael published the amendment I am now referring to to try to ensure that we would properly tackle the problem. The Minister's amendment is a very substantial change from that contained in the original Bill. It is worth making the point that the original concerns were expressed specifically by the IFA and the ICMSA who at all times told me they were anxious to ensure that those who were polluting were properly brought before the courts, but where an incident occurred that could not possibly be foreseen in circumstances where a person had taken all reasonable precautions, it simply was not correct that he should be open to prosecution.

Although the semantics are different, it seems that there is no substantial difference between what the Minister is proposing and what we are proposing. It seems to come back to one thing — the Minister could have been gracious enough to acknowledge that the amendment we published last spring might be of assistance to the Department in looking at the position in this area. I want to emphasise that what this party want to ensure is that people responsible for pollution are prosecuted and that those prosecutions are successful. What we want to ensure, in industry or agriculture, is that where there is a risk of pollution the industry, the agricultural concern or the individual farmer involved takes all reasonable precautions to prevent pollution. That involves looking at the type of business, what risks it creates for the environment and ensuring that necessary action is taken in the context of the type of facilities provided and the type of practices applied to ensure that what one is doing does not create pollution.

What we do not want to happen is that the person who takes all reasonable precautions but is, for example, suddenly confronted with the extraordinary weather conditions we have had in recent months, and finds that a river two miles away overflows and creates massive flooding which results in pollution occurring in circumstances which nobody could either have envisaged or protected against, would find himself prosecuted.

I do not see a very substantial difference in practical terms between what the Minister is now proposing and what we are proposing but I want on the record of this House confirmation from the Minister that a person who did foresee the possibility of polluting matters entering waters and who took all reasonable and proper precautions against such a happening but who finds, due to extraordinary circumstances that pollution takes place, will not find himself at risk of prosecution under the Minister's amendment. I think I am right in saying that.

Lest Deputy Gilmore or anyone else suggest it, it is not a question of watering down the Water Pollution Act but of ensuring that people who have taken all proper precautions, who want to ensure pollution does not take place, do not find themselves wrongly before the courts. In the context of tackling pollution, we are not legislating to get a variety of convictions against innocent people. We want to get the people who are guilty of bad practices, the people who have not taken reasonable care, the people who have not spent moneys to prevent polluting matter entering water courses, the pharmaceutical, chemcial or industrial plant that is being careless in its operations, and ensure that they are properly prosecuted. We do not want to see people who have done everything possible to anticipate a pollution incident, the subject of prosecution.

Subject to what the Minister has to say, we will not be pressing our amendment because I think it is fair to say that the Government have responded to the concerns we expressed nine months ago about this provision. I do not mind a different form of wording so long as our concerns are dealt with. I am anxious to ensure — and I want reassurance from the Minister on this — that her particular wording will not water down the Bill either. I want to make sure that her wording will ensure that the polluter can still be properly prosecuted and that the technicality of the wording used will not result in people who are guilty getting off.

I can certainly give that assurance to Deputy Shatter. At the end of the day it comes down to the court's interpreting this legislation and the amendment we are suggesting would put an onus on the courts to ensure when considering prosecution proceedings, that the person against whom the offence is alleged has provided, maintained, used, operated and supervised appropriate facilities. I do not think there is much between the original amending Bill as passed by the Seanad and which has been reiterated by Deputy Shatter, the position of Deputy Gilmore and my own position. Our amendment, however, puts an onus on persons to provide facilities, to maintain them, to use them, to supervise them and to operate them, and if somebody does that I do not believe it would be reasonable to prosecute or have them convicted of a pollution offence.

Since it is generally the view that local authorities do not prosecute enough rather than that they prosecute too much, I do not think we need worry that there will be any blatant misuse of the legislation. At the end of the day, it will be for the courts to decide and this amendment will give guidance to the courts as to what they are to look for in trying to decide if somebody made a reasonable effort.

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.

There is a number of things I must say in reply to Deputy Gilmore. First, I am not familiar with the letter he quoted on Second Stage. I have made inquiries from my officials and they are not familiar with this letter, either. In any event if the letter arose either before or during the last election campaign, it was during the régime of a different Government.

On the question of this amendment, I believe, and this is my advice, too, that this amendment substantially strengthens the 1977 legislation because it puts an onus on the person against whom a prosecution offence is alleged and on the court to make sure that the person in question had proper facilities in place, used the facilities and maintained, operated and supervised them. That is an extremely powerful position and much more powerful than the position under the 1977 Act where it could be argued, and was argued successfully in court, that a person took reasonable precautions, but they were never defined. It was never defined what reasonable precautions were and that they included having to put in facilities, maintain them, use them and so on. That is why I believe this strengthens the present position. I can assure Deputy Gilmore that I have spoken to people in the farming community who are not at all happy at the amendment being proposed by the Government and see it as a strengthening of the law and putting an onus on them to instal proper facilities, to maintain them and to use them. The assertions he makes in regard to the farming community may not be justified and if he makes inquiries he may discover what I have discovered.

It is fair to table this amendment, for this reason. A pollution incident can occur even though somebody has taken all reasonable care, has installed facilities and used them and so on. A pollution incident can occur through an act of God, for example, using the example of earthquakes in the Irish context may be unfair but the Deputy referred to flooding and matters of that kind. It would be unfair in those circumstances for somebody to be convicted. Where a pollution incident occurs as a result of something outside the control of a farmer or an industrialist or whoever and where they have taken all reasonable care and have installed facilities, used them, supervised them and so on, it would be unreasonable and wrong to prosecute and that is why the amendment is being moved.

People inquired as to why we should have to put the onus on people to use the facilities and it was suggested that if somebody puts expensive facilities in place they are obviously going to use them, but I believe that is not the case. Very often expensive slurry tanks and so on can be put in place but can be used for other purposes. That is why it was felt necessary to put the onus on the person not just to instal the facilities but to make sure that they are in use and so on. In the circumstances I consider this to be a balanced and reasonable amendment. I disagree with Deputy Gilmore, I would not be here tonight if I felt it was a sham and that we were not dealing with the main problems of the 1977 Act. I believe we are and I have been advised both independently and by my officials that that is the case. It is because that is the case I am quite confident to push this amendment. If in time it is shown it is not working, I will have no hesitation in tabling another amendment. Indeed on Report Stage I might have a look again at the wording "having regard to all the circumstances". If that is going to cause problems I am quite open to looking at it. The intention is to strengthen the law to make sure that those who commit pollution offences are prosecuted but equally to ensure that innocent parties are not so convicted and cannot be so convicted. That is reasonable, it is balanced and it is what we all want to achieve. To argue about the words here and there would be unfair in the circumstances.

I am loath to get involved in an argument between Deputy Gilmore and the Minister, Deputy Harney. I am inclined to leave them at it. I think I made the point that what Deputy Gilmore wants is what lawyers describe as a strict liability offence, that is an offence created no matter what steps someone has taken to ensure that pollution will not occur. In the event of an act of God, such as the appalling flooding we have had in the past few days and which the Government do not seem to think is having any detrimental effect on the country — if they do not want to visit the constituencies where it is having an impact all the need to do is watch television at night — you cannot prosecute somebody who has done everything reasonably possible if a pollution incident occurs.

What Deputy Gilmore is suggesting is that no matter what precautions somebody takes, he should be prosecuted. I support Deputy Gilmore on the point that local authorities have not been prosecuting when they should have been. That has nothing to do with the defence provision. Many of the local authorities lack the resources to prosecute and in the past they have not always been encouraged to prosecute. On occasion there can be a confusion of responsibility between the local authorities and the fisheries boards, each watching the other to see who should bring the prosecution. One of the reasons we wanted the environment protection agency put in place was to ensure there would be a body to take an overview of what the local authorities were doing and to make sure that prosecutions would take place where justified. The Minister tells us of her commitment to the workability of this legislation. We are all committed to that, but there is a need for somebody to take an overview.

The Water Pollution Advisory Council existed until 1987, taking an overview, producing research reports, setting out what needed to be done, setting out where local authorities were not doing it and influencing the course of the development of new legislation. It is very odd that a Minister who is intent on reforming the law to ensure that the polluter pays and that our water pollution legislation works is abolishing the Water Pollution Advisory Council in the legislation dealing with water pollution. We are not allowed to debate the point until we reach section 30.

When this legislation is enacted and the new defence provision is put in place there is a specific need to ensure that the manner in which the legislation is operating is closely monitored. The Water Pollution Advisory Council were a body with unique expertise to carry out that monitoring. It is regrettable that they are being abolished. The Minister said to Deputy Gilmore that things happened pre-June in a different Government. It was a different Government who were abolishing the Water Pollution Advisory Council because Fianna Fáil in Government disliked every independent environmental agency that existed and sought to abolish them. This new Coalition, this temporary arrangement, are continuing to abolish the Water Pollution Advisory Council. They voted against the establishment of an environment protection agency which could have provided a monitoring arrangement. I know the Minister will tell me she intends to set up an environment protection agency but we will not see the Bill this month or next month.

The Deputy will be surprised.

The new defence provision is an improvement on the provision in the original Bill. Deputy Gilmore's amendment could create more problems than it would resolve in the long term. There is a need to have the Water Pollution Advisory Council operating at least until such time as the environment protection agency is established. I do not know what powers that agency will have.

I have reservations about what Deputy Gilmore is saying. I would hate it to be misinterpreted outside this House, either by the media or by anybody else. I do not want to see a headline tomorrow which states "Workers' Party more concerned about environment" or "Workers' Party more committed to tackling problems of water pollution than any other party". That is all nonsense.

The Deputy need not worry about headlines.

We are about ensuring that we have a proper modern piece of legislation to tackle the problem. We are not about trying to stick people in jail who are innocent of any wrong doing. Since we will not reach section 30 until much later in this debate, I would invite the Minister to reconsider the previous Government's policy regarding the abolition of the Water Pollution Advisory Council. I invite her to bring forward an amendment to retain that body under the 1977 Act.

Deputy Gilmore spoke about the lady being rushed to the maternity hospital and it not being a good defence under the Road Traffic Acts. Perhaps it should be. That is not beyond the control of the person driving the car.

What about the man rushing to the maternity hospital?

It is a defence under some legislation to be coming to or going from the Dáil and I have not heard of anyone looking for that to be changed. It might be no harm to have good defence clauses in some legislation.

The Water Pollution Advisory Council were abolished by a different Government. That is a fact. It is the case that if the environmental protection agency were not being established with an advisory council to advise on pollution generally and several other matters, it might be necessary to reconsider. It is better to streamline our legislation and the number of agencies, bodies and advisory councils. We tend to be very good at setting up bodies and committees but servicing and funding them becomes difficult. It is more appropriate to have one body attached to the environmental protection agency which will ensure that it is totally independent. I do not believe that was the case with the Water Pollution Advisory Council. I accept that they had people of the highest competence and expertise but unless they are given freedom to act very often they cannot produce what they might otherwise be able to produce. It was effectively a toothless body, although it did tremendous work.

It produced many excellent reports.

There were too many people on it — 36. It was cumbersome and I do not think it functioned effectively. The environmental protection agency will be in place by next summer and will have an environmental advisory council dealing with general environmental matters, including water pollution. That is the appropriate way to have independent advice of that kind made available to the Government and the public at large. For that reason I am quite happy to go along with this Bill.

Deputy Shatter's amendment cannot be moved because it involves expenditure. The Deputy gave no functions to his water pollution advisory council. If he decides to move this amendment at a later stage he might consider that point. I am not quite clear what exactly they would do that will not be done by the advisory council attached to the environmental protection agency. It is not correct for Deputy Shatter to say that the functions have changed substantially. That is not the case.

I have consulted widely with environmental organisations and interested parties around the country. I have in some cases changed my own view of how the agency should operate as a result of those consultations. That is a good thing. If more legislation was drafted on the basis of consultation with those who operate many of our laws in the area of the environment, we could incorporate many practical suggestions to make legislation more powerful and more efficient. Whatever functions were carried out by the former advisory council and any functions that Deputy Shatter might wish to give the water pollution advisory council can be catered for in the context of the Environmental Protection Agency Bill which will be before the House this session.

We have moved on to section 30 and we should stay on the section we are discussing.

I have a few things to say about the Water Pollution Advisory Council when we reach section 30.

Acting Chairman

That would be appropriate.

I will not test the generosity of the Chair by saying it now. In relation to the good defence provision, the Minister talked about what happened before the election and disclaimed any responsibility for it. I cannot blame her for that, although I suspect that were I to ask her opinion on this issue before the election it is probable that she would be more in agreement with the position I am expressing now than she is with the position she has to articulate in the House on this issue.

The Minister says the amendment strengthens the provisions in the 1977 Act and that she has met some farmers who believe that that is the case. The IFA say that it does not strengthen the Act, that it improves the Act the way they want it improved. I have enormous admiration for the way the IFA successfully lobby Governments. If they did not see that a provision in the Bill as it was originally presented was going to tighten the law, they would not have made such an issue about it. This was one of the big issues raised by the IFA because they saw the Bill as originally presented as tightening up the defence provision leading to more prosecutions. They sought this amendment. The amendment the Minister has before us is precisely the amendment they agreed with the Government. It is stretching credibility to believe that skilled IFA negotiators would have gone to Government seeking a weakening of the Bill as presented and would have come out as the Minister claims with it strengthened in the way she has strengthened it.

The Minister says the Bill is strengthened. How can it be strengthened if it retains the same concept and phraseology of the 1977 Act which has proved to be unworkable — the concept of having taken reasonable care? The Minister may argue that it is strengthened because it goes on to talk about "providing, maintaining, using, operating and supervising facilities", and so on having regard to all the circumstances. I welcome the fact that on Report Stage the Minister is prepared to consider the term "having regard to all the circumstances", but she is greatly exaggerating the effect of the terms in which it is expressed here.

We must look at this in context. It is unfortunate that we are, if anything, dwelling overlong on the agricultural area because this Bill applies not only to agriculture but to other forms of economic activity as well. The public purse, particularly the European purse, is spending large sums of money for pollution control measures on farms. Are we to have a situation where it may be argued that someone could not have maintained, used, operated and supervised facilities because one had not yet got the grant to introduce the methods which would have controlled pollution? Will we get arguments that facilities could not be used because a person had run into hard times and could not apply them?

The problem with this kind of amendment — and experience is there to prove it — is that it is wide open to very loose interpretation. Deputy Shatter says that the reason there have not been prosecutions taken by the local authority is that they do not have the resources to do so. I would be one of the first to agree that the local authorities should have more resources to deal with this area, but I must confess that it is not the area in which local authorities are most strapped for resources. The Minister when introducing the Bill told us that local authorities have 62 engineers, 70 technicians and 15 chemists employed primarily on water pollution. It is not exactly an area devoid of resources in the local authority, although I accept that a lot more could be done in that area. Those professional staff who have been trying to operate the 1977 Act will agree that it could not be worked, that they could not get prosecutions, that that clause was the principal reason they could not get prosecutions, and now the same concept has been reintroduced.

The 1977 Act says that a person shall not cause or permit any polluting matter to enter waters. If somebody causes polluting matter to enter waters they should not have the protection of a good defence clause in the legislation. I would like the Minister to justify that. We are talking now about people who caused the pollution.

"Permit" is different, if one cannot stop it.

Yes, and my amendment deals with people who cannot prevent the pollution. I accept that there are some circumstances, for instance an act of God, where circumstances get out of control. In those circumstances it is all right to have a good defence provision built into the legislation to protect people. My amendment would retain that protection for the people who could not prevent pollution occurring. My amendment would retain the amendment in the original Bill and passed by the Seanad but it would completely exclude the defence cover for those who had caused the pollution.

I would like that point to be addressed by the Minister. Can the Minister justify covering those who would cause water pollution by a good defence clause? I concede that a person permitting pollution matter to enter the water might in some circumstances need a good defence clause, although my preferred situation would be that that provision would be deleted altogether, but where somebody causes pollution there is no justification for retaining the good defence clause which is now proposed by the Minister's amendment before us.

Deputy Gilmore is very persuasive and I admire him for that but he should not suggest that this is coming before us because the IFA drafted it. This is precisely the same terminology which is contained in the Air Pollution Act. Is he suggesting that they drafted that too? Deputy Gilmore asked if I thought that somebody who causes pollution should get away with it. If somebody deliberately causes pollution, of course they should not get away with it. However, if there is an accident — let us forget about the farmers for a moment and get away from the paranoia about them — involving a vandal who breaks into a factory and releases a stopcock which causes a major pollution incident, does that mean that the industry in question, which had taken all the precautions and had appropriate measures in place, should be convicted of a pollution offence? I do not think anyone could suggest that they should.

We are seeking to ensure that if somebody has taken all practical steps by putting in place appropriate facilities on a farm, industry or whatever and uses, maintains, supervises and operates them and if a pollution accident or incident occurs because of an act of God or something outside the control of the individual, it would not be right or fair to prosecute that person. I want to reiterate what I said because Deputy Gilmore misrepresented it. I have spoken to senior members of the farming organisations and they have told me they are not happy with this amendment because it puts an onus on their members to install expensive facilities and to maintain them.

I do not consider for one moment that the organisation which think it is a good amendment were fooled or that they were foolish or naive. I am certainly saying that, as a result of this amendment, an onus will be put on many members of the farming community, whether they know it or not, to put in place proper facilities and to maintain and use them. If they do not and if they come before the courts charged with pollution, there will be no defence in those circumstances.

I do not agree with Deputy Gilmore that it is not a strengthening of the 1977 Act; of course it is. All that the 1977 Act says is "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 is possible at present for a farmer or an industrialist against whom a pollution offence is alleged to go to court and plead that they took all reasonable care. At the moment it is not open to a court to interpret what "reasonable care" is. If this amendment is accepted, the court will have to be sure that the person in question had appropriate facilities, used the facilities, maintained the facilities and operated the facilities and so on, that they did not just put in a slurry tank and store pig feed in it. They must have used it for the appropriate purpose. They will have to prove that and if they cannot do so to the satisfaction of the court, they will be prosecuted on a pollution offence. That is substantially different from the provision in the 1977 Act, I have no doubt about that.

Many of the people who could not operate the Act because of the restrictions at the moment believe it will substantially improve the situation. They believe that the general body of farmers, industrialists and others against whom pollution offences could be alleged will now be forced, as a result of this amendment, to put in place appropriate facilities if they are in danger or at risk of causing pollution offences.

The proposed amendment is balanced, fair and reasonable. It is proposed so that we can get at those who cause pollution but it will not affect those who, through no fault of theirs but as a result of an accident, cause pollution. That is fair and reasonable in the circumstances and I do not think anybody could argue against it. It seems extraordinary that Deputy Gilmore would take such a narrow view of what we are proposing.

With respect, I suggest he is unfair in saying that it is no different from the 1977 Act. He must know that by putting an onus on persons to put in place facilities and so on and to use them substantially strengthens the legislation. Without it, the legislation would be ineffective and toothless. Many of the defects of the 1977 Act, in particular the good defence one, would continue. For that reason and in those circumstances I ask the House to accept the proposed amendment subject to the proviso that I will again take advice in relation to the phrase which initially caused Deputy Gilmore concern.

However, when I showed that I was open to considering it or looking at it to see if it would lead to the difficulties he mentioned, he seemed to say that we should not get it out of proportion because it was not significant. He cannot have it both ways. I do not know what the Deputy is trying to do, I suspect he is being a little mischievous and imputing motives which are not there. I invite him to show me the letter privately to which he referred. After Second Stage I made inquiries but they were in vain. Perhaps he will bring whatever correspondence he has to my attention.

I support Deputy Gilmore's amendment which basically brings the Bill back to where it was before the vested interests, the farming lobby and industry, got hold of the Minister. It is the old story: whoever pays the piper calls the tune. The Minister said that the wording was the same as that in the Air Pollution Act. We all know the close relationship between the Fianna Fáil Party and Coal Distributors. This is another example of it.

On a point of order, I am not a member of the Fianna Fáil Party and I am not here to defend any party. However, in these circumstances, it is traditional and appropriate not to impute motives to parties or individuals which the Deputy cannot substantiate. He is being unfair.

May I continue?

Acting Chairman

Please confine the debate to section 3 and the amendment.

The Minister said it would be very hard luck on a factory if someone broke in at night and opened a stopcock. That indicates the Minister's shallow thinking. If a factory has deleterious and highly dangerous materials this is the very thing against which they should be on their guard. They need adequate security to ensure that people do not break into the factory and release stopcocks so that deleterious material is not released into rivers. The Bill is meant to provide for these very things. Deputy Gilmore's amendment is an excellent one and I support it.

We have almost exhausted everything that can be said about this. I will supply the Minister with a copy of the letter from the IFA to their members. I will also supply the Minister with a copy of the document to which I referred which was circulated by the Minister for the Environment. The Minister was incorrect when she stated that I laid heavy emphasis on the phrase, "having regard to all the circumstances" and then did not lay emphasis on it when she showed a willingness to reconsider the phrase. In fact, I welcomed her willingness to reconsider the phrase but that was not my only comment about the section. My principal comment about the section was that it retained the concept that a person took all reasonable care which is precisely the same concept that is in the 1977 Act and which was found to be unworkable.

I am proposing that we should retain the same terminology used in the Bill originally circulated by the Government with one exception, that the defence provision would not apply to those who cause pollution. The position I have adopted on this is very reasonable. In the course of the debate it has not been shown to me how one can justify covering uniquely in the Bill those who cause pollution. I have said all I wish to say about the circumstances where things get out of control and a person is prosecuted for an offence not of his or her making. That point is conceded in my amendment. I did not invent the fact that the amendment was agreed following negotiations with a strong interest group. That is a historical fact. The amendment significantly weakness the Bill and, if anything, will leave it worse than the position in the 1977 Act.

When we are talking about the use of facilities and so on one of the problems we must face, to forget about agriculture for the moment, is that very often on the industrial scene the facilities being used by factories and so on are not appropriate. Presumably, factory owners could argue under this provision that even though they were using the facilities available to them they could not prevent the pollution occurring. It is unfortunate that the Minister raised the case of a factory being vandalised and the intruder releasing a substance which would get into water courses. I would expect that any industrialist would ensure that if he or she has substances on the premises which are likely to cause pollution the necessary measures to have security on their premises to prevent such pollution would be taken. After all, we are talking about matter which caused enormous damage to waters, to fish life and so on. There is a fundamental difference between the position adopted by the Minister and my position. It is my intention to press my amendment.

I do not think there is a fundamental difference between us but Deputy Gilmore wishes to create the impression that such a difference exists. I do not understand the Deputy's logic. He has said that the good defence provision should not apply to a person who causes pollution but should apply to the person who permits pollution to occur. I am not able to distinguish the difference. The Deputy was unfair when he referred to industry and so on. He is aware that this does not apply to industry. They are covered under the licensing provisions. When they are breached they can be convicted of causing pollution. If they meet the terms of the licence that is a different matter and the good defence provision does not apply.

That is not true to say, as Deputy Garland seemed to think, that pollution can only be caused by dangerous, toxic or chemical matter. Milk, for example, is 400 times more potent a pollutant than the same quantity of raw sewage. If a housewife pours enough milk down her sink and it gets into a water course it will cause pollution. If a person in a farmyard releases enough milk into a river he will pollute that river to such an extent that it will damage fish stock. I agree that if dangerous substances are in place there should be security involved but it is important to realise that it is not just in relation to them that we have to be concerned. Some of the products we consider natural and use in our everyday life, if misused or released into water courses, can cause pollution. It is to deal with those matters that we are amending the Bill.

It will not be enough for a person to argue that they took reasonable care. They will have to prove that by showing that they installed proper facilities and used them. This is an extremely powerful weapon in the hands of local authorities, the fisheries boards and the courts. The provision is not the same as that contained in the 1977 Act and it could not be said to be the same by any stretch of the imagination. Under that Act a person can argue that he or she took reasonable care although they may not have installed proper facilities. People have argued that case very successfully. We want those who cause pollution, who do not take reasonable care, who do not instal proper facilities or use them, to be charged before the courts. Equally, we want to ensure that if by accident or an Act of God — that is possible if we are to judge by recent storms and floods — pollution occurs, the person involved will not be convicted for such an offence. It is not the intention of the Bill to convict such a person and I do not think it would be Deputy Gilmore's intention either.

The Minister said she was prepared to give some consideration to the phrase "having regard to all the circumstances". Is it the Minister's intention to withdraw her amendment and table it on Report Stage? If the Minister is withdrawing the amendment with a view to re-introducing it on Report Stage we will all agree to leave the issue for debate then.

No, I am not prepared to withdraw my amendment. The Deputy is being unreasonable. I told him that in view of what he said I will take advice on the phrase and, if necessary, come back with an amendment on Report Stage. I am giving the Deputy that guarantee but I am pressing my amendment because I consider it necessary. It improves the Bill and deals with some of the difficulties that could have arisen under the original Bill.

Amendment put.
The Committee divided: Tá, 62; Níl, 18.

  • Ahern, Bertie.
  • Ahern, Michael.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Mattie.
  • Briscoe, Ben.
  • Browne, John (Wexford).
  • Burke, Raphael P.
  • Callely, Ivor.
  • Connolly, Ger.
  • Coughlan, Mary Theresa.
  • Cullimore, Séamus.
  • Daly, Brendan.
  • Davern, Noel.
  • Dempsey, Noel.
  • de Valera, Síle.
  • Ellis, John.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Fitzgerald, Liam Joseph.
  • Fitzpatrick, Dermot.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • Harney, Mary.
  • Hillery, Brian.
  • Kelly, Laurence.
  • Kenneally, Brendan.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Lyons, Denis.
  • Martin, Micheál.
  • McCreevy, Charlie.
  • McDaid, Jim.
  • McEllistrim, Tom.
  • Molloy, Robert.
  • Morley, P.J.
  • Nolan, M.J.
  • Noonan, Michael J. (Limerick West).
  • O'Connell, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Jim.
  • O'Leary, John.
  • O'Malley, Desmond J.
  • O'Rourke, Mary.
  • O'Toole, Martin Joe.
  • Power, Seán.
  • Quill, Máirín.
  • Reynolds, Albert.
  • Smith, Michael.
  • Treacy, Noel.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilson, John P.
  • Woods, Michael.
  • Wyse, Pearse.

Níl

  • Byrne, Eric.
  • De Rossa, Proinsias.
  • Ferris, Michael.
  • Garland, Roger.
  • Gilmore, Eamon.
  • Howlin, Brendan.
  • Kemmy, Jim.
  • McCartan, Pat.
  • Moynihan, Michael.
  • O'Shea, Brian.
  • O'Sullivan, Gerry.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Rabbitte, Pat.
  • Ryan, Seán.
  • Sherlock, Joe.
  • Spring, Dick.
  • Taylor, Mervyn.
Tellers: Tá, Deputies V. Brady and Quill; Níl, Deputies McCartan and Byrne.
Amendment declared carried.
Amendments Nos. 4 and 5 not moved.

Amendment No. 51 was consequential on the amendment I moved earlier. May I ask if that amendment is agreed to?

That can be decided upon when we reach amendment No. 51. We now come to amendment No. 6 in the name of Deputy Gilmore.

I move amendment No. 6:

In page 3, to delete lines 37 and 38 and in page 4, lines 1 to 25 and substitute the following:

"(b) the deletion of subsections (5) and (6), and the substitution of the following:

‘(5) The Minister may, after consultation with any other Minister who, having regard to his functions, he considers ought to be consulted, by regulations make exemptions from subsection (1), and attach conditions to and restrict such exemptions.

(6) Where it is proposed to make regulations under subsection (5), a draft of each such regulation shall be laid before each House of the Oireachtas, and the regulations shall not be made until a motion approving of the draft has been passed by each such House.'.".

This is an amendment to the end of page 3 and the first half of page 4 of the Bill which amends the 1977 Act. One of the subsections being amended is the one which deals with exclusions concerning those who may not cause or permit any polluting matter to enter waters. As mentioned earlier, subsection (1) makes provision for the general prohibition on the entry of polluting matter into waters. Subsection (5) lists the exemptions and includes a table listing the sections of legislation under which apparently someone would be allowed to permit polluting matter to enter waters. First, there is a general principle involved here. We are either going to prevent polluting matter entering into waters under this legislation or we are not. It would be bad if we were to allow the making of a series of exemptions.

We need to look at the legislation which makes provision for exemptions. For example, any deposit authorised under section 3 or section 13 of the Foreshore Act, 1933 is exempt. We are talking here about the issue of a foreshore licence to enable the infilling of certain areas to take place. Under that section literally anything can be the subject of an exemption. There is nothing in the Foreshore Act, 1933 which prohibits a licensee from using polluting matter as infill material on foot of a foreshore licence. It is open to him to do so under that legislation. As I understand it, a foreshore licence has a life of 99 years.

Section 48 of the Harbours Act, 1936 makes provision for the depositing of dredged material from the sea. However, this is exempt under the 1977 Local Government (Water Pollution) Act. In other words it is permissible to allow material of that kind to enter waters and it is not covered by the Water Pollution Act.

Section 88 of the Harbours Act of 1946 which is exempted would allow for ashes.

Progress reported: Committee to sit again.