Select Committee on Delegated Powers and Deregulation Ninth Report


ANNEX 1

Pollution Prevention and Control Bill [HL]

Letter to the Chairman from Lord Whitty, Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions

I wrote to you on 21 January explaining how I proposed to respond to the Third Report of the Select Committee on Delegated Powers and Deregulation which concerned the Pollution Prevention and Control Bill. I would like now to invite the Committee to consider some further changes to the Bill which I propose to make.

During the Committee stage debate on the Bill, concern was expressed from all sides that the amendments and arguments which I put forward in response to the suggestions in the Third Report did not adequately address the concerns of the Select Committee. I have, therefore, tabled today a fuller package of amendments, which I enclose, and I think it would be helpful to the House's consideration of the Bill at the Report stage if the Select Committee were to give its views on the Bill if these amendments were to be made.

I am also enclosing a supplementary memorandum which explains the purpose of each amendment. It might be useful, though, if I summarised how the amendments relate to the suggestions in paragraphs 7 and 8 of the Select Committee's Third Report.

WHETHER THE LEGISLATION SHOULD BE LIMITED TO MATTERS PROVIDED IN SCHEDULE 1.

Amendments 1, 2 and 3 would achieve this. They would limit the scope of the Bill's provisions to setting up a permit regime to regulate the operation of installations and plant, and would maintain the power to establish standards, objectives or requirements or make plans relating to emissions, currently set out in section 3 of the 1990 Act.

WHETHER THERE SHOULD BE A CLEAR INDICATION OF THE AMBIT OF POWERS WHICH MAY BE DELEGATED.

Amendment 6 removes the general power to sub-delegate. Amendments 9, 12, 13 and 14 then reinstate provision for sub-delegation to only those matters where it is necessary for the proper function of the regime.

Amendments 9 and 14 maintain the flexibility of the regulator to grant permits, impose permit conditions, and review, vary or revoke permits on a case by case basis; a fundamental tenet of the current system. Amendment 12 would make it clear that the regulations can provide for the delegation to suitable persons of powers of entry as enforcing authorities can do under the current regimes. Amendment 13 would enable the Secretary of State to delegate his appellate functions to enable most appeals to continue to be determined by the Planning Inspectorate.

WHETHER THE CATEGORIES OF PERSON TO WHOM POWERS CAN BE DELEGATED UNDER THE REGULATIONS TO DETERMINE MATTERS WHICH COULD HAVE BEEN PROVIDED IN THE REGULATIONS SHOULD BE SPECIFIED.

Amendment 14 restricts the category of person to whom powers can be sub-delegated to the 'regulators' specified by the Secretary of State, which, by virtue of paragraph 2 of Schedule 1 is limited to public or local authorities or the Secretary of State himself.

WHETHER THE LEGISLATION SHOULD PROVIDE IN TERMS THAT PERMIT CONDITIONS AND REGULATIONS SHOULD ALWAYS BE BASED ON THE USE OF THE 'BEST AVAILABLE TECHNIQUES' INCLUDING COST/BENEFIT ASSESSMENTS AS THE EXPLANATORY NOTES CONTEMPLATE.

It is not possible, within the terms of the EC Directive, to accept this suggestion. There are circumstances where a regulator must impose permit conditions which are more stringent than those based on 'best available techniques' (BAT). For example, where there is likely to be a breach of an EC environmental quality standard. This selective application of BAT is not dissimilar to the provisions in the Environmental Protection Act 1990 Act that enable some conditions to be excluded from its 'best available techniques not entailing excessive cost' (BATNEEC) requirements. Nevertheless the concept of BAT with the associated balancing of costs and benefits will remain at the heart of the new regime and will apply in the vast majority of cases.

WHETHER THE BILL SHOULD PROVIDE THAT NO REGULATION SHOULD BE MADE WITHOUT PROPER CONSULTATION.

Amendment 7 would put on the face of the Bill a requirement to consult the appropriate bodies and individuals before making any regulations under the Bill. It is similar to an amendment which I tabled at Committee stage but withdrew in order to reflect upon the points which had been made during the debate. In view of that debate, I have added representatives of small businesses to the list of those to be consulted.

IN THE FIRST INSTANCE OF THEIR USE, THE REGULATIONS SHOULD BE SUBJECT TO THE AFFIRMATIVE PROCEDURE...ANY SUBSEQUENT REGULATIONS WHICH CREATE NEW OFFENCES, OR INCREASE PENALTIES FOR OFFENCES CREATED UNDER THE INITIAL REGULATIONS, SHOULD BE GOVERNED BY THE AFFIRMATIVE PROCEDURE...ANY REGULATIONS WHICH AMEND OR REPEAL AN ACT OF PARLIAMENT SHOULD BE SUBJECT TO AFFIRMATIVE PROCEDURE.

Amendment 8 is a modified version of an amendment which I withdrew at Committee stage and now meets all of the Committee's procedural suggestions.

Also included in this package of amendments are four which address other points raised during the Committee debate.

Amendments 4 and 5 provide greater clarification of the definition of environmental pollution, by introducing the concept of 'harm' which is similar to the definition of pollution in the Directive and in the 1990 Act. Amendment 10 would amend 'restricting' to 'regulating' in the context of the regulator's powers over changes to an installation and makes clear that the regulator's role is not always one of prohibiting change. Amendment 11 would make clear on the face of the Bill that the regulations will include provision for the exemption of certain information from public registers which is deemed to be commercially confidential.

Amendment 9 makes it clear that permits may be granted subject to conditions imposed by regulators on a case by case basis as well as subject to any general conditions set out in the regulations.

I am copying this letter and its attachments to the members of the Select Committee on Delegated Powers and Deregulation and to Lord Dixon-Smith, Lord Jenkin of Roding, Lord Peyton of Yeovil, Baroness Hamwee, Baroness Byford, Lord Renton, Lord Lucas, Lord Simon of Glaisdale, Lord Shepherd, Lord Harris of Greenwich, The Countess of Mar, and Lord Luke.

8 March 1999

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

This memorandum supplements one submitted by the Department on 30 November 1998 and follows from the Select Committee's Third Report dated 16 December 1998. It explains how proposed Government amendments to the Pollution Prevention and Control Bill would change the way powers are delegated.

Purpose of the Bill

  1. The Bill would be used to implement European 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.
  2. The majority of these installations are presently regulated under the Integrated Pollution Control regime and the Local Air Pollution Control regime, established under Part I of the Environmental Protection Act 1990 (the '1990 Act'). The Bill will provide for a new system of pollution control to be set up by regulation which will both implement the Directive and supersede the regimes in Part I of the 1990 Act. This will ensure that in satisfying the requirements of the Directive a coherent and consistent pollution control system is maintained.

Amendments 1 to 5

  1. Clause 1(1) and 1(2) enable the Secretary of State to make provision for or in connection with regulating polluting activities. Amendments 1, 2 and 3 would limit this regulation making power to matters listed in Schedule 1 of the Bill. This would limit the scope of the Bill's provisions to setting up a permit regime to regulate the operation of installations and plant (in addition, the power to establish standards, objectives or requirements or make plans relating to emissions, currently set out in section 3 of the 1990 Act, will be carried forward into the Bill). Amendments 4 and 5 go on to provide greater clarification of the definition of environmental pollution, by introducing the concept of 'harm' which is similar to the definition of pollution in the Directive and in the 1990 Act. In order to be able to implement the Directive fully, the Bill's definition could not be any narrower than the Directive definition. However, the provision in paragraph 21 of Schedule 1 would enable the application of the regulations to be narrowed to certain types of pollution in certain cases.

Amendments 6, 9, 12, 13 and 14

  1. Clause 1(4)(a) currently makes provision for anything that could be provided for by the regulations to be sub-delegated to persons determined by the Secretary of State. The power to sub-delegate certain aspects of the regulations is an essential element of the system which enables, for example, an operator's permit conditions to be determined on a case by case basis. Amendments 6, 9 and 14 limit the scope of this power to those areas mentioned in Schedule 1 where it is necessary to sub-delegate. Sub-delegation would apply to paragraphs 5 to 8 of the Schedule, which cover the granting of permits, the imposition of permit conditions, and the reviewing, varying or revoking of permits. The amendments also restrict the power to sub-delegate to those persons whom the Secretary of State specifies as 'regulators' (public or local authorities or the Secretary of State - see paragraph 2 of Schedule 1).
  2. Amendment 12 would make it clear on the face of the Bill that the regulations can provide for the power in section 108 of the Environment Act 1995 (appointment of suitable persons to exercise powers of entry) to be available to regulators under the new regime as it is available to enforcing authorities under the regimes in Part I of the 1990 Act. Amendment 13 would make it clear that the power of the Secretary of State to delegate his appellate functions under section 114 of the 1995 Act applies to the new regime as it applies to the existing 1990 Act regimes. Most appeals made to the Secretary of State under Part I of the 1990 Act are currently delegated to be determined by the Planning Inspectorate and it is proposed that this should continue under the new system.

Amendment 7

  1. Amendment 7 would put on the face of the Bill a requirement to consult the appropriate representatives of industry, small businesses, regulators or other bodies, before making any regulations under the Bill.

Amendment 8

  1. Amendment 8 deals with the procedure for making the regulations. It would mean that the regulations would be subject to the affirmative procedure when they were first made. Affirmative procedure would also apply to any new regulations or amendments to the regulations which create new offences or increase penalties for offences or which amend primary legislation.

Amendments 10 and 11

  1. Amendment 10 would amend 'restricting' to 'regulating' in the context of the regulator's powers over changes to an installation. This addresses a concern raised during the Committee stage of the Bill and makes clear that the regulator's role is not always one of prohibiting change. In fact, this will very rarely be the case.
  2. Amendment 11, which also addresses a concern raised during the Committee stage of the Bill, would make clear on the face of the Bill that the regulations will include provision for the exemption of certain information from public registers which is deemed to be commercially confidential.

Department of the Environment, Transport and the Regions

8 March 1999


Amendments proposed to be moved on Report by the Lord Whitty

Clause 1

Amendment No.

1  Page 1, line 5, leave out from ("make") to ("provision") in line 11

2  Page 1, line 12, at end insert—

  ("(2A) The powers of the Secretary of State under subsection (1) shall be exercisable—

    (a)  for or in connection with regulating activities which are capable of causing any environmental pollution; or

    (b)  otherwise for or in connection with the prevention or control of emissions capable of causing any such pollution.")

3  Page 1, line 13, leave out ("(1)") and insert ("(2A)")

4  Page 1, line 19, after ("land") insert ("which may give rise to any harm")

5  Page 1, line 25, at end insert—

  ("( ) In the definition of "environmental pollution" in subsection (3), "harm" means—

    (a) harm to the health of human beings or other living organisms;

    (b) harm to the quality of the environment, including—

          (i) harm to the quality of the environment taken as a whole,

          (ii) harm to the quality of the air, water or land, and

          (iii) other impairment of, or interference with, the ecological

          systems of which any living organisms form part;

    (c) offence to the senses of human beings;

    (d) damage to property; or

    (e) impairment of, or interference with, amenities or other legitimate uses of the environment (expressions used in this paragraph having the same meaning as in Council  Directive 96/61/EC).")

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

7  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.")

8  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.")

Schedule 1

9  Page 4, line 43, leave out ("and, in particular, securing") and insert

  ("( ) Authorising permits to be granted subject to conditions imposed by regulators.

  ( ) Securing")

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

11  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")

12  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[9]) on persons so appointed.")

13  Page 6, line 32, after ("for") insert ("(or for the determination of)")

14  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.")


9   1995 c. 25 Back


 
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