Waste and Emissions Trading Bill [HL]
INTRODUCTION
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.
PART 1, CHAPTER 1 - EXTENT OF DELEGATION
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.
CRIMINAL OFFENCES AND PENALTIES
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.
CONCLUSION
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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