Select Committee on Delegated Powers and Regulatory Reform First Report


DETAILS OF POWERS DELEGATED UNDER THE BILL

PART 1: WASTE

CHAPTER 1: WASTE SENT TO LANDFILLS

Clause 1: Power to make regulations specifying the maximum 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.
Power conferred on: The Secretary of State
Power exercisable by: Regulations
Parliamentary procedure: Affirmative resolution procedure


This clause requires the Secretary of State to make regulations specifying the maximum amount (by weight) of biodegradable municipal waste which may be sent to landfills from the whole of, and from each country of, the UK in target years. Target years are defined in clause 22 as a scheme year ending with 16th July in 2010, 2013 and 2020. The target years under the Bill represent the target years in Article 5(2) of the Landfill Directive including the four year derogation of which the UK qualifies to take advantage (although there is flexibility to amend these in clause 22 of the Bill).

Clause 1(2) provides that the amount specified must be consistent with the obligations of the UK under Article 5(2) of the Landfill Directive and clause 1(3) provides that the total of the amounts specified for each country must not exceed the total specified for the UK as a whole. Clause 1(4) provides that the Secretary of State must consult the appropriate authority for each country of the UK before its target is set.

The amounts which will be specified under this clause will be calculated, as required by the Landfill Directive, to provide cumulative reductions in the amount of biodegradable municipal waste sent to landfills based on the amount (by weight) of biodegradable municipal waste produced in 1995.

By providing for the maximum amounts to be specified in regulations the Bill allows some flexibility to adjust the maximum amounts permitted to be sent to landfills from each country to ensure that the UK meets its targets under the Landfill Directive. This may be necessary if the final target date in the Landfill Directive is amended by the European Council as provided for under Article 5(2) of that Directive.

As the regulations under this clause will effectively sub-divide the national target between the countries of the UK, the Department considers that such regulations are sufficiently important to be subject to the affirmative resolution procedure.

Clause 2: Power to make regulations specifying the maximum amount of biodegradable municipal waste permitted to be sent to landfills from each country of the UK in non-target years.
Power conferred on: The Secretary of State
Power exercisable by: Regulations
Parliamentary procedure: Affirmative resolution procedure

Clause 2 permits the Secretary of State to make regulations specifying the amount (by weight) of biodegradable waste which is permitted to be sent to landfills in scheme years which are not also target years. Scheme years are defined in clause 22 as the years beginning with 17 July in any of 2004 to 2019.

The power is only exercisable in relation to each country of the UK with the agreement of the appropriate authority for that country (clause 2(2), (3) and (4)).

Like regulations under clause 1, the Department considers that regulations under clause 2 are sufficiently important to be subject to the affirmative resolution procedure.

Clause 3: Power to make regulations specifying the amount deemed to have been set under clause 1 in 2004 for the purposes of applying the default year rules.
Power conferred on: The Secretary of State
Power exercisable by: Regulations
Parliamentary procedure: Negative resolution procedure

Clause 3 provides default rules for specifying the maximum amount of biodegradable municipal waste that may be sent to landfills in non-target years where no amount is specified under clause 2. The formula is set out in clause 3(2).

Clause 3(6) makes 2004 an additional target year for the purpose of the application of the formula and provides for the Secretary of State to specify, in regulations, the amount deemed to have been set under clause 1 for that year. This is necessary to ensure that there is a default position for the years before the first target year of 2010.

Clause 3(8) provides that the Secretary of State must consult the appropriate authority for each country before making regulations under clause 3(6).

Regulations under this paragraph will be subject to the negative resolution procedure. In the Department's view this procedure provides an appropriate level of Parliamentary scrutiny for a default provision.

Clause 6: Power to make regulations providing for the borrowing and banking of landfill allowances.
Power conferred on: The allocating authorities for England, Scotland, Wales and Northern Ireland
Power exercisable by: Regulations
Parliamentary procedure: Negative resolution procedure

Clause 6 provides an allocating authority with powers to make regulations allowing a waste disposal authority in its area to use the allowances allocated to it in one scheme year in another scheme year ("banking and borrowing") and to set out the terms and conditions on which it may do so.

Clause 6(2) provides that regulations may not permit allowances not allocated for a target year to be used in that year and may not permit banking and borrowing across target years.

Clause 6(3) contains a non-exhaustive list of the types of matters for which regulations permitting banking and borrowing may provide. Clause 6(3)(j) provides that regulations may create offences for breaches of provisions of the regulations. Clause 6(4) provides the maximum penalties that may be set by regulations under section 2 of the Pollution Prevention and Control Act 1999.

Regulations under this paragraph will be subject to the negative resolution procedure. In the Department's view this procedure provides an appropriate level of Parliamentary scrutiny.

Clause 7: Power to make regulations permitting the transfer of landfill allowances.
Power conferred on: The allocating authorities for England, Scotland, Wales and Northern Ireland
Power exercisable by: Regulations
Parliamentary procedure: Negative resolution procedure

Clause 7 provides an allocating authority with powers to make regulations to permit waste disposal authorities in its area to transfer allowances, whether by trade or otherwise. These regulations may permit cross-border trading of allowances allocated by another allocating authority, although such trading would be dependent on each allocating authority involved making enabling regulations and it is not expected that such regulations would be made without agreement between the countries concerned to ensure that there would be the necessary regulation and sharing of information.

The power is limited by clause 7(2) in a number of ways:

  • allowances may not be acquired by persons who are not waste disposal authorities;
  • a transferred allowance may not be used for a target year unless it was allocated for that year; and
  • allowances cannot be used across target years.

Clause 7(3) contains a non-exhaustive list of matters for which regulations permitting allowances to be transferred may make provision. These include restrictions on amounts, the control of prices, transfer only of allocations made by particular authorities, restrictions on transfer and provisions around brokerage.

Clause 7(3)(l) provides that regulations may create offences for breaches of provisions of the regulations. Clause 7(4) provides the level of penalties for the offences for such offences. The maximum penalties are the same as provided for in clause 6.

Regulations under this paragraph will be subject to the negative resolution procedure. In the Department's view this procedure provides an appropriate level of Parliamentary scrutiny.

Clause 9: Power to make regulations appointing a monitoring authority.
Power conferred on: The allocating authorities for England, Scotland, Wales and Northern Ireland
Power exercisable by: Regulations
Parliamentary procedure: Negative resolution procedure

Clause 9 requires each allocating authority to appoint a monitoring authority for its area. The power is merely a power to appoint a body to be the monitoring authority. The functions of the monitoring authority are set out in clause 9(2). Added functions may be imposed or conferred on the monitoring authority by scheme regulations under clause 10.

Regulations under this paragraph will be subject to the negative resolution procedure. In the Department's view this procedure provides an appropriate level of Parliamentary scrutiny.

Clause 10: Power to make scheme regulations.
Power conferred on: The allocating authorities for England, Scotland, Wales and Northern Ireland.
Power exercisable by: Regulations
Parliamentary procedure: Negative resolution procedure


Clause 10 permits an allocating authority to make regulations for the purposes of carrying into effect, in relation to its area, the provisions of Chapter 1 of Part 1 of the Bill.

Clause 10(2) gives a non-exhaustive list of the types of provisions which such regulations may make. They may cover details such as evidence of holding allowances, registers, units of allowances and the requirement to have regard to guidance. The regulations may also provide for a waste disposal authority which fails to comply with a requirement of the regulations to be liable to a penalty.

Regulations under this paragraph will be subject to the negative resolution procedure. In the Department's view this procedure provides an appropriate level of Parliamentary scrutiny.

Clause 11: Power to make regulations in relation to waste disposal authorities.
Power conferred on: The allocating authorities for England, Scotland, Wales and Northern Ireland.
Power exercisable by: Regulations
Parliamentary procedure: Negative resolution procedure

Clause 11(1) permits an allocating authority to make regulations requiring waste disposal authorities in its area to maintain records, to gather information by carrying out operations on waste and to make returns to the monitoring authority for its area.

Clause 11(2) permits an allocating authority to make regulations to enable the monitoring authority for its area to require waste disposal authorities to produce records for inspection and to supply information and evidence connected with the sending of biodegradable municipal waste to landfills.

Clause 11(3) provides that waste disposal authorities which fail to comply with the requirements of regulations under this clause will be liable to a penalty.

Regulations under this paragraph will be subject to the negative resolution procedure. In the Department's view this procedure provides an appropriate level of Parliamentary scrutiny.

Clause 12: Power to make regulations in relation to persons concerned in the operation of a landfill.
Power conferred on: The allocating authorities for England, Scotland, Wales and Northern Ireland
Power exercisable by: Regulations
Parliamentary procedure: Negative resolution procedure


Clause 12(1) permits an allocating authority to make regulations to require persons concerned in the operation of a landfill to maintain records; to gather information by carrying out operations on waste and to make returns to prescribed persons.

Clause 12(2) provides that a person commits an offence if he fails to comply with a requirement imposed on him by regulations under clause 12(1). The penalties are set out in clause 12(5) and are consistent with the penalties for similar offences under section 110 Environment Act 1995.

Clause 12(3) permits an allocating authority to make regulations enabling the monitoring authority for its area to require persons concerned in the operation of a landfill to produce records for inspection and to supply information and evidence connected with the sending of biodegradable municipal waste to landfills. Regulations may enable a person authorised by a monitoring authority to enter onto the premises to find and inspect records relating to the operation of a landfill.

Clause 12(4) provides that a landfill operator will be guilty of an offence if he intentionally obstructs a person exercising a power conferred under clause 12(3) or fails to comply with a requirement imposed on him by such regulations. The penalties for such offences are set out in clause 12(5) and (6) and are consistent with the penalties for similar offences under section 110 Environment Act 1995.

Regulations under this paragraph will be subject to the negative resolution procedure. In the Department's view this procedure provides an appropriate level of Parliamentary scrutiny.

Clause 14: Power to make regulations requiring the monitoring authority for its area to maintain a register.
Power conferred on: The allocating authorities for England, Scotland, Wales and Northern Ireland
Power exercisable by: Regulations
Parliamentary procedure: Negative resolution procedure


Clause 14(1) permits an allocating authority to make regulations requiring the monitoring authority for its area to maintain a register of certain information acquired in the exercise of its functions under Chapter 1 of Part 1 of the Bill.

Regulations under this paragraph will be subject to the negative resolution procedure. In the Department's view this procedure provides an appropriate level of Parliamentary scrutiny.

Clause 15: Power to make regulations providing for public access to registers.
Power conferred on: The allocating authorities for England, Scotland, Wales and Northern Ireland
Power exercisable by: Regulations
Parliamentary procedure: Negative resolution procedure


Clause 15 permits an allocating authority to make regulations providing for public inspection of information contained in a register and for members of the public to obtain copies of such information. Such regulations may include provision for a reasonable charge for obtaining copies of information on the register.

Regulations under this paragraph will be subject to the negative resolution procedure. In the Department's view this procedure provides an appropriate level of Parliamentary scrutiny.

Clause 22: Power to make regulations to amend the definition of scheme years and target years.
Power conferred on: The Secretary of State
Power exercisable by: Regulations
Parliamentary procedure: Negative resolution procedure


Clause 22(1) defines scheme years and target years for the purposes of Chapter 1 of Part 1 of the Bill.

Clause 22(2) permits the Secretary of State to make regulations to provide for a different day to be the first day of a scheme year, to add scheme years and to change, add or omit target years.

This would allow the Secretary of State to set target years which are either the underogated target years or anything up to and including the latest date allowable under the Landfill Directive. Article 5(2) of the Landfill Directive provides that the European Council shall reexamine and may amend the final target set out in the Directive and it is intended that clause 22 would allow the Secretary of State to extend the scheme beyond 2020 should that prove necessary or appropriate. It is necessary for the Secretary of State to have this power to enable the scheme to be adapted to comply with any amendments to the Landfill Directive.

However, the Secretary of State must consult the Scottish Ministers, the National Assembly for Wales and the Northern Ireland Department of the Environment before making regulations under clause 22(2).

Regulations under this paragraph will be subject to the negative resolution procedure. In the Department's view this procedure provides an appropriate level of Parliamentary scrutiny.

Clause 25: Powers to make regulations in relation to penalties under Chapter 1.
Power conferred on: The allocating authorities for England, Scotland, Wales and Northern Ireland
Power exercisable by: Regulations
Parliamentary procedure: Negative resolution procedure


Clauses 6(3)(g), 7(3)(i), 8(2) and (3), 10(3) and 11(3) provides for waste disposal authorities to be liable to penalties and clause 8(3) provides for a waste disposal authority to be liable to supplementary penalty.

Clause 25(1) provides that the amount of such penalties is the amount specified by or calculated under regulations. The penalties are to be paid to the allocating authority. The allocating authority is given the power to extend the time for paying the whole or part of the penalty or any interest on it and to relieve a waste disposal authority, in whole or in part from liability to the penalty and any interest on it.

Clause 25(2) provides that relief may be given before or after the penalty becomes due, in relation to a particular case or in cases of a particular description, and may be subject to conditions.

Clause 25(3) allows the allocating authorities to make regulations:

  • to set the amounts of penalties and of supplementary penalties, or the rules for calculating their amounts, to which waste disposal authorities are liable under this Chapter;
  • to provide when payments in respect of penalties are due and make provision for interest on late payments;
  • to provide for recovering or setting off, and securing, unpaid amounts in respect of penalties or interest.

Clause 25(4) provides that regulations under clause 25(3) relating to supplementary penalties under clause 8(3) may be made after the end of the target year to which they relate. This is to enable at least a proportion of any fines imposed on the UK by the ECJ to be passed on to the individual waste disposal authorities that are responsible for a breach of the targets for their country.

Regulations under this paragraph will be subject to the negative resolution procedure. In the Department's view this procedure provides an appropriate level of Parliamentary scrutiny.


 
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