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Lord Dixon-Smith: My Lords, once again, I am grateful to the noble Lord, Lord Livsey, for his participation and to the Minister for his response. He has replied very specifically as regards the amendments without considering the totality of the package I tried to portray and which we shall face

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when we have completed debate on the Bill. The Minister, or his civil servants, are going to face a very complex and invidious task as time progresses in consideration of the Bill. The complexity of their task will be caused because of the way in which the Bill is constructed at present. I shall study the Minister's reply, as I shall his subsequent remarks, when considering what further action I may need to take. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 3:

    Page 2, line 7, leave out subsection (5).

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 5 and 70. The second report of the Select Committee on Delegated Powers and Regulatory Reform accepted the reasoning put forward by the department as to why it is necessary for the Bill to leave so much to delegated legislation. However, it considered that there must be an opportunity for debate on the way in which the wide powers conferred by the Bill will be used and therefore that the first regulations applying to England and made under Clause 6, which refers to borrowing and banking of landfill allowances, Clause 7, which relates to trading and other transfer of landfill allowances, and Clause 10, dealing with scheme regulations, should be subject to the affirmative procedure.

The proposed amendments to Clause 26 would give effect to this recommendation and also make similar provisions for Scotland and Northern Ireland. Where regulations are made under a mixture of powers—some subject to the affirmative procedure and some subject to the negative procedure—the regulations would be need to be subject to the affirmative procedure. In case the noble Lord, Lord Livsey, is about to ask, it is not necessary to set out affirmative procedures for Wales in the Bill as they are set out in the Government of Wales Act 1998.

I understand that the noble Lord, Lord Livsey, wishes to speak to his Amendment No. 71 to our Amendment No. 70. I shall listen to what he says and reply at the end of the debate. I beg to move.

Lord Livsey of Talgarth: My Lords, I thank the Minister for referring to Amendment No. 71. With the leave of the House, I hope it will be possible to discuss it in due course; it is an important probing amendment to see whether government Amendment No. 70 contains a number of loopholes. This is an important group of amendments. I accept what the Minister said about the Government's response to the first and second reports of the Select Committee on Delegated Powers and Regulatory Reform.

The first report expressed general concern at the extent of delegated legislation in the Bill. The Government responded that that was due to the need to delegate much of the operational material to Scotland, Wales and Northern Ireland and so the English powers also had to be made by statutory instruments.

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The second report suggested a way forward: to make the first regulations in England subject to the affirmative procedure so that they were subject to at least a degree of scrutiny before coming into force. We agree with that suggestion. Amendment No. 70 makes all those provisions but in a slightly roundabout way. Amendments Nos. 3 and 5 remove some provisions for affirmative procedures which are then replaced under Amendment No. 70.

Our probing Amendment No. 71 is slightly technical. Government Amendment No. 70 refers to the first regulations to be made under Clauses 6, 7 and 10. However, it is likely that several different sets of regulations will have to be made under at least some of those clauses. Clause 6(3) at the bottom of page 4 has 10 paragraphs, (a) to (j), each of which may require separate regulations. If one reads that, one can see what I am driving at. There are similar long lists under Clause 7(3), which has 12 paragraphs—(a) to (l)—and Clause 10(2), which has seven more. Amendment No. 71 therefore refers to no fewer than 29 different matters.

The first regulations under Clause 6 could and probably will refer only to one or to a small number of these matters. That would leave all the other matters under Clause 6 to be dealt with by subsequent regulations. Government Amendment No. 70 might allow these subsequent regulations to be made by the negative procedure. That would clearly go against the Select Committee's wishes. This is the basic issue to be probed. I am sure that the Minister will want to address these points. We may return to the matter at Third Reading if it is not resolved to our satisfaction.

4.45 p.m.

Lord Dixon-Smith: My Lords, the noble Lord, Lord Livsey, has raised an important point about Amendment No. 70. Like him, we are interested to see whether it fully covers the situation raised by the Delegated Powers and Regulatory Reform Select Committee. I confess that we have not yet had time to study its implications throughout the Bill, but I shall be interested to hear the Minister's response because it is a worrying matter. This is a skeleton Bill and the regulatory powers are therefore considerable.

It would be true to say that the Bill cannot be implemented because all the executive clauses in the Bill require and depend on regulation. It is therefore important that, if possible, we should meet the requirements of the Select Committee because it gives us good advice and by precedent—although precedents are dangerous because one can always create subsequent ones—we try to comply with its recommendations.

Lord Whitty: My Lords, as both noble Lords indicated, we have complied with the Delegated Powers and Regulatory Reform Committee's recommendations by tabling what the noble Lord, Lord Livsey, rightly identified as the main Motion—Amendment No. 70. Amendment No. 71 would

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require all subsequent changes to the initial regulations, however minor, to be subject to the negative procedure.

Behind the amendment is an anxiety that the initial regulations would not necessarily be substantive. If we look at the areas covered by the clauses to which Amendment No. 70 applies, those regulations would have to be in place at the beginning to operate the trading scheme and the borrowing and banking of landfill allowances and so forth under Clauses 6, 7 and 10.

Although the noble Lord, Lord Livsey, is correct to say that there are a number of paragraphs under the clauses, they would all need to be regulated at the beginning of the scheme. Therefore, the first regulations would need to be comprehensive and substantive. Changes thereafter would be of a relatively minor and technical nature and would normally be dealt with by the negative procedure.

I hope that the noble Lord is reassured that, in complying with the Select Committee's recommendations, we are meeting the substantive point that the issues involved should be subject in principle to the affirmative procedure. Subsequent regulations could be dealt with by the normal negative procedure. I hope that that explanation is sufficient to convince the noble Lord not to press Amendment No. 71.

On Question, amendment agreed to.

Clause 2 [Non-target years]:

[Amendment No. 4 not moved.]

Lord Whitty moved Amendment No. 5:

    Page 2, line 24, leave out subsection (5).

On Question, amendment agreed to.

Clause 3 [Non-target years: default rules]:

[Amendment No. 6 not moved.]

Lord Dixon-Smith moved Amendment No. 7:

    Page 3, line 22, after "2004" insert ", for which the figures gathered in the financial year ending 5th April 2004 shall stand,"

The noble Lord said: My Lords, when we discussed this part of the Bill in Grand Committee, there was general agreement that there was a potential problem. The key date from the point of view of the European directive is the July date on which the directive came into force, which is set out in the Bill. It has no other validity or relationship to anything else.

When we discussed how to record a waste disposal year, there was general agreement that local authorities in this country operate to a financial year from the beginning of April to the end of March. That is how we run our national accounts and everything else. All recording systems are based on that.

The purpose of the amendments is to put formally on the face of the Bill the fact that, preceding that date in July, the waste disposal year ended on 5th April along with local government and national practice. Therefore, we will not have to devise a new accounting year specifically to meet the European directive that

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consists of a period a little short of nine months from one financial year and three months and 17 days of another. That would be administrative nonsense, which we should be able to avoid.

In Grand Committee, the Government accepted that principle and said that we should be able to find a way around the issue. Therefore, I have tabled the amendment in the hope that it might be the solution. However, I am ever the pessimist and I shall not be disappointed, but I may be surprised.

For waste disposal authorities across the country this is a small but important point. It would be most welcome if the Government could accept this or indicate how they intend to meet the problem. I beg to move.

Lord Livsey of Talgarth: My Lords, we support these amendments, for the reasons given by the noble Lord, Lord Dixon-Smith.

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