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The Deputy Chairman of Committees (Baroness Lockwood): If Amendment No. 214A is accepted, I cannot call Amendment No. 214AA under the pre-emption rule.

Lord Carmichael of Kelvingrove moved Amendment No. 214A:


Page 31, line 41, leave out subsection (1).

The noble Lord said: I should like to speak also to Amendments Nos. 214AA, 214AB, 214BA and 214BB. This first amendment curtails the overall power of Ministers, which we feel is rather too great in this group of provisions and the Bill generally. Amendment No. 214A is an amendment from the Law Society of Scotland, a very reputable body, which is normally very

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correct and conscious of the importance of the Government getting things right. It has been a great help to all of us on this side of the House.

The Law Society has asked that the Government should abide by their stated intention referred to earlier in the booklet, Improving Scotland's Environment: The way forward, which was to provide an agency at arm's length from the Government. That is ideal for an environmental body. Clause 31(1) contravenes this intention and gives all the power to the Minister.

Amendment No. 214AA is too widely drawn. The Minister should give specific guidance and not guidance which is as general as it appears in this particular subsection.

Amendment No. 214AB addresses the question of whether there is a contravention of Community law. It is suspected that that may be the case and Ministers should be aware of it. Amendment No. 214BA is a consequential amendment. Amendment No. 214BB seeks to preclude the exemption for emergencies. I beg to move.

Viscount Ullswater: It is not unusual for bodies which are accountable to Ministers to be subject to direction from those Ministers on a range of issues. Indeed, the power to give directions contained in Clause 38(1) is very closely modelled on an existing power of Ministers to give directions to the NRA. Nor is it our intention that Ministers should be able to use this power coercively. The Bill provides that, except in an emergency, this power shall be exercisable only after consultation with the new agency concerned.

Amendment No. 214A seeks to omit Clause 38(1) from the Bill, thus removing the power for the appropriate Minister to give a new agency general directions in relation to its functions. Amendment No. 214AA would preclude ministerial directions of a general character unless they implement a Community treaty or another international agreement. Such directions could only be specific.

The noble Lord, Lord Carmichael, explained that the purpose of the amendments is to highlight concern about the broad nature of the powers to issue directions to the agencies. As non-departmental public bodies, it is appropriate and indeed necessary that the agencies are properly accountable for their work to the appropriate Minister and through him to Parliament. Along with ministerial accountability, there must be responsibility. And there cannot, I would suggest, be proper responsibility without power to direct an agency, where necessary.

It has been mooted that the powers of direction in this Bill are in some way exceptional. That is not the case. Let me pray in aid Section 5 of the Water Resources Act 1991 and Section 11 of the Natural Heritage (Scotland) Act 1991, which contain broadly similar direction-making powers in relation to the NRA and Scottish Natural Heritage.

A power to issue general directions is required, as it might not always be practicable or appropriate to issue specific directions. For example, if there were to be a direction covering the procedure to be followed by an

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agency in appointing persons with powers to inspect MoD premises, while it might be possible to replicate a direction for each individual MoD premises, it would be extremely cumbersome.

Amendment No. 214AB would require the appropriate Minister to direct a new agency to advise him on relevant Community treaties or other international agreements. I have no doubt that the agencies' advice on such matters is likely in many cases to be invaluable. But I do not believe the amendment is necessary. Clause 35(2), already requires the agency to provide such advice and assistance as requested by the Secretary of State or the Minister. The amendment does, of course, require that advice to be sought. There will, I imagine, be few cases in which Ministers would not wish to have the advice of the agencies. But I think the amendment is unduly prescriptive.

Community treaties and other international agreements are made through a series of negotiations which are often lengthy, going through numerous drafts. Would an agency need to be directed before every meeting and give its views formally to every twist and turn in the drafting process? I would suggest that it is best left for Ministers to determine when they require advice and for that advice then to be given.

Amendment No. 214B would require the appropriate Minister, before giving directions under Clause 38 to the environment agency for England and Wales, to consult that agency and other affected bodies as to the direction's content. Amendment No. 214BB would preclude any direction being issued unless the appropriate Minister first consults a new agency.

Clause 38(6) already makes provision for the appropriate Minister to consult the relevant agency in this matter. It will therefore come as no surprise that I am sympathetic to the motives behind the amendment. Given that directions may affect a large number of bodies, not all of whom could be readily identifiable, I do not believe that a requirement for consultation with all affected bodies would be practical. Nevertheless, where and to the extent that they consider it appropriate, my right honourable friends will consult persons or bodies other than the agency in question before giving directions. The clause as drafted recognises the importance of first consulting the agencies, and there is a requirement on Ministers to do so. But, while I accept that as something which should be done where at all possible, I cannot accept that such consultation should stop action being taken quickly in an emergency. Our first priority must be to prevent harm to human health or the environment. In an emergency situation, such consultation is likely to place a bureaucratic obstacle in the way of preventing such harm. I must therefore resist this attempt to remove that important safeguard.

Amendment No. 214BA seeks to extend the publicity requirements for directions that implement Community treaties or other international agreements to cover all directions issued under Clause 38. I understand the intention behind this amendment: that is why Clause 49(2) requires all directions—other than those whose disclosure would be contrary to the interests of national security—to be included in a new agency's annual report. But the additional publicity arrangements for

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directions made under Clause 38(2) are specifically necessary. They are required in order to meet Community requirements as to the level of publicity required in order to give the direction the necessary force and transparency. This is not the case for directions issued for domestic reasons, which may deal with more "nuts and bolts" issues. And, while those will be publicly available, I would suggest that they do not warrant the same level of publicity.

On that basis, I invite the noble Lord to withdraw the amendment.

6.45 p.m.

Lord Carmichael of Kelvingrove: The feeling that motivated the tabling of these amendments was disappointment. I refer to the Scottish White Paper, Improving Scotland's Environment, which promised a great deal more freedom and was well received, yet when the Bill was tabled it was felt that someone had got cold feet and Whitehall again had the whip hand. That is the reason for the disappointment.

The Minister's response seems very reasonable except that the power goes back to the Cabinet Minister, which enables him to thwart, if he wishes, action that perhaps should be left to the agency. This is one group of amendments that we shall be looking at carefully and possibly bringing back at Report stage. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 214AA, 214AB, 214B, 214BA and 214BB not moved.]

Clause 38 agreed to.

[Amendments Nos. 215 and 216 not moved.]

Clause 39 [Power to make schemes imposing charges]:

Viscount Ullswater moved Amendment No. 216A:


Page 33, line 4, leave out ("supervising activities authorised by virtue of") and insert ("performing functions conferred by").

The noble Viscount said: Amendment No. 216A is consequential upon the amendment to Section 62 of the Environmental Protection Act 1990 which is made by Amendment No. 372B. Section 62 enables regulations to be made to deal with special waste; that is, dangerous or intractable waste. Section 62(3) (a) enables the regulations to provide for waste regulation authorities to supervise activities authorised under the regulations and to recover their costs. The amendment to Section 62(3) (a) is needed to make clear that the regulations may provide for the authorities to supervise all the activities to which the regulations apply and to recover all their costs of so doing. Those costs will be recovered in accordance with a charging scheme under Clause 39 once the agencies become responsible for waste regulation. Amendment No. 216A is needed to ensure that Clause 39 refers to the new wording of Section 62 of the 1990 Act.

Amendment No. 372B also substitutes a new Section 63(2) of the 1990 Act to rectify a flaw in that subsection, which has not yet been commenced. Waste licensing and the special waste regulations generally apply only to controlled waste. However, it was the intention that

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Section 63(2) of the 1990 Act should replicate the effect of an earlier provision in the Control of Pollution Act 1974 which made it an offence to deposit, without authorisation, non-controlled waste which had the hazardous characteristics of special waste. This is not achieved by Section 63(2) at present, and the amendment will ensure that the original intention prevails. I hope that your Lordships will agree that this amendment is desirable. I beg to move.

On Question, amendment agreed to.


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