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The Earl of Lytton: I listened with care to what the Minister has said and to what the noble Lord, Lord

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Crickhowell, said earlier. I accept to a degree what has been said but I would make the following observations. First, I believe that this clause puts administrative convenience and cost before a fair balance between parties in a court of law. Secondly, although the noble Lord, Lord Crickhowell, says how onerous tripartite testing is, he did not explain how it is that HMIP succeeds in doing it voluntarily, apparently without too much difficulty.

Lord Crickhowell: I am grateful to the noble Earl for giving way. However, there is all the difference in the world in being not required to do it but doing it from time to time because you think it may be relevant and helpful, and having to do it in effect on every single occasion if you are ever to get a prosecution. The result is that HMIP, if it thinks it will be valuable evidence or strengthen its case, can take a tripartite sample but it is not obliged to. The NRA effectively at the present time is obliged to take a tripartite sample in a huge number of cases just in case it wishes subsequently to bring a prosecution.

The Earl of Lytton: I am grateful for that intervention by the noble Lord because it brings into sharp focus the point I was trying to make in my opening remarks; namely, that there may be circumstances when it is not appropriate to take a tripartite sample. But that is not the same as saying we will relieve all obligation to take any tripartite sampling at all. That is simply not the same thing. With the greatest respect to the noble Lord, Lord Crickhowell, I think we probably are ad idem here but if best practice means anything it is wrong to say in the context of Clause 93 that we will dispense with the measure altogether and that it is not necessary. I am saying that it may well be necessary and it may well be highly appropriate in certain circumstances. I believe the Minister alluded to that very point.

There is another point I wish to make. I believe there is a confusion here between automatic monitoring equipment as monitoring equipment and the function of an environmental agency as a prosecuting authority and as a body gathering evidence for prosecution. Automatic monitoring equipment is fine if one is testing flows and one is returning the sample to the water and that sort of thing. However, if there is a suspicion that there is a real pollution problem which needs to be dealt with by prosecution, that is a quantum leap in my opinion. I commend that thought to the Committee. It is a quantum leap away from the day-to-day monitoring function to the question of enforcement. The two have to be kept quite separate in this context. The clause muddies the water—if I may use that analogy—between the monitoring and prosecuting functions. Nor does it address the fact that some materials are easily subject to tripartite testing and should rightly be dealt with by that means.

The technological solution of the brave new world of automatic equipment is fine, but there is also a human interface—real people making real mistakes and misunderstandings. Legislation also has to come to terms with that possibility.

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It is not appropriate to discuss the matter at further length. I shall consider what has been said and may return to the matter at a later stage. In the meantime, I shall not press my opposition to the clause.

On Question, Clause 93, as amended, agreed to.

[Amendments Nos. 342B to 342D had been withdrawn from the Marshalled List.]

Clause 94 agreed to.

Schedule 16 agreed to.

Clause 95 [Power of Secretary of State to delegate his functions of determining, or to refer matters involved in, appeals]:

[Amendment No. 343 not moved.]

Viscount Ullswater moved Amendment No. 344:


Page 103, line 28, leave out ("47B") and insert ("49B").

The noble Viscount said: I spoke to Amendment No. 344 with Amendment No. 342A. I beg to move.

On Question, amendment agreed to.

Baroness Hamwee moved Amendment No. 345:


Page 104, line 6, at end insert:
("( ) Regulations may be made by the Secretary of State in respect of appeals against the decisions of a competent authority acting under the EC Council Regulation on the supervision and control of shipments of waste within, into and out of the European Community (Regulation No. 259/93); and such Regulations may provide for such appeals to be dealt with under subsection (2) above.").

The noble Baroness said: Amendment No. 345, which is the only amendment to which I shall speak, is grouped with Amendments Nos. 363, 363A, 366C and 367 to 371.

This is a short, discrete point. The EC regulation which is referred to in the amendment allows a competent authority to refuse to permit shipments of waste to be made or to require shipments to return to the country of origin or to be dealt with in the UK in a manner other than that envisaged by the parties to the shipment. Someone who has been guilty of illegal trafficking can be barred from the industry through the operation of the regulation.

The regulation is implemented in the UK by the Transfrontier Shipment of Waste Regulations 1994. The regulations make no allowance for an appeal against any decisions. The purpose of the amendment is to alter that position. I beg to move.

Baroness Hilton of Eggardon: I shall speak to Amendments Nos. 363A and 366C. They are intended to be helpful.

Amendment No. 363A relates to site licences, which may be partly revoked for non-payment of charges or the holder having ceased to be a fit and proper person. Both situations can be remedied by the operator, but no mechanism currently exists to allow reinstatement of licences, even if the operator has taken appropriate action. The amendment seeks to provide that power within the Bill.

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The purpose of Amendment No. 366C is to allow one licence to be replaced with another. At present the Environmental Protection Act does not permit that, but the amendment would allow it within the terms of the Bill.

6.45 p.m.

Lord Lucas of Chilworth: I shall speak to Amendments Nos. 367, 368, 369 and 370. I do not propose to speak to Amendments Nos. 363 and 371 which are included in the group.

Amendment No. 367 is a small amendment. As the Committee will note, the Bill adds a few words to Section 42 of the 1990 Act. Despite the inclusion in Schedule 18 (which I remind the Committee is entitled "Minor and consequential amendments") of these eight words:


    "or is likely not to be complied with",

that is neither a minor nor a consequential amendment to the Act. The effect of adding those words to Section 42 would be to extend considerably the agency's already wide-ranging powers to act against operators who breach licence conditions. In future the regulator will not be restricted to enforcing conditions which are breached but will be liable to initiate enforcement action where it considers a breach is likely.

It is not easy, but I suppose it is possible, to envisage instances where such an occurrence can be predicted with some degree of certainty. Without any doubt there will be many more instances where it cannot be predicted.

What problem has come to light since waste management licensing came into effect in May of last year? Has a new problem arisen, about which we know nothing, that necessitates this new power in order to deal with the problem? I do not know of one.

Perhaps my noble friend the Minister can sooth my fears. It is a sweeping new power. I cannot see the necessity for it. Nor can I see any safeguards for industry against potential misuse of the powers. Is the Secretary of State to issue guidance on the circumstances in which non-compliance can reasonably be predicted? We have to deal with facts, not guesswork or crystal ball gazing. What new authority is the agency to have that did not obtain before? What is so mysterious about the period between May of last year and the time when this Bill comes into force? Perhaps my noble friend can tell me. There seems to be an iniquity.

Viscount Ullswater: This group of amendments seeks to make various changes to the waste regulation functions of the agencies.

Amendment No. 345 moved by the noble Baroness, Lady Hamwee, seeks to make provision for appeals against decisions taken by competent authorities carrying out their duties under the EC Waste Shipments Regulation. In Great Britain those competent authorities are either the waste regulation authorities or the Secretary of State. The functions of the former are to be transferred to the new agencies.

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The possibility of providing an appeals mechanism under the Transfrontier Shipment of Waste Regulations 1994—which supplement the EC Waste Shipments Regulation—was given careful consideration when the regulations were drafted. However, the EC regulation does not make specific provision for an appeals mechanism, nor would it readily accommodate an appeals process.

Amendment No. 363A in the name of the noble Baroness, Lady Hilton, would enable a waste management licence revocation under Section 38 of the 1990 Act to be rescinded by the authority which had issued it. Revocation of a waste management licence is one of a range of measures available to waste regulation authorities to ensure compliance with the requirements of a licence. These include temporary suspension of the licence under Section 38(6) of the 1990 Act, as well as partial revocation. In the case of partial revocation, the licence is still in force and hence the power to vary a licence—under Section 37(2) of the 1990 Act—provides a mechanism by which reinstatement of the revoked part can be effected, should that be appropriate.

Amendment No. 366C would prevent the surrender of a waste management licence while a licence for the site was still in force. We cannot see any need for this. If, for whatever reason, there are two separate licences for the same site, then the surrender of each will be considered on its merits and will only be accepted if the criteria set down in Section 39 of the 1990 Act are met.

Finally, Amendments Nos. 367 to 370 seek to remove the amendments to Section 42(5) of the Environmental Protection Act 1990 which are provided by paragraph 50 of Schedule 18 to the Bill. These are harmonising provisions. They create a power for an agency to issue an enforcement notice where a waste management licence condition is likely not to be complied with. At present an enforcement notice may only be served under this section where non-compliance has already occurred. The new provision is in line with the power currently available to enforcing authorities under Section 13(1) and (2) of the 1990 Act. A parallel power in relation to discharge consents is provided by new Section 90B of the Water Resources Act 1991, which is inserted by paragraph 105 of this schedule.

The serving of an enforcement notice before a licence condition has actually been breached, but where such a breach seems likely, will give the agency the opportunity to avert pollution before it happens, as well as giving the licence holder a chance to correct a problem before more serious—and expensive—consequences arise. Existing provisions under Section 42(8) will allow the Secretary of State to give directions to an agency as to whether and how it should exercise its powers under Section 42. This provides a safeguard against unreasonable use of the power.

This is a large group of amendments covering a wide range of issues. I hope I have offered an adequate explanation of the Government's policy in each case, and the reasons that we do not feel able to accept the

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amendments. I hope that the noble Baronesses, Lady Hamwee and Lady Hilton, will feel able to withdraw them.


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