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Lord Renton: I am pleased to hear that, but I must say that that was not the way that I read the provision. But I am not saying that my noble friend is wrong. He has perhaps given much deeper thought to the matter than I have. At any rate, on the face of it that is what it seemed to be. If it had that effect, of course I would oppose it. But if my noble friend assures me--I must say I would need a little assurance because that is not the way I have read it--that it does not add to the powers of the Government to amend or repeal existing Acts of Parliament, whether they are to be subject to affirmative resolution or not, I hope I may be forgiven for perhaps misunderstanding his intention, although I must say that on the face of it I did not think I had done.

Lord Jenkin of Roding: The proposed new Subsection (5C) of the Government's amendment states,

That is to say, it introduces the affirmative procedure. The proposed new Subsection (5D) states,

    "Subsection (5C) applies to--

    (a) the first regulations ... which apply in relation to England;

    (b) the first regulations ... which apply in relation to Wales;

    (c) the first regulations ... which apply in relation to Scotland;

    (d) regulations under this section which create an offence or increase a penalty".
I have sought to insert the words,

    "include provisions to amend or repeal any Act of Parliament or which".
I am making certain that anything which seeks to amend an Act shall be subject to the affirmative procedure. That is how it works. I hope that my noble friend is reassured.

Lord Renton: It had not occurred to me that the Government were taking power to amend or repeal an Act of Parliament, but if they are, my noble friend is fully justified in moving his amendment.

The Earl of Mar and Kellie: In Clause 2 we learn that this legislation will be pre-commencement legislation. I am obviously about to ask a question about Scotland. The Minister's proposed new Subsection (5D)(c), states,

    "the first regulations to be made under this section which apply in relation to Scotland".
Will the Minister explain to us at what point this legislation would be transferred to the Scottish parliament? In some respects does paragraph (c) imply that the Scottish parliament will not receive this legislation until this United Kingdom Parliament has made the regulations?

Lord Whitty: I think the answer to the noble Earl, Lord Mar and Kellie, is that it is hoped that this legislation will be pursued--although the speed which we anticipated may be slightly modified by the action of Members of the

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Committee today--in the coming two or three months and the regulations will therefore follow from the legislation. The primary legislation will be a matter for the United Kingdom Parliament. The first regulations under that would be subject to the same procedure as elsewhere, but thereafter the Scottish parliament would make the regulations. I hope that that is clear to the noble Earl; if not, I can clarify the matter further in writing. In view of the difference in interpretation between the noble Lords, Lord Jenkin and Lord Renton, and the query of the noble Lord, Lord Jenkin, with regard to the parliamentary draftsman's grammar, I had better withdraw the amendment, consider the points that have been made and I hope return with a watertight amendment at Report stage that will meet with general approval.

Lord Jenkin of Roding: I beg leave to withdraw Amendment No. 22.

Amendment No. 22, as an amendment to Amendment No. 21, by leave, withdrawn.

[Amendment No. 23, as an amendment to Amendment No. 21, not moved.]

Lord Whitty: I beg leave to withdraw Amendment No. 21.

Amendment, by leave, withdrawn.

[Amendment No. 24 not moved.]

On Question, Whether Clause 1 shall stand part of the Bill?

Lord Renton: I wish to make a short point. In view of the splendid attitude of the Minister in deciding to reconsider the drafting of really the whole of this clause and in view of the constitutional and practical importance of the matters contained in it, I think it would be in accordance with our usual practice for the amendments to be recommitted or, if it is decided to withdraw the clause as a whole--which I would very much hope the Government would do as a result of our discussions--for the new clause in place of Clause 1 to be subject to a recommittal. Then we can consider this complicated and important matter in detail with greater freedom at a later stage. I do not ask for an answer now, but I hope that the noble Lord, Lord Whitty, will seriously consider doing that because it would then be in accordance with our usual practice.

Lord Whitty: I am not sure I concur that it is in line with normal practice in these circumstances. Earlier I indicated that I would consider whether any or some of this Bill should be recommitted. However, for the moment I wish to resist the noble Lord's proposal and perhaps we can consider it in the same context as the other matters.

Clause 1 agreed to.

Schedule 1 [Particular purposes for which provision may be made under section 1]:

Lord Jenkin of Roding moved Amendment No. 25:

Page 4, line 24, leave out ("or guidance").

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The noble Lord said: I shall speak also to Amendment No. 26. This is a short point, but I hope that the Minister will regard it as an important one. Paragraph 3 of the schedule enables the Secretary of State,

    "to give directions or guidance which regulators are to comply with or have regard to".
The draftsman may have said that one is not allowed to use Latin now, but the relevant phrase used to be, "redendo singula singulis"; namely, that you applied each part of the thing to the appropriate second part. But I think that that is confusing because the provision we have here gives directions with which regulators must comply and gives guidance to which they must have regard. I believe that these powers are sufficiently different that they ought to be kept separate. The schedule as drafted does not make this clear enough.

Indeed, IPPC is designed to be a flexible, site specific regime that gives the regulator scope to apply regulations that best suit the local environment and the nature of the operation. Here again, this is a case where the European Union has been persuaded to accept British principles which have applied for many years.

Guidance is therefore meant to be non-prescriptive. My amendment makes clear that the regulators need only have regard to guidance, not comply with it. This is a British system which really goes back to the alkali Acts in the middle of the last century. If I may put it in the vernacular, it has always been horses for courses. In general, conditions for being allowed to operate a plant or a process are tailored to the precise circumstances of that plant or process.

Of course the powers to regulate must be flexible enough to allow this--hence, in some cases there has to be a power to give directions to regulators and in others simply to give guidance. They need to be kept distinct, and my two amendments seek to achieve that. I beg to move.

6 p.m.

Lord Whitty: I recognise the intention of the noble Lord to distinguish between direction and guidance. Guidance is not intended to be prescriptive in that sense; it is there for the regulator to have regard to. The effectiveness and efficiency of the control system is, to a large extent, dependent upon the regulators' ability to use their judgment on a case-by-case basis. The noble Lord is correct to say that it should be non-prescriptive. It was never the intention of this drafting to imply otherwise.

I shall perhaps surprise the noble Lord by saying that on this occasion his drafting makes matters clearer. We can perhaps have one decision this afternoon: we are prepared to accept Amendments Nos. 25 and 26, and we urge the noble Lord to pursue them this afternoon.

Lord Jenkin of Roding: I am very much obliged. I do not think I need to say more.

On Question, amendment agreed to.

Lord Jenkin of Roding moved Amendment No. 26:

Page 4, line 25, after ("or") insert ("guidance which regulators are to").

On Question, amendment agreed to.

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Lord Jenkin of Roding moved Amendment No. 27:

Page 4, line 43, leave out ("particular") and insert ("appropriate cases").

The noble Lord said: I am much encouraged to express the hope that perhaps the Minister may be persuaded similarly on this amendment.

I said a moment ago that IPPC is in general a site-specific form of regulation and it is very good that this has now been adopted by the European Union. The standard permit conditions may be acceptable in some cases, but this needs to be handled with care. It is only appropriate for standard permit conditions to be applied to sectors where activities are homogenous from site to site. This might include agricultural activities, such as intensive pig and poultry farming, where effluent, I suspect, is fairly standard across the sector. In these cases, the use of a standard permit condition would reduce the administrative burden on the operator and the regulator.

This would be particularly welcomed by small and medium-sized enterprises which do not always have the specialised staff to handle complex IPPC matters. In industry, standard permit conditions might be appropriate in processes such as paint spraying or other similar processes using solvents. It would not be appropriate to apply standard permit conditions to complex processes such as those undertaken in the chemical industry or where the processes or emissions vary from site to site. To try to apply general conditions would be contrary to the site-specific approach which is at the heart of IPPC.

Certain standard permit conditions have been shown to work in other areas outside IPPC. For example, the existing arrangements between the Environment Agency and the water industry cover discharges under the urban waste water treatment directive. The standard clause may require a waste water effluent plant to install 6mm fine screens at the outlet to a works. Standard clauses like this should only be used in sectors where it is clear that a blanket approach may be necessary to achieve environmental quality standards through engineering solutions.

The purpose of the paragraph is to give guidance to the framers of the regulations. The Bill, as drafted, refers only to certain cases "in particular". With great respect, that gives no guidance at all to those who have to draw up the regulations. My amendment suggests that instead we use the words "in appropriate cases". That will focus the draftsman's attention on the need to ensure that the powers apply only where it is appropriate that they should do so. It would give the ability to challenge a regulation or a general permit condition on the ground that for a particular operator's installation the general condition is not appropriate. It is hard to see how the words "in particular" in the Bill could achieve those purposes. I think my amendment is an improvement and I hope that the Government will be able to accept it. I beg to move.

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