Select Committee on Delegated Powers and Deregulation Third Report



ANNEX 1

POLLUTION PREVENTION AND CONTROL BILL [HL]

Memorandum by the Department of the Environment, Transport and the Regions

This memorandum explains the proposed use of the delegated powers provisions in the Pollution Prevention and Control Bill and other matters relating to the powers.

1. CLAUSE 1 AND SCHEDULE 1

1.1  Clause 1(1) enables the Secretary of State to make provision for or in connection with regulating polluting activities and for connected purposes. Without prejudice to the generality of this power, clause 1(2) provides that the power may be used to make provision for any of the purposes listed in Part I of Schedule 1, as supplemented by Part II of that Schedule. Schedule 1 is intended to give an indication of how, in particular, the powers can be used.

1.2  Purpose: This power will be used to create a pollution control regime regulating activities which give rise to emissions into the air, water or land. The regime will implement Council Directive 96/61/EC concerning integrated pollution prevention and control (the "directive"), which requires the regulation of emissions into the air, water and land from installations carrying out the activities listed in the Directive.

1.3  The Directive covers an estimated 5,600 industrial installations. The majority of these installations are presently regulated under the regimes set out in Part I of the Environmental Protection Act 1990 (the "1990 Act"), the Integrated Pollution Control regime and the Local Air Pollution Control regime (the "Part I regimes"). There are, however, an estimated 440 processes currently regulated under Integrated Pollution Control and 11,500 processes currently regulated under Local Air Pollution Control which do not fall within the scope of the Directive. The Integrated Pollution Control regime, although similar to the regime required by the Directive in that it requires an integrated approach to be taken to the regulation of emissions to the air, water and land, does not satisfy all of the Directive's requirements. The Local Air Pollution Control regime is only concerned with emissions to the air.

1.4  The Directive could be implemented by regulations made under section 2(2) of the European Communities Act 1972 (the "1972 Act"). Such regulations could set up a new Directive regime covering the installations to which the Directive applies, leaving the Part I regimes to regulate the rump integrated pollution control and local air pollution control processes not covered by the Directive. The shift of processes from the Part I regimes to the Directive regime could be achieved under delegated powers in Part I of the 1990 Act. Thus current delegated powers are already sufficient to implement the Directive and achieve the required split between the new Directive regime and Part I regimes.

1.5  But this approach to the implementation of the Directive would produce an undesirable result. The Directive regime would apply with one set of concepts, and operate side by side with the Part I regimes, which would apply a different but similar set of concepts. This would be unnecessarily bureaucratic and confusing to both regulators and operators. The powers in clause 1(1) and (2) of the Bill will enable a single comprehensive pollution control regime to be set up, which will satisfy the requirements of the Directive and supersede the Part I regimes. It will also enable the new regime to be adapted in relation to processes currently within the Local Air Pollution Control regime so that although the central Directive concepts apply to such processes (like "Best Available Techniques") the full requirements of the Directive are not imposed upon such processes.

1.6  Reason for proposing delegated powers: The framework of the new pollution control regime is set out in the Directive and is not being duplicated in the Bill. The purpose of the Bill is to provide sufficient delegated powers to transpose this framework into our national law, to prescribe all of the necessary procedural requirements for the new regime and to apply the new regime (in some cases in a modified form) to activities not covered by the Directive, particularly to those currently regulated by the Part I regimes. These new delegated powers will avoid having to rely on existing delegated powers in section 2(2) of the 1972 Act and Part I of the 1990 Act to implement the Directive and the consequent fragmentation of pollution control regimes described above that would result from implementing the Directive in this way.

1.7  Procedure: The negative resolution procedure is proposed. In the absence of the Bill the Directive would be implemented by regulations subject to the negative resolution procedure under Part I of the 1990 Act (negative resolution only) and section 2(2) of the 1972 Act (affirmative or negative procedure). It is considered that the same procedure as would have been used to achieve that result is also appropriate for regulations under clause 1 of the Bill. In particular, although the regulations can include provisions amending Acts of Parliament, the major impact on primary legislation occasioned by the regime proposed under the Bill (the repeal of Part I of the 1990 Act—sections 1 to 28—as respects England, Wales and Scotland) is specified in the Bill itself (Schedule 3). Once the first Regulations are in force it is likely that amendments will be required from time to time to, for example, bring new descriptions of installations within the scope of the new regime. It is considered appropriate that, as under Part I of the 1990 Act, this type of amendment should similarly be subject to the negative resolution procedure.

1.8  Clause 1(4) enables the regulations made under clause 1 to make provision for anything that could be provided for by the regulations to be determined under the regulations, to contain consequential, incidental, supplementary, transitional and saving provisions, and to make different provisions in relation to different cases.

1.9  Purpose: The power to make provision for anything that could be provided for by the regulations to be determined under the regulations could be used, for example, to enable a person appointed by the Secretary of State in relation to an appeal under the Regulations to make determinations in relation to a hearing held for the purpose of determining the appeal.

1.10  The power for the regulations to contain consequential, incidental, supplementary, transitional and saving provisions will be used, for example, to make amendments to enactments which currently refer to Part I of the 1990 Act and which will need to refer to the Regulations made under the Bill. In so far as consequential amendments to and repeals of primary legislation are concerned, those which were identified before the Bill was introduced and which could be drafted in advance of the making of the Regulations under the Bill are set out in Schedules 2 and 3. In some cases, however, consequential amendments will need to make specific reference to provisions in the Regulations and will be effected by the Regulations.

1.11  The power to make different provision for different cases will be used, for example, to make different procedural requirements in relation to applications for substantive variations of permits and those for minor variations.

1.12  Reason for proposing delegated powers: To provide flexibility in setting up the new pollution control regime and to ensure that it can be effectively coordinated with other enactments.

1.13  Procedure: Negative resolution procedure.

2. CLAUSE 2(1) AND (2)

2.1  Functions under the Bill will, in relation to Wales, be transferred to the National Assembly for Wales by a transfer order under section 22 of the Government of Wales Act 1998. Clause 2(1) and (2) provide that a transfer order transferring these functions shall be subject to the negative resolution procedure rather than the affirmative resolution procedure which usually applies to such orders.

2.2  Purpose: As set out in the Explanatory Notes to the Bill, it is intended generally that the functions under the Bill will be transferred to the National Assembly for Wales in so far as they are exercisable in relation to Wales. As this matter will be before Parliament during the passage of the Bill it is considered that the subsequent transfer order effecting the transfer of the functions can proceed by way of the negative resolution procedure rather than the affirmative resolution procedure.

2.3  This paragraph has been agreed with the Welsh Office.

3. CLAUSE 4

3.1  Clause 4(3) enables the Secretary of State to bring Schedules 2 and 3 into force. Clause 4(4) provides that an order made under clause 4(3) can contain consequential, incidental, supplementary, transitional and saving provisions.

3.2  Purpose: The consequential amendments in Schedule 2 will need to be brought into force when the Regulations come into force. There will then follow a transitional period when existing installations are brought into the new regime in stages. At the end of the transitional period, when the 1990 Act regimes and references to those regimes are no longer required, the repeals set out in Schedule 3 can be effected, subject to any necessary consequential, incidental, supplementary, transitional and saving provisions.

3.3  Reason for proposing delegated powers: Because the precise timing of the introduction of the new regime and the expiry of the transitional period is not yet known it is appropriate to commence Schedules 2 and 3 by commencement order.

3.4  Procedure: No parliamentary procedure.

4. SCHEDULE 1, PARAGRAPH 20

4.1  Clause 1(2) provides that regulations under the Bill may make provision for any of the purposes listed in Part I of Schedule 1, which includes paragraph 20 of Schedule 1. Paragraph 20 lists the general purpose of making provision which corresponds to or is similar to, inter alia, provision made or capable of being made under section 2(2) of the European Communities Act 1972 in connection with the relevant directives. Under paragraph 20(2)(c) the Secretary of State can add to the list of directives which are to be "relevant directives" for the purpose of this provision.

4.2  Purpose: This provision will enable the Secretary of State to add future environmental Community directives to the list of relevant directives. The powers under the Bill will then be available to implement such directives in such a way that the new community requirements are neatly slotted into the new pollution control system and applied, for example, in modified form to analogous cases not covered by the directives.

4.3  Reason for proposing delegated powers: To enable paragraph 20 to be adapted to take account of future environmental Community directives.

4.4  Procedure: No parliamentary procedure.

Department of the Environment, Transport and the Regions
November 1998


 
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