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Baroness Farrington of Ribbleton: I clearly said in reply to the noble Lord, Lord Hanningfield, that where there was a minor variation, that would be logical particularly if steps were being taken. I am sure that he would understand that, if I placed on record the fact that if the districts were failing to do anything to improve the future pattern, there would be no sanction, that would be an unwise and counter-productive statement. The allocating authority, which is the Secretary of State, would have the power to relieve penalties and not the Environment Agency.
I have listened carefully. The noble Lords, Lord Greaves, Lord Hanningfield and Lord Dixon-Smith, know that I have listened with knowledge and with understanding to the points that have been made about those parts of England that have two-tier authorities with separate collection and disposal
authorities. We are giving consideration to the points that they have raised. I understand the point that is being made, and I have no doubt that it will be referred to later today. We do not believe that the amendments would help that situation. Perversely, they could work against it.
Lord Hanningfield: The reply of the noble Baroness is helpful. We hope to hear more about that later today, and if not, certainly at the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.30 p.m.
Lord Greaves moved Amendment No. 61:
- Page 8, line 26, at end insert—
The noble Lord said: On this amendment I return to the nature of orders and regulations made under the Bill and whether they should be negative instruments or affirmative instruments. When I moved Amendment No. 59, I referred to the report of the Delegated Powers and Regulatory Reform Committee, on which there was debate. I shall not go over that ground again. The other amendments in this group, particularly those tabled by the noble Lord, Lord Dixon-Smith, seem on reflection to be better ones to tag this debate on to. That does not matter; we can debate it as a whole.
It seems that, but for devolution to Wales, Scotland and Northern Ireland, some of the regulations that will be made under this Bill would be dealt with in primary legislation. If this were simply an English Bill, the issues would be dealt in primary legislation. Those of us who want to move amendments at later stages have to get our minds round which provisions that applies to. There is a prima facie case for saying that any regulation that in different circumstances would have been contained in primary legislation should be an affirmative instrument and not a negative instrument. Does the Committee understand the point I am making?
Some of the regulations in this Bill are clearly ordinary regulations that would normally be negative instruments. However, some need to be considered as possible affirmative instruments because of the nature of them. The argument procedure at least provides slightly more scrutiny when the order comes to Parliament. It is still not satisfactory because it is still on the "take it or leave it" basis, whereas primary legislation is subject to scrutiny in Committee.
If the Government have their mind round this, it would be helpful to know which of the regulations set out in this Bill would have been in the Bill itself in the circumstances I have talked about. If the Government are able to tell us that in an honest way, it would at least inform the debate and narrow it down to more than just all the regulations in the Bill which we are
Lord Dixon-Smith: My amendments are Amendments Nos. 148, 150 and 151, grouped with this. Their impact is designed to make all regulations under Part 1, Chapter 1 of this Bill subject to positive resolution because, as the noble Lord, Lord Greaves, has already said—which I will repeat only once, like the man in "'Allo, 'Allo"—it guarantees greater parliamentary scrutiny. I readily accept that some of the regulating powers in this part of the Bill might not have that applying to them normally. Because of the way the Bill is constructed, however, we have to do it this way. I support the noble Lord.
Baroness Farrington of Ribbleton: These amendments address the concerns of the Delegated Powers and Regulatory Reform Select Committee, who recommend that there should be provision in the Bill to debate the way in which the wide powers of the Bill will be used. The Committee recommended that the first use of the powers in England should be subject to affirmative resolution. These are matters for the Scottish Ministers on amendments relating to Scotland and we wish to discuss them further with those ministers. We will look more closely at the recommendations of the Select Committee on regulations that relate wholly to England and give further views on Report. I hope that in the light of these comments, noble Lords will feel able to withdraw their amendments.
Lord Greaves: I am grateful to the Minister for that reply, which was as helpful as I was hoping it might be. It would help if we could have advance information of what the Government's intention may be on Report, so that we can react accordingly. We do not want to go over the top if what we are doing is similar to what the Government would like to do. The sooner we can have clear information on what the Government propose to do, the easier it will be for us to respond and the better the House will proceed with its business.
Baroness Farrington of Ribbleton: I can give that undertaking, because quite patently it is in everyone's interests that all Members receive the earliest possible information.
Lord Greaves: I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Disclosure of information by monitoring and allocating authorities]:
Lord Livsey of Talgarth moved Amendment No. 63:
The noble Lord said: This is a simple amendment which leaves out the word "may" and inserts the word "shall". It is important that there is a duty for that
Amendment No. 64 removes reference to "any allocating authority". I interpret that as meaning that monitoring information will become freely available—that is a matter of freedom of information—so that the public know what is happening. Amendment No. 65 seeks to replace "may" with "shall", and I make the same points as I did when speaking to Amendment No. 63.
Lord Dixon-Smith: Amendments Nos. 64 and 66 are in the group. Their purpose is simple: to try to retain what I would call normal lines of communication between the different levels of government within the United Kingdom. It seems to me entirely appropriate for one allocating authority to talk to another allocating authority; in other words, England should talk to Scotland or England should talk to Wales. It is also entirely appropriate that the allocating authority in England should talk to the monitoring authority in England, and it is entirely appropriate that the allocating authority in Scotland should talk to the monitoring authority in Scotland.
However, the Bill appears to imply that the allocating authority in England can cross-examine or obtain information from the monitoring authority in Scotland and the monitoring authority in Scotland can cross-examine the monitoring authority in England. I believe that that cuts across what I would regard as the normal lines of communication and creates some diagonals which may be unfortunate. I would have thought that if English waste were to be disposed of in Scotland, recorded by the Scottish monitoring authority, the proper line of communication would be for the English allocating authority to ask the Scottish allocating authority what information it was receiving from its monitoring authority. I am sure that the information would be made available and, in that way, the normal etiquette, as I understand it, would be preserved.
The problem arises when there are diagonal lines of communication. Perhaps the diagonal lines of communication already exist and we have a confused pattern of communication. It is not necessary for the Scottish Parliament to go to an English government department if it wants to question someone who, in a sense, is doing something in England on behalf of Scotland. Perhaps I have a confused state of mind—it is not unknown.
Lord Stoddart of Swindon: In reply, perhaps the noble Baroness could clarify for me the difference between "may" and "shall". When I have been involved in other Bills and there has been a move to substitute "may" with "shall", I have usually been told that "may" means "shall" anyway. There really is a difference and it could well be that it is not in the interests of one monitoring authority to disclose information to another. There may be a good reason for that. If we insert the word "shall", then the authorities will have to disclose information, whether they like it or not and whether or not there are good operational or policy reasons why they should not. Perhaps the noble Baroness can clear up my confusion.
"( ) Regulations under this section shall not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament."
Page 10, line 4, leave out "may" and insert "shall"
"A monitoring authority may disclose any of its monitoring information to any other monitoring authority".
We seek to change the wording to:
"A monitoring authority shall disclose any of its monitoring information to any other monitoring authority".
That would enable the information to be much more widely spread, which is important.
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