HL Deb 20 May 1999 vol 601 cc431-5

("—The following persons, namely—

  1. (a) a person who has been refused the grant of an authorisation under regulations made under this Act;
  2. (b) a person who is aggrieved by the conditions attached. under any regulations made under this Act, to his authorisation;
  3. (c) a person who has been refused a variation of an authorisation on an application under regulations made under this Act;
  4. (d) a person whose authorisation has been revoked under regulations made under this Act;
may appeal against the decision of the enforcing authority to the Secretary of State (except where the decision implements a direction of his).

(2) A person on whom a variation notice, an enforcement notice or a prohibition notice is served may appeal against the notice to the Secretary of State.

(3) Where an appeal under this section is made to the Secretary of State—

  1. (a) the Secretary of State may refer any matter involved in the appeal to a person appointed by him for the purpose; or
  2. (b) the Secretary of State may, instead of determining the appeal himself, direct that the appeal or any matter involved in it shall be determined by a person appointed by him for the purpose;
and a person appointed under paragraph (b) above for the purpose of an appeal shall have the same powers under subsection (5), (6) or (7) below as the Secretary of State.

(4) An appeal under this section shall, if and to the extent required by regulations under subsection (10) below, be advertised in such manner as may be prescribed by regulations under that subsection.

(5) If either party to the appeal so requests or the Secretary of State so decides, an appeal shall be or continue in the form of a hearing (which may, if the person hearing the appeal so decides, be held, or held to any extent, in private).

(6) On determining an appeal against a decision of an enforcing authority under subsection (1) above, the Secretary of State—

  1. (a) may affirm the decision;
  2. (b) where the decision was a refusal to grant an authorisation or a variation of an authorisation, may direct the enforcing authority to grant the authorisation or to vary the authorisation, as the case may be;
  3. (c) where the decision was as to the conditions attached to an authorisation, may quash all or any of the conditions of the authorisation;
  4. (d) where the decision was to revoke an authorization, may quash the decision;
and where he exercises any of the powers in paragraphs (b), (c) or (d) above, he may give directions as to the conditions to be attached to the authorisation.

(7) On the determination of an appeal under subsection (2) above the Secretary of State may either quash or affirm the notice and, if he affirms it, may do so either in its original form or with such modifications as he may in the circumstances think fit.

(8) Where an appeal is brought under subsection (1) above against the revocation of an authorisation, the revocation shall not take effect pending the final determination or the withdrawal of the appeal.

(9) Where an appeal is brought under subsection (2) above against a notice, the bringing of the appeal shall not have the effect of suspending the operation of the notice.

(10) Provision may be made by the Secretary of State by regulations with respect to appeals under this section and in particular—

  1. (a) as to the period within which and the manner in which appeals are to be brought; and
  2. (b) as to the manner in which appeals are to be considered.")

The noble Lord said: My Lords this amendment is grouped with Amendment No. 7. Amendment No, 4 introduces a new clause which enables appeals to be made on the full scale that applies under the present law. Indeed, the present law is merely repeated in the amendment. I should add that both amendments are supported by my noble friend Lord Pearson of Rannoch. I am grateful to him for the help he gave when I was away and not very well on this and other matters.

The present law is contained in Section 19 of the Environment Protection Act 1980. Sections 1 to 28 of that Act are repealed by the third schedule to the Bill. As I mentioned in Committee, those sections are of great importance and are regrettably to be replaced by mere secondary legislation which neither House will he able to amend.

Secondary legislation is to replace primary legislation in the vitally important matter of making appeals. That is something owed to the people of this country—the humble citizen accused of a polluting offence, the small farmer operating perhaps in a remote area, or a major company. Appeals are of great importance. It would cause no trouble whatever to the Government to allow the present law to continue. If there is need for amendment that can be done in another place rather than being left to the uncertainty of replacement by regulations which neither House can amend.

In the Bill appeals are dealt with in a rather strange way in paragraph 19 of the first schedule. Naturally and logically, that should be left out if the present law relating to appeals is to be restored. Hence Amendment No. 7, which simply leaves out paragraph 19. The paragraph, which appears under the heading "List of purposes", gives guidance to those who will be making the regulations. It says: Conferring rights of appeal in respect of decisions made, notices served or other things done (or omitted to be done) under the regulations: and making provision for (or for the determination of) matters relating to the making, considering and determination of such appeals (including provision for or in connection with the holding of inquiries or hearings". I do not think the Government would lose anything by the deletion of that so-called purpose and its replacement, if my amendment is accepted, by the restoration of Section 19 of the 1990 Act.

There is no need for me to summarise Section 19. Its contents are clear. It has been in force for eight years. If the Government consider that it needs amendment, let it be done in another place, as I say. I hope the Government will accept that I am trying to help them by proposing the amendment. They are under severe criticism for the repeal of 28 clauses of important primary legislation which has served its purpose well. We are trying to help by making further suggestions.

The noble Lord has responded up to a point to criticism of the Bill. He has amended the Long Title. Very good. He introduced a long new purpose clause, which is now Clause 1. I thank him for that and congratulate him. I assure him that the purpose of Amendments Nos. 4 and 7 is to help the Government. I beg to move.

Lord Dixon-Smith

My Lords, I support the amendment. I do not believe that it alters significantly either the intent of the Government or indeed the substance of the Bill. What it does is to put on to the face of the Bill part of an existing Act which has operated successfully. Clearly, it is the intention of the Government to bring forward regulations to produce some such system as this at some point in the future in order to comply with the new Bill. I would have thought this a straightforward matter to deal with. I hope therefore that the Minister may feel inclined to accept the amendment. However, should he find my noble friend's blandishments resistible—a concept I have some difficulty with, because I have the greatest regard for my noble friend—I wonder whether he might give an assurance that the step which my noble friend has proposed will be given the most serious consideration by the Government in another place. It seems to me that there is great merit in the amendment. Even if the Government in the persona of the Minister feel that they cannot be bounced into it this afternoon, perhaps they might positively consider stepping gently into it on some other occasion. I support my noble friend.

Lord Whitty

My Lords, I, and no doubt other noble Lords, recognise that the noble Lord, Lord Renton, is using the appeals procedure to some extent to illustrate his general concern about items in the 1990 Act being removed from the face of the Bill and put into regulations. Unfortunately, rather than providing useful clarification for industry, under the noble Lord's amendment the appeals procedure would limit and diminish the rights of appeal.

Perhaps I may explain. Since 1990 it has been necessary to amend and extend those rights beyond the provisions of the 1990 Act—for example, the Environment Act 1995 made some improvements. We now intend that the appeals procedure which has been published in the draft IPPC regulations, which noble Lords will have seen, should include even greater rights of appeal. Those improvements are not reflected in the noble Lord's Amendment No. 4. Moreover, by deleting paragraph 19 of the schedule—by his Amendment No. 7—he would remove the power to make any necessary future improvements.

There is a fundamental difference between the noble Lord and myself. I have gone as far as I can in terms of reflecting the constitutional concern. I do not agree with the noble Lord that anything previously on the face of the Bill is best left on the face of the Bill. If we were to put part of it back on the face of the Bill we would get the worst of all possible worlds. The provisions which were previously on the face of the Bill are now subject to sensible flexibility and an ability to adapt to changed circumstances. Under the noble Lord's amendment, the appeal procedure which covers the provisions could not be adapted to accommodate further changes.

I recognise the importance of an appeals system. As to the point made by the noble Lord, Lord Dixon-Smith, we will give serious consideration to the importance of clarifying the appeals provision. Whatever we do, I can give a categoric assurance that operators will have rights of appeal under the system that we now propose or any future system were we minded to make any further alteration. On the other hand, for the reasons I have explained, the noble Lord's amendments would diminish those rights. I would urge him to withdraw his amendment.

Lord Renton

My Lords, I am grateful to the noble Lord for his explanation. I am interested and pleased to learn that the Government will extend the rights of appeal. That is very good news. I see no reason why those rights should not be extended by a new clause on the lines of the clause that I have suggested. That clause could then be put forward in another place. The Government will gain much more credit by doing that than by merely leaving it to regulations which neither House can amend. In view of what the noble Lord has said, I shall not divide the House. I seek leave to withdraw the amendment. In the Government's interest and the interest of our parliamentary tradition, I suggest very seriously that a matter as important as rights of appeal should he the subject of primary legislation and not merely hacked about by regulation. I beg leave to withdraw the amendment.

Amendment. by leave, withdrawn.

5.15 p.m.

Lord Pearson of Rannoch moved Amendment No. 5:

After Clause 4, insert the following new clause—

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