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Lord Molyneaux of Killead: My Lords, I am grateful to the Minister for giving way. My main concern was as regards those employers who, having read in advance the drafts of the order, concluded that Parliament might well approve the order, and took the precaution of dismissing those employees whom they knew had a conscience clause. I understand that a recent tribunal held that the employer had a perfect right to dismiss the employee because the assurance was given verbally and not in writing.

Lord Dubs: My Lords, I am not familiar with the details of that instance. I shall be happy to look into the matter and write to the noble Lord. My understanding is that before the order comes into

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effect, a two year period should provide protection. I assume that the noble Lord is talking about employees who have not been working for two years. However, I shall look into the matter and get in touch with the noble Lord.

I also welcome and agree with the noble Lord's comments about whether large shops would be adversely affected by the more liberal opening hours for small shops. I agree with him that large shops are unlikely to be so adversely affected that their operations would be uneconomic. I receive occasionally applications for planning permission. Indeed, the number of large supermarkets seeking rapidly to open in Northern Ireland--suggests to me that they believe that the Northern Ireland market is a promising one for them and are not deterred by the proposed legislation which will have the 1 p.m. to 6 p.m. limitation.

The noble Lord, Lord Monson, regretted that the procedure for these orders in Northern Ireland is by unamendable orders. I have some sympathy with that proposition. But we therefore consult more than would be the case in England and Wales. Therefore the orders are the result of information and opinions from many people and organisations in Northern Ireland. Indeed, the supermarkets coming into Northern Ireland would surely have been fully aware of our proposals through consultation. I think that I have met representatives from all the supermarkets in recent months. I am not aware that they regard that as a problem as regards their commercial operations.

The noble Lord also asked about the results of statistics after consultation in England, Wales and Northern Ireland. Perhaps the noble Lord will allow me to write to him. It will be complicated to go through all the figures. I am not sure that I have them at my fingertips.

He also asked about the exemption for large shops in holiday resorts: ending the summer holiday period on 30th September. We have to make a cut-off point somewhere. With the climatic changes that seem to be under way, if we continue to have warm autumns we would be under pressure almost to allow a holiday exemption throughout the year on climatic grounds. We need to arrive at a balance between those people who legitimately want Sunday to be a particular kind of day, and the wish to have some shops open on Sunday. If we are to extend the period, we should be undermining the balance. I believe that from March to the end of September is a reasonably long period as a definition of holidays. It is intended to give shops in holiday areas a sufficient economic basis for their operations, since they are particularly dependent on the summer trade. I think that we have the balance right; that is the reason for it.

In conclusion, I am grateful for the supportive comments made in the House today. I believe that when the order comes into effect in Northern Ireland it will be widely supported. I think that we have got the balance right. I commend the order to your Lordships.

On Question, Motion agreed to.

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Waste and Contaminated Land (Northern Ireland) Order 1997

Industrial Pollution Control (Northern Ireland) Order 1997

5.15 p.m.

Lord Dubs rose to move, That the draft orders laid before the House on 28th October be approved.

The noble Lord said: My Lords, with the permission of the House I should like to discuss both the Waste and Contaminated Land (Northern Ireland) Order 1997 and the Industrial Pollution Control (Northern Ireland) Order 1997. I hope that I am in order in linking the two. It will save time if we deal with the orders together.

The main purpose of the draft Industrial Pollution Control (Northern Ireland) Order 1997 and the draft Waste and Contaminated Land (Northern Ireland) Order 1997 is to introduce in Northern Ireland provisions on industrial pollution control and waste management in line with those already in force in Great Britain under the Control of Pollution (Amendment) Act 1989, Parts I and II of the Environmental Protection Act 1990 and the Environment Act 1995. The orders will also bring the law in Northern Ireland into line with European requirements.

I believe that it will be helpful to the House if I say a few words about the detailed provisions of each order. The draft Industrial Pollution Control (Northern Ireland) Order creates a three tier system for the control of pollution from industrial processes to be administered by two enforcing authorities. It is fair to say that the tiers reflect the degree of potential pollution that might result from particular processes. The first tier deals with major industrial processes with the potential for serious pollution. They will be subject to a system of integrated pollution control. There will be about 20 such processes in Northern Ireland including power generation, chemical manufacture and cement manufacture. This means that harmful emissions to air, land and water will be regulated by a chief inspector appointed by the Department of the Environment.

As regards the second tier, the chief inspector will also administer a system of air pollution control in respect of processes with a significant capacity to cause air pollution. Such processes will include mineral, glass, galvanising and roadstone coating processes. Many of these processes have a long history of air pollution regulation under the Alkali Act dating from the 19th century.

However, as regards the third tier, the order also gives a new responsibility to district councils for dealing with a range of processes which have less potential to cause significant air pollution but which are more likely to impact directly on the local environment. Such processes will include cement blockyards, timber processes and paint spraying. This represents an important extension of the environmental responsibilities of councils and underlines further the vital role which they have to play in local environmental issues.

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In addition to conferring stronger powers on enforcing authorities to control pollution from industrial processes, the order also contains provisions to enable polluters who fail to comply with its requirements to be prosecuted. It creates a number of offences and penalties including a fine of up to £20,000, or up to three months' imprisonment, for the most serious infringements. There are also rights of appeal against the decisions of enforcing authorities.

Information about the effect of new developments on the environment will be made more accessible by the introduction of a requirement to advertise applications for authorisations in the press. Enforcing authorities will also be required to maintain registers of information about such applications. These registers will be open to public scrutiny.

A key element of the new controls is the requirement for industrial concerns to employ the best available techniques not entailing excessive costs, or BATNEEC, in order to minimise pollution and comply with the tighter controls on emissions.

Process operators will be required to pay fees and charges to cover the cost of assessing applications for authorisations. However, effective regulation means much more than just setting conditions in an authorisation. Regular inspection of processes will be required to assess operators' performance against authorisation conditions. In certain cases, enforcement action may also be necessary. A separate annual fee will be charged for these activities.

These charging schemes will also reflect the well-established principle that the polluter should pay for the damage which his activities may cause to the environment.

Noble Lords will be interested to know that during the consultation period comments were received from 54 individuals and organisations. The proposals were generally welcomed although I have made three specific amendments to take account of points raised by consultees. These cover procedures for dealing with appeals, the admissibility of evidence in legal proceedings and clarification of the powers of district councils to bring proceedings under the order.

I now turn to the draft waste and contaminated land order. As I have already said, the purpose of this order is to introduce provisions on waste management and contaminated land broadly in line with those already in force in Great Britain and to meet European requirements. The order is also a response to increasing demands from public and political pressure groups for tougher action on the waste problem.

The order will be a key element in the Government's overall policies for the protection of the environment in Northern Ireland. It will impose a new duty of care on all persons concerned with the keeping, control or transfer of controlled waste.

New powers will be introduced requiring any person who transports controlled waste in the course of business, or otherwise for profit, to register with the Department of the Environment. It will be illegal for any person not registered to carry or transport such waste.

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The present licensing system will be strengthened by introducing the concept of "fit and proper person". Entitlement to a waste management licence will depend on the ability of the applicant to demonstrate a degree of technical competence commensurate with the nature of operations undertaken and adequate financial provision to discharge the obligations arising from the licence.

Provision is also made for the separation of regulatory and operational responsibilities for waste, currently carried out by district councils, by the transfer of the regulatory controls to the department. These controls will be exercised by the department's Environment and Heritage Service, which was established as a Next Steps agency on 1st April 1996.

The order also emphasises the increasing importance of finding alternatives to waste disposal. The department will be required, as soon as possible, to prepare a waste strategy which will be a key measure for change in how we in Northern Ireland deal with waste in the future. In particular, it will set objectives to reduce the amount of waste generated and provide a framework to enable a significant new emphasis on materials recovery. The strategy will also build public confidence by providing members of the public with the opportunity actively to participate in sustainable waste management practices.

We hope to publish the draft form of the waste strategy next year. It will establish waste policy on a hierarchy: first, to reduce the overall amount of waste; secondly, to recover as much as possible; thirdly, to recycle waste; and, at the bottom of the hierarchy, to use landfill as a measure for disposing of waste.

District councils will also be required to draw up waste management plans for their areas. In addition to showing arrangements for the safe disposal of waste, the plans will also describe arrangements for local recycling and materials recovery schemes. There will also be scope for councils to undertake recycling initiatives and to make payments for recycling initiatives undertaken by others.

There will also be important new powers for the department and district councils to deal with contaminated land. In line with the well-established "polluter pays" principle, responsibility for remediation costs will, in the first instance, fall to the person or persons who caused the initial contamination.

Noble Lords will be interested to know that during the consultation period responses were received from 47 individuals and organisations, including 17 district councils. The proposals were broadly welcomed, although consultees did draw attention to a number of issues. In response to those, I have made seven amendments to the draft order. In the main, they deal with operational points raised by district councils.

Of particular concern to councils was the imposition on them of a mandatory duty to deal with the problem of fly-tipping. Following consideration of the arguments put forward, I have agreed that the power should remain discretionary and have amended the draft order accordingly.

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However, while I understand the difficulties which councils would have experienced in the exercise of a mandatory power, the problem of fly-tipping remains one which must be dealt with if we are really serious about protecting our local environment. I have therefore asked my officials to prepare, in consultation with district councils, a code of practice which will ensure that the problem is dealt with in an effective and uniform way across all council areas.

One of Northern Ireland's great strengths is the quality of the environment which it can offer to those who live there or come as visitors. These draft orders will provide improved systems of industrial pollution and waste management control which will help to ensure that the environment continues to be protected not only for ourselves but also for future generations. I am also confident that they will do so in a way which maintains the right balance between the need to protect the environment and the need to ensure that industry can continue to operate in a competitive way. I beg to move.

Moved, That the draft orders laid before the House on 28th October be approved.--(Lord Dubs.)

5.30 p.m.

Lord Cope of Berkeley: My Lords, clearly we are all in favour of environmental protection, which both orders deal with in their different ways. But, as the Minister said, we also want to see the Northern Ireland economy flourish. It is therefore important that the restrictions should not be so onerous as to deter or divert investment, and hence jobs.

In the case of Northern Ireland it is important that the controls are not out of line with those in force and being operated in the Republic of Ireland. It is, after all, the only land border in the United Kingdom and is therefore a very important point in this part of the kingdom.

The existence of agreed European Union directives provides some reassurance. However, we also know of the phenomenon known as "gold plating", the habit of over-egging the directives when turning them into United Kingdom legislation; and also of over-zealous application of the orders in this country by comparison with some overseas jurisdictions. Perhaps the Minister, in replying, will say a little about what the position is in the republic. In particular, will he assure the House that businesses in Northern Ireland will not find that as a result of the two orders, they acquire a regime which is more bureaucratic, expensive or onerous than that which applies in the republic?

The industrial pollution control order splits responsibility, as the Minister said, between the department and the 26 local authorities under the three-tier system. He gave some examples of the sort of processes that would fall on one side and the other of the various border lines. It is most important that the distinction between the different jurisdictions is clear, and that the border lines are as clear as possible. They are not comprised in the order in itself; they have to be settled separately and laid down. If not, there will be scope for all sorts of difficulties between the local authorities and the central authorities in Northern Ireland in enforcing the controls. Even from the brief

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list read out by the Minister it seems that there will be difficulty in making a precise definition of the edges, as to who is responsible.

As the local authorities are to do part of the job, it is also important that they do their best to act in a similar way to one another. If we have 26 totally different regimes in effect operating across the Province, then it will be extremely difficult for large companies which have to deal with a number of local authorities, each with their own interpretation and their own approach to a similar process. It will also be difficult for those who advise small businesses if the local authorities make different decisions in similar circumstances in different parts of Ulster.

My next point concerns the timing of the implementation of both orders, and in particular the one on industrial pollution. Industry needs time to adjust to new controls. Some of those will require expensive adjustments. It is much easier, as well as being much better, to build environmental protection into the construction of a plant rather than to try and "bolt it on" afterwards, and try to deal with the environmental protection at a late stage in the life of a particular process. A lot of process plant has a life of 10 years at least, and inevitably there will be a certain amount of bolting on. But the longer the timeframe, particularly for big and complicated processes, the better will be the environmental protection, even if it is a bit later, and the easier it will be for industry.

It is also important in some cases for industry to be able to get prompt decisions out of the machinery. Sometimes investment is necessary to fulfil a particular order which may be on offer. A tender has to be put in to try to obtain a job. If it will take a long time to discover from the authorities what environmental protection will be required to make the necessary investment to fulfil the order it will be difficult for industry to send in a tender promptly enough to secure the order. The provisions in the order are that there is six months before there need be a definitive reply to a request for permission.

I am also concerned about the level of fees in the waste and contaminated land order. Provision for fees is on page 31 but it does not indicate the kind of basis on which the fees and charges for licences will be made. Is it the intention that the fees should recover the costs of administering the controls that are provided for in the order, or is it intended to be a tax which will raise money from those who generate waste or are otherwise affected by the order?

Part of the reason for raising that point is that I notice that the provisions are different in the two orders in relation to fees. In the industrial pollution control order fees are referred to in Article 8, on page 15. Sub-paragraph (6) requires the department, in framing a scheme for the fees, to ensure that,


    "the fees ... are sufficient, taking one financial year with another, to cover the expenditure incurred by ... the enforcing authorities".

A limit is provided to the fees that will be charged. But there is no equivalent provision in the waste and contaminated land order which can give rise to the

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suspicion that it might be a tax as well as merely the polluter paying. That is the phrase used by the Minister and it is a principle that we all support.

The noble Lord, Lord Renton, is present, so I am encouraged to raise some drafting points which occur on the orders. They are not the responsibility of the Minister but of the draftsmen who prepared the orders. It seems to me that they are some of the worst examples of the draftsman's art that have come before Parliament that I have had to deal with. We must remember, in reading such orders, that the restrictions must be used by businessmen, including small businessmen. Ideally they ought to be able to go to the order, look up the point and understand what it says. I do not believe that you can do so from looking at the orders, for two reasons: first, the complicated language used and, secondly, because much of it is done by reference to other orders in the past and, for that matter, orders and regulations in the future which have not yet been made.

Discussing the two orders together was a sensible move by the Minister. It gives us the opportunity to compare the different drafting styles that seem to have been used in the two orders. Page 4 of the industrial pollution order defines mobile plant as:


    "plant which is designed to move or to be moved whether on roads or otherwise".

I am not sure why we need "on roads or otherwise". However, the waste order draftsman clearly thinks that that is a risky formulation which may not cover the situation. So he adds another sub-paragraph into the waste order. Page 10 states:


    "Regulations may prescribe descriptions of plant which are to be treated as being or as not being mobile plant".

I do not believe that we need another set of regulations to introduce a different definition of mobile plant for the waste order. That is what makes it impossible for a businessman to look up the law, unless he has an encyclopaedic law library to begin with and plenty of time.

I could give many other examples. I should draw your Lordships' attention to the convoluted definitions of waste which occur in the waste and contaminated land order, but first I refer to the industrial pollution control order which on page 40 states:


    "No condition shall ... regulate the final disposal ... on land of controlled waste (within the meaning of Part II of the Pollution Control and Local Government (Northern Ireland) Order 1978)".

I have not been able to find out whether that is one of the parts of the 1978 order that is being replaced by the other order. If so, it adds to the complications.

In the waste order, the first definition of waste refers us straight to Schedule 1 where a whole page sets out the different types of waste that are to be regarded as waste to be covered in the order. That is only the start of it. All the definitions or additional definitions are included in Article 2 of the order. For example, having already said that waste is the residues of various processes, it goes on to say that:


    "'controlled waste' ... means household, industrial and commercial waste or any such waste".

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Household waste is then defined in a whole section with five different sub-headings and industrial waste is similarly defined. The order then states:


    "'commercial waste' means, subject to paragraph (3), waste from premises used wholly or mainly for the purposes of a trade ... excluding ... household waste; ... industrial waste; ... waste from any mine or quarry ... agriculture ... [or] waste of any other description prescribed for the purposes of this sub-paragraph".

Sub-paragraph (3) to which that refers states that:


    "Regulations may provide that waste of a prescribed description shall be treated for the purposes of prescribed provisions of this Order as being or not being household waste or industrial waste or commercial waste",

and so on. The provisions go on and on, backwards and forwards from sub-paragraph to sub-paragraph. It is extremely difficult in some cases to work out what is meant by "waste". That is why I do not believe that this is one of the finest examples of the parliamentary draftsman's art that I have seen.

That leads me to the general question of whether the new Government have any plans to improve the quality of parliamentary draftsmanship, particularly to absorb some rules such as those suggested to us a long time ago by the noble Lord, Lord Renton. They related to improving the quality of drafting and making all such documents easier to read, particularly for the businessmen to whom it has to apply.

Despite all those criticisms, I think we should burden the statute book with the two orders. It is in the interests of the environment of Northern Ireland.


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