Select Committee on Delegated Powers and Regulatory Reform First Report

Waste and Emissions Trading Bill [HL]


22.  This bill is largely concerned with landfill targets and allowances, etc. for biodegradable municipal waste (Part 1, Chapter 1). There are also provisions about waste management in Wales (Part 1, Chapter 2) and trading of emissions quotas (Part 2). The provisions of the bill are summarised at the beginning of the Department's memorandum. This report does not consider all the delegated powers in the bill, but is made before Second Reading in order to draw the House's attention to two important matters.


23.  The bill sets out the policy framework for a scheme of landfill targets. Regulations must specify targets for the UK, England, Scotland, Northern Ireland and Wales for "target years" (which will be those set out in the EC Landfill Directive) and may (with the agreement of the relevant Scottish, Welsh or Northern Irish authority) specify targets for other years up to 2019. The relevant authorities in England, Scotland, Wales and Northern Ireland then allocate allowances to waste disposal authorities in their area to achieve the target for their area.

24.  Nearly all the details of the operation of the scheme are left to regulations. Clauses 6 (borrowing and banking of landfill allowances), 7 (trading and transfer), 10 (scheme regulations), 11 (powers in relation to waste disposal authorities), 12 (powers in relation to landfill operators), 14 (monitoring information: registers) and 15 (registers - public interest) are purely enabling. The non-exhaustive lists in many of the relevant clauses give an indication of how it is expected the powers may be exercised; clauses 6(2) and 7(2) give policy direction by preventing the power from being used in a particular way.

25.  Crucial to the understanding of this Bill is that the powers in each of clauses 6, 7, 9, 10, 11, 12, 14 and 15 are exercisable territorially by:

  • the Secretary of State (England),
  • Scottish Ministers (Scotland),
  • the Department of the Environment (Northern Ireland), and
  • the National Assembly for Wales (Wales).

Environmental matters of this sort are generally speaking devolved matters. The policy of the Bill is that, though targets are set centrally, it is for devolved decision as to how those targets are to be met. As the National Assembly for Wales cannot enact primary legislation, the detailed provisions in respect of Wales have to be implemented by secondary legislation. It would have been possible, in England and Scotland at least, for these provisions to have been implemented in primary legislation. The Government has apparently rejected the option of proceeding by primary legislation in those jurisdictions, in the interest of a uniform approach across the United Kingdom. This raises issues which go well beyond the delegation of powers. The Department alludes to these problems in its memorandum to the Committee, but does not fully explain them.

26.  The bill is, effectively, almost a "skeleton bill". We have previously reported unfavourably on such bills, which leave many important matters to ministerial discretion. Even where the powers in the bill are subject to affirmative procedure, Parliament can only accept or reject what is proposed. It cannot amend it. Had this bill applied only to England, we would have considered seriously whether to recommend that some of what is proposed to be done by regulations should appear on the face of the bill. We appreciate that the highly unusual structure of the bill was to some extent dictated by the different legislative procedures under the devolution arrangements. While we do not propose any amendment at this stage, we draw the House's attention to the extent of the delegated powers in the bill.


27.  Clauses 6(3)(j) and 7(3)(l) enable regulations to create criminal offences. In each case there is a maximum penalty set out in the bill which is the same as that for offences created by regulations under the Pollution Prevention and Control Act 1999. This limit, though high (maximum 5 years imprisonment), is therefore precedented, but the question needs to be raised whether the precedent is relevant. It is not clear what offences under regulation 6 in particular (even if they involve dishonesty) could justifiably attract a maximum penalty of 5 years imprisonment and the Department has not made out a sufficient case for this level of penalties.

28.  Clauses 6(3), 7(3) and 10(3) enable regulations to provide for a penalty in certain circumstances. Clauses 8(2) and (3) and 11(3) themselves provide for a penalty. Clause 25 enables the allocating authority to specify penalties (or specify rules for calculating them) for each of those provisions. There is no maximum penalty for which the regulations may provide; nor is there an indication on the face of the bill or in the Department's memorandum of how these penalties will be calculated. We invite the House to consider whether some principles for calculating the penalty should be set out in the bill itself. Similar considerations apply to clause 31 about emissions quota trading schemes.


29.  We will consider this bill further before the beginning of the Committee Stage. But at this point, we wish to draw the House's attention to the important matters of principle relating to the overall level of delegation (paragraph 26 above) and offences and penalties (paragraphs 27 and 28 above).

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