§ 3.4 p.m.
§ Lord Whitty
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.— (Lord Whitty)
§ On Question, Motion agreed to. House in Committee accordingly.
§ [The DEPUTY CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 1 [Regulation of polluting activities]:
The Deputy Chairman
Before I call Amendment No. 1, I must tell the Committee that if Amendment No. 1 is agreed to, I shall not be able to call Amendments Nos. 2 to 4 inclusive because of pre-emption.
§ Lord Dixon-Smith moved Amendment No. 1:
§ Page 1, line 6, leave out from beginning to ("for") in line 11.
§ The noble Lord said: I should explain that my noble friend Lady Byford should have been taking these amendments through the Chamber. Sadly, she went home last weekend to a family tragedy and cannot be with us this afternoon. That is the reason I find myself standing here today. I am sure that all noble Lords will sympathise with her in her predicament and understand why she is not able to be here.
§ Lord Dixon-Smith
There are two reasons I regret that my noble friend is not here; first, I am not as charming as she; and, secondly, I am not as knowledgeable as she is on this subject. However, I hope that the Committee will allow me to do my best. It may be for the convenience of the Committee if I speak to all the amendments tabled in the name of my noble friend as they have a common purpose.
The Bill as drafted is too open ended. Since our Second Reading debate we received the report of the Select Committee on Delegated Powers and Deregulation. The report is profound. At paragraph 6 it says,We are bound to report to the House that as at present drafted this is a 'skeleton' bill and so is an inappropriate delegation of secondary powers".466 It continues,If the House shares our concern it will no doubt wish to consider whether the Bill can be saved by amendments which specify with more precision the ambit of the legislation and the criteria to be taken into account in making regulations. The following issues could fall for consideration: Whether the legislation should be limited solely to matters provided in Schedule I. Whether there should be a clear indication of the ambit of powers which may be delegated. Whether the categories of person to whom powers can be delegated under the regulations to determine matters which could have been provided in the regulations should be specified. Whether the legislation should provide in terms that conditions and regulations should always be based on the use of the 'best available techniques', including cost/benefit assessments as the Explanatory Notes contemplate. Whether the bill should provide that no regulation should be made without proper consultation. The Explanatory Notes record consultation about the implementation of the Directive and state that 'A third consultation paper, including a draft of the regulations which the Secretary of State proposes to make under the Bill, is due to be published before the end of 1998'".That document has been placed in the Library. In paragraph 8 the report goes on:Whether or not the substance of the bill is amended we are concerned that the regulations should be subject only to the negative procedure. We consider that in the first instance of their use the regulations should be subject to the affirmative procedure. We also consider that any subsequent regulations which create new offences, or increase penalties for offences created under the initial regulations. should be governed by the affirmative procedure. In the light of the width of the Henry VIII power, we consider that any regulations which amend or repeal an Act of Parliament should be subject to affirmative procedure".At the end of its recommendations, the Select Committee said:The Committee would also wish to add that, even if the House accepts the bill with any such amendments as being justified for the reasons which the DETR give for proceeding by such wide-ranging enabling legislation, the Committee would not wish this bill to be regarded as a precedent for the future. It remains important that the purposes and ambit of legislation, together with any important governing criteria, should be clearly specified within primary legislation and not simply left to the exercise of delegated powers".That is a damning indictment of the Bill as drafted. The amendments in the first grouping seek to put right some of the criticisms which are made in that report.
The amendments seek to limit the power to be granted to the Secretary of State and to ensure that the decisions that he makes are subjected to an appropriate level of scrutiny. As at presently drafted, the Bill gives the Secretary of State carte blanche to impose costly regulations on businesses on the flimsiest of pretexts. There is no requirement on him to bring those matters to the attention of Parliament. The onus will be on Members of this House or another place to raise the matter. With such sweeping powers, that is clearly unacceptable. The problem is not that the Secretary of State will have too much power to benefit the environment, but because of the way in which the Bill is drafted it will give him power to do great damage in the name of the environment without being exposed to the normal cautionary voices that your Lordships and Members in another place might offer.
I believe that it should be incumbent upon the Secretary of State to demonstrate that any regulations that he makes under the Bill should address a specific, significant problem. The amendments allow him to define that term, but require that the definition is laid before the House in advance. Any future measures could 467 then be laid against the standard laid out in the order issued by the Secretary of State. There would be a point of reference that would be debated in advance, with which regulations made under the Bill would be required to comply. If they did not, it would be up to the Government to justify that before Parliament. If businesses are forced to operate under conditions of great uncertainty in the legislative framework, that will not contribute to environmental practice.
A problem with regulation in general is that it tends to encourage organisations to adopt a culture of minimal compliance. In other words, they comply with the letter of the regulation and then cease to make any further effort. They look to the Government to provide the definition of what constitutes responsible environmental practice. If they are faced with an ever-changing vista of law and regulation, they do not know where they stand. What is an acceptable environmental practice one day can, under this Bill, become unacceptable subsequently. In that situation, otherwise responsible management will tend to give up. The amendments, which stand in the name of my noble friend Lady Byford, seek to put some of that right, as I have said. I beg to move.
§ 3.15 p.m.
§ Lord Jenkin of Roding
I would like to associate myself with the expressions of regret that my noble friend Lord Dixon-Smith has voiced concerning the reasons for the absence of my noble friend Lady Byford. I want to support the amendments tabled in her name and make one or two remarks about the report of the Select Committee on Delegated Powers and Deregulation.
As students of the constitution, we are all accustomed to talking about checks and balances in the constitution. The role of Parliament is to hold the Executive to account and there are many instruments, conventions and institutions which are intended for that purpose. When the numbers of Members in the parties in another place are fairly evenly balanced, that function can be effectively exercised by Her Majesty's Opposition and other opposition parties. If members of the governing party, who support the Executive, decide that the Executive is not behaving properly, there is a real risk that the Executive will be defeated. When there is a very large majority for one party in another place that process, as we have seen over recent months, becomes a great deal more difficult. It is in those circumstances that the remaining checks and balances come into their own.
I have come to regard the Select Committee on Delegated Powers and Deregulation as one of the most effective weapons in Parliament's armoury. It acts as a check and a balance and helps to hold the Government to account. The third report, under the chairmanship of my noble friend Lord Alexander of Weedon, to which my noble friend referred, seems to be a textbook example of the role and effectiveness of the Select Committee. I do not recollect having read quite such a sweeping condemnation of a Bill presented to Parliament. I shall not delay the Committee by reading 468 again the passages which my noble friend Lord Dixon-Smith has already quoted, but they represent a stinging rebuke to the Government for having presented a Bill to Parliament in this skeletal form.
I acknowledge at once that with the two amendments tabled in the name of the noble Lord, Lord Whitty, they have moved part of the way—but only part of the way—to meet the Select Committee's strictures. Much more needs to be done to make the Bill acceptable and, paraphrasing the words of the Select Committee, an appropriate delegation of secondary powers. The amendments that we shall be discussing this afternoon—we may have to return to some of them on Report—aim to do just that. As my noble friend Lord Dixon-Smith said, this group of amendments is aimed at restricting and defining the scope of matters to be covered in the regulations. That clearly lies at the heart of the Select Committee's strictures about which, as yet, the Government have done nothing. In the government amendments there is no limitation on the scope of the provisions. All we have is a letter from the noble Lord, Lord Whitty, sent to a number of noble Lords, dated 4th February, in which he said:in my letter of 21st January to Lord Alexander of Weedon, I explained why we had not limited the powers in the Bill to the matters listed in Schedule 1. I do, nevertheless, take very seriously the suggestions of the Delegated Powers Committee and the concerns which were expressed at the meeting last week-.A number of us were given the opportunity to discuss those issues with the Minister. It was a limited, but useful meeting. In that letter of 4th February, the noble Lord continued:I am, therefore, looking again carefully at the scope of the Bill and discussing with my colleagues in Government whether the Committee's recommendation can be accommodated without making for a less effective regulatory system".Nothing on the Marshalled List reflects that hope. That is why I am asking the Minister whether it will happen. When can we expect the Government to come forward with further proposals? That question lies at the heart of the Select Committee's criticisms and I sure that the Minister will want to answer it.
Perhaps I may express from the Back Benches the view that, as the Select Committee pointed out, so significant is the need to limit the scope of what is to be covered by regulations—not only with regard to Schedule 1 and provisions to be extended as the Secretary of State may decide—that I believe that we should return to this matter and express our clear view to ensure that the provisions which the Select Committee required are, indeed, in the Bill when it goes to another place. That is my view. It will be for others to decide whether that would be an appropriate course in the circumstances. However, it seems to me that if we do not exercise our role as Parliament in holding the Government to account on this matter, we are yet again ceding powers to the Government and losing powers for Parliament.
I return to my first point. Why did Ministers ever allow a Bill in such a form to come before the House? Even at the very first stage, after the publication of the Select Committee's report and after Second Reading, 469 the Government have found it necessary to table two substantial amendments. One rejoices at the sinner that repenteth, but how did the Government ever get to this stage in the first place?
Those of us who have had the honour and privilege to serve in government realise that most of one's advisers in the Civil Service will always want the widest power of delegation and, where possible, sub-delegation. Every department tries to persuade its Ministers that it would be appropriate to have the fewest limitations on the scope of regulations and the minimum use of the affirmative resolution procedure. I have no doubt that the Minister will, if he wishes, be able to show convincing briefing explaining why such provisions are crucial to achieving the Bill's objectives. Such briefing always ends, "My Lords, the Bill's objectives are very widely shared by all parties and therefore there should be no fuss". Well, there is a fuss and hope that the noble Lord, Lord Whitty, recognises that.
I hope that Ministers in the present government will emulate those who, in the previous government used to say to officials, "Look, I don't think that Parliament will accept this. Go away and think again", or, "We'll certainly find it very difficult to get this through Parliament. Is there no other way of doing it?", or, as I have said, as officials will confirm, "Do you really expect me to stand up in the House and try to justify what you are asking me to do because I won't?". That knocks them back--and they then produce provisions that are a good deal more sensible.
The Minister owes the Committee an explanation of how he imagined that he and his colleagues could ever get away with this. At the end of today, the Bill will contain some useful amendments. However, they will not be nearly enough and we must pursue the rest of the Select Committee's objectives with vigour and perseverance.
§ Lord Peyton of Yeovil
I have tabled two amendments which fall within this group, and before referring to them briefly I should like to repeat paragraph 6 of the Select Committee's report because I do not think that I have ever seen its like. It states:We are bound to report to the House that as at present drafted this is a 'skeleton' bill and so is an inappropriate delegation of secondary powers".I am sure that the very last thing in the minds of members of the Select Committee was that they had discovered something new. If I interpret their minds correctly, members of the Select Committee were profoundly shocked at a piece of audacity which was without parallel and for which I can see no cogent excuse.
Perhaps I may make a few other points. First, although my understanding of this is extremely hazy, we understand that the Government have undergone some sort of conversion. In charity, one must always salute and welcome such surprising events with gratitude and thanks. However, as my noble friend Lord Jenkin said, I hope that we shall soon see the evidence that this is not merely a superficial device, but a real conversion and that the Government are determined not to 470 perpetrate such awful offences in the future and that they will do something serious and fundamental to amend the Bill; otherwise one must conclude that the measure of conversion so far shown is simply a device with which to fob off Parliament.
This Bill has also made me think—I was unaware of it before—that at the end of each Parliament memory is totally erased. I am not talking about the Minister's memory, but about those who advise him and the parliamentary draftsmen. I have not yet participated in a Parliament—either in the other place or in this House—in which I have not heard people of far greater eloquence than I can manage condemning the abuse of delegated powers.
Will the noble Lord, Lord Whitty, put this point to his advisers? Let us suppose that his advisers had come to me and that I had accepted their instructions and had produced a single-clause Bill, stating, "In order to check, prevent or terminate any supposed pollution, the Secretary of State may make any regulation he thinks fit". That would save a lot of time! However, for the life of me, I cannot see any real distinction between a simple one-clause Bill, such as I drafted then in a matter of seconds, and this Bill, which presumably took the parliamentary draftsmen a little time. I have a simple question, echoing what my noble friend has just said. It is a very simple question indeed—I do not want to interrupt my noble friend's communications because I am sure that they are very much more important than anything that I have to say—and I repeat it: why did the Government produce a Bill of such length? I can assume only that it was to offer some sort of disguise.
My next question relates to my point about memory. I simply cannot believe that somewhere in the building in which the noble Lord, Lord Whitty, works, there is not someone with some fragment of memory causing a bell to ring somewhere, urging that person to remind the Minister, "Parliament is a very boring institution and there are some very tiresome people there who will get a bit sick about this sort of thing. They have repeatedly objected to it in the past and they will do so again". This particular measure is one of the more naked breaches of established custom and of what is desirable that I can remember.
I wish to put on the record the words which I do not like, and which my amendments seek to remove from the Bill. The only way that I can do so is to read them out to the Committee. In passing, I hope that this will give not only the Minister but also his advisers and, indeed, the draftsman some cause to blush and feel just a little uncomfortable at what they are seeking to put through.
I turn, first, to Clause 1 (1), which says:The Secretary of State may by regulations make provision—(b) otherwise for or in connection with the prevention or control of any such pollution".That is bad enough, but my Amendment No. 10 proposes to delete lines 28 and 29 on page 1 of the Bill under Clause 1 (4) (a) (i). The subsection says:(4) Regulations under this section may—(a) make provision—(i) for anything that could be provided for by the regulations to be determined under the regulations".471 What the draftsman was saying—and I am sure that he was just obeying his instructions—is, "Just in case we've missed anything out and just in case we've given those idiots in Parliament a chance to criticise this legislation and put in something which we had not expected, let us have a good sweep-up sentence". There it is: it is both ugly and offensive.
I shall not go into the detail of the Minister's amendments, which I am sure are very well meant; indeed, we are to have a degree of consultation. However, that is not a lot of comfort. I hope that the Minister will take this Bill away. I also hope that he does not return with little tiny amendments; but that he will show real regard for the total condemnation dished out by the Select Committee of this House. Anything short of that will be tantamount to saying, "Well, the House of Lords won't give us much trouble, and, as for the House of Commons, we know how to handle them. We have a huge majority and a very powerful party Whip. They will do as they always do: what they are told".
I do not believe that I have ever seen a Bill which shows more manifestly a deep and profound contempt for Parliament. I acquit the Minister of any of this nastiness, but I hope that he will accept it as his duty as regards the constitution to take effective measures either to rewrite the Bill or so drastically to amend it that neither its parents nor anyone else who had anything to do with its conception will eventually be able to recognise it.
§ 3.30 p.m.
§ Baroness Hamwee
It is perhaps a pity that we are not able to start the debate this afternoon by discussing the Minister's amendments which, to my mind, deal most interestingly not only with the parliamentary processes but also with the processes of consultation with interested parties. Speaking only for myself, I suspect that the latter will have far more to contribute to the technical matters with which the Bill deals than I can possibly do.
As has been said, the Select Committee's report is damning. Although I shall not spend very long in commenting on it, I do not in any way discount the significance of the report. One aspect of it which interests me, although I realise that it is outside the ambit of this afternoon's discussion, is how this Chamber can contribute to parliamentary scrutiny and generally to debate of what our society needs. It is a very good model for what this Chamber might do in the future. However, as I said, that is outside the debate this afternoon. Nevertheless, I have to add that I cannot help recalling why the committee was formed in the first place. We do not have amendments about pots and kettles on the Marshalled List this afternoon, so I shall not go any further into the matter. But I am sure that other noble Lords will also have recollections of why it has been so important to have this Select Committee in place to comment on the inappropriate attempts at grabbing power of which any government must be capable.
472 However, at this point we are debating a number of amendments tabled in the name of the Conservative Front Bench. Interesting though those amendments are, I am concerned that they do not in my view achieve the balance of environmental protection, certainty for business and industry and constitutional propriety with which this little Bill has to grapple. I shall comment on just one matter; namely, the use of the word "significant".
Amendment No. 2 proposes that the Bill's powers should extend to "significant activities", while Amendment No. 4 provides that the word "significant" should have,such meaning as the Secretary of State may by order prescribe".I believe that that would lead us into even further difficulties than those that we face at present. It is important for us to concentrate on the activity. There will of course be degrees of activity; in other words, it is not the adjective which is important, it is the subject itself which is central to the issue.
I shall not detain Members of the Committee for long at this point. I look forward to analysing the Minister's amendments to see how they can best improve the problem that we are all facing—
§ Lord Jenkin of Roding
Before the noble Baroness sits down, I wonder whether she recognises that this group of amendments deals with Schedule 1 and the scope of the Bill's activities. The Minister's amendments, with which we shall deal later, deal in the first instance with consultation and in the second instance with the procedures for delegated legislation. Therefore, it seems to me that it is quite a sensible division to have an initial debate about the scope of the legislation and separate debates later about other matters.
§ Baroness Hamwee
Of course I recognise the differences involved. However, it seems to me that one of the difficulties is the scope of the Bill. Indeed, that is central to how the whole matter is approached. For example—just to take one point—when dealing with a schedule to primary legislation or, as it may be, with secondary legislation which is subject to an affirmative resolution, I just wonder how one deals with the precise processes in an age of considerable and fast-moving technological advance. I am not happy with leaving on one side a whole area of activity and not spelling it out, but I do recognise the difficulty of achieving the balance to which I referred.
The Government have got themselves and Parliament into a very unfortunate position by putting forward this Bill. It has for centuries been a part of the sovereignty of Parliament that, when passing Acts of Parliament, we state the principles in the clauses of the legislation and then, if there are any details which require direct parliamentary approval so that the Bill can effectively be put into operation, they are put into schedules.
However, power given to Ministers and, in effect, to civil servants (for whom Ministers are responsible) to make subordinate legislation has, by tradition, been left 473 in a way which does not interfere with the sovereignty of Parliament and does not in any way run the risk of conflicting with the broad intentions of Parliament as stated in the clauses and schedules. But here we have a Bill which offends against all the constitutional certainty upon which in our parliamentary democracy the people are entitled to rely so that they can make sure that their representatives in another place, with the help of your Lordships who have the power to ask another place and the Government to think again, really have exercised the sovereignty which the people have given to them.
Here we have a Bill in which quite frankly the intentions are obscure, as is pointed out by the Delegated Powers Committee. Personally, I would have preferred to see this Bill totally recommitted so that the Government could think again in the light of what my noble friends have said. I fully agree with the amendments moved by my noble friend Lord Peyton to the extent that they make a modest improvement in the Bill arid to some extent bring it within the ambit of what the Delegated Powers Committee would prefer. However, I must say I would have preferred to see this Bill completely redrafted. One knows the Government's desire to put this very important matter forward in a way that will enable the Welsh Assembly and the Scottish executive to deal with it. However, I really think in view of what has been said, and in view of the inadequacy of the Bill, that the Government should do what I have said. I shall, of course, listen to what the noble Lord has to say in reply to these amendments, but I hope that he will be as accommodating as he possibly can.
§ The Countess of Mar
In the absence of any support or criticism from this side of the Chamber, while I do not align myself with his party I ask the noble Lord to listen carefully to what has been said by the Benches opposite. I think that they and the scrutiny committee have highlighted some large defects in this Bill. I tend to agree with the noble Lord, Lord Renton, that the Bill should be taken back and rewritten.
I hesitated to rise earlier because I was hoping that someone would appear from the Government Benches. In my day as a Minister civil servants treated this Chamber with respect because they knew that on my Back Benches I had the likes of the noble Lord, Lord Peyton of Yeovil, who would give me a great deal of trouble if I started trespassing in the way suggested in this Bill. I am astonished that the Benches opposite, which throughout this debate have held some distinguished Members, do not find themselves moved in the cause of liberty of the citizen or the rights of Parliament to make any comment on this extraordinary Bill.
I merely want to add one note to what has been much better said, principally, by my noble friends, and that is to draw attention to the extraordinary width of what we are dealing with in tits Bill. The definition of pollution is not included in this Bill. I take it to mean something which in earth. water or air is out of place. But that, apparently can include too much carbon dioxide. Carbon dioxide is a perfectly natural constituent of the air, so it can mean anything which alters in some minor way the 474 balance we would expect to find in the air, in the water or in the earth. As such, as defined in this Bill, it would seem to me to stretch to cover such matters as planning, because clearly if you put a building on the earth you are polluting it or potentially polluting it. It would include breathing as one is clearly putting pollutants into the air by breathing. It would include any emission of light. It would include radio waves. It certainly specifically includes radio waves, from what is written here, and that would mean governing the entire matter of cellular telephones, emissions from power lines and any other matters which the Department of Trade and Industry may feel it has governance over. It would include cows' flatulence, which as the Minister knows is a major source of methane; perhaps the major source of methane as a greenhouse gas on this planet. It would include smoking; this is an anti-smoking Bill we have here. It would give the Minister power to ban smoking on the ground that it causes pollution. It would certainly include talking. There is a great deal of pollution in this Chamber alone from that. It would extend to cover my presence here which many Members opposite consider to be an extreme form of pollution!
§ 3.45 p.m.
§ Lord De Ramsey
I should like to comment on the amendments which have been spoken to by my noble friends Lord Dixon-Smith, Lord Jenkin and Lord Peyton, concerning the width of powers conferred by the Bill. First, however, I must declare an interest. I have been the chairman of the Environment Agency of England and Wales since its formation in 1995. This agency will be responsible for much of the regulation foreseen by the Bill. My observations are based on my experiences during this time.
The amendments take into account the points raised by the Select Committee on Delegated Powers and Deregulation. Under these circumstances I can quite understand probing amendments being put forward. None of us wish to see regulations made under the powers of this Bill which go beyond legitimate environmental protection. However, I see no dark motives in the Bill before us, and I welcome the purpose behind it. First, the Bill is to provide a sound legislative platform for the implementation of the European Community's directive on integrated pollution prevention and control—or IPPC, which is yet another acronym to try to remember. This directive was negotiated by the previous government and is modelled to a large degree on the British system of integrated pollution control, or IPC, which was also introduced by that government. It is an example of Britain leading the way in pollution control in Europe. In fact we are in danger of becoming the clean man of Europe.
The powers provided in the Bill should enable Britain to maintain this lead by implementing the directive effectively. Needless to say the agency is fully behind this. For example, a quarter of the team in the European Community's IPPC bureau, which is producing the reference documents for the whole European Union, is seconded from the Environment Agency of England and Wales. It is a good example of how to ensure we get the best out of EU legislation instead of standing 475 ineffectually on the sidelines booing or the touchline. Equally importantly, the Bill will allow all processes presently regulated under IPC, not just those covered by the new directive, to be regulated under the one system. The Environment Agency and, I might add, the overwhelming majority of respondents to government consultation, support this wholeheartedly. It will produce a clear regulatory system which will improve the efficiency of our domestic pollution control arrangements and make them easier to understand. Without the flexibility provided by the Bill we would end up with a fragmented regime of two slightly different systems. This would be a "dog's breakfast", as the noble Lord, Lord Whitty, so succinctly put it during the Second Reading of the Bill. This must be avoided.
We need a regime which is powerful yet flexible enough to take account of many factors together, ranging from the broad goal of sustainable development, through to the pursuit of detailed environmental quality standards, such as those set by the national air quality strategy. The Pollution Prevention and Control Bill must provide the means to achieve this. The UK system of IPC has brought about a significant advance in the way that much of British industry thinks about pollution control, seeing it now as part of its business, not something added on as an afterthought. It is based on the sound principle that if waste is minimised at source, there is less waste to pollute the environment. Equally, saving waste and energy is never bad for business. However, we cannot rest on our laurels. The new system of IPPC is the next stage in this evolving process. It offers advantages over the present regime, as it deals with energy efficiency, noise and site protection.
As noble Lords know, the details of the directive will be brought into operation by regulations made under powers provided by the Bill. The Government have been open about their intentions here. They have published two consultation papers asking for comments on their plans for IPPC. We now have a third, as we have already heard, which explains how the Government intend to use the powers in the Bill and ask for comments on the remaining issues involved, including the content of draft regulations which might be made under the Bill. A further consultation paper is promised in the spring.
This Bill provides a sound foundation for protecting our environment in the future. It will make sure that we can benefit to the full from the European Community's IPPC directive by providing for a sound system of regulation that is efficient and easy to understand. But, at the same time, it will also provide a flexibility for the system to respond to and work alongside other important developments. As we consider these amendments, it is essential that we retain sufficient flexibility in the Bill to allow us to meet the environmental challenges that are undoubtedly ahead of us.
§ Lord Whitty
First, I echo the words of the noble Lord, Lord Dixon-Smith, and regret very much that the noble Baroness, Lady Byford, cannot be with us for tragic reasons. The good wishes of all sides of the House go to her.
476 As to the debate, it is somewhat at odds with the Second Reading debate when, in general terms, the objectives of the Bill were well received on all sides of the House. The idea that we should have a comprehensive and systematic approach to all aspects of pollution control was broadly accepted. We are now talking about the means of implementing the Bill. The idea that we need to go back to the drawing board and redraft the entire Bill completely misses the objectives of the Bill, to which all parties in the House were committed.
I obviously recognise and respect the views of the Select Committee on Delegated Powers and Deregulation. It has given us something to think about. We have thought about parts of it—and amendments will come later this afternoon which deal with that. There are other parts which we will need to consider further, and we will also need to consider the remarks of noble Lords. I hope that we will allay most of the anxieties at a later stage.
As the noble Baroness, Lady Hamwee, has already indicated, the slightly Byzantine way in which we reach groupings—and I am not complaining; it usually benefits me—means that there are no government amendments in the first grouping. Therefore, strictly speaking I could not participate earlier in the debate. I would have preferred to have responded to the totality of the views of the Select Committee prior to noble Lords making their views known. With the leave of the Committee, I will do that now.
In its report, the committee invited the House to consider, in particular, whether to limit regulations under the Bill to matters listed in Schedule 1, and whether to limit the ambit of power which might be sub-delegated and the category of person to whom it might be sub-delegated.
First, I shall deal with the scope of the Secretary of State's powers to make regulations, which is the crux of this clause. Those issues are also the subject of Amendments Nos. 1 to 5 in this group. I reiterate what the noble Lord, Lord De Ramsey, has just said about the genesis of this legislation. Contrary to what the noble Lord, Lord Peyton of Yeovil, has suggested, the scope of the Bill is not to confuse but to clarify. We were bound to introduce a new regulatory system which meets the requirements of the EC directive, agreed by the previous government, on integrated pollution prevention and control. Although in normal circumstances one could argue that that directive could have been implemented under the European Communities Act 1972—which of course, whatever one thinks of that procedure, would have meant rather less parliamentary accountability than we are proposing under this Bill—if we had done that, it would have meant that the new system arriving from Europe would be operating alongside and over-lapping our current system of integrated pollution control, our local authority administrated local air pollution control and waste management licensing. The noble Lord, Lord De Ramsey, reminded me that I had described that as a potential dog's breakfast. It would lead to bureaucratic confusion. At the very least, the Committee should recognise that the government objective is to 477 provide a coherent, systematic and understandable system, given that the directive requires us to introduce the new system this year.
The genesis is that we were aiming to ensure a consistent and flexible system applied across the board. That requires that sufficient powers must be delegated to enable the new regulations to be applied and adapted in a coherent way, not only to those activities under the directive, but also to those which fall outside the directive and are currently covered by the existing UK regime.
In so far as Clause 1 allows for any polluting activity—I will not go into great detail about the definition of "pollution"—the whole approach is not dissimilar to the powers on pollution provided under Section 2 of the Environment Protection Act, which the Bill replaces. We are using very similar language to that used in the legislation introduced by the previous government.
Amendments Nos. 2 and 4 deal with significant pollution activities, to which the noble Baroness, Lady Hamwee, has already referred. If we were to go down that route, I fear that Amendments Nos. 2 and 4 would not be compatible with the EU directive. We would therefore fail in our ability to transpose that directive. The directive must apply to all the installations listed in its annex, whether or not those installations discharge significant pollution, however defined. I can reassure the Committee that we have no intention of applying pollution controls to installations with trivial emissions, any more than is required by the directive. We have proposed in the draft regulations to retain a test of triviality for those installations to which the directive does not apply.
To obtain a proper view of the powers proposed in Clause 1, taken together with Schedule 1, it is quite common practice—certainly in a number of pieces of legislation, in this field and others, produced by the previous government—to set out a general enabling power, followed by a without prejudice list of specific powers, as we have done in Schedule 1.
This all started with the Clean Air Act 1956. I mention that not because I was a junior Minister helping to pilot it but because it laid the foundation of our attempts ever since to prevent pollution, especially in our large towns and cities. It was very necessary legislation because of the smogs that were killing cattle and people. But that did not merely state intentions for Ministers to fulfil; if the Minister looks at that Act he will find that Parliament directed immediately what Ministers should do.
§ Lord Whitty
I will consult the context of that particular piece of legislation. However, I was relying in my remarks on slightly more recent pieces of legislation which relate to environmental pollution and other matters, where very wide, specific powers, and the ability to delegate such powers, are specified. We are not creating an enormously new precedent in this field.
Having said that, I recognise what noble Lords have said this afternoon and what lies behind the concerns of the Select Committee--that basically the powers that 478 can be delegated should only be delegated for matters specified on the face of the Bill. I am considering how to come forward at Report stage with government amendments to limit the powers of the Bill to matters which are listed in Schedule 1. Having said that, it must be remembered that the drafting of Schedule 1 was not originally made for that purpose. At that point it was not meant to be an exhaustive list but an indicative one. In order to ensure that the coherence of the new system is maintained, I will require by Report stage to make some consequential amendments to Schedule 1 to ensure that it is a comprehensive list, as recommended by the Select Committee and several noble Lords this afternoon.
I hope the Committee will recognise the sincerity of our intention in that respect. I believe that some of the more hostile remarks made this afternoon will be, in part at least, ameliorated when we come forward at the next stage of the Bill, with general consent, with a proposition along those lines.
§ 4 p.m.
§ Lord Simon of Glaisdale
If that is the noble Lord's intention, can he say why he has not tabled the amendments at this stage, which is the proper time?
§ Lord Whitty
The nature of the Bill has involved substantial consultation on regulations. We promised that at Second Reading. We have circulated those draft regulations. We have as yet not fully taken on board the results of that consultation, which may itself impact on the former Schedule 1. There are a number of aspects, to which no doubt noble Lords will refer at later stages of the debate, which likewise could impact on Schedule 1. If we were to make the change to the clause without altering Schedule 1 we would be subject to greater criticism if later in the progress of the Bill we were to make subsequent amendments to Schedule 1. I therefore think it is more logical for us to present the totality at a later stage of the Bill.
Amendment No. 6, which stands in the name of the noble Lord, Lord Peyton of Yeovil, would delete certain words from the Bill which make it clear that it may apply to installations which deal solely with waste management—municipal waste incinerators, landfill sites or those sites which dispose of hazardous waste. We have a legal obligation to include them in the new regime. Therefore, were the noble Lord to press his amendment it would be contrary to the intentions of the EU directive, so I ask him to consider withdrawing his amendment.
Perhaps I may go a little further on the issue of sub-delegation and the subjects raised by Amendments Nos. 10 and 11. As noble Lords have indicated, the new system needs to be applied to a wide variety of installations and activities. That ranges from oil refineries to soft drinks' makers. It is important, therefore, that the regulatory system has some flexibility to be specific, appropriate and, above all, fair in differing circumstances so that it can be enforced efficiently and by the appropriate bodies with the understanding of the sectors concerned.
§ Lord Jenkin of Roding
I am grateful to the noble Lord for giving way. He will remember that at the 479 beginning of his speech he referred to the recommendations of the Select Committee. The second of those recommendations, in paragraph 7, concerned whether there should be a clear indication of the ambit of powers which may be delegated. The noble Lord said "sub-delegated". I wonder whether he was interpreting that recommendation of the Select Committee as being directed towards the issue of sub-delegation or whether, in dealing with Amendments Nos. 10, 11 and 12, that is the subject to which he is now addressing himself. Does he think that that is what the Select Committee recommended?
§ Lord Whitty
If I said "sub-delegated" earlier, I recognise the view of the Select Committee on delegation and sub-delegation. What I am addressing now is both the ability to sub-delegate and the nomination of the bodies to which one should sub-delegate, which indeed is the subject of Amendments Nos. 10, 11 and 12.
Two of the essential ingredients of achieving a fair and effective regulatory system are, first, consistency of approach and, secondly, flexibility of application. It is the responsibility of government to ensure the former by establishing and maintaining a clear framework at the national level, which is the intention of the Bill. But to apply that to specific circumstances requires a degree of professional judgment. technical expertise and local knowledge, which noble Lords tend to advocate in these circumstances and which I think is rightly advocated in relation to the powers envisaged in the Bill.
Hence the power to sub-delegate responsibility is crucial and would allow, for example, conditions implementing the regulations to be determined by those best placed to do so. It is quite clear what the Government's intentions under these sub-delegation powers are. For land-based installations, the appropriate body would be the Environment Agency and local authorities in England and Wales and the Scottish Environment Protection Agency in Scotland. Off-shore, it would be the responsibility of the Department of Trade and Industry.
In the absence of such a provision on sub-delegation, emission limit values would have to be set in stone in the regulations themselves with no room for sensible case-by-case discretion. Another perhaps trivial example arises in relation to application forms. We could prescribe forms under the regulations but it is possible that different forms may be appropriate for different types of installations and sites. If no sub-delegation were allowed, we would lose the power to enable the Environment Agency, for example, to draw up specially tailored standard forms in discussions with sectors of industry.
I can assure the Committee that it is the Government's intention that only those powers which are best determined by the regulators should be sub-delegated and only to those best placed to make those decisions. However, if we were to delete the general delegation power, there is a clear danger that if 480 the Bill failed to specify absolutely all the cases where sub-delegation was sensible regulators would be left with no scope for exercising their judgment.
In relation to general delegation and the scope of the regulation-making power of the Secretary of State, I simply repeat my previous contention that, although we will take into account the views of the Select Committee and the views expressed by noble Lords today, we are doing nothing particularly new. I refer, for example, to the Environment Act 1995, where a similar form of words is used in order to allow some degree of flexibility in coverage and scope of regulations. A section of that Act dealing with a sub-delegation provision indicates that provision for anything may be prescribed by the regulations, to be determined under the regulations, and for anything falling to be so determined to be determined by such persons in accordance with such procedure and by reference to such matters and to the opinion of such persons as may be prescribed in regulations. Although we have a slightly more succinct form of words, nevertheless the principle of such general delegation of regulation-making power has existed in previous legislation under previous governments and has, by and large, met with the approval of this House and of Parliament as a whole.
We are not doing anything quite as radical and as dismissive of the responsibilities and rights of this House and of Parliament in general as has been suggested today. In so far as we accept that problems have been referred to and anxieties have been aroused by our proposals, we will by subsequent amendments and by our commitment to look at Report stage at some of these aspects have shown that we are sensitive to these requirements. I should like to end my remarks by repeating that the objectives of the Bill as a whole were widely approved of by this House, that the requirements under European legislation make it necessary for us to provide wide powers and that the requirements of making the Bill understandable to industry and consumers require us to put in a consistent system of regulation. We are doing all of those things. I believe that we can do so with a system of accountability to Parliament that will meet your Lordships' objections.
§ Lord Peyton of Yeovil
The noble Lord asked me whether I would be willing to withdraw my amendment. It has always been my ambition to give Ministers pleasure and I can assure him that on this occasion I shall not press my amendment to a Division. However, I beg him to understand that in nothing that I said is there any objection in principle to what is in the Bill. The purpose of the Bill is unchallenged. We all want to deal with pollution. The worry is that not all of us share the respect and total faith that junior Ministers and their officials have to show in Ministers of State. Secretaries of State are human.
§ Lord Peyton of Yeovil
I know that is a generous thing to say. Being human, they are exceedingly subject to error. We are putting on the face of the Bill powers 481 not merely for the present Secretary of State—who may be a marvellous person and I say nothing against him—but all future Secretaries of State who may deal with the problem. The Minister did not answer my point. Why not have a one-clause Bill empowering the Secretary of State to make any regulations concerning pollution that he sees fit? That would achieve the same. That is our objection, and I hope that the Minister is clear.
§ 4.15 p.m.
The Minister referred several times to the need to comply with the European Union directive, which is made abundantly clear in the explanatory notes. However, by the method used there is no compliance. The first line of Clause I states:The Secretary of State may"—not must—by regulations make provisionand then mentions several matters. The Minister cannot claim that is compliance.
§ Lord Simon of Glaisdale
The Minister always puts his case for the delegated power most attractively—but not today. Of the noble Lords proposing the amendments one is a former Secretary of State and the other a departmental head, speaking with exceptional authority. The Minister says that the Bill has wide approval. So it has in the sense that we all deplore pollution and want it effectively controlled. That is not the question. The issue is whether we should proceed to that objective by the normal parliamentary principle of an Act of Parliament or revert to executive government by decree. I say "revert" because at one time in our history--under the Stuarts—that was the mode of legislation.
A few years ago we celebrated with acclaim what is called the Glorious Revolution, which asserted parliamentary government as opposed to executive government by executive decree. Not for the first time, we are reverting to that. During the 1920s and early 1930s, we saw the growth of government by decree. That aroused considerable apprehension. That was perfectly natural because, as Alton said, power tends to corrupt. The first corruption is the quest for greater power. Bureaucracies are particularly prone to that, as we are seeing today.
The growth of executive decree in the 1920s and early 1930s led to the Donoughmore-Scott report, which placed some hindrance on what had been happening before. Governments became much more cautious—I say governments because I am not speaking of one party--about arrogating to themselves the right to government by executive decree.
In the 1940s, there was again a surge forward of bureaucratic government by decree. The Franks Committee was established to deal with it and again there was hesitation as a result.
This is not the only Bill in question. The Access to Justice Bill has also been subject to extremely strong criticism by the Select Committee on Delegated Powers and Deregulation. My noble and learned friend took note, however belatedly, and recently there were extensive amendments reinstating parliamentary control 482 in place of virtually uncontrolled bureaucratic decree. Those responsible for the Bill now being discussed have not learnt that lesson. The Minister indicates that he will make certain concessions by amendment on Report. But this is far too important a constitutional moment to allow that. The only proper course is for the Minister to assert his undoubted authority as the Minister in charge, withdraw the Bill, and present it again in a form that he concedes would be more acceptable.
If the Minister does not do that, the propel- course would be to carry the widest amendments. We can see then what the Government propose in their place. This matter is of profound constitutional importance. Are we to surrender on such a matter parliamentary government to bureaucratic government by decree? Nothing in the European legislation compels us to proceed that way and we should not do so.
§ Lord Shepherd
The noble and learned Lord, Lord Simon of Glaisdale, has made that speech on numerous occasions and it has, by and large, been supported by the House. I was one of the original members of the Select Committee on Delegated Powers and Deregulation. I am delighted that under its present chairman—the noble Lord, Lord Alexander of Weedon—it has the same virility and perspicacity in looking at matters of parliamentary importance, particularly the way Bills are drafted.
I, too, have been rather anxious during my years in this House about the degree in which delegated powers have been sought. One has to recognise, too, that legislation has become infinitely more complicated than it was in my early days. Therefore, given the manner in which the provisions are used, it clearly becomes more useful, and at the end of the day more under the control of Parliament, if it is done by delegated legislation.
Delegated legislation is, and always has been, a problem for this place but not for another place. If Ministers take and use powers that are unacceptable, it is for Parliament to say: no, we shall not pass the legislation. The noble and learned Lord, Lord Simon of Glaisdale, suggests that this matter should be taken away for consideration. I suggest that there is another approach. The Minister made some graceful noises as to the sympathy that the Government have, particularly in regard to the report of the Delegated Powers and Deregulation Committee.
The noble and learned Lord was rather angry that the Minister had not produced amendments. Although I do not see him in his place, I remember my old friend, the noble Lord, Lord Short, when he was Lord President and I served under him on the Cabinet Committee that dealt with legislation. The Lord President was grumbling mightily about the delay in the presentation of a certain Bill. I was rather surprised at the way in which the parliamentary draftsman retorted to the Lord President, who is someone of distinction, "Well, Lord President, it is very simple. If you want the Bill now you can have it, and it will be a bad Bill. If you want a good Bill, you have to wait for it". If the Government had wished to respond in that way on what is a technical and difficult matter, clearly they could not have done so between Second Reading and Committee.
483 I suggest that we should simply allow this matter to proceed. This has been a useful debate. I make one suggestion to the Committee and to the Minister. The Bill has only just begun its passage. I am sure it will receive a great deal of further examination both here and in another place. Perhaps we could do some useful work, and not only in pursuing these matters in this Chamber. If the Minister were willing, let us say, to see the chairman of the Delegated Powers and Deregulation Committee and Members of this House to have a broad discussion as to the Bill's drafting, to see whether it can meet the parliamentary requirements, that would be far better than voting the Bill down and in effect destroying it, then having to start again and introduce a new Bill, possibly with the same problems. I suggest that we resist the temptation placed before us by the noble and learned Lord, Lord Simon of Glaisdale, and that we proceed, on the understanding that if the Minister is willing he will invite the noble Lord, Lord Alexander of Weedon, and other Members who may wish to discuss the matter with him to see whether the problem can be resolved off the Floor of the House.
Before the noble Lord sits down, at what stage does he suggest that the discussion between the Minister and the noble Lord, Lord Alexander of Weedon, should take place?
§ Lord Dixon-Smith
When I introduced this first group of amendments, little did I expect to stir up such a hornets' nest. We have had a good and instructive debate, from which I suspect all of us have lessons to learn.
I hope that I can give the Minister one small reassurance. It was not the intention of any of us on this side of the Chamber to force the withdrawal of the Bill. It was rather to seek to amend it in the light of the Select Committee's report and to put it into an acceptable form. That intention remains.
However, the fact of the Select Committee's report was bound to change the tenor of the discussion. It could not be helped. The Select Committee could not report until the Bill had received a Second Reading, and its report is strongly critical. We now have the Minister's assurance that he will consider what further amendments he needs to bring forward in an attempt to make the Bill more compliant with the Select Committee's criticism that, as presently drafted, it takes too much away from the proper supervision of Parliament. That is the lesson that we need to learn from this debate.
That said, I am happy to await the next stage of the Bill and see what amendments the noble Lord brings forward in this regard. I beg leave to—
Before the amendment is withdrawn, several points were put to the Minister by my noble friend Lord Peyton and myself on the question of non-compliance with the European Community 484 directive on which it seemed the Minister was about to reply. I hope that, before my noble friend withdraws his amendment, we may hear that reply.
§ Lord Simon of Glaisdale
I agree. We have heard the important suggestion by a former Leader of the House, the noble Lord, Lord Shepherd, that discussions should now take place between the Government and the Joint Select Committee. It would be helpful to hear the Minister's reaction before we take any decision about the withdrawal of the amendment.
§ Lord Whitty
I normally try to avoid extending the flexibility of Committee stage too far. However, I believe the Committee deserves an intervention before the noble Lord withdraws his amendment.
First, I wish to thank my noble friend Lord Shepherd for making those suggestions. I had been open to discussions with noble Lords prior to this stage of the Bill. I should be happy to discuss with the noble Lord, Lord Alexander, or others how best we can meet the anxieties raised by the Select Committee and others. Perhaps I presume too much; the Select Committee reports to the House and does not negotiate with Ministers. We therefore must observe the proprieties. Nevertheless, I am happy to have those discussions, preserving the role of the House in this respect.
In response to the noble Lord, Lord Peyton, I do not think that it is extending government policy too far to say that we recognise that Secretaries of State, past and present, are human; and that we therefore recognise that Parliament has the right, indeed the responsibility, to place some constraints on what they can do. Prior to this debate I believed that we were making some provisions for ensuring that Parliament had a say through introducing an affirmative procedure for a large number of the key regulations. I have also given a firm commitment to bring forward an amendment on Report. I hope to reassure the House that we intend to take on board the views of both the Select Committee and your Lordships on these matters.
I do not wish to reply in great detail to other noble Lords. While some of these anxieties have been slightly exaggerated, they nevertheless represent a real constitutional concern. There is an obligation on the Government to take note of that concern. We shall take note, both in the continuing debates today and at Report stage. I hope that we can meet as many of those anxieties as possible.
In response to the point made by the noble Lord, Lord Renton, as to whether we are complying with the European directive in introducing the Bill, as is normal in these circumstances the ability of the Secretary of State to make regulations with the term "may" provides a means for complying. The regulations themselves will be the form of compliance with those directives, as I believe is the case in other such circumstances.
In presenting this Bill, we had no intention of taking away the role of Parliament. Our intention was, as distinct from simple transposition of a European directive, to provide both Parliament and, equally important, industry with a systematic regime which had 485 consistency, fairness and comprehensibility across the board. I hope that by the time the Bill has completed its passage in this House, and certainly by the time it has completed all its parliamentary stages, that intention will be fulfilled. In the meantime, I assure the Committee that I shall consider all the points made by Members during the debate.
§ Lord Ampthill
The Minister has indicated that he will table a substantial number of amendments at Report stage. Is he prepared to contemplate a recommitment of those amendments?
§ Lord Harris of Greenwich
Before the Minister responds to that question, perhaps I may say that I believe that he has responded in a very positive way to the concerns that have been expressed in this Chamber. I am concerned with the timetable for the tabling of amendments by the noble Lord before Report stage. Will he ensure that he gives us a reasonable amount of time between the day on which he tables those amendments and the date of the Report stage?
§ Lord Whitty
As the Committee will know, that is not primarily a matter for me. However, I shall use my best endeavours to ensure that that happens. Were that to be the case, I do not believe that there would be a need for recommitment. That option has to be borne in mind, but I hope that we can proceed as intended, with due notice of all such amendments.
§ Lord Dixon-Smith
I apologise to any Members whom I got ahead of in not permitting the Minister to respond to the points which they had raised. I hope that they will put it down to the fact that I am surprised to find myself here this afternoon and also to the fact that we are on somewhat unusual ground which, fortunately, is rarely covered. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.
§ Baroness Farrington of Ribbleton
My Lords, before the House moves to the Statement, I should like to remind noble Lords that questions to the Minister should take the form of a brief question or comment and that noble Lords who speak at length do so at the expense of other noble Lords.