§ 8.15 p.m.
§ Report received.
§ The Parliamentary Under-Secretary of State, Department of the Environment Transport and the Regions (Lord Whitty) moved Amendment No.1:
§ Before Clause 1, insert the following new clause—
§ GENERAL PURPOSE AND DEFINITIONS
§
(". —(1) The purpose of section 1 is to enable provision to be made for or in connection with—
(2) In this Act— "activities " means activities of any nature, whether—
(3) In the definition of "environmental pollution " in subsection (2),"harm " means—
§ The noble Lord said: My Lords, in moving this amendment, I shall also speak to Amendments Nos.3 and I I, which are closely related.
§ Noble Lords who have followed the progress of this Bill will know that it has changed somewhat during the course of its consideration in this House. During earlier stages of its passage, serious constitutional doubts were raised about its nature and drafting, not least by the Select Committee on Delegated Powers and Deregulation. The committee made a number of 1375 suggestions for limiting the scope of the Bill and safeguarding parliamentary security and control. I therefore tabled a series of amendments which were agreed in Committee to meet those recommendations and which have, by general consent, clearly improved the Bill. They more than meet the specific concerns of the Delegated Powers and Deregulation Committee.
§ Nevertheless, we had a fairly lengthy debate in Committee about whether further changes were necessary to improve the clarity and purpose of the Bill. The noble Lord, Lord Dixon-Smith, tabled an amendment for which a number of noble Lords expressed support. He also proposed an amendment to the Long Title, and the noble and learned Lord, Lord Simon of Glaisdale, favoured that approach. I am happy to inform the House that I propose to move on both fronts in accordance with the wishes of noble Lords in that debate.
§ In the debate, the noble Lord, Lord Dixon-Smith, conceded that his own amendment for a purpose clause might not be sufficiently well drafted. He asked if there were perhaps some other way of shuffling the drafting of the Bill. That is, in practice, what I have done. Amendment No.1 effectively accepts the Bill's purpose and will make that purpose clear from the start rather than moving direct to regulatory powers—with which the noble Lord said that he a psychological problem. Amendment No.1 fully meets the concerns of the noble Lord, Lord Dixon-Smith, on that occasion and that of other noble Lords.
§ I am pleased to say also that, having taken legal advice, as I was not sure at that stage whether we could move in this direction, I am also able to amend the Long Title. That is dealt with in Amendment No.11. So we have both changed the Title and introduced a new purpose clause.
§ I hope the House will agree that these amendments, along with those that we made in Committee, leave the Bill in a much clearer, more properly defined state, and have set in the Bill a proper degree of parliamentary control over the issues that it addresses. I hope that noble Lords will also agree that the constitutional doubts raised at earlier stages have now been met.
§ There was never any disagreement, certainly among the major parties, on the substance of the Bill. We all wanted to see a co-ordinated system of pollution control in this country reflecting both European standards and British practice. I contend that that is what we now have. The purpose clause in Amendment No.1 and the related amendments are important in achieving the aims of noble Lords at previous stages. I beg to move.
§ Lord Pearson of RannochMy Lords, perhaps I may put a couple of questions to the noble Lord the Minister so we can get the answers confirmed at this stage of the proceedings. I ask him to confirm that this Bill is before us only because of EC Directive 96/61. In other words, if that directive had not been issued, would this Bill be with us? I come to my second question, which is perhaps supplementary to the first. Can the noble Lord tell us whether there was anything wrong with the 1376 Environmental Protection Act 1990? Were we dissatisfied with that in any way? Was it not working? Has it been improved by importing this directive as proposed into British law?
§ Lord Dixon-SmithMy Lords, I begin by explaining why my noble friend Lord Jenkin of Roding is not able to be with us. He had a cataract operation today and it was not possible for him to alter that appointment. He is very sorry not to be here. I hope that the House will understand if we return to my noble friend's amendment at Third Reading. I should also explain why my noble friend Lord Renton is not able to attend. When we agreed to hold this particular stage of the Bill at this hour of the night, he was due to attend a legal dinner that he was unable to unload because of his very senior position within the legal profession. Consequently, he too is unable to be with us.
I am grateful to the noble Lord, Lord Whitty, in his capacity as a Minister for persuading his colleagues to bring forward these amendments. We have been pressing for them very hard for a long time. I hope that the noble Lord will not find it too depressing if I say that nothing will make this into a good Bill, but that what he proposes tonight certainly makes it a better Bill and is therefore to be wholly commended. The provisions answer a good many of the points raised by ourselves and Members on other sides of the House.
As to Amendment No.11, delighted as I am to see it, I hope that the Minister has not fallen foul of his advice to us during recommitment. He said then that his advice was that once a Bill has been produced, its Long Title could not be changed unless other amendments so required. My only concern is that in agreeing that the Long Title should be amended, he does not imply that we have completely lost our capacity to amend the Bill further at Third Reading, should it be determined that that is necessary. However, it is perfectly possible that if we do that, it will not create the need further to amend the Long Title. I hope that what I say is not a hostage to fortune.
I welcome these amendments. They are what we have pressed for consistently during the passage of the Bill both in Committee and now on Report. A good deal of the credit for that must go to the Minister for persuading the Government of the merits of the case. I am delighted to see these amendments before the House tonight.
§ Baroness HamweeMy Lords, I too thank the Government for these amendments. I look forward to agreeing Amendment No.1 and, in due course, Amendment No.11—I pick up the point just made by the noble Lord, Lord Dixon-Smith—which reflects our agreement to Amendment No.1. Congratulations are due to the Minister. It is perhaps a pity that the provisions must be framed in this way. I hope that I detect increasing willingness on the part of the Government to accept when matters can be made better and to reflect general agreement particularly on relatively technical measures such as this, which are intended not to undermine policy but simply to improve legislation. We have seen that recently in the way in 1377 which the Government have approached the Rating (Valuation) Bill. I very much welcome what I detect as a commonsense attitude.
Having said that, I have one minor quibble which arises in subsection (3)(e) of the new clause. That imports definitions by reference to the Council directive. I make this point with regard not only to Council directives but also to other legislation. I believe that it is desirable to provide definitions in legislation so that that legislation is self-contained to the greatest possible extent. As this is a fairly technical piece of legislation, I recognise that generally readers will not be leafing through it in an interested way and that the Council directive will be readily available to those who need to know. Nevertheless, it is not a practice that I want encouraged. Apart from that little quibble, I support the amendments.
§ Lord Stoddart of SwindonMy Lords, like previous speakers, I welcome these amendments, if only because now on the face of the Bill—it is a pity that it was not there at the beginning—we know exactly what this piece of legislation is about. Unfortunately, all too often matters European are slipped through without Members of either this House or the other place being perfectly aware of what is happening. As this House is starved of resources, it is extremely difficult for individual Members to be able to understand exactly what is going on, particularly as the flood of legislation, both primary and secondary, continues.
I congratulate my noble friend on tabling this amendment. Does this set a precedent for all other Bills that may very well have a European content, whether they enact regulations or directives? It is important to know the answer to that question.
As it is quite clear that what we are about here is implementing a directive, does it matter whether or not we discuss it? If we make any significant amendments to the directive, will they be lawful under British law? I believe that the directive has been agreed by qualified majority voting and therefore it becomes European law. I must have the confusion in my mind cleared up as to whether, if this House and the other place are not prepared to implement all or part of the directive, that will be lawful under European law.
§ 8.30 p.m.
§ The Duke of MontroseMy Lords, in my inexperienced way, I have been trying to follow this Bill and, like the previous speaker, I am very aware of the lack of resources that one comes across in trying to keep up with everything.
So much of what vie want to know about the Bill will be contained in Statutory Instruments. The Department of the Environment, Transport and the Regions tried to give us some indication in the third consultation paper that came out last December. Another consultation paper was promised this spring, but I have been unable to lay my hands on it. It was also suggested that the final regulations would be out by July 1999. I think the timing has slipped.
1378 One matter leaves me slightly in the dark. Under Schedule 1(1) of the draft statutory regulations, the activities that should be controlled are listed. However, Schedule 1(2) simply states,"Etc ". I do not know how many sections there are after that or how many other areas there are. I would have hoped that by this time some indication would have been given as to what other areas the Government wish to bring under the focus of the Bill.
This amendment talks about harm to human senses. I notice that the text has been imported from the Environmental Protection Act. In the Environmental Protection Act the Government tried to define "harm ". Further on in the 1990 Act, I came across another definition. Under "statutory nuisances ", it refers to activities prejudicial to health and refers to activities which are,
injurious, or likely to cause injury, to health ".It struck me that perhaps that was a useful definition to attach to the question of harm to human health or to human senses, which needs more definition than the Bill presently contains.
§ Lord WhittyMy Lords, I welcome the support and expressions of gratitude that I have heard from some noble Lords. However, I remind the House that from the word "go " we decided, in relation to this particular directive, that we need primary legislation because we want to bring together the effects of the European directive to which the noble Lord, Lord Pearson of Rannoch, referred and British practice. It is true that we would not have this legislation in this form were it not for the directive, but the opportunity of the directive has allowed us to rationalise the British as well as the European aspects of pollution control. The 1990 Act was working reasonably well, but it was not a comprehensive system of pollution control covering both the national and the local authority sides. Also certain sectors were excluded. This is an opportunity to make some major improvements.
My noble friend Lord Stoddart asked whether this is a precedent. It may be a precedent in terms of clarity of primary legislation, but it is not a precedent for the way in which we shall deal with directives in the future, most of which can easily be transposed—I know he does not like it—under the European Communities Act. However, we want to bring together the European and British regimes.
The noble Baroness, Lady Hamwee, raised a query about the definition. Perhaps I should write to her in more detail. The directive uses expressions, but does not define them, so we can simply repeat the definitions in this Bill. It will not be seen as a precedent in other respects.
On the consultation papers mentioned by the noble Duke, the Duke of Montrose, we shall be sticking to the timetable. The final consultation paper will be issued in June and will include the final draft regulations. The other regulations referred to relate specifically to the oil and gas offshore side. Those regulations are also available for consultation about now and have been dealt 1379 with under the auspices of the Department of Trade and Industry, which has consulted widely with the offshore industry.
I am not sure that I can reply immediately to the other points raised by the noble Duke, the Duke of Montrose, but I shall do so in writing. Some points require double-checking against the wording of the 1990 Act. Many of them are repeated in the draft regulations to which he has already referred.
The main point of the changes is to respond to the constitutional questions which were raised at earlier stages. I believe that they do so, and do so fully. I expect that we shall hear again some of the additional points raised in relation to the European dimension before the debate is finished. I commend the amendment to the House.
§ Lord Dixon-SmithMy Lords, before the Minister sits down, perhaps I may ask whether other interested noble Lords can receive copies of the reply to the noble Duke, the Duke of Montrose.
§ Lord WhittyMy Lords, I can certainly confirm that.
§ [Amendment No.2, as an amendment to Amendment No.1, not moved.]
§ On Question, Amendment No.1 agreed to.
§ Clause 1 [Regulation of polluting activities]:
§ Lord Whitty moved Amendment No.3:
§
Page 1, line 8, leave out subsections (2) to (4) and insert—
("() In accordance with subsection (1) of section (General purpose and definitions), the provision which may be made by regulations under this section is provision for or in connection with any of the matters mentioned in paragraphs (a) to (c) of that subsection.")
§ On Question, amendment agreed to.
§ Lord Pearson of Rannoch moved Amendment No.4:
§
Page 2, line 10, at end insert—
("() Regulations under this section shall require individuals or bodies responsible for carrying out such activities as are referred to in the regulations to employ the best available techniques not entailing excessive cost (in this clause referred to as "BATNEEC ") to be used for minimising the pollution which may be caused to the environment as a whole by those activities:
Provided that—
§ The noble Lord said: My Lords, I apologise to the House for entering the fray on this disturbing Bill so late in the day. Perhaps I owe the House an explanation.
1380§ I have to confess that I was not aware of this Bill until the closing stages of the Bill in Committee on Monday 19th April. On that day, I came into the Chamber to listen to the debate on European economic and monetary union which was to follow. My noble friend Lord Jenkin of Roding and my noble friend Lord Renton were clearly doing valiant battle to amend the Bill, but it all seemed rather dense stuff and I did not pay much attention until I heard my noble friend Lord Renton say at col.974 of Hansard that he had been in Parliament for 53 years and that this Bill was the only example he had seen of an Act of Parliament of national and international importance being replaced by regulations. That Act of Parliament was, of course, the Environmental Protection Act 1990.
§ My noble friend then divided the House and lost his amendment which was intended to prevent the Bill from removing the first 28 sections of that Act from the statute book and replacing them with this Bill and its regulation-making powers. Therefore, unfortunately, we cannot bring this amendment back on Report. Indeed, it is unfortunate that my noble friend Lord Renton is unable to be present this evening.
§ I was sufficiently worried by what I had chanced to hear that I went and looked up the history of the Bill. I was deeply shocked by what I discovered. I submit that most Members of your Lordships' House are still not even vaguely aware of what the Government are attempting to do. Although we are at Report stage, I fear that we have to consider a brief history of the Bill so that we can decide whether these amendments, now tabled by the Government, are worth accepting or whether, together with the rest of the Bill, they should quite simply be thrown out at Third Reading.
§ The Bill received a low-key Second Reading on 7th December last, with no Conservative or Labour Peer taking part. This is scarcely surprising, as the true purpose of the Bill, which is to import EC Directive 96/61 into British law, was hidden in line 42 of Schedule 1 on page 6 of that Bill. The Bill's Explanatory Notes do not mention that fact until point 5 on page 2. At Second Reading, only the noble Baronesses, Lady Hamwee and Lady Byford, appeared to have woken up to the Bill's inherently unconstitutional nature. The Bill then went before the Delegated Powers and Deregulation Committee, which on 16th December issued a most damning report on the Bill saying that as drafted it was a "skeleton " Bill and therefore inappropriate for secondary powers.
§
Nevertheless, the Government pressed on with the Committee Stage on 15th February, and got into such trouble from all sides of the House that they were forced to lift the Bill and re-commit it on 19th April, tabling a number of amendments. In the meantime, the Delegated Powers and Deregulation Committee had made a number of further recommendations on 10th March, saying that even if the House accepted the amendments which the Government were then proposing 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 the primary legislation, and not simply left to the exercise of delegated powers
§ The committee concluded somewhat reluctantly that the amendments that the Government proposed to move on 19th April made the Bill just about acceptable. It even accepted the Government's assurances as to how they would deal with one of the Bill's most serious flaws, which is to replace the Environmental Protection Act's criteria for pollution control, being "best available techniques not entailing excessive costs " (BATNEEC), with Directive 96–61's criteria, which are simply "best available techniques " (BAT), which could clearly be vastly more expensive and even ruinous to small and medium sized business.
§ However, my noble friend Lord Jenkin was clearly not quite so satisfied with the Government's assurances as was the Select Committee, because he tabled an amendment at re-commitment on 19th April to bring BATNEEC back into the Bill.
§ I am not sure whether my noble friend is satisfied with the Minister's explanation at COL 967 of the Official Report of 19th April as to why there really is not much difference between BAT and BATNEEC, but I am afraid I am not, which is why I have had the impertinence to retable my noble friend's amendment tonight. I, too, very much regret that he is not here owing to his operation.
§
At col.967 of the Official Report of 19th April the Minister stated;
Paragraph 11 of Article 2 of the directive makes it absolutely clear that cost is a key consideration. It states "—
and I now quote from the directive from which the Minister quoted—
available techniques shall mean those developed on a scale which allows implementat on in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages "'.
§
The Minister then said:
We are therefore not losing the reference to costs which may be behind some of the concerns expressed ".
§ We may not be losing a mere reference to costs, but that is far weaker than to say that pollution must be controlled by methods which do not entail excessive cost, with that requirement placed on the face of the Bill, as it is in Section 7 of the Environmental Protection Act 1990 which this Bill consigns to oblivion together with the remainder of Sections 1 to 28.
§
Furthermore, the Minister did not quote the whole of paragraph 11 of Article 2 of the directive, which I am afraid I should now do. It states:
'Best available techniques' shall mean the most effective and advanced stage in the development of activities and their methods of operation which indicate the practical suitability of particular techniques for providing in principle the basis for emission limit values designed to prevent and. where that is not practicable … to reduce emissions and the impact on the environment as a whole: 'techniques' shall include both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned—.
§
We then come to the part quoted by the Minister, that,
'available' techniques shall mean those developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages ".
§
However, the directive continues:
whether or not the techniques are used or produced inside the Member State in question, as long as they are reasonably accessible to the operator, 'best' shall mean most effective in achieving a high general level of protection of the environment as a whole. In determining the best available techniques, special consideration should be given to items listed in Annexe IV".
§ I shall not trouble your Lordships other than to say that Annex IV is very extensive.
§ I hope that that gives a slightly broader picture of what the directive actually says than the perhaps slightly selective quotation used by the Minister. As I have said, even in the quotation used by the Minister, the directive and the Bill are far weaker than the Environmental Protection Act 1990.
§ As I have said, I am not really sure what the present position of my noble friend Lord Jenkin of Roding is on this matter. I may be wrong—in which case I apologise, especially in his absence—but in any case I mean no offence when I say that I understand my noble friend has been speaking on this Bill so far on behalf of the Confederation of British Industry. It may be that the CBI, for reasons that are not clear to me, has withdrawn its opposition to this clause. Be that as it may, the CBI generally speaking represents big business which might well feel that it can cope with the Bill as amended so far. But what about small business? They are clearly more likely to be affected by the abandonment of BATNEEC than are big businesses.
§
To discover how they felt, I had a word with the Federation of Small Businesses, whose executive director has sent me the following fax today. It is not long but I fear that I should quote it in full. It states:
The Federation of Small Businesses (FSB) which represents over 135,000 members, responded to the Government on the implementation of the IPPC Directive on 26th February 1999.
The FSB's response expressed grave concerns that the proposals would add tighter regulation to all businesses without any concessions for small businesses.
The FSB contended in the strongest possible terms that small businesses could not afford the implementation of such a directive.
Following the FSB's response to that consultation, it does seems to us that we were taken out of the loop as far as further discussions on this item were concerned and the FSB has no evidence of even an acknowledgement to its original response.
The original Government consultation stated that the Bill was in accordance with Better Regulation policy. The changes following the CBI's alleged change of heart clearly mean that the Bill is now not in accordance with Better Regulation policy.
The CBI represents large businesses. We do not believe that it was speaking for small firms on this issue.
Large companies, when push comes to shove, do not really mind excessive regulation. They have the resources and the personnel to comply, knowing that at the same time, their small competitors will face difficulties and costs because of those same regulations.
The FSB supports the concept of 'Best Available Techniques Not Entailing Excessive Cost' (BATNEEC). The FSB is horrified that such a concept is now not being considered. We would urge Ministers to think on this and to add the concept as a schedule to the main legislation.
1383
By their action, Government is now abandoning the interests of small businesses; an action which will also price many out of business".
§ That is dated today.
§ There we have it. The big boys think they can live with this Bill if it becomes law, but our vital small businesses take an altogether different view.
§ I wonder whether I could end with a word of advice to the Minister. He is someone for whom all of us in this House have great respect. We admire his incisive mind, and his endless courtesy from the Dispatch Box. I know that I am stretching his patience today. But I must put it to him that he has made a mistake with this Bill. I am fairly sure that I can see what happened. His civil servants came to him and said,"Minister, we have got to put this wretched directive into British law or we shall irritate our lords and masters in Brussels, and it really is too complicated to attach it to the Environmental Protection Act, so let's do it this way. Let's take all the powers from the Act and all the powers in the directive, and let's just do it by regulation when necessary and when it suits us ". So we have this Bill, which I submit is still entirely unsatisfactory even with the amendments which have so far been forced upon it.
§ I should have thought it very unlikely that all, or indeed any, of the other EU countries are importing this directive with anything like the enthusiasm of the Minister and his department. But I shall be pressing the Minister upon that under Amendments Nos.7 and 8.
§ I should have thought that the Minister would be perfectly safe to abandon the whole thing. That is what I suggest that he should do. I beg to move.
§ Lord Stoddart of SwindonMy Lords, I congratulate the noble Lord, Lord Pearson of Rannoch, on his persistence and watchfulness over this Bill. He should be thanked for bringing forward the amendment tonight. I shall not keep the House long, but I find disturbing the fact that the Federation of Small Businesses, which represents 135,000 businesses, was not properly consulted about the Bill and its provisions. As we have seen in previous legislation—for example, that relating to small abattoirs—the failure to consult and to take into account the real problems of small businesses has resulted in many being closed down. I am sure that the FSB is most concerned that that may happen to many of its members as a result of the Bill. I sincerely hope that my noble friend can reassure the House that that will not be so.
I should like the Minister to recount exactly why no response was made to the FSB's representations and to say whether the Government will examine the methods by which they consult on all matters, particularly those related to the European Union, with small businesses and not merely large transnational companies. It is an important point. Small businesses are worried. After all, this country is run on small businesses which are entitled to be treated far better than has been the case over the past 20 years. Their interests are important.
I concur with the kind remarks of the noble Lord, Lord Pearson, about the way in which my noble friend treats this House, the respect he gives it and the proper 1384 consideration and answers he gives to questions. I hope that he will be able to reassure us and small businesses that the Government have their interests at heart and that the Government will ensure that small businesses are properly consulted about regulations and measures which adversely affect them.
§ Baroness BlatchMy Lords, I, too, associate myself with the personal comments made about the Minister. I, too, admire the way in which he carries out a busy portfolio, the expert way in which he does so, and the courtesy he shows to this House. I stood in his shoes when the 1990 Environmental Protection Act went through this House. I look back on the Act as a seminal piece of legislation in terms of the way in which it brought about a substantial improvement in the environment. There was further evidence of that only this week in the reference in the Environmental Protection Agency report to continuing improvement over the past decade. That is largely due, I believe, to the 1990 Act. What is it that was not in the Act that needs to be put into legislation in order to conform with the European directive?
The BATNEEC principle, which I have always supported, is necessary as a protection for small and vulnerable businesses. The whole point was to ensure that firms would not go out of business as a result of improvements deemed necessary by the regulators when the choice was a matter of survival—complying with their obligations under the Act or going out of business and jobs being lost. A perfectly reasonable principle (BATNEEC) was included in the Bill in order to give people time to negotiate a way in which they could improve their industrial and working processes which did not entail such a financial burden that jobs and/or the company were lost to the economy. Why are the Government so reluctant to see that principle in its entirety reintroduced in this Bill?
I agree entirely with the noble Lord, Lord Stoddart of Swindon. European directives, often well intentioned, are often considered in isolation one from the other by Parliament. Almost without exception. they are considered without early discussion in their formulation. They are born of commissions in the vaults of the European Community and when we become aware of them it is usually too late to do anything. They have been agreed by endless groups of officials of countries and tacitly agreed to by Ministers and the Commissioners, who will have given birth to them in the first place. By the time European directives come before this House, which does a good job in scrutinising European legislation, it is usually too late for Parliament to act.
Dealing with them in isolation, we as a Parliament fail lamentably to consider the impact of all the burdens placed on business and commerce as a result of different directives and the tendency for us to gold-plate almost everything we do. Therefore, I strongly support my noble friend who wishes to import BATNEEC into the Bill. Can the Minister say why we have probably the most unsatisfactorily drafted Bill before the House? It is a poor and dangerous substitute for that part of the 1385 1990 Act which is to be removed. Why do we need the Bill? What was it about the 1990 Act which did not allow us to conform with European directives?
Earlier, the noble Baroness, Lady Hamwee, said that sometimes the wording of a European directive is not clear or is broad brush. That gives us an opportunity to interpret it in a way that is satisfactory to the country as a whole but, in terms of this amendment, is satisfactory to the wellbeing and health of our small businesses. I support the noble Lord, Lord Stoddart of Swindon, and I certainly wish to support my noble friend. If at any stage of the Bill he wishes to press the matter to a vote, I shall support him in the Lobby.
§ Lord WhittyMy Lords, the debate on the amendment has gone wider than the amendment itself. Perhaps I may deal with two points immediately. The noble Baroness, Lady Blatch, asked why we do not stick to the 1990 Act. This Bill incorporates many of the principles of that Act, but we want a coherent system which runs across European national level legislation and local level legislation and regulation. Industry as a whole welcomes that coherent approach. That is why the Front Benches of all parties have welcomed the principle of it. Indeed, I am slightly surprised by the noble Baroness's remarks. I know that she had left her position in the department towards the end of the previous government, but the Secretary of State, Mr. Gummer, promoted the directive within the European Commission. Indeed, he seconded one of his own officials to help draft it; he was a major drafter of the directive. The previous administration completely supported this approach, and most of industry supports the coherence which the directive, and the regulations and directives under the Bill, will bring to industry.
As for small firms, all our consultations involve them. The Federation of Small Businesses was fully consulted. We do not reply by and large to any of the individual consultations, but in three consultations the FSB was fully informed.
The Bill is not about killing off 135,000 small businesses; it will be applied to around 7,000 mainly large businesses. The House is on the wrong track if it attacks the Bill for attacking small businesses. It does quite the opposite. As to the Government's handling of the Bill, we have accepted some of the criticisms—
§ 9 p.m.
Baroness matchMy Lords, is the noble Lord saying that there is an exemption for small businesses; that the Bill will impact only on large businesses?
§ Lord WhittyNo, my Lords. I am saying that it applies to large installations. Some such installations may be owned by small businesses, but most will be owned by large businesses. The extension to agriculture, for example, applies only to very large pig and poultry installations. It does not apply to the broad range of agricultural enterprises.
§ Lord Pearson of RannochMy Lords, I do not know whether this is the moment to disagree with the noble
1386 Lord the Minister, but, from the amendment that he has tabled this evening, that cannot be so, because it says that the purpose of Section 1 is not only to implement the directive, but to regulate "otherwise than in pursuance " of the directive—and of course in pursuance of the directive—any,
activities which are capable of causing any environmental pollution ",and,otherwise preventing or controlling emissions capable of causing … such pollution ".It goes on to say that these activities mean,industrial or commercial or other activities … carried on on particular premises or otherwise ".So we go on. In the definition of environmental pollution, as my noble friend the Duke of Montrose has indicated, "harm" can mean causing,offence to the senses of human beings".Technically, that might cover smoking. It certainly covers the bonfire at the bottom of the garden and anything that a small business might produce ifwhen—they get going, that is how these famous regulators want to behave.
§ Lord WhittyMy Lords, the incorporation of the IPPC regime will not extend these controls to areas which were not already covered by the 1990 Act. 'That is the point that I am making. Clearly, those small businesses already covered by the 1990 Act will still be covered by this regime. It is the change brought about by the Bill to which I am referring. Schedule 1 clearly restricts that to plants and installations most of which will be owned by large businesses.
I also have to deal briefly with the suggestion that we tried to conceal the intention of the Bill. The noble Lord. Lord Pearson, may well say that it was a low-key Second Reading. I am a low-key sort of chap, I suppose; but I did introduce the intention in my second sentence, when I said that it,
arises from the fact that we must implement the European Council directive ". [0fficial Report, 7/12/98: col.778.]I do not think we were concealing anything from the House, and certainly not from the noble Lord.Perhaps I may concentrate on the points of the amendment. In Committee, I gave the noble Lord, Lord Jenkin, two reasons why this was not appropriate. First, BATNEEC is not identical to the concept of BAT, which the IPPC directive requires us to transpose. I accept that we are required to transpose it. Secondly, the directive safeguards the concept of BAT at the heart of the IPPC regime. The requirement to specify in regulations all the circumstances in which conditions more or less strict than BATNEEC, or BAT, might he applied would rob our pollution control system of the flexibility that is its essence and that we want it to see in the directive and in the Bill. Those who want a fuller explanation had better refer back to my comments in Committee.
However, I have an additional reason, which completely addresses the concern about small firms. The amendment would require the use of BATNEEC in all cases to which the regulations apply for minimising 1387 emissions to the environment as a whole. In other words, it would require integrated permitting of air, water and land emissions from all the installations to which the new regime applies.
Our proposals, which are in line with current practice, are that integrated permitting, which is quite burdensome, should apply to the larger installations, including all those subject to the IPPC directive, but that over 11,000 smaller installations should remain regulated by local authorities in respect only of their air emissions. I suspect that that was not the intention of the noble Lord's amendment, but it appears to me that that would be the result. Therefore, if the noble Lord is really concerned about small businesses, he will not press the amendment.
§ Lord Stoddart of SwindonMy Lords, before my noble friend sits down, could he assure me of one thing? The Federation of Small Businesses obviously feels that it has not been properly consulted. May I ask my noble friend to look into that complaint to see whether some improvements can be made which will satisfy the FSB that its views are really being taken into account?
§ Lord WhittyMy Lords, I am happy to undertake to look into relations with the FSB. What I am not prepared to undertake is that the Government will reply to every single submission that we have in our consultations. That has never been the practice, and certainly the FSB was treated no differently from anybody else in that respect.
§ Lord Pearson of RannochMy Lords, I am very grateful to all noble Lords who have supported the amendment. I am also very grateful, as usual, to the noble Lord the Minister.
As to what the noble Lord had to say, I must say I am very surprised if an organisation that represents 135,000 small businesses in this country does not merit a reply from the noble Lord's department when it writes in the terms in which it obviously wrote about a matter of this significance. I will have to leave that there for the moment.
When the noble Lord the Minister says that the Environmental Protection Act did apply to small businesses, of course he is quite right; but they got BATNEEC under that Act. Now they have lost it. They knew where they stood then, and now they do not. They feel that that is very serious. Depending on how the regulators behave and how the Bill eventually is carried out, they clearly have very good reason to be worried.
I certainly did not mean to insult the Minister when I said that the Second Reading was a low-key affair. Obviously, his presence raises it above that description. But, nevertheless, it is true that not many people took part and that there was not a single speaker from either Conservative or Labour Back Benches—or, indeed, from the Front Bench of the Conservative Party—which means that people really were not awake to it.
1388 As to the Minister's final point, I agree that the amendment is not perfectly worded.
§ Baroness Farrington of RibbletonMy Lords, perhaps I may help the noble Lord by pointing out that I was the Whip on duty that night and no one was prevented from speaking.
§ Lord Pearson of RannochI was not suggesting that anyone was prevented from speaking. I was merely saying that it is obvious that the House did not accord the Second Reading of this Bill much significance because there were very few speakers—two notable contributions from the noble Baronesses, Lady Hamwee and Lady Byford, but no other speakers at all. My point was that we have all been asleep at the switch on this one and I think it is time we woke up before Third Reading.
I agree that the amendment is not perfectly worded. I have no intention of pressing the amendment this evening, but I think we may well need to come back to it at Third Reading. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Dixon-Smith moved Amendment No.5:
§ Page 2, line 26, after ("industry ") insert (", agriculture ")
§
The noble Lord said: My Lords, Amendment No.5 is small but important. Clause 1(6) states:
Before making any regulations under this section, the Secretary of State shall consult … such bodies or persons appearing to him to be representative of the interests of local government, industry and small businesses respectively as he may consider appropriate ".
§ I have always considered agriculture to be a business, but there are those outside who need reassurance on this point. The Minister could deal quickly with the matter either by giving a very clear reassurance that it was always intended that agriculture was recognised as an "industry " or a "small business ", or both, perhaps; or by accepting the amendment. I beg to move.
§ Lord WhittyMy Lords, perhaps I may save the time of the House by saying that I accept completely what the noble Lord, Lord Dixon-Smith, said and I support the amendment.
§ On Question, amendment agreed to.
§ Lord Pearson of Rannoch moved Amendment No.6:
§ Page 2, line 34, leave out from ("section ") to end of line 6 on page 3 and insert ("shall be laid in draft before, and subject to approval by a resolution of, each House of Parliament.")
§ The noble Lord said: My Lords, I shall attempt to deal with this one very quickly. It simply removes from the clause the provisions which decide what sort of resolution is to be reached by each House of Parliament under this Bill and makes them all affirmative resolutions. I would be very interested to hear the Minister's reply to this because, given the complications that we are facing and the assurances that we have been given about the way the Bill is going to work, it certainly would be very much safer and give comfort 1389 to small businesses if they thought that Parliament was actually going to look at all these regulations in some detail and have the duty to agree them, rather than just leaving them on the Table and forgetting about them, which is when they are slipped in at moments when, perhaps, no one is looking. I beg to move.
§ Baroness BlatchI believe that without exception all officials in every department intensely dislike affirmative resolutions. They will use every argument at their disposal to counter their use. In many instances, they are right. Their arguments are sound and good and relate to wasting time.
However, in some cases, those officials are not right—and that is the case here. I support my noble friend. This Bill has received the most damning indictment from the Delegated Powers and Deregulation Committee. It is a skeletal Bill. The regulations which will flow from it will be extremely important indeed. If we are to give some comfort to those outside who will be subject to the rigours of the Bill when it becomes an Act, it seems to me important that both Houses of Parliament should have an opportunity to scrutinise the regulations. For that reason, the affirmative resolution is extremely important.
§ Lord Stoddart of SwindonMy Lords, I too support this amendment. I do so simply because I want to be consistent. My noble friend perhaps was not here when I very often rose to criticise the same sort of legislation as that before us and the suggestion that regulations should be made by the negative resolution procedure. I called the Opposition, when they were in government, all sorts of names in relation to legislation like this. Therefore, I feel that I must he consistent.
Parliament should not he ignored. When orders which involve business and the conduct of business—perhaps the bankruptcies of business—are brought forward I believe that both Houses should have a proper chance to scrutinise that legislation properly and, of course, in the case of this House, to be able to put down some sort of amendment or reject the orders out of hand.
§ 9.15 p.m.
§ Lord WhittyM y Lords, I remind the House that the Delegated Powers and Deregulation Committee made a number of very specific recommendations as to whether the affirmative resolution was more appropriate than what we had originally in the Bill. In every single instance, we have agreed and amended the Bill in accordance with the recommendations.
The noble Lords' amendment goes way beyond what the committee proposed and would apply the affirmative resolution procedure even to the most minor change in regulations. I do not consider that an appropriate use of parliamentary procedure and clearly neither did the Delegated Powers and Deregulation Committee. As I say, we have met all its requirements in this respect. I can perhaps give the noble Lord a limited degree of comfort and perhaps through him the small businesses with whom he is concerned. The Bill as it stands provides the Secretary of State with a choice of procedure. I can give an undertaking that any 1390 amendments to the regulations which affect matters which were previously included on the face of the Employment Protection Act 1990 will be put to Parliament for consideration under the affirmative procedure.
I hope that with that reassurance the noble Lord will recognise that we have already moved a long way down the road and have met the requirements of the Select Committee. I hope therefore that he will see fit not to pursue his amendment.
§ Lord Pearson of RannochMy Lords, I am very grateful to the Minister for that crumb of comfort. We shall have to examine and make up our minds as to whether at Third Reading we want to widen the affirmative resolution procedure beyond that recommended by the Delegated Powers and Deregulation Committee. In the meantime I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Pearson of Rannoch moved Amendment No.7:
§ After Clause 3, insert the following new clause—
§ COMMENCEMENT
§
(". This Act shall not come into force until a Minister of the Crown has laid before each House of Parliament a report setting out the legal basis on which Council Directive 96/61/EC was agreed to, and that report has been approved by resolution of each House.")
§ The noble Lord said: My Lords, I propose the amendment because it occurs to me that the famous Directive 96/61 is probably ultra vires under the treaty establishing the European Community or under European Community law. I hope that that is helpful to the Minister because, if so, the Government can forget about this troublesome Bill and carry on with the Environmental Protection Act which is working so well anyway.
§
I suggest that the directive may not be legal under EC law because at least two articles in the treaty do not appear to have been met by the Community or, more precisely, by the European Commission. The first is Article 174 which, until the Amsterdam Treaty, was Article 130r. It is fairly well known. The article states clearly in paragraph 3,
In preparing its policy on the environment, the Community shall take account of: available scientific and technical data; environmental conditions in the various regions of the Community; the potential benefits and costs of action or lack of action: the economic and social development of the Community as a whole and the balanced development of its regions".
§ I rather suspect that the Commission did not comply with any of those requirements when drawing up Directive 96/61 which, as the Minister confirmed, is the only cause of this Bill. I say that because in my fairly recent experience of your Lordships' Select Committee the Commission never does with an environmental directive. It simply issues often crazy environmental edicts, such as the bathing water directive and many others, without bothering to meet the terms of the article.
1391§ Be that as it may, the particular condition upon which I wish to focus is the third requirement of the article, namely that the Community should have taken into account the potential benefits and costs of action or lack of action. In other words, for the directive to be valid the Commission should have produced a cost benefit analysis of its effects if implemented. The Minister may tell me that the Commission has indeed produced such an analysis, in which case I will be pleasantly surprised and will be grateful to have a look at it. Can the noble Minister confirm the point?
§ The second article under the treaty establishing the European Community is, of course, Article 5 as it now is, Article 3b as it was, the famous subsidiarity clause. In view of the lateness of the hour I shall not quote it in its entirety, but I would point out that the Community can only take action if it wishes to issue a directive by reason of the scale or effects of the proposed action. In order for that to be valid, we have to be aware of the scale and effect of this directive, and I do not mind betting that we are not. For instance, has the Minister asked the Commission what the other countries of the European Union have done on this directive? What is the scale and effect? If we do not know that, or the answer to Clause 174 is unsatisfactory, the Government are in a position to say that they will not carry out the directive and will take the risk—I believe a very slim risk—of being taken to the court in Luxembourg for the matter to be adjudicated.
§ I appreciate that that may run contrary to the Government's well-known "charm offensive " in Brussels. Nevertheless, it is a simple way out if the Government wish to take it. I beg to move.
§ Lord WhittyMy Lords, I assure the House that our legal advice confirms that the Commission followed exactly the right procedures. The cost benefit appraisal was completed by the Commission. By definition, that takes account of costs and benefits. Therefore, the provision complied with the directive's implementation. The legal basis of Article 130 and the directive was adopted subject to the co-operation procedure under Article 189 introduced by the Maastricht Treaty.
The points made by the noble Lord are far wide of the way in which the Commission and the council operate—I know he objects to it but he is well aware of it—and which has not been subject to any legal challenge in that respect. We are transposing the directive in this particular way. Other countries are doing likewise. To agree to the amendment would delay the adoption of the Bill. That would bring the whole procedure into legal danger. We should be subject to infraction proceedings. I know that does not cut a lot of ice with the noble Lord. Nevertheless, if we were to adopt the amendment, there would be a serious delay in our being able to transpose the directive.
§ Lord Pearson of RannochMy Lords, I am grateful to the noble Lord. Of course, some of us think that that would not matter at all. In fact, it would be thoroughly agreeable.
1392 I should be grateful if the Minister could extract from the Commission in Brussels a copy of the cost benefit analysis for this directive. Perhaps he could place it in the Library so that we may all look at it and see if it really does meet the normal meaning of the expression,"cost benefit analysis ". I have certainly never known the Commission to do that. It would be gratifying if they were beginning to pay some attention to this aspect of the treaty which they have always so steadfastly ignored in the past.
Nevertheless, I am grateful for what the noble Lord said and I shall consider it. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No.8 not moved.]
§ Schedule 1: [Particular purposes for which provision may be made under section 1]
§ Lord Pearson of Rannoch moved Amendment No.9.
§ Page 7, line 23, leave out paragraphs 17 and 18
§ The noble Lord said: My Lords, very briefly, Amendments Nos.9 and 10 are almost probing amendments at this stage of the Bill. They strike out the creation of offences and regulations which provide for summary indictment, and so on, and set up a prison term not exceeding six months, and fines of £20,000. This aspect of the Bill was referred to by my noble friend Lord Renton on 19th April in Committee. He opined that it was completely unacceptable for regulations which we cannot amend to have this effect. It is on that account that I brought it back so as to hear what the Minister has to say about it.
§ Lord WhittyMy Lords, the provision by regulation of new offences in this sense reflects earlier precedent in the Environment Act 1995 and the Water Industry Act 1991. We have adopted an affirmative procedure, as recommended by the Delegated Powers and Deregulation Committee. That committee saw it as an appropriate safeguard. I believe the House should similarly view these provisions. I hope the noble Lord will not proceed with his amendment.
§ Lord Pearson of RannochMy Lords, I certainly will not be pressing my amendment to a Division. We will consider whether what the Minister said is correct or whether in fact this is really taking regulations, even under the affirmative resolution procedure, too far. I imagine that we may well wish to return to the matter on Third Reading. However, in the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No.10 not moved.]
§ In the Title:
§ Lord Whitty moved Amendment No.11:
§ Line 1, leave out from ("for") to ("and") in line 2 and insert ("implementing Council Directive 96/61/EC and for otherwise preventing and controlling pollution; ")
§ On Question, amendment agreed to.