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Lord Williams of Mostyn: My Lords, I agree with the noble Baroness. There were and may still be people who entered a custodial regime for what we would regard as no proper reason and what should then have been identified as no proper reason. One can think of the example the noble Baroness gave, or petty theft, or backwardness at school, or just being unduly mischievous. That is why, when we talk of indeterminate sentences, we must attach the fellow adjective "reviewable".

I take the point of the noble Baroness and that is why I was happy to stress, in so far as I could, in my response to my noble friend Lord Clinton-Davis, the necessity to

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have independent legal advice so that where a proper case for release or non-continuance of the reviewable sentence can be made it is properly and professionally made as opposed to leaving it to an individual who, in the nature of things, will not be able to make his or her case as persuasively as a qualified lawyer.

Pollution Prevention and Control Bill [H.L.]

5.15 p.m.

House again in Committee on Clause 1.

[Amendments Nos. 2 to 6 not moved.]

Lord Dixon-Smith moved Amendment No. 7:

Page 1, line 25, 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 to be used for minimising the pollution which may be caused to the environment as a whole by those activities.").

The noble Lord said: Amendment No. 7 seeks to reintroduce to the Bill the concept of the need to prevent imposing excessive costs on industry when it complies with the idea of best available techniques. That concept, under the hideous acronym of BATNEEC, was written into the Bill and because best available techniques should have a profound impact on the economic prospects of individual enterprises we felt that it was worth introducing some concept of economic validity into the Bill as in the previous one. I beg to move.

Lord Jenkin of Roding: This is an important amendment. It stands in its own right. Whereas the previous amendment dealt with the scope of the legislation, this amendment seeks to deal with the standards that Parliament should establish as guidance to the draftsman of the regulations and the regulators enforcing them.

Of course there are unpleasant acronyms. The noble Lord, Lord Whitty, mentioned BPEO--I do not believe that was ever shortened into a word--which means "best practicable environmental option". Two others that one comes across in this field are ALARA--as low as reasonably achievable--and ALATA--as low as technically achievable. But in recent years what has emerged in this country as the preferred standard is "best available techniques not entailing excessive cost".

My noble friend Lord Whitty explained to the chairman of the Delegated Powers and Deregulation Committee, my noble friend Lord Alexander, when he wrote on 21st January 1999:

    "The concept of 'best available techniques' with the associated balancing of costs and benefits, will, as the Committee suggests, be at the heart of the new regime".
He then goes on to address the question which the Select Committee raised as to whether there ought to be exceptions to that in the sense that costs should not enter into the issue; that the effect of pollution is so serious that it ought to be dealt with using the best available

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techniques, period. That is an issue which we debated in this Chamber in earlier legislation and it has always been recognised that there could be extreme cases where, in the last resort, the pollution has to be abated at almost whatever the cost.

The directive on which all this is based is quite interesting. There is a definition of the best available techniques in paragraph 11 of Article 2:

    "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 superability of particular techniques for providing in principle the basis for emission limit values".
It then goes on to talk about techniques and "available", about "best" and finishes:

    "In determining the best available techniques special consideration should be given to the items listed in Annex 4".
What is interesting is that it is only when one gets to Annex 4 that the directive contains any reference to costs and it does so in an oblique and parenthetical way. It states,

    "Consideration is to be taken into account generally or in specific cases when determining best available techniques as defined in Article 2(11), bearing in mind the likely costs and benefits of a measure and the principles of precaution and prevention".
It goes on to list a number of specific "best available techniques".

I detect the hand of British Ministers and officials during the negotiations of that directive when I see the insertion of the requirement that costs and benefits should be taken into account. Hitherto that has not been the practice of the European Commission. I also detect the hand of the Commission in making sure that if that provision has to go in, it will go in obliquely and parenthetically in the last annex.

To my mind, that may or may not be effective. It is certainly much less clear and much less transparent than the concept of "best available techniques". In seeking to explain that, the Government have referred to what is now in the Bill and in the directive as "a similar concept"--that is referred to in paragraph 5 of the Explanatory Notes--or in a letter to my noble friend Lord Alexander of Weedon as not dissimilar to "best available techniques". That must mean much the same.

The Minister, in his reply to the Select Committee, was seeking to justify the use of more restrictive conditions than the normal application of the BAT or BATNEEC principle would provide. As I have said, that may be appropriate in certain circumstances. To my mind, the central problem at which the amendment is aimed primarily, is that the Bill does not spell out the required standards either as BATNEEC, or using the words of the directive, BAT and Annex 4.

As my noble friend has said from the Front Bench, BATNEEC is a concept familiar to most of those affected by this legislation. It has been embodied in UK legislation in the past. It is familiar to those who are charged with enforcing it and to those who have to make regulations under earlier legislation. The directive is not a community regulation that is directly applicable. I certainly support the Government in not trying to bring

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this in under the Act of 1972. It is left to member countries to decide how to implement the requirements in the directive.

In supporting the amendment I firmly express the view that to incorporate BATNEEC into our regulations will be to implement the directive. Therefore, I have two questions to put to the Minister. Do the Government consider that the combined effect of Article 2 paragraph 11, and the words that I read from Annex 4, are more or less demanding than BATNEEC? If the answer is "not dissimilar; they are much the same; they are similar to", my second question is this. If Parliament were to decide to prefer the words which have been used in legislation in this country for more than a decade and with which, as I said, everyone is familiar, do the Government believe that we would face a challenge in the European Court for not implementing the directive properly? If the answer to that is no, why can we not have the words that we are used to, rather than having to incorporate what, in effect, are different words, with the same meaning, from the European directive? BATNEEC is what everyone understands and it should be in the Bill. I support the amendment.

Baroness Hamwee: My Lords, perhaps I may use the amendment to ask a question on the same topic, but arising from the draft paper on implementation which is currently out for consultation. Draft Regulation 3 defines "best available techniques", which are said to be those which have been developed on a scale allowing implementation in the relevant sector,

    "under economically and technically viable conditions".

As I understand the word "viable", it means capable of supporting life independently. I am worried that the term "economically and technically viable" may find its way into the draft regulation because it suggests to me that the environmental standard may be lower than many would want to see. Perhaps I am at a different point in the spectrum from noble Lords who have already spoken. So often it can be argued that it is not economic to carry out a particular process, to apply a particular type of prevention, and so on. I would be grateful if the Minister could help the Committee at this point on the thrust of the definition within the draft regulations. Whatever the outcome of the debate on what is contained in the Bill, there will be regulations and they will not be amendable, so I wish to ask the question now.

Lord Whitty: My Lords, I regret that in relation to this amendment we do not follow the recommendations of the Select Committee on Delegated Powers and Deregulation for a specific reason that has not been mentioned by any speakers directly so far.

In response to the questions on the definitions of BAT and BATNEEC, in our view the concepts are indeed very similar. I have no means of knowing whether it was British influence that brought in the reference to costs in Annex 4, which is reflected in regulation 3 and in Article 2(11). With BAT as well as BATNEEC the intention is that cost is taken into account. I take the point of the noble Baroness that "viable" in this context

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may not be the appropriate word. Nevertheless, the draft regulation 3(1)(a) does relate to importing costs into the assessment.

The old techniques, BAT, will be at the heart of the new regime, as the directive ensures. The reason why we cannot be as absolute as the amendment would require is that there are circumstances in which we would need to be more restrictive than the BAT provisions would allow in order to comply with European or other international obligations. Clearly, the most obvious example--although it would be rare in practice--would be where European Community environmental quality standards, such as those for air quality, would be breached by the emissions from an installation which had otherwise complied with the BAT provisions. In those cases, more stringent conditions than those based on BAT would have to be applied in order to conform with the other directive. That is not dissimilar to the provisions of the Environmental Protection Act 1990, in particular Section 7 which enables the Secretary of State to specify in a direction the conditions to be imposed. In those circumstances, such direction would have overridden the BATNEEC requirement. Directions have been used under that provision to implement European directives such as the hazardous waste incineration directive where emission limit values have to be imposed under European law, even though they went beyond the previous BATNEEC provision.

We accept, as do the regulations and the directive, that BAT, as now defined, would apply in the vast majority of cases unless overridden by other international or similar obligations entered into by Her Majesty's Government. In the areas of air quality and hazardous wastes, BATNEEC of itself would probably not be sufficient to meet those standards. Therefore, we need a little latitude in this respect. I hope that with that explanation the noble Lord will feel able to withdraw the amendment.

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