Climate Change Bill [HL] - continued          House of Lords

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Clause 40: Procedure for making regulations

172.     This clause sets out the procedure which must be followed when regulations containing a trading scheme are made or amended. It includes a requirement to consult persons likely to be affected by the scheme, a requirement to seek advice from the Committee on Climate Change and rules on parliamentary procedure.

173.     Subsection (1) provides that before making regulations about trading schemes, the relevant national authority must consult such persons as it considers are likely to be affected by the regulations, and also that it must seek, and take account of, advice from the Committee on Climate Change. In the case of schemes limiting activities, the authority must in particular obtain the Committee's advice on the appropriate level of the limit (subsection (2)).

174.     Subsection (3) sets out the circumstances in which the affirmative resolution procedure applies to the making of regulations (such as where a new scheme is established, the application of an existing scheme is extended, the burden on participants is increased, where enforcement powers are strengthened or where the regulations amend primary legislation), and subsection (4) provides that the negative resolution procedure applies at all other times.

175.     Subsection (5) makes special provision in relation to "reserved matters" in Northern Ireland. The relevant Northern Ireland department is only allowed to make provision in a trading scheme dealing with a reserved matter under the Northern Ireland Act 1998 (c.47), if it has obtained the Secretary of State's consent.

Clause 41 and Schedule 3: Other supplementary provisions

176.     This clause introduces Schedule 3, which makes further provision on the procedures to be followed when making regulations containing trading schemes.

Schedule 3

177.     Part 1 of Schedule 3 sets out the procedure to be followed where regulations are made by a single national authority. Paragraph 2 sets out the affirmative resolution procedure applying in Parliament and the devolved legislatures. Paragraph 3 sets out the negative resolution procedure applying in Parliament and the devolved legislatures. Paragraph 4 allows any regulations that could be made using the negative resolution to be made using the affirmative resolution procedure; this will allow, say, amendments which would otherwise have to be made using different procedures to be made in the same instrument.

178.     Part 2 of Schedule 3 sets out the process where regulations are made jointly between the Secretary of State and/or the Welsh Ministers and/or the relevant Northern Ireland department. The affirmative and resolution procedures apply as they do in Part 1. Where the affirmative resolution procedure applies, if either House of Parliament or the relevant devolved legislature does not approve the instrument, then the instrument cannot be made. Where the negative resolution procedure applies, if either House of Parliament or the relevant devolved legislature resolves that the regulations should be annulled, then nothing further can be done under the instrument and it may be revoked by Order in Council.

179.     Part 3 of Schedule 3 sets out the process for making joint trading schemes by Her Majesty by Order in Council. The Order in Council procedure is to be used in two situations. First, where a scheme extends or applies both to Scotland and to one or more of England, Wales and Northern Ireland. Secondly, where a scheme relates to matters which are within the legislative competence of the Scottish Parliament and also to other matters which are not within its legislative competence. Where the affirmative resolution procedure applies, Her Majesty cannot make an Order in Council unless all the relevant legislatures have passed a resolution approving a draft of the Order in Council. Where the negative resolution procedure applies, the Order in Council is laid before all the relevant legislatures; if any of them resolves that the Order in Council should be annulled, then nothing further can be done under the Order in Council and Her Majesty may revoke it.

Clause 42 and Schedule 4: Information

180.     This clause introduces Schedule 4 to the Bill, which contains powers to enable the collection of information for the purpose of developing a trading scheme. Schedule 4 allows the national authorities and certain agencies to require, by notice, electricity suppliers and potential participants in a trading scheme to provide information required for the establishment of the scheme.

181.     Subsection (2) is a "sunset" provision. It provides that the information-gathering (but not the information-sharing) powers in Schedule 4 will cease to have effect on 1st January 2011, the date by which it is anticipated that they will no longer be required.

Schedule 4: Trading schemes: powers to require information

182.     Schedule 4 contains powers that could be contained in regulations made under Part 3 of the Bill. The intention behind providing these specific powers on the face of the Bill is to allow information to be gathered for the establishment of the Carbon Reduction Commitment, a new trading scheme, within a relatively short time-scale. For more details of the Carbon Reduction Commitment, visit the dedicated page on Defra's website:

http://www.defra.gov.uk/environment/climatechange/uk/business/crc/index.htm

183.     Schedule 4 makes provision about who is able to exercise the information gathering powers; these are the national authorities, the Environment Agency and the Scottish Environment Protection Agency, collectively referred to as the "environmental authorities" (paragraph 1).

184.     It provides that the environmental authorities can seek information, for the purposes of enabling a trading scheme to be established, from electricity suppliers and distributors (paragraph 2) and from the potential participants in a trading scheme (paragraph 3). The information that may be collected includes, among other things, information about contact details, electricity meters, levels of electricity consumption and any climate change agreements (within the meaning of Schedule 6 to the Finance Act 2000 (c.17)) that have been entered into.

185.     If an environmental authority requests information (in writing) from a person under this Schedule, and the person does not comply with the request within 28 days, the authority may issue a formal notice requesting the information. Paragraph 4 sets out the requirements relating to such formal notices. A person who fails, without reasonable excuse, to comply with a notice, or who provides false or misleading information (either knowingly, or suspecting that it is false or misleading) is guilty of a summary offence and liable to a fine not exceeding level 5 on the standard scale (currently £5000). (paragraph 5).

186.     Paragraph 6 allows information collected using the powers in Schedule 4 to be shared with the other environmental authorities or with the administrator of the trading scheme. This is the only paragraph in the Schedule which is not subject to the sunset provision in clause 42(2).

Clause 43: Powers to give guidance

187.     This clause gives the relevant national authority (see clause 39) the power to give guidance to an administrator of a trading scheme about how to carry out its functions. The administrator is required to have regard to guidance issued to it.

Clause 44: Powers to give directions

188.     This clause gives the relevant national authority (see clause 39) the power to give general or specific directions to an administrator of a trading scheme. The administrator must comply with directions given under this clause.

Clause 45: Grants to administrators and participants

189.     This clause enables the relevant national authority (see clause 39) to make grants to participants of trading schemes and impose conditions when giving a grant.

Clause 46: Power to make consequential provision

190.     This clause gives the relevant national authority (see clause 39) the power to make regulations amending, repealing or revoking primary or secondary legislation as a consequence of regulations made under this Part of the Bill, and to make any transitional and saving provisions in connection with such amendments, repeals and revocations.

Interpretation

Clause 47: Interpretation of Part 3

191.     This clause defines the terms "administrator", "participant" and "trading period" used in Part 3.

Part 4: Impact of and adaptation to climate change

Clause 48: Report on impact of climate change

192.     This clause places a duty on the Secretary of State lay a report before Parliament, from time to time, setting out an assessment of the risks of the current and predicted impact of climate change for the UK.

193.     Subsections (2) and (3) require the Secretary of State to lay the first report before Parliament no later that three years after the Act comes into force, and subsequent reports at intervals of no more than five years. Subsection (4) allows the Secretary of State to extend the period for laying a report, but requires him to publish a statement setting out his reasons and saying when the report will be laid.

194.     Subsection (5) places a duty on the Secretary of State to send a copy of the report to each of the devolved administrations.

Clause 49: Programme for adaptation to climate change

195.     This clause requires the Secretary of State to prepare a Government adaptation programme.

196.     Subsection (1) places a duty on the Secretary of State to lay before Parliament an adaptation programme covering the Government's objectives in relation to adaptation to climate change, and its proposals and policies for meeting these objectives (indicating an appropriate timescale). The programme should be based on the report on climate change risks under clause 48.

197.     Subsection (2) provides that the objectives, proposals and policies should contribute to sustainable development.

198.     Subsection (3) provides that subsequent reports must include an assessment of the progress made towards implementing the objectives, proposals and policies in the earlier reports. Subsection (4) requires the Secretary of State to lay the adaptation programme before Parliament as soon as is reasonably practicable after laying his report under clause 48 and subsection (5) requires him to send a copy of it to each of the devolved administrations.

Clause 50: Programme for adaptation to climate change: Northern Ireland

199.     This clause requires the relevant Northern Ireland department to prepare an adaptation programme.

200.     Subsection (1) places a duty on the relevant Northern Ireland department to lay before the Northern Ireland Assembly an adaptation programme covering its objectives in relation to adaptation to climate change, and its proposals and policies for meeting these objectives (indicating an appropriate a timescale). The programme should be based on the report on climate change risks under clause 48.

201.     Subsection (2) provides that the objectives, proposals and policies should contribute to sustainable development.

202.     Subsection (3) provides that subsequent reports must include an assessment of the progress made towards implementing the objectives, proposals and policies in the earlier reports. Subsection (4) requires the relevant Northern Ireland department to lay the adaptation programme before the Northern Ireland Assembly as soon as is reasonably practicable after the report under clause 48 has been laid before Parliament and subsection (5) requires the department to send a copy of it to the Secretary of State, the Scottish Ministers and the Welsh Ministers.

Part 5: Other provisions

Waste reduction schemes

Clause 51 and Schedule 5: Waste reduction schemes

203.     This clause and Schedule 5 (which it introduces) allow for the making of waste reduction schemes, which are schemes to incentivise occupiers of domestic premises to produce less waste and recycle more of what they produce.

204.     Subsection (1) provides for Schedule 5 to amend the Environmental Protection Act 1990 (c.43). It does so by adding to that Act a new section 60A, which provides that a waste collection authority whose area is in England may make a waste reduction scheme in accordance with a new Schedule to that Act, Schedule 2AA. It is Schedule 2AA which details what a waste reduction scheme is and how it must be made.

205.     Subsection (2) provides that Schedule 5 may only be brought into force in accordance with clauses 52 and 54, which allow the Secretary of State to designate certain areas where waste collection authorities may make waste reduction schemes on a pilot basis; following the pilots waste reduction schemes may subsequently be rolled out to all other areas in England, if the Secretary of State so decides.

206.     Subsection (3) provides that for the purposes of clauses 52 and 54, "the waste reduction provisions" means the provisions inserted by Schedule 5 and any subordinate legislation made under those provisions.

Schedule 5: Waste reduction schemes

207.     Paragraph 1 inserts new section 60A into the Environmental Protection Act 1990, allowing a waste collection authority in England to make a scheme in accordance with new Schedule 2AA.

208.     Paragraph 2 inserts a new Schedule 2AA into the Environmental Protection Act 1990.

209.     Paragraph 3 inserts new wording into section 161(4) of the Environmental Protection Act 1990 (instruments subject to affirmative resolution) to include certain orders which may be made under the new Schedule 2AA.

New Schedule 2AA of the Environmental Protection Act 1990

210.     New Schedule 2AA, consisting of sixteen paragraphs, sets out the detail on waste reduction schemes.

211.     Paragraph 1(1) describes the purpose of a waste reduction scheme, being to provide a financial incentive to produce less domestic waste and recycle more of what is produced, thus reducing the amount of residual domestic waste. Paragraph 1(2) and (3) provide that a scheme may cover the whole or any part of the area of a waste collection authority, and that it may apply to all domestic premises, to domestic premises other than those of a description specified in the scheme, or to those domestic premises whose descriptions are specified in the scheme.

212.     Paragraph 2(1) sets out certain conditions which a waste collection authority must have satisfied before it puts a scheme into effect, being (a) that a good recycling service is available to the occupiers of premises within the scheme, and (b) that the scheme takes account of the needs of groups who might be unduly disadvantaged by it, and (c) that the authority has a strategy for preventing, minimising or otherwise dealing with the unauthorised deposit or disposal of waste.

213.     Paragraph 2(2)(a) defines a "recycling service" as arrangements for the collection of recyclable domestic waste from premises separately from other waste, and paragraph 2(2)(b) defines a "good" recycling service as a service which meets the standards specified in guidance issued by the Secretary of State. Paragraph 2(3) allows the Secretary of State by order to amend paragraph 2(1) and (2).

214.     Paragraphs 3 to 7 deal with the rules on how authorities may impose charges and give rebates or make payments within a scheme.

215.     Paragraph 3(1) states that a waste reduction scheme must provide for a financial incentive which the authority considers will be effective to achieve the purpose of the scheme. By paragraph 3(2), this incentive may be provided by means of rebates from council tax or by other payments, or by means of charges under paragraph 4 or 5, or by any combination of those means.

216.     Paragraph 4(1) allows a waste reduction scheme to require occupiers to place residual domestic waste for collection in receptacles of a specified kind, and allows for a charge to be made by the authority in respect of those receptacles. Paragraph 4(2) specifies that any charge made for receptacles provided must be related to the size or number of the receptacles (or both), but need not be related to the authority's costs in providing them. Paragraph 4(3) allows the scheme to make provision as to the person who must pay any such charge. Paragraph 4(4) provides that a charge made under this paragraph is in addition to any charge which an authority may make under section 46 in respect of the cost of providing the receptacle.

217.     Paragraph 5(1) allows for a scheme to impose a charge in respect of residual domestic waste collected from premises within the scheme. Paragraph 5(2) specifies that the amount of any charge under paragraph 5(1) must be related to the amount of residual domestic waste collected, and need not be related to the authority's costs. Paragraph 5(3) allows the scheme to make provision as to the person who must pay any such charge.

218.     Paragraph 5(4) allows for the scheme either (a) to require any charge to be paid in advance on the basis of an estimate of the amount of residual domestic waste that is likely to be collected from the premises, or (b) to require payments in respect of any charge to be made on account or by instalments.

219.     Paragraph 6 sets out supplementary provisions in relation to charging. Paragraph 6(1) allows the Secretary of State by order to limit the amount of a charge under paragraph 4 or 5 that may be imposed in respect of any premises in any financial year. An order under this paragraph would be subject to annulment following a resolution of either House of Parliament (negative resolution procedure), as paragraph 6 is not included in the amendment to section 161(4) of the Environmental Protection Act 1990 (see paragraph 3 of Schedule 5 to the Bill, discussed above).

220.     Paragraph 6(2) provides that where an occupier does not comply with provisions of a scheme made under paragraph 4 or 5 (i.e. where an occupier fails to pay a charge imposed by a waste reduction scheme), this does not affect an authority's duty under section 45(1)(a) of the Environmental Protection Act 1990 to arrange for collection of his household waste.

221.     Paragraph 6(3) provides that section 45(3) of the Environmental Protection Act 1990, which places a general prohibition on charging for collection of household waste, takes effect subject to the ability of authorities to make charges under paragraphs 4 and 5.

222.     Paragraph 7(1) provides that from year to year, and taking one year with another, the aggregate amount of charges under paragraph 4 or 5 must not exceed the aggregate amount of the rebates or other payments under the scheme. This means that where the payment of charges is required, schemes must be revenue neutral. Paragraph 7(2) allows the Secretary of State by order to amend paragraph 7(1). Paragraph 7(3) stipulates that any such order amending paragraph 7(1) may also make consequential amendments to paragraph 4(2) or paragraph 5(2).

223.     Paragraph 8(1) states that an authority must comply with the requirements in paragraph 8(2) and (3) on communicating the provisions of a scheme, before the scheme comes into operation. Paragraph 8(2) provides that an authority must publish the scheme in such manner as it considers appropriate. Paragraph 8(3) provides that an authority must send to the occupier of any premises within a scheme a notice detailing the requirements of the scheme with regard to collection, any rebates or other payments available and the manner in which they are to be made, and any charges and the manner in which they are to be collected.

224.     Paragraph 9 provides that a scheme must contain provision enabling a person to appeal against any decision affecting, directly or indirectly, that person's entitlement to a rebate or other payment, or liability to pay a charge, under the scheme.

225.     Paragraph 10(1) provides that an authority must keep a separate account of any rebates or other payments under the scheme and any charges received by it under the scheme. Paragraph 10(2) allows any person interested to inspect the account and make copies of it or any part of it, at any reasonable time and without payment. Paragraph 10(3) and (4) provide that it is an offence for any person having custody of the account to obstruct intentionally a person exercising their rights under paragraph 10(2), and that a person guilty of such an offence is liable to a fine not exceeding level 3 on the standard scale (currently £1000).

226.     Paragraph 11(1) provides that where a waste collection authority that operates a scheme is not also the waste disposal authority for that area, the waste disposal authority may pay to the collection authority contributions of such amounts as the disposal authority may determine towards expenditure of the collection authority which is attributable to the scheme. The possibility of such payments by the disposal authority has been provided for because a disposal authority may benefit from a scheme by having less waste to deal with, but such a benefit would arise from the implementation of a waste reduction scheme by the collection authority.

227.     Paragraph 11(2) provides that the collection authority must supply information to the disposal authority to enable the disposal authority to determine the appropriate level of payment under paragraph 11(1).

228.     Paragraph 12 gives the Secretary of State the power to make regulations as to the administration of waste reduction schemes. Regulations under this paragraph would be made under negative resolution procedure (see section 161(2) of the Environmental Protection Act 1990).

229.     Paragraph 12(1) enables such regulations to make provision about how the amount of any rebate or other payment is to be determined and how it is to be given, and how any charge is to be determined and how it is to be collected or enforced.

230.     Paragraph 12(2) allows the regulations to provide that the administration of a waste reduction scheme may be integrated with the administration of council tax (and by sub-paragraph (2)(b) the regulations may provide for consequential modification of council tax legislation). Paragraph 12(3) provides further detail on this: in particular, the regulations may provide: (a) for including material relating to the scheme in the council tax demand notice, (b) for applying the procedure for appeals about liability to council tax to questions arising under the scheme, and (c) for applying the procedures on enforcement of council tax liability to any liability under the scheme.

231.     Paragraph 13 allows an authority to use information it obtains under council tax legislation for the purposes of administering a waste reduction scheme.

232.     Paragraph 14(1) allows an authority to amend or revoke its scheme. Paragraph 14(2) provides that, before bringing an amendment into operation, the authority must publish the amended scheme in such manner as it thinks appropriate and, if the amendment affects any matters previously notified to occupiers, send a notice to the occupier of any premises within the scheme explaining the effect of the amendment.

233.     Paragraph 14(3) states that the amendment or revocation of a scheme does not affect any entitlement or liability under the scheme in respect of a period before the amendment or revocation takes effect. Paragraph 14(4) states that the revocation of a scheme does not affect the duty of an authority to comply with paragraph 7(1), the requirement of revenue-neutrality.

234.     Paragraph 15(1) allows the Secretary of State to issue guidance to waste collection authorities and waste disposal authorities as to the exercise of their functions in relation to waste reduction schemes. Paragraph 15(2) provides that any such guidance must be published in such manner as the Secretary of State considers appropriate and may be amended or replaced by further guidance, or revoked. Paragraph 15(3) provides that waste collection authorities and waste disposal authorities must have regard to any such guidance.

235.     Paragraph 16(1) defines the terms "domestic premises", "domestic waste", "enactment", "recyclable waste" and "residual domestic waste" used in Schedule 2AA. Paragraph 16(2) allows the Secretary of State by order to amend the definition of "domestic premises". Paragraph 16(3) states that references in Schedule 2AA to recycling include re-using and composting.

 
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Prepared: 15 November 2007