Tax and company provisions

HL Deb 10 October 1990 vol 522 cc321-94

—(1) Any shares in a company which are issued as a consequence of the vesting by a transfer scheme of property, rights and liabilities in the company shall—

1. (a) be issued as fully paid; and
2. (b) treated for the purposes of the application of the Companies Act 1985 in relation to that company as if they had been paid up by virtue of the payment to the company of their nominal value in cash.

(2) For the purposes of Chapter I of Part II of the Capital Allowances Act 1990 (capital allowance in respect of machinery and plant) property which is vested in a company by virtue of a transfer scheme shall be treated as if—

1. (a) it had been acquired by the company on the transfer date for the purposes for which it is used by the company on and after that date; and
322
2. (b) capital expenditure of an amount equal to the price which the property would have fetched if sold in the open market had been incurred on that date by the company on the acquisition of the property for the purposes mentioned in paragraph (a) above.").

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 66: Page 160, line 18, leave out from the beginning to ("from").

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 67: Page 160, line 29, after ("authority") insert ("or to which the authority has transferred the relevant part of its undertaking").

On Question, amendment agreed to.

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

Lord Dean of Beswick moved Amendment No. 68: Page 34, line 3, at end insert: ("() produce controlled waste unless the person has been registered as a waste producer by the waste regulation authority within whose area the activity is to be undertaken").

The noble Lord said: My Lords, the purpose of this amendment is to introduce a requirement that any producer of controlled waste should be registered. The argument behind the amendment is that control over waste should apply from the point it is produced rather than from when it commences transportation.

I should like to give a brief example from my own experience. After I left membership of another place as Member of Parliament for a Leeds constituency a difficulty arose in that area arising from the emission of asbestos into the atmosphere. I do not know whether the manufacture or use of asbestos in factories is covered by other legislation but I do know that there were tragic consequences not only among the workers but among the people who lived in the area outside the factory because of the emission of asbestos dust into the atmosphere. Some people in the area are still suffering grievously from asbestosis because of emissions from that factory. I am not sure whether the factory is still in situ and operating, but certainly the emissions had a devastating effect on some of the families close to it. That is why I believe this aspect needs airing in your Lordships' House.

Just as in the case of the Control of Pollution Act 1974, this Bill concentrates on the regulation of waste when it is deposited, whether in a licensed facility or otherwise. There is some resistance to placing appropriate controls on the transport of waste although these are partially covered by the Control of Pollution (Amendment) Act 1989, which provides for a system of registered handlers.

This Bill places faith in the principle of the duty of care to ensure that producers of waste act responsibly. The duty of care incorporates, among other things, a requirement that consignments of waste should be properly labelled and destined for a specific disposal facility. The Government have always intimated that the duty will be largely self-regulating, but so far no justification for that view has been advanced.

Many of the criticisms of the existing regulatory system have arisen because the present operation of the abolition Acts has indicated that a stronger police operation is necessary to enforce the controls that are already in place. To suggest that an extension of controls will not require a commensurate extension in the regulation function is, we believe, unreasonable. However, a major problem with the existing regulatory functions is that the agencies charged with this will not always be aware of the producers of the waste. It may be either impossible or extremely time-consuming to establish from where a particular consignment of waste emanated. The amendment argues for a registration system for producers.

Clearly the Government's objection to such a proposal is on the basis of the bureaucracy which would be introduced. However, by way of counter-argument it must be remembered that the duty of care system will be introducing a requirement for consignment notes for every load of waste unless some arrangements are made for regular consignments of identical waste. If a system is introduced which can cope with this volume of information, then to suggest that each producer should be registered is not unreasonable.

From the point of view of the regulators, the knowledge that particular producers are in existence and active will be invaluable in their ability to enforce the measure properly. Not only will it enable them to provide advice and guidance on the appropriate consigning and end-disposal requirements but it will provide prior information about the nature of the waste that is being produced. It will also make it much easier to regulate producers who are not registered simply by reducing the number of points where unregistered production of waste occurs. The assumption is made that, as in the duty of care, individual households will not fall within the requirements to be registered as producers of controlled waste. I beg to move.

5.45 p.m.

Baroness Blatch

My Lords, Amendment No. 68 is a most ambitious proposal which calls for local registers of waste producers. The Government's position is that such a control is impracticable because it would be unworkable and cumbersome. Even with the exclusion of domestic households, which the amendment does not provide for, the register would be a list of every firm in the country. We already know that we are all waste producers, so what is the point of listing us all? What will local authorities do with a list of every firm, shop and office in the country?

We are all agreed on the need to include waste producers under waste controls. This will already happen, through the duty of care. Every waste producer—and every other person who controls waste—will be bound by the duty. In the normal course of events there should be no need for an authority to monitor waste producers; but if something goes wrong, if the wrong waste turns up at the wrong site or is found fly-tipped, then the authority can descend like a ton of bricks on the producer, the carrier and anyone else connected with the waste. They all know that. Each of them will have every incentive to observe their duty of care so that if there is a breach in the system somewhere along the line they will have a complete answer to any charge.

In that way the duty of care will be largely self-enforcing. It will not require waste regulation authorities to pursue any cases in which they are not already involved. What it adds is a more effective means of pinning down those responsible, including those who were careless as well as those who were directly involved in dumping or wrongly treating the waste. It also offers authorities a source of information in the records of consignments to be kept by all waste holders. That information will be available to authorities when they need it from a waste producer without drowning the producer and the authority in useless paper work when everything is running smoothly.

The noble Lord, Lord Dean, raised a number of points. He began by referring to the difficult subject of asbestos. I have to say that the emission of asbestos into the atmosphere from an operational factory is not a subject for this part of the Bill. Asbestos will be a scheduled substance under Part I of the Bill and the controls of the integrated pollution control will apply to all those processes.

In regard to the difficulty of determining where a specific consignment comes from, again the duty of care will require all people in the chain to produce and to keep records of their part in the process and to whom the waste was handed on. This will assist authorities to trace back along the chain.

The final point raised by the noble Lord, Lord Dean, was that local authorities need to register. If authorities do not know the producers of local waste how can a complete list of producers help them to find out the names of those producers? I hope the noble Lord will pardon this lengthy explanation. I offer it as a positive alternative to the register of producers which we cannot accept.

Lord Dean of Beswick

My Lords, in a way I am grateful to the Minister for the detailed manner in which she has replied. I do not intend to press this matter to a vote. I believe that the Minister and her advisers wish to proceed on the basis that all employers, and those involved in manufacture, will act responsibly, and in accordance with the spirit of the Bill. History shows that not all manufacturers do that. As a young councillor in Manchester I worked with the rivers' committee of a local authority. From the experience that I gained, I learned that on many occasions rivers were polluted. I do not believe that much accidental polluting takes place. People were breaking the law then and they will continue to do so if they can. The provision as it is now in the Bill will enable them to continue polluting.

Perhaps I am a bit of a cynic. For example, I do not believe that the pollution of the River Rhine which occurred two years ago was an accident. I believe that it was done on the basis that perhaps the persons responsible would get away with it or that the penalties involved would be far less than the economic or business advantages of having carried out the pollution. While I take note of what the Minister has said, I hope that what is proposed works out as it is explained in the Bill.

However, when, after a short period, the Minister looks back, I think she will find from sad experience that that is not the case. The argument that the Minister has made against the amendment is based on bureaucracy. I do not believe that it is beyond the wit of local authorities to have a register especially concerning those who are heavily involved in the chemical industry and that kind of activity.

On a previous occasion I made a point of saying that I come from an area in Manchester which, a few years ago, had the unenviable record of the highest infant mortality rate in Great Britain. That situation was related to what was being discharged in the area in the way of chemicals and that kind of material. There was a heavy concentration of manufacturers in that area engaged in those activities. As I say, I hope that the Bill works, but I doubt very much that it will.

I believe that we shall have to return to this matter eventually and deal with it in some other form of legislation. From my own personal experience and knowledge of what has taken place in the past, I do not believe that all the people involved with this Bill and who are engaged in the industrial sector will act within the spirit of the Government's legislation. I do not intend to press the amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Jenkin of Roding moved Amendment No. 68A: Page 34, line 21, leave out ("and (b)") and insert (" , (b) or (c)").

The noble Lord said: My Lords, at first sight this appears to be a pretty anonymous amendment. It is an amendment to Clause 32(3). There is the intention that there should be regulations which should disapply subsection (1) which creates the statutory offence of depositing, treating or disposing of waste when you are not authorised to do so.

Subsection (3) as drafted excludes only paragraphs (a) and (b). Paragraph (a) is concerned with depositing controlled waste and paragraph (b) concerns the treating, keeping or disposal of controlled waste.

For some reason, which I do not understand, it does not appear to be the intention that there should be regulations to eliminate paragraph (c) which concerns the treating, keeping or disposing of controlled waste which is likely to cause pollution of the environment or harm to human health. As I understand it, what is intended by Clause 32(3) is the avoidance of duplication of control. Control should not be under both the waste regulation authority and Her Majesty's Inspectorate of Pollution. Why should that duplication apply only to paragraphs (a) and (b) and not to (c)?

I do not believe that is what is intended. If what has been spotted here is not a misprint, it is a casus omissus. I hope that my noble friend will confirm that and make sure that the Secretary of State has the power to make regulations to exclude firms that come under Clause 32 (1) (c) if they are being controlled and regulated by the pollution inspectorate. Otherwise I believe that we have a muddle, and I am sure that we do not want to have that. I hope very much that my noble friend will feel able to accept this extremely modest but rather necessary amendment. I beg to move.

Lord Reay

My Lords, Amendment No. 68A would add to the Secretary of State's power to disapply the prohibitions of subsection 1(c) so that the general prohibition on acting in a manner likely to cause pollution or harm, could also be disapplied from prescribed cases. My noble friend Lord Jenkin of Roding has convinced the Government, at the second time of asking, that this is a sensible provision. We are happy to accept the amendment. When this subject came up before in Committee we were not persuaded that there were any circumstances in which we should exempt anyone from the general prohibition on acting in a manner likely to cause pollution or harm. However we have since concluded that there might be such circumstances. The most obvious example would be waste treatments that were excluded from licensing because they were instead subject to an IPC authorisation. The IPC conditions should cover every aspect of pollution from the process. There should be no need to extend any of the controls of Part II to duplicate what is already well provided for. Those were the points that my noble friend was making.

I can assure any noble Lord who may be concerned by this amendment that the process of disapplying subsection 1(c) will not be automatic for all exemptions granted for licensing. We still envisage that there will be some processes exempt from licensing that will remain bound by this general prohibition of actions likely to cause pollution or harm. On that basis I recommend the amendment to the House.

On Question, amendment agreed to.

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

[Amendment No. 69 not moved.]

Lord Clinton-Davis moved Amendment No. 69A: Page 35, line 35, at end insert: ("and a contravention of this duty shall be an offence whether or not an offence has otherwise been committed.").

The noble Lord said: My Lords, I beg to move this amendment standing in the name of my noble friend Lord McIntosh. I hope that, in the quest for greater clarity in which the noble Lord, Lord Jenkin, has been so successful, the Government will be equally forthcoming on this matter. The amendment raises a very important issue. The effectiveness of the new duty of care to be imposed on waste producers in raising standards of waste management is, as the Government will acknowledge, a critical component of the Bill.

Yet unfortunately considerable confusion has been imported into the matter as a result of conflicting statements that have been made by government Ministers on this issue. I refer in particular to a Written Answer to which I shall refer in a little more detail later on. It was given by Mr. David Trippier on 25th July of this year and appears to be seriously in conflict with a statement made earlier by the Secretary of State and to which I shall also allude.

The Government said much earlier in the course of proceedings on the Bill that the scope of the duty is extremely important. That is absolutely right. It is a matter on which waste producers and others are entitled to depend for clarity. The background to the matter is that when the Control of Pollution (Amendment) Act 1989 was enacted, Ministers said at that time that they hoped to see a registration scheme for waste carriers implemented by the end of that year. A consultation paper was to be issued in the spring. In July this was deferred to later in the summer. The regulations under the 1989 Act were to be brought into force, so we were told, early in 1991. The important point here is that the duty of care provisions themselves depend on the implementation of the regulations which are to be brought into effect early in 1991.

Throughout the passage of the Bill, here and in another place, the Opposition have been pressing for the Government to clarify the implications of the duty of care. For example, on 21st June my noble friend Lord McIntosh of Haringey said that the Bill failed: to provide for the formulation of policies by local authorities for effective implementation of the duty of care". He went on to say: There is not enough provision for powers of entry for those who would have to enforce the duty of care provisions". —[Official Report, 21/6/90; col.1096.] That view has been taken up by local authorities through the Association of County Councils. It is a matter of great concern to them and indeed to all of us who want to see this provision given proper effect.

What was it therefore that Mr. Trippier had to say about the matter in a Written Answer on 25th July at cols. 364–65 of the Official Report of another place? I shall not give the whole answer but I shall extract what I think is most relevant. He said: The duty of care imposes no additional regulatory duties on local authorities, nor will it require them to visit waste producers routinely". He went on to say: The effect of the duty of care on waste regulation authorities will be to provide for the first time, an effective sanction against producers of waste who collaborate in the commission of existing offences. I do not foresee any need for significant extra resources to deal with this new provision". —[Official Report, Commons, 25/7/90; cols. 364–65.] So far, so good, in a certain way. The trouble is that it simply did not square with what the Secretary of State himself had to say in another place on 13th February. He said that the duty of care, provides that it will be an offence to fail to take all reasonable steps, even if no other offence occurs". He went on to say that this would help to avert problems before they happened. It is worth underlining what the Secretary of State said: It will be an offence to fail to take all reasonable steps, even if no other offence occurs". According to the junior Minister, Mr. Trippier, waste holders face prosecution only if an offence involving their waste is allegedly committed, whereas the Secretary of State has apparently given a totally different interpretation.

The discrepancy between Ministers here is likely to leave the position very clouded for waste producers, disposers and regulators. That is wholly unsatisfactory when we are dealing with a matter of such extreme importance. We know from the junior Minister that further advice on the steps to be taken by authorities to follow up a suspected breach of the duty is to be issued in the form of a circular when the duty of care provisions are enacted. But we ought to know at this stage what the position is. We are not making a party political point. It is a point of very important clarification and one with which the Minister should deal here and now.

It is not as though Ministers have been unaware of the concerns of manufacturing and waste disposal interests about this point and about the draft duty of care code. These points have been expressed very forcefully. They wanted the Department of the Environment to reconsider the advice it was proposing to give to the effect that waste producers generally need not check the sites used by their disposal contractors. But despite that, Mr. Heathcoat-Amory asserted in an extraordinary Written Answer in another place on 25th July that the overwhelming majority of comments supported the general substance of the duty of care in the draft code of practice.

My advice is that that is inaccurate. I am not accusing the Minister of deliberately misleading us. He is told by his officials what the situation is and he has rehearsed it. But it is in conflict with the advice I have had to the effect that the situation is far from as compelling as the Minister has asserted and serious concerns have been expressed about discrepancies, concerns which have not been taken on board by the department or by the Minister.

This is not simply a question of points of detail or improvement of detailed matters. We call on the Government to clarify the position beyond all doubt and to specify when the duty of care is breached. I beg to move.

Lord Jenkin of Roding

My Lords, I hope that these additional words will not be necessary. There is little doubt that the creation of this new duty on the part of waste producers to take care is perhaps one of the most fundamental reforms in the Bill. I am sure it will be widely recognised that hitherto a waste producer has had only one concern—to get rid of his waste as cheaply as possible. He has had no concern to see what happened to it after that. If he could find someone who was prepared to undercut the responsible man who treated it properly, who transported it properly and looked after it properly, someone who did not do those things, he might have done so. Many responsible manufacturers would not go down that course but some undoubtedly have. As a result waste has turned up where it should not have been. It has been transported in thoroughly unsuitable vehicles and without proper protection.

This is an enormously important reform. At one blow it puts a firm duty on the man who produces the waste. He will be guilty of an offence if he is in breach of it. He will have to ensure that he knows precisely what is going to happen. What does that mean? It means that he must prevent any contravention by any other person of Clause 32. It means that the producer will have a direct interest in ensuring that his waste goes to a suitably licensed facility. If the waste turns up where it should not, the producer will find himself having to show that he acted responsibly, with the risk of a fine if he cannot do so.

I do not read anything into the provision to suggest that someone else has to be proved to have committed some other offence or that he has committed some other offence. If he has not taken proper care and something like that happens, he will be in breach of the duty. That must be so whether or not anyone else has committed an offence. Therefore, I hope I am right in expressing the view that this amendment would add confusion. We do not want in any way to water down and make less clear this enormously important new duty on producers of waste to take care.

I followed very closely the argument put forward by the noble Lord, Lord Clinton-Davis. He sought to draw distinctions between what was said by the Secretary of State and Mr. Trippier. I think that those words were directed at different points. With respect to him, I have to say that I did not see the conflict to which he referred. Of course, he is extremely knowledgeable in such matters and no doubt has followed the issue more closely than I have. However, having looked at the amendment proposed, I hope that it will not be accepted.

Lord Renton

My Lords, I agree with my noble friend Lord Jenkin of Roding. However, one must not blame the noble Lord, Lord Clinton-Davis, for trying to ensure that we are creating a criminal liability in this connection. In my opinion we do so quite clearly by the application of subsection (6) to the duty described at some length and very fully in subsection (1). Therefore, with respect to the noble Lord, I say to him that Amendment No. 69A is not necessary. Moreover, even if it were, it would be most unusual to include therein the words: whether or not an offence has otherwise been committed". If those words were necessary here, they would be necessary whenever an offence is described. However, we do not usually go to that length.

The Earl of Arran

My Lords, this amendment would specify that it is an offence to contravene the duty of care, whether or not an offence has otherwise been committed". We can confirm that this is indeed an offence. A person will be guilty of an offence under Clause 33 if he has not fulfilled his own duty, irrespective of whether the waste was dealt with legally or illegally. For example, if a producer transfers his waste to an unregistered carrier who then fortuitously happens to take it to a properly licensed facility, the first producer will still be guilty of an offence.

The duty of care depends upon the existence of regulations under the 1989 Act. We accept that these regulations have been promised for consultation several times this year. We must say that they have proved rather more difficult to draft than expected, but they are in the final stages of production. We hope to be in a position to issue them for consultation shortly.

I can also confirm that the points made by my noble friend Lord Jenkin of Roding are perfectly correct. In view of those arguments, we suggest that the amendment is superfluous and unnecessary. Therefore, we cannot commend it to your Lordships' House.

Lord Clinton-Davis

My Lords, with all the good will in the world I cannot go along with the comments made by noble Lords opposite that great clarity has been introduced into the matter by the statements of Ministers to which I referred. I am afraid that all they have managed to do is to cast a blinding ray of darkness upon this important issue.

I am not at all satisfied that the situation has been clarified by the response just given by the Minister. However, no doubt this will provide lawyers with many opportunities for advising their clients and mulcting them in costs. It will also ensure that the courts will be spending a considerable amount of effort on such matters as a result of this lack of clarity. However, I do not propose to take the opinion of the House on the issue. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

Lord Clinton-Davis moved Amendment No. 70: Page 36, line 21, at end insert: ("(5A) The Secretary of State shall, at the earliest practicable date two years after the coming into effect of this Part, invite representations from local authorities and other interested persons regarding the operation of this section, with respect in particular of—

1. (a) the adequacy and amount of information available to waste regulation authorities to enable them to fulfil their functions; and
2. (b) the effectiveness of enforcement of the duty of care by local authorities;

and a summary of any such representations shall be laid before Parliament").

The noble Lord said: My Lords, I move this amendment on behalf of my noble friend Lord McIntosh of Haringey. The essential point lying behind what is proposed is the question of the need for a review of the effectiveness of the duty of care safeguards. We believe that this is an extremely important matter. As we have just heard again, the Government place considerable faith in the effective-ness of the duty of care provisions. The amendment seeks to provide some certainty that there will be a review, which Parliament would have the opportunity to consider, as to the effectiveness of this extremely critical part of the Bill.

Despite the fact that new powers have been included for the control of deposit of waste, the Government have indicated over and over again that they believe that the duty of care will substantially be self-regulating. I wonder what lies behind that aspiration and why one feels that the Government are justified in expecting self-regulation to provide the answer. I say that because all precedent goes the other way. In my submission, if one looks at the existing controls under the Control of Pollution Act 1974 one can see that the difficulties to which I am now alluding have been made clear. Moreover, some of the principal problems of enforcement of the 1974 Act relate to that very lack of information about production and the nature of the waste about which we have expressed concern during the course of these debates. Therefore, we have real anxieties that similar problems will arise with regard to the duty of care.

We believe that the Bill should clearly express the reference to a review of the workings of the duty of care provisions. It should be assessed on the basis of whether the regulatory authorities have been able to minimise pollution problems arising from the inappropriate handling of waste and why these problems have arisen.

I am sure that the regulatory authorities will be able to help the Government. They will know of any shortcomings which arise in relation to the information, and so on, which is required. They will know this from the information which they have at their disposal and will surely wish to make such information known to the Government.

There may be resource issues which arise in order to improve the information available and therefore the regulatory abilities of the enforcing authorities. We think that all those aspects ought to be part of a report which should be provided to Parliament. Why should the Government respond negatively to something which concerns not only Parliament but also the people outside on whose behalf we ought to be looking at the matter in two to three years' time? I beg to move.

Lord Addington

My Lords, I rise briefly to express my support for the amendment. Any new regulation or process should surely have some review built into it. The fact that we have previously had problems as regards lack of information, in connection with regulations which dealt with pollution control matters under the 1974 Act, indicates that we have got it wrong in the past and are quite capable of doing so again.

Lord Renton

My Lords, this amendment involves a purely administrative instruction to the Secretary of State to take certain action which he is likely to take in any event as the implementation of the scheme evolves in future years. I think that we are sometimes over-zealous in trying to cover every conceivable administrative possibility. The purpose of legislation is to make laws for the better ordering of society in the hope that people will obey them when the instructions in them are quite specific. But for us to continue on many occasions indicating in the legislation the follow-up action that Ministers should take is, I believe, over-zealous, to put it mildly. It is unnecessary because we can always question Ministers and raise points in Parliament about how legislation is working out. Surely it is better to do that than to clutter up the statute book in the way now proposed.

Baroness Blatch

My Lords, I largely dealt with the matter when answering the noble Lord, Lord McIntosh, on Amendment No. 68, which proposed a register of producers. We are fully alert to the need for information and enforcement of the duty of care. On enforcement, I have explained how, in the Government's view, the duty of care will be largely self-enforcing. It will be the responsibility of every person bound by the duty to police themselves and one another and they will have every incentive to do so.

The noble Lord, Lord Clinton-Davis, asked why the scheme is self-regulating. There are two reasons for that. The first is practicability. There are too many waste producers and holders to rely solely on enforcement by authorities which should have to step in only when something has clearly gone wrong with the normal chain of legal waste management. The second reason is that we believe that self-regulation will work. Each person will be checking not just what he himself does but also what others do. They will all have to ensure that the person to whom they give waste is bona fide and legal.

The noble Lord also expressed anxiety about the duty of care being self-regulatory. A producer will know for the first time that, if he does not take reasonable steps, he will be prosecuted. That has never been the case before. Most of industry will be worried about that provision whereas it might not even have considered waste disposal to be important before. A criminal offence will concentrate the mind. We shall give as much publicity as possible to those new duties. I am sure that industry will respond.

I am grateful to my noble friend Lord Renton, who raised the issue of overlaying bureaucracy to no useful end. On information, the duty of care and the document to be required by regulations will create an audit trail that producers and authorities will be able to follow.

We shall keep both subjects in mind, not merely two years after the commencement, but constantly, and I am sure that we shall receive representations. If the noble Lord, Lord Clinton-Davis, continues to be a Member of the House I am certain that he and others will question Ministers in Parliament on all these subjects.

Lord McIntosh of Haringey

My Lords, I am sorry to interrupt the Minister, but I am interested in that proposal for constitutional reform from the Government Front Bench. Is it now intended that the term of office of Members of the House shall not be for life?

Baroness Blatch

My Lords, that is not in my mind but I understand it is in the minds of other noble Lords. So long as there are noble Lords in the House there will always be the democratic right to question Ministers about policies and therefore the amendment is unnecessary. For the first time all parts of the system of waste control and management will be more exposed than they have ever been. That is healthy. The public and Parliament will know what is going on through all the democratic means at their disposal. I hope that the amendment can be withdrawn.

Lord Clinton-Davis

My Lords, the Minister has touching faith in self-regulation, which is compounded by experience. Be that as it may, and let us assume that in this instance her faith appears to be justified, does she say that no qualifications are likely? She took up the point made by the noble and learned Lord, Lord Renton—

Lord Renton

My Lords, perhaps the noble Lord will allow me, it was the custom in another place to refer to Queen's Counsel as being learned, but here in your Lordships' House one is not considered to be learned if one is merely a Queen's Counsel.

Lord Clinton-Davis

My Lords, I am grateful to be put right about that point, but I grew into a sort of habit about the noble Lord. Unfortunately, I continue to consider him as learned. If I am wrong about that, I apologise.

There is a touching faith too in the capacity of Members of another place and in the House to be able effectively to probe the Government about matters of considerable detail such as this is in Question Time and otherwise. What we need, and what we are asking for, is some regularity and cohesion about this matter. Information would be laid before the House, the public would know about it and the matter could be much more effectively and decisively questioned.

I am disappointed that the Minister should be so negative about what is designed to help the Government, particularly with their faith in self-regulation. So far as conditionality of membership of the House is concerned, I was beginning to be a little worried about my state of health or how the Minister viewed it from those Benches, but I had an early shave this morning and that may account for it. I share her optimism as to the election of another government. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clinton-Davis moved Amendment No. 70A: Page 36, line 30, after ("issue") insert ("on behalf of the chief inspector").

The noble Lord said: My Lords, the main purpose of the amendment is to ascertain from the Government why HMIP will not be involved in the statutory guidance; that is to say, the code on waste management. I should have thought that the audit role of HMIP would be of considerable importance in ensuring that high standards are aimed for and achieved, and that it would alert the Government to any shortcomings. There is a need to ensure that the regulatory authorities are supplied with adequate and current information about standards and so on.

The Bill provides for the issuing of statutory advice. The mechanism whereby that is to be arranged needs to be clarified. Again, that is a matter where HMIP's role could be usefully used on behalf of the Government and the people. I hope that the Minister will be a little more forthcoming. I have not enjoyed anything like the same success as the noble Lord, Lord Jenkin, who has only to get up and he convinces the Government right away. That is his power of advocacy, from which I shall learn. I hope to have more success with the next government.

The other major cause of anxiety here is the technical policy element, which is crucial to the effective implementation of Part II. What seems likely is that the existing waste management papers will, with suitable upgrading and revision, be issued as statutory guidance on best practice for operators and regulators. In Committee, the noble Earl, Lord Arran, asserted: It is likely that HMIP will no longer produce waste management papers. That requirement is likely to be transferred to the Waste Management Technical Policy Group".—[Official Report, 21/6/90; col. 1121.] However, in the same debate the noble Lord, Lord Hesketh, who has departed to another department, said: HMIP will be issuing detailed guidance on how authorities should discharge their regulatory role; matters such as frequency of site inspections and the number and qualifications of inspectors to be employed".—[Official Report, 21/6/90; col. 1125.]

On the face of it there seems to be some confusion about what is proposed for HMIP. I hope that the Government will be able to clarify the position here and now. I beg to move.

The Earl of Balfour

My Lords, I hope that the amendment is not accepted. I hope that any Secretary of State acts on behalf of the Government and no one else. We are heading for trouble if we have the Secretary of State acting on behalf of a chief inspector.

Lord Renton

My Lords, I agree. I find it a strange proposition. After all, the chief inspector is appointed by the Secretary of State. As I understand it, he will be an official of the department. It is unheard of for Ministers who are given power or responsibility for issuing codes of practice to do so other than on their own behalf and on their own responsibility. They do not need to have it stated in a statute that it is being issued on behalf of an official of their department. I have never heard of such a thing.

6.30 p.m.

Lord Reay

My Lords, Amendment No. 70A would have the code of practice on the duty of care issued on behalf of the chief inspector of HMIP. We do not believe that this would be a proper part of the job of the chief inspector of HMIP. We believe that this amendment may be based on misunderstandings both of the role of the HMIP and the nature of the code of practice.

The role of HMIP on waste management in Part II of the Bill is much more withdrawn than its role in Part I. Under Part II it is waste regulation authorities who are the authorities out in the field framing and applying statutory controls. The role of HMIP is to oversee the work of the waste regulation authorities. Essentially it has no enforcement role of its own on licensing and none on the duty of care.

The noble Lord, Lord Clinton-Davis, raised the question of waste management papers and the involvement or otherwise of HMIP. I can tell him that not all existing waste management papers will become statutory guidance. The important papers such as Paper 4 on licensing will become statutory guidance. It may be that the waste technical policy unit will provide future advice, but that unit will be staffed by equally experienced technical officers so there is no cause for concern at this transfer.

We must also be clear about the purpose and nature of this code of practice. The practical guidance in it is not primarily technical. The prime purpose is to provide guidance for the benefit both of waste holders and of the courts as to what steps are reasonable to discharge the legal duty. It is therefore as much a legal and administrative document as a technical one. Lawyers and administrators in the department need to contribute to the code as much as HMIP, which offers technical and professional advice.

I can assure the noble Lord that HMIP has been and will continue to be closely involved in the preparation of the code. But the code is a product of the Department of the Environment as a whole and it is the Government's view, as well as that of my noble friends Lord Balfour and Lord Renton, that it should be statutorily issued by my right honourable friend the Secretary of State.

Lord Clinton-Davis

My Lords, I have never found Conservative Members of Parliament altogether convincing before, so this sets a precedent for me. I find that the arguments that have been adduced by the noble Lords opposite totally convincing. They have undermined whatever I have said. This is a precedent which is not likely to be repeated, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clinton-Davis moved Amendment No. 71: Page 36, line 32, at end insert ("including guidance on the operation of relevant regulations under any other enactment concerning health and safety matters").

The noble Lord said: My Lords, I beg to move this amendment, which stands in the name of my noble friend Lord McIntosh. It is designed to prompt the Government to state their current position on a matter on which the noble Lord, Lord Hesketh, in a previous debate, agreed to consider—that is, whether the code relating to the duty of care should refer to the health and safety regulations. The matter was apparently left open and I therefore hope that on this occasion the Minister replying for the Government will be able to clarify the situation.

Perhaps I ought to add a word on the circumstances in which the issue arose. The question was whether the duty of care and the related code impinged on the operation of emergency plans associated with the storage, treatment or disposal of waste. It was acknowledged that if waste is of such a nature that its storage presents a major hazard, it will be covered by health and safety legislation. I look forward to a positive response from the Minister. I beg to move.

Lord Renton

My Lords, the noble Lord, Lord Clinton-Davis, may be surprised and happy to know that on this occasion I believe him to be on a somewhat better point. However, I do not think that the exact way he has proposed to do this is appropriate. If the amendment had read: including guidance on the operation of relevant regulations under any other enactment", and had stopped there, it could have been helpful. Very often one piece of legislation impinges upon another when codes of practice are being compiled. To have a cross-reference could be useful. However, to say, any other enactment concerning health and safety matters", is surely opening the door wide. There is a vast range of legislation dealing with health and safety. The noble Lord may well feel that he has limited and qualified those last few words by the word "relevant". However, I rather fear that it is dangerous to invite attention to any other enactment concerning health and safety matters. Therefore I am not inclined to support the noble Lord on the amendment as it stands. However, had the last words been deleted then I should have had some difficulty in opposing it.

Lord Addington

My Lords, not surprisingly, since my name is on it, I support the aims of the amendment. Also, we need cross-referencing, we constantly find pieces of legislation bumping into each other so surely something of this nature is required. The noble Lord, Lord Renton, would agree with that but does not like the words. I shall be interested to hear what the Government say in the matter and whether they will provide some other form of guidance about the cross-referencing of regulations in various Acts.

The Earl of Arran

My Lords, I can be brief on this amendment and say that we are happy to give an assurance that the code will draw attention to the existence of the codes of practice under the health and safety legislation, among a number of cross-references to other statutory requirements which are not the subject of the code. However, it would be quite wrong to duplicate provisions of other legislation in the statutory code of practice. Therefore I hope that the noble Lord will feel on the basis of this explanation that he need not press his amendment.

Lord Clinton-Davis

My Lords, if it were possible at this stage to adopt the suggestion of the noble Lord, Lord Renton, I should do so. I cannot. I am impressed by what he said and perhaps the most appropriate course for me to take now is to consider the possibility of coming back to the issue at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 [Waste management licences: general]:

[Amendment No. 72 not moved.]

Lord McIntosh of Haringey moved Amendment No. 73: Page 37, line 37, after first ("authority") insert ("(and providing it has previously consulted that authority on the matter)").

The noble Lord said: My Lords, this amendment, like so many others past and future, is concerned with consultation with the local authority—in this case about appeal decisions. This is not something plucked out of the air. The noble Lord, Lord Reay, from the Government Front Bench, said in response to an earlier amendment: It is not necessary to impose a duty on the Secretary of State to consult with the authority but he will in all cases"— I emphasise that— have done so before reaching a decision to direct, and indeed the normal principles of administrative law require that that should happen". [Official Report 21/6/90; col. 1120. That is all very well as far as it goes. In the absence of any other evidence I should have accepted that assurance and should not have pursued the matter now. However, the trouble is that, whatever the normal principles of administrative law may be, that is not what has happened. The metropolitan waste disposal authorities were subject to review by Her Majesty's Inspectorate of Pollution. They were informed that their operation was broadly acceptable. But then the Government proposed a reorganisation of their functions by the creation of the local authority waste disposal companies.

There was no dispute about any specific licence arrangements. However, there was no consultation and the approval of Her Majesty's Inspectorate of Pollution was not considered good enough. It was quite clear that there was not adequate consultation and contact between HMIP and the waste disposal authorities. Even if that is the normal principle of administrative law and even if we have an assurance from the Front Bench that the Secretary of State will in all cases consult with the authorities, that is not what happens. For that reason we have considered it necessary to table this amendment to ensure that the assurances are written on the face of the Bill. I beg to move.

Lord Renton

My Lords, I hope my noble friend will not accept this amendment, although I appreciate the motive behind it. The noble Lord is really saying that we have to write something into the Bill to say that what is going to be done has got to be well done. Surely we always intend that whenever we give a power or require something to be done in the public interest. It must be well done. That is all that the amendment states. It would constitute a sheer waste of words.

Lord Reay

My Lords, Amendment No. 73 would require the Secretary of State to consult an authority before directing it as to what conditions to attach, or not to attach, to a licence. We cannot accept an amendment that would so fetter the Secretary of State's powers to act urgently if required. The Opposition has several times expressed the view that the Secretary of State should be statutorily bound to consult before he discharges various functions. In this case the function in question is directing an authority what conditions to put on a particular waste management licence. The Government are in practice perfectly happy to consult wherever it is practicable to do so.

The noble Lord, Lord McIntosh of Haringey, quoted from Hansard some of my comments made in Committee. He must be correct therefore in stating that I said that in all cases the Government would consult. In that case I must apologise to the noble Lord and to the House for having misled them on that occasion. I believe it is true that the Government would consult in the majority of cases and would be required to do so by normal administrative law. However, there are occasions when emergency action would require action without consultation.

It would be difficult for a case to reach the extreme stage of dictating licence conditions to an authority without there having been consultations. But we have to legislate in a way which caters for emergencies. Urgent cases coming to the attention of the Secretary of State where an authority had failed to put essential conditions on a licence might require immediate action. A requirement to consult in such cases would be inappropriate and unhelpful. It might then be necessary to intervene, perhaps to prevent pollution, by ensuring that the correct conditions were imposed on the licence as soon as possible. In such circumstances a delay for statutory consultation would not be reasonable. I must therefore ask your Lordships not to bind the Secretary of State's hands by such an amendment but to accept my assurance that in general there will be consultations before a direction.

6.45 p.m.

Lord McIntosh of Haringey

My Lords, I am sorry that I tabled this amendment but not for the reasons put forward by the noble Lord, Lord Renton, because the amendment does not seek to do what he says. We are not insisting that something should be well done. We are merely saying that there should be consultation. I am sorry that I tabled the amendment because we have moved backwards. An assurance given by the noble Lord on the Government Front Bench in Committee has now been withdrawn with apologies to the House. I took the Government at their word. I thought they meant that the normal principles of administrative law would require consultation with authorities in all cases. I am still not sure that that is not the case. I should have thought that a local authority would have a good case for judicial review if it found that a direction of this kind had been taken without consultation. Local authorities themselves have often had their decisions overruled on the grounds not just that consultation had not taken place but that it was inadequate.

I much prefer the reply given on 21st June to the reply given today. I am sorry that that reply has been qualified and weakened now. The situation is now unsatisfactory and means that the normal principles of administrative law which were adumbrated by the Government as principles only a few months ago are now to be changed. It is interesting that normal principles of administrative law can be changed simply by the way a phrase is expressed from the Government. Front Bench in the House of Lords. I am not at all happy. I do not think that the Minister addressed the issue that I raised about metropolitan waste authorities. There was no defence of the decision to go against the recommendations of Her Majesty's Inspectorate of Pollution. I do not see any reason why this amendment should not be accepted by the Government as it is so much in accordance with what was said previously.

However, we must consider framing an amendment which responds to the Government's position as it now stands rather than as we expected it to stand after the Committee stage. I may well come back on Third Reading with a more drastic measure rather than a more conciliatory measure, as is normally the case. If the Government move backwards, I shall have to pursue them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 [Grant of licences]:

Lord McIntosh of Haringey moved Amendment No. 74: Page 38, line 33, after ("health") insert: ('(bb) contravention of the requirements of subsection (3A) below, or such other requirement as the Secretary of State may substitute by regulations made under that subsection").

The noble Lord said: My Lords, in moving Amendment No. 74, I wish to speak also to Amendment No. 75. We are considering here the requirements which have to be met for the Secretary of State 10 issue a waste disposal licence. The Bill sets out various forms of damage which would result in the rejection of a licence application. They are pollution of the environment, harm to human health or detriment to local amenities. There is nothing wrong with that and I have no objection to any of those criteria. However, there is another equally important way of considering the matter of waste disposal. I say that without detriment to what I have just said. There should be an order of priorities for the way in which waste is disposed of.

An order of priority has been set out by the European Commission in its document entitled A Waste Management Strategy for Europe. That order of priority is also set out in Amendment No. 75. The first priority as set out in paragraph (a) of the amendment is a, reduction of waste by process or technology improvement". Where this first priority is impracticable, the second priority as stated in paragraph (b) applies. It is, the reutilisation of, or resource recovery from, or recycling of the waste". The third priority is stated in paragraph (c) of the amendment. It states: (in any case in which the authority considers the requirements of paragraphs (a) and (b) above to be impracticable) the elimination of the waste by physical or chemical means". Where paragraphs (a) to (c) are impracticable, the lowest priority as set out in paragraph (d) applies. It is the, disposal of the waste to landfill, or such other method of disposal as the authority considers appropriate". I do not believe that the Government will disagree with those orders of priority. They are now pretty well established as the basis on which we think about reducing waste, recycling and different methods of elimination of waste before we are forced into disposal of the irreducible minimum of waste. That is now common ground. If one looks at the Government White Paper issued two weeks ago one finds many references to those principles.

It would be a pity if, having recognised those principles, we failed to give effect to them in the waste disposal licences which will come into effect when the Bill becomes law. Otherwise all the fine words in the White Paper and in speeches by Ministers—I have not heard the speech the Secretary of State for the Environment is due to make at the Conservative Party conference today but I am sure that it will be full of fine words—

A noble Lord

Very good!

Lord McIntosh of Haringey

I said full of fine words, not very good. There is a great difference between fine words with no action and indications of action.

If the Government accept the amendment there is a possibility that the Secretary of State's speech at least in that respect will be good because there is an opportunity for the Government to do what the White Paper does not do; namely, to take an outstanding opportunity to put into practice the fine words that they preach. If the Minister in this House is prepared to take the Secretary of State's fine words as being a serious indication of the Government's intention to act I feel sure that she will wish to support and approve of the amendments. I hope that the House will see fit to adopt them. I beg to move.

Lord Jenkin of Roding

My Lords, I must confess that when I first read the amendment on the Marshalled List I thought that the noble Lord, Lord McIntosh of Haringey, was on to something. However, on closer inspection I have seen a number of irremovable flaws.

The clause is concerned with the giving of licences to site operators. In the vast majority of cases a waste disposal site will cater for a very wide range of wastes from a wide range of different sources. The flaw in the amendment is that the authority which is to issue the licence would be required to inspect every possible waste producer whose waste was to turn up on the site in order to be able to ask itself the questions which are set out in paragraphs (a), (b), (c) and (d) of Amendment No. 75. I regard that as totally impractical.

If it were a question of one producer wanting to use a site for the waste from one operation it might be feasible to ask whether the amount of waste could be reduced by process or technology improvement or whether it could be re-utilised or recycled. However, in the case of a normal site for which a licence would be required and to which a large number of firms are likely to take their waste it is impractical.

Having said that, what is the process? The noble Lord, Lord McIntosh, has a point. If one is to have a policy for the minimisation and recycling of waste, as the Government certainly have—we all support it— there must be measures to achieve that. Those measures are to be found in a different part of the Bill. That is what integrated pollution control is all about. It is set out in paragraph 14.3 and following paragraphs of the White Paper under the heading "Waste Minimisation". It is stated: The Government's first priority is to reduce waste at source to a minimum. It intends to achieve this by imposing tough standards on industry through Integrated Pollution Control and by promoting clean technologies". The subsequent paragraphs spell out how that is to be done.

That is not done through the process of issuing licences to site operators. It is done through integrated pollution control and all the steps in Part I of the Bill that we have dealt with in the past. Therefore to pile Pelion upon Ossa and require the authority which is to issue a site licence to go through the process again before a site licence is issued is impractical and unnecessary. I understand the noble Lord's motives for wanting to do so but I have to say to my noble friend on the Front Bench that I for one regard it as wholly impractical.

Lord Reay

My Lords, Amendment No. 75 would require an authority to impose in a licence particular conditions for the purpose of minimising environmental pollution, while Amendment No. 74 would allow refusal of a licence application where the requirements in Amendment No. 75 are to be breached.

We here enter the debate on the priorities to be adopted in dealing with waste. Let me say at once that we accept the greater part, though not quite all, of the policy underlying the amendments. However, we have two main objections to the amendments. First, we do not believe that we should put this detailed policy on the statute book in such prescriptive detail. Secondly, in our view the amendments are directed at the wrong target—at waste disposers rather than waste producers.

The policy underlying the amendment is that there should be a hierarchy of waste management priorities. In the Government's view the priorities for waste should be as follows: first, minimise; secondly, recycle; and only as a third choice, dispose. That view was set out in the White Paper and we therefore agree up to that point with the principle behind the noble Lord's amendment. The only qualification I would add is that we cannot agree that incineration rather than landfill is automatically the best answer for waste disposal in all cases where waste can be neither minimised nor recycled. In many cases there is little environmental benefit to be gained from prior incineration. In our view a blanket prescription that landfill should always be a last resort does not accord with environmental reality.

That is the underlying policy. However, whatever we may argue about the details of the hierarchy the Government's view is that it should not be set in concrete by primary legislation at this level of detail. It is more appropriate to advice and, if necessary, direction from the department to local waste regulation authorities. Waste producers and waste disposers should be allowed a choice of options where this is consistent with good environmental practice. Waste regulation authorities need to maintain enough flexibility to take account of individual cases. If there is any policy so universal in its application that we need to impose it on all, then powers exist for the Secretary of State to direct what authorities may permit or require of waste managers; but that is not, in our view, appropriate to the face of the Bill.

My other main objection was identified by my noble friend Lord Jenkin of Roding; namely, that the amendments are directed at the wrong person. The holder of a waste management licence is, by definition, dealing with a material that has already been discarded by someone; it is already waste. If we wish to prevent waste arising we must address the provisions to the person who produced it in the first place. That is what Part I of the Bill sets out to do through integrated pollution control. It would be wrong to refuse a licence to a disposer of waste on the grounds that someone else had produced it or failed to recycle it.

In a nutshell, I can confirm the Government's adherence to a hierarchy of priorities for dealing with waste not very different from those of the noble Lord, but in our view the amendments are not the right way to promote such a policy.

Lord McIntosh of Haringey

My Lords, if I had been searching for a test case of the conflict between the fine words of the White Paper, the public presentation of so-called green policy by the Government and the reality of what the Government propose to do about it, I could not have chosen a better example than this one.

The noble Lord, Lord Jenkin of Roding, has been very helpful. He has read out from the White Paper —which I do not have before me today, because I gave away my copy and it is now out of print—the section in which the Government set out their adherence to the principles in my Amendment No. 75. The noble Lord read them out from the wrong place, because he was talking about integrated pollution control and was therefore dealing largely with other forms of emissions into the air, rather than the waste with which this part of the Bill is concerned. Nevertheless, it is there in the White Paper.

Lord Jenkin of Roding

My Lords, I did not weary the House by reading out subsequent paragraphs. But the paragraphs are perfectly clear. Paragraph 14.5 states: examine the potential impact of waste discharges on all three media, (air, water and land)". It is not only air. The noble Lord is on to a bad point.

Lord McIntosh of Haringey

My Lords, that is even better. Do not do anything; just examine the potential. We have before us an opportunity not to examine the potential but to do something about it. We have a proposal for waste disposal licences for site operators. It is no good the noble Lord on the Front Bench saying that that is the end of the cycle of waste disposal. Waste disposal site operators will very often have opportunities to deal with the reprocessing, the recycling and the reutilisation of the waste that comes to them. There is no technical reason why there should not be vertical integration in the waste disposal cycle. There is no reason why those who have the sites should not also take part in the recycling and recovery process. That is a complete misconception.

We have before us a Bill which provides for the way in which waste will be disposed of and the Government, having said in their White Paper that they will examine the potential for it, are resisting the idea of doing something about it. I could not have chosen a better example of the conflict between what purports to be a policy and what, when you come down to it, is not a policy at all.

The noble Lord, Lord Reay, was good enough to agree that in almost every respect the Government's order of priorities agreed with ours. Indeed, the only conflict he has is achieved by misreading what my amendment says. I did not propose incineration as being always better than disposal to landfill. The amendment refers to, the elimination of the waste by physical or chemical means", which is a much wider concept than simply incineration.

We ought on this occasion to display our support for what the Government claim to be doing rather than for the emptiness of the claims they have put forward in their White Paper, and the House ought to take a view on this matter.

7.4 p.m.

On Question, Whether the said amendment (No. 74) shall be agreed to?

Their Lordships divided: Contents, 48; Not-Contents, 74.

Division No. 3
CONTENTS
Addington, L.	Kirkhill, L.
Airedale, L.	Lovell-Davis, L.
Ardwick, L.	McIntosh of Haringey, L.
Barnett, L.	Morris of Castle Morris, L.
Birk, B	Nicol, B.
Blease, L.	Northfield, L.
Carmichael of Kelvingrove, L.	Oram, L.
Clinton-Davis, L.	Phillips, B.
Cocks of Hartcliffe, L.	Pitt of Hampstead, L.
Dean of Beswick, L.	Prys Davies, L.
Dormand of Easington, L.	Raglan, L.
Falkland, V.	Ritchie of Dundee, L.
Galpern, L.	Robson of Kiddington, B.
Glasgow, E.	Ross of Newport, L. [Teller.]
Graham of Edmonton, L.	Seear, B.
[Teller.]	Stedman, B.
Grey, E.	Stoddart of Swindon, L.
Hampton, L.	Thomson of Monifieth, L.
Hanworth, V.	Tordoff, L.
Hayter, L.	Turner of Camden, B.
Hollis of Heigham, B.	Underhill, L.
Houghton of Sowerby, L.	White, B.
Jeger, B	Williams of Elvel, L.
Jenkins of Hillhead, L.	Winstanley, L.
Jenkins of Putney, L.

NOT-CONTENTS
Aldenham, L.	Auckland, L.
Arran, E.	Balfour, E.

Belstead, L.	Kenilworth, L.
Blatch, B.	Kimberley, E.
Borthwick, L.	Kinloss, Ly.
Boyd-Carpenter, L.	Kintore, E.
Brabazon of Tara, L.	Lawrence, L.
Brougham and Vaux, L.	Lindsey and Abingdon, E.
Caithness, E.	Long, V.
Campbell of Alloway, L.	Lucas of Chilworth, L.
Campbell of Croy, L.	Lyell, L.
Carnegy of Lour, B.	McColl of Dulwich, L.
Cavendish of Furness, L.	Mackay of Clashfern, L.
Colville of Culross, V.	Merrivale, L.
Colwyn, L.	Mersey, V.
Constantine of Stanmore, L.	Murton of Lindisfarne, L.
Cox, B.	Orkney, E.
Craigmyle, L.	Pearson of Rannoch, L.
Cross, V.	Radnor, E.
Darcy (de Knayth), B.	Reay, L.
Davidson, V. [Teller.]	Renton, L.
Denham, L. [Teller.]	Rodney, L.
Eccles of Moulton, B.	Sharples, B.
Effingham, E.	Shuttleworth, L.
Elibank, L.	Skelmersdale, L.
Elliot of Harwood, B.	Stodart of Leaston, L.
Elphinstone, L.	Strange, B.
Ferrers, E.	Strathclyde, L.
Gisborough, L.	Strathmore and Kinghorne, E.
Glenarthur, L.	Sudeley, L.
Harvington, L.	Trumpington, B.
Henley, L.	Ullswater, V.
Hesketh, L.	Vaux of Harrowden, L.
Hives, L.	Walpole, L.
Hylton-Foster, B.	Whitelaw, V.
Jenkin of Roding, L.	Wise, L.
Johnston of Rockport, L.	Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.11 p.m.

[Amendment No. 75 not moved.]

The Earl of Arran moved Amendment No. 76: Page 39, line 20, at end insert: ("(6A) Where any part of the land to be used is land which has been notified under section 28(1) of the Wildlife and Countryside Act 1981 (protection for certain areas) and the waste regulation authority proposes to issue a licence, the authority must, before it does so—

1. (a) refer the proposal to the appropriate nature conservation body; and
2. (b) consider any representations about the proposal which the body makes to it during the allowed period;

and in this section any reference to the appropriate nature conservation body is a reference to the Nature Conservancy Council for England, the Nature Conservancy Council for Scotland or the Countryside Council for Wales, according as the land is situated in England, Scotland or Wales. (6B) Until the date appointed under section 124(3) below any reference in subsection (6A) above to the appropriate nature conservation body is a reference to the Nature Conservancy Council.").

The noble Earl said: My Lords, I move this amendment on behalf of my noble friend. At the same time I shall speak to Amendments Nos. 77, 78, 79, 80 and 81. These amendments give the Nature Conservancy Council statutory status as a consultee on waste licences as promised to my noble friend Lord Cranbrook following the Committee stage. The NCC has a strong interest in applications in waste management licences where the land in question is a site of special scientific interest. I beg to move.

Lord Ross of Newport

My Lords, I welcome this amendment. It is highly desirable and I am very pleased that the Government have introduced it.

On Question, amendment agreed to.

The Earl of Arran moved Amendments Nos. 77 and 78: Page 39, line 29, after ("Executive") insert (", the appropriate nature conservancy body"). Page 39, line 33, at end insert (", the body").

The noble Earl said: My Lords, on behalf of my noble friend I beg to move these amendments together.

On Question, amendments agreed to.

Clause 36 [Variation of licences]:

The Earl of Arran moved Amendments Nos. 79 to 81: Page 40, line 16, leave out ("and (6)") and insert ("(6), (6A), (6B) and (8))"). Page 40, line 18, leave out ("it applies") and insert ("they apply"). Page 40, line 25, leave out from ("affect") to end of line 26 and insert ("any authority mentioned in the subsections so applied.").

The noble Earl said: My Lords, on behalf of my noble friend I beg to move Amendments Nos. 79 to 81 en bloc.

On Question, amendments agreed to.

Lord McIntosh of Haringey moved Amendment No. 82: Page 40, line 27, leave out ("two") and insert ("four").

The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendment No. 86. This amendment may be thought to be an example of having a foot in the door and seeking slightly to widen the chink. At Committee stage the Government agreed that new licences for the activities authorised by a licence should be available to local authorities to deal with for a period of two months. We were happy to accept—as indeed we argued—that that period should be extended to four months because hard pressed local authorities would have to undertake a whole range of new duties which would be to much higher standards imposed on them by government and expected by the public.

This amendment, which affects Clauses 36 and 42, gives the same period of four months not just for new licences but for variations in licences. In response to earlier amendments at Committee stage the noble Earl, Lord Arran, said that most applications for modification should be simpler than the initial application for a licence. However, I put it to the Government that that is not necessarily the case. It may well be that some modifications of licences will be simple but many will involve a complete reassessment. The time that has now been agreed by the Government as reasonable for a new licence ought to be applied for some of the more complex modifications. We have had to table the amendment to cover all modifications.

I can assure the Government that it is not in the interests of the local authorities to delay consideration of a licence. It costs them more money and gives them more trouble if they have the matter hanging around on their books. Certainly the Association of County Councils, which proposed this amendment to us, has given the assurance that its members would deal with applications with all possible speed. However, in recognition of the fact that modifications could well be as complex as new licences, the association feels that a period of four months, as suggested in Amendment No. 82, would be more reasonable than the two months originally proposed. It therefore hopes that the Government, having recognised half the case, will now recognise the rest of it.

Amendment No. 86 is one which is perhaps even less controversial. It provides that where a matter has not been determined by the Secretary of State within a period of 12 months he shall provide both parties to the appeal with a statement of the reason. I believe that that is in accordance with the normal practice of administrative law—would that be an acceptable phrase?

I hope that the Government will feel that this is a reasonable and constructive amendment. I beg to move.

7.15 p.m.

Lord Ross of Newport

My Lords, my name is also down on this amendment. If it is not accepted by the Government I believe that the local authorities will automatically write to the applicants and ask for an extension anyway. According to this clause it can be agreed in writing. We know what happens so often over planning applications. The fact is that if the authority has not given a decision within two months it will be deemed to have rejected the application. Presumably the matter then goes to appeal. It seems to me to be commonsense to make a little more time available because these are very complicated matters.

A friend of mine has just been dealing with an enormous number of applications for licensing in Northamptonshire. I know the problems that have arisen. Matters have taken a long time to resolve. It is not the fault of the local authorities that delays have occurred. They have to try to get things right.

I believe that four months makes sense. If we leave the period at two months I am sure that almost every authority will ask for an extension.

The Earl of Balfour

My Lords, I am a little concerned about this matter. It is very unkind to the licence holder to ask him to wait for four months. He already has to wait for at least two months before anything can be done. It is also possible for an agreement to be made between the parties involved.

Equally, the noble Lords who have put their names to Amendment No. 82 have raised some interesting points. I find it interesting that in Clause 35 the period is four months, in Clause 36 it is two months, in Clause 38 it is three months and in Clause 39 it is again two months. I wonder whether those numbers were picked out of a hat.

Baroness Blatch

My Lords, Opposition Amendment No. 82 asks us to extend the period of time after which a licence holder who has applied for a licence modification may appeal against the refusal of an authority to determine his application. This would bring the provision into line with the time allowed in the case of an application for a new licence.

I do not accept the parallel made with new licence applications for two reasons: first, because the process of modifying an existing licence is less time-consuming than processing a new application and two months should be an adequate period; secondly, the point which has just been made by my noble friend Lord Balfour.

A licensee seeking a modification has a business under way. To a business time is money and we must give the applicant as early as possible a chance to appeal to the Secretary of State where he feels that the authority is merely delaying. The clause does not say that such applications must be dealt with within two months. Where an application is subject to unintentional delay, the applicant may decide, after receiving the authority's explanation, that a decision would be obtained more quickly by awaiting the completion of the authority's procedures than by appealing.

The noble Lord, Lord McIntosh, is correct. Yes, some modifications may be simple and some complex. However, if they are complex the authority and the licensee may agree a longer time period. That is the important point. We are talking about a time period by which we ought to expedite matters in order for companies to continue their business. However, if they mutually agree a longer time period that is permissible.

We are concerned with those instances where it is not a simple matter. New applications will not include, for example, consideration regarding a fit and proper person. That is more time-consuming. It was the introduction of the fit and proper person concept in the original application which led us to extend that period to four months.

I turn to Amendment No. 86. I admire the ingenuity of the noble Lord, Lord McIntosh, and his colleagues, in tabling a fresh amendment on this subject at every stage of the Bill's passage, thus ensuring that no opportunity is lost to discuss the subject of delay in determining appeals to the Secretary of State.

I really have nothing new to say on this subject. The department's performance in determining appeals in the past has not been as speedy as it might have been. A delay of more than a year for poor or no reason is not good enough. However, we have kept the procedures under review and made improvements where possible. There are often good reasons, some of them entirely outside the control of the department, why appeals may be unreasonably delayed. They are often highly technical. They are also quasi-judicial. The parties must therefore be given every opportunity to make representations and rebut each other's views. If an appeal is delayed by the complete silence or protracted evasions of one of the parties then it can be extremely difficult to gather the information necessary to determine an appeal.

I assure the House that the department's procedures include setting the parties target dates at all stages. The parties therefore are in no doubt as to the reason for any delays. I therefore believe that the amendment is unnecessary.

Lord McIntosh of Haringey

My Lords, the noble Lord, Lord Ross of Newport, is right to draw attention to the analogy with planning applications. It is common experience that local planning authorities do not deal with planning applications in the specified time. Indeed, the Department of the Environment has for many years kept statistics of the proportion of planning applications that are dealt with within the specified time.

On the other hand, if one is an applicant—as I have recently been to my local borough council—and it states that it cannot deal with the matter within the time, it is generally agreed that it would be rather foolish to accept that as a deemed refusal and go to appeal. It would be much better to accept the delay and hope that one will attain the objective without the further delay of appeal. The Department of the Environment is supposed to have a period of four months to deal with a planning appeal, but it may state that it cannot deal with the appeal in that period. The process may therefore take much longer than the law would appear to require.

In reality it probably makes little difference what is on the face of the Bill. It is the ability of the local authority and the departments to deal with matters within the specified period that is important. The best that I can do is to draw the attention of my noble friend Lady David—in whose name the amendments stand—to the answers given. I do not find them satisfactory. I beg leave to withdraw the amendment. She can then consider what to do next.

Amendment, by leave, withdrawn.

Clause 37 [Revocation and suspension of licences]:

Lord McIntosh of Haringey moved Amendment No. 82A: Page 41, line 5, after ("person") insert ("or the circumstances set out in section 73(3) (c) apply").

The noble Lord said: My Lords, in moving Amendment No. 82A I speak also to Amendment Nos. 82B and 132A. At the outset I should like to thank the Minister for letting me see a copy of the press release based on the statement that she made at the beginning of today's proceedings. Amendment No. 132A is concerned with fit and proper persons. On that amendment we shall be discussing the issue of training. That was the subject of her statement. It is the subject of the press release.

As the Bill is presently drafted, the criteria for whether a person is fit to be given a waste disposal licence are mainly criminal and technical. The criteria for suspension of a licence also are mainly criminal and technical. They relate to the criminal record and technical competence of the applicant or licence holder and a certain amount of financial provision.

There is a distinction between the original granting of a disposal licence on criteria which are criminal, technical and financial, and the determination whether a person should have a licence revoked or suspended because he is no longer fit. It is possible in those circumstances to take account of a criminal record or technical competence but there is no reference to financial provision. That has to be determined by whether or not the licensee has made, has no intention of making, or is in no position to make financial provision adequate to discharge the obligations arising from the licence. That provision is not very powerful. The authority would have great difficulty in disproving a statement by the disposal company that it has made adequate financial provision to discharge the obligations.

What power does the authority have to investigate the financial records of the company concerned and to make a reasonable assessment as to whether there are financial reasons to revoke or suspend the licence? In the amendments we propose that the powers should be boosted by requiring guarantees, performance bonds and insurance, and the ability to deal with matters which might arise after insolvency.

The most important consideration is to ensure the uninterrupted provision of an efficient service. In these amendments we do not propose any drastic change in the way in which licences are approved. We say that in the case of suspension and revocation—which are of enormous importance to the continuation of an effective service—all possible powers should be taken into account, including the availability of guarantees, performance bonds and requirements for insurance. That is why we are inserting into Clause 37 the circumstances set out in Clause 73(3) (c). Amendment No. 132A is a more complicated amendment. It makes further provision for a fit and proper person.

I refer to the statement made by the Minister at the beginning of today's proceedings. I do not claim that this statement is directly affected by Amendment No. 132A. However, it gives me an opportunity to respond to what she said. We welcome the provisions that are made to provide government funding for compulsory technical qualifications for the waste management industry. We are glad that it is to be done through the Waste Management Industry Training and Advisory Board, which is chaired by my noble friend Lord Gregson.

However, £100,000—the amount of money that is referred to under the contract just concluded with WAMITAB—is half the estimated cost of the work for the development of a qualification system. The sum of £100,000 is not a great deal of money, as I am sure anyone concerned with the activities of the National Council for Vocational Qualifications will readily agree. It is not that WAMITAB is the wrong body. It has the approval and support of all the relevant professional and industrial bodies. Nor is it the case that the objective is wrong. What is now proposed is an improvement on the provision which was previously made. However, I question whether the sum of £100,000 was calculated adequately in relation to the undoubted need of the waste disposal industry for better training. I beg to move.

7.30 p.m.

Lord Jenkin of Roding

My Lords, I do not wish to be drawn into a long argument about who is a fit and proper person. I merely ask those who are interested to obtain a copy of the paper that was read at the NAWDC conference to which I referred when speaking to an earlier amendment by Mr. Stephen Tromans, a solicitor. He delivered what I found to be a most fascinating and disturbing paper about the importation into this sphere of the law of the concept of a fit and proper person. There are ramifications in the legislation which a skilled lawyer can see, and they startled his audience considerably. For example, references have been made to people who have been directors of large companies which have been convicted of an offence. Such a person might be so appalled by what has happened that he resigns from the company and joins another on the footing that its standard will be much higher. In those circumstances the other company could lose its licence because it has as a director a man who at a relevant time had been a director of a company which was convicted. That is the kind of technicality that will arise.

There is the question of adequate financial resources. An entirely new element is being introduced by the EC directive. It will create a civil liability for people who are in breach of their statutory obligations under their site licences. Again, that could give rise to enormous liabilities although, no doubt, in many cases they are insurable. There is also the question of bonding. Will bonds be available to the smaller and medium-sized firms which will be undertaking the work?

That is not directly relevant to the amendment being moved by the noble Lord, Lord McIntosh. However, I say merely that there is a growing sense of unease because unless clear guidance is issued by the Department of the Environment the area will turn out to be a legal minefield. Mr. Tromans' paper spells out some of the tripwires that may explode mines under the industry. If we are to have the concept of criminal convictions, technical ability and financial compe-tence as relevant in the one case why should it not be equally relevant in the other? I do not know the answer but the noble Lord, Lord McIntosh, has at least raised a question in my mind. I shall be most interested to hear the Minister's reply.

Baroness Blatch

My Lords, once again I am grateful to my noble friend Lord Jenkin not only for his enthusiasm for the subject but also for his contribution in particular to the NAWDC conference. Amendments Nos. 82A and 82B are inappropriate. It is not necessary to revoke or suspend a licence because of a failure during the course of the licence to guarantee that funds will be made available to finance requirements under the licence. An authority should establish the financial soundness of the applicant before issuing the licence and furthermore should ensure that the guarantees required by Clause 73(3) (c) cannot be circumvented by rearrangement of the company's accounts, by bankruptcy or by any other means. There is a variety of ways—there are a variety of ways—

Lord Tordoff

My Lords, the noble Baroness was right the first time—there is a variety.

Baroness Blatch

My Lords, I stand corrected. There is a variety of ways in which this can be achieved and they will be the subject of guidance to the authorities from the Secretary of State under subsection (5) of that clause.

The noble Lord, Lord McIntosh, queried the cost of the contract with WAMITAB. I assure him that WAMITAB arrived at this figure and it is right that industry should fund the development of qualifications. I am pleased to say that the waste disposal firms have Produced 50 per cent. of the money and the Government have produced the other 50 per cent. The Government's share is £100,000

Lord Jenkin of Roding

My Lords, I am grateful to my noble friend for giving way. Earlier today I was reliably informed that the NAWDC members have put up £120,000. Therefore, perhaps industry is doing a little more than the Government and they deserve tribute for that.

Baroness Blatch

My Lords, I am grateful to my noble friend. Not only am I corrected on the quality of my English but also on the quality of my mathematics, which has gone awry. There is a partnership between the companies and the Government which is important.

After the initial launch of WAMITAB the costs of qualifications will be largely funded from fees paid by those who obtain qualifications, as is right and proper. Amendment No. 132A also deals with this complex issue. I believe that the noble Lord recognises these complexities because his amendment would give the Secretary of State a good deal of latitude to prescribe what should be deemed to be "adequate financial provision". We are all agreed that waste management will be no place for an inadequately funded operator, especially given the long-term pollution control responsibilities of licensees under the Bill. The questions are: what kind of financial test should be required of an operator and should this be a matter for flexibility or for a prescribed national scheme?

It is a serious challenge to devise a system that will deliver cast iron financial security for pollution control at a site without imposing impossible burdens on industry. The department has a working group involving local authorities and industry which is looking at this problem area. The group has identified a need for further consideration of the range and relativity of risks from landfill sites. That is now being considered and will be taken forward again by the group in due course.

The opposition amendment offers some examples of types of financial provision which might be candidates. However I am not convinced that the answer, when it emerges from the working group and the department's own work, will be a single, mandatory national scheme. The circumstances of sites and site operators vary widely.

If the Government did decide that a compulsory scheme was the answer there is sufficient power to prescribe mandatory licence conditions. Therefore, even if we accept the principle suggested in the amendment it is not necessary. But it is more likely that the answer will be detailed advice suggesting acceptable alternatives in varying circumstances. Under the provisions of the Bill local authorities will be under a duty to have regard to this advice while retaining sufficient flexibility. We shall, of course, consult about this advice before it is issued. I hope that, with that explanation, the noble Lord will feel able to withdraw the amendment.

Lord McIntosh of Haringey

My Lords, those are complex answers and they need careful consideration. First, I respond to the noble Lord, Lord Jenkin, who raised significant and important issues particularly about insurance. He rightly referred to the European Parliament's directive on civil liability issued in June of this year. It stated that producers must obtain compulsory insurance. However, the noble Lord did not mention its proposal that there should be a European fund for compensation for damage caused by waste. In other words the European Parliament took the view—and I believe that it is right—that the insurance industry was not keen on such a risk and would rather not be troubled with it. If we accept the view of the insurance industry and do not make separate provision in the form of a fund we should be at serious risk of running away from the principle to which we are supposed to adhere—that is, that the polluter pays. The polluter only pays if he can be forced to pay and if he continues to have the ability to pay.

That gives rise to my second point in response to what the noble Lord, Lord Jenkin, said about the issue of insolvency. A decision of the House of Lords in Bradley v. Eagle Star Insurance this year held that a party affected by a company's carelessness at a time when the company was insured for such liability cannot take advantage of that assurance if the company becomes insolvent before the liability is formally established. It may take a long time for the liability to be formally established and if the company takes the easy way out of becoming insolvent in the meantime, the polluter certainly is not paying.

In other words, the existing arrangements are quite unsatisfactory. Even if these particular amendments are defective in some way—although I have not heard that they are—something more will have to be done, whether for new licences or for consideration of modification and suspension, which stops people either entering the business without adequate financial provision or from continuing doing the business when their adequate financial provision ceases to become available. If they are not making money or if they are operating inefficiently, their financial position will change and the question of revocation or suspension will continue to be important.

I am far from convinced and I would like to know whether the Government are convinced that a LAWDC will be able to meet any financial surety requirements if it is restrained by the parent local authority capital limits. That comes back to an amendment which we discussed earlier today. I am far from convinced that the method proposed for the establishment of LAWDCs, for their capital provision and for the protection of the public in ensuring that there is a continued effective service is adequate. I have not been reassured by anything which the noble Lord, Lord Jenkin, said and I certainly have not been reassured by anything which the Government have said.

I am confirmed in that view by the fact that the HMIP set up a working group on financial surety which is supposed to deal with that issue but that has not met now for a year. Something is wrong and the Government's answers have not given me any assurance that they appreciate what is wrong or that they appreciate, through the drafting of the Bill, the risks which will apply to LAWDCs which do not have adequate financial resources. I am not convinced that the Bill is drafted in the correct way to deal with them.

Again, we may be forced to return to this matter at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 82B not moved.]

Clause 39 [Transfer of licences]:

The Earl of Arran moved Amendment No. 83: Page 43, line 40, leave out from ("is") to end of line 41 and insert ("partly revoked or suspended under any provision of this Part.").

The noble Earl said: My Lords, this is a minor technical amendment to the provisions on the transfer of licences. This amendment allows a licence to be transferred even while it is partly revoked because of a failure to pay a charge. I beg to move.

On Question, amendment agreed to.

Clause 40 [Fees and charges for licences]:

7.45 p.m.

Lord McIntosh of Haringey moved Amendment No. 84: Page 44, line 27, at end insert: ("(2A) In making or as the case may be revising a scheme under subsection (2) above, the Secretary of State shall satisfy himself—

1. (a) that the fees payable to any authority are reasonably likely to amount to the cost of its regulatory functions, including the satisfactory assessment of an applicant as a fit and proper person in accordance with section 35(3) above;
2. (b) that the resources available to any authority (whether or not arising from fees payable under the scheme) are adequate to cover the costs reasonably likely to arise in respect of its functions concerning closed landfill sites under section 60 below; and
3. (c) that the resources available to any authority (whether or not arising from fees payable under the Scheme) are reasonably likely to amount to the cost of preventing or undertaking enforcement action against contraventions of the requirements of this Part").

The noble Lord said: My Lords, Amendment No. 84 returns to the issue of the burden upon local authorities of the new regulations; the work that they will have to do under the new regulations; and the question of how they will fund the resources.

In Committee we introduced Amendment No. 177 which sought to ensure that the Secretary of State should satisfy himself that the resources available to local authorities to carry out their duties under Clauses 40 and 41 were adequate for the purpose. The noble Lord, Lord Hesketh, in responding for the Government at that time said that new duties would be matched by the resources made available by new charges. He went on to qualify that by saying: We envisage that authorities will be able to recover 100 per cent. of the costs incurred when carrying out these regulatory functions. What the scheme will not do will be to let the authority cover the costs of enforcement". He made the most extraordinary statement: It would be wrong in principle for legitimate business to meet in their fees and charges the costs caused by cowboys". —[Official Report, 21/6/90; col. 1125.]

I do not know whether the Government have reconsidered that statement because presumably it is made on behalf of the Government and it is quite an extraordinary statement to make. It is as if the costs of the police should be borne only by criminals and that it would be wrong for society to bear the costs of running a police force. The costs of the regulation of waste disposal and enforcement of that regulation are one and the same. If charges are to be allowed to cover regulation but not enforcement, that simply means that the poll tax paying public will have to cover all the costs of enforcement and will have no extra resources to do so. I cannot see the logic in that distinction.

In Committee we argued that extra resources should be given to the authorities for all the work. That argument was rejected. We are now saying that proper charges, including all of the costs, should be levied in order to meet the costs so that the general public is not required to meet them. It is not unreasonable to say that the waste disposal industry, which has an interest in diminishing the number of cowboys and should be diminishing the number of cowboys by self-regulation, should be encouraged in those efforts to eliminate cowboys by having to pay the costs of enforcement as well as the cost of the regulation itself in the charges which it pays.

That is particularly serious because it is quite obvious that there will be a very considerable increase in the number of licences which will have to be granted. It is not that there will be a very large number of new licences to be granted but particularly in places like Yorkshire where continuing problems arise from landfill and subsidence and so on, existing licences will have to continue even when no disposal is taking place. There must be aftercare of landfill sites. People in West Yorkshire calculate that the number of licences operating at one time could well quadruple over the next 10 years because of the need for aftercare.

Therefore, the costs and the burden on authorities will be considerable. It does not seem unreasonable that the waste disposal industry as a whole should pay the cost not only of regulation but also of enforcement. I beg to move.

The Earl of Arran

My Lords, this argument sounds familiar. It has been debated fully in the past and the Government have made clear their commitment to the measures in the Bill which would not be served by a lack of resources. As the amendment acknowledges, local authority resources for Part II of the Bill will be provided from two sources: charges for licences and the local government finance settlement.

The charges for licences are intended to meet the estimated costs of waste regulatory activity for authorities taken as a whole. We are committed to introducing a national scale of charges, so that differences between authorities in the amount of resources they devote to waste regulation—which has been the subject of intense criticism—do not exacerbate the difference in costs of disposal in the areas of the good and not so good authorities. This inevitably means that costs of individual authorities will not necessarily be matched exactly by the revenue from licensing. However, for those authorities not currently providing the required level of regulation, the extra income will provide the resources to allow them to do so. We will of course keep the level of charges under review and will consult local authorities and industry on the level at which they should be set.

The other source of resources for Part II of the Bill will come from the local government finance settlement. That will deal with the costs not covered by licence charges—mainly the costs of prosecution of offenders and the costs of monitoring closed landfills —where such costs cannot be recovered from the owner of the land. It cannot be right, as the amendment proposes, that the costs of monitoring closed landfills under Clause 60—which refers to landfills closed before the new procedures of the Bill come into force—should be recovered from current licence holders.

My right honourable friend the Secretary of State for the Environment announced the Government's preliminary proposals for the 1991–92 settlement last July. He said that he thought it would be appropriate for local authorities to spend £39 billion next year on revenue expenditure, which is a very substantial increase over the corresponding figure of £32.8 billion for this year. It also represents an increase of over 7 per cent. on the amount that local authorities are actually spending this year.

That figure was arrived at only after careful consideration of all the factors, including the needs of waste regulation authorities, after discussions with the local authority associations at which they put forward their views on what needed to be spent. The Government have made full and proper provision for local authority spending next year, taking full account of the pressures they will face, and of course these procedures will be followed for future years. Authorities will have the resources which are necessary to fulfil their duties on waste disposal.

Regarding the further costs mentioned by the noble Lord, Lord McIntosh, the costs of inspecting and monitoring will be covered in the licence fee; the costs of prosecution will not. If the prosecution is successful costs will be awarded to the authority by the court. I hope that with those explanations the noble Lord will not press the amendment.

Lord McIntosh of Haringey

My Lords, I suppose the noble Earl must say that. No one from the Government Front Bench can stand without making the patently incredible claim that the Government's rate support grant settlement—as I insist on calling it —is adequate and takes into account all relevant considerations.

I notice that the noble Earl said that the settlement figure "is discussed" with the local authorities rather than "agreed" with the local authorities. We know that in many respects Government support for local authorities will not be adequate. It is only being increased because of the wild inefficiency and injustice of the poll tax. I do not believe that the noble Earl seriously expects me to take the arguments he put forward with anything other than extreme political scepticism. Nevertheless, he does not intend to move from the quite irrational position in which he finds himself.

It is not true that the costs of prosecution awarded by the courts will cover all the costs. They will largely cover the legal rather than the administrative costs of enforcing the waste disposal regulations. There is no rational distinction between the costs of licensing in the first place, inspection in the second place, and enforcement in the third place. They are all part of the same thing. They should all be covered either by extra grant to local authorities, of which we are not assured, or by charges to the waste disposal industry, which is what is now being rejected by the Government.

I am disappointed by the answers given. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Parliamentary Under-Secretary of State, Scottish Office (Lord Strathclyde) moved Amendment No. 85: Page 44, line 37, after ("Authority") insert ("and a waste regulation authority in Scotland shall pay to any river purification authority which it consults in relation to a licence").

The noble Lord said: My Lords, Amendment No. 85 simply corrects a discrepancy in the Bill. I beg to move.

On Question, amendment agreed to.

Clause 42 [Appeals to Secretary of State from decisions with respect to licences.]

[Amendment No. 86 not moved.]

Clause 47 [Duties of waste collection authorities as respects disposal of waste collected.]

Lord McIntosh of Haringey moved Amendment No. 87: Page 52, line 28, at end insert ("in accordance with any plan drawn up or, as the case may be, modified under section 49(1) (c) below").

The noble Lord said: My Lords, in moving Amendment No. 87 I shall speak also to Amendments Nos. 90, 91 and 98. We are dealing with technicalities which could easily become confusing. I shall do my best to clear my own mind, if not the minds of other noble Lords.

In the co-ordination of waste disposal plans we speak of the functions of the waste regulation authority and the waste disposal authority. Those authorities are established by the Bill as having distinctly different functions. The waste regulation authority, as the name implies, is basically a regulatory body. The waste disposal authority is the tendering authority. They are therefore complemen-tary; both are a necessary part of the process.

It is proposed that the waste regulation authority shall be charged with the preparation of a waste disposal plan. It is not proposed that it shall be done in co-ordination with waste disposal authorities, which are estimating the work necessary for the preparation of tenders. It is proposed that the planning work should be done by the regulatory body.

I wish to suggest in all humility that there is something rather peculiar about that. For example, it is not what is done in the regulation of the water industry through the office of water services. It is not done anywhere else in government that I can identify. The plan will be quite complicated. It will contain details of the nature and volume of controlled waste arising from or entering the area; it will contain an opinion by the waste regulation authority of the arrangements needed to be licensed to deal with the waste. The waste regulation authority must consult with the waste collection authority. It allows the regulation authority to consult with such persons as it considers appropriate, but there is no specific reference to the waste disposal authorities. The waste disposal authorities are the ones doing the preparatory work for tendering. It would surely be sensible for them to be consulted, and for waste disposal plans to be co-ordinated with all the authorities affected.

I apologise for the complexity of the amendments. They arise from the complexity of the plan proposed by the Government. In this case the Government have made a mistake. I am sure that inadvertently they have inadequately provided for the preparation of waste disposal plans for any given area. I believe that these amendments will be helpful in putting that right. I beg to move.

Lord Reay

My Lords, Amendment No. 87 in the name of the noble Lord, Lord McIntosh, would require a waste disposal authority, when directing a collection authority about where to deliver its waste, to take account of the disposal plan for the area. We do not accept that that is appropriate, and I hope to explain why.

It may be helpful if I begin by saying a few words about the new waste disposal plans which will be produced under Clause 49 of the Bill. The first point to make is that although the name, waste disposal plan, is unchanged, the content of these new waste disposal plans should be quite different from the plans that have been compiled up to now. Current waste disposal plans are compiled by waste disposal authorities. They tend to be operational documents detailing what the authority does at its own sites with household waste. That is not the intention of our new waste disposal plans.

In future waste disposal plans will be compiled by regulation authorities. They will identify the current and projected amounts of waste arising in the area. The plan will match those arisings to existing and planned disposal facilities and will identify future needs for new facilities. They will also set out the regulation authorities' policies for waste disposal and recycling. Disposal plans will focus on additional disposal facilities which will be needed in the future. In that way they will act as a guide to investment by waste disposal contractors, who will actually provide the necessary facilities.

Incidentally, a side-effect of this amendment would be to constrain authorities to act within the terms of a plan which could be several years old. The end result could be to discourage the use of new and better facilities that have become available after the adoption of the plan.

Waste disposal plans are there to aid investment planning. They are not of direct relevance to waste producers who will be using those facilities. Collection authorities and disposal authorities have their own distinct functions under the Bill. To require them to exercise these functions only in accordance with the plan would be inappropriate. Disposal authorities will act just like any other waste producer. They should be constrained by the disposal plan only in so far as it details all of the existing facilities available in the area. For those reasons we are unable to accept the noble Lord's amendment.

Amendment No. 90, in the name of the noble Lord, Lord McIntosh, requires waste collection authorities to send copies of their recycling plans to the waste regulation authority for their area as well as to the waste disposal authority. In most cases the waste regulation authority and the waste disposal authority will be one and the same. Where that is not the case it will be important for the waste regulation authority to see a copy of the plan which each collection authority in its area draws up. We welcome this proposal and accept it as part of the Bill.

The effect of Amendment No. 91 would be to require regulation authorities to include in their disposal plans details of arrangements made by waste disposal authorities. Amendment No. 98 widens the scope of consultation about disposal plans to include disposal authorities.

Noble Lords will be aware that disposal authorities will in future be prevented from directly carrying out waste disposal themselves. That function will instead be carried out for them by disposal contractors, including LAWDCs, and will therefore be included in the plan. Disposal authorities will in future act just like any other large producer of waste. Like any other waste producer, a disposal authority wishing to comment on a disposal plan will have an opportunity to do so. Every disposal plan will be made available publicly before it is finally determined and comments will be sought. Regulation authorities will be under a duty to take account of any representations they receive before determining their plan.

We cannot accept, therefore, that there is any need for disposal authorities to be consulted about the content of regulation authorities' disposal plans. Their future role will be to arrange for the disposal of household waste collected in their area. Disposal authorities will act just like any other waste producer and they should be treated accordingly.

8 p.m.

Lord McIntosh of Haringey

My Lords, I am grateful for the noble Lord's agreement to accept my Amendment No. 90. All I can say on his response to the other amendments is that the complexity of the subject has defeated him nearly as much as it has defeated me. I do not think that even the noble Earl, Lord Balfour, would care to speak in the pulpit on this subject with any confidence that his congregation would understand what he was saying.

I did not hear in the response from the noble Lord, Lord Reay, an adequate explanation of why the regulatory authorities should be acting as a planning body. To that extent I am still unconvinced by his reply to the major thrust of my amendments. However, in gratitude for having even a small amendment accepted I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 87A not moved.]

Clause 48 [Waste recycling plans by collection authorities]:

[Amendment No. 88 had been withdrawn from the Marshalled List.]

The Earl of Balfour moved Amendment No. 88A: Page 53, line 40, leave out from ("cost") to ("the") in line 41 and insert ("or saving to the authority attributable to").

The noble Earl said: My Lords, in Committee the noble Lord, Lord Ezra, pointed out that although a local authority could be involved in costs dealing with the recycling of waste, equally there could be savings. In my view he made an important point and that is why I have tabled these amendments. However, the words "or savings" would have made the clause read rather awkwardly, particularly paragraph (f). I am grateful to my noble friend Lady Blatch for her help in improving the wording. I hope that the present wording of Amendments Nos. 88A and 89A meet the point raised by the noble Lord, Lord Ezra, and has the approval of your Lordships. I beg to move.

Lord McIntosh of Haringey

My Lords, I understood that the noble Earl, Lord Balfour, was intending to speak also to a number of other amendments which are grouped together; notably, Amendments Nos. 89A—which is his own—93, 99 to 103 and 105. I have agreed to a request that my Amendment No. 90A should be included in the group.

Baroness Blatch

My Lords, with the leave of the House, perhaps it would help if I said that my understanding is that my noble friend Lord Balfour was speaking to Amendments Nos. 88A and 89A and that I would eventually speak to Amendments Nos. 99, 101, 103 and 105. I believe that the noble Lord, Lord Addington, will be speaking to Amendments Nos. 100 and 102 on behalf of the noble Lord, Lord Ezra.

Lord McIntosh of Haringey

My Lords, that was my understanding, too. I do not know whether the noble Earl, Lord Balfour, wishes to speak to his Amendment No. 89A.

The Earl of Balfour

My Lords, I did not want to speak to amendments tabled by other noble Lords. They must speak for themselves. I say that with great respect to the noble Lord, Lord McIntosh, as I do not wish to be offensive.

Lord McIntosh of Haringey

My Lords, I will gladly speak to Amendment No. 90A if that will benefit the debate, but the noble Earl, Lord Balfour, has not yet spoken to his Amendment No. 89A. Clearly he will be doing so later, and that creates some difficulty.

Baroness Blatch

My Lords, again with the leave of the House, my understanding is that my noble friend spoke to both of his amendments, Amendments Nos. 88A and 89A.

Lord McIntosh of Haringey

My Lords, on that basis I apologise. I am happy to speak to Amendment No. 90A although it is on a slightly different subject. We are concerned here with the labelling of products derived from recycled waste. The amendment says that, the Secretary of State shall have regard to the desirability"— note the cautious wording used— of requiring the labelling of products derived from recycled waste as to the level of such recycled material which they contain, and to the need to maximise the proportion of such materials collected by the authorities exercising functions under this section". I do not want to repeat the arguments put forward on Monday when we were speaking about air pollution control because the arguments are similar on the recycling of waste, which is the responsibility of waste disposal authorities and of all authorities concerned with the waste business.

The White Paper states that the Government are establishing an official eco-labelling system to provide authoritative advice to consumers and to encourage the production of more environmentally friendly products. When we considered this matter as regards Part I, I was dissatisfied with the suggestion that this should be a flexible voluntary scheme working with market forces and preferably operating throughout the European Community.

I have no objection to operating throughout the European Community but some of the elements of eco-labelling—if one must use that unpleasant phrase —will not necessarily be achieved by a voluntary scheme relying on or working with market forces. The important point to recognise in considering this amendment is that the proportion of recycled materials on which that is based is actually falling at present. In other words, there are so-called recycled materials that contain recycled materials but to a lesser extent. If the public are to be aware of the validity of the claim for the content of recycled materials, then the proportion should be labelled. It should also be a requirement that the Secretary of State be able to enforce that such labelling takes place if he considers it desirable.

Lord Addington

My Lords, I wish to speak to Amendments Nos. 100 and 102 in the name of my noble friend Lord Ezra. The amendments oblige waste collection authorities to pass on savings on disposal costs made to them by waste disposal authorities and also to pass on savings on collection costs which have occurred because of recycling to the individuals and bodies collecting the waste for recycling. That effectively means that the direct benefit of any money saved should be passed on to the people along the line who have helped in the recycling process, including the recycler.

The Government's advisory group on recycling said that savings in costs should be passed on. It said: The group also considers that waste collection authorities should also have a duty to offer credits to voluntary bodies". Effectively, these two amendments are calling for the savings which are incurred to be passed down through the whole process so that a degree of equity is established. That would also enable the bodies involved in the recycling process to benefit from that process.

Baroness Blatch

My Lords, I wish to respond to Amendments Nos. 88A, 89A, 90A, 100, 102 and at the same time speak to Amendments Nos. 99, 101, 103 and 105. Amendments Nos. 88A and 89A, in the name of my noble friend Lord Balfour, make the perfectly reasonable point that a waste collection authority should be able to achieve savings through the implementation of a waste recycling plan, particularly in later years when the initial capital costs have been met. Some authorities already claim that their recycling operations are making a surplus, although their accounting practices do not always make it possible to assess the situation clearly.

The Bill certainly does not stop any authority from including details of projected savings in its recycling plan. Indeed one would imagine that authorities which expected to make significant savings would want to highlight the fact. We will be issuing guidance to local authorities on the contents of their recycling plans and I can undertake that we will include the need to identify savings as well as costs in that guidance. The amendments are welcome and I ask your Lordships to accept them into the Bill.

Amendment No. 90A in the name of the noble Lord, Lord McIntosh of Haringey, aims to promote the labelling of products to show how much recycled material they contain and to promote recycling. However, the amendment seeks to further these aims by requiring the Secretary of State to have regard to these matters when he makes directions governing the drawing up of recycling plans by waste collection authorities. I regret that this amendment would not achieve what I think the noble Lord had in mind.

The amendment refers to the directions which the Secretary of State may make concerning the time which collection authorities take to draw up recycling plans. These directions would cover waste collection authorities who themselves have no means to control the labelling of products in the way which the noble Lord would wish. Furthermore, the amendment would have the Secretary of State take account of the need for waste collection authorities to maximise the proportion of products made out of recycled material which they collect. However, it would not necessarily be appropriate for a collection authority to aim to do that where, for instance, there were other recycling schemes run by third parties or by the waste disposal authority which operated in the collection authority's area.

I can reassure the noble Lord that the Government are committed to eco-labelling—albeit that he does not like the expression—to provide consumers with authoritative advice on environmentally friendly products. We hope to see a common scheme operating across Europe. In the environment White Paper we have also committed ourselves, when parliamentary time is available, to legislate to tighten up the provisions of the Trade Descriptions Act as regards environmental claims. In the light of that explanation I hope that the noble Lord will feel able to withdraw his amendment.

Amendments Nos. 99, 101 and 103 in my name extend the provision for the payment of recycling credits so that waste collection authorities have a duty to pay credits to waste disposal authorities and a power to pay them to third parties, where the disposal authority or the third party collects waste for recycling and a saving to the collection authority results. The Bill as drafted provides only for the payment of recycling credits by waste disposal authorities to reflect savings in disposal costs.

The reason for these three amendments is that while the idea of recycling credits has been broadly welcomed by local authorities, several waste disposal authorities have pointed out that recycling waste material can bring savings in the costs of collection as well as the cost of disposal. Where waste disposal authorities operate civic amenity sites to which the public bring waste for recycling, there is no need for this waste to be collected by the collection authority. The same is true where a third party, such as a charity or voluntary body, organises a collection of waste, such as newspaper, for recycling.

These amendments therefore extend the provision for the payment of recycling credits to reflect the potential for savings in collection costs. They mirror the provision in the Bill for payment of recycling credits where there are savings in the cost of disposal. I hope that they will encourage waste disposal authorities to increase the amount of waste which they recycle through the provision of civic amenity sites and by other means.

8.15 p.m.

Lord McIntosh of Haringey

My Lords, before the Minister leaves her own amendments can she help me on one small point? I do not expect to receive an answer immediately. I understand that the department has been carrying out a survey on the level of rebates being given at the moment for recycling. I hope that she will agree to let me have a copy of the results of that survey.

Baroness Blatch

My Lords, I am getting an affirmative nod that the results of the survey will be made available. I understand that it is still continuing.

Amendment No. 100 in the name of the noble Lord, Lord Ezra, would place a duty on waste disposal authorities to pay recycling credits to third parties. No doubt the noble Lord is keen to encourage increased recycling by the payment of recycling credits and fears that where disposal authorities have no obligation to pay credits to third parties they may choose not to do so. The Bill as drafted gives disposal authorities a power to make such payments, but leaves it open to the Secretary of State to turn this into a duty by regulation where he considers it appropriate to do so. We do not believe that there is yet a need for the Secretary of State to make use of this power. It follows that we do not think it timely to place a duty on disposal authorities to pay credits to third parties.

It may take some time for local authorities to identify all those third parties in their area who have a claim to receive recycling credits. When they have identified all those bodies undertaking recycling in their area, they may decide that it would not be desirable for credits to be paid in every case. There may be instances where economies of scale make it more appropriate for the waste collection authority to undertake recycling rather than it being done by voluntary bodies. There may be other cases where a number of different bodies are undertaking similar schemes in the same area. It would not necessarily be appropriate for an authority to be required to pay recycling credits to a number of competing schemes in the same area, particularly where some of the schemes yielded only small quantities of waste. Giving disposal authorities discretion to pay credits will allow them to make sensible judgments about the type of third party recycling scheme which should be encouraged in their area.

Amendment No. 102, also tabled by the noble Lord, Lord Ezra, would place a similar duty on waste collection authorities to pay credits to waste disposal authorities and third parties where the collection and recycling of waste by a waste disposal authority or third party results in savings in collection costs for the waste collection authority. This amendment is similar in intent to Amendments Nos. 99, 101 and 103 which stand in my name, with the exception that the noble Lord wishes to place a duty on collection authorities to pay credits to third parties. The arguments which I have just outlined against placing such a duty on waste disposal authorities apply here too. Since Amendment No. 102 is similar in intent to those which stand in my name, and in the light of the points I have made about imposing a duty to pay credits to third parties, I hope that the noble Lord will not wish to press these amendments.

Amendment No. 105 in my name removes the provision for the Secretary of State to arbitrate in any dispute as to the amount of the recycling credit to be paid where the parties cannot agree. Regulations governing the calculation of recycling credits will be made by the Secretary of State under Clause 51(5) of the Bill. Requests for the Secretary of State to arbitrate in disputes could place an undue and unnecessary burden on him. I am confident that the system of recycling credits will work without the need for the arbitration provision.

In summary, I ask the House to accept Amendments Nos. 88A, 89A, 99, 101, 103 and 105 and to reject Amendments Nos. 90A, 100 and 102.

The Earl of Balfour

My Lords, it is my duty now officially to call my amendments. With the approval of the House, I beg to move Amendment No. 88A.

On Question, amendment agreed to.

[Amendment No. 89 had been withdrawn from the Marshalled List.]

The Earl of Balfour moved Amendment No. 89A: Page 54, line 10, leave out first ("of") and insert ("or savings attributable to")

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 90: Page 54, line 23, after ("authority") insert ("and waste regulation authority").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 87. I beg to move.

On Question, amendment agreed to.

[Amendment No. 90A not moved.]

Clause 49 [Waste disposal plans of waste regulation authorities]:

[Amendment No. 91 not moved.]

Lord Reay moved Amendment No. 92: Page 55, line 7, leave out from ("regard") to end of line 9 and insert ("both to the likely cost of the arrangements or modification and to their likely beneficial effects on the environment.").

The noble Lord said: My Lords, this amendment stems from a debate that took place in Committee during which the noble Lord, Lord Ezra, tabled an amendment with a purpose similar to that of this amendment. My noble friend Lord Hesketh under-took during that debate to consider the merit of amending Clause 49 to require disposal plans to include information about the cost and savings of various disposal options. This amendment reflects the spirit of the amendment of the noble Lord, Lord Ezra. I am grateful for the opportunity he gave us to reconsider this point.

Amendment No. 92 emphasises the Government's view that disposal plans should weigh up the costs of various disposal options and their environmental impact. This will enable regulation authorities to set out a framework of options for waste producers, including disposal authorities and disposal contractors, to consider when making decisions about waste disposal. Central government will be able to use this information to carry out the undertaking given in the recent White Paper; namely, to monitor national waste disposal trends.

Perhaps it is also worth pointing out that Amendment No. 92 corrects the drafting of Clause 49 to make clear that there will be no direct costs or indeed savings accruing to regulation authorities themselves from the disposal options in the plan. I hope that noble Lords will accept the amendment. I beg to move.

Lord McIntosh of Haringey

My Lords, one must not be ungrateful for what is clearly a well-intended amendment which aims to reflect the spirit of the amendment moved in Committee. However, it appears to us to be a little restricted. It allows for consideration of modifications. But if one is modifying a waste disposal plan there may be various ways of modifying it, some of which may be better than the first one that occurs. Surely there ought to be the possibility of considering alternatives to the modification proposed.

I am not convinced that with the restrictive wording that has now been produced we shall reflect the overriding requirement, which is to achieve environmental protection.

Lord Ross of Newport

My Lords, it is only right that in the absence of my noble friend Lord Ezra I should at least thank the Minister for honouring an undertaking that was given in Committee. I cannot speak on behalf of my noble friend at this time. He may have reservations similar to those expressed by the noble Lord, Lord McIntosh. Nevertheless, we are moving in the right direction, and therefore I am grateful for that concession.

On Question, amendment agreed to.

[Amendment No. 93 had been withdrawn from the Marshalled List.]

Lord Ross of Newport moved Amendment No. 94: Page 55, line 22, at end insert: ("() the sites of landfills that are, or are likely to be in the plan period, closed in its area, the steps that are being or may need to be taken in respect of such closed sites and the costs or likely costs of such steps;").

The noble Lord said: My Lords, this amendment deals with the preparation of waste disposal plans and seeks to impose an extra obligation on the local authorities. Under Clause 51 a waste regulation authority will have to take certain steps with regard to closed landfill sites. Thus it should surely state what it will or may have to do in its plan, and the cost of those measures. This is particularly important as the Government have put quite onerous duties on waste regulation authorities under Clause 51 but are unlikely to provide any extra cash.

Draft amendments to the European Community directive on hazardous waste will require competent authorities—waste regulation authorities—to cover in their plans disused tips and contaminated sites which need to be kept under surveillance or reclaimed. It is therefore logical to make this amendment to deal with the matter now. It would also be reassuring to residents who may live in close proximity to one of these landfill sites that is about to be closed. I remember from my time in local government the problems we had at one or two sites. The residents' associations insisted quite rightly on knowing exactly what the local authority intended to do when a site was closed and exactly how it would manage it thereafter. I beg to move.

Lord Reay

My Lords, Amendment No. 94 would add a requirement that regulation authorities' disposal plans should include details of closed landfills in the area and steps taken to deal with them. I hope I can persuade the noble Lord that the amendment is not necessary. This is because disposal plans are intended to be strategic forward-looking documents. They will act as a guide to future investment in disposal facilities. They are not the place to put details of closed landfills.

That is not to say that closed landfills are to be overlooked. Clause 60 imposes a duty on regulation authorities to identify all the closed landfills in their area and to take appropriate steps to prevent pollution from those sites. Closed landfill sites will also be identified in the register of contaminated land under Clause 136. Regulation authorities will also set out, in their public registers and annual reports, details of any action they have taken to prevent pollution from closed landfills.

I hope the noble Lord will be reassured that plans for future investment in waste management facilities are not the right place for details of closed sites but that those details are adequately recorded elsewhere.

Lord Ross of Newport

My Lords, I am grateful to the Minister for that reply. I take note of what he has said. I accept the correction as to where this amendment should have arisen. I understand that the matter is covered. However, his reply did not cover the question of costs, although I hardly expected to get a reply on that subject either. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 95 had been withdrawn from the Marshalled List.]

[Amendment Nos. 96 to 98 not moved.]

Clause 50 [Functions of waste disposal authorities]:

Lord McIntosh of Haringey moved Amendment No. 98A: Page 57, line 31, after ("waste") insert ("free of charge").

The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendment No. 98B. The amendments remove a small but quite real anomaly about the provision for civic amenity sites.

I live at one end of the London borough of Haringey, which happens to be closer to a civic amenity site in Barnet than to my own borough's civic amenity site at the far end of Tottenham. It is therefore convenient for me to go to the Barnet site rather than to my own site. No doubt there are people living in Enfield who find it easier to go to the Haringey Tottenham site than they do to go to their own site, wherever that may be. Therefore, what we provide in these amendments is the opportunity for people living outside the area of the waste disposal authority to use the civic amenity site for the deposit of household waste. The amendments also provide that the authority may make a discretionary charge for the use of that site.

I do not know how such a system could be arranged. I do not know, whether, for example, each time I went to the Summer Lane site I should be required to produce my driving licence or something of that nature to prove that I live in the borough. No doubt an ingenious authority could find some way of working such a system. I do not yet carry a badge which indicates that I have paid my poll tax, although it may be that we shall be forced into such a position in due course. I beg to move.

Lord Reay

My Lords, I am grateful to the noble Lord for tabling these two amendments. We believe that he has identified a weakness. Due to an oversight, the provisions in the Refuse Disposal (Amenity) Act 1978, relating to civic amenity sites, were not accurately reflected in the legislation. I am, therefore, happy to accept the noble Lord's amendments, which put right that error.

Lord McIntosh of Haringey

My Lords, I am most grateful to the noble Lord for that statement.

On Question, amendment agreed to.

8.30 p.m.

Lord McIntosh of Haringey moved Amendment No. 98B: Page 57, line 32, leave out ("in the course of a business") and insert ("by other persons").

On Question, amendment agreed to.

Clause 51 [Payments for recycling and disposal etc. of waste]:

Baroness Blatch moved Amendment No. 99: Page 58, line 38, at end insert: ("(1A) Where, by reason of the discharge by a waste disposal authority of its functions, waste arising in its area does not fall to be collected by a waste collection authority under section 44 above, the waste collection authority shall make to the waste disposal authority payments, in respect of the waste not falling to be so collected, of such amounts representing its net saving of expenditure on the collection of the waste as the authority determines.").

On Question, amendment agreed to.

[Amendment No. 100 not moved.]

Baroness Blatch moved Amendment No. 101: Page 58, line 45, at end insert: ("(2A) Where a person other than a waste collection authority, for the purpose of recycling it, collects waste which would fall to be collected under section 44 above, the waste collection authority may make to that person payments, in respect of the waste so collected, of such amounts representing its net saving of expenditure on the collection of the waste as the authority determines.").

On Question, amendment agreed to.

[Amendment No. 102 not moved.]

Baroness Blatch moved Amendment No. 103: Page 59, line 7, at end insert: ("(4A) For the purposes of subsections (1A) and (2A) above the net saving of expenditure of a waste collection authority on the collection of any waste not falling to be collected by it is the amount of the expenditure which the authority would, if it had had to collect the waste, have incurred in collecting it .").

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 104: Page 59, line 8, after ("regulations") insert ("and after consultation with organisations representative of waste regulation and waste disposal authorities").

The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendment No. 106. Both amendments have the same objective, which is to ensure that the payment of recycling credits, which is something which we all favour, should actually reflect the real costs and that the whole principle of recycling credits should not get out of hand.

There are many waste authorities—we discussed the matter at some length in Committee—which are providing rebates for those who recycle certain material and thereby reduce the amount of waste being presented for disposal. However, they are doing so on the basis of what they think it is worth to them. There are different ways of calculating what it is worth and different costs apply in different parts of the country.

One of the ways of calculating the benefit of recycling as a basis for rebates is the average cost of recycling a given quantity of a given material: the other is a more complicated calculation of the marginal cost of recycling an additional amount or, indeed, on certain occasions, of setting up additional plant to carry out the disposal. Different waste authorities have adopted different principles for calculating the rebates.

In addition, there are real differences between one part of the country and another as regards the length of the journey to the landfill or the amount of capital required to set up the disposal plant, which will vary very much from one part of the country to another.

I understand that the Government have already commissioned a study by Touche Ross on the savings accruing from recycling. It would be interesting to know whether the Minister can tell us anything about the results which are emerging from that study. Starting from first principles, one can be reasonably certain that such a study would indicate a wide variation. Therefore, the question posed by these probing amendments is: will there be a single credit level for the whole country? Further, will it be on an equal footing? Clearly that would be an administrative convenience, but it would not actually reflect the savings which might accrue from recycling.

In Committee we proposed another way of looking at the financial incentives. We cannot repeat the arguments we put forward at that time. Nevertheless, we think that the Secretary of State should, before setting levels, take account of the variation in costs arising in different parts of the country and from different methods of calculation. We also think that he should consult with the representatives of the organisations which are responsible for such matters. I beg to move.

Baroness Blatch

My Lords, I shall address first Amendment No. 104. These regulations will be crucial to the successful operation of the system of recycling credits. I understand the noble Lord's concern that there should be adequate consultation on their form and content.

Work is already under way to provide a firm foundation for the making of these regulations. We have engaged independent consultants to advise on the formula for calculating recycling credits and the way in which a system of credits might operate. Questionnaires have been sent to all local authorities in order to establish the costs involved in waste disposal and the savings which could accrue from an increase in the amount of waste recycled and a resulting reduction in the amounts being sent for disposal. Indeed, the problem so far has been not a reluctance on our part to involve waste disposal authorities but a reluctance on the part of some of them to respond to the questions asked by our consultants. I would urge disposal authorities who have not yet responded to do so quickly.

I am able to give the assurance that all the results of that work will be made known to the noble Lord, Lord McIntosh of Haringey. The results of these questionnaires will be studied carefully, together with the results of further discussions with individual local authorities and the waste disposal industry. We expect the consultants to report back to us before Christmas.

There will be full consultation in the New Year on draft regulations governing the calculation of recycling credits. This will involve consultation with representatives of local authorities and with the recycling industry. It is in everyone's interests that the system of recycling credits should encourage increased recycling, and the Secretary of State will do everything which he can to ensure that this is the case. I welcome the spirit of the noble Lord's amendment, but I do not feel that it should be necessary to prescribe the bodies which the Secretary of State should consult.

Amendment No. 106, tabled in the name of the noble Lord, Lord McIntosh, would require the Secretary of State for the Environment to take account of any burden falling on waste regulation authorities when he made regulations for the calculation of recycling credits. The payment of recycling credits will have resource implications for waste disposal authorities and for waste collection authorities but not for waste regulation authorities. Where collection or disposal authorities pay recycling credits, the amount of the credit will represent the saving which they enjoy as a result of increased recycling. Their net expenditure should therefore stay the same. There should be no need for collection or disposal authorities to have additional resources to operate a scheme of recycling credits. I hope, therefore, that the noble Lord will not press these amendments.

Lord McIntosh of Haringey

My Lords, I am grateful for the assurance that the Government is in agreement with the spirit of these two amendments. However, to my embarrassment, I realise that I did not complete my argument. I talked about different ways of calculating the savings from recycling and about different ways of calculating the alternative costs of disposal; but I did not refer to the way of calculating recycling credits by looking at the value of the recycled material. That is where there is a serious danger that it may be the waste disposal authorities which are subsidising the recycling industry. I do not say that out of any antagonism towards the recycling industry. However, if it is government policy to support recycling, such support should be provided by government and not by individual waste authorities.

If one looks at the case of London, the cost of producing recycled paper may be of the order of £10 per tonne but the value of the recycled paper once it has been produced may be only £1 per tonne. If we give a subsidy of £10 a tonne we are in danger of giving a substantial subsidy to the recycling industry. That may be a matter that we shall have to pursue after the Bill has been passed when we discuss the regulations. I am sure that the local authority associations in particular will be eager to do that.

Despite the Government's acceptance of the spirit of the amendments, I still have the feeling that the method of calculation proposed in the Bill is somewhat crude and that the Government may regret the formulation that they have used and might, with hindsight, have preferred what we propose. Nevertheless, in the spirit of what has been said I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Baroness Blatch moved Amendment No. 105: Page 59, line 10, leave out from ("(1)") to end of line 12 and insert ("(1A), (2), (2A) and (3) above.").

On Question, amendment agreed to.

[Amendment No. 106 not moved.]

Clause 52 [Duties of authorities as respects disposal of waste collected: Scotland]:

[Amendment No. 107 had been withdrawn from the Marshalled List.]

Lord Lucas of Chilworth moved Amendment No. 107A: Page 59, line 37, at end insert: ("and these duties shall relate to the activities and operations of waste disposal contractors whether in the public or private sectors").

The noble Lord said: My Lords, if your Lordships agree, and my noble friend Lord Balfour agrees with my noble friend Lord Strathclyde, I should prefer to discuss Amendment No. 107A on its own rather than with the grouping that is suggested. As the amendment is rather complex I should prefer that it stood on its own.

Clause 52 proposes that the Scottish local authority be given power to authorise itself to carry out waste disposal and collection operations through regulatory duties. I am aware that there is no requirement that the operations be carried out by a fit and proper person as is defined under Clause 37 on waste management licences. Under that clause such a requirement is detailed for waste management operations in England and Wales and the licence can be revoked where the operator is not fit and proper. I may be mistaken, but it appears to me that Clause 52 provides no justification for exempting Scotland from that requirement.

In Clause 30(7) authorities are required to make administrative arrangements for keeping their own functions as waste regulatory authorities separate from their functions as a waste disposal authority. However, the clause details a situation regarding waste management in Scotland and proposes the duties that the local authority will have to carry out in respect of the regulatory and operational tasks for collection and disposal but does not provide for a separation of the two types of duty. Furthermore, as I see it, Clause 52 does not detail the procedures which would be followed where the conditions of a resolution by a body offering waste management services are breached; nor does the clause define such a breach as a criminal offence. It again appears that one would have to look for further clarification of the procedures in Scotland so as to prevent any confusion arising where those using and offering the services are the same body.

Clause 52 contains no proposal that the authority in Scotland carrying out the waste management service should be liable for fees or charges, or for site inspections of their operations which are regulated, again, by the local authority. That is inconsistent with the proposals for England and Wales contained in the Bill.

The clause contains no proposals that the local authority in Scotland, carrying out its operational duties, shall make any financial provision for long term pollution control at landfill sites. Again, there is no justification for the exclusion of that proposal. It is inconsistent. Your Lordships might agree that it is unfair that private contractors carrying out waste collection, disposal or other associated operational tasks are discriminated against in the clause. By that, I mean that there is no provision to ensure that the private sector has access to tendering for the waste management services.

The disposal of household waste collected by authorities wearing their collection authority hat will not be subjected to competitive tender. Under Clause 52 it will be dealt with by the operational side of that authority. It is clearly unfair to the private sector which is capable of offering those services.

I shall now refer to the consultations that took place during the long summer Recess, culminating in a letter of 21st September from my noble friend the Minister who points out: Scottish local authorities will not be required to set up arm's length waste disposal companies". She then refers to the consultation paper and the results of it. Finally, that paragraph states: because the private sector was unlikely to be interested in competing in those districts where waste horizons are small and widely dispersed". I of course accept that the situation in Scotland is different because of the small and dispersed population of many district councils. A different regime may well have to apply; but as I have sought to suggest, there is discrimination against the private sector which may one day wish to compete. As I see it —I readily accept that I could be wrong—private contractors will be discriminated against by the provisions of Clause 52. That is unfair.

The general concept, which appears to have been given little consideration, suggests that there is no inbuilt incentive for the authorities to improve their efficiency, accountability or performance. The proposals offered in Clause 52 are not consistent with the proposals contained in Clause 44(2) which refers to the disposal of commercial and industrial waste.

While that clause proposes that the operational arm of the local authority shall compete with the private sector for the disposal of such waste, Clause 52 offers no explanation as to why that policy of competitive tendering—although it must be said that the authority is under no obligation to charge full, economic prices—is not adopted for the disposal of domestic waste.

The amendment seeks to restore the competitive balance in waste management between the public and private sectors. It seeks to clarify the local authority's role when carrying out its regulatory duties as well as its operational services, which are all associated with waste management. While recognising the different circumstances obtaining in Scotland, it attempts to reduce the inconsistencies between the situation in Scotland and that applying in England and Wales.

As I said at the outset, those matters are complex. They affect a different environment, if I can use that term loosely. I regret that I have not had the opportunity of greater and more in-depth consultations with my noble friend. Tonight I ask him to accept that the matters I raise are of a complex nature. Will he offer further to consider these matters so that perhaps before the next stage we may have additional discussions? I certainly do not propose to press the amendment which, in any event, may be technically inaccurate. I beg to move.

The Earl of Balfour

My Lords, I think that there may have been a misunderstanding. As I understand Part II of the Bill, there is no provision in the Scottish legislation for waste disposal contractors. However, my noble friend Lord Lucas made an interesting reference to Clause 37. Quickly re-reading that clause, I wonder whether my noble friend Lord Strathclyde may consider that Clause 37 should not apply to Scotland. Although there are contractors in England, the licensing provisions in Clause 37 seem to deal with sites or areas with licences for dumping of rubbish. This may be in the hands of the Scottish local authorities, but I cannot see the same kind of disposal contractors in Scotland as are provided for in England.

My noble friend Lord Lucas asked for his Amendment No. 107A to be taken on its own. I respect that, but in the grouping of the following amendments, Amendments Nos. 108, 111, 112 and 114 are all consequential upon amendments which were moved either by myself or other noble Lords at Committee stage. I hope I need say no more about them.

Lord Jenkin of Roding

My Lords, my concern about the Bill arises directly from the amendment moved by my noble friend Lord Lucas. It is that the Scottish people seem to be quite undesirably discriminated against. It has been the common view in all parts of the House that the new arrangements which are set up in Part II of the Bill for separating authorisation from disposal, providing new and stringent controls through the licensing system, establishing new offences for breaches of the terms of licences and so on are all with the express intention of improving the environment through the much better handling of waste.

Most of this does not apply at all to Scotland. Local authority operations are in no way subject to waste management licences. There is no requirement for local authority operations to be carried out by technically competent people. We had a discussion earlier about how that aim will be achieved. Authorities do not have to pay anyone any fees. That point was made by my noble friend Lord Lucas. They do not have to pay fees for licences, inspection or monitoring. For that reason, they will not have to charge the full cost of waste disposal. In fact, they will not have to charge the economic price for disposing of waste.

Therefore after all the incentives that we have talked about of reimbursing the man who produces the waste with the full cost of disposal, the Scots will get off "scot free", if I may say so. I do not understand this. It goes further than that. Local authority operations will not be subject to prosecution for pollution offences. Why not? Why should Scottish people not have the protection that is given to the people of England and Wales whereby those who are guilty of pollution offences will be hauled before the courts? Why should they be allowed to get away with it in Scotland? Perhaps most serious of all, there is no provision in the Bill requiring Scottish operators to make financial provision for long-term pollution control at landfill sites.

I see all this as discriminating against Scotland. Here we have a splendid new system which will result in improving the environment and giving proper effect to the principle that the polluter pays. The firm which produces the waste will have to bear the full cost of the business, as we have just been discussing. This will reduce the amount of waste that has to be disposed of; the producer of the waste will bear the full costs of its disposal.

I must ask even now, at this late stage, whether it is impossible to extend to the people of Scotland the considerable benefits which the Bill will extend to the people and environment of England and Wales. I simply cannot understand why they have been left out in this way. I hope that my noble friend on the Front Bench will do something to allay my disquiet about the matter. Even if the Government cannot accept the amendment of my noble friend Lord Lucas, perhaps they can give some undertaking that at Third Reading they will go some way towards redressing what seems to me to be very unfair treatment of Scotland.

Lord Strathclyde

My Lords, I too shall speak to Amendment No. 107A which my noble friend Lord Lucas requested should be unbundled from the rest of the grouping. Perhaps it would be useful if I explained what Clause 52 does. It is in essence a restatement of Section 15 of the Control of Pollution Act 1974 which gives disposal authorities in Scotland the duty to arrange for the disposal of waste collected by them in their capacity as waste collection authorities. In Scotland, the functions of waste collection and disposal authorities are integrated within district and islands councils.

The only duty in Clause 52(1) is to arrange for the disposal of waste. The actual disposal may thus be carried out by the authority itself or by private contractors. There has been a growing trend for local authorities, particularly in the central belt of Scotland, to make arrangements with private contractors to dispose of their waste. We estimate that in Scotland over the past four years the proportion of municipal waste going to private sites has increased from about 7 per cent. to about 20 per cent. There is no doubt that such arrangements can and will continue to be made under Clause 52.

The operations of private waste disposal contractors will be overseen by waste regulation authorities in accordance with the new waste management licensing provisions in Clauses 34 to 43. These apply throughout Great Britain. The disposal authorities' own operations will be overseen by the waste regulation authorities in accordance with the provisions of Clause 53. The basic requirements of Clause 53 are broadly similar to the requirements of Clauses 34 to 43, in particular as regards consultation with the river purification authority, the Health and Safety Executive and the Nature Conservancy Council and its successor bodies.

The essential point here is that the overseeing body is the waste regulation authority whereas my noble friend's amendment attempts to give waste disposal authorities some duties in relation to private contractors which we do not think would be right.

I admit straight away that in Scotland the waste regulation authority is also the district or islands council. However, the distinction between regulation and disposal authority will not be artificial. That is ensured by subsections (7) and (8) of Clause 30. These new provisions require each district and islands council to make administrative arrangements to separate its functions as regulation authority from its function as disposal authority. These arrangements must be approved by the Secretary of State. The arrangements made might involve neighbouring authorities grouping together to discharge the regulation function. Hence it is important that the Bill should clearly distinguish between the functions of regulation and disposal. This amendment appears to fail to do so.

I must also say that the Scottish Office consultation paper issued in March 1989 recommended that arm's length local authority waste disposal companies should be set up in Scotland. But the majority of respondents to the paper did not favour that way of proceeding. The point was made and accepted by the Government that because of the small and dispersed population of many district councils in Scotland it would be wasteful of resources to require them to set up separate disposal companies and the likelihood of a satisfactory competitive situation being created was remote because the private sector was unlikely to be interested in competing in districts where waste arisings were small and widely dispersed. Even though there are no LAWDCs in Scotland there are private sector contractors. They need all the licensing provisions of the Bill, including the provision for the licence to be revoked or suspended.

My noble friend Lord Lucas invited me to discuss this matter and consider it carefully before we come to the next stage of the Bill, as did my noble friend Lord Jenkin of Roding. I shall be delighted to do so.

9 p.m.

Lord Lucas of Chilworth

My Lords, I am most grateful to my noble friends Lord Jenkin of Roding and Lord Balfour for their contributions. I said the matter was complex and I still think it is complex. I do not believe that a Chinese Wall can be erected in Scotland, separating one function from another. I do not believe that the private sector may not in the short term be interested in carrying out the activities which Clause 52 appears to reserve to local authorities.

Having said that, I must express my gratitude to my noble friend Lord Strathclyde for his invitation to discuss; these matters. I hope we can come to an arrangement which will satisfy us in this House and the people and the authorities in Scotland as regards a matter which is of considerable importance in the United Kingdom. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Balfour moved Amendment No. 108: Page 59, line 41, leave out ("in pursuance or) and insert ("under").

The noble Earl said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

[Amendment No. 109 had been withdrawn from the Marshalled List.]

Clause 53 [Special provisions for land occupied by disposal authorities: Scotland]:

Lord Strathclyde moved Amendment No. 110: Page 60, line 43, after ("site") insert ("in or").

The noble Lord said: My Lords, in moving Amendment No. 110 I wish to speak also to Amendments Nos. 111, 112, 113, 114, 115, 276 and 279. The government amendments are essentially tidying, technical and consequential amendments. I wish to pay tribute to my noble friend Lord Balfour for his unflagging vigilance. I shall be delighted to accept his Amendments Nos. 111, 112 and 114. I beg to move.

On Question, amendment agreed to.

The Earl of Balfour moved Amendments Nos. 111 and 112: Page 61, line 14, leave out ("in pursuance or) and insert ("under"). Page 61, line 33, after ("waste") insert ("in or").

The noble Earl said: My Lords, I beg to move Amendments Nos. 111 and 112 en bloc.

On Question, amendments agreed to.

Lord Strathclyde moved Amendment No. 113: Page 61, line 40, at end insert:

• ("(e) where any part of the land to be used is land which has been notified under section 28(1) of the Wildlife and Countryside Act 1981, to—
1. (i) refer the proposal and the statement to the appropriate nature conservation body, and
2. (ii) consider any representations about the proposal and the statement which that body makes to it during the allowed period,
• and in this subsection and subsection (12) of this section any reference to the appropriate nature conservation body is a reference, until the date appointed under section 124(3) below, to the Nature Conservancy Council or, after that date, to the Nature Conservancy Council for Scotland.").

On Question, amendment agreed to.

The Earl of Balfour moved Amendment No. 114: Page 62, line 7, leave out ("in pursuance of") and insert ("under").

On Question, amendment agreed to.

Lord Strathclyde moved Amendment No. 115: Page 63, line 6, after ("(3) (c)") insert ("or to the appropriate nature conservation body for the making of representations under subsection (3) (e)").

On Question, amendment agreed to.

Clause 54 [Powers for recycling waste]:

[Amendment No. 116 not moved.]

Clause 55 [Powers for recycling waste: Scotland]:

[Amendment No. 117 not moved.]

Clause 60 [Duty of waste regulation authorities as respects closed landfills]:

[Amendments Nos. 118 and 119 not moved.]

Lord Dean of Beswick moved Amendment No. 119A: Page 67, line 46, leave out ("necessary") and insert ("reasonable").

The noble Lord said: My Lords, in moving Amendment No. 119A I wish to speak also to Amendment No. 119C. The purpose of Amendment No. 119A is to give the waste regulation authorities wider powers to clean up disused landfills to a better standard than that needed simply to prevent further damage to the environment. The current wording of the Bill provides for a waste regulation authority to undertake work at a closed landfill to prevent, pollution of the environment or harm to human health". Such work, under the current wording of the Bill, must be, necessary to avoid such pollution or harm". Similarly, Clause 60(7) states that a waste regulation authority is enabled to recoup costs from the owner of the land for the work undertaken, except where the cost can be proven to be incurred unnecessarily. The purpose of the amendment is to substitute for the concept of necessary the wider test of reasonableness. The latter is the concept used in most other discretionary parts of the Bill and avoids the need to undertake a different test, possibly via the courts when work is undertaken and costs are incurred. I beg to move.

The Earl of Arran

My Lords, I can instantly say that we are happy to be able to accept both the amendments that have been referred to, standing in the name of the noble Lord, Lord McIntosh of Haringey. However, with reference to Clause 60, my noble friends Lord Renton and Lord Crickhowell raised in Committee the issue of giving the NRA a statutory right to be consulted about pollution dangers from closed landfill sites. I am pleased to be able to say that the Government are agreeing with my noble friends on an appropriate amendment to address this issue. I am sure that my noble friend Lord Renton will want to table such an amendment on Third Reading. We would warmly welcome such an amendment.

Lord Renton

My Lords, I am much obliged to my noble friend for making that clear. He very courteously wrote to me during the recess to say that the Government would table an amendment which would require the waste regulation authority to consult the NRA when dealing with closed sites which are likely to cause pollution of water.

In Committee both my noble friend Lord Crickhowell, who is chairman of the National Rivers Authority, and I were keen that in the first place the National Rivers Authority should be informed of any of these landfill sites. The NRA itself would not necessarily know about such sites whereas the new authority would.

My noble friend spoke merely of consultation and kindly said that he would accept an amendment to achieve that. However, we should bear in mind the desirability of the NRA being kept informed, which is what we sought at Committee stage. Having said that, I look forward to co-operation with my noble friend.

On Question, amendment agreed to.

Lady Kinloss moved Amendment No. 119B: Page 68, line 1, leave out from ("land") to ("by") in line 2 and insert ("the duty imposed").

The noble Lady said: My Lords, my noble friend Lord Nathan has asked me to move Amendment No. 119B in his unavoidable absence. It is a drafting amendment. Clause 60 deals with the duty of waste regulation authorities as respects closed landfill sites. Subsection (6) imposes a duty upon the authority to act if it appears to the authority that a closed landfill site is likely to cause pollution or harm to human health. Subsection (7) deals with the recovery of costs by the authority from the owner where the authority has acted under subsection (6) but erroneously refers to "any power", hence the amendment to make subsection (7) consistent with subsection (6). I beg to move.

The Earl of Arran

My Lords, I hope that the noble Lady, Lady Kinloss, will feel that it has been worth her while to wait until such a late hour, because we are able to accept the amendment to correct this drafting error. I commend the amendment to your Lordships' House.

Lady Kinloss

My Lords, I thank the Minister for his kind words in accepting the amendment on behalf of the Government.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 119C: Page 68, line 6, leave out ("unnecessarily") and insert ("unreasonably").

On Question, amendment agreed to.

Clause 63 [Public registers]:

The Earl of Arran moved Amendment No. 120: Page 70, line 25, leave out ("exercised any power") and insert ("discharged any function").

The noble Earl said: My Lords, at this point it may be acceptable to the noble Lord, Lord McIntosh, if I move Amendment No. 120 in the name of my noble friend; if the noble Lord speaks afterwards; and if I then wind up the debate on his amendments.

Amendment No. 120 on the subject of the public registers of information recognises that the reference to Clause 60 needs to refer to duties as well as to powers. The amendment does that by referring to the exercise of "any function". I beg to move.

Lord McIntosh of Haringey

My Lords, I am grateful for the opportunity to speak to Amendments Nos. 120A to 120F inclusive. All of the amendments are concerned with the public registers which are to be kept by waste regulation authorities. They add to the list of items which are to be included in the public registers. The amendments are self-explanatory. I do not know whether it is the wish of the House that I should argue them at length—possibly not.

Amendment No. 120A is perhaps the most important of the amendments and adds a reference to Clause 69 which deals with imminent danger of serious pollution. It seems to us self-evident that that should be part of the registers. Amendment No. 120B refers to investigations which affect human health or serious pollution of the environment. It is comparable to an amendment that we discussed on Monday when we considered integrated pollution control. Amendment No. 120C refers to the results of monitoring, and Amendment No. 120D refers to the results of a different kind of monitoring. I could go on, but I shall not.

There is a danger that the public registers may contain only legal information concerning licences which have been applied for or granted, notices issued, appeals and certificates and so on rather than containing information which will really be of value to the general public, such as information about environmental quality as it is affected by waste disposal and reclamation activities. I recognise that if those items are to be included there will be resource implications for the waste regulation authorities and it is clear that they should be reflected in the finances which are made available to them.

The Earl of Balfour

My Lords, in view of the grouping, I must at this stage say that I rather sympathise with the one amendment that the noble Lord, Lord McIntosh, did not move—Amendment No. 120G. He has quite a good point there. But equally I should like to speak to my own amendment, No. 121.

Clause 65 has almost the same wording as Clause 22. Identical subsections were added by government amendments at the Committee stage and they now form subsection (3) of both clauses. These amendments are an improvement to the Bill. However, although enforcing authorities are specified in Part I, there are different authorities in Part II as described in Clause 30. I therefore suggest to your Lordships that the word "enforcing" could be misleading and I beg to move that that word be left out.

9.15 p m.

Lord McIntosh of Haringey

My Lords, before the noble Earl sits down, may I express my gratitude to him for drawing attention to the amendment which I should have spoken to and not moved; namely, Amendment No. 120G, which is comparable to an amendment which we had in Part I and which increases the time available—

The Earl of Balfour

My Lords, I think the noble Lord means Amendment No. 122A as well.

Lord McIntosh of Haringey

My Lords, I shall do that in a minute. I recognise that point as well. Amendment No. 120G extends to 28 days the period available for a determination of whether an item should be excluded from the register on grounds of commercial confidentiality. I follow the point that the noble Earl made—that this is consistent with other provisions in the Bill.

Amendment No. 122A, to which he rightly also referred, has the additional effect of giving the Secretary of State power to substitute another period for the time specified in subsection (3), in regard to information being excluded from the register on the grounds that it is commercially confidential. The amendment adds subsection (8), which is concerned with the automatic expiry of commercial confidentiality after a period of four years. I commend both of those amendments to the House.

The Earl of Arran

My Lords, with your Lordships' leave, I should first like to take Amendment No. 121 in the name of my noble friend Lord Balfour. We are indebted to him for identifying that the word "enforcing" is not appropriate for this part of the Bill, and that that terminology properly belongs to Part I of the Bill. We are happy to accept his amendment to delete the word "enforcing".

I should next like to deal with Amendments Nos. 120A to 120F in the name of the noble Lord, Lord McIntosh. They all seek to introduce new provisions to Clause 63. Dealing first with the last two of these, the noble Lord will be pleased to hear that we can accept one of these amendments; namely, No. 120F. This amendment provides for Part II registers a provision which was inserted at Committee stage for Part I; namely, that where information is excluded from the register on the grounds of commercial confidentiality, there should nevertheless be a statement on the register to the effect that such information exists. It is right that similar provision should be made for Part II.

The noble Lord, Lord McIntosh, dwelt at some length on the remainder of his amendments, and I feel that it would be discourteous if I did not reply with the reasons why we feel that we are not able to accept the remainder of them. We do not feel that we can accept the associated Amendment No. 120E on information excluded on the grounds of national security, as indeed we were not able to accept a similar amendment put down in Committee for Part I. The disclosure of the fact that there were activities being undertaken at a particular location could, in itself, be a risk to national security.

I can only repeat assurances given for Part I of the Bill. Information will not be exempted lightly from the register on the grounds of national security. We will require cogent and specific evidence to substantiate a claim that the disclosure of each piece of information would prejudice national security.

As regards the rest of these amendments, I hope to persuade the noble Lord that they are unnecessary because, where such provisions are not already covered by subsections of Clause 63, we will deal with them in the regulations under paragraph (m). Amendment No. 120A seeks to include details of action taken by authorities to deal with causes of imminent harm under Clause 69. If such action has been taken, it would be most unusual that further action by the authority would not follow, and that action would be covered by the provisions of the register; for instance, any prosecution resulting from the action.

Amendment No. 120B deals with the results of any investigation into possible serious harm or pollution having occurred. Any such action at a licensed site or a closed site would be covered by the provisions of subsection (j) of Clause 63. Any such action in connection with illegal disposal, i.e., fly-tipping, would be covered by either the subsection dealing with prosecutions or that dealing with remedial work that the authority undertakes.

Amendments Nos. 120C and 120D also seek to add information on the results of monitoring of licensed facilities or closed landfills. This is already provided for in subsection (j) relating to licensed facilities and closed landfills because the general provision of the clause allows prescribed particulars of or relating to the discharge of functions regarding licensed facilities or closed landfills.

These amendments deal with the availability of monitoring information. It has always been our intention that monitoring information should be included on the register. We intend to provide for these regulations under subsection (m) where it is not already dealt with in the clause. I hope that the noble Lord will be reassured that many aspects of his amendments are already dealt with in the clause and by my assurance that further monitoring data will be included in the regulatory provisions where this is necessary.

With regard to Amendment No. 120G the noble Lord seeks to allow the regulation authority 28 days rather than 14 days to decide on whether information is commercially confidential. Fourteen days is the period adopted in both Parts I and II of the Bill. We believe that industry is entitled to know where it stands on the information it provides to the authority within a relatively short period. There is provision for the Secretary of State to change this if the noble Lord's fears are confirmed. But at this stage we consider that 14 days is reasonable for an authority to determine whether or not information is commercially sensitive and should be withheld from the register.

Finally, related Amendment No. 122A seeks to provide powers for the Secretary of State to change the period for which the commercially confidential information remains confidential without the need for the licensee to reapply. This four-year period was the subject of extensive consultation and it was generally agreed that four years struck the right balance between those who wanted a longer period and those who wanted a shorter period. We do not believe that it is necessary to provide powers for the Secretary of State to change the period.

Thus, to summarise, we are content to accept Amendments Nos. 120F and 121. I hope that I have succeeded in persuading the House not to accept the remainder.

Lord Jenkin of Roding

My Lords, before my noble friend sits down can he answer a brief question about Amendment No. 120F? I noted that he said that he was not prepared to accept Amendment No. 120G for the reason that even a statement to the effect that there was an entry which had been excluded from the register could be prejudicial to national security.

Under Amendment No. 120F what kind of information can be included in the statement? Can he give an assurance that it will not be such as could prejudice the confidentiality of the commercial information which is sought to be concealed?

It seems to me that in some circumstances, when one is dealing with secret processes which involve the existence of certain by-products and effluents, the mere fact that they exist can tell a scientist skilled in the art that such and such a process is taking place and therefore the commercial consequences that might follow. That of itself could be prejudicial. It seems to be adopting a slightly higher test under Amendment No. 120E than under Amendment No. 120F. I believe that that could have dangers for the protection of commercial confidentiality.

The Earl of Arran

My Lords, I can advise my noble friend that I understand that confidential information has been kept from the register. I hope that I have answered the particular point that he raised.

On Question, amendment agreed to.

[Amendments Nos. 120A to 120E not moved.]

Lord McIntosh of Haringey moved Amendment No. 120F: Page 70, line 35, at end insert: ("() Where information of any description is excluded from any register by virtue of section 65 below, a statement shall be entered in the register indicating the existence of information of that description.").

The noble Lord said: My Lords, I beg to move.

On Question, amendment agreed to.

Clause 65 [Exclusion from registers of certain confidential information]:

[Amendment No. 120G not moved.]

The Earl of Balfour moved Amendment No. 121: Page 72, line 18, leave out ("enforcing").

The noble Earl said: My Lords, I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 122 and 122A not moved.]

Clause 66 [Annual reports]:

[Amendment No. 123 not moved.]

Clause 67 [Functions of Secretary of State and appointment etc. of inspectors]:

[Amendment No. 124 not moved.]

Clause 68 [Powers of entry etc. of inspectors]:

The Earl of Arran moved Amendments Nos. 125 to 127: Page 74, line 32, after ("treated") insert (", kept"). Page 74, line 35, after ("treated") insert (", kept"). Page 74, line 37, after ("treatment") insert (", keeping").

The noble Earl said: My Lords, I move these amendments on behalf of my noble friend. At the same time I should like to speak to Amendments Nos. 130, 131, 272 and 273. Amendments Nos. 125, 126 and 127 are drafting amendments which clarify that inspectors' powers of entry extend to premises used for the storage of waste, such as transfer stations.

Amendments Nos. 130 and 131 are drafting amendments to make the Secretary of State's default powers under Clause 71 more effective. They allow him to vary or revoke any order he makes and to include such other incidental and supplementary provisions in an order as he considers appropriate.

Amendments Nos. 272 and 273 allow the Secretary of State's default power orders, and orders made under Schedule 3 in respect of the statutory nuisance functions of local authorities, to be made without the need for statutory instruments. That is because in these cases default orders are made in respect of a particular authority and are not legislative in their nature or context, but are addressed to a particular case or problem. I beg to move.

On Question, amendments agreed to.

Clause 70 [Obtaining of information from persons and authorities]:

[Amendments Nos. 128 and 129 had been withdrawn from the Marshalled List.]

Clause 71 [Default powers of Secretary of State]:

The Earl of Arran moved Amendments Nos. 130 and 131: Page 78, line 46, at end insert: ("() The Secretary of State may by order vary or revoke any order previously made by him under this section."). Page 79, line 7, at end insert: ("() Any order under this section may include such incidental, supplemental and transitional provisions as the Secretary of State considers appropriate.").

On Question, amendments agreed to.

Clause 72 [Appeals and other provisions relating to legal proceedings and civil liability]:

The Earl of Arran moved Amendment No. 132: Page 79, line 36, after ("deposited") insert ("in or").

The noble Earl said: My Lords, on behalf of my noble friend, I beg to move Amendment No. 132 which amends the drafting of this subsection on civil liability for the criminal dumping of waste to make it consistent with the wording of Clause 32 where the related offence is described.

On Question, amendment agreed to.

Clause 73 [Meaning of "fit and proper person"]:

[Amendment No. 132A not moved.]

Clause 76 [Transition from Control of Pollution Act 1974 to this Part]:

The Earl of Arran moved Amendment No. 133: Page 82, line 44, at end insert ("and "relevant appointed day for licences" shall be construed accordingly;").

The noble Earl said: My Lords, on behalf of my noble friend, I shall speak also to Amendments Nos. 134 to 137, 140, 274, 275, 278, and 280 to 282.

Amendments Nos. 133 to 137 and 140 bring together some rather disparate features of the Bill in Clause 76, which deals with the transitional arrangements from the Control of Pollution Act to this Bill. Rather than deal with them in numerical order I shall attempt to explain where the different groups fit into the grand order of things.

First, Amendments Nos. 133 to 135 and the last paragraph of Amendment No. 136 (labelled (2B)) address a problem highlighted in Committee by the noble Lord, Lord Ezra, who was erroneously assured that the existing provisions in Clause 49 for the modification of plans applied equally to plans prepared under the Control of Pollution Act. They do not, and I apologise to the noble Lord in his absence for misleading him, but I thank him for tabling the amendment at that time which drew the omission to our attention, if somewhat belatedly. The last paragraph of Amendment No. 136 puts right the mistake. It provides that existing plans under the 1974 Act shall become plans under this Bill, and subject to the new provisions of the Bill. Since there will now be two sets of "relevant appointed days" under this transitional clause, it is also necessary to distinguish between those for plans and those for licences which are already in the clause.

Secondly, the part of Amendment No. 136 labelled (2A) allows authorities to continue to operate their own facilities under a resolution of council—that is, under Section 11 of the Control of Pollution Act—until such time as their LAWDC is set up with a full licence or they may have privatised their sites.

Without this amendment authorities would be committing an offence under Clause 32(1) by disposing of waste without a waste management licence.

Thirdly, Amendments Nos. 137 and 140 allow the Secretary of State flexibility in imposing the requirements in Clause 50 that a waste disposal authority shall not dispose of waste except through arrangements made with a waste disposal contractor. I hope that this rather long explanation of this rather complex group of amendments has assisted your Lordships. Amendments Nos. 274 and 275 make the repeal of enactments under Schedule 16 subject to the provisions of Clause 76 (Part II: Waste), Schedule 11 (Part VII: NCC) and any notes in Schedule 16 itself which deal with transitional arrangements.

Amendments Nos. 278 and 280 are deregulatory amendments. Amendment No. 281, in the name of my noble friend Lady Blatch reinstate certain sections of Part II of the Control of Pollution Act which were erroneously deleted in the present drafting of Schedule 16 to the Bill.

Amendment No. 282 paves the way for the subsequent repeal of a transitional provision allowing the NCC to be a statutory consultee on waste licences until its successor bodies take over its functions. I beg to move.

9.30 p.m.

Lord McIntosh of Haringey

My Lords, I do not know whether it is given to mere mortals to intervene in the grand order of things, as described by the noble Earl. However, I wish to comment on Amendment No. 140, over which he passed relatively quickly—perhaps it is not quite so grand. Its implication is that the Secretary of State has the power to set such dates as he wishes in introducing compulsory competitive tendering for waste disposal. We understand that he will use the power only when there is a reluctance on the part of waste disposal authorities to achieve the creation of LAWDCs. It is an open-ended power, as the amendment is drafted, which in effect extends the operation of the 1988 Act. I am far from convinced that it is right to extend that Act under cover of what is only a minor amendment to the Bill.

It means that compulsory competitive tendering could be introduced in staggered dates. Noble Lords who took part in the debate on the 1988 Act will recall that the schedule of implementation of compulsory competitive tendering was specified in great detail by the Government and was a matter of considerable argument. The Government were determined to ensure that different local authorities introduced compulsory competitive tendering for different services on a staggered basis over a period of time. If the Government felt it necessary to be so precise in 1988, why are they now giving the Secretary of State a free hand to introduce such dates as he wishes? I do not find that a happy situation. It is not consistent with the approach taken by the Government only two years ago. I fear that it will result in discrimination against those local authority departments which wish to tender for the work and in favour of the private sector. I hope that in winding up the Minister can tell the House precisely how the power will be used and the kind of timetables that he expects the LAWDCs and the waste disposal authorities to operate.

Lord Ross of Newport

My Lords, I am grateful to the Minister for inserting into the Bill the provision which the noble Lord, Lord Ezra, was assured existed. The matter has now been put right. I am under the impression that I should do much better if I stayed away from this place and concessions would be given right, left and centre.

The Earl of Arran

My Lords, I shall answer the points raised by the noble Lord, Lord McIntosh, in particular those referring to Amendment No. 140. I shall endeavour to assure him that we are still about the grand order of things. I shall also deal with Amendment No. 137. Both amendments allow the Secretary of State to specify the date by which an authority must arrange for the disposal of its waste to a contractor by competitive tender. They allow him to specify different dates for each authority if appropriate. That allows the introduction of competitive tendering to be tailored to the individual circumstances of each authority. It also ensures that there is no scope for authorities to obstruct the introduction of competition through delaying tactics and the formation of their LAWDC.

However, the primary purpose is the introduction of competition to the waste disposal activities of the authorities. Furthermore, the amendment achieves flexibility, which is to the benefit of the authorities. It allows the date to be fixed in negotiation with the authority. It does not have any connection with the 1988 Act at all. It deals only with LAWDCs. I hope that the noble Lord, Lord McIntosh, sees that we are still about the grand order of things.

On Question, amendment agreed to.

The Earl of Arran moved Amendments Nos. 134 to 137: Page 82, leave out line 45 and insert: (" "existing disposal plan" means a plan under section 2 of the 1974 Act subsisting on the day appointed under section 154(3) below for the repeal of that section and "relevant appointed day for plans" shall be construed accordingly;"). Page 83, line 5, after ("day") insert ("for licences"). Page 83, line 8, at end insert: ("(2A) The restriction imposed by section 32(1) above shall not apply in relation to land occupied by an existing disposal authority for which a resolution of the authority subsists under section 11 of the 1974 Act on the relevant appointed day for licences until the following date, that is to say—

1. (a) in the case of an authority which transfers the relevant part of its undertaking in accordance with a scheme under Schedule 2 to this Act, the date which is the vesting date for that authority; and
2. (b) in any other case, the date on which the authority transfers, or ceases itself to carry on, the relevant part of its undertaking or ceases to provide places at which and plant and equipment by means of which controlled waste can be disposed of or deposited for the purposes of disposal.

(2B) Any existing disposal plan of an existing disposal authority shall, on and after the relevant appointed day for plans, be treated as the plan of that authority under section 49 above and that section shall accordingly have effect as if references in it to "the plan" included the existing disposal plan of that authority. (2C) Subsection (2B) above applies to Scotland and, for the purposes of that application, "existing disposal authority" means any authority constituted as a disposal authority for any area before the day appointed for this section to come into force and "that authority" means the waste disposal authority for that area under section 30(2) above."). Page 83, line 9, at beginning insert ("Subject to subsection (3A) below,").

On Question, amendments agreed to.

Baroness Blatch moved Amendments Nos. 138 and 139: Page 83, line 17, leave out from ("which") to ("the") in line 19. Page 83, line 21, leave out ("or") and insert ("and").

On Question, amendments agreed to.

The Earl of Arran moved Amendment No. 140: Page 83, line 28, at end insert: ("(3A) The Secretary of State may, as respects any existing disposal authority, direct that the restriction imposed by section 50(1) above shall not apply in the case of that authority until such date as he specifies in the direction and where he does so paragraph (a) of subsection (3) above shall not apply and paragraph (b) shall be read as referring to the date so specified.").

On Question, amendment agreed to.

Lord Ross of Newport moved Amendment No. 141: After Clause 133, insert the following new clause:

(Register of incidents at sea

.—(1) In section 33(2) of the Merchant Shipping Act 1988 (investigations of marine accidents) there shall be inserted—

• "(c) any accident involving the entry of harmful substances into the sea from a ship or a ship's boat, whether the substances are contained within the ship, within a package in or on that ship or otherwise."

(2) For the purposes of section 33(2) (c) of the Merchant Shipping Act 1988 an investigation may be made into, and regulations made under section 33(4) of that Act may extend to, any accident that occurs anywhere at sea within United Kingdom controlled waters.

(3) Regulations made under section 33(4) of the Merchant Shipping Act shall prescribe the matters to be included in a report made by a ship's master or owner about an accident involving the entry of harmful substances into the sea and in particular require information to be provided as to—

1. (a) the description of the harmful substances involved including the correct technical name of those substances,
2. (b) the quantities, concentrations and likely conditions of harmful substances that have entered the sea,
3. (c) where relevant, a description of the packaging and identifying marks, and
4. (d) the name of the consignor, consignee and manufacturer of the harmful substances.

(4) It shall be the duty of the Secretary of State to establish and maintain available for public inspection free of charge at reasonable hours a register containing a copy of any report made about any accident involving the entry of harmful substances into the sea in accordance with regulations made under section 33(4) of the Merchant Shipping Act 1988.

(5) For the purposes of this section and section (Duty to notify cargoes of harmful substances.) below "harmful substances" shall be defined in accordance with Article 2(2) of the International Convention for the Prevention of Pollution from Ships 1973.").

The noble Lord said: I shall speak also to Amendment No. 143. These amendments call for a register of incidents at sea and a duty of notification of all cargoes of harmful substances. It adds to Section 33 of the Merchant Shipping Act 1988, which refers to marine accidents investigated by the chief inspector of marine accidents, a clear stipulation that all accidents involving harmful substances within United Kingdom controlled waters should be examined.

The Merchant Shipping Act allows for reports on accidents to be conducted but this amendment specifies that the report must include the nature of the harmful substance, the quantity of the substance, its destination and the origin of the substance. The amendment further imposes on the Secretary of State a clear duty to publish and make freely available on request reports on the entry of harmful substances into the sea.

I believe that everybody in this House agrees that we have every reason to be concerned about what is happening to our sea and coastline and that clear publicly available information is required. A register of accidents stating when and where chemicals are lost overboard should meet that requirement.

I vividly remember noxious chemicals being washed up in the Compton Bay area of the Isle of Wight when I was a Member there some five or six years ago. That caused a great deal of anxiety and it cost the local authority a lot of money to deal with that. I am sure that many colleagues who live in coastal areas will know of similar incidents. I am sorry to say that that situation is not improving but getting worse.

As recently as 22nd June 1989 my colleague in the other place, Mr. Malcolm Bruce, was told in an official Answer that the department—and I assume that it was the Department of Trade and Industry—kept no figures relating to the losses of dangerous chemicals in British waters. Up to 10 per cent. of cargoes carried by commercial vessels in the North Sea are classified as hazardous.

We believe that reports are needed containing the background information. Amendment No. 143 promotes that by calling on the owner and master to notify the Secretary of State of any harmful substance which a ship is carrying. This amendment vests responsibility in the mechanisms established by the Food and Environment Protection Act 1985. That Act, which deals with, among other things, licensing for deposits and incineration at sea enables the Secretary of State to appoint officers with a power to request information as to lost substances, to request a ship to stop and powers to detain a ship if there is reason to suspect that that ship is carrying materials which are to be deposited or incinerated at sea. The amendment seeks to employ that structure when it is suspected that a ship is carrying hazardous chemicals. The same people would have authority to ensure that notification of carrying hazardous materials is reported to the Secretary of State.

I am aware that there was a somewhat truncated debate on this subject in Committee in the other place. The answer given was really not adequate. I suspect that the answer which I shall be given this evening will be along the same lines, although I hope that it will be rather fuller. On a Bill concerned with environmental protection, surely mention should be made in the Bill of the problems affecting our coastline and how we shall deal with that.

Mr. David Trippier, the Minister in the other place, for whom I have considerable respect, said that sufficient powers to investigate accidents or hazardous incidents that might lead to environmental damage are already contained in the merchant shipping regulations of 1989. I certainly agree that it is extremely important that we use international maritime organisations to enable the Bill to work effectively. Nevertheless, we are entitled to more than the answer given when the point was raised at that time.

The Minister went on to say that the proposals for retrieval operations were not acceptable in their present form and that the Ministry was considering them further. Having experienced some of the oil spillages and such like, I would say "Amen" to that.

This is a probing amendment, but it is a subject of great importance. Even if I am out of court in attempting to suggest that this type of provision should be written into the Bill, there should be more comment about it in this particular measure. People will look to the Bill for protection from these incidents happening around the coastline. I beg to move.

Baroness Blatch

My Lords, the noble Lord is right. This is a very important subject. Regulations are already in place which require reports of incidents concerning the actual or potential loss into the sea of dangerous goods, harmful substances and marine pollutants. The form of these reports has been agreed internationally through the International Maritime Organisation and there is no need to duplicate these requirements.

Sufficient powers to investigate accidents or hazardous incidents which lead or might lead to environmental damage are already contained in the Merchant Shipping (Accident Investigation) Regulations 1989. Such enquiries would be based on evidence from the ship's manifest and would not rely solely on statements from the master or owners, whose source of information is unlikely to be more detailed or accurate.

The Government entirely accept the necessity of providing the public with full and prompt information about marine pollution incidents. We do not believe that a public register is an effective means of conveying that information. Marine pollution incidents are often fast moving affairs with information changing hourly, if not daily. As a means of providing the public with up-to-date information about a current incident, a register would be virtually useless. Instead it is necessary to rely on the responsible authorities—the Department of Transport, the Ministry of Agriculture, Fisheries and Food, and, in the case of goods washed ashore, county councils— to publicise the implications of marine pollution incidents. Their track record in keeping the public informed is good. Noble Lords may recall that full details were available to the media during the recent "Perentis" case.

In addition, as a source of record of coastal oil pollution incidents, the Department of Transport commissioned the Advisory Committee on Pollution of the Sea to maintain an annual survey of incidents as reported by local authorities. The Department of the Environment intends to commission a similar survey of hazardous goods washed ashore. For all these reasons this proposed clause, despite its excellent intentions, would be unproductive and I must ask noble Lords not to support it.

Amendment No. 143 would require the master and owner of a ship carrying harmful substances in United Kingdom controlled waters to provide the Secretary of State with certain information about the cargo, and persons appointed under the Food and Environment Protection Act 1985 will have power to ensure that that is done.

The Government cannot accept that amendment. The carriage of harmful substances by ships can be effectively regulated only by international conventions dealing with marine safety and pollution prevention. There are international requirements for the prior notification of goods entering ports. New rules by the International Maritime Organisation would extend that requirement to goods leaving port.

In the United Kingdom the Health, Safety and Welfare at Work Act requires that notification be made to the harbour authority concerned. The provisions of the Act are monitored by marine surveyors of the Department of Transport and the statutory harbour authorities. Ships entering or leaving United Kingdom ports are thus subject to the regime envisaged by the amendment. It is not possible to subject ships on innocent passage—just passing through the United Kingdom territorial waters—to such a reporting procedure. In any case there would be no way of enforcing the legislation. However, they are obliged by the merchant shipping Acts and the International Convention for the Prevention of Pollution from Ships to report to the nearest coastal state when harmful substances are lost overboard.

I do not for one moment underestimate the importance of this matter but I hope that the noble Lord will understand that regulations exist and that we are all concerned about their enforcement.

9.45 p.m.

Lord Ross of Newport

My Lords, that was a much fuller reply than that given to my colleague during the Committee stage in another place, and I am grateful for it. I was in error in referring to the Department of Trade and Industry because I now realise that responsibility was moved from the Department of Trade to the Department of Transport and that that is where it now lies.

I appreciate the answer given by the Minister and I do realise the problems and difficulties. There is still a complicated situation when an accident involving hazardous chemicals occurs and where various departments and legislation are concerned. However, it will be of assistance that the position will be recorded in the Official Report and I repeat my gratitude to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 134 [Power to prohibit or restrict the importation or exportation of waste]:

Lord Reay moved Amendment No. 142: Page 135, line 40, at end insert: ((cc) confer powers corresponding to those conferred by section 68(3) above;").

The noble Lord said: My Lords, this amendment provides powers of entry to inspectors to enforce the controls on the import and export of waste.

Regulations under this clause would be largely about documentation notifications of waste movements, consents given and documents accompanying waste movements. Authorities might very well need physically to inspect waste consignments and take samples for analysis, not least to check on the accuracy of any documents such as descriptions of the waste imported or exported. It is therefore essential that waste regulation authority officers have powers to enter premises and to take other action on sites where waste is kept or dealt with.

The draft as it now stands does not extend these powers to waste imports and exports. The necessary powers are available in Part II and this amendment seeks to extend those powers to this section in Part VIII. I commend the amendment to the House. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. I42A: Page 136, line 5, at end insert: ("(5A) Regulations made under subsection (5) (c) above in respect of imported waste shall include the requirement that before waste is imported, a certified analysis of the waste, accompanied by two sealed examples, and including a statement of its chemical composition and of the presence of any environmentally damaging contaminants, has been received by the waste regulation authority concerned from the relevant regulatory authority in the country of origin.").

The noble Lord said: My Lords, I start by again referring briefly to the events which caused us to raise this matter in Committee, because the problem has not gone away since we debated these matters in June this year. The specific case arises from the import by Wath Recycling of Wath upon Dearne in Rotherham of what was supposed to be a consignment of 500 tonnes of copper sludge. The company had taken a trial amount of three tonnes and found that it could reclaim the copper from the copper sludge. It therefore agreed to take the total consignment from the United States.

The copper sludge was delivered in open containers by ship and by rail. When the first batch arrived at the company's premises it was kept indoors as required by the company's site licence but it was found to have a horrible smell. A further 140 tonnes arrived at Leeds in the same form and that smelled nasty, too. The company therefore began to suspect that the deliveries were not the same material as the test consignment. A check was made and the material was found to contain highly hazardous chemicals for which there should have been safety precautions during its handling. The company put the copper sludge into sealed containers and it remains in this country, some of it on the company's premises and some of it on British Rail premises in Leeds.

Since that happened in early 1989 nobody has been able to resolve the problem under existing law. HMIP and the Department of the Environment have been endeavouring to bring the two parties together—that is, the waste producer and the waste recycling company—but they have not succeeded in doing so and no solution has been found.

Wath Recycling has attempted to take civil action against the United States company but it has been ruled that the matter is not subject to British law. The company is therefore being forced to take court proceedings in the United States but it is not known how long that will take to be achieved and, in any case, it appears that these chemicals which are considered by this country to be highly toxic are not considered to be highly toxic by the United States. In addition, although in this country they would have to be properly labelled they are not required to be properly labelled in the United States.

The Bill does not really deal with this problem. Although I readily acknowledge that there are improvements to the clause, it does not deal with the problem because it does not relate to material that comes in before the Bill is passed and becomes an Act. Even if the material is brought in and found to be contaminated with unacceptable material and the recipient refuses to accept it on to his premises, there will be a stranded material, as there is now, with no one willing to take responsibility for it or to deal with it. It may well be that the local authority will have to deal with the cost of the safe disposal.

On reflection I do not think that what we are proposing in this amendment goes as far as it should. Ideally, the legislation should have been made retrospective. Bonds should have been required from the overseas waste producers before the material was accepted in this country. Nevertheless, the proposals put forward here are modest and realistic. They should be incorporated into the Bill. As the amendment says, there should be a certified analysis of the waste, accompanied by two sealed examples, and including a statement of its chemical composition and of the presence of any environmentally damaging contaminants". The amendment also states that the information and materials should be received from the relevant regulatory authority in the country of origin". At this hour of the night I shall not go in detail into the different ways of importing waste under the transfrontier shipment regulations of 1988. Suffice it to say that there is some protection when material is not non-ferrous material for reclamation. There is supposed to be information about the waste producer, the country of origin and the chemical characteristics. However, there is no real protection if the material is not what it is declared to be, as was the case in the incident I have described.

When waste is declared to be non-ferrous metal waste imported for reclamation, there is no requirement for prior notification. There is no requirement other than that the uniform document must be posted before the consignment is made. That document is simply inadequate for the purposes of proper control. The Wath incident is continuing. It has not been resolved despite the best efforts of the HMIP and the Department of the Environment. Those concerned are not convinced that the Bill will deal with the problem. Through this amendment we are proposing a modest improvement in the Bill in the hope that at least future imports of this kind will not take place. I beg to move.

Lord Reay

My Lords, this amendment requires the Secretary of State to include in regulations under Clause 134 a requirement that the regulatory authority in the country of origin should provide to our regulatory authority an analysis and samples of the waste before it is shipped.

There is no significant difference between us on the aims of this amendment. It is our firm intention that any regulations made under this clause would deal with the need for analysis and sampling. But I must repeat what was said in Committee, that the decisions on the content of our regulations must await the outcome of negotiations in Brussels on the Community-wide regulations which will ratify the Basle Convention on the international movement of waste for all Community members simultaneously. This will replace the provisions of the transfrontier shipment of hazardous waste directives. This regulation will automatically become law in this country and we must guard against any possibility that national law is incompatible with it.

We must at this stage therefore be very careful that the Secretary of State's hands are not tied by an over-rigorous itemisation of things to be covered by the regulations under Clause 134 which may vary slightly in detail from the requirements of the EC regulation. I repeat that it is our firm intention that such analysis should be carried out. We will be pressing in negotiations that the EC regulation applies to all international shipments of waste, including non-hazardous waste, and that analyses and samples are submitted to the relevant authority before shipment takes place. However, we believe that such samples should be provided by the producer of the waste, not the regulation authority in the country of origin. We believe that the producer should be responsible for the waste and that he should be the one to take it back if the analysis proves to be wrong. We shall be pressing for this to be a feature of the EC regulation.

It may well be that the Secretary of State will not need to make regulations under Clause 134 because a European Community regulation will provide all the controls that are needed. On the other hand, the Secretary of State may need to make United Kingdom regulations because additional controls are necessary. Either way, the submission of samples should be a feature of the system but it is important that any United Kingdom regulations on the matter are compatible with regulations that will come from the European Community regulations. In particular, we would not wish that the duty to provide the samples should lie with the waste regulation authority in the country of origin, as set out in the amendment.

I agree with the noble Lord that shipments such as those he described need to be controlled. This clause sets out the means for control, but I can only re-emphasise that the regulations to be provided through the Community will implement the Basle Convention. This will bind both the United Kingdom and the United States. I can also assure the noble Lord that the department has taken an active part in attempting to achieve agreement between the parties. In the light of my explanation, I hope that the noble Lord will not press his amendment.

Lord McIntosh of Haringey

My Lords, before the noble Lord sits down, I should like to put one or two questions to him. First, can he be more precise about the timetable for the European Community regulations to which he referred? Secondly, if, as he says, the Government are pressing the Community for the sample to be produced by the waste producer rather than by the regulatory authority, does that not mean that the waste producer will have to be inspected in producing that sample in order to ensure that it is an honest sample?

Waste products are not homogeneous. In the nature of the beast, one does not find the same thing in every barrel or in every container. It would be all too easy for a sample offered by the producer not to reflect the content of the consignment as a whole. The waste regulatory authority, provided it is an honest, properly established waste regulatory authority, would be able to ensure that the sample was truly representative of the consignment. Can the noble Lord answer that question? It is important that we should know that the Government are behaving correctly in negotiations taking place with the Community.

Lord Reay

My Lords, perhaps I may answer the noble Lord's second question on the samples to be produced by the producer. The requirement would be that the producer should provide accurate samples. If they turned out not to be so, he would be required to take them back. That is what we are aiming for.

The noble Lord asked about the timetable. All I can say is that negotiations are to begin soon and a draft has been produced by the European Commission.

Lord McIntosh of Haringey

My Lords, the noble Lord will not be surprised to know that I find both those answers unsatisfactory. He cannot do anything about the timetable.

As to the actions the Government are taking in the negotiations, the whole force of the example of Wath Recycling is that it is not possible to get the company to take the consignment back. It was not properly described. Nobody knows whether the three tones which were supplied as a test consignment were honourably supplied or were dishonourably supplied. The samples did not represent the content of the consignment. The difficulty has not been resolved despite the efforts of HMIP and of the department. The consignment is still there. It has not been taken back by the US producer. In those circumstances, with Wath still hanging over us, so to speak, how can the noble Lord argue that it is enough to have an unrepresentative sample and to rely on the possibility of its being taken back?

Lord Reay

My Lords, the intention is that when there is a new European Community law this situation will be provided for and it will be possible to insist that waste in these circumstances (where it has been so described) will be taken back by the exporting producer.

Lord McIntosh of Haringey

My Lords, that is all very well in a situation where the exporting producer is a member of the European Community. However, what happens when that is not the case? Will the same provision apply if the waste comes from Zaire, Bangladesh or Venezuela?

Lord Reay

My Lords, the answer is yes.

Lord McIntosh of Haringey

My Lords, I cannot continue to ask questions because this is Report stage. However, I do not believe that the European Community has the power to enforce these regulations if they are supposed to apply to Zaire, Bangladesh, Venezuela, Cuba or wherever else it may be. I am not satisfied with the answers which have been given and if it were not for the late hour I should certainly seek the opinion of the House on the matter. It is an issue to which I may return on Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 143 not moved.]

Clause 135 [Powers to obtain information about potentially harmful substances]:

Baroness Blatch moved Amendments Nos. 144 to 147: Page 137, leave out line 36. Page 137, leave out line 41. Page 137, line 42, at end insert ("and the Food Safety Act 1990."). Page 202, leave out lines 43 and 44.

On Question, amendments agreed to.

Lord Reay

My Lords, I beg to move that further consideration on Report be now adjourned.

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