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Baroness Nicol: I am very grateful for the Minister's full reply. However, I may have misunderstood one point. In relation to licences of right, who can trigger a review other than the inspectors? Can anyone do so?

Viscount Ullswater: If I recall correctly what I said, anyone can trigger such a review.

Lord Beaumont of Whitley: I am grateful for the Minister's reply. If I understood him correctly, he gave an undertaking that the Government are interested in the first amendment and those which fall into the same category and will look at them again. That being so, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Clause 35 [Incidental general functions]:

Lord Carmichael of Kelvingrove moved Amendment No. 192:


Page 29, line 18, leave out ("functions") and insert ("purpose").

The noble Lord said: The purpose of the amendment is to flag the potentially wide-ranging powers of Clause 35. As the clause is currently drafted, many of the agency's functions have yet to be decided and so will be determined under ministerial guidance. Therefore, enabling the agency to do anything which is "conducive or incidental" to its functions is a very wide-ranging power. The amendment alters the emphasis away from the functions of the agency to the purpose of the agency, on the understanding that that purpose is integrated environmental protection management enhancement. We believe that that would be much better than referring solely to the functions, which have not yet been decided. I beg to move.

Viscount Mills: I should like to speak to Amendment No. 193 in my name and that of my noble friend Lord Crickhowell. My noble friend Lord Crickhowell apologises to the Committee for the fact that he is unable to be present today. It therefore falls to me to present this amendment and the other amendments in our names.

The purpose of Amendment No. 193 is to ensure that in all its main functions the agency would have a right to take civil action in the courts should that be necessary. The current situation is anomalous. The NRA has a common law right to take out an injunction to protect a public right but needs the consent of the Attorney-General. The waste regulation authorities are under no such constraints, while Her Majesty's Inspectorate of Pollution has specific powers to apply directly to the High Court in order to back up its enforcement powers.

By way of example I should like to refer to the Durham coalfield. When British Coal was closing the Durham coalfield, it proposed that it would switch off the pumps used to pump out minewater. There was no statutory restriction on that due to the defence of Section 89 of the Water Resources Act 1991. As a result the NRA considered instituting civil proceedings. However, given its existing powers, it was advised that it would need the Attorney-General's consent to do so. The delay in obtaining that consent would obviously have led to an increased risk of pollution occurring. Happily an understanding was reached between the NRA and British Coal which was not tested in the courts. It was a happy outcome; but that may not always be the case.

Similar issues have arisen with respect to local government. However, Section 222 of the Local Government Act 1972 expressly provides for local authorities to institute proceedings in their own name. They can now obtain injunctions without the consent of the Attorney-General. I ask the Minister carefully to consider the amendment which would harmonise not only the powers given to the different functions within

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the new agency but indeed the power between the different public bodies with a common responsibility to safeguard public rights and prevent public nuisance.

Viscount Ullswater: Clause 35(1) allows the agencies to do anything calculated to facilitate the carrying out of their functions. Amendment No. 192, moved by the noble Lord, Lord Carmichael, contains a drafting change substituting "purpose" for "functions". I imagine that the noble Lord's aim is to extend the power under Clause 35(1) but I fear that the effect would simply be to leave its scope uncertain.

The noble Lord indicated that he preferred the word "purpose". Clauses 1 and 20 define the purpose in relation to the discharge of each agency's functions. The agencies cannot do things for which they have neither powers nor duties. The agencies' functions are the totality of their powers and duties. The clause as drafted will therefore enable the agencies to do anything calculated to facilitate the carrying out of anything that they can properly do. It is difficult to see how it could be appropriate to go further.

Similarly, I do not believe that there is any need for Amendment No. 193, moved by my noble friend Lord Mills. Each new agency will be able to commence civil proceedings through its general powers in Clause 35(1) (a). An unfortunate side effect of the amendment, however, may be to give agency officials standing in proceedings on matters for which they would not have proper locus under normal court rules. I therefore hope that both noble Lords will see fit to withdraw the amendments.

Lord Peyton of Yeovil: Perhaps I may ask my noble friend for clarification. He stated that the amendment moved by my noble friend Lord Mills would give the agency the right to appear where that was not allowed for by court rules. If I have understood it correctly, that seems a strange argument. My noble friend who moved the amendment has a point. I hope that my noble friend on the Front Bench will look at the matter again.

Viscount Ullswater: Of course I undertake to look at the issue again. When I was briefed this morning, I questioned carefully the wording to which the noble Lord draws attention. I have been advised that the words,


    "and appear in any legal proceedings",

would give the agency officials standing in proceedings for which they would not have a proper locus under normal court rules.

I have also said that with regard to civil proceedings I believe that that power is now awarded to the agency.

Viscount Mills: Before my noble friend sits downs, perhaps I may say that I am grateful for those comments. I shall be grateful, too, if he will look again at the issue before Report stage.

Lord Carmichael of Kelvingrove: I am slightly disappointed. I had sought to explain that "functions" have not yet been fully decided. They have yet to be considered and expanded by the department. Therefore the functions could change a little. We are referring to the purpose of the agency.

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However, that is a matter to which we can return later. It is not simply a semantic point. It is an important matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.45 p.m.

[Amendment No. 193 not moved.]

[Amendment No. 194 had been withdrawn from the Marshalled List.]

Lord Lucas of Chilworth moved amendment No. 195:


Page 29, line 23, at end insert:
("(c) without prejudice to the generality of that power, may, for the purposes of, or in connection with, the carrying out of those functions, establish subsidiary companies.").

The noble Lord said: The amendment proposes that the agencies should have a specific power to set up subsidiary companies. I understand that there are similar provisions in the Local Government Act 1972 and the Local Government and Housing Act 1989, although those provisions are somewhat disputed. In this case the waste regulation authorities are the local authorities and presumably local authority powers would move to the new agency. Since the powers to which I have referred are imprecise, it seems necessary to clarify the position.

The Committee may recall that during Second Reading I discussed the great difficulty for the waste industry in meeting the obligations put upon it by the waste regulatory authorities: to provide moneys in whatever amounts to an escrow account at the beginning of and during a licensed period to ensure that at the time the site is closed there will be sufficient moneys to meet any obligation which may occur, at whatever cost and at whatever time. The timing may cover two or three generations and may be for remedial effect. The WRAs are currently asking for sums of the order of £4 million for an average site.

There are many sites across the land authorised and under licence. But it is proving nearly impossible to find a solution. It may be reasonable to say that so far it has been impossible to find either an insurance company or a bank which will underwrite those sums. It falls therefore on the companies to provide cash. One can easily see that £4 million for an average site amounts to a lot of money across the industry. It is money that is totally frozen; it cannot be banked or used for any other purpose.

Following my remarks at Second Reading, my noble friend the Minister wrote to me on 25th January, for which I am grateful. However, I am sorry to say that his letter shed no great light on the matter, other than he said that discussions to develop arrangements which would enable applicants for waste management licences to meet the financial provision requirements of the legislation were in hand.


    "The Department welcomes these moves and is keeping in touch with the discussions... There will certainly be other means of meeting this requirement, one of which may be a mutual fund arrangement".

That is so, but seems to me that, if the agency had the opportunity to set up a subsidiary company—which might well be the fund managers—this would provide

31 Jan 1995 : Column 1346

another opportunity. There is no thought behind the amendment that the industry should escape its obligations in licensing matters under the 1990 Act. The amendment would, therefore, merely give the agency an opportunity to set up a company if that were thought desirable by both the agency and the industry. I beg to move.


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