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Lord Whitty: My Lords, to some extent I understand the reasoning behind Amendment No. 9, but it is not an immediately obvious approach. If there is an agreed allocation by the allocating authority in England, and it moves at a certain pace over the years, it could be inferred that every waste disposal authority in England should reduce its waste disposal requirements at the same rate. That is not the intention of the Bill; it is that the Secretary of State in England should take into account each waste disposal authority's situation, its achievements so far, and the speed with which it can reasonably be expected to improve. Without subsection (5), it could be inferred

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that every local authority in England, and likewise in Wales, would follow the same trajectory to meet the same target. That is not the intention of the Bill. It gives the allocating authorities—the Secretary of State, in England—greater flexibility than might otherwise be claimed.

Lord Dixon-Smith: My Lords, I am fascinated. We have just agreed that a default formula is needed to apply at national level, but then that the default formula does not apply at local level so flexibility is needed. The difficulty is that the perverse interpretation of subsection (5) that I outlined is possible. Will the Minister look at its wording? It is unfortunate that it is included, when such an impossible interpretation could be made. A less ambiguous provision would be preferable. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Alteration of allocations under section 4]:

Lord Dixon-Smith moved Amendment No. 10:

    Page 4, line 9, after "time" insert ", before 31st December in the year before that for which an allocation has been made,"

The noble Lord said: My Lords, Amendment No. 10 is coupled with Amendment No. 11. The Bill, as drafted, allows an allocating authority—the Government in the case of England—to make changes at any time to the allocated allowances with which a waste disposal authority must comply. The effect of the amendment is to restrict the ability to make those changes to the period,

    "before 31st December in the year before that for which an allocation has been made",

and which the Minister wants to amend.

The lead planning time is not short-scale. It would be monstrous—as I believe the Minister will agree—if on the first day of the year the Government were to tell a waste disposal authority that its allocation had just been reduced by 20 per cent. Under the Bill, as drafted, that scenario is possible. It would not be unreasonable to require at least three or four months' notice on the face of the Bill.

As regards targets already incorporated into a waste reduction programme, it is unreasonable that once allocations have been properly planned for—there is a valid planning execution, particularly with a complying authority—the ground should suddenly be cut away from beneath the authority's feet by the Government's ability to change the allocations. These are significant small amendments, which will help everyone to move forward with more certainty. I beg to move.

Lord Livsey of Talgarth: My Lords, this is a reasonable amendment. We must consider the difficulties confronting local authorities during the planning process. The powers that the Secretary of State will have in relation to this proposal are rather open-ended. I am interested to know the Minister's opinion as regards lobbying by local authorities on

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matters such as this. It would be good to know whether he has received communications from local authorities objecting to this proposal.

Lord Whitty: My Lords, the anxiety behind Amendment No. 10 is understood. The Government's intention has been clearly set out to local authorities—at least so far as concerns England. The Government made clear at the beginning of the scheme their intention to allocate allowances to each waste disposal authority. Therefore, the planning lead time would be considerably longer than the lead time implied in the amendment; namely,

    "before 31st December in the year before".

Waste disposal authorities would know their allowances from the first year of the scheme through to 2020.

This part of the Bill allows a change in allowances in the light of unforeseen circumstances. I referred to this point in relation to an earlier clause. For example, should an outbreak of animal disease occur, an immediate relaxation of the targets for that year would probably be required. Looking back at the unfortunate events of 2001, the outbreak of foot and mouth occurred in February; the targets for the current and subsequent years would have been altered immediately in order to provide facilities whereby landfill could be used for waste disposal.

It would also be possible to think of other extraneous circumstances in which the allowances might be affected, either in relation to a particular authority or more generally. The Government consider it necessary to have these powers as a reserve position. Should the amendment be accepted, the Government would be allowed to change the allocation only if a change in circumstances had occurred prior to 31st December in the previous year. In view of the aims of this provision, Amendment No. 10 would be an unrealistic restriction. I hope that these amendments will not be pursued.

5.15 p.m.

Lord Dixon-Smith: My Lords, my first inclination, on hearing the Minister's comments, was to welcome the Government's intention to make allocations at the beginning of the scheme for the whole period of the scheme. I therefore began to think that my amendment was of less use.

However, the Minister went on to mention an outbreak of a major disease. The Bill is confined to "biodegradable municipal waste". We hope that the 30-year frequency of such tragic outbreaks is a thing of the past and that we shall not experience it again. With the greatest deference to the Minister, I do not think, by any stretch of the imagination, that the fact that such an outbreak occurred should affect what happens to biodegradable municipal waste, which is the concern of the Bill.

Lord Whitty: My Lords, to clarify matters, the capacity of landfill sites is affected.

Lord Dixon-Smith: My Lords, I accept that it affects the capacity of landfill sites. However, if the capacity

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of landfill sites is a problem, that is a matter which requires alternative steps. It does not require allocations such as this. It is a matter for planning and the provision of adequate facilities.

I have heard the Minister's comments. If anything, he has probably added some slight confusion. I shall not press the amendment for now. I shall need to study what the Minister said and think about it carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

Lord Dixon-Smith moved Amendment No. 12:

    Page 4, line 20, at end insert—

"( ) Any waste disposal authority which fails to agree with an alteration to its allocation may, within three calendar months of the publication of the alteration, appeal to the Secretary of State to have the alteration wholly or partially rescinded.
( ) The Secretary of State must publish his response and the reasons for it within the following three calendar months."

The noble Lord said: My Lords, Amendment No. 12 flows from our previous discussions. It raises an important point. If a waste disposal authority has its allocation altered, there should be a right of appeal, especially if it is altered downwards. If it were a case of expansion to meet a particular circumstance, that would be another matter. It would be rash to assume that the new system will be perfect. It will not. I imagine that within the total allocations distributed by the Minister, a certain amount of flexibility will be withheld. One area of flexibility is that the Minister might reduce some allocations. It struck us that, were he to do so, the waste disposal authority whose allocation was reduced should have the right of appeal against the reduction if it felt that it was being treated unreasonably. I beg to move.

Lord Livsey of Talgarth: My Lords, the first subsection in the amendment refers to a waste disposal authority appealing to the Secretary of State,

    "to have the alteration wholly or partially rescinded".

I can foresee a situation where wholly rescinding an alteration might be questionable; but there could be a marginal case for partially rescinding it where the proposal is seen to be unreasonable and the waste disposal authority does not believe that it can comply. I shall be interested to see whether the Minister will distinguish between "wholly" and "partially".

Lord Whitty: My Lords, the amendment would require an appeals mechanism to be established for appeals against alteration of the allocation. When we debated the previous amendment, I referred to alterations that might increase the allowance. This amendment clearly relates to alterations that might reduce the allowance. The exercise of the power to change the allowance downwards is already limited by Clause 5(2) and (3) of the Bill. Clause 5(2) provides

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that an allocating authority cannot withdraw an allowance that has already been utilised; and Clause 5(3) provides that an allocating authority,

    "must ensure that the total amount of biodegradable municipal waste authorised to be sent to landfills by allowances allocated by it for a year does not exceed the amount for the year specified",

under earlier clauses. Where an allocating authority does alter the allocation, it is required under Clause 5(4) to,

    "publish a statement . . . detailing the alteration, and . . . explaining the basis for it".

So there are significant restraints on the ability to alter, and alteration would have to be exercised reasonably. If the waste disposal authority felt that the power had been exercised unreasonably, it could seek a judicial review of the decision in terms of the basis for making the allowances.

I merely add that the way in which the appeals mechanism is specified in the amendment is slightly odd, since the appeal is made to the Secretary of State, when the alteration would have been made by the Secretary of State. In those circumstances it perhaps does not amount to much of an appeal.

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