20. The Committee made an initial Report on this
bill in its First Report for 2002-03.
In the light of that Report, the Department of Environment, Food
and Rural Affairs has submitted a supplementary memorandum to
the Committee. This addresses the Committee's two concerns relating
to excessive delegation and criminal and civil penalties. The
Department acknowledges that this is an unusual bill and gives
an explanation for the extent and enabling nature of the bill.
The memorandum is printed at Annex X to this Report.
21. The constitutional position has largely shaped
the structure of this bill. In particular, the Committee recognises
that the only way of granting the National Assembly for Wales
the freedom which it is the Government's policy to grant is to
confer wide powers to make subordinate legislation. If the House
approves the principle that that Assembly should have the same
degree of autonomy here as is accorded in relation to Scotland
and Northern Ireland (but for suspension of the Assembly) by the
fact that these are not reserved matters, then there really is
no other way of proceeding.
22. This raises the question whether, for England,
it is acceptable for the bill to leave so much to delegated legislation.
The Committee concludes that the extent of delegation is acceptable
in the light of the position under this bill elsewhere in the
United Kingdom. But the Committee considers that there must be
the opportunity for a debate on the way in which the wide powers
conferred by the bill will be used. Accordingly, it considers
that the first regulations which apply in relation to England
and are made in exercise of the powers conferred by each of clauses
6 (borrowing and banking of landfill allowances) 7 (trading and
other transfer of landfill allowances) and 10 (scheme regulations)
should be subject to affirmative procedure. It is for consideration
whether similar provision should be made for Scotland and Northern
Ireland (subject to suspension of the Assembly).
23. We also consider that the delegation of
such wide powers to allocating authorities is appropriate only
if accompanied by an express statutory obligation to consult those
representing the disposal authorities, landfill operators and
others affected by proposed regulations.
24. The Department says it is considering further
the question of maximum penalties for offences created under clause
6 and clause 7, and mentions the levels set out in Schedule 2
to the European Communities Act 1972. We would find the delegation
to create offences acceptable if those levels were to be applied.
25. In its supplementary memorandum, the Department
explains why no maximum penalty is set in the bill for regulations
under clause 25 and in relation to clause 31. We accept the reasons
given by the Department. In the absence of a maximum, the express
consultation requirement mentioned at paragraph 23 would provide
some safeguards against inappropriate levels of penalty.
26. With the exceptions discussed above we
find the delegations contained in the bill and the level of Parliamentary
2 . HL Paper
9, Session 2002-03. Back