Select Committee on Delegated Powers and Regulatory Reform First Report


Annex 3

Waste and Emissions Trading Bill [HL]

Memorandum by the Department for the Environment, Food and Rural Affairs

INTRODUCTION

The Waste and Emissions Trading Bill was introduced into the House of Lords on 14 November 2002. This Memorandum:

  • Summarises the main provisions of the Bill;
  • Identifies the delegated powers in the Bill and describes the purpose and proposed use of those powers;
  • Explains why matters have been dealt with by creating delegated powers;
  • Explains the degree of Parliamentary control on the exercise of those powers.

MAIN PROVISIONS

The Waste and Emissions Trading Bill contains 35 clauses and no Schedules. The main provisions of the Bill are:

PART 1

Chapter 1 of Part 1 of the Bill is intended to give legal effect to the obligations imposed by article 5(1) and (2) of the Landfill Directive.[3] The aim of article 5(1) and (2) is to reduce the amount of biodegradable waste which is sent to landfills.

Chapter 1 requires the Secretary of State to specify the maximum amounts of biodegradable municipal waste which may be sent to landfills from the whole of, and from each country of, the UK in the target years specified by the Landfill Directive[4]. She may also specify the maximum amount of biodegradable municipal waste that may be sent to landfills from each country of the UK in years that are not target years under the Landfill Directive.

Chapter 1 then sets out the framework for a landfill allowance scheme. Each allocating authority (the Secretary of State for England, the Scottish Ministers for Scotland, the National Assembly for Wales and the Department of the Environment for Northern Ireland) is required to allocate allowances to waste disposal authorities in its area. An allowance authorises a waste disposal authority to send to landfills, in the year for which the allowance is allocated, the amount of biodegradable municipal waste covered by the allowance. Waste disposal authorities are under a duty not to exceed their allowances. The details of the landfill allowances scheme will be established in subordinate legislation made by the appropriate authority in each country of the UK.

Chapter 1 also requires the appropriate authority for each country of the UK to have a strategy for the reduction of the amount of biodegradable waste sent to landfills.

Chapter 2 of Part 1 of the Bill provides for the National Assembly for Wales to make regulations requiring local authorities in Wales to have a strategy for the management of waste and to provide information about waste.

PART 2

Part 2 of the Bill relates to the emissions trading schemes which may be set up in the future under the Pollution Prevention and Control Act 1999 ('the PPC Act'). The Bill amends the PPC Act to allow such schemes to provide for automatic financial penalties for non compliance.

This Part also provides for the enforceability of penalties, including fixed financial penalties, in the current non-statutory UK Emissions Trading scheme.

OVERVIEW OF THE DELEGATED POWERS

PART 1

CHAPTER 1

Powers are delegated to the Secretary of State to make regulations specifying the amount of biodegradable municipal waste which may be sent to landfills from the whole of, and from each country of, the UK in target years. The amounts specified must be consistent with the UK's obligations under the Landfill Directive. She may also, by agreement with the appropriate authority for each country of the UK, make regulations specifying the amounts of biodegradable municipal waste which may be sent to landfills from each country of the UK in a scheme year that is not a target year.

The Bill provides an allocating authority with the power to make regulations setting out the detailed requirements of how the landfill allowance scheme will operate in its country. Such regulations may make provision for the banking, borrowing and trading of landfill allowances.

The Bill also provides an allocating authority with a power to make regulations regarding the monitoring of the scheme. Each allocating authority must appoint a monitoring body for its area and may make regulations regarding the information and records which waste disposal authorities and landfill operators are required to maintain.

CHAPTER 2

Chapter 2 applies to Wales only and provides the National Assembly for Wales with powers to make regulations requiring local authorities to have a strategy for the management of waste and to supply it with information about waste in relation to its area.

PART 2

Part 2 adds to the purposes for which regulations under section 2 of the PPC Act may make provision by allowing regulations to authorise the inclusion of penalties for contravention of the provisions of schemes for trading of emissions quotas.

GENERAL PRINCIPLES OF DELEGATED POWERS UNDER THE BILL.

LANDFILL

Powers are delegated under the Bill to:

  • The Secretary of State in relation to the whole United Kingdom and as the allocating authority for England;
  • The Scottish Ministers as the allocating authority for Scotland;
  • The National Assembly for Wales as the allocating authority for Wales; and
  • The Northern Ireland Department of the Environment as the allocating authority for Northern Ireland.

In considering whether matters should be specified on the face of the Bill or allocated to delegated legislation, the Department has had regard to the need:

  • to reflect the fact that although the Bill extends to the whole of the UK, environmental protection is generally a devolved matter. Therefore it is considered appropriate for the details of the landfill allowance scheme to be established in regulations by the appropriate authority for each country of the UK;
  • to ensure flexibility in the legal framework to allow for, in particular, amendments to the Landfill Directive. The Scheme is intended to operate until 2020.

Under the Concordats on the Coordination of European Policy Issues, the devolved administrations will be responsible for meeting their share of the UK targets as provided for by regulations made under clause 1 and for financial costs or penalties imposed on the UK arising from their failure to meet their share of the UK targets. Nevertheless, the obligation is for the UK as a whole to comply with its European obligations and therefore it is appropriate for the UK Government to allocate targets to the devolved administrations.

The Department considers that regulations under clause 1 and 2 which allocate targets to each country of the UK are sufficiently important to be subject to the affirmative resolution procedure.

Clause 26 makes procedural provisions for all other regulations under Part 1. It is proposed that regulations made by the Secretary of State acting as allocating authority for England should be subject to the negative resolution procedure. This is in line with the procedures for the other countries. Regulations made by the Scottish Ministers will be subject to annulment in pursuance of a resolution of the Scottish Parliament. Regulations made by the Department of Environment will be subject to the negative resolution procedure within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954.

Where reference to negative resolution procedure is made in this memorandum, it is a reference to negative resolution procedure in England, Scotland and Northern Ireland. The Government of Wales Act deals with procedural matters for statutory instruments made by the National Assembly for Wales.

EMISSIONS

Clause 31 amends the purposes for which regulations under section 2 of the PPC Act may make provision. Regulations providing for the inclusion of penalties in trading schemes would be subject to negative resolution procedures.

Section 5(3) of the PPC Act provides that it is to be taken as a pre-commencement enactment for the purposes of the Scotland Act 1998. Thus, powers under section 2 of the PPC Act so far as they are within devolved competence and are separately exercisable in or as regards Scotland have transferred to the Scottish Ministers. As the effect of clause 31 is merely to modify the power in section 2, this modified power will be exercisable by the Scottish Ministers without any further legal mechanism.


3   Council Directive 1999/31/EC (OJ L 182, 16.7.99, p.1).  Back

4   If the UK takes the full four year derogation to which it is entitled, the target years under the Landfill Directive are 2010,2013, 2020.  Back


 
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