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Draft Waste (Amendment) (Northern Ireland) Order 2007



The Committee consisted of the following Members:

Chairman: Mr. David Amess
Bailey, Mr. Adrian (West Bromwich, West) (Lab/Co-op)
Blackman, Liz (Erewash) (Lab)
Cairns, David (Parliamentary Under-Secretary of State for Northern Ireland)
Chapman, Ben (Wirral, South) (Lab)
Cooper, Rosie (West Lancashire) (Lab)
Cousins, Jim (Newcastle upon Tyne, Central) (Lab)
Dobson, Frank (Holborn and St. Pancras) (Lab)
Dorrell, Mr. Stephen (Charnwood) (Con)
Dunne, Mr. Philip (Ludlow) (Con)
Field, Mr. Mark (Cities of London and Westminster) (Con)
Keeble, Ms Sally (Northampton, North) (Lab)
Lancaster, Mr. Mark (North-East Milton Keynes) (Con)
Lidington, Mr. David (Aylesbury) (Con)
McCrea, Dr. William (South Antrim) (DUP)
Meacher, Mr. Michael (Oldham, West and Royton) (Lab)
Mountford, Kali (Colne Valley) (Lab)
Reid, Mr. Alan (Argyll and Bute) (LD)
Mark Egan, Committee Clerk
† attended the Committee
The following also attended, pursuant to Standing Order No. 118(2):
Mackinlay, Andrew (Thurrock) (Lab)

Third Delegated Legislation Committee

Monday 22 January 2007

[Mr David Amess in the Chair]

Draft Waste (Amendment) (Northern Ireland) Order 2007

4.30 pm
The Parliamentary Under-Secretary of State for Northern Ireland (David Cairns): I beg to move,
That the Committee has considered the draft Waste (Amendment) (Northern Ireland) Order 2007.
A draft of the order was laid before this House on 18 December 2006. I welcome you, Mr. Amess, to the Chair of what I anticipate will be an uncontroversial, but important debate on the order.
The order aims to deter unlawful waste activity in Northern Ireland through greater enforcement powers and stiffer penalties. Illegal waste activity is a serious problem in Northern Ireland. Organised criminal gangs are generating significant profits from the illegal cross-border transport and deposit of waste. Such activity also poses a risk to public health and the environment. The heavy clean-up costs, which fall to the public purse, the loss of revenue to the Exchequer and the adverse impact on legitimate waste businesses make such crime anything but victimless.
The order largely replicates enhanced powers introduced in England and Wales by the Clean Neighbourhoods and Environment Act 2005, but includes additional measures to provide stronger enforcement powers to deal with the nature and extent of the problem faced by Northern Ireland. It might help the Committee if I focus on the additional powers.
First, the order contains a general power for authorised officers of the Department of the Environment to stop a vehicle on a public road. That will be a significant advance on the position in the rest of the UK, where such powers are available only to uniformed constables. However, we believe that it is necessary to give the regulatory authorities in Northern Ireland clear, strong and unequivocal powers to target the primary tool used by criminals involved in such activity—their vehicles.
Secondly, the order introduces new powers to search and seize vehicles where illegal waste activity is suspected. Those powers will be available to police officers and authorised officials and will be exercisable without the need for a warrant.
Thirdly, the order introduces increased penalties for offences involving the illegal treatment, keeping or dumping of waste. The maximum penalty if convicted in a magistrates court will be increased from £20,000 to £50,000 and the maximum prison sentence if convicted in the Crown court will be increased from two to five years. The order also contains powers for the courts, when considering a penalty, to take into account any financial benefit accrued by the defendant. In other words, we will ensure that the penalty fits the crime. The courts will also have the power to order the confiscation of any vehicle, plant or machinery used in an offence, to order defendants to pay the Department’s investigation and enforcement costs and to order them to pay the full clean-up costs. That will give effect to the “polluter pays” principle.
The public consultation revealed broad support for the proposals. The suggestion emerged that district councils should have a more proactive role in policing illegal waste activities. That proposal has merit and I am minded to pursue it further. However, in light of possible infraction proceedings by the European Union, I am reluctant to delay the passage of the order and anticipate that further changes will be introduced through separate legislation, subject of course to full, normal consultation. I shall continue to discuss the matter with district councils as part of our waste management strategy.
The draft order is a vital tool in our efforts to combat illegal waste activity in Northern Ireland. As I have said, and as you are aware, Mr. Amess, the challenges facing environment authorities are significant. The enhanced powers and increased penalties will act as a greater deterrent and bring Northern Ireland into line with the position in England and Wales as well as include provisions that reflect the particular needs and circumstances of Northern Ireland.
4.34 pm
Mr. David Lidington (Aylesbury) (Con): It is a pleasure to serve under your chairmanship, Mr. Amess, as always.
The Minister said that the order is important, but uncontroversial. It is certainly important and capable of having a significant impact on the quality of life of people from all backgrounds and communities in Northern Ireland. However, parts of the order are contentious, and I shall explore in detail a number of its articles in the hope of teasing out from the Minister answers to a number of questions.
I want to start with a few words about the process that we are using. For a long time my view has been that the Order-in-Council procedure is profoundly undemocratic and unsatisfactory. In fairness, Ministers have acknowledged that. It is most apparent in the case of a measure such as this, which makes provisions which, were they to be in a Bill going through the normal parliamentary process in both Houses, would be subject to detailed scrutiny both in Committee and on Report and would be open to amendment. That would enable Members of Parliament and Members of the House of Lords to test the powers being given to the Government or other agencies and the intention behind the wording used. I wish to make it clear to the Government that if devolution is not restored in March, the Opposition will expect an early statement and early action to change the procedure for handling Northern Ireland legislation.
The Government have promised in previous debates that they will amend the Order-in-Council procedure to allow for an amendment stage. We do not yet know exactly what they have in mind. They have also pledged in both Houses that, if devolution is sadly not restored in March, they will bring forward Northern Ireland legislation in Bills whenever possible and appropriate. If necessary after 26 March we too will approach Northern Ireland legislation differently. In particular, my colleagues in the House of Lords will not consider previous conventions on giving speedy passage to Orders in Council as applying to those that are complex, merit detailed debate and ought to be open to amendment and scrutiny in both Houses of Parliament.
On the substance of the order, I have no quarrel with much of what is proposed. It is clear to anybody who has examined the report of the Select Committee on Northern Ireland Affairs, “Waste Management in Northern Ireland”, to anybody who has read earlier Select Committee reports on the problems of illegal waste disposal and the impact of the aggregates levy, or to anybody who has read the Northern Ireland newspapers over the past few months, that the problem that the order is intended to deal with is significant and growing. The Minister is right that there is a need to go further in Northern Ireland than the provisions currently applying to Britain, for two reasons: the presence of an international land border with another EU member state, which does not apply elsewhere in the United Kingdom, and the involvement of organised crime in tipping and, in particular, transporting illegal waste from the Republic of Ireland into Northern Ireland. I was pleased to read press reports last week stating that a certain amount of such waste had been repatriated across the border—it was good to see the enforcement agencies achieving that.
I have questions for the Minister about three aspects of the order. First, I would like to discuss the special powers that he described briefly in his introductory remarks. It seems to me that much will depend on how those powers are exercised in practice and the extent to which we will feel able to trust the judgment of the officials who will be given these new powers to search and seize people’s property.
I am sure that the Minister would contend that the intention is not to enable officials to persecute ordinary citizens, but to empower Government to deal effectively with organised criminal gangs. However, so far as I can tell the words of the order leave it to the judgment of whoever is taking the decision to search and seize a vehicle as to how they go about discharging those powers. I hope that the Minister will be able to give me some reassurance that clear guidance will be given to officials that a disproportionate use of the powers might be challengeable in a court or through some other process. Parliament should always be cautious about giving powers to officials in any part of the state to intervene in people’s use of their private property without good reason being given and without those powers being subject to various checks and controls.
Where do the Government see the debate on there being a new independent environmental regulator for Northern Ireland? In England, such powers are not discharged by the Department for Environment, Food and Rural Affairs; such powers, or equivalent powers, are given to the Environment Agency. I have considerable sympathy for the argument that there should be an independent environment agency in Northern Ireland that would have a statutory basis but which would be independent of day-to-day direction either by Ministers or officials who are accountable to Ministers. Given that we are dealing with a major piece of environmental legislation, I am puzzled as to why the Government have not taken this opportunity to introduce proposals to establish such an independent watchdog. I am disappointed that the Minister did not allude to that possibility in his opening remarks and I hope that he will correct that omission later.
Article 12 deals with the responsibility of landowners when there is fly-tipping on their land. As you, Mr. Amess, and the Minister will know, that article provides that, when the person responsible for fly-tipping cannot be identified, the residual responsibility rests with the farmer or landowner to remove the fly-tipped waste and make good any damage at his or her own expense. I concede that this is a difficult issue, because there is a public interest in ensuring that waste is removed and that removal happens without delay. However, the situation is also inherently unfair to farmers and other landowners; I know that the Ulster Farmers Union has particular reservations about the article.
In article 12, provision is made for an appeal system of some sort, but it seems to me that the operation of that system and the criteria that will be used to judge whether an appeal succeeds or fails are defined only in the most general terms. If a farmer appeals against a decision that he is responsible for clearing up waste that has been fly-tipped on to his land, for example, what standard of proof is he expected to meet to show that the responsibility should not rest with him? What test is to be used to establish whether he has taken all reasonable steps to stop illegal dumping on his ground?
I have another question about article 12, which relates to the responsibilities of the Government. Waste is not infrequently dumped illegally on a public highway, particularly on the margin. In Northern Ireland, that land is the property of the Roads Service. Under the article, will the residual responsibility to oversee and pay for the clearing up of that waste fall on the Roads Service? If not, why not? To whom will the responsibility fall under those circumstances? If it is down to the Roads Service to clear up waste that is fly-tipped on to the margins of a public highway, what provision are the Government making for the Roads Service to have the organisation and the financial wherewithal to discharge those new responsibilities?
Article 10 deals with the imposition on householders and others of fixed penalty notices for putting the wrong type of rubbish into a particular bin. I understand the Government’s motives for including that power in the order. A green bin recycling scheme that is systematically abused by somebody who pollutes an entire lorry load of recyclables by placing non-recyclable material into their green bin is a public ill that requires remedy. I wonder, however, whether the article will not lead to all sorts of unintended, adverse consequences.
In their response to the public consultation on the draft order, the various groups of local authorities in Northern Ireland made the point that, following the test case that was heard in Exeter last year, it is difficult to see how the fixed penalty notice scheme can be enforced in practice. Even if it is applied according to a civil standard of proof—on the basis of reasonable cause to believe that the householder is responsible—the enforcement of the penalty in the courts will require a higher threshold of proof. In the case of a householder in Exeter, it was difficult to prove that a particular individual had put any particular item into a bin. Unless there are CCTV cameras or people sitting in cars outside a person’s house to see what they put into their bin and when, it is difficult to assemble the evidence.
One can easily think of hypothetical cases, which are not unlikely in real life, in which one neighbour who does not get on with another decides to get them into trouble by deliberately dumping the wrong sort of rubbish into their bin. For example, a gang of youths up to mischief may get ticked off by an elderly gentleman down the street and think, “We’ll show him. We’ll put something rotten into his green waste bin and see him get into trouble.”
It is true that there are safeguards in article 10, for example that warnings have to be given and so on, and that a fixed-penalty notice comes at the end of a slightly longer procedure, but I wonder whether the Government have adequately thought through whether the article will be workable in practice. It is all very well having legislation that we blithely salute as taking us forward into a cleaner, greener country, but we must also ensure that the measure will deliver the good that we hope will come from it. It should not just lead to unsuccessful litigation and dissatisfaction with democratic politics because people see that although this stuff is on the statute book it is not getting to grips with the people who cause the harm.
As I said earlier, we agree with much of the order but I should like further detail from the Government on the serious issues raised, and I look forward to the Minister’s response.
4.52 pm
Andrew Mackinlay (Thurrock) (Lab): I am pleased to be able to exercise my right to speak to the Committee under the Standing Orders, even though I was not selected by the Whips to be worthy of serving under your chairmanship, Mr. Amess. That is the way of the world.
I listened carefully to the Minister who said that the measure was important but uncontroversial. I shall focus on its importance, because there are 18 elected Members of the House of Commons with seats in Northern Ireland, and not one of them is here to contribute to the debate, to criticise or to vote for a proposal that was described as important legislation. I emphasise that I do not say that to criticise them or to rush to judgment.
It raises the question whether they have been detained by business in the Northern Ireland Assembly, which we would all agree is extremely important, but if that is the case, why did the Government managers put important Committee business on a Monday afternoon? Everyone who is sensitive to the geographical constraints of travel in the United Kingdom knows that that is probably the least advantageous time for members of those parties that do turn up at Westminster to take part in this debate.
Many of us are conscious of a political dependency culture developing in Northern Ireland. In many cases, although not in all, people seem to be oblivious or indifferent to whether powers are devolved or continue to be exercised from Westminster. I should like the Minister to clarify the position in that respect, because it is important to everyone concerned.
The Minister also mentioned that the proposal was uncontroversial because we are all opposed to criminality, as, of course, we are, and that organised criminal cross-border gangs were involved. The Minister should explain to the Committee what discussions there have been with the Irish Republic. There is some elaborate institutional machinery, which I support, for discussions on administrative and legislative collaboration to reduce criminality in the island of Ireland. I would like to know whether the need for this measure has been raised with a ministerial council—the Minister will no doubt help me with its correct title. Has there been any attempt to have one common regime in the island of Ireland for waste and to combat the criminality that surrounds its disposal and dumping?
There are two jurisdictions and there will have to be two statutory instruments or measures, but they could be almost identical and they could also ensure that sanctions, penalties and prosecutions could be pursued in either jurisdiction. If there are not, there is a danger that we will go through the charade of putting on the statute book something that is unenforceable because of the common land border between part of the United Kingdom and the Irish Republic. Too often, hon. Members forget that the United Kingdom has that common land border.
For example, article 9, which amends the earlier order, states
“A person guilty of an offence under this Article is liable on summary conviction to a fine”.
I am bewildered as to how it would be possible to pursue that person if he comes from the counties outside Northern Ireland, unless the Minister has diligently pursued the matter in the ministerial council and managed to persuade the Irish Republic to include on its statute book a provision by which we could prosecute in the Irish Republic or a person could be brought to Northern Ireland to appear before a court.
The Minister glossed over something that concerns me. As we will see from the Official Report of our proceedings, he said that he had thought about giving more involvement to district councils and might do so, but that we needed to get this measure underway in case there was a danger of infraction proceedings by the European Union. I clocked that; it means that everything is very late and hurried. Obviously somewhere, somebody has been asleep on this matter. It should not be hurried through; we should not be facing proceedings by the European Union. We should be told why the Department in Northern Ireland has been so dilatory; it should have introduced the proposal before and allowed Northern Ireland Members to be present to contribute to the debate. I want the Minister to explain why it has taken so long and why there is now an enormous hurry to avoid EU proceedings.
That has a bearing on something that the Opposition spokesman said. In other Committees dealing with Northern Ireland measures, and in the British-Irish inter-parliamentary body, of which I am a member, the need for an environmental protection agency has been raised with the Minister and his colleagues. If there were such an agency, the sloppy stewardship of this matter by the Northern Ireland Departments would not have prevailed. The essence of an arm’s length environmental protection agency is that it might even take proceedings against a Government Department. In western Europe, every jurisdiction except Northern Ireland has an environmental protection agency at arm’s length from Government. That is our business—this place has jurisdiction in such matters, and while we do, we should have an environmental protection agency.
When I raised the matter with one of the Minister’s predecessors—I shall not name her—she told me, “Oh Mackinlay, there are far too many quangos in Northern Ireland.” Indeed there are, but some are important and a sign of a civilised democratic society that can call to account sloppy stewardship by Government Departments. There should long have been an environmental protection agency—it should have been a priority.
The matter has been discussed persistently, for instance, in Committee and during sessions of the British-Irish inter-parliamentary body, and has been gradually changing. I do not think that I am disclosing any confidences: the current Secretary of State said to me, “Mackinlay, we are working on this and we are getting somewhere.” But that is not good enough. It is irrelevant whether we devolve responsibility for environmental protection to the Northern Ireland Assembly in a few weeks’ time, as hopefully we will—it should have been done now. The order could have been the vehicle with which to set up an environmental protection agency to avoid sloppy stewardship.
I make no apology for turning up to the Committee. I intend to call the Government and the Minister to account so long as they have such responsibilities in Northern Ireland. I hope that in a few weeks’ time environmental protection will be the responsibility of Members of the Legislative Assembly rather than of Members of Parliament. The Government cannot be proud of the way in which they have overseen and stewarded environmental protection. I cannot detain the Committee with matters such as the lack of development control or the protection and enhancement of crumbling heritage buildings—Northern Ireland is one of the most heritage-rich areas in Europe. Great responsibility rests on Ministers for this wonderful part of western Europe and, frankly, they have not carried out those very well. Today’s small measure is welcome, but it is too little, too late.
5.2 pm
David Cairns: I shall attempt to deal with questions put as opposed to the florid rhetoric with no substantiating evidence.
The hon. Member for Aylesbury mentioned the process, which he said was profoundly undemocratic and unsatisfactory. He is half right: it is unsatisfactory, although to say that it is profoundly so might be overstating the case. However, I have made no secret of the fact that I think MLAs should be responsible for such matters. I am in favour of devolution and nothing here will fetter their hands. In fact I think that we are moving the agenda forward and hope that this will form part of one of the last batches of Orders in Council before 26 March. We are focused on that. However, for the record, I am happy to repeat the assurances give by Lord Rooker in another place that we will reflect seriously on the suitability of Orders in Council in the absence of devolution. They are second best—we want devolution and are focused on it.
The hon. Gentleman rightly mentioned the Northern Ireland Affairs Committee report. It would be remiss of me not to pay tribute to it. The Committee did invaluable work highlighting the seriousness of the issue and helped to inform policy formulation. He asked how the powers will be exercised and spoke about the need for their common-sense application. To be clear: all fly-tipping is wrong, whether it is one person dumping a mattress on the side of the pavement or organised crime depositing hundreds of tonnes of waste. We will not turn a blind eye to the person dumping a mattress on the corner of the street or abandoning Tesco trolleys. That is wrong and as part of our discussions with local authorities we must look at ways of addressing the totality of the problem.
The hon. Gentleman is right to say, however, that these serious measures—the large-scale fines, imprisonment and seizure of vehicles—are aimed more at organised criminal gangs. Regulations flowing from the order will be scrutinised and guidance released that, hopefully, will address some of the points raised today. Those involved in the environmental crime unit understand the scale of the problems facing them and know that dealing only with those dumping mattresses will not address the issue. They will consider his points.
The hon. Gentleman mentioned also the environmental protection agency, as did my hon. Friend the Member for Thurrock. Last week, I met Tom Burke, who is carrying out an independent review of the matter. He is doing a thorough, rigorous job and when his report comes out people will see that it is a model of its type. It would be precipitate simply to ignore all his work and move forward using the model in the order. The Assembly will have a good report on which to base future legislation. I wish that we already had it, but Tom Burke is doing a thorough, rigorous and vigorous job and his report will be welcome.
The hon. Gentleman said that the responsibility will fall on landowners and asked what the burden of proof will be. Essentially, all that we are doing is extending to landowners what currently applies to the occupiers of land. We are not introducing a novel aspect. Landowners will have to demonstrate that they have taken reasonable steps to prevent the problems in question and that they are not actively colluding in them.
The hon. Gentleman mentioned the Roads Service, which will be in the same boat as everybody else on fly-tipping, as it already is—it will have the responsibility to clean it up. He also mentioned the important Exeter case on what people put in their recycling bins and on people putting bins out on the wrong day. As I understand it, that case was made under legislation that predates the Clean Neighbourhoods and Environment Act 2005. Perhaps that Act will provide legislative clarity. The hon. Gentleman has a point: people put their bins out the night before a collection because the bin lorries come early in the morning. It is difficult to guarantee absolutely that bins will not be tampered with, although someone who puts in the wrong bin a lot of envelopes with their name and address on them that should be in the recycling bin is probably bang to rights. As I understand it, the test case was about not the law as such but the burden of proof. I accept that there is an argument to be made about it, but our agenda is intended to encourage people to recycle and take their responsibilities seriously. Such cases are seen as a last resort. We will have to see how recent legislation plays out, but the hon. Gentleman properly raised a legitimate point.
My hon. Friend the Member for Thurrock will not be happy with this, but who schedules such a debate and when has nothing to with me. I find out with everybody else. I was in Northern Ireland this morning for a series of meetings and then came over, so it is clearly not impossible for people to get here from Northern Ireland on a Monday, although I cannot comment on scheduling.
I am glad that my hon. Friend mentioned the relationship with the Republic of Ireland, which is important. We have had extensive discussions and, more than that, active collaboration. The repatriation event mentioned by the hon. Member for Aylesbury last week was carried out in close co-operation with the Republic, which will be paying for it. There are investigations going on that I will obviously say no more about at this stage. I raised the issue not through the council procedure that the hon. Gentleman mentioned but in direct discussion with Dick Roche, my opposite number in the Republic.
The Republic takes the matter very seriously and faces the same challenges as us—even bigger challenges, in fact, because of how waste is dealt with. There is no municipal involvement: there is pretty much an unfettered free market in waste disposal. The gate prices for people to enter legitimate waste disposal sites are about three times higher than in Northern Ireland, so the illegal dumping of waste, as well as waste coming to the north, is a problem throughout the Republic. The Republic is absolutely committed to working with us to ensure that cross-border activity is clamped down on. It has put significant financial and personnel resources into the matter and I have no reason to doubt the absolute sincerity and seriousness of its position. We are working closely together on the matter.
I am sorry that my hon. Friend feels the way he does. I wish that he might reflect on his use of language, which is occasionally lurid. He talked about “sloppy stewardship”, but the whole of Europe is facing difficulties on fly-tipping. It is an increasing problem and the European Commission is cracking down on the cross-border transportation of waste all over the place—it is not just us, and it is not solely the fault of the Northern Ireland Department of the Environment and sloppy stewardship. It is a feature of modern life that we are working hard to address, so my hon. Friend might reflect on some of his comments.
The powers contained in the order are important, and the issues covered affect the environment and economy of Northern Ireland and the sustainability of this most beautiful part of the world. The order will help to give us the power to tackle the problems: it will not solve them overnight but it will give us the tools that we need to begin to fight back against those who would ruin our countryside by dumping waste all over it and trying to evade the law.
Question put and agreed to.
Resolved,
That the Committee has considered the draft Waste (Amendment) (Northern Ireland) Order 2007.
Committee rose at eleven minutes past Five o’clock.
 
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