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Lord Jenkin of Roding: I believe that the Government have (if I may use the words of the noble Lord, Lord Whitty) more than met the point that I made at the earlier Committee stage. I agree with the CBI that "regulating" is better than "controlling", and I am grateful to the Government.

On Question, amendment agreed to.

Baroness Farrington of Ribbleton moved Amendment No. 15:


Page 5, line 39, leave out ("(subject to any") and insert ("(but excepting information which under the regulations is, or is determined to be, commercially confidential and subject to any other")

The noble Baroness said: One of the concerns expressed during the debate in February was the lack of provision on the face of the Bill for the protection of commercially sensitive information from disclosure in public registers. This amendment now provides that safeguard. In ensuring that the public has access to information which affects the wellbeing of all the presumption must be that details about emissions are included as fully as possible in public registers. On rare occasions, however, it might be necessary to exclude information which the operator deemed, and the regulator agreed, was commercially confidential. The operator would have a right of appeal to the Secretary of State in cases where the regulator took a contrary view.

The provisions in our draft regulations and those published for consultation recently by the DTI for offshore installations are, to all intents and purposes, the same as those which currently apply under Section 22 of the Environmental Protection Act 1990. That provision has operated successfully in relation to the current systems and our regulations (with the safeguard provided by this amendment) will ensure that it continues to do so. I beg to move.

Lord Renton: I do not oppose this amendment, but I believe that in this context the word "commercially"

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requires some explanation. There may be a precedent for it; if so, I am not familiar with it. What does "commercially confidential" mean in these particular circumstances? The word "commercially" has a very broad meaning. Presumably, it would be something that affected the profits or losses of a company, but in the context of this amendment and Bill I should not have thought that that was an appropriate test to apply. Can the noble Baroness explain the meaning and effect of "commercially" in these circumstances?

Baroness Farrington of Ribbleton: The noble Lord asks a specific question to which I shall try to reply. I may find it necessary to write to him in order to answer the point more fully. I expect the word to mean that disclosure of information would have an adverse impact, usually in the context of competitors. However, should that explanation prove to be wrong, I shall write to the noble Lord.

On Question, amendment agreed to.

Lord Whitty moved Amendments Nos. 16 to 18:


Page 6, line 6, at end insert--
("( ) Authorising regulators to appoint suitable persons to exercise any such functions and conferring powers (such as those specified in section 108(4) of the Environment Act 1995) on persons so appointed.")
Page 6, line 32, after ("for") insert ("(or for the determination of)")
Page 7, line 5, at end insert--

("Determination of matters by regulators

. The regulations may make provision for anything which, by virtue of paragraphs 5 to 8, could be provided for by the regulations to be determined under the regulations by regulators.")

On Question, amendments agreed to.

On Question, Whether Schedule 1, as amended, shall be agreed to?

Lord Jenkin of Roding: Perhaps I may raise a question which I have not sought to signal by way of amendment. It will be within the recollection of the Committee that one of the group of amendments discussed last time concerned charges. The noble Baroness in response gave a pretty clear answer but acknowledged that the charging structure and what was supposed to be within the costs of the regulator that had to be met by charges were not as clear as they might be. The noble Baroness said that she was in discussion with the CBI (and no doubt other interest groups outside) with a view to making more explicit what was intended to be covered by the charges and what was not. At this stage all I ask is whether the noble Baroness can give a progress report on that matter. Have there been discussions; if so, have they reached a conclusion? This may be a matter to which we may wish to return on Report if the situation is as unsatisfactory as it was represented to me a couple of months ago.

Lord Renton: I should like to make a general comment on the schedule. Normally, when legislating we state the powers and principles in the clauses and leave detail to be dealt with in the schedule.

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Here, however, we have a schedule setting out the list of the purposes. Some of the schedule goes into the detail that one would expect. But we have this strange Bill in which the Secretary of State will impose secondary, subordinate legislation upon Parliament. It is stated briefly that it has power to make regulations, but the substance of the matter is for a change appearing in a schedule. I think that that is wrong.

5 p.m.

Lord Whitty: I note the concerns of the noble Lord. They are part of his general concerns about the Bill. No doubt he will move on to them when moving Amendment No. 19 which stands in his name.

Providing precisely the list of purposes and procedures that can be adopted under the Bill gives a clear, definitive idea of what the Bill covers. The noble Lord seeks clarity. I should have thought that the form of the schedule provides exactly that clarity.

In response to the noble Lord, Lord Jenkin, it is true that we indicated during an earlier stage, and have done so more publicly, that the present regime of charging, in particular in relation to the Environment Agency, requires some modification and clarification. That is not necessarily a matter for primary or secondary legislation. It will be covered by the regulations. There will be a meeting, I believe on 29th April, between my colleague Michael Meacher and the CBI on this matter. I shall therefore be in a position to update the noble Lord before we reach the next stage of the Bill.

Schedule 1, as amended, agreed to.

Clauses 2 and 3 agreed to.

Schedule 2 agreed to.

Schedule 3 [Repeals]:

Lord Renton moved Amendment No. 19:


Page 10, line 11, column 3, leave out ("Sections 1 to 28")

The noble Lord said: The purpose of the amendment--I understand that it has the support of many noble Lords in different parts of the Chamber--is to get the Government to amend and replace those vitally important sections of the 1990 Act by primary legislation, which Parliament can amend, instead of doing so merely by regulation, which we have to accept or reject and cannot amend.

I shall not trouble the Committee with all the 28 clauses of the 1990 Bill. We are at Committee stage. We have plenty of time to consider the matter further. However, in passing I should mention that Section 23 of the 1990 Act sets out a list of criminal offences. It is most unusual to create criminal offences by regulation. They nearly always go, and rightly so, into primary legislation. However, there are many other reasons why we should not, in a sweeping way, repeal primary legislation which is of national importance. It affects the health and well being of our people; and has to be dovetailed with the European directive.

I have been in Parliament for 53 years, in the other House and then this place. This is the most far reaching example of legislation by reference replacing primary legislation. There is no precedent for doing so on this scale of which I know except in time of war; and that

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did not happen in the past 53 years. In wartime of course emergencies have to be dealt with in a ruthless way. But we are not dealing with that situation. Why are the Government making provision in this unconstitutional and unusual way instead of in a way that preserves the sovereignty of Parliament?

If we amend the Bill now by striking out the repeal of those 28 sections, the Government can either table the necessary amendments at Report stage or before the Bill reaches another place; or completely rewrite them if they think that that would make clearer law which users of the statute--millions of people will be affected by it--would understand more clearly.

The Bill is a piece of complicated legislation by reference which has no finality because even then we have to go by the regulations that we shall not be able to amend. It is really bad.

I hope that the Committee will agree that we should strike out the repeal of those 28 sections of the 1990 Act. I hope that the Government will show themselves willing to replace them by primary legislation at a later stage of the Bill. I beg to move.

Lord Jenkin of Roding: I support my noble friend on this far reaching amendment. I hope that the Committee will mark its displeasure at the way in which the Government have handled the Bill from the outset. They have made stout efforts to amend the earlier errors, but, as we said earlier, they should never have embarked down this unconstitutional road.

The Select Committee, in a phrase which has been referred to in the debates, said that it would not wish this Bill to be regarded as a precedent for the future. One knows that those words have frequently been uttered on previous occasions in all kinds of contexts. It is a pious hope. Whitehall will recognise that the noble Lord, Lord Whitty, has had a fairly uncomfortable time. He has done well to have achieved as much as he has. Nevertheless, once Whitehall sees that it can legislate in this way it will not pay too much attention to that.

If we were to send the Bill to another place having removed the repeal of the first 28 clauses of the 1990 Act, it would bring it home to Ministers, and perhaps even more to their advisers, that this was an inadvisable way to proceed. We shall listen to what the Minister says, but I hope that at the end of the debate my noble friend will feel that it might be right to press the amendment to a Division.


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