Amendment No. 1 in the name of Deputy Gilmore. I note that amendments Nos. 2 and 3 are alternatives and amendment No. 41 is related. I suggest that we discuss together amendments Nos. 1, 2, 3 and 41, by agreement. Agreed.
Local Government (Water Pollution) (Amendment) Bill, 1989: Report Stage.
I move amendment No. 1:
In page 4, to delete lines 7 to 16 and substitute the following:
"(a) the repeal of subsection (3), and".
We had a lengthy debate on this issue during two days of the Committee Stage. On the last occasion the Opposition made the case that the regional fisheries boards were unhappy about the extension of the defence clause to the 1959 Act, which hitherto did not have such a clause. Since the 1959 Act is the legislation used most by the fisheries boards in pursuing prosecutions against water polluters, they felt it would greatly hinder their effectiveness if the defence clause were extended to the 1959 Act. The Minister responded positively to our request, that she should not pursue her own amendment on that occasion but should consult with the regional fisheries boards. I am pleased that she has tabled an amendment today to delete the section which would have extended the defence clause to the 1959 Act. I refer to amendment No. 41, which is very welcome.
The issue which arises in relation to amendment No. 1 is whether a defence clause should be included in either the 1977 Act or the new Bill. On Committee Stage the Minister made the point that she was anxious that the 1977 Act, this legislation and the 1959 Act should be harmonised as regards the defence provision.Our main unhappiness on that occasion was the direction in which the Minister was going in harmonising it. It seemed she was making the 1959 Act less effective than it had been. There is a case for harmonising the three pieces of legislation to the extent of not including what is known as the "good defence" clause. That would not mean that a polluter who was prosecuted and taken to court would not be in a position to enter a defence.
I am sure the regional fisheries boards will have explained to the Minister that in the normal course of pursuing a prosecution under the 1959 Act people who are accused of polluting enter defences which are very often accepted by the courts. The absence of a defence clause does not deny the right of the accused to enter a defence. The difficulty in the 1977 Act and in this Bill is that the defence clause which was put into the 1977 Act, in my opinion and in the opinion of those in local authorities who have had the responsibility of enforcing the Act, has rendered that Act ineffective. A polluter can go into court and rely on section 3 of the 1977 Act in order to avoid presecution.There is a very strong case for deleting the "good defence" clause from the 1977 Act.