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Lord Lucas of Chilworth: My Lords, I thank my noble friend for his response which, of course, I find disappointing. He asked who would be responsible. The operator is responsible under the terms of Clause 54. If he is to be bound again by having to maintain a site before he can obtain a certificate of completion, what is the value of such a certificate other than to enable the authority to impose its own directions with regard to post-closure monitoring and the various protocols currently involved, which are set out in guidelines? It gives the operator no incentive to introduce more advanced and technically capable monitoring, and other procedures. Why should he go to that expense when he is paying through the subsistence—I call it "subsistence"—payments which derive from the post-closure obligation?

That is where the unfairness lies. If my noble friend and his officials look at the proposals carefully they will see that there is no suggestion that any operator should be able to evade his responsibilities. Indeed, when we discussed Clause 54, to which the Committee agreed in the end, there was no question of releasing landfill operators from their obligations.

I believe that the Government are wrong. They have burdened the industry with unnecessary and unwarranted dual expense, of which I fear the industry will not think too kindly. There is nothing that I can do here. I doubt whether I shall pursue this matter at the next stage, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 270 to 272 not moved.]

Lord Lucas of Chilworth moved Amendment No. 273:


Page 211, leave out from beginning of line 51 to end of line 17 on page 212.

The noble Lord said: My Lords, I raised this matter at an earlier stage when I opposed the introduction of a sweeping new power for the agency in respect of waste management licences. I remind the House that under the present regulatory system in the EPA 1990, operators of waste facilities who breach the conditions of their licence may be tackled by the enforcing authority in a number of ways. The Government now propose to extend the regulator's powers. The existing powers have been enjoyed for less than 12 months; they came into force in May 1994.

In Committee, I asked my noble friend what new events had taken place which gave rise to the Government believing that additional regulations are necessary. At that time, my noble friend was unable to provide me with an answer. As the Bill stands, we are left with the regulators being allowed to issue enforcement notices to be served when they believe—only when they believe—that a breach of a licence may occur. That is what I previously described as the crystal-ball approach.

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I wondered what problems had arisen to necessitate the provision. The misuse of the new crystal-ball-gazing power could have serious consequences for the industry. I shall take the liberty of describing two examples. It is a statutory requirement for enforcement notices to be entered on the public register. Whatever the facts of the matter, there will be a public record which may—only may—give a false picture of a company's performance and which will, without doubt, increase opposition to future activities which are fairly unpopular with the public. I suggest that that unpopularity is largely the result of a misunderstanding and a false perception of the industry's operations with regard to landfill.

In addition, failure to comply with the enforcement notice, no matter how reasonable its requirement, may lead to a licence revocation or a suspension. At worst, that might result in a loss of livelihood. I must ask my noble friend what safeguards there are for an operator when a regulator misreads his crystal ball. I suppose that the operator might seek a judicial review. That will be a long and costly process, a point to which the noble Baroness, Lady Hamwee, referred when discussing Amendment No. 250. I shall not go further than she did.

Even so, that will not prevent matters taking their course in the meantime. The operator might rely on the agency acting reasonably. But if it does not, or if he believes that it does not, the operator might ask the Secretary of State to act swiftly and use his powers of direction under Section 42. Let us be practical about the matter. The Secretary of State will not be able to move that swiftly to offset the effects of a misreading of the crystal ball. It could take some little while. Meanwhile, the operator has no safeguard whatever. Therefore, this amendment seeks to find a solution which might commend itself to the Government.

I note that the new power in respect of waste regulation is paralleled in new Section 90B of the Water Resources Act 1991 and in Section 13(1) and (2) of the Environmental Protection Act 1990.

If one scrutinises the small print of the schedules to the Bill and cross-refers them to other legislation, it appears to me that the parallel is only partial. Whereas the powers in the Water Resources Act and the Environmental Protection Act bring with them a right of appeal for operators, that is not echoed in the amended waste management licensing system that obtains in the Bill before us.

Were a similar appeals procedure introduced, operators would be able to seek redress if the agency failed to discharge properly its responsibilities. Why has it not been thought reasonable to introduce an appeals procedure for an operator whose very livelihood may be threatened by a misreading of the crystal ball? That is what lies behind the amendment. If my noble friend will assure me that he will consider the introduction of an appeals procedure, I could go away happy. I beg to move.

Viscount Ullswater: Of course, I would like nothing better than to make my noble friend go away happy. I hope that in the words which I shall use he will find the comfort which he seeks.

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My noble friend put forward a similar amendment in Committee, but this time he has drafted the amendment in order to eliminate entirely the new enforcement notice procedure which paragraph 61 also provides. I am surprised that my noble friend should prefer the more general provision currently made by Section 42(5) of the 1990 Act, which simply enables the authority to require the licence holder to comply with the licence conditions within a specified time and may take enforcement action such as suspension or revocation of the licence if he does not. The new enforcement notice procedure will require the agency to specify the steps which the licence holder must take to remedy any non-compliance with a licence condition, or to prevent any non-compliance from occurring in the first place. This is a much more precise requirement, and ensures that the operator knows what he is expected to do.

My noble friend referred to it as being "crystal ball gazing". I believe that the agency will be able to work with its technical knowledge so that it will not act in the manner which he suggests.

My noble friend is concerned that the new provisions in the Bill will enable the agencies to take enforcement action before a licence condition has actually been breached—where such a breach is likely to occur. There are two issues here. The first is whether the agency should have to await the breach of a licence condition before taking enforcement action. Where environmental damage is in prospect, I cannot see that there would be any point in waiting for it to occur before taking action.

It is nevertheless reasonable to ask in these circumstances what safeguards there will be to prevent an agency acting prematurely, especially when failure to comply with an enforcement notice could result in the revocation or suspension of the licence. The agency's enforcement powers do indeed need to be used in a way which gives the operator of a licensed site a clear understanding of the remedial action required and a proper opportunity to take it, without the imposition of sanctions disproportionate to the breach. The new provision is designed to meet this concern by requiring the agency to serve an enforcement notice. This will tell the licence holder what he has to do and by when, giving him the opportunity to correct a problem, and so to avert the need for further enforcement action.

I listened carefully to what my noble friend said about the lack of an appeal provision against an enforcement notice. I accept that that is different from the Part I provisions and those which will apply under the Water Resources Act and Part II of the Control of Pollution Act, as my noble friend identified. However, those other provisions also include an offence for not complying with an enforcement notice for which the penalty on conviction on indictment is up to two years' imprisonment or an unlimited fine. In such circumstances, an appeal provision is essential.

In the case of waste management, the penalty against an enforcement licence is suspension or revocation of the licence. It is at that stage that the legislation provides for an appeal to the Secretary of State under Section 43 of the 1990 Act. Further, if the waste regulation authority does not permit the continuation of the licensed activities pending determination of the appeal,

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then, under Section 43(7), if the Secretary of State considers that it acted unreasonably, the authority is required to pay compensation to the licence holder. I hope that my noble friend will agree that those provisions provide adequate safeguards for the licence holder. Having said that, I also hope that my noble friend will feel able to withdraw his amendment.

11.15 p.m.

Lord Lucas of Chilworth: My Lords, oh dear! I am sorry to say that I am not a happy man. Of course, I understand the penalties that will apply if there is non-compliance with the licensing conditions. Indeed, that goes without saying. Moreover, I can accept—just—that there is an argument for the agency or the authority to what I call "crystal-ball gaze" at a situation if it is felt that a breach is likely.

However, any enforcement notice under those conditions will impose directions as to the action to be taken and will also impose a time limit on compliance. That notice is not to be suspended pending an appeal to the Secretary of State, which is open to the operator pending the Secretary of State's decision on whether or not to issue a direction. Therefore, the safeguard to which my noble friend the Minister referred —namely, that of the powers of direction that the Secretary of State has—is really not a sufficiently adequate safeguard. It would be far better if a formal appeals mechanism applied, as provided under other regulatory regimes. I accept that there are conditions which make such an appeals mechanism more necessary, but it seems to me that what is right for Peter is also right for Paul.

I wish to consider most carefully what has been said. I believe that I may well wish to pursue the matter at a later stage of the proceedings in the hope that I may be able to persuade other noble Lords of the rightness of my case. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 273A and 273B not moved.]


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