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Lord Jenkin of Roding: Before I respond, I wonder whether I have correctly understood what the Minister said about the circumstances that would arise if there were to be a more stringent test than BATNEEC. Did he say that the regulations that embodied the test would be subject to the affirmative procedure as the Bill now stands? Perhaps I misunderstood him.

Lord Whitty: I am trying to remember which amendments we have already passed and which we have not. If all my amendments are accepted, then the first set of regulations under the Bill which would deal with such matters would be subject to the affirmative procedure.

Lord Jenkin of Roding: What about the circumstances where a subsequent set of regulations was introduced which might, in particular defined circumstances, impose a stiffer test? We have not yet come to Amendment No. 12 in the noble Lord's name, but as he said, under that amendment there is the first regulation, and then, under subsection (5C)(d), regulations,

Generally, I accept much of what the Minister said about the possible conflict between the two concepts, similar though they may be. I wonder whether this is yet another example of what one has seen so often in the British Government's interpretation of European directives. It has been summed up in the phrase "gold-plating"; that is, always being determined to ensure that we are holier than anyone else. We do it more thoroughly. We will never be at risk of being taken to the European Court for having fallen down. That has been a long-standing culture of government departments in this country, sometimes to the disadvantage of the subject here, when other countries do not act in quite the same way.

However, I shall look carefully at what the Minister said. Having fulfilled the Select Committee's remit to come back and check, the Minister said he would want the flexibility downwards as well as upwards, using shorthand terms, so that, in the words of the Select Committee report, the Minister is not saying that in no circumstances would criteria less strict than BAT be used. The report then said that the House may wish to see formal confirmation of this from the Minister. The Minister has not given that formal confirmation. Instead, he wanted flexibility. I do not quarrel with that. I shall study what he said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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4.45 p.m.

Lord Whitty moved Amendment No. 10:

Page 1, line 27, leave out from beginning to end of line 4 on page 2.

The noble Lord said: Amendment No. 10 and the related Amendments Nos. 13, 16, 17 and 18 meet another of the key recommendations of the Select Committee on Delegated Powers and Deregulation. Amendment No. 10 specifies which powers the Secretary of State may sub-delegate and to whom.

The power to sub-delegate certain aspects of the regulations is an essential part of the regime. It will enable, for example, an operator's permit conditions to be determined on a case-by-case basis by the regulator--aspects of which have just been touched on--rather than across the board in the regulations. Amendment No. 10, together with Amendments Nos. 13 and 18, limit the scope of the Bill to those areas mentioned in Schedule 1 to the Bill where it is necessary to sub-delegate.

To be more specific, sub-delegation would apply to the granting of permits, the imposition of permit conditions and the reviewing, varying or revoking of permits. The amendments also provide that powers may only be sub-delegated to those persons whom the Secretary of State specifies as "regulators". That would mean public or local authorities; in other words, the Environment Agency, the Scottish Environmental Protection Agency and, in certain situations, the Planning Inspectorate and the local authorities. Amendment No. 12 would make it clear on the face of the Bill that the regulations can provide for regulators to appoint suitable persons to take samples for enforcement purposes and to exercise powers of entry. That is the same power as they have under current regimes. Amendment No. 13 would also enable the Secretary of State to delegate his appellate functions. That principally applies to the planning inspectorate, as is the situation in most cases at present.

The group of amendments go all the way--if not further--to meeting the Delegated Powers and Deregulation Committee's requirements under its original critique of our Bill as originally drafted. I beg to move.

On Question, amendment agreed to.

Baroness Farrington of Ribbleton moved Amendment No. 11:

Page 2, line 11, at end insert--
("(4A) Before making any regulations under this section, the Secretary of State shall consult--
(a) the Environment Agency if the regulations are to apply in relation to England or Wales;
(b) the Scottish Environment Protection Agency if the regulations are to apply in relation to Scotland;
(c) such bodies or persons appearing to him to be representative of the interests of local government, industry and small businesses respectively as he may consider appropriate; and
(d) such other bodies or persons as he may consider appropriate.
(4B) Consultation undertaken before the passing of this Act shall constitute as effective compliance with subsection (4A) as if undertaken after that passing.")

The noble Baroness said: This amendment would place on the face of the Bill a requirement for appropriate consultation before making any regulations. We tabled a

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similar amendment at the previous Committee stage in response to one of the recommendations of the Delegated Powers and Deregulation Committee. We withdrew that amendment, however, in order to reflect upon the points made during debate and as a consequence have now included in this amendment a requirement to consult representatives of small businesses.

Throughout the development of the new pollution control system we have been consulting extensively on its implementation. We published a set of draft regulations before Christmas and in June the department will issue the fourth and final in the series of consultation papers. The DTI recently published a paper on its proposals to use the Bill to improve the offshore environmental regime. The consultation process has enabled us to maintain a broad consensus in support of the proposals under this Bill. I am happy to confirm our commitment to appropriate written consultation by moving this amendment. I beg to move.

On Question, amendment agreed.

Lord Whitty moved Amendment No. 12:

Page 2, line 12, leave out subsection (5) and insert--
("(5) The power to make regulations under this section shall be exercised by statutory instrument.
(5A) A statutory instrument containing regulations under this section, if made without a draft having been laid before, and approved by a resolution of, each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House.
(5B) No regulations to which this subsection applies shall be made (whether alone or with other regulations) unless a draft of the statutory instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.
(5C) Subsection (5B) applies to--
(a) the first regulations to be made under this section which apply in relation to England;
(b) the first regulations to be made under this section which apply in relation to Wales;
(c) the first regulations to be made under this section which apply in relation to Scotland;
(d) regulations under this section which create an offence or increase a penalty for an existing offence;
(e) regulations under this section which amend or repeal any provision of an Act.")

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

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

Lord Whitty moved Amendment No. 13:

Page 4, line 43, leave out ("and, in particular, securing") and insert--
("( ) Authorising permits to be granted subject to conditions imposed by regulators.
( ) Securing")

On Question, amendment agreed to.

19 Apr 1999 : Column 968

Baroness Farrington of Ribbleton moved Amendment No. 14:

Page 5, line 6, leave out ("Restricting") and insert ("Regulating")

The noble Baroness said: It was the noble Lord, Lord Jenkin, who moved an amendment similar to this at our earlier Committee stage. I understand that the CBI had drawn his attention to the wording in paragraph 7 of Schedule 1 which stated that the regulators could restrict the making of changes in the operation of installations. By its very nature regulation implies a degree of restriction. However, we took the point that this was a particularly negative phrase. In reality it will be very rare for a regulator to have to restrict changes by an operator. It might arise only where the operator refused outright to apply best available techniques in mitigating pollution as a result of the change. We therefore propose to replace "restricting" with "regulating". The CBI in its letter of 22nd March commented that this amendment improved on the previous one tabled by the noble Lord, Lord Jenkin. I believe that he proposed the word "controlling". I beg to move.

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