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Lord Whitty: My Lords, as I said, the regulations on the general part of the Bill are extant and a number of your Lordships will have seen them. The draft regulations in relation to the offshore position will be published in the next month and we expect the full process to be completed within three months. The Bill will be on the statute book, it is hoped, prior to that and we will therefore have fulfilled our commitment in relation to the EU dimension to transpose the legislation by 30th October, provided your Lordships agree my position tonight.

Lord Jenkin of Roding: My Lords, this Bill started off on its stony passage to reaching Royal Assent

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with perhaps the most damaging report the Delegated Powers and Deregulation Committee has ever produced. And here we are, at the final stage in this House considering the Commons amendments and we still find ourselves complaining bitterly that we are having to examine this Bill without some essential pieces of information.

The noble Baroness on the Front Bench shakes her head. But nobody has seen a draft of the measures of appeal that her noble friend said a moment ago were under consideration by the department.

Baroness Farrington of Ribbleton: My Lords, for the record, I was not shaking my head; I was losing my spectacles.

Lord Jenkin of Roding: My Lords, I hope the noble Baroness has replaced her spectacles satisfactorily, but she certainly misled me.

I accept that the noble Lord, Lord Whitty, in all good faith is assuring us that there will be an appropriate right of appeal for the companies of the industry affected by this legislation. I accept entirely the points he made about the specific application to this clause--of course we cannot have appeals taking place if emergency action has to be taken in the case of a serious accident.

But I am sure the noble Lord realises the procedural constraints that were upon me in deciding how best to raise this matter at this final last gasp of the Bill. The only thing I could do was seek to amend a Commons amendment. No other amendment would be appropriate, so I have done that here. It is obviously in order because I have been allowed to table and speak to my amendment.

We still do not know what the right of appeal will be. The Minister made it clear that it will not be the same as the right that applies to the generality of industry. The particular circumstances and statutory framework of the offshore oil and gas industry may make that inevitable, but I protest that we are asked to approve amendments without that crucial information. The Minister may not have taken part personally in the negotiations with the oil and gas industry but I am sure that his colleagues in the DTI have told him that there have been lengthy negotiations and that the question of appeal has been raised again and again, yet still we do not know what is to happen.

This is the last chapter in what has been one of the most chequered pieces of legislation introduced by any government for many years. Obviously it is not appropriate to divide the House at this stage. I am sorely tempted but I fear that other distractions may make doing so rather pointless. In the circumstances, I have no option but to beg leave to withdraw the amendment; but I tell the Government Front Bench that I do so in a spirit of considerable protest.

Amendment No. 1A, as an amendment to Commons Amendment No. 1, by leave, withdrawn.

On Question, Motion agreed to.

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COMMONS AMENDMENT

2

After Clause 2, insert the following new clause--

TIME-LIMITED DISPOSAL OR WASTE MANAGEMENT LICENCES

(" .--(1) Where--
(a) a disposal licence under section 5 of the 1974 Act became a site licence by virtue of section 77(2) of the 1990 Act (conversion, on the appointed day, of existing disposal licence under section 5 of the 1974 Act into a site licence),
(b) the licence has expired at a time ("the time of expiry") falling before the day on which this Act is passed but not earlier than the appointed day,
(c) the licence authorised the carrying on of activities in or on land in England or Wales, and
(d) relevant activities have taken place at a time falling not more than one year before the day on which this Act is passed,
the licence shall (subject to subsection (7)) for all purposes be deemed not to have expired but to have become, at the time of expiry, a site licence continuing in force in accordance with section 35(11) of the 1990 Act.
(2) Subsection (3) applies where--
(a) a disposal licence under section 5 of the 1974 Act expired at a time ("the time of expiry") falling before the appointed day (so that it was not converted into a site licence by section 77(2) of the 1990 Act),
(b) the licence authorised the carrying on of activities in or on land in England or Wales, and
(c) relevant activities have taken place at a time falling not more than one year before the day on which this Act is passed.
(3) The licence shall (subject to subsection (7)) for all purposes be deemed--
(a) not to have expired, and
(b) to have been subsisting on the appointed day and (accordingly) to have become on that day a site licence by virtue of section 77(2) of the 1990 Act,
and the site licence which the licence is deemed to have become on that day shall for all purposes be deemed to have been one that continues in force in accordance with section 35(11) of the 1990 Act.
(4) Where--
(a) a site licence in force immediately before the day on which this Act is passed--
(i) became a site licence by virtue of section 77(2) of the 1990 Act, and
(ii) will expire on or after the day on which this Act is passed (if it has not previously been revoked entirely, or had its surrender accepted, under Part II of the 1990 Act), and
(b) relevant activities have taken place at a time falling not more than one year before that day,
the licence shall for all purposes be deemed to have become at the beginning of that day a site licence continuing in force in accordance with section 35(11) of the 1990 Act.
(5) Where subsection (1), (3) or (4) has effect in relation to a licence, the terms and conditions of the licence as continued in force by that subsection shall, except so far as providing for the expiry of the licence and subject to subsection (6)(b) and (c), be such as were in force immediately before the relevant time (unless and until varied under Part II of the 1990 Act); and "the relevant time" means--
(a) where subsection (1) or (3) has effect in relation to a licence, the time of expiry;
(b) where subsection (4) has effect in relation to a licence, the beginning of the day on which this Act is passed.

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(6) Where subsection (1) or (3) has effect in relation to a licence (but without prejudice to the generality of that subsection)--
(a) activities carried out during the interim period which (by virtue of subsection (1) or (3)) become authorised by the licence shall be treated as authorised at the time they were carried out (even though at that time their being carried out amounted to a contravention of section 33(1)(a) or (b) of the 1990 Act or section 3(1) of the 1974 Act);
(b) anything done in relation to the licence before the time of expiry but purporting to take effect after that time (such as the serving of a notice under section 37(4) or 38(12) of the 1990 Act, or in pursuance of section 7 of the 1974 Act, specifying a time falling during or after the interim period) shall be treated as having had (or having) effect as if the licence had not in fact expired;
(c) anything which during the interim period purported to be done in relation to the licence (such as a modification of the licence or the revocation, suspension, transfer or acceptance of the surrender of the licence or the carrying out of consultation, exercise of functions under section 9 of the 1974 Act or section 42 of the 1990 Act, imposition of requirements during a suspension or bringing or determination of an appeal) shall be treated as having had effect as if the licence had then been in force;
(d) any fees which (by virtue of subsection (1) or (3)) are treated as having become payable before the passing of this Act shall be taken to have become payable at the time they would have become payable had the licence not in fact expired; and
(e) the holder of the licence shall be treated as having been, during the interim period, an authorised person for the purposes of section 34(1)(c) of the 1990 Act.
(7) Where subsection (1) or (3) has effect in relation to a licence, a person shall not be guilty of an offence under section 33(6) or 38(10) or (11) of the 1990 Act as a result of anything done or omitted to be done during the interim period becoming (by virtue of subsection (1) or (3)) a contravention of any condition of the licence or (as the case may be) a failure to comply with any requirement imposed under section 38(9) of the 1990 Act.
(8) Nothing in this section affects any criminal proceedings which have been concluded before the passing of this Act.
(9) The waste regulation authority (within the meaning given by section 30(1) of the 1990 Act) shall notify the holder of a licence affected by this section of the fact that the licence is so affected and of how it is so affected.
(10) For the purposes of this section "relevant activities", in relation to a licence, are--
(a) any activities authorised by the licence or, in the case of an expired licence, any which would have been authorised by it had it not expired, and
(b) any precautions or works required by the licence to be taken or carried out in connection with or in consequence of those activities or, in the case of an expired licence, any which would have been so required had the licence not expired.
(11) In this section--
"the 1974 Act" means the Control of Pollution Act 1974;
"the 1990 Act" means the Environmental Protection Act 1990;
"the appointed day", in relation to a licence, means the day which in relation to that licence is (or would have been if the licence had not previously expired) the relevant appointed day for licences (within the meaning of section 77 of the 1990 Act);
"the interim period", in connection with a licence in relation to which subsection (1) or (3) has effect, means the period beginning with the time of expiry and ending immediately before the day on which this Act is passed;
"site licence" has the same meaning as it has in Part II of the 1990 Act by virtue of section 35(12) of that Act.").

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Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2 and, with the leave of the House, I shall speak also to Amendments Nos. 15, 16 and 17.

Amendment No. 2 creates another clause to deal with a problem that has come to light--that a number of waste management licences carried forward from the Control of Pollution Act 1974 were time limited and in some cases the time limits have expired without either the licence holder or the environment agencies being aware of it. The amendments remove the threat of prosecution from businesses that have in good faith been disposing of waste in the belief that they held a valid waste management licence and those who in good faith asked them to dispose of their waste.

The amendments will provide protection for the holders of expired licences and for the environment by ensuring that the licence surrender provisions of the Environmental Protection Act 1990 apply to time-limited licences issued under the 1974 Act. It may be helpful if I explain the amendments and their effects.

One of the deficiencies of the waste licensing system originally introduced under the 1974 Act was that those who held licences for waste operations, such as landfill sites, could hand in their licences and walk away from their responsibilities. In line with the polluter pays principle, that deficiency was rectified in the revised licensing system introduced under Part II of the 1990 Act. That Act provides that a site licence remains in force until it is revoked or a surrender application is accepted by the environment agencies. It precludes the agencies from accepting surrender applications unless they are satisfied that environmental pollution or harm to human health is unlikely to occur.

Licences issued under the 1974 Act were subject to the transitional provision in Section 77 of the 1990 Act which did two things. One was to state that licences were to be treated as 1990 Act licences until they expired. The other was to state that they may be surrendered only in accordance with the 1990 Act. It is clearly anomalous to require a licence holder to apply to the environment agencies to surrender a site licence while the time limit remains in force but to allow the holder to walk away from his responsibilities when the time limit expires.

A review undertaken by the Environment Agency revealed that a number of 1974 Act licences were subject to time limits and in some cases the licences have expired without either the agency or the operator being aware of it. It is a criminal offence to operate sites without a licence. However, the sites continued to be operated by the licence holders and supervised by the agency as if they had valid licences.

The amendments serve two main purposes. First, they will validate what has happened since the expiry of licences that have already expired, including removing the threat of prosecution for site operators and those who transferred waste to them in good faith. Secondly, they will ensure that all licences--those that have expired and those that are subject to time limits and will expire in the future--are subject to the surrender provisions of the 1990 Act. That means removing the

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time limits in licences that have not yet expired. That will ensure that the environment and human health are properly protected in line with the polluter pays principle.

Those objectives could not be achieved if, on the basis of time limits originally set under the 1974 Act, the operators of landfill sites and toxic waste treatment plants could now walk away from their responsibilities. In the Government's view, it is essential to remove those time limits to ensure that the environment and human health are properly protected--while at the same time protecting the interests of those who may inadvertently have been operating without legislative backing.

We all regret the need for those provisions. The situation has only come to light since the Bill was drafted.

Moved, That the House do agree with the Commons in their Amendment No. 2.--(Lord Whitty.)

6.45 p.m.

Lord Renton: My Lords, I will avoid commenting on the substance--tempting though it is; I have two relatively minor points to make on the drafting.

The side note refers to,


    "Time-limited disposal or waste management licences".

Surely the word "of" should be "or". Secondly, subsection (11) of the proposed new clause states that references to the 1974 Act mean the Control of Pollution Act 1974. There is a similar explanation in respect of the Environmental Protection Act 1990 and a definition of "the appointed day" and other phrases.

The Bill already has two definitions in Clause 5(2). Surely it would be more usual for all those definitions to be placed in one clause, instead of being separated, as they are by the new clause. I suppose it is too late to put the matter into a state of tidy order. I feel bound to point out that that is not the way we usually legislate.


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