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
the Integrated Pollution Control regime and the Local Air Pollution
Control regime (the "Part
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
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
the full requirements of the Directive are not imposed upon such
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 Actsections
1 to 28as 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
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
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
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
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