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Select Committee on Finance and General Affairs debate -
Thursday, 12 Oct 1995

SECTION 10.

Amendments Nos. 35 and 36 form a composite proposal and amendment No. 37 is related. It is proposed to take amendments Nos. 35, 36 and 37 together. Is that agreed? Agreed.

I move amendment No. 35:

In page 17, subsection (2), lines 12 to 14, to delete", 32 (6) (where the offence consists of a contravention of regulations under subsection (4) of that section), 33 (8), 38 (6) or 40 (13)" and substitute "or 33 (8)".

Everybody is familiar with penalties in legislation which are almost laughable largely because they have been enacted so long ago and inflation has moved on. We are faced with fines that do not reflect the severity of the crimes. A recent example was the badger baiting case. Some of the operators responsible for pollution in the past are people of considerable means and it is no great problem for them to withstand the risk of penalties provided for in legislation at present. They are absolutely no deterrent. The possibility of shame being brought about by a court case does not seem to matter too much to some people.

The Minister should allow the judiciary an effective ceiling for the more serious offences rather than pitch it so low as to have minimal effect, catch the small offenders and allow the larger offenders to withstand the risk of prosecution.

I support Deputy Sargent's propositions. I tabled amendment No. 37 because a fine of up to £200 for a continuing offence is not sufficient, particularly in the case of larger firms. It is a problem that in some cases the Judiciary can be way behind public opinion — in some cases it is a way ahead of it. Giving it the discretion to fine people up to £200 for a continuing offence is not nearly enough and does not send out a strong enough signal.

It is almost a reversal of the "polluter pays" principle. In certain cases — those involving larger firms, for example — it gives the signal that pollution can pay, and continuing pollution can pay more handsomely. If this section is left as is it will be used by fly-by-night operators to pollute for as long as they can and then move out as quickly as they can.

In defence of local authorities I would say that there is somewhat of a bias on the part of the Judiciary against local authorities bringing cases against individuals. I do not know why this is but, from contacts I have had with local authorities all over the country, I have been told it is most difficult for them to get a conviction against a private individual, whether related to environmental or planning legislation. It is most difficult to get the Judiciary to come down heavily on the individual when the local authority is taking the case. The Judiciary seems to take the attitude that the local authority is a big body trying to nail an individual. For that reason, and the others I outlined, I would be very reluctant to leave the penalty at a fine not exceeding £200 a day. That is not adequate as people will receive minimal fines and it will not be a deterrent.

I want to have a hierarchy of offences in this Bill. I do not understand the thrust of Deputy Dempsey's argument because if a major company is causing pollution in default of this legislation, there is no reason it cannot be taken to the higher courts or fined £100,000 a day. No matter how large a corporation is, £100,000 a day for a continuing offence is a fairly hefty fine and I cannot imagine anybody regarding it as trivial.

I want to have some offences prosecutable at District Court level for which the level of fines is already set. More serious offences will go to the higher courts and be prosecuted by the DPP and result in the extremely strong penalties laid out in this Bill. A person guilty of such an offence will be liable "on conviction or indictment, to a fine not exceeding £10,000,000 or to imprisonment for a term not exceeding 10 years, or to both such fine and such imprisonment". If the offence continues the person will be liable to a fine of up to £100,000 a day.

Is the Minister speaking only to Deputy Dempsey? I tried in my two amendments to achieve what the Minister was talking about, which was a hierarchy of offences. Can I take it that he sees that as a good thing and that this is a way of doing it? We are not talking about recurring offences or daily charges but summary convictions.

I do not have the power to change the fines imposed by the District Court to the level proposed by the Deputy.

It is a constitutional question.

Has the Minister reached the ceiling allowed to him?

That clarifies the matter.

Is the Minister talking about the District Court in all cases?

Summary convictions are dealt with by the District Court and the ceilings are set. My advice from the Attorney General is that the current maximum fine which can be imposed by a District Court is £1,500. Therefore, that and the £200 a day are the maximum fines which are permissible for summary conviction. In order to impose higher fines, it has to go to the higher courts.

That is the indictment.

Amendment, by leave, withdrawn.
Amendments Nos. 36 and 37 not moved.
Section 10 agreed to.
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