Environmental Protection Bill

HL Deb 21 June 1990 vol 520 cc1051-104

3.35 p.m.

Lord Hesketh

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That this House do now again resolve itself into Committee. —(Lord Hesketh.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 29 [Preliminary]:

Lord McIntosh of Haringey

moved Amendment No. 132: Page 28, line 3, at beginning insert: ("( ) This Part shall have effect for the purposes of reducing pollution to the environment from the treatment, keeping, transport, deposit or disposal of controlled waste, and for the improvement in the standards of such activities by bodies to which this Part relates, including any companies formed under section 31(2) below"). The noble Lord said: In moving Amendment No. 132 I shall speak also to Amendments Nos. 148 and 149. These amendments are necessary due to the profound failings in the arrangements the Government have made regarding the relationship between local authorities which have responsibility under Part II of the Bill and the LAWDCs —the waste disposal contractors—and also because of the inadequacy of the provision for the LAWDCs.

The starting point for our discussion should be consideration of the total size of the waste management industry. We should take account of the relationship between the public and the private sector in that industry; the effect of the Bill and the higher standards—for which we should be thankful—that it will impose on waste management, on its costs and therefore on the size of the industry. We should also consider the Government's motivation for implementing those changes and what action should be taken in that regard.

The size of the waste management industry in this country is difficult to estimate. The best estimates are that its value in turnover terms is between £500 million and £1.5 billion. The public sector probably represents one-third of that amount. Estimating the effect on costs of the proposals is even more difficult. We start from a dubious point and are attempting to estimate the effect of something which has not yet become legislation. Our best estimate is that it will approximately triple the cost. We therefore end up with a value for the public sector waste management industry of between £500 million and £1.5 billion.

The Government's motivation for implementing the Bill is very clear. They are looking for a further opportunity for privatisation. Are the arrangements which they are making for privatisation satisfactory, and will they produce the results that the Government want?

The first problem to which Amendment No. 132 relates is the inadequate definition of what are the purposes of reducing pollution in the environment. That definition is inadequate in Clause 29 and also when we come to the companies formed under Clause 31. The main problem to which Amendments Nos. 148 and 149 are addressed is that local authorities do not have control of the waste disposal contractors. They are restricted by legislation from forming more than 20 per cent. of the management boards. Yet the local authority waste disposal contractors are in their turn restricted from raising capital except at the expense of other local authority expenditure.

That is the thrust of the amendments and why we believe the arrangements proposed are unsatisfactory. It means that if waste disposal contractors are to engage in capital expenditure—which may be significant because it is a capital intensive industry when one is comtemplating setting up new sites for disposal —local authorities will lose the capital authorisation for all the other schemes which may be thought, under the relevant heading of capital expenditure, to be competing with it. Waste disposal contractors will be severely tempted to opt for revenue expenditure rather than capital expenditure and therefore to take the less satisfactory economic and business option.

Waste disposal contractors may not be able to work as effectively as they should because they are restricted by the capital controls, but also because many of them will be small. They will relate to the areas of single local authorities and will have to compete with contracts for individual sites. If they lose the contract for the nearest site, bearing in mind that the economics of the business depend on how close one is to the disposal site, the result will be an unsatisfactory, uneconomic and unbusinesslike approach to waste disposal management.

Amendments Nos. 148 and 149 seek to remove the capital controls on LAWDCs in order to allow them to make proper business decisions, and to ensure that they have adequate responsibilities, powers and relationships with local government to do their job properly. I beg to move.

Lord Renton

The noble Lord, Lord McIntosh, should be thanked for putting forward an amendment which states the intention of Part II. Some noble Lords may know that I am very much in favour of purpose clauses. This amendment will help to interpret the fairly lengthy and complicated provisions of Part II of the Bill. It gives a clear indication of what those clauses are about and the purposes that they have in mind. Therefore, as I said, that will have the advantage of aiding interpretation.

I cannot see any disadvantage in having this amendment although I must say that I do not think it is necessary to have the last few words: including any companies formed under section 31(2) below". I listened to what the noble Lord said about that but I rather doubt whether it is necessary to single out that particular provision which refers to the companies that the Secretary of State may assist to get established. With that proviso I somewhat favour this amendment and it will be interesting to hear what my noble friends on the Front Bench have to say about it.

3.45 p.m.

Lord Hesketh

The subject of waste has attracted increasing public interest and concern over the past few years. It is no coincidence that it occupies the largest single part of the Bill. I confidently expect a high standard of debate from many noble Lords who have laboured so unremittingly over recent years on scrutinising our waste policies on your Lordships' Select Committees, the Royal Commission, and elsewhere. The first debate on Part II of the Bill provides an excellent opportunity for us to consider the purposes and the underlying thrust of the measures on waste management.

Amendment No. 132, tabled by the noble Lord, Lord McIntosh, offers one suggested statement of the purpose of Part II. I would, perhaps with only a subjective difference of viewpoint, approach these measures from a slightly different angle. It may assist the Committee if I set out in some depth what that viewpoint is so that we may all approach the detailed provisions of Part II with a better understanding of the Government's general approach.

The provisions of Part II are not mainly about reducing pollution; nor are they directly about improving standards. By that I mean that we do not have a series of clauses dealing with each particular waste problem and saying what should be done with it. Instead, we are setting out an enabling framework through the regulatory and control regimes for the duties and discretionary powers put upon authorities and individuals. We are building and setting in motion the mechanisms which will raise standards and reduce, or where possible eliminate, pollution. The provisions of Part II are more the stage machinery rather than the performance. We have a plot, we are providing the props and casting the actors. Their detailed lines will be issued in regulations and advice, but the play itself will be acted out only by implementation and enforcement in the field.

An obvious example may make this clearer. We have firm and unequivocal policies on the operation and the care of waste disposal sites. There is detailed technical guidance in waste management papers issued by the department. That advice is updated with technical advances. However, the approach of Part II is not to lay down targets, objectives or prescriptions for landfill sites on the face of the Bill. Instead we are giving the waste regulatory authorities increased powers to raise standards themselves by the conditions they attach to licences in individual local circumstances, by their enforcement of those conditions and in the much tougher long-term responsibilities of licence holders themselves. In addition, we are reforming the authorities to ensure that they use their powers effectively. It is by the use of these powers that pollution will be minimised and standards enforced.

In the case of this amendment the Opposition invite us to subscribe to the objectives of reducing pollution and improving standards. The Government certainly endorse both those objectives. However, I am not at all convinced that the statement is comprehensive or correct. For example, the list of activities covered does not include the production of waste, about which the Opposition are clearly concerned in their amendments promoting waste minimisation. On the other hand, the list includes the transport of waste, which is not any part of the controls in this part or this Bill but is effectively covered by transport legislation. Nor am I happy with the list of bodies whose standards are to be improved; it is not at all clear to me that as drafted it includes the full list of persons subject to the duty of care. Are all such persons bodies? This is not nit-picking; and I say that advisedly, bearing in mind the remarks that my noble friend Lord Renton made earlier.

The risk of a general declaratory clause is that it may confuse or even prejudice the interpretation of specific powers. If the specific provision of Part II were not within the purpose of this clause there would be some risk of casting doubt on that provision. As the couple of small examples I have just given show, it is very difficult to draft a single sweeping declaration that fully and accurately covers the variety of purposes served by the wide range of powers in this part of the Bill.

I have to say that, quite apart from any deficiencies of detail in the amendment, I cannot see that such a general declaration adds anything to the specific provisions of Part II. Let us stick to saying in each clause what we wish to happen in detail and let each clause stand to be interpreted on its own, subject to the specific interpretations provided in this clause and Clauses 71 and 72.

The Government's own purpose in Part II is clear —to create a system of control and regulation which will deliver reliable environmental protection against pollution from waste. On that test the provisions of these clauses stand to be judged.

Amendment No. 148, taken with Amendment No. 149, would have the effect of removing arm's length status from LAWDCs, leaving them as wholly-owned subsidiaries of their controlling authorities. One of the fundamental principles of this part of the Bill is the separation of waste disposal operations from regulation. For this separation to be properly achieved it is vital that LAWDCs should operate at arm's length so that the company is run as a genuinely independent financial concern. By operation at arm's length, the LAWDC will be subject to the full effects of the market rather than being protected by the controlling authority.

There are also certain advantages to be gained. For example, the LAWDC will be free to invite a contractor of its choice to carry out a particular function on its behalf rather than being bound by the competitive tendering regulations that apply to a controlled local authority company. Also, its board meetings will be exempt from certain rules applying to local authority meetings.

Amendment No. 148 would also make it a function of LAWDCs to secure the reduction of pollution of the environment in their handling and disposal of waste. I cannot see that it is necessary to impose such a function on LAWDCs. They will operate their sites in accordance with the terms of their waste management licences, and those licences will contain the full range of conditions to reduce environmental pollution. It will be for regulation authorities to enforce the higher standards we all now expect. LAWDCs will also be operating under the terms of contracts let by disposal authorities who will be required to take account of environmental factors when awarding contracts. It is for those reasons that we resist the amendments.

Lord Renton

Before the noble Lord, Lord McIntosh, replies perhaps I may just acknowledge that my noble friend —I am speaking only in relation to Amendment No. 132 —has given reasons which I must say had not occurred to me and may not have occurred to the noble Lord, Lord McIntosh, for thinking that this statement of purpose in Amendment No. 132 is not wide enough to cover the various provisions of this part to which the amendment relates.

My noble friend gave a great deal of detail in support of that proposition. Speaking for myself, I would prefer to study that rather lengthy statement before having to reach a conclusion on this amendment at this stage. I hope that the noble Lord, Lord McIntosh, will feel that the wisest course to take is to study the matter further.

Lord McIntosh of Haringey

I have been deprived of the opportunity of saying how grateful I am to the noble Lord, Lord Renton, for his support. For very understandable reasons his support has now been withdrawn.

There are two reasons why I cannot take his advice. The first relates to the specific point which he first raised; that is, the need for a purpose definition at the very beginning of a part of the Bill. I shall come to that point when I deal with the second reason why in Amendment No. 132 we refer specifically to companies formed under Clause 31(2).

I have no difficulty with the comment made by the Minister about, improvement in the standards of such activities by bodies to which this Part relates". It is intended that we should be talking about improvement in the standards of such activities by all the bodies to which this part of the Bill refers. If the Minister is suggesting that these bodies have different kinds of status —some being public authorities and others being private persons or companies —then I suggest to the Committee that the word "bodies" acts perfectly well to cover them all.

The only other point of any significance which the Minister made about the wording in Amendment No. 132 and therefore in Amendment No. 148, was the omission concerning the production of waste in the environment. It may be that my understanding of Part II of the Bill is defective. It seemed that when it comes to the production of waste the provisions in that part of the Bill are very different from those of waste management. The bulk of Part II refers to management which is the, treatment, keeping, transport, deposit or disposal of controlled waste". To that extent I am content that my purposive amendment should refer to the management of waste rather than to the production.

There was one further objection that the Minister raised and that was to the use of the word "transport". He said that the transport of waste was a matter for transport legislation and should not be covered by this Bill. The debate in Committee on Tuesday made it clear that it in our view that is not the case. The transport of waste should be covered by this Bill. We have tabled subsequent amendments to secure that end. The carrying of this amendment now would make it easier for us to argue as regards our subsequent amendments that the transport of waste should be included in this part of the Bill.

The more important aspect to which I refer is the role of the waste disposal companies in Part II of the Bill. As the Minister quite clearly described, we have a series of provisions for dealing with waste on land. Then we have spatchcocked into the middle of that a proposal that is not justified by any other part of the Bill for, as he described it, a move towards waste disposal companies; —in other words, a move away from the activities of local authorities and a move towards arm's length companies.

It is that introduction of a totally different political objective into the environmental objective of Part II of the Bill to which we object most strongly. We do so for reasons that are very well known. They were rehearsed at length when we dealt with the Local Government and Housing Bill in 1989. We believe that these arm's length companies are an uneasy compromise between the public and private sectors. They do not achieve the objectives of full privatisation and the virtues that there might be from that if accompanied by liberalisation and freedom of effective business management. Nor do these companies achieve the objective of being properly co-ordinated with the activities of local authorities themselves.

I have not heard an adequate answer from the Minister to the use of the compulsory competitive tendering procedure. He referred to that dismissively as though it were not the Government's own idea. He said that it is not satisfactory for the purpose of Part II of the Bill. Having set out the CCT procedure, I should have thought that the Government would be anxious to find an opportunity to use it. Instead they Choose to set up an arm's length relationship which is fatally flawed; first, by the fact that it does not include freedom of capital expenditure —and therefore cannot make the proper decisions —and, secondly, because the size and the nature of operations of these arm's length companies is not satisfactory for fully privatised operations. It is that uneasy compromise which makes it necessary for us to refer to the companies formed under Clause 31(2), to use the wording of Amendment No. 132. It is because Clause 31 is ill-at-ease with the remainder of Part II of the Bill that we have to repeat those objectives in Amendment No. 148 to make sure that they apply to the companies set up under Clause 31. In addition, that is why in Amendment No. 149 to Schedule 2 we have to remove the reference to arm's length companies. The objectives of Part II of the Bill are well understood and have been widely accepted in Committee.

Lord Hesketh

Be it not for me to interrupt the noble Lord, Lord McIntosh. I am always more than happy to listen to his erudite words. One thing I can promise him is that privatisation was never any part of the concept of what we are trying to do here. We are trying to separate regulation and operation. I am sure that the noble Lord will remember that it is almost exactly 12 months ago that we were dealing with Part V of a previous Bill that came before this Chamber. We were pointing out the differentials with regard to capital control. The underlying principle is regulation, operation and separation; it has nothing to do with privatisation.

Lord McIntosh of Haringey

I accept that that is in the Government's mind. However, I have to look at the effect of what the Government are saying in the Bill. It may well be that their intention is to set out the difference between regulation and operation. The fact of the matter is that the Bill produces companies which are at arm's length yet which are subject to the capital controls imposed on local authorities as a whole. Therefore, they are inextricably linked in a most unsatisfactory and comprised way with the finances of local authorities.

It is that unsatisfactory compromise to which we object. It is for that reason that we feel that Part II of the Bill is gravely damaged by the provisions of Clause 31. That damage has to be eliminated right at the outset in the way in which we set forward the purposes of Part II of the Bill. It is not that we are unsympathetic to the Bill as a whole, but we think that the Government themselves are shooting Part II of the Bill in the foot by the provisions that they have put forward for the formation of the waste disposal companies. It is for that reason that we believe the Committee should be advised to take out the offending parts and to clarify the purposes of the Bill.

3.58 p.m.

On Question, Whether the said amendment (No. 132) shall be agreed to?

Their Lordships divided: Contents, 89; Not-Contents, 123.

DIVISION NO. 1
CONTENTS
Addington, L. [Teller.]	John-Mackie, L.
Airedale, L.	Kearton, L.
Ardwick, L.	Kennet, L.
Aylestone, L.	Kirkhill, L.
Birk, B.	Lawrence, L.
Blackstone, B.	Llewelyn-Davies of Hastoe,
Blease, L.	B.
Bonham-Carter, L.	Lloyd of Kilgerran, L.
Boston of Faversham, L.	Longford, E.
Bottomley, L.	Lovell-Davis, L.
Broadbridge, L.	McIntosh of Haringey, L.
Bruce of Donington, L.	McNair, L.
Campbell of Eskan, L.	Masham of Ilton, B.
Carmichael of Kelvingrove,	Milner of Leeds, L.
L.	Molloy, L.
Carter, L.	Murray of Epping Forest, L.
Cledwyn of Penrhos, L.	Nicol, B.
Clinton-Davis, L.	Northfieid, L.
Cocks of Hartcliffe, L.	Ogmore, L.
David, B.	Peston, L.
Dean of Beswick, L.	Phillips, B.
Diamond, L.	Rea, L.
Donoughue, L.	Ritchie of Dundee, L.
Dormand of Easington, L.	Robson of Kiddington, B.
Ennals, L.	Rochester, L.
Ewart-Biggs, B.	Ross of Newport, L.
Gallacher, L.	Sainsbury, L.
Galpern, L.	St. John of Bletso, L.
Gladwyn, L.	Seear, B.
Graham of Edmonton, L.	Serota, B.
[Teller.]	Shackleton, L.
Greenway, L.	Stallard, L.
Grey, E.	Stedman, B.
Grimond, L.	Stoddart of Swindon, L.
Hampton, L.	Strabolgi, L.
Hanworth, V.	Thomson of Monifieth, L.
Hatch of Lusby, L.	Tonypandy, V.
Hirshfield, L.	Turner of Camden, B.
Hollis of Heigham, B.	Varley, L.
Holme of Cheltenham, L.	Wallace of Coslany, L.
Houghton of Sowerby, L.	Wedderburn of Charlton, L.
Hughes, L.	Whaddon, L.
Hunt, L.	White, B.
Jay, L.	Williams of Elvel, L.
Jenkins of Hillhead, L.	Willis, L.
Jenkins of Putney, L.	Young of Dartington, L.

NOT-CONTENTS
Alexander of Tunis, E.	Mackay of Clashfern, L.
Alport, L.	Macleod of Borve, B.
Arran, E.	Malmesbury, E.
Auckland, L.	Mancroft, L.
Balfour, E.	Margadale, L.
Belhaven and Stenton, L.	Merrivale, L.
Beloff, L.	Milverton, L.
Belstead, L.	Monk Bretton, L.
Bessborough, E.	Montgomery of Alamein, V.
Birdwood, L.	Mottistone, L.
Blatch, B.	Mountgarret, V.
Boardman, L.	Mowbray and Stourton, L.
Borthwick, L.	Moyne, L.
Brigstocke, B.	Munster, E.
Brougham and Vaux, L.	Murton of Lindisfarne, L.
Burton, L.	Napier and Ettrick, L.
Butterworth, L.	Nelson, E.
Caccia, L.	Norrie, L.
Caithness, E.	Nugent of Guildford, L.
Caldecote, V.	Orkney, E.
Carnegy of Lour, B.	Orr-Ewing, L.
Carnock, L.	Oxfuird, V.
Carrington, L.	Pearson of Rannock, L.
Cavendish of Furness, L.	Pender, L.
Chelmer, L.	Perth, E.
Clanwilliam, E.	Porritt, L.
Colwyn, L.	Rankeillour, L.
Cork and Orrery, E.	Reay, L.
Cottesloe, L.	Renton, L.
Craigton, L.	Renwick, L.
Cross, V.	Rodney, L.
Cumberlege, B.	Roskill, L.
Dacre of Glanton, L.	St. John of Fawsley, L.
Darcy (de Knayth), B.	Saint Oswald, L.
Denham, L. [Teller.]	Saltoun of Abernethy, Ly.
Eccles, V.	Sanderson of Bowden, L.
Elles, B.	Sandys, L.
Elliot of Harwood, B.	Savile, L.
Elton, L.	Sempill, Ly.
Erroll of Hale, L.	Sharpies, B.
Faithfull, B.	Skelmersdale, L.
Ferrers, E.	Slim. V.
Fraser of Carmyllie, L.	Soulsby of Swaffham Prior,
Gisborough, L.	L.
Grantchester, L.	Stanley of Alderley, L.
Gridley, L.	Strathclyde, L.
Henley, L.	Strathmore and Kinghorne,
Hesketh, L.	E.
Hives, L.	Swinton, E.
Hooper, B.	Tenby, V.
Hylton-Foster, B.	Terrington, L.
Iddesleigh, E.	Teviot, L.
Ilchester, E.	Thomas of Gwydir, L.
Kimball, L.	Thomas of Swynnerton, L.
Kinnaird, L.	Thorneycroft, L.
Kintore, E.	Tranmire, L.
Lauderdale, E.	Trumpington, B.
Lindsay, E.	Vaux of Harrowden, L.
Lloyd of Hampstead, L.	Wade of Chorlton, L.
Long, V. [Teller.]	Whitelaw, V.
Lucas of Chilworth, L.	Wise, L.
Lyell, L.	Young, B.
McColl of Dulwich, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.6 p.m.

Lord McIntosh of Haringey had given notice of his intention to move Amendments Nos. 133 to 137: Page 28, line 5, after first ("of") insert ("—(a)"). Page 28, line 5, leave out ("media") and insert ("elements"). Page 28, line 6, at end insert: ("(b) the natural environment subsisting in or supported by those elements; or (c) the physical environment of buildings or other natural or man made structures above, or below ground."). Page 28, line 8, leave out ("any environmental medium") and insert ("the environment"). Page 28, line 13, at end insert ("or(e) any other source"). The noble Lord said: Amendments Nos. 133 to 137, 140 and 141 cover ground very similar to that which we covered in Part I of the Bill. As the noble Lord, Lord Reay, in replying, gave quite an interesting response to our amendments, I think that it would be for the convenience of the Committee if I did not move them.

[Amendments Nos. 133 to 137 not moved.]

Lord McIntosh of Haringey

moved Amendment No. 138: Page 28, line 18, after ("plant") insert ("vehicles"). The noble Lord said: Amendment No. 138 is a little different. The noble Lord, Lord Reay, gave an interesting reply to the amendment but he was in my view wrong. I must therefore raise the matter again.

On Tuesday, 19th June the noble Lord said that the Bill is not concerned with controls on vehicles for transporting waste. He said: That is already the responsibility of the Department of Transport".—[Official Report, 19/6/90; col. 782.] That is not a satisfactory way to deal with waste management. It does not make any sense if we go anywhere near to accepting the purpose of Part II as proposed in the previous amendment, the provisions of which, with some exceptions, were supported by the noble Lord, Lord Renton.

Those who are responsible for the reduction, the treatment, the keeping, the deposit and the disposal of controlled waste are frequently also responsible for the transport of waste. The idea that one should go from one set of provisions for all the other aspects to transport legislation for the transport of waste and then out of transport legislation again for the disposal of waste is a legislative nonsense. It demonstrates what we have always said about environmental legislation; namely, that the terms of reference of the Department of the Environment alone are simply not satisfactory to deal with all of the problems of the environment—problems which this Bill ought to be tackling.

In the Bill we have the absurd position that mobile plant is covered only when the mobile plant is itself treating waste as it moves or as it sits at the origin or destination of its journey. If the plant is not treating the waste it is not covered, although it could be a virtually identical piece of plant. One can think of it as a readymix concrete lorry which turns concrete as it moves, using power take-off from the engine. If it happens not be treating the waste it is not covered by the Bill; it is covered by totally separate legislation. It may be, though I very much doubt it, that transport legislation is adequate for the purpose. But even if it were the case that transport legislation was good enough, it would be an intolerable burden to ask those who had responsibility for the treatment of waste to be familiar with two completely separate sets of provisions in order to understand their obligations. I must say to the Government that departmental responsibilities have led them very badly astray in this connection and that Amendment No. 138 ought to be included in the Bill.

Lord Lucas of Chilworth

I ask my noble friends to give some serious consideration to this matter. I do not know what the response will be, but I recall that a Select Committee of this place chaired by the noble Lord, Lord Gregson, about 12 years ago, dealt with the disposal of toxic waste. I seem to remember—although I have not reread the report —that one of the greatest matters of concern at that time, and one which remains a matter of great concern today, was the transportation of waste. It was found that at that point the whole chain broke down. There were no regulations in force at that time. It may well be that the disposal authority concerned will have to transport such materials. However, this matter will be dealt with later this afternoon in respect of authorities in Wales where the disposal point is, possibly, at least 80 miles.

Therefore, it seems to me that it would not be unreasonable to provide that the transportation of waste of whatever kind and in whatever vehicle, whether it be the concrete-mixer type of vehicle—and that leads on to the argument about whether it is considered to be a vehicle—should come within the ambit of the Bill.

Lord McNair

The noble Lord, Lord McIntosh, has explained the reasons for this amendment very well. I should just like to add my support to what he said and also the support of all those who sit on these Benches.

Lord Hesketh

These two amendments seek to introduce controls on the transport of waste through a definitional clause which deals with the treatment of waste by mobile plant. The mobile plant is designed to treat or dispose of waste, but it may be moved from site to site or for example from factory to factory, where waste is produced. The factory will still require planning permission to operate a mobile plant. We hope that this measure will facilitate the environmentally friendly management of waste, expecially in its recycling, which may well be most easily carried out by peripatetic means.

This provision is most emphatically not about licensing the transport of waste by local authorities, which is what the amendment seeks to turn it into. The transport of waste is controlled by the same Department of Transport legislation as the transport of any other material. The operator must be licensed under the Transport Acts whatever material he is carrying and the operator licensing system will control the standard of his vehicle and the training of the driver. Regulations cover the transport of dangerous waste in exactly the same way as they cover the transport of any other dangerous material. There is no need to duplicate those requirements in pollution control legislation.

Further, it should not fall to local authorities to operate any vehicle licensing controls. Local authorities have no locus in transport licensing and no experience of it. That is not to denigrate the authorities in any way; but it must be accepted that the world of transport is very different from the world of licensing waste disposal facilities. As there is already a well-established system of licensing transport undertakings, I can see no reason whatever for setting up a whole new system to duplicate it at local authority level.

The real issue is to ensure that the fly-tippers cannot continue to operate or to find business for their illegal activities. That is the purpose of the duty of care provision contained in Clause 33 which we shall be discussing at a later stage. The registration of waste carriers is provided for in the Control of Pollution (Amendment) Act 1989, which I discussed at some length with the noble Lord, Lord Gregson, last year. Any carrier who commits a waste-related offence can be removed from the register. It will then be a breach of the duty of care provision for any waste producer or holder to hand over such waste to him. A waste producer who does so will be liable to prosecution. The combined system of duty of care, and the registration of carriers, provides the necessary controls over the people who carry waste. It is for the Department of Transport to control how the waste is carried.

Finally, I think that one also has to look at the two amendments from the view of the Department of Transport and other departments. I say that because essentially the noble Lord, Lord McIntosh, is asking for a level of supremacy for a cause rather than practical experience in operation. That is the fundamental difference in terms of the carrying out of the operations with the best endeavor by those professionals who are best suited to do so. That is why we resist these amendments.

4.15 p.m.

Lord McIntosh of Haringey

I have two problems with that argument. First, perhaps I should point out that I did not in fact speak to Amendment No. 139 because it was spoken to when we dealt with Amendment No. 1 on Tuesday. I was proposing not to move that amendment. The argument put forward in some detail by the noble Lord for his case that the Department of Transport legislation already adequately covers the problems which we have identified, only goes part of the way towards relieving my concerns. I made clear that I was not certain that transport legislation was adequate for the purpose. However, even if I had been certain that it was adequate for the purpose, I would still think that this provision ought to be included in the Bill.

I am confirmed in that view by legislation to which the Minister did not refer; namely, the Control of Pollution (Amendment) Act 1989 which passed through both Chambers. As noble Lords will recall, that legislation was concerned with fly-tipping. Clearly it would not have gone through without at least the tacit concurrence of the Government, although I know that they were not happy about some aspects of the legislation. Nevertheless, it went through. The Act said that part of the controls to be exercised by the Department of the Environment in order to ensure that we do not have waste material illegally deposited on vacant sites, especially in our big cities, is that there should be a control over the carriers by way of registration.

If the Government were determined to hold the line against that principle, they ought to have had the courage to oppose the Control of Pollution (Amendment) Bill when it was before this Chamber. However, they did not do so; they accepted the Bill and then failed to introduce the regulations which would give effect to it. I call that having the worst of both worlds. I call that acknowledging to us the justice of the case which we are now making—because they really cannot go against what was accepted last year at this late stage—and failing to relieve the very legitimate concerns which many noble Lords and many Members of another place, including, especially, my honourable friend Ms. Joan Ruddock who introduced the Bill, felt about the scourge of fly-tipping which affects our cities and particularly our inner cities.

The problem of waste management is one which is primarily the responsibility of the Department of the Environment. Those who are engaged in this aspect of waste management, both legitimately and illegitimately, ought to be under the control of a single coherent body of legislation. The Bill does not provide a single and coherent body of legislation. The Government have acknowledged the principle and I fail to understand why they object to its rational extension in the amendment which we have put forward. However, I shall happily give way to the Minister if he has any further information to give us on the matter. Unfortunately, that seems not to be the case.

Lord Hesketh

I have. The noble Lord, Lord McIntosh —I hope that the word "insinuated" is not too harsh —insinuated that the Government, having been in receipt of the Act, were not going to do anything about it. The registration of carriers is a government proposal which was taken forward in a Private Member's Bill, as the noble Lord pointed out. Regulations are being prepared and will be consulted upon soon. The Government have no intention of not implementing the Act. As always, there are problems involved in producing the required results. If it requires a little longer to ensure that the regulations work, that is no bad thing. The Government are fully committed to the implementation of the measure, and are not in any way avoiding their responsibilities.

Lord McIntosh of Haringey

In those circumstances, the word "insinuated" was incorrectly used by the Minister. I said nothing about the Government's intention. I said that they had not introduced the regulations, and that is all I said. It has been a long time since the Bill was passed in the last Session. I am not aware that the regulations have even gone out for consultation yet. The passage of time may reflect the detailed and sympathetic thought, but it is much more likely to reflect putting the measure on to the back burner.

The fact that the Minister acknowledges that the Government agree with the principle of the registration of carriers throws away the rest of his case and strengthens our case for including the transport of waste with the rest of waste management legislation. I seek the opinion of the Committee on this amendment.

4.21 p.m.

On Question, Whether the said amendment (No. 138) shall be agreed to?

Their Lordships divided: Contents, 80; Not-Contents, 118.

DIVISION NO. 2
CONTENTS
Addington, L.	Jenkins of Putney, L.
Airedale, L.	John-Mackie, L.
Ardwick, L.	Kennet, L.
Aylestone, L.	Kirkhill, L.
Birk, B.	Leatherland, L.
Blackstone, B.	Llewelyn-Davies of Hastoe,
Blease, L.	B.
Bonham-Carter, L.	Lloyd of Kilgerran, L.
Boston of Faversham, L.	Longford, E.
Bottomley, L.	Lovell-Davis, L.
Broadbridge, L.	McIntosh of Haringey, L.
Bruce of Donington, L.	McNair, L.
Carmichael of Kelvingrove,	Milner of Leeds, L.
L.	Molloy, L.
Carter, L.	Nicol, B.
Cledwyn of Penrhos, L.	Northfield, L.
Clinton-Davis, L.	Ogmore, L.
Cocks of Hartcliffe, L.	Peston, L.
Congleton, L.	Phillips, B.
David, B.	Pitt of Hampstead, L.
Dean of Beswick, L.	Ritchie of Dundee, L.
Diamond, L.	Robson of Kiddington, B.
Dormand of Easington, L.	Rochester, L.
Ennals, L.	Ross of Newport, L.
Ewart-Biggs, B.	Sainsbury, L.
Foot, L.	Seear, B.
Gallacher, L. [Teller.]	Serota, B.
Galpern, L.	Shackleton, L.
Gladwyn, L.	Shannon, E.
Graham of Edmonton, L.	Stallard, L.
[Teller.]	Stedman, B.
Grey, E.	Stoddart of Swindon, L.
Hampton, L.	Strabolgi, L.
Hanworth, V.	Thomson of Monifieth, L.
Hatch of Lusby, L.	Tordoff, L.
Hirshfield, L.	Turner of Camden, B.
Hollis of Heigham, B.	Varley, L.
Holme of Cheltenham, L.	Wallace of Coslany, L.
Hughes, L.	White, B.
Hunt, L.	Williams of Elvel, L.
Jay, L.	Willis, L.
Jenkins of Hillhead, L.

NOT-CONTENTS
Alexander of Tunis, E.	Carnegy of Lour, B.
Alport, L.	Carnock, L.
Arran, E.	Carrington, L.
Ashbourne, L.	Cavendish of Furness, L.
Auckland, L.	Chelmer, L.
Balfour, E.	Clanwilliam, E.
Belhaven and Stenton, L.	Colwyn, L.
Beloff, L.	Cork and Orrery, E.
Belstead, L.	Cottesloe, L.
Bessborough, E.	Craigton, L.
Blatch, B.	Cranbrook, E.
Blyth, L.	Cross, V.
Boardman, L.	Cumberlege, B.
Borthwick, L.	Dacre of Glanton, L.
Brigstocke, B.	Denham, L.
Brougham and Vaux, L.	Eccles of Moulton, B.
Burton, L.	Elibank, L.
Butterworth, L.	Elles, B.
Caccia, L.	Elliot of Harwood, B.
Caithness, E.	Elton, L.
Caldecote, V.	Fraser of Carmyllie, L.

Gardner of Parkes, B.	Norrie, L.
Gibson, L.	Nugent of Guildford, L.
Gisborough, L.	Orkney, E.
Granchester, L.	Orr-Ewing, L.
Greenway, L.	Oxfuird, V.
Henley, L.	Pearson of Rannock, L.
Hesketh, L.	Porritt, L.
Hives, L.	Quinton, L.
Home of the Hirsel, L.	Rankeillour, L.
Hooper, B.	Reay, L.
Hylton-Foster, B.	Renton, L.
Iddesleigh, E.	Renwick, L.
Ilchester, E.	Rodney, L.
Kinnaird, L.	St. John of Fawsley, L.
Kintore, E.	Saint Oswald, L.
Lauderdale, E.	Saltoun of Abernethy, Ly.
Lindsay, E.	Sanderson of Bowden, L.
Long, V. [Teller.]	Savile, L.
Lucas of Chilworth, L.	Sempill, Ly.
Lyell, L.	Sharples, B.
McColl of Dulwich, L.	Skelmersdale, L.
Mackay of Clashfern, L.	Soulsby of Swaffham Prior,
Macleod of Borve, B.	L.
Malmesbury, E.	Stanley of Alderley, L.
Mancroft, L.	Strathmore and Kinghorne,
Margadale, L.	E. [Teller]
Merrivale, L.	Swansea, L.
Milverton, L.	Swinton, E.
Monk Bretton, L.	Teviot, L.
Montagu of Beaulieu, L.	Thomas of Gwydir, L.
Montgomery of Alamein, V.	Thomas of Swynnerton, L.
Mottistone, L.	Tranmire, L.
Mountevans, L.	Trumpington, B.
Mountgarret, V.	Vaux of Harrowden, L.
Mowbray and Stourton, L.	Wade of Chorlton, L.
Munster, E.	Wedgwood, L.
Murton of Lindisfarne, L.	Westbury, L.
Napier and Ettrick, L.	Whitelaw, V.
Nelson E.	Wise, L.

On Question, amendment agreed to.

[Amendments Nos. 139 to 141 not moved.]

4.29 p.m.

Lord Graham of Edmonton moved Amendment No. 142: Page 28, line 44, at end insert: ("(12) For the purposes of this Part—

1. (a) waste from a mine or quarry which is not excavation waste; and
2. (b) waste from agricultural premises which is not agricultural material,

shall be treated as industrial waste"). The noble Lord said: As the amendment indicates, we are concerned about gaps which could open up in genuine, sensible and acceptable legislation. It might be of benefit to the Committee if I indicated our feelings. The premise upon which we have put down these amendments is that there could be an improvement in the best interests of the consumer and the public. The Control of Pollution Act 1974 makes provision for dealing with controlled waste. The first matter that the Committee needs to understand is the definition of "controlled waste". It is defined in Clause 30(1) of the Control of Pollution Act 1974 as being, household, industrial and commercial waste or any such waste". Subsection (3)(a) states that: household waste consists of waste from a private dwelling or residential home or from premises forming part of a university or school or other educational establishment or forming part of a hospital or nursing home". That is fairly comprehensive and it is easy to understand what is meant by "household waste". Under paragraph (b), industrial waste consists of, waste from any factory within the meaning of the Factories Act 1961 and any premises occupied by a body corporate established by or under any enactment for the purpose of carrying on under national ownership any industry or part of an industry or any undertaking, excluding waste from any mine or quarry". I repeat those words, excluding waste from any mine or quarry". Under paragraph (c), commercial waste consists of, waste from premises used wholly or mainly for the purposes of a trade or business or the purposes of sport, recreation or entertainment excluding … household and industrial waste … waste from any mine or quarry" — I repeat that, because it is the kernel of our concern— waste from any mine or quarry and waste from premises used for agriculture within the meaning of the Agriculture Act 1947, or, in Scotland, the Agriculture (Scotland) Act 1948; and … waste of any other description prescribed for the purpose of this sub-paragraph". The Act also provides that, if the Secretary of State considers that controlled waste of any kind is or may be so dangerous or difficult to dispose of that special provision is required, it shall be his duty to make regulations for disposal of such waste. The definition of "controlled waste" which I have read out —and that is what we are discussing in this part of the Act—specifically excludes mine or quarry waste or agricultural waste.

These are probing amendments. The Minister may correct us, but we believe that waste, for example, from a canteen in a quarry or a mine is deemed not to be controlled waste. The waste produced by factory farms is similarly not controlled. Given that the inherent characteristics of such waste have at least equal potential for pollution as have many wastes which are controlled, there is a need to ensure that it falls within legislative powers. The question is which legislative powers will control that kind of waste in those circumstances?

The Environmental Protection Bill perpetuates the lack of control over such waste. While Clause 54 would allow the Secretary of State to give directions imposing requirements in respect of waste of any specified kind, it is clearly not his intention to use this in a global fashion and to apply it, for example, to all non-excavated waste arising from mines or quarries.

The purpose of the amendment is to provide for the necessary controls of the waste described. If the noble Lord tells us that it can be controlled but not in this way, no one will be more satisfied than myself and those outside. It is clearly nonsense to allow a pile of rotten chicken carcases from agricultural premises to be disposed of on an unlicensed site when the same material from a butcher's shop would require a licence. Is that the position? Can the Minister tell us, if that is the position, the justification for it and what argument there could be against accepting the amendment? It is acknowledged that there may well be need for consideration to be given to waste from agricultural premises that is to be recycled or reused for agricultural purposes.

I hope that the Minister has understood the drift of what I have said. Our attention has been drawn to this primarily by the Association of Metropolitan Authorities, which wishes to ensure that the burdens placed upon the users or producers of some wastes are equally carried by others. Not only from the point of view of the cost of providing the service but also because there is a genuine need, it would contribute much to the sadness and distress of the Committee if quite simple illustrations were to be produced and we found that the loophole which we believe we see was not closed. I beg to move.

The Earl of Balfour

Perhaps Members of the Committee would be good enough to turn to page 79 of the Bill, Clause 72(7), describing the meaning of "waste". The provision specifically excludes from "commercial waste" waste from any mine or quarry and so on. I feel that there is a slight conflict of interest on both sides of the Committee over this.

Lord Graham of Edmonton

Perhaps I may help the noble Earl. We wonder why there is this exclusion, which is why we have proposed the amendment to place that kind of waste under the control of some form of legislation. It was specifically excluded and I am sure that the Minister will tell us why, as well as why that exclusion is not to the detriment of the consumer.

Lord McNair

The noble Lord has explained fully the reasons for the amendment. I wish to add my support and that of those who sit on these Benches.

Lord Reay

As the noble Lord, Lord Graham of Edmonton, has explained, Amendment No. 142 is concerned with waste outside the definition of controlled waste and therefore outside the provisions of this part of the Bill. Wastes are outside these controls at present because they both have control regimes elsewhere. However, the Bill contains in Clause 60 powers to make regulations to bring such wastes under the controls of this part of the Bill if that should prove necessary in the future.

It may be helpful if I briefly outline what are the existing controls in each case. The disposal of wastes from mines and quarries is covered by controls under the Town and Country Planning Acts. The same tier of local government is responsible for granting planning permission for both mineral sites and waste disposal sites. In granting permission for a mine or quarry, the mineral planning authority would wish to be satisfied that appropriate arrangements had been made for the disposal of all types of waste likely to arise. The majority of waste from mines and quarries is inert material from the mine itself. It is quite proper that this should be simply returned to or left in its place of origin under the control of the planning permission and without the need for a waste management licence.

Regarding agricultural waste, disposal is covered by MAFF codes of practice and in most cases it is recycled as a beneficial product on to farm land as part of normal agricultural operations. However, we accept the need for appropriate statutory requirements governing the disposal of materials such as pesticides. The Ministry of Agriculture has already introduced controls in this area and the Department of the Environment is discussing with the Minister whether any further controls are needed.

The noble Lord, Lord Graham of Edmonton, asked me about factory farms. They would come under or fall within the definition of a factory under the Factories Act and so their waste would be industrial waste. I should also point out that subsection (2) of Clause 60, which carries forward existing provisions of the Control of Pollution Act, provides that it is an offence to dispose of any dangerous type of non-controlled waste in a manner which would be an offence if it were controlled waste. For instance, if waste pesticide were to be illegally dumped that is already an offence under Section 18 of the Control of Pollution Act and will continue to be so under the provisions of this Bill.

It is, however, quite clear that it would not be sensible to require 250,000 farms to be licensed by local authorities for the disposal of the majority of farm wastes, which are quite innocuous. Any further provision that may be needed could be introduced through the regulation-making powers in Clause 60. Such a provision could be much more flexible allowing different types of waste, different types of farm or different types of disposal method to be brought under control. We do not see an advantage in introducing a blanket provision —that would catch many things which do not need to be covered —through an amendment on the face of the Bill.

Lord Graham of Edmonton

I am grateful to the Minister for commenting on the illustrations that I gave. If they are not caught by the definition of controlled waste, they are controlled in some other way and under some other legislation. So far, so good. The Minister will understand that the overwhelming majority of farmers will be sensible and will set the best hygiene standards for their farm and neighbourhood. However, there will still be cases where the disposal of waste is not carried out as it should be. Fly tipping has been referred to.

I am particularly concerned about food as opposed to toxic or poisonous substances. I take the Minister's point that it may be too cumbersome to require hundreds of thousands of little businesses to be licensed in this respect. However, this matter could be dealt with in another way. I shall of course withdraw the amendments and consider the Minister's comments.

The Minister also referred to kinds of waste which are excluded from this measure. The noble Earl, Lord Balfour, kindly highlighted the fact that certain kinds of waste are excluded as they are covered by other prohibitions. Perhaps the Minister is telling me that there is no need for the amendments. Many amendments from this side of the Chamber fall because there is no need for them. However, if the Minister is saying there is no need for the amendments he must explain further why there is no need for them. He has already stated that these areas are just as controlled as any other but by some other legislation.

Those people who have asked me to draw this matter to the attention of the Committee will read what has been said and decide whether the position is satisfactory. We are all motivated by the same desires as regards this Bill. There have been some sad incidents recently in respect of food and hygiene. Therefore we have an opportunity to rectify matters here which we cannot afford to miss. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

Lord Graham of Edmonton

moved Amendment No. [43: Page, 28, line 44, at end insert: ('(12) For the purposes of this Part, waste which is not controlled waste which is disposed of at a licensed facility shall be treated as controlled waste"). The noble Lord said: I beg to move Amendment No. 143 standing in the name of my noble friend Lord McIntosh of Haringey. The amendment states: For the purposes of this Part, waste which is not controlled waste which is disposed of at a licensed facility shall be treated as controlled waste". This matter refers to the second part of the question that I posed earlier. The kinds of waste which the Minister said were excluded from the provisions of Clause 72 still have to be disposed of somewhere. They have to be disposed of at a licensed site. The same rigours which are applied to controlled waste need to be applied to waste which is not controlled. The purpose of the amendment is to apply controls on the basis of whether the material is put into the system and could damage the environment rather than on the basis of its origins. The raison d'être for the existing controls on non-controlled waste is based on its origins. We seek to apply a fresh test to non-controlled waste which is based on whether the materials are put into the system and could damage the environment.

The current system of waste disposal licensing is designed to ensure the safe and effective disposal of controlled waste. Any waste which is controlled waste is thus subject to a regime which, in theory, allows for the planning of sufficient facilities to deal with the volume of waste arising in the most appropriate fashion. Therefore sufficient facilities are required to do this but there must also be information about the material which is disposed of at such facilities.

Problems arise where uncontrolled waste is submitted for disposal at a licensed waste site. While it is subject to the requisite charges to meet the cost of disposal, as I understand it, there are no requirements that it should be subject to other controls. The Minister can correct me if I am wrong on that. Such controls would detail the nature of the waste and ideally its origins. By virtue of the fact that the waste is uncontrolled, such information is not only not forthcoming but there is no onus on the handler of the waste who brings it to a site to prove that it is not controlled waste. If what we assert is the case, there is cause for concern. There is thus a loophole in the system which presents waste disposal operators and site operators with the problem of having to accept poorly documented consignments of waste.

An additional problem will arise when the Control of Pollution (Amendment) Act 1989 comes into force. The provisions of that Act are, inter alia, to set up a system for the registration of carriers of controlled waste. One of the main principles behind this Act is to combat the problems caused by fly tipping, which has already been referred to.

It will be an offence under the Act, when the regulations are produced, for the unregistered carrier to handle controlled waste. The problem which arises with respect to uncontrolled waste is that there is no need for this to be carried by a licensed handler. The Minister may tell us that we have misunderstood the position, but if uncontrolled waste is carried by an unlicensed handler none of the controls covering licensed handlers, such as their bona fides as to their appropriate operating experience, will apply. The amendment seeks to ensure that any waste presented for disposal at a licensed site will be deemed controlled waste whatever its origin and nature. I hope the Minister can reassure us that our concerns are groundless or, if that is not the case, that he will deal with the matter at a later stage.

Lord Renton

This appears to be a purely technical and drafting matter. I wonder whether the noble Lord will look at Clause 72(4) where he will find a definition of controlled waste. Clause 72(4) states: 'Controlled waste' means household, industrial and commercial waste or any such waste". If the noble Lord wants to amend that definition, as he obviously does—he has referred to the use of that expression in Part I as a whole —may I suggest that it might have been better, instead of inserting the amendment here as a new subsection to Clause 29, to amplify subsection (4) of Clause 72. I want to hear what my noble friend on the Front Bench has to say, but for my part I am not certain that the point that the noble Lord has made needs to be dealt with at all.

Lord Graham of Edmonton

Perhaps I may reply to the noble Lord, Lord Renton. Like the noble Lord, I am looking forward to hearing what the Minister can say to reassure us. The noble Lord will understand that the definition of controlled waste specifically excludes waste from mines, quarries and agricultural premises. The Minister has satisfied me in part that the disposal of such waste is already covered by the Factories Act and in other ways. However, it is because that waste is excluded from the definition of controlled waste that we are concerned not only about the manner in which it is disposed of but also the manner in which it is carried. In the event of what I consider the double jeopardy of uncontrolled waste being carried by unlicensed carriers, some of the safeguards that are contained in the control element will be missing.

The Minister may tell us that our fears are groundless, in which case I shall be happy to withdraw the amendment. After I have done that I shall certainly join with the noble Lord, Lord Renton, in seeing whether we can devise a form of words which would strengthen the protection of the consumer without necessarily weakening the provisions of the Bill.

The Earl of Balfour

I am very concerned about the amendment. Members of the Committee may not realise why. The first line of the amendment reads: For the purposes of this Part, waste which is not controlled waste". I feel that that subjsection should read: "For the purposes of this Part, waste which is special waste".

I am sure that that is not what the noble Lord intended. If consideration is to be given to this matter I believe that the proposed subsection (12) should read on these lines: "For the purposes of this Part, waste which is neither controlled waste nor special waste which is disposed of at a licensed facility".

Lord McIntosh of Haringey

I think that the noble Earl has misinterpreted the definition of controlled waste. Special waste is a category of controlled waste and one to which special precautions apply. It is not a discrete category from controlled waste.

The Earl of Balfour

Nevertheless, the amendment refers to waste which is not controlled waste.

Lord McIntosh of Haringey

That is because in this amendment we are seeking to secure that waste which goes to a licensed disposal site is covered, whatever it is and whether or not it is controlled. We have specified that waste which is not controlled waste must be considered as controlled waste and treated as such. To introduce the category of special waste into the amendment would be like introducing the categories industrial, commercial or household controlled waste. It would be an irrelevance.

Lord Reay

Amendment No. 143 seeks to allow a waste disposal licence to include provision for the control of any non-controlled waste which may be disposed of at a licensed site. I can give the noble Lord an assurance that Clause 34(5), which was introduced in another place, achieves that objective. Therefore I hope that the noble Lord will not press his amendment.

Lord Graham of Edmonton

I shall do something that the Minister did not do and read out the words of Clause 34(5), primarily for my own edification: Conditions may relate, where waste other than controlled waste is to be treated, kept or disposed of, to the treatment, keeping or disposal of that other waste". Is the Minister telling me that the words "conditions may relate" would apply to the circumstances that I outlined?

Lord Reay

Yes. My understanding is that what the noble Lord's amendment seeks to achieve is fully covered by the terms of that subsection of Clause 34.

Lord Graham of Edmonton

The Minister has made a good start. He should keep it up. That is eminently satisfactory to us. I am grateful to him for drawing our attention not only to the words but also to the interpretation of those words in the context of the specific illustration that I gave. I am very grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 agreed to.

Clause 30 [Authorities for purposes of this Part]:

Lord Lucas of Chilworth

moved Amendment No. 144: Page 29, leave out lines 3 to 19 and insert:

1. ("(a) for Greater London, the authority constituted as the London Waste Regulation Authority;
2. (b) for any metropolitan or non-metropolitan county in England, and for any district council in Wales and for any islands or district council in Scotland, the authority constituted as the Waste Regulation Authority, pursuant to an order made by the Secretary of State;
3. (c) no person shall be a member of an authority established by an order under this subsection unless he is a member of one of the councils for whose areas the authority is established."

and in making any order under this subsection the Secretary of State shall have regard to the boundaries of the existing water and sewerage undertakings within the meaning of the Water Act 1989 and existing patterns of waste arisings and disposals."). The noble Lord said: I wish to move Amendment No. 144 on behalf of my noble friend Lord Nathan. My noble friend is unable to be present this afternoon since he is attending a Select Committee, of which he is chairman. I am sure that your Lordships' Committee will appreciate the reason for his absence.

In moving Amendment No. 144 I should like to speak also to Amendments Nos. 145, 146 and 257. The purpose of the first three amendments is to seek to establish regional waste regulation authorities. The Committee may recall that the Science and Technology Committee and the Welsh Affairs Committee in another place recommended that that should take place. The amendments provide for members of such authorities to be drawn from the local authorities of the areas covered.

The proposal was debated fairly extensively at the Committee and Report stages in another place and received all-party support. At that time the Government indicated that the matter would have to be addressed in the White Paper, to which my noble friend the Minister referred in earlier proceedings on this Bill. He spoke of setting up informal groups for waste regulation. That is referred to at col. 790 of the Commons Official Report of 30th April 1990.

In winding up in your Lordships' House at Second Reading the Minister referred to greater co-operation between the authorities at regional level, both for licensing and the creation of regional strategies for the provision of disposal facilities. (That is reported at col. 582 of Hansard of 18th May 1990). Since, therefore, the principle of regionalisation has been accepted it seems sensible that it should be placed on a statutory basis.

The advantages of doing so would be that the regional authorities would then be of sufficient size and have sufficient authority to employ a full range of inspectors and a full range of technical specialists. It would also bring together all aspects of waste management and facilitate the adoption of the best practical environmental options for waste disposal. The authorities would also be of a size to establish an effective enforcement agency against any real or robust criminal activity, which is a worry that perhaps underlay the recent amendment of the noble Lord, Lord Graham of Edmonton. Amendments Nos. 145 and 146 are consequential upon Amendment No. 144. Amendment No. 257 is a reserve amendment in that the proposed new clause following Clause 63 would enable the Secretary of State to bring local authorities together for waste regulation purposes.

We are talking—I believe that we shall probably touch on this later today —of a potential of some 150 authorities. It would therefore seem sensible to require them to be drawn together, we suggest, on a regional basis. I beg to move.

5 p.m.

Lord Moran

I should like to support the amendment. The noble Lord, Lord Lucas of Chilworth, has put the case clearly and comprehensively: there is not much for me to add.

The essential point is to have waste authorities which are large and efficient enough to do the job effectively. There is one clear and relevant example. When local government in London was reorganised, the London Waste Regulation Authority was set up. It provides a good example of the benefits of the kind of authority that we are discussing. In London there are 55 inspectors, most of them qualified engineers or chemists. It is an organisation of that size and competence that we seek in the amendment.

The Earl of Balfour

I am not happy about these amendments, particularly Amendment No. 144. Clause 30 applies to Scotland. As far as I can see, the provision would certainly not accord with the Scottish provisions. Equally, to leave out subsection (7) as provided for in Amendment No. 146 would be to bring back together the functions of various authorities so admirably separated by the Government and described in Amendment No. 147 to be moved by my noble friend the Minister.

Lord Hesketh

Amendments Nos. 144 and 257 are familiar. Similar amendments were tabled in another place earlier in the Bill's passage. I shall deal first with Amendment No. 144 and the two minor amendments associated with it, Amendments Nos. 145 and 146. If I understand them correctly, they would have my right honourable friend the Secretary of State for the Environment setting up statutory regional waste regulation authorities. That would be a major departure from what we currently have in the Bill and would result in considerable disruption of existing local authorities.

The Government believe that in principle decisions about waste disposal licensing and enforcement should be taken by locally accountable regulation authorities. An earlier suggestion that regulation should be carried out by a national body or by statutory regional authorities was rejected for that reason. However, it has become apparent that leaving waste regulation with the existing level of local government might cause the authorities some difficulties. Most notably, there is the problem of the lack of expert staff—a problem which, as we discussed on Tuesday, exists throughout the waste industry and which, it is argued, will only be exacerbated by the new range of powers and duties given to regulation authorities in the Bill.

In addition, there is a desire to implement a more strategic approach to waste disposal planning and regulation. Key aims of the strategic approach are greater consistency of standards across local authority boundaries and the desire to implement a policy of regional self-sufficiency in waste disposal. There were lengthy discussions in another place about regional waste regulation authorities. At that time my right honourable friend the Minister for the Environment and Countryside signalled his willingness to explore the scope for voluntary regional authorities.

The Government fully accept the need for enhanced regional co-operation and co-ordination of effort and resources. That is the best way for standards to be raised and to be made more consistent. To encourage that co-operation, officials have already held a meeting with the local authority associations to discuss the way forward and another meeting is to be held with elected representatives of the associations later this month. I stress again that our preferred option would be for voluntary joint committees to be set up by the authorities themselves, with help and guidance as necessary from central government. That retains the element of local accountability which is vital in decisions about waste disposal and which understandably raises considerable local concerns. It also makes the best use of scarce staff resources.

Amendment No. 257 is closer to our thinking. I trust that my noble friend will understand that I do not wish to prejudge the outcome of the meeting to which I referred by accepting this amendment now. However, the Government do not have a closed mind on the issue and may consider taking a reserve power along the lines of Amendment No. 257 if satisfactory voluntary arrangements cannot be made. I hope that, in the light of that explanation, my noble friend will withdraw his amendment.

Lord Lucas of Chilworth

I am most grateful to my noble friend the Minister for his explanation. Although the noble Lord, Lord Moran, gave his unstinting support to the proposal, I feel sure that he will also accept what my noble friend said.

There is danger of spreading a scarce resource too thinly across the country. I have some doubt as to the efficiency of voluntary arrangements but, like my noble friend the Minister, I would certainly not wish, by anything I say or do this afternoon, to cast any shadow across the meetings that will take place. I note that my noble friend the Minister said that the Government do not have a closed mind on the matter. Presumably, as he did not refer to it in his answer, the White Paper, which we understand is to be published in September or October, may contain some further governmental thinking on the issue. That would give us ample time in which to pursue the principle embodied in Amendment No. 257 before the passage of the Bill is completed in this Session. I believe that that understanding is correct. I beg leave to withdraw the amendment.

Amndment, by leave, withdrawn.

[Amendments Nos. 145 and 146 not moved.]

Lord Hesketh

moved Amendment No. 147: Page 30, line 31, leave out from second ("authority") to end of line 35 and insert: ("(a) to make administrative arrangements for keeping its functions as a waste regulation authority separate from its functions as a waste disposal authority; and (b) to submit details of the arrangements which it has made to the Secretary of State. (8) The Secretary of State may give to an authority to which subsection (7) above applies directions as to the arrangements which it is to make for the purpose of keeping its functions as a waste regulation authority separate from its functions as a waste disposal authority; and it shall be the duty of the authority to give effect to the directions"). The noble Lord said: Amendment No. 147, in my name, is a small but important amendment. It clarifies the requirement that local authorities separate the functions of waste regulation from their new client role as waste disposal authority.

It is vital that that separation of functions is not only made, but is clearly seen to be made. For too long, authorities have suffered from the real or perceived conflict of interest between their role as disposer of waste and their role as regulator. Simply transferring local authority disposal operations to arm's length companies is not enough to avoid continued allegations that that conflict of interest remains. Our intention is in no way to impugn local authorities which have two key but distinctive functions. Instead, we aim for and must achieve a situation in which the authorities are above suspicion of a clash of interests between their role as regulator seeking the highest possible standards, and as the disposal authority looking also for value for money.

My right honourable friend the Secretary of State will be empowered not only to examine the administrative arrangements made by the authorities, but also to direct them to make different arrangements where he is not satisfied that the adequate separation of functions exists. We believe that that is the very least that the public expects to see. I beg to move.

Lord McIntosh of Haringey

We have no complaint with the objective of the amendment. What worries me about it is the provision whereby individual local authorities shall submit to the Secretary of State details of the administrative arrangements that they make, and the Secretary of State shall give directions to individual local authorities. The thought of that happening throughout the country without any general rules being set by the Secretary of State as to what the administrative arrangements should be fills me with dismay.

I am bound to say that it means that in effect the Secretary of State is second guessing the local authorities, who have an interest themselves in keeping their regulatory functions away from their disposal functions. Of course they do. Surely it would be better to use such a power only as a last resort, and for the Secretary of State to state in general terms what arrangements he would consider satisfactory so that he only has to intervene with the local authority as a very last resort if there is no assurance given that the principles have been adhered to.

Lord Hesketh

I think it is fair to say, first, that guidance will be given before any directions are issued. The noble Lord, Lord McIntosh, used the words "last resort". The purpose of this amendment is to provide the backstop, which, if it did not apply to a local authority, I am sure the noble Lord would have accepted with glee.

Lord McIntosh of Haringey

That is unfair and unreasonable. I do not treat local authorities separately from any of the other bodies that have to deal with government. I am simply suggesting for the sake of better administration, both of central government and of local government, that there should be general guidance given, first, so that there can be exception management in cases where something is absolutely necessary —as I said, as a last resort. The Minister acknowledged that to some extent in his reply. What he has not done is to say how it is achieved by the amendment.

If the Minister will say to me that he is willing to discuss the directions that should be given between now and a later stage, then by all means let us let this amendment go. However, it would be in his interests, as well as in the interests of local authorities, to minimise the role of direction between the Department of the Environment, the Secretary of State and individual local authorities and to maximise the extent to which the Secretary of State makes up his mind what he wants and makes it clear to local authorities as a whole, then only exceptions would have to be dealt with. I should have thought that that was the minimum of good management.

Lord Hesketh

In reply for the second time to the noble Lord, I shall again take his words and point out that we are committed to providing the guidance in order that the Secretary of State's role is absolutely minimised to the minimal position.

Clause 30, as amended, agreed to.

Clause 31 [Transition to waste disposal companies etc.]:

[Amendment No. 148 not moved.]

Lord Reay

moved Amendments Nos. 148A to 148C: Page 32, line 1, at beginning insert ("Subject to subsection (9A) below"). Page 32, line 5, at end insert: ("(9A) Subsection (9) above shall not apply in the case of a company which a waste disposal authority has formed or participated in forming in pursuance of subsection (2)(a) above until after the vesting date for that company."). Page 32, line 13, leave out ("has") and insert ("and "vesting date" have"). The noble Lord said: This group of amendments in the name of my noble friend Lord Hesketh exempts local authority companies from the requirement that they be run at arm's length until after their vesting date. This is an important measure of flexibility as it will allow authorities and their companies to decide when to resolve that their company should be run at arm's length. It is important that, prior to vesting, companies should not be subject to the additional conditions applied to arm's length companies under Part V of the Local Government and Housing Act 1989. I beg to move.

Clause 31, as amended, agreed to.

Schedule 2 [Waste Disposal Authorities and Companies]:

[Amendment No. 149 not moved.]

The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran)

moved Amendment No. 149A: Page 147, line 49, after ("treatment") insert (", keeping") The noble Earl said: On behalf of my noble friend I wish to move Amendment No. 149A and speak to Amendments Nos. 153ZA and 153ZB. While Amendment No. 149A is a minor drafting amendment, Amendments Nos. 153ZA and 153ZB provide flexibility for the Secretary of State to give approval to certain restrictions on the transfer of securities in LAWDCs; for example, to permit employee share schemes. I beg to move.

Lord Layton

moved Amendment No. 149B: Page 150, line 17, leave out ("undue"). The noble Lord said: This is a simple point. We are talking here about discrimination and the Bill talks about "undue discrimination". This rather gives the nod to allowing discrimination. I speak from experience. Allowing discretionary powers of that sort can lead to a great many problems. I suggest leaving out the word "undue" and just sticking with the idea of no discrimination at all. That would be a much better idea. I beg to move.

Lord Hesketh

Amendment No. 149B seeks to delete the word "undue" from paragraph 17 of Schedule 2. I can understand the wish of my noble friend Lord Layton to ensure that there should be no discrimination when contracts are being drawn up, and I share that wish. However, I can reassure him that the word "undue" is justified in this context as it will allow authorities to choose one particular contractor on the basis of their tender for the work.

Authorities must, by definition, show some discrimination when choosing one contractor or another. The term "undue" makes clear that the discrimination should be on the grounds of environmental factors and value for money. It in no way implies that authorities may favour their own LAWDCs or any other company. I trust that these reassurances will prevent my noble friend from forcing his amendment.

Lord Layton

I accept the assurances, but I still think at this point that it would be better to use the word "discrimination" than "undue discrimination". I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord Lloyd of Kilgerran

moved Amendment No. 150: Page 150, line 18, at end insert: ("This paragraph shall not be construed as limiting the duty of a waste disposal authority under paragraph 18(1)."). The noble Lord said: I beg to move Amendment No. 150, and with the leave of the Committee speak to Amendments Nos. 151 and 153, all three being in my name. The amendments are directed to Part II of Schedule 2 to be found on page 150 of the Bill. It is intituled: Provisions Regulating Waste Disposal Authorities and Companies". There is a subtitle to Part II: Terms of waste disposal contracts". Great concern has often been expressed that, while it is a quite proper requirement that treatment of waste disposal should be put out to tender, this may result in the waste disposal authorities, with at present, as is well known, few qualified staff—and even the current staff may be diluted by the necessary separation of regulation and disposal of waste —accepting rather uncritically the lowest price, which would perhaps be natural in certain circumstances, particularly in face of the strongly organised lobby pressing for the adoption of landfill as the disposal method of choice.

I should say that I am advised in this matter by Professor Peter Isaac, a chartered civil engineer, who was a specialist adviser to the House of Lords Select Committee on Science and Technology which reported on hazardous waste disposal of 1980–81 under the able chairmanship of the noble Lord, Lord Gregson. This becomes a serious administrative matter. As I have said, there is a strong lobby in Britain in favour of landfill as the disposal method of choice. But while landfill operations can be satisfactory if skilfully operated, the proportion of waste being deposited on land in this country is far greater than in the other EC countries. The trend is running against landfill operations. That is to be found in the passages in the EC Directive No. SEC/89/934, entitled A Community Strategy for Waste Management.

The Committee will be fully aware that there is considerable public pressure at present to improve this country's protection of the environment. However, changing the pattern of a large and important activity such as waste disposal will no doubt take some considerable time. Therefore in my submission we should not delay initiating that change. For that reason we believe that the Bill must place requirements on waste disposal authorities to prevent their acceptance of the lowest tender in all cases without having given thought to the necessity of minimising the environmental impact of outdated disposal methods such as landfill.

I now refer to the specific amendments that I propose. Amendment No. 150 is directed to paragraph 17 of Part II of Schedule 2. Paragraph 17 states: A waste disposal authority shall, in determining the terms and conditions of any contract which the authority proposes to enter into for the keeping, treatment or disposal of waste, so frame the terms and conditions as to avoid undue discrimination in favour of one description of waste disposal contractor as against other descriptions of waste disposal contractors". Those are somewhat curious general words. My amendment proposes to add to the end of that general statement that paragraph 17, shall not be construed as limiting the duty of a waste disposal authority under paragraph 18(1)". I now refer to paragraph 18 in the schedule. It deals with the provisions relating to waste disposal authorities and companies. Paragraph 18 begins with the general words, A waste disposal authority shall have regard to the desirability of including in any contract". I need not read the remainder of the paragraph because my amendment is directed towards making the initial words of the paragraph more specific. Amendment No. 151 proposes that instead of stating that, A waste disposal authority shall have regard to the desirability of including in any contract", paragraph 18 should state: shall include in any contract". That gets rid of the general words, have regard to the desirability of including". My third amendment relates to paragraph 20 of Part II of Schedule 2. It is quite clear that there will always be a tendency for the officers in the authorities quite naturally to go for the lowest tender. The objective of Amendment No. 153 is to put into the Bill that the authority shall have critical regard to the nature of the waste and to methods other than landfill for the purposes of disposal of that waste.

Accordingly Amendment No. 153 proposes to insert a further clause. New paragraph 20A states: A waste disposal authority, in taking any of the following decisions, namely—

1. (a) who to invite to tender for the contract under paragraph 19(4)(a) above, and
2. (b) who to enter into contract with,

shall have regard" — and these are the essential words — to the experience of any waste disposal contractor tendering for the contract, and to his proved ability to satisfy the terms or conditions laid down under paragraph 18(1) above", to which I have referred. It is therefore a precautionary set of amendments. The amendments draw to the attention of authorities that there may be special methods of disposal in relation to certain waste which will be more effective in preserving the environment. The amendments in effect warn the authorities that they should not necessarily go for the cheapest method of disposal —that is by landfill —because in many cases landfill in the long term proves very unsatisfactory for the environment.

To sum up, it is accepted that properly controlled landfill will still play an important part in any waste disposal strategy. The amendments are directed towards ensuring long-term protection of the environment which may not be satisfied by landfill. Therefore treatment and pre-treatment options increasingly better known and more effective than landfill for waste disposal must be given proper consideration at all stages. They may be more expensive in the short term but they become more expensive in the long term in certain circumstances because of the unsatisfactory nature of landfill.

This attitude is in strict conformity with the increasing stringency of EC directives in this field, one of which I referred to earlier. I beg to move.

Lord Hesketh

I was under the possibly mistaken impression that the amendment was grouped with Amendment No. 152 on which the noble Lord, Lord McIntosh, was going to illuminate the Committee.

Lord McIntosh of Haringey

I asked for it not to be so grouped. I have not seen the final version of the groupings. I apologise. I thought that I had arranged for it to be taken out of the group.

Lord Hesketh

It is on the list that I have.

Noble Lords

Order!

Lord McIntosh of Haringey

I beg the Committee's pardon. It was my intention to give instructions not to include it in that group. I hope that the Minister will allow Amendment No. 152 to be taken separately.

Lord Lloyd of Kilgerran

I had understood that that was the position. I therefore did not refer to Amendment No. 152 although it was grouped with the three amendments to which I have spoken.

Lord Hesketh

I accept full responsibility for that and issue a small proportion of blame to whatever word processor produced the sheet that I have.

I have nothing in principle against Amendment No. 150. However, I resist it on the ground that it does not add to the Bill. There are no circumstances in which the provisions of paragraph 17 would be construed as limiting the duty of a waste disposal authority under paragraph 18(1). We believe that the two matters are completely separate. Paragraph 17 merely seeks to prevent a disposal authority from offering contracts which restrict or distort competition —for example, by offering a contract which may favour its own LAWDC. The duty in paragraph 18(1) is to consider ways of minimising pollution and maximising recycling. The duty will not be affected in any way by the terms of paragraph 17.

I can assure the noble Lord, Lord Lloyd, that the effect of the word "undue" which is first retained in paragraph 17 means that a waste disposal authority may discriminate in favour of those contractors who offer recycling and the best environmental option for disposing of waste. That discrimination in favour of such contractors would therefore be due discrimination permitted by paragraph 17.

I can sympathise with the intention of Amendment No. 151 which seeks to strengthen the recycling provisions of the Bill but I am convinced that the current balance is right. The Bill already requires disposal authorities to have regard to the potential for recycling, waste minimisation and the prevention of pollution. The extent to which those considerations can be included in contracts is properly a matter for the relevant locally accountable disposal authority rather than for central government. The Bill as drafted gives disposal authorities the necessary autonomy and flexibility to draw up contracts which will suit their particular circumstances.

Amendment No. 153 would require disposal authorities to take into account the experience of the contractor when awarding contracts. I should point out to the noble Lord, Lord Lloyd, that under the new licensing regime account will be taken of the contractor's previous record including prosecutions by regulation authorities, competence and financial backing. Disposal authorities will be able to let contracts only to licensed contractors who will already have been closely scrutinised. Disposal authorities should then satisfy themselves that their preferred option is both environmentally acceptable and offers value for money.

The amendment may also have the unfortunate side effect of discouraging authorities from awarding contracts to new firms which may, technically and financially, be equipped to carry out the contract. I hope that the noble Lord is reassured by my response to his three amendments and that he will see fit to withdraw them.

Lord Lloyd of Kilgerran

I am grateful to the Minister for his explanation and for his expression of sympathy in regard to the basis of my two amendments, Amendments Nos. 150 and 151. I have some sympathy with his sympathy having regard to his position in relation with those amendments. I do not at this stage propose to press Amendments Nos. 150 and 151.

I am in some difficulty about Amendment No. 153. I did not quite understand the Minister's reply. He said that the points raised in Amendment No. 153 would be covered by licensing arrangements. I am not sure what licensing arrangements he has in mind. The object of Amendment No. 153 is to draw the attention of the waste disposal authority to the various methods of waste disposal depending upon the circumstances of the waste and the territory with which it is concerned.

I shall read what the Minister has said, take the advice of Professor Isaac and, if necessary, come back to this matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave withdraw.

[Amendment No. 151 not moved.]

5.30 p.m.

Lord Graham of Edmonton moved Amendment No. 152: Page 151, line 2, at end insert: ("(2A) In seeking to let any contract, the authority shall have regard to the environmental consequences of activities under the proposed specification, including any benefits arising from the incineration of waste"). The noble Lord said: This amendment has been tabled in the name of my noble friend Lord McIntosh of Haringey. Those who follow these matters closely and those who have listened to the excellent exposition of this part of the Bill by the noble Lord, Lord Lloyd, will find that the issue of incineration causes some heat —not just in this place but elsewhere. The noble Lord, Lord Lloyd, explained soundly and fully why it is very important that in some way or another there should be no dubiety with regard to the people who will operate the waste disposal facilities, what they will use to dispose of the waste and, in the context of protection of the environment, what the impact on the environment will be when different methods are used.

This is a probing amendment. It allows the Government to give their views to this Chamber and those outside it on the question of incineration of certain wastes. It is acknowledged that paragraph 18 of Schedule 2 allows a waste disposal authority to have regard to the desirability of including in any contract that the authority proposes to enter into, for the keeping, treatment or disposal of waste, terms or conditions designed, among other things, to minimise pollution. That is the basis on which we have brought forward this amendment: the methods whereby pollution can be minimised.

The purpose of the amendment is to ensure that specific consideration of the benefits or disbenefits of incineration are taken into account when such decisions are made. I hope that the Minister will not say that in the generality of things that surely will be taken into account. Sadly, an assumption that people will pay due regard to the consequences of doing one thing or another is not always confirmed in relation to many things that happen.

It is recognised that for certain wastes, disposal by incineration is the best practical environmental option. In particular, many special wastes require high temperature incineration. It is generally agreed that that is the appropriate disposal route for clinical wastes. In Edmonton there is an excellent facility, pioneered by the Greater London Council, which offers a very good synthesis of both those factors. Adjacent to the Edmonton incinerator is the North Middlesex Hospital. That enables me to point to the careful way in which the disposal of clinical waste needs to be handled and how absolutely crucial is the incineration process. I have visited the site more than once. I am satisfied with the quality of the work that takes place there; I am convinced that it is absolutely imperative for that kind of facility to be made available.

There is a good argument for considering incineration among the range of disposal options that may occur as a result of the tendering process. However, there are other issues associated with incineration which need to be taken into account. I am advised by the AMA that the current position in the United Kingdom with regard to municipal waste incineration is that of the existing 35 or so municipal waste incinerators most will be time-expired (that is, they will have come to the end of their useful life) by the turn of the century. Even before that time, new proposals emanating from the European Community, with which most of us agree, will place stringent emission requirements upon such incinerators.

The effect will be that only a handful of incinerators are likely still to be in operation by the end of the century. So far as concerns the United Kingdom, it would seem therefore that incineration of domestic waste will no longer be an available option. The main reason for incinerators being closed down rather than equipment being installed to meet the new emission standards is economic rather than practical. Certainly, the standard could be met but the cost of installing abatement equipment would be so high that it could not be recouped from charges for incineration over the remaining life of the plant. There are no political or partisan points here. These are facts of life which must be taken into account.

Aside from high temperature incineration, which is the preferred disposal option for certain wastes, there is need to give consideration to the energy recovery potential that is possible from such plants. We expect the Minister to deal in part with the energy dividend that is available from an incineration process. In practice this may come from using the heat generated from the combustion process to generate power, as in the case of the incinerator at Edmonton, or there is the possibility of operating a district heating scheme, as is the case at Sheffield. The value of the power generated or heat produced when offset against the operating costs and construction work may make those plants economically viable.

That is the case we make. When going out to tender one needs to include in the factors that are borne in mind the consequences of incineration. Several schemes for new combustion engines at plants with associated energy recovery schemes have been put forward. They have been designed to take advantage of recent proposals by the Department of Energy under its commitment to achieve a proportion of the UK's power generation from non-fossil fuel or renewable energy resources. The scheme provides a guaranteed value for the energy produced that is considerably higher than the price paid by electricity boards for energy currently generated in that fashion. Unfortunately, the recent decision that the period during which prices are guaranteed should be drastically reduced has affected the viability of various schemes.

I hope that the Minister has a persuasive brief. I believe that the Bill can be improved if he takes on board two points: first, that incineration per se in certain circumstances is not only the best but should be the only means of disposing of certain waste; and secondly, that an opportunity is afforded to put into practice not only the Government's desire but the whole world's desire to use and conserve energy in the best possible way. I beg to move.

Lord Hesketh

Amendment No. 152 would require waste disposal authorities to have regard to the environmental consequences of the terms of contract which it enters into. The Bill already contains such a regard and goes even further. Paragraph 18(1) requires authorities to consider the maximisation of recycling as well as the minimisation of pollution of the environment.

It is important to remind the noble Lord, Lord Graham of Edmonton, that authorities are not required to take the lowest cost tender. Incineration may well be more expensive than landfill but may give the environmental benefits such as heat, power and energy recovery to which he referred. Authorities will not be prohibited from choosing incineration where the environmental benefits can be demonstrated. Therefore, I believe that the point raised by the noble Lord is covered and that in some ways we have anticipated it. I hope that he is satisfied with my explanation.

Lord Graham of Edmonton

I am grateful to the Minister. He said that authorities would not be "prohibited". However, we wish to see positive encouragement. I believe that there is discouragement of incineration not least because of the capital cost of the equipment. I should like the Minister to say more. I used the illustration of the North Middlesex Hospital. However, in many trade processes it is essential that waste be disposed of by incineration. Also, in the context of the Government's proposals, there is a need to conserve energy.

Can the Minister not say something helpful? I do not intend to press the amendment. However, he said that pollution should be considered. The amendment specifically relates to incineration as a means of dealing with pollution. Can the Minister say something more about incineration as a means of disposal? It is not merely something that should be borne in mind by those who wish to use it. We believe that it has a possible benefit.

5.45 p.m.

Lord Hesketh

I fear that I shall not be able to satisfy the noble Lord, Lord Graham, in the way he wishes. In an earlier reply to the noble Lord, Lord Lloyd of Kilgerran, I pointed out that we do not wish to exempt those who have ideas or concepts by the interpretation of the word "undue" as regards his amendments. If we start trying to put every form of anticipated technology on the face of the Bill, there will be a great deal of extra paperwork.

We have demonstrated the importance we attach to the commitment which does not remove incineration on a fiscal basis. I have made that absolutely clear in terms of the basis upon which an authority can contract from an environmental point of view. I fully appreciate the points made by the noble Lord. At the same time, we wish to provide authorities with the opportunity to make an assessment at their level rather than stipulating on every occasion from the Department of the Environment.

Lord Graham of Edmonton

Is the Minister saying that he has no view one way or the other as to whether incineration as a means of disposal for certain wastes is good or bad? If seems to me that the Minister is vacillating and sitting on the fence. He wants authorities to dispose of waste in any way they can. We are saying that if the best means of such disposal is by incineration then there should be encouragement to do that. I am disappointed in the Minister's reply. I do not know whether those outside the Committee will be satisfied with his response.I remain to be convinced. I beg leave to withdraw the amendment.

Amendment, be leave, withdrawn.

[Amendment No. 153 not moved.]

Lord Hesketh moved Amendments Nos. 153ZA and 153ZB: Page 151. line 35, at beginning insert ("Subject to sub-paragraph (3) below,"). Page 152, line 10, at end insert: ("(3) No provision shall be void by reason of its operating as mentioned in sub-paragraph (1) above if the Secretary of State has given his approval in writing to that provision.")

On Question, Whether Schedule 2, as amended, shall be the second Schedule to the Bill?

Lord McIntosh of Haringey

I apologise for raising this matter on the Question that Schedule 2 be the second schedule to the Bill. However, recently, I have teen informed that the National Association of Waste Disposal Contractors is proposing to make what sounds like a very welcome grant to the Waste Management Industry Training and Advisory Board. I have given as much notice as possible to the Government and I understand that there may be a response to my questions.

This matter fits properly into Schedule 2 because it is concerned with the regulations governing waste disposal contractors. I wish to ask whether the Government are satisfied that the Waste Management Industry Training and Advisory Board is adequately financed and whether they are aware of the grant of £120,000 to the council which is chaired by my noble friend Lord Gregson. I am not suggesting that the noble Lord should answer now but I should like to know whether the Government are willing to give a sympathetic ear to the suggestion made by the National Association of Waste Disposal Contractors that they should match the association's grant of £ 120,000, preferably on a pound-for-pound basis.

Lord Hesketh

The Government support WAMITAB. We shall be considering sympathetically its request for financial support. We shall be meeting its representative soon. I very much welcome the support announced by the NAWDC and I hope that every other body concerned with waste will join in its endeavours.

WAMITAB has looked for a system of training and qualifications for waste managers, and we support that. We stand ready to give such qualifications statutory approval under Clause 71. It is intended that the possession of a WAMITAB qualification will be necessary evidence of fitness to hold a waste management licence.

Lord McIntosh of Haringey

I am most grateful to the Minister for that reply. I have no intention of dividing the Committee on the matter.

Schedule 2, as amended, agreed to.

Clause 32 [Prohibition on unauthorised deposit, treatment or disposal etc. of waste]:

Lord Reay

moved Amendment No. 153A: Page 32, line 22, at end insert (", or knowingly cause or knowingly permit controlled waste to be treated. kept or disposed of,"). The noble Lord said: It is interesting to note that at least three great minds think alike, although the duplication of the three amendments owes something to the environmental lawyers' association. We are at one in wishing to avoid the provision of the Control of Pollution Act being diluted and therefore wish to reinstate the provision that to, knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of", illegally will also be an offence, as it is now. I beg to move.

Lord McIntosh of Haringey

Great minds do think alike, but not identically. I thought the noble Lord would comment on the fact that his amendment refers to controlled waste, whereas the amendment in the names of the noble Lord, Lord Layton and myself refers to waste in general. In view of the earlier debate on that kind of waste, which can be damaging—for example, non-agricultural waste from agricultural establishments and non-mining waste from mines and quarries —and the fact that such waste is excluded, will the Minister give some consideration to whether or not the word "controlled" should appear in his amendment?

Lord Reay

I understand that Part II of the Bill deals with controlled waste.

[Amendment No. 153B not moved.]

Lord Ross of Newport

moved Amendment No. 154: Page 32, line 44, at end insert: (" (d) any non-contaminated non-ferrous metal intended for further use"). The noble Lord said: I apologise that my noble friend Lord Ezra unfortunately cannot be present because he has an engagement in Brussels which he is unable to break. I move the amendment in his name and apologise that he cannot be here, although he referred to this question in his Second Reading speech.

Clause 32(4) deals with the exclusion from controls imposed by waste management licences. This plea deserves some consideration from the Government. The amendment is potentially of great significance. It is designed to recognise and safeguard the position of one of our most important recycling industries.

The noble Lord, Lord Ezra, spoke at Second Reading of the concerns of the British Secondary Metals Association, which represents 375 firms engaged in the recycling of non-ferrous metal that might otherwise go to waste. Unfortunately on that occasion the Minister was unable to provide any assurance on how the Government might respond to those concerns. I hope that the Minister in his response today will be rather more forthcoming.

I shall not repeat all the positive points about the industry to which my noble friend Lord Ezra previously referred. Suffice it to say that recycling of metals by BSMA members saves this country a burden of £1.6 billion a year on balance of payments. I am sure other Members of the Committee will agree that that is very important to the economy of this country.

The amendment excludes non-contaminated non-ferrous metal intended for further use from the full exigencies of the waste management regime. The Government are not prepared to consider any alteration to the definition of "waste". It is wrong to classify recycling and reclamation activity within the definition of waste. The material recycled by the secondary metals industry—copper, brass, lead, zinc, tin and nickel —is self-evidently not waste. It is secondary raw material of enormous value to our industry and our economy. It is regrettable that the Government did not acknowledge that in the Bill.

I do not wish to detain the Committee with a discussion on the legal definition of waste, but I ask it to support the proposition that the recycling of non-contaminated secondary metal should be exempt from an unnecessarily rigorous and inappropriate licensing regime. It may be asked why the exemption should be granted and how the licensing regime proposed could harm the industry. It was said by the Government in another place that no new controls are imposed by the Bill. In terms of powers available to local authorities that may be true, but it is only during the past few months that some local authorities have begun to use the powers given to them under the Control of Pollution Act 1974 in order to impose licensing restraints on recycling sites. The Bill reinforces those powers and seeks their general use.

Already the metal recycling industry has faced demands to deposit in town halls commercially confidential information and sensitive security details; for example, demands for diagrams showing where precious materials are stored, which would be of enormous help to would-be criminals. Conditions have been imposed on the storage of non-toxic material that show complete ignorance of the needs of the industry. The amount of form filling and interference has grown. Firms have even been asked to produce lists of their suppliers —information which clearly is crucial to the commercial future of the undertaking.

Not only is the licensing process threatened, but evidence of clear inconsistency in the treatment of firms in the industry has emerged between different licensing authorities. That is bad for competition and for confidence in the recycling industry.

I hope that the Minister will feel able to accept the amendment. If not, I ask him to make clear to the Committee that he will issue clear guidelines to licensing authorities on how the regime should be applied consistently to the metal recycling sector. I urge him to ask local authorities not to pursue the licensing process until guidelines under the Bill are issued. I also ask him to accept the offer made to his department, and to take the technical advice of the Secondary Metals Association on board when framing such guidelines.

The wording of the amendment is derived from the recitals to the European Commission's draft directive on the movement of waste. In that preamble the Commission acknowledges that the current EC regime causes, certain difficulties relating in particular to the scope of the Directive and the treatment of non-ferrous metal waste". It states that those difficulties need to be remedied. It also suggests that, less stringent rules may be applied to waste which is to be further used". Again taking issue with the description of recycled material as waste and acknowledging that the directive deals with material in transit and not on site, I submit that at a time when the Commission is recognising the case for the special treatment of recycling, and specifically of non-ferrous metal, the UK Government should not fall out of line. I urge the Committee to support the amendment, which will relieve a vital strategic recycling sector from an unnecessary burden of public sector intervention and detailed local authority control. I beg to move.

Lord Hesketh

I should like to assure the noble Lord, Lord Ross of Newport, that the Government are very much aware of the need to protect and stimulate the recycling industry. It is not our intention to regulate for the sake of regulation. But we must also be sure that any operations involving waste are not a threat to the environment. Many operations involving the recovery of scrap metal can present such a threat; for example, through the breaking of equipment. It must also not be possible for the unscrupulous to avoid legitimate controls by describing waste as destined for recycling when they have no intention of recycling it. Such a loophole would result in an increase in fly-tipping of scrap metal, for it is obvious to anyone who travels the roads or railways that waste scrap metal adorns many a public place where it has no business to be.

The noble Lord's amendment seeks to add a fourth category to those in subsection (4) to which the Secretary of State shall have regard in deciding whether to exempt particular activities from the licensing requirements of that section. The criteria already in the subsection allow the Secretary of State to exempt where there is no threat to the environment; and, as has been repeatedly said in another place, if the scrap metal industry can demonstrate that any of its operations do not present a threat to the environment we shall be happy to consider its case for exemption. But we cannot agree to a blanket exemption, set in statute, for a whole category of activities, many of which most certainly have the potential for pollution. We must therefore resist the noble Lord, Lord Ross, in his amendment.

Lord Ross of Newport

I am grateful to the Minister for that response. I repeat my former remark that it would be helpful if he could meet members of the Secondary Metals Association when framing guidelines. He said that in certain circumstances he was prepared to exempt where sites were suitably stationed or positioned and where there was no threat to the environment. Perhaps that may go into the guidelines. Is it possible for the Minister to see these people so that he can get it right?

Lord Hesketh

It is fair to say that one of the great advantages of the new policy is the basis of flexibility. We are, of course, willing to consult on a broad basis and, if the people to whom the noble Lord, Lord Ross, refers are desirous of discussions, they can be facilitated.

Lord Ross of Newport

I am grateful to the noble Lord. That is a generous offer and in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32, as amended, agreed to.

6 p.m.

Clause 33 [Duty of care etc. as respects waste]:

Lord Ross of Newport

moved Amendment No. 155: Page 33, line 35, after ("imports") insert ("exports"). The noble Lord said: In moving this amendment I speak also to Amendment No. 159, which also appears in my name on the Marshalled List. This amendment deals with the export of waste and endeavours to ensure that waste is exported only to people who are competent to deal with it and who can be trusted.

At present there is no duty to ensure that waste is exported only to people who know how to handle it safely and who will ensure that it is dealt with properly. This amendment puts such a duty on the exporter. The code of practice could, for example, say that the person to whom the waste is exported must be qualified in accordance with the laws of the country to which it is going and require the exporter to check this with the relevant authority in that country. If no qualifications are required in the country concerned then the export should not be permitted.

The amendment refers to the duty of care and is therefore more properly made here than in Clause 117, which provides only for the making of regulations about the export of waste.

We all know of examples where waste has been dumped. For example, that happened on the west coast or Africa. In that case, as a result of the fuss that was made, the waste was actually brought back to Italy. Dumping has been going on and we must put a stop to it. This matter was debated in Committee in the other place and the amendment has been drafted in the light of what the Minister said there. I hope that it appeals to the Minister now. I beg to move.

Lord Hesketh

This clause is probably the most important in Part II of the Bill. It represents the greatest single advance in waste management since the 1974 Control of Pollution Act. So, before I turn to the place of these amendments in the scheme of things, I should like to say a few words about the duty of care itself.

First, let me pay tribute to the preparatory work of many who have paved the way for the duty of care. If it is not invidious, I should like to single out the pioneering work of the noble Lord, Lord Gregson, who first put forward the duty as a recommendation of your Lordships' Select Committee on Science and Technology. Since 1985 the Government have been committed to the proposal and this clause represents the culmination of years of consultation and preparation.

The duty that your Lordships have before you therefore merits careful understanding. What we have is a statutory duty on a considerable list of persons, covering every stage of the waste chain from production to disposal. Each of them must discharge the duty by taking steps applicable to them in their capacity connected with the waste; as producer, carrier or whatever. Those steps need only be what is reasonable in the circumstances.

More specifically, those steps must be directed to secure certain aims. The aims are several. The first is preventing the escape of waste from their own control or from that of another person; that means wrapping, containing and securing the waste. Then there is handing on the waste only to an authorised person; that is, an authority, a disposer or a carrier with any necessary authorisations. Then there is providing a written description of the waste, what it is and any special points to watch on it. Finally—though first in the list in subsection (1)—there is a catch-all aim of preventing anyone else dealing with the waste in an illegal manner.

That is a very comprehensive duty. The interpretation of what steps are reasonable will be supported by a code of practice that we have published in draft for consultation. Breach of the duty will be a criminal offence.

We shall be exploring a number of detailed aspects of the duty in debates on amendments but let me impress upon the Committee what a big step forward the duty is. Until now, all the weight of regulation and enforcement has pressed solely upon the disposer of waste. No longer. Waste will now be the legal concern of every person who controls it at any stage.

That brings me to Amendments Nos. 155 and 159, tabled by the noble Lord, Lord Ross of Newport. I share the concern of Members that the list of persons subject to the duty should indeed be comprehensive. Noble Lords wish to ensure that waste destined for export is as closely subject to the duty of care as any other. I hope to be able to demonstrate that, so far as the limits of UK jurisprudence extend, this is so.

These amendments aim to add exporters to the list of those who have to abide by the duty of care. However, exporters are already covered by the duty of care. While the waste is still the responsibility of anyone in Great Britain it must be in the charge of someone who is producing it, carrying it or keeping it, and all these persons are subject to the duty.

Of course, the impact of the duty of care is by no means the only control on the export of waste. The subject of trade in waste has its own clause: Clause 131 in Part VIII of the Bill. Under that clause the Secretary of State will have power to control or even stop exports of waste for the purposes of preventing pollution of the environment or harm to human health. Armed with these powers, my right honourable friend has every intention of implementing as responsible a policy on the export of waste as any Member opposite could wish.

We fully recognise that special consideration is due to the countries of the developing world, as mentioned by the noble Lord, Lord Ross. It is our firm belief that there is no excuse for any waste to be exported from an industrialised country to the third world for treatment or disposal. I would go further. In seeking to minimise international waste movements we must not allow narrow nationalism to deny third world countries access to high technology and high standard disposal methods. That means that we must be prepared to accept some consignments of waste from developing countries for treatment and disposal here. This combination of responsible policies is one on which we have a wide measure of agreement with our European partners, and I commend it to the Committee. I hope that the noble Lord, Lord Ross of Newport, will find my reply a satisfactory response to his amendments.

Lord Ross of Newport

That was a very full answer and I am grateful for it but I am not entirely sure that it covers the situation of countries to where the waste is being exported; in other words, that we make sure that the people receiving waste are similarly qualified to deal with it in a proper manner. However, I will study the Minister's reply and I hope that I shall find it totally reassuring. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey

moved Amendment No. 156: Page 33, line 38, at end insert ("having regard to the possibility of resultant pollution"). The noble Lord said: In moving this amendment, I thank the Minister for his exposition of the significance of Clause 33 and I join in his tribute to my noble friend Lord Gregson perhaps not for inventing the concept of the duty of care but certainly for bringing it before the attention of government and the public in an extremely effective way.

Amendment No. 156 is a simple amendment. It is designed to bring into the concept of the duty of care something comparable to the precautionary principle which has been adopted by government in their attitude toward global pollution. The clause as that it should cover probable pollution and we propose that it should cover the possibility of pollution. In other words, a manner likely to cause pollution of the environment", is normally defined in dictionaries as offering a reasonable prospect of such and such a thing happening, and that is not really precautionary enough. The clause ought to cover possible pollution.

The principle that I suggest we adopt is that nothing should be allowed unless we are much more sure that it is harmless than is at present the case. Certainly we should not allow it unless we are sure it is harmless. I beg to move.

Lord Addington

I rise briefly to support this amendment. It is sensible to have regard to anything that could happen when dealing with pollution problems. To bring in the possible as well as the probable is surely the best way of doing that.

Lord Hesketh

Amendment No. 156 would require the subjects of the duty of care to have regard to the possibility of pollution or take steps while they are discharging their duty.

I feel that this amendment is not entirely necessary. The entire structure of the clause—indeed of the whole of Part II of the Bill —has regard to the minimisation of pollution and the control of waste at all stages. The duty of care will ensure that all producers and holders of waste do not manage their waste illegally and also that they stop others managing it illegally at the same time. The intention behind the duty of care is to ensure that waste is not illegally managed along the chain from the producer right through to the disposer. Taking a simple example of how the duty of care will work, a producer will hand his waste to a registered carrier. Once he has checked that the person is registered, he will then hand the waste to a licensed site. At this final stage the conditions in the licence take over. Licences will have conditions attached to them which ensure that pollution is prevented. There is also a provision in this clause for those who have to abide by the duty of care to prevent the escape of any waste.

Finally, there is a specific provision which already covers the ground of these amendments. It is part of the duty to prevent any contravention by any other person of Clause 32. Turning to Clause 32, there is a catch-all offence of treating, keeping or disposing of controlled waste in a manner likely to cause pollution or harm to human health which applies to everyone to whom the duty of care applies, not just the licensees. Anyone who does not, have regard to the possibility of pollution, while they have the waste themselves will be in breach of Clause 32. If they disregard it when they hand it onto someone else, they will be in breach of the duty of care. There is thus double provision in the Bill which ensures prevention of pollution.

Lord McIntosh of Haringey

I tried to write down what the Minister has just said. Since he has a text and I do not, I hope I have it right. I am grateful to him for referring to Clause 32(1)(c) in particular. He quoted the passage that I had quoted about treating, keeping or disposing, of controlled waste in a manner likely to cause pollution of the environment". The Minister continued by saying, "Anyone who does not have regard to the possibility of pollution being caused". He made the point of the provision referring to the licensee or others and said that they would be covered by the clause. Did he say that? If so, and it is included in the Bill, my amendment would be unnecessary.

Lord Hesketh

I think I am correct in saying that I said. "to dispose of controlled waste in a manner likely to cause pollution of the environment and, furthermore, all harm to human health".

Lord McIntosh of Haringey

I hope that the Minister will forgive me. Can he say what he said after that because what followed were his own words and not those that are in the Bill?

Lord Hesketh

I am not sure that I am correct, but I am advised that the noble Lord, Lord McIntosh, is correct. I believe that means that I was correct in what I said initially.

Lord McIntosh of Haringey

I wrote down that the Minister said, "anyone who does not have regard to the possibility of pollution being caused". That is what I wrote down as he said it. I find that more reassuring than the text of the Bill.

Lord Hesketh

I now quote myself. I said, have regard to the possibility of pollution".

Lord McIntosh of Haringey

Since those words are not in the Bill, the Minister has acknowledged the justice of my amendment. I rest my case. It is necessary for the statement which the Minister has just made —which is different from the statement contained in Clause 32(1)(c) about "likely to cause" —to be on the face of the Bill. Will the Minister acknowledge that there is a difference between "likely to cause" —in other words, probable —and "possible"? Those are the words that the Minister used.

Lord Hesketh

We are getting into something of a muddle here. I should very much like to see in Hansard what the noble Lord said and then consider the issue.

Lord McIntosh of Haringey

I am content to do that. Clearly the Minister has gone beyond what the Bill says. It is a matter that we can discuss between now and a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

Lord McIntosh of Haringey

moved Amendment No. 157: Page 33, line 38, at end insert: ("( ) to secure the proper control of such waste at all stages to which this subsection applies"). The noble Lord said: This amendment seeks to clarify rather than extend Clause 33 of the Bill. The wording is, to secure the proper control of such waste at all stages to which this subsection applies". We are seeking to apply the cradle-to-the-grave standards which are applied by EC regulations. The EC regulations on this subject are confined at the moment to hazardous waste. We understand that there is a proposed extension for these regulations to cover all controlled waste as part of a total waste management strategy. I believe that the thinking of the EC is very much along the same lines as that of the Government. I have no doubt that the Government and the EC are attempting to see that there is no conflict between them.

The principle of cradle-to-the-grave protection seems to be valid. It deals with any problem of illegal or improper waste handling at any stage. The Control of Pollution Act 1974 dealt with this right from the beginning. The problem with that Act was recognised when the Control of Pollution (Amendment) Act 1989 was passed by Parliament. There are substantial ways in which the provisions of the 1974 Act have not been implemented or they have been bypassed. For those reasons, and because we think it desirable for us to continue to be in line with the EC proposals, we put forward this amendment. I beg to move.

Lord Hesketh

The explanation of how the duty will operate, which we discussed when dealing with the previous amendment, also covers the ground of Amendment No. 157 tabled by the noble Lord, Lord McIntosh of Haringey. This amendment would seek to make the person who imports, produces, keeps, treats or disposes of waste to have control over this waste throughout all the stages the waste has to go through. The duty of care already does this. It does not make one person responsible for waste throughout the chain, but it rightly makes each person bear his share of responsibility. It applies to all people whenever they have control of the waste itself. We believe that that is the best and most satisfactory way of achieving the objective. That is why we resist the noble Lord's amendment.

Lord McIntosh of Haringey

I believe that we share the objective. I am concerned whether the Bill reflects that objective and reflects it effectively. My disquiet is not lessened by my recollection that Section 1 of the Control of Pollution Act 1974 sought to do that in very clear terms. The Act states: It shall be the duty of each disposal authority to ensure that the arrangements made by the authority and other persons for the disposal of waste are adequate for the purpose of disposing of all controlled waste which becomes situated"— I suppose that they must be the real words— in its area after this section comes into force and all controlled waste which is likely to become so situated". The problem is not that the wording is wrong, but in the 16 years since 1974, that section of the Act has never been implemented. The section has never come into force. Will the Minister give me some assurance that the comparable provisions in the new Act will come into force and that the fiasco of Section 1 of the 1974 Act will not be repeated? I am not making a party political point. I am well aware that there were Labour Governments during part of those 16 years.

Lord Hesketh

I certainly would not want to make a political point. We believe equally in the principle of cradle to the grave. We believe that the instruction in Clause 33(1)(a) to ensure no contravention of Clause 32 means that waste must be subject to proper control at all stages and achieves the same result. I can also assure the noble Lord that the object of detaining noble Lords in Committee is to turn a Bill eventually into an Act to be enforced.

Lord McIntosh of Haringey

I shall read carefully what the noble Lord has said and consider whether to come back at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Addington had given notice of his intention to move Amendment No. 158: Page 33, line 38, at end insert: ("( ) to prevent pollution arising from such waste within the meaning of section 1 above;"). The noble Lord said: With this amendment we find ourselves dealing with a point which to an extent we think has been made irrelevant by the debate on Amendment No. 156. As we would like an opportunity to study what was said to see whether the matter is worth returning to, I shall not move the amendment.

[Amendment No. 158 not moved.]

[Amendment No. 159 not moved.]

The Earl of Arran

moved Amendment No. 160: Page 34, line 13, at end insert ("or of a disposal licence under section 5 of the Control of Pollution Act 1974"). The noble Earl said: On behalf of my noble friend, in moving Amendment No. 160 I shall speak to Amendment No. 161.

Amendment No. 160 adds the alternative of a person who holds a disposal licence under the 1974 Act to the persons authorised to receive waste under the duty of care. Amendment No. 161 clarifies that regulations may require documents to be furnished to an authority. If any Member of the Committee wishes further enlightenment on the amendments I shall be delighted to endeavour to help. I beg to move.

The Earl of Arran moved Amendment No. 161: Page 34, line 35, leave out from ("the") to end of line 36 and insert ("making and retention of documents and the furnishing of documents or copies of documents.").

Lord McIntosh of Haringey

moved Amendment No. 162: Page 34, line 36, at end insert: ("(5A) The Secretary of State shall, within two years of the coming into effect of this Part, review the operation of this section, having regard in particular to—

1. (a) the level of information available to waste regulation authorities concerning wastes and activities to which this section applies; and
2. (b) the enforcement of this section by local authorities").

The noble Lord said: Amendment No. 162 is, if I may so put it, a polite way of referring to the fact that there are still, despite the best efforts of all concerned, defects in the proposed code of practice on the duty of care issued in February. The code does not have the status of law. It is intended under the Bill that a breach of the code will not be an offence but that the courts may take a breach of it into account when considering a breach of the duty of care.

The code of practice is in many ways a good code. It covers unlicensed disposal of waste and it is supposed to provide for the avoidance of dealing with waste in a manner likely to cause pollution of the environment or harm to human health, as we discussed when dealing with a previous amendment. It seeks to avoid breaches of waste management licences; to prevent the escape of waste; to ensure that waste is transferred only to a proper person; and to describe waste adequately. There are gaps in the code of practice. But it is not the intention of the amendment to seek to put the code on to the statute book nor to enter into a detailed debate about what the code should include except to say enough about the gaps to justify the terms of the amendment. The amendment provides not for a change in the code of practice itself but for a review by the Secretary of State within two years of the coming into effect of this part of the operations of the duty of care and in particular of the level of information available to waste regulation authorities.

The gaps which I bring to the attention of the Committee include, for example, the failure to provide for the formulation of policies by local authorities for effective implementation of the duty of care, and the failure to provide for adequate emergency plans. This is not simply a theoretical or abstract point. A failure to have adequate emergency plans for dealing with failures in the duty of care provisions —in other words, pollution accidents —can have extremely serious consequences. There is evidence that authorities not just in this country but throughout the world fail to have adequate emergency plans. As a result what otherwise might be a simple spillage or other form of pollution could become a major accident.

There is not adequate provision in the code of practice for waste minimisation. I referred a moment ago to the European Commission's waste management strategy. That has as a principle waste minimisation as well as waste cycling and safe and non-polluting disposal. There is no provision in the code of practice for insurance against breaches of the duty of care. There is not enough provision for powers of entry for those who would have to enforce the duty of care provisions.

Without seeking to elicit government responses to all these points, I hope that I have said enough to show that the code of practice is still not adequate. I hope too that I have justified the proposed provisions for review and for better information. I beg to move.

Lord Addington

I support the noble Lord. An amendment to ensure that the code of practice is reviewed —I hope that it will be reviewed periodically —and to ensure the necessary resources to make it effective is sensible.

Lord Hesketh

It will be a sad day for me when I come to this Dispatch Box with regard to a code of practice which the noble Lord, Lord McIntosh, finds satisfactory the first time out.

The amendment raises two quite separate issues —information and enforcement. There is no doubt that this clause will greatly increase the information available to waste regulation authorities and that that information will make them more effective as enforcers of waste management law.

The vital provision is subsection (5). Regulations will be made under the subsection requiring everyone to keep records of waste received and sent out. Government Amendment No. 161 makes it clear that the regulations may also require these records to be available to authorities. It is our firm intention that such records will form an unbreakable chain of documentation for the movement of waste. This will be less onerous than the special waste consignment note system but sufficient to enable authorities to trace where illegal deposits of waste came from and where a producer's waste has gone.

The second half of the amendment refers to the enforcement of the clause by local authorities. Regulation authorities will be the front line of defence against breaches of the duty of care. But they will not be under the same duty to enforce the provisions of Clause 33 as they are, for example, under the licensing provisions in the latter part of Part II of the Bill. Clause 33 deliberately imposes the duty of care directly on those who hold waste. It does not impose a duty of enforcement on local authorities. If a regulation authority or any other authority, or indeed any person, is not satisfied that a producer or carrier has taken the appropriate steps to deal with his waste he may prosecute for breach of duty of care. In this way the duty of care can be regarded as enabling prosecutions to be made. For waste regulation authorities, it is a vehicle for more efficient enforcement of waste management controls and not an additional enforcement duty.

The noble Lord referred to the code of practice gaps and emergency plans. The code is a guide to persons with waste and not to regulatory authorities. That is why there is nothing in it about planning by authorities, a point to which the noble Lord referred. Plans and reports will be dealt with elsewhere in the Bill. The code of practice is about waste being transferred from one person to another on its way to treatment or disposal. It is not about waste minimisation. That is an internal matter for the waste producers which we shall encourage, but not under this clause.

With regard to emergency plans, the duty-of-care provision is to ensure that no risk of pollution arises from the storage, treatment or disposal of waste. If the waste is of such a nature that its storage presents a major hazard, it will be covered by health and safety legislation. We shall undertake to consider whether a code of practice should refer to those regulations.

Lord McIntosh of Haringey

I am grateful to the Minister for that response in so far as it relates to the level of information available to waste regulation authorities. I acknowledge that the position is helped by Amendment No. 161, which we certainly did not oppose. However, his response about enforcement is very disappointing. I do not accept that it is enough to say that this is dealt with in other parts of the Bill.

The Government have expressed the opinion in the consultation document that the duty of care should not add to the costs of local authorities as waste regulators. However, that cannot really be the case, even though enforcement is literally the responsibility under the duty-of-care provisions of those who are in charge of the waste. If identification of breaches of the duty of care is to be carried out effectively, it will inevitably be part of the responsibility of local authorities as waste regulators; indeed, that is what the term "waste regulator" means. Therefore, there will be different additional duties imposed upon local authorities. They will need extra staff to monitor the activities of waste producers and carriers. Moreover, they will have to handle the increased level of information and documention which will be required.

I thought that my amendment was modest. As I said, it does not seek to try to deal with all the potential defects of the code of practice. I agree with the Minister that it would be most surprising if any code of practice was found to be perfect the first time it was presented. All such measures work better after they have been thought about and after there has been adequate consultation. However, I cannot for the life of me see why the Minister is resisting the idea of a review of the operation of the section with regard to the level of information available and the enforcement of the section by local authorities. A review of the enforcement carried out under this clause does not imply any intrusion into local authorities' responsibilities as regards those who are producing or carrying waste; but it recognises that if there is to be action against those who breach the duty of care, local authorities will inevitably be involved. I wonder whether the Minister could give me a little more indication of support for the idea of a review. Perhaps he will also give us an idea as to whether he recognises the role of local authorities in making the duty-of-care provisions work.

Lord Hesketh

My dear —I am sorry, I meant to say, my Lords —I said at the end of my first remarks on the matter that we would undertake to consider whether the code of practice should refer to these regulations. I cannot go further than that at this stage.

Lord McIntosh of Haringey

My dear Minister —I think one may say that in epistolatory form. It appears that the Minister does not to wish to recognise the commonsense approach which we are taking with this amendment. I fear that, unless the code of practice is allowed to work itself in and to be modified after review, it will not work as well as it would otherwise. Therefore, the role of local authorities in insisting upon the enforcement, if I may put it that way, will not be as effective as it could be. I regret the Minister's response. In the circumstances, I think it is best to take the opinion of the Committee.

6.34 p.m.

On Question, Whether the said amendment (No. 162) shall be agreed to?

Their Lordships divided: Contents, 43; Not-Contents, 86.

DIVISION NO. 3
CONTENTS
Addington, L.	Lovell-Davis, L.
Ailesbury, M.	Mclntosh of Haringey, L.
Airedale, L.	McNair, L.
Aylestone, L.	Meston, L.
Birk, B.	Molloy, L.
Bonham-Carter, L.	Monkswell, L.
Broadbridge, L.	Nathan, L.
Cocks of Hartcliffe, L.	Nicol, B.
David, B.	Ogmore, L.
Dean of Beswick, L.	Peston, L.
Galpern, L.	Pitt of Hampstead, L.
Graham of Edmonton, L.	Rea, L.
[Teller.]	Serota, B.
Grey, E.	Shannon, E.
Hampton, L.	Stedman, B.
Hanworth, V.	Stoddart of Swindon, L.
Hatch of Lusby, L.	Taylor of Blackburn, L.
Hollis of Heigham, B.	Tordoff, L.
Jenkins of Putney, L.	Turner of Camden, B.
John-Mackie, L.	[Teller.]
Kilmarnock, L.	Varley, L.
Kirkhill, L.	Willis, L.
Llewelyn-Davies of Hastoe, B.

NOT-CONTENTS
Arran, E.	Lloyd of Hampstead, L.
Balfour, E.	Long, V. [Teller.]
Belstead, L.	Lyell, L.
Blatch, B.	McColl of Dulwich, L.
Blyth, L.	Mackay of Clashfern, L.
Boardman, L.	Macleod of Borve, B.
Borthwick, L.	Malmesbury, E.
Brigstocke, B.	Margadale, L.
Brougham and Vaux, L.	Merrivale, L.
Burton, L.	Mills, V.
Caithness, E.	Mottistone, L.
Campbell of Alloway, L.	Mountevans, L.
Carnegy of Lour, B.	Munster, E.
Carnock, L.	Murton of Lindisfarne, L.
Cavendish of Furness, L.	Nelson, E.
Coleraine, L.	Norrie, L.
Colnbrook, L.	Nugent of Guildford, L.
Colwyn, L.	Onslow, E.
Cork and Orrery, E.	Orkney, E.
Craigavon, V.	Orr-Ewing, L.
Cranbrook, E.	Pearson of Rannock, L.
Crickhowell, L.	Peel, E.
Denham, L. [Teller.]	Rankeillour, L.
Dilhorne, V.	Reay, L.
Eccles of Moulton, B.	Rees, L.
Elles, B.	Renton, L.
Elliot of Harwood, B.	Rodney, L.
Ferrers, E.	Saint Oswald, L.
Fraser of Carmyllie, L.	Saltoun of Abernethy, Ly.
Gisborough, L.	Sanderson of Bowden, L.
Glenarthur, L.	Savile, L.
Halsbury, E.	Skelmersdale, L.
Hanson, L.	Strathclyde, L.
Henley, L.	Strathmore and Kinghorne,
Hesketh, L.	E.
Hives, L.	Swinfen, L.
Home of the Hirsel, L.	Swinton, E.
Hooper, B.	Thomas of Gwydir, L.
Hylton-Foster, B.	Thomas of Swynnerton, L.
Kenilworth, L.	Tranmire, L.
Kinnoull, E.	Trefgarne, L.
Layton, L.	Trumpington, B.
Lindsay, E.	Wise, L.
Lindsey and Abingdon, E.

Resolved in the negative, and amendment disagreed to accordingly.

6.42 p.m.

[Amendment No. 163 not moved.]

Lord Lucas of Chilworth

moved Amendment No. 164: Page 35, line 10, leave out subsection (11). The noble Lord said: This amendment continues with the problems associated with codes of practice. It seeks to delete Clause 33(11). Subsection (7) empowers the Secretary of State to prepare and issue codes of practice and Subsection (11) allows different codes to be prepared and issued for different regions.

Codes of practice should seek to establish uniform standards across the country, but that subsection appears to allow for a variation in standards. The industry, including waste producers, carriers and disposers wants to secure a common national standard in waste management. I do not see how that can be achieved when different codes apply in different regions.

In theory —I referred to this point when we discussed Amendment No. 144 —one could have 150 regulating authorities covering England, Wales and Scotland. To take the matter to the extreme, in theory one could have 150 different codes of practice. I admit that that is unlikely, but, nevertheless, even if regionalisation were to occur, as it was suggested might happen on a voluntary basis when my noble friend referred to my Amendment No. 257, there could still be a number of variations. Apart from those variations distorting competitive standards, they would have an injurious effect on training in the industry and site management transfers, because the trainer or proprietor moving a manager from one area to another may have to have regard to small details of change that occur from area to area. That does not seem to me to be helpful.

I referred earlier this afternoon to a transportation problem. The movement of waste from a producer site to a disposal site could involve moving through as many as 10 different waste regulation areas. I referred to South Wales, because a great deal of waste in South Wales is disposed of in the East Midlands, which is a journey of about 80 or 90 miles. Again, we have traffic passing through areas whose regulations may differ.

However, the disposal of special waste requires a pre-notification procedure by the producer to the authority in whose area the waste will be disposed. That is a standard requirement. It covers all areas of the United Kingdom. New codes of practice which offer different guidance in different, areas will confuse the producers, confuse their responsibilities under the 1980 special waste regulations and confuse the carriers as to their responsibilities.

I believe that my amendment is technically defective in that it does not have regard to the practice in Scotland. When the matter was debated in another place in relation to Clause 40 the Minister accepted that the reference to different areas was included to deal with different arrangements for charging in Scotland. England and Wales. While the provision may be appropriate for charging—that is a point to which we shall come later, because I do not believe that it is appropriate to charging—I fail to see why different standards should prevail in relation to different areas, as I have described. I beg to move.

Lord Burton

Despite the fact that my noble friend has missed out Scotland, I hope that my noble friend the Minister will give the matter further consideration. My noble friend seems to have a good argument. I hope that the Government will consider tabling an amendment on Report.

Lord Reay

I hope that I will be able to allay the anxieties of my noble friends. As my noble friend Lord Lucas of Chilworth has explained, the amendment seeks to delete Clause 33(11), and would in effect prevent a different code of practice being issued for different areas, as the subsection puts it. That subsection is intended to distinguish the constituent parts of Great Britain —England, Scotland and Wales —rather than any smaller regions. We do not intend to have a code for any different areas within England, Wales or Scotland. Two draft codes have already been drawn up: one to cover England and Wales and a separate code for Scotland. This is one of those cases where the wording used is well established —so our legal advisers informs us —and the words "different areas" are only used as the most economical means of giving necessary discretion.

My noble friend can be reassured that uniform standards will be established across the country. It is necessary to have flexibility to allow for particular national variations between Scotland and England; for example, where, as my noble friend will be aware, there are different legal systems. If he looks at the draft code of practice issued for England and Wales on the one hand and Scotland on the other, he will notice that they are almost identical. In view of that, I hope that my noble friend will feel able to withdraw the amendment.

Lord Lucas of Chilworth

I shall withdraw the amendment this afternoon, notably because I have had regard to the voting pattern on the Division a few moments ago. However I have to tell my noble friend that I am not satisfied. My noble friend Lord Burton asked the Government to consider this matter. In his response, the Minister said, "In fact, no, what we are really thinking about here is a code for England, Scotland and Wales, where there are different legal patterns and obviously, understandably, different physical characteristics".

That is not what the Bill says. It states quite clearly "for different areas". It does not say "for the principal area"; it does not say "for England, Scotland and Wales". My noble friend's legal advisers say that that is the usual form in which matters are set down and that it is an economic way of using words. It is not. It uses far more words than if one just said "England, Scotland and Wales" and had done with it.

It is absolute nonsense. If the Government mean precisely that there will be three codes of practice covering the three areas of the United Kingdom —that is, England, Scotland and Wales —let us say so. Then everybody will understand. Contractors will not have to go to their legal advisers asking what is meant. I find my noble friend's answer on this point this afternoon singularly unattractive and unhelpful. I shall take further advice to ensure that my amendment does not have the technical deficiency that I suspect exists now. I shall almost certainly return to this later at Report stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33, as amended, agreed to.

Clause 34 [Waste management licences: general]:

The Earl of Arran

moved Amendment No. 165: Page 35, line 15, after ("waste") insert ("in or"). The noble Earl said: On behalf of my noble friend Lord Hesketh, I wish to move Amendment No. 165 and speak to Amendments Nos. 166 and 171. These are purely drafting amendments. Waste can be deposited in as well as on land. The government amendments put it beyond doubt that licensing applies to either, in line with the wording in Clause 32. Perhaps I may also say that the further elaboration proposed by my noble friends Lord Renton and Lord Onslow and the noble Lord, Lord Moran, are not necessary. I can assure them that the deposit of waste underground —however deep —is covered by the phrase, "in or on land". I beg to move.

Lord Renton

Obviously Amendments Nos. 165 and 166 are necessary improvements. Although my noble friend Lord Arran described them as drafting amendments, they are drafting amendments with important practical results. I join my noble friend in suggesting that the Committee should accept them. Obviously I shall not move Amendment No. 166A. However, I should be grateful if the Committee would allow me to move Amendment No. 166B, for reasons that I shall give when we come to it.

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

Before I put this matter to the Committee, I should point out that if the amendments under discussion are agreed to, Amendment No. 166B will be pre-empted.

Lord Renton

I am much obliged to the Lord Chairman. That means that I must now use the discussion of Amendment No. 165 as a peg on which to hang a request for certain assurances which the National Rivers Authority desires with regard to these amendments. Clause 34(2)(a) deals with, the case of a licence relating to the treatment, keeping or disposal of waste on land". That waste on land can affect the water resources which lie either under the land or beside it. They may be keep down in the earth. They may be large underground deposits which we find in this country, especially under chalk hills, or they may be deposits from which water can be extracted but which are dispersed through the soil.

The National Rivers Authority wishes to be assured that landfill sites where controlled waste has been disposed of, and is therefore being kept, will require a licence, whether or not the sites are currently disused or ancient sites. Any site where waste has been deposited is potentially dangerous to water.

The requirement placed on the waste regulation authorities under Clauses 35, 36 and 38 to consult the National Rivers Authority over the issuing, variation or surrender of licences should surely be extended to any licence in connection with a closed landfill site. If that were done, it would give the National Rivers Authority the opportunity to make representations to the WRA in question about the risk of pollution of these underground water deposits and other water resources from a closed site that had been covered over.

In addition, if disused landfill sites were required to be licensed, then details about them would have to be recorded in the registers maintained by the WRA in accordance with Clause 61 of the Bill. They certainly should be recorded in the registers. This would be an important addition to the public registers, which would be of considerable help to the National Rivers Authority and others as a comprehensive record of old, disused waste sites.

We have the advantage of having as a Member of your Lordships' Committee the chairman of the National Rivers Authority, my noble friend Lord Crickhowell. He may well wish to support what I have said. I hope that the matter is already quite clear. There is therefore no point in my moving an amendment which I am told has fallen, though I was surprised to be told that, because it is arguable that "in land" and "under land" have slightly different shades of meaning. However, the last thing I should wish to do in the presence of Members of the Committee is to split hairs.

The Earl of Arran

My noble friend has made some precise and technical points, as is his wont from time to time. However, I shall need to study carefully in Hansard exactly what he has said so that I may return to the matter at a later stage.

Lord Crickhowell

I am grateful for the statement by the Minister that he will reconsider the matter. Clearly there is a problem on disused sites where the ownership is not known. There is an existing problem which is causing great difficulties in some areas where sites are having to be capped or treated because of pollution. As I understand the Bill, where waste is being kept a licence has to be held. Where the ownership is known, presumably the protection that is sought will be provided. This is an extremely important matter because the potential pollution from these waste fill sites is so great. The Committee should look to the Government for clarification on this matter at a later stage.

Lord Renton

My noble friend has said that the Government will consider the matter. However, we must be very careful that it can be reconsidered at a future stage of the Bill. It would seem from the ruling of the Chair that if Amendment No. 166B were to be moved at a later stage, it might be out of order to reconsider this matter. Therefore I wonder whether my noble friend can say in what manner he suggests that the result of the government inquiries can be given to us. I rather laboriously spun out the comments that I had to make in the hope that we would be able to receive an answer. Perhaps even now it might be possible for us to have one.

The Earl of Arran

I shall not let my noble friend down because during the intervening time I have been able to secure an answer that may interest him. I can assure him that landfill sites will require licensing. As regards old landfill sites, Clause 58 contains a duty for waste regulation authorities to monitor the site and to take remedial action to prevent pollution of underground waters. For any operational site the licensing provisions and conditions will protect underground waters. I can assure my noble friends that the NRA is a statutory consultee.

Lord Renton

I am sure that my noble friend Lord Crickhowell is as grateful as I am for that assurance. It was well worth waiting for.

On Question, amendment agreed to.

Lord Reay

This may be a convenient moment for us to break. I suggest that the Committee stage begins again at 8.5 p.m. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.