COMMONS AMENDMENT (Hansard, 3 November 2003)

§ Lord Whitty
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6. In doing so, I shall also speak to Amendments Nos. 7, 12 to 19 and 21 to 31. The amendments deal with an issue discussed at some length in this House; namely, the joint working between waste collection and waste disposal authorities in two-tier areas.
I turn first to the issue of joint municipal waste management strategies, to which the Government have given considerable thought. We recognise the strong feeling expressed in both this House and another place that the two-tier structure poses additional challenges in respect of integrated waste management. A two-tier area is defined in Amendment No. 18 as, the area of a waste disposal authority in England which is not also a waste collection authority". We have also accepted the need to tackle the matter through the introduction of measures encouraging better joint working between the authorities in such areas.
525 The Government do not believe that the amendment made to the Bill before it left this House, moved by the noble Lord, Lord Hanningfield, at Third Reading—it required authorities to produce and publish a joint strategy—is the best way to overcome the problem. While we understand what prompted the inclusion of Clause 17(4), which was added by the amendment, it is not sufficiently clear on how the duty would work in practice. Amendment No. 6 therefore removes Clause 17(4).
In place of that amendment, the Government have tabled Amendment No. 16, which introduces a new requirement for all waste authorities within a two-tier area to consult on and prepare a joint strategy for the management of municipal waste within 18 months of the day on which the Act receives Royal Assent. The strategy must be set out in a statement, which must be adequately publicised and kept under review.
Although the Government remain of the view that strategic planning is an integral part of good waste management in all authorities and areas, in framing that duty we took into account the need to ensure that local authorities had sufficient flexibility in planning for the execution of their functions. We have therefore sought to target authorities and areas that need to improve their performance, and not to impose the duty on authorities and areas which are already high performers and working well together to deliver sustainable waste management.
Some of the amendments, and principally Amendment No. 17, allow the Secretary of State to exempt through regulations an authority whose performance he considers satisfactory. First, in accordance with the Government's commitment radically to reduce the number of plans excellent authorities have to submit, we will exempt those authorities which have achieved an excellent score in their comprehensive performance assessment. Secondly, we plan to exempt those authorities whose performance on waste meets or exceeds defined targets. Taking that one step further, Amendment No. 17 also allows the Secretary of State to exempt all authorities in a two-tier area, if conditions specified by the regulations are met. Again, that is to ensure that we do not impose duties on areas where effective joint working is already a reality.
Exemption from the duty will not be open-ended, however. Amendment No. 17 enables regulations to set the duration of any exemption, and postpone the application of a duty under Amendment No. 16 at the end of any exemption. We intend to use those powers in a way that will allow authorities whose exemption ends to have a period to improve their performance before being required to produce a strategy.
Tailoring the application of the duty in that way is consistent with the Government's wider freedoms and flexibilities agenda. We will ensure that, in areas in which the authorities need to work more effectively in planning for the exercise of their functions, there is an obligation to do so. At the same time, we will protect high performers from the imposition of an additional burden.
526 Amendment No. 19 is another example of our commitment to remove ineffective burdens on local authorities. It repeals the requirement for waste collection authorities in England and Wales to produce and publicise a waste recycling plan in accordance with Section 49 of the Environmental Protection Act. It also deals with the consequential repeals to the Greater London Authority Act and the Local Government Act 2000.
Amendments Nos. 12 to 14 remove certain powers to make regulations and certain references to the duty under Section 49 of the Environmental Protection Act from Clause 29, which concerns municipal waste management strategies for Wales. The repeal of Section 49 of the Environmental Protection Act through Amendment No. 19 negates the need for those powers and references. Amendments Nos. 21 to 31 relate to the commencement and extension of Amendments Nos. 16 to 19.
The third element of the group deals with direction by waste disposal authorities. These provisions complement those on joint municipal waste management strategies and obviate the need for Clause 17(5), which was inserted into the Bill at Third Reading. Amendment No. 6 therefore removes this subsection.
Amendment No. 15, which amends Clause 31 of the Bill, seeks to maximise constructive working in two-tier areas even where a waste disposal authority is considering including in a direction to a waste collection authority requirements about the separation of delivered waste. Amendment No. 15 adds three further subsections, subsections (4B) to (4D), to Section 51 of the Environmental Protection Act 1990. Together these subsections require a waste disposal authority to consult WCAs in its area before giving a direction about the separation of delivered waste; to have regard to guidance given by the Secretary of State in exercising this power; and to notify any WCA which is given a direction of the reasons for that direction.
In order to ensure that a waste collection authority is not worse off financially as a result of having to comply with a direction, Amendment No. 15 also inserts a new Section 52A into the Environmental Protection Act 1990. This section requires a waste disposal authority to pay to a waste collection authority such amounts as are needed to ensure that the collection authority is not financially worse off as a result of having to comply with a direction by the disposal authority regarding the separation of waste.
New Section 52A includes provision for the Secretary of State to make regulations for determining the amount of these payments. Subsection (4) enables the Secretary of State to include in these regulations provision for amounts to be less than they would otherwise be (or to be nil) if conditions specified in the regulations are not satisfied. The purpose of this is to ensure that the waste disposal authority must make payment only if the collection authority is required by the direction to undertake more onerous separation activity than is necessary to meet its statutory performance standards.
527 Of course, we hope that waste disposal authorities will not find it necessary to make use of their power of direction. We believe that the best way to deliver real improvements in two-tier areas is through joint and co-operative working. It is to this end, and in response to concerns expressed in this House, that the Government have introduced the duty to prepare joint municipal waste management strategies in such areas.
These amendments offer an appropriate balance between the desire for an integrated approach to waste management and the rights and needs of different authorities at local, regional and national level. I commend them to the House.

§ Lord Dixon-Smith
My Lords, I should be grateful to the Minister for his explanation of the amendments. However, I thought I understood them when I read them against the Bill as it left this House and I am not sure I now understand them so clearly. Be that as it may, we raised the necessity of joint working in two-tier authorities. My noble friend Lord Hanningfield, who regrettably is not here today, specifically asked for (amendments in relation to this. The Government's response answers the points my noble friend made and to that extent, the amendments are acceptable to us.
I want to ask the Minister to elucidate a little more on Amendment No. 17. It deals with the powers to disapply duties under the joint municipal waste management strategies. The formulation of these joint strategies is essential and there is no doubt that where local waste collection authorities and the waste disposal authority are working together it is reasonable that additional administrative burdens should not be placed upon them. However, not least of our difficulties in looking at Amendment: No. 17 is that it depends on regulations which we do not have before us. We have made that comment on so many occasions.
On reading the amendment, I am not clear about whether the regulations could be disapplied if only some the authorities in the two-tier areas—in other words, some of the collection authorities, or some the disposal authority, or a combination of both—were operating efficiently. If either the waste disposal authority or the waste collection authorities are not operating at the approved level of efficiency, it should not be possible to disapply the duties under the joint municipal waste management strategies.
I ask the Minister to elucidate a little further merely in order to have clarification on that point. The amendments contain many words that say not a great deal—I am aware that legislation tends to do that— and I should be grateful for clarification.

§ Baroness Miller of Chilthorne Domer
My Lords, we on these Benches welcome the principles laid out in Amendment No. 17. The difficulties of having a joint municipal waste management strategy should not be underestimated. My authority has completed its 528 strategy and is now running its public awareness campaign. I am only too aware of the immense amount of effort that goes into producing such a strategy.
If authorities in two-tier areas have signed up to such a strategy, what is the Government's thinking in introducing through the amendments an element of discord? An authority that is not excellent will be caught by these requirements. However, if, say, the disposal authority is excellent but a number of collection authorities are not, presumably all the signatories to the joint waste management strategy must continue to operate the plan. That is only one difficulty. It is unlikely that all the authorities in an area will achieve excellent status at the same time. If one drops out from excellent status, do they all again become subject to the strategy?
The Government have introduced another difficulty in allowing the disposal authority to give directions to the other authorities. The spirit of signing up to a waste management plan strategy should be that everyone abides by the agreements and the targets they have reached in it. The Government's prescription in that area will probably be a recipe for discord rather than anything else.
Despite those comments, I firmly believe that joint strategy working is good and I hope that the regulations will encourage it rather than introduce other elements of discord.

§ Lord Whitty
My Lords, I am grateful for the welcome of the concept of joint strategies. Undoubtedly, it resolves many of the issues that were raised at an earlier stage in this House. Amendment No. 17 implements other aspects of the Government's policy towards local authorities which, in general, received a welcome from the Opposition Front Benches. It is intended to return some flexibility to local authorities, beginning with those which perform best. That means that the disapplication of the requirements would be given to an individual authority which either had an excellent comprehensive performance assessment or passed defined objectives in relation to waste management.
The Secretary of State has the power to disapply the requirements in a two-tier area where one or more of the authorities is exempt. Clearly a judgment would have to be made in every circumstance about whether to exempt all or only some of the authorities. For example, in the case of an "excellent" county authority—I shall call it a "county authority" so that we all know what we are talking about—it would not necessarily follow that all the district authorities should also have reached the "excellent" criteria and be subject to disapplication. It would still be possible for the county either to persuade or engage in a direction to the district which was not up to standard. However, that would have to be judged on an area-by-area basis because further consultation is required on the regulations which would give effect to this clause, and some of the circumstances might be a little clearer at that point.
529 However, it is important that we have flexibility to disapply in an area where, say, the majority of waste collection, as well as waste disposal, districts and counties have met the "excellent" or "effective" criteria in relation to waste management. But if one authority held that disapplication back, it would not necessarily be the case that we would not give the disapplication to the others. However, as I said, a judgment would have to be made according to the circumstances.