Waste and Emissions Trading Bill [HL]
Memorandum by the Department for the Environment,
Food and Rural Affairs
The Waste and Emissions Trading Bill was introduced
into the House of Lords on 14 November 2002. This Memorandum:
- Summarises the main provisions of the Bill;
- Identifies the delegated powers in the Bill and
describes the purpose and proposed use of those powers;
- Explains why matters have been dealt with by
creating delegated powers;
- Explains the degree of Parliamentary control
on the exercise of those powers.
The Waste and Emissions Trading Bill contains 35
clauses and no Schedules. The main provisions of the Bill are:
Chapter 1 of Part 1 of the Bill is intended to give
legal effect to the obligations imposed by article 5(1) and (2)
of the Landfill Directive.
The aim of article 5(1) and (2) is to reduce the amount of biodegradable
waste which is sent to landfills.
Chapter 1 requires the Secretary of State to specify
the maximum amounts of biodegradable municipal waste which may
be sent to landfills from the whole of, and from each country
of, the UK in the target years specified by the Landfill Directive.
She may also specify the maximum amount of biodegradable municipal
waste that may be sent to landfills from each country of the UK
in years that are not target years under the Landfill Directive.
Chapter 1 then sets out the framework for a landfill
allowance scheme. Each allocating authority (the Secretary of
State for England, the Scottish Ministers for Scotland, the National
Assembly for Wales and the Department of the Environment for Northern
Ireland) is required to allocate allowances to waste disposal
authorities in its area. An allowance authorises a waste disposal
authority to send to landfills, in the year for which the allowance
is allocated, the amount of biodegradable municipal waste covered
by the allowance. Waste disposal authorities are under a duty
not to exceed their allowances. The details of the landfill allowances
scheme will be established in subordinate legislation made by
the appropriate authority in each country of the UK.
Chapter 1 also requires the appropriate authority
for each country of the UK to have a strategy for the reduction
of the amount of biodegradable waste sent to landfills.
Chapter 2 of Part 1 of the Bill provides for the
National Assembly for Wales to make regulations requiring local
authorities in Wales to have a strategy for the management of
waste and to provide information about waste.
Part 2 of the Bill relates to the emissions trading
schemes which may be set up in the future under the Pollution
Prevention and Control Act 1999 ('the PPC Act'). The Bill amends
the PPC Act to allow such schemes to provide for automatic financial
penalties for non compliance.
This Part also provides for the enforceability of
penalties, including fixed financial penalties, in the current
non-statutory UK Emissions Trading scheme.
Powers are delegated to the Secretary of State to
make regulations specifying the amount of biodegradable municipal
waste which may be sent to landfills from the whole of, and from
each country of, the UK in target years. The amounts specified
must be consistent with the UK's obligations under the Landfill
Directive. She may also, by agreement with the appropriate authority
for each country of the UK, make regulations specifying the amounts
of biodegradable municipal waste which may be sent to landfills
from each country of the UK in a scheme year that is not a target
The Bill provides an allocating authority with the
power to make regulations setting out the detailed requirements
of how the landfill allowance scheme will operate in its country.
Such regulations may make provision for the banking, borrowing
and trading of landfill allowances.
The Bill also provides an allocating authority with
a power to make regulations regarding the monitoring of the scheme.
Each allocating authority must appoint a monitoring body for its
area and may make regulations regarding the information and records
which waste disposal authorities and landfill operators are required
Chapter 2 applies to Wales only and provides the
National Assembly for Wales with powers to make regulations requiring
local authorities to have a strategy for the management of waste
and to supply it with information about waste in relation to its
Part 2 adds to the purposes for which regulations
under section 2 of the PPC Act may make provision by allowing
regulations to authorise the inclusion of penalties for contravention
of the provisions of schemes for trading of emissions quotas.
GENERAL PRINCIPLES OF DELEGATED POWERS UNDER THE
Powers are delegated under the Bill to:
- The Secretary of State in relation to the whole
United Kingdom and as the allocating authority for England;
- The Scottish Ministers as the allocating authority
- The National Assembly for Wales as the allocating
authority for Wales; and
- The Northern Ireland Department of the Environment
as the allocating authority for Northern Ireland.
In considering whether matters should be specified
on the face of the Bill or allocated to delegated legislation,
the Department has had regard to the need:
- to reflect the fact that although the Bill extends
to the whole of the UK, environmental protection is generally
a devolved matter. Therefore it is considered appropriate for
the details of the landfill allowance scheme to be established
in regulations by the appropriate authority for each country of
- to ensure flexibility in the legal framework
to allow for, in particular, amendments to the Landfill Directive.
The Scheme is intended to operate until 2020.
Under the Concordats on the Coordination of European
Policy Issues, the devolved administrations will be responsible
for meeting their share of the UK targets as provided for by regulations
made under clause 1 and for financial costs or penalties imposed
on the UK arising from their failure to meet their share of the
UK targets. Nevertheless, the obligation is for the UK as a whole
to comply with its European obligations and therefore it is appropriate
for the UK Government to allocate targets to the devolved administrations.
The Department considers that regulations under clause
1 and 2 which allocate targets to each country of the UK are sufficiently
important to be subject to the affirmative resolution procedure.
Clause 26 makes procedural provisions for all other
regulations under Part 1. It is proposed that regulations made
by the Secretary of State acting as allocating authority for England
should be subject to the negative resolution procedure. This is
in line with the procedures for the other countries. Regulations
made by the Scottish Ministers will be subject to annulment in
pursuance of a resolution of the Scottish Parliament. Regulations
made by the Department of Environment will be subject to the negative
resolution procedure within the meaning of section 41(6) of the
Interpretation Act (Northern Ireland) 1954.
Where reference to negative resolution procedure
is made in this memorandum, it is a reference to negative resolution
procedure in England, Scotland and Northern Ireland. The Government
of Wales Act deals with procedural matters for statutory instruments
made by the National Assembly for Wales.
Clause 31 amends the purposes for which regulations
under section 2 of the PPC Act may make provision. Regulations
providing for the inclusion of penalties in trading schemes would
be subject to negative resolution procedures.
Section 5(3) of the PPC Act provides that it is to
be taken as a pre-commencement enactment for the purposes of the
Scotland Act 1998. Thus, powers under section 2 of the PPC Act
so far as they are within devolved competence and are separately
exercisable in or as regards Scotland have transferred to the
Scottish Ministers. As the effect of clause 31 is merely to modify
the power in section 2, this modified power will be exercisable
by the Scottish Ministers without any further legal mechanism.
3 Council Directive 1999/31/EC (OJ L 182, 16.7.99,
If the UK takes the full four year derogation to which it is entitled,
the target years under the Landfill Directive are 2010,2013, 2020.