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The Government have not made a case for changing the existing practice of judges in having regard to guidelines. The noble and learned Lord, Lord Mayhew,

28 Oct 2009 : Column 1229

put his finger on that critical point. The case has not been made, and certainly not at this time, with the new council just coming into effect. Let us look at it again in a few years if we must-but not today. I wish to test the opinion of the House.

7.44 pm

Division on Amendment 83

Contents 66; Not-Contents 124.

Amendment 83 disagreed.

Division No. 1


Alton of Liverpool, L.
Anelay of St Johns, B.
Astor of Hever, L.
Bew, L.
Brooke of Sutton Mandeville, L.
Caithness, E.
Cathcart, E.
Colwyn, L.
Cope of Berkeley, L.
Craigavon, V.
De Mauley, L.
Dundee, E.
Eccles, V.
Eccles of Moulton, B.
Elton, L.
Ferrers, E.
Fookes, B.
Gardner of Parkes, B.
Garel-Jones, L.
Henley, L.
Hogg, B.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
James of Blackheath, L.
Jenkin of Roding, L.
Jopling, L.
Kennedy of The Shaws, B.
King of Bridgwater, L.
Laird, L.
Listowel, E.
Lloyd of Berwick, L. [Teller]
Lyell, L.
McColl of Dulwich, L.
Maginnis of Drumglass, L.
Marlesford, L.
Masham of Ilton, B.
May of Oxford, L.
Mayhew of Twysden, L.
Montrose, D.
Morris of Bolton, B.
Neill of Bladen, L.
Noakes, B.
Northbrook, L.
Norton of Louth, L.
O'Cathain, B.
Pannick, L.
Patten, L.
Perry of Southwark, B.
Puttnam, L.
Ramsbotham, L.
Roberts of Conwy, L.
Rogan, L.
Seccombe, B. [Teller]
Selkirk of Douglas, L.
Sheikh, L.
Soulsby of Swaffham Prior, L.
Stair, E.
Stern, B.
Stewartby, L.
Strathclyde, L.
Taylor of Holbeach, L.
Ullswater, V.
Verma, B.
Walpole, L.
Williamson of Horton, L.


Acton, L.
Adams of Craigielea, B.
Addington, L.
Ahmed, L.
Anderson of Swansea, L.
Archer of Sandwell, L.
Bach, L.
Barker, B.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Bonham-Carter of Yarnbury, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burnett, L.
Campbell-Savours, L.
Chidgey, L.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Cotter, L.
Crawley, B.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
D'Souza, B.
Dubs, L.
Evans of Parkside, L.
Falkner of Margravine, B.

28 Oct 2009 : Column 1230

Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Garden of Frognal, B.
Goodhart, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greaves, L.
Grocott, L.
Hamwee, B.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jay of Ewelme, L.
Jones of Cheltenham, L.
Jones of Whitchurch, B.
Judd, L.
Kilclooney, L.
King of West Bromwich, L.
Kirkwood of Kirkhope, L.
Lea of Crondall, L.
Lee of Trafford, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Low of Dalston, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mackie of Benshie, L.
Maddock, B.
Mandelson, L.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Neuberger, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Neill of Clackmannan, L.
Pendry, L.
Prosser, B.
Razzall, L.
Redesdale, L.
Rendell of Babergh, B.
Roberts of Llandudno, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Sewel, L.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Soley, L.
Steel of Aikwood, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Warwick of Undercliffe, B.
Whitaker, B.
Wilkins, B.
Williams of Crosby, B.
Woolf, L.
7.54 pm

Amendments 84 and 85 not moved.

Clause 116 : Determination of tariffs etc

Amendments 86 to 89 not moved.

Clause 117 : Resource implications of guidelines

Amendment 89ZA

Moved by Baroness Linklater of Butterstone

89ZA: Clause 117, page 71, line 43, leave out "demand for" and insert "resources required for the provision of"

Amendment 89ZA agreed.

Consideration on Report adjourned until not before 8.55 pm.

28 Oct 2009 : Column 1231

Environmental Noise (England) (Amendment) Regulations 2009

Copy of the Order
25th Report from Merits Committee
27th Report from the Merits Committee

Motion to Take Note

7.55 pm

Moved By Lord Rosser

Lord Rosser: My Lords, the issues that I want to raise are set out in the Merits of Statutory Instruments Committee's 25th report to the House of 22 July this year. I am a member of that committee.

In its report, the committee drew the Environmental Noise (England) (Amendment) Regulations 2009 to the special attention of the House on the grounds that this instrument is politically and legally important. It is important because it inserts an ambulatory reference into the 2006 environmental noise regulations by exercising a power contained in the European Communities Act 1972, as amended by the Legislative and Regulatory Reform Act 2006. The power to create ambulatory references was drawn to the special attention of the House by the Delegated Powers and Regulatory Reform Committee during the passage of the Legislative and Regulatory Reform Act 2006.

While the power has been used by a number of departments in relation to technical amendments to EU legislation, the use of the power in the instrument that we are considering is the first time it has been used, of which the Merits Committee is aware, when it could allow for substantive changes to an EC directive to be directly applicable to this country. That is because Regulation 3(3) of the Environmental Noise (England) (Amendment) Regulations 2009 adds at the end of the definition of "Directive" the words,

The Explanatory Memorandum that accompanied this instrument referred to the effect of this by saying in paragraph 7.6:

"There is a possibility that there will be changes to the",

EC directive relating to the assessment and management of environmental noise,

A subsequent note from the Department for Environment, Food and Rural Affairs confirmed that it was conceivable that this ambulatory reference could cover substantive matters which might impact on costs for public authorities and the timescales over which actions are required to be taken. In other words, Defra confirmed that the scope of the ambulatory reference in this instrument would not be confined to amendments of a technical nature.

Adding this ambulatory reference to the 2006 regulations means that some future changes, including significant ones, to the EC directive on environmental

28 Oct 2009 : Column 1232

noise could be directly applicable to the UK, whereas previously an amending statutory instrument, subject to parliamentary procedure, has been needed to implement any changes to the directive.

The Select Committee on the European Union has also raised a general issue of concern about ambulatory references and the fact that a statutory instrument may be used automatically to implement future amendments of an existing EC directive. The committee pointed out in a letter to the Minister for Europe that the absence of further domestic legislation to implement an amending directive meant that there would be nothing in domestic law for the Merits Committee of the House to scrutinise. As a result, this would render the initial scrutiny of EC instruments undertaken by the EU committee even more important, as it would be the only opportunity for parliamentary scrutiny in these cases.

Following consideration of the Environmental Noise (England) (Amendment) Regulations 2009 by the Merits Committee, a letter was sent to the Minister of State at Defra, Jim Fitzpatrick MP, by the noble Baroness, Lady Maddock, setting out the concerns of the committee about the breadth and significance of the ambulatory reference in this instance. In his reply of 8 October, included in the Merits Committee's 27th report published on 22 October 2009, the Minister of State set out the reasons why the department had not limited the ambulatory reference to purely technical changes or, alternatively, to certain defined areas of the directive. However, the Minister concluded his response by saying that, having considered the Merits Committee's concerns as set out in its report, in this case the department had decided that it would be preferable to limit the ambit of the ambulatory reference to the technical aspects in the annexes to the directive, and that it intended to amend the regulations to that effect.

I want to raise some points in the light of that response from the Minister of State at Defra. In his response, he pointed out that the scope of paragraph 1A of Schedule 2 to the European Communities Act 1972 was not limited to technical amendments but could apply to amendments when the department considered it necessary or expedient. I am of course aware that there is an agreed Whitehall position on ambulatory references since it is set out in the Merits Committee's 25th report, published on 22 July 2009. That position statement says that to minimise the risk of any unintended results, departments are asked to note that the ambulatory reference can apply only to certain sections or parts of a Community instrument such as an annexe, which does not appear to have been the case in this instance.

It also says that care should be taken before the power to make ambulatory references is used because of the effect that an ambulatory reference may have, as it will catch all future amendments to the Community instruments and not just technical ones. Such future amendments, says the agreed Whitehall position statement, may be significant and may not necessarily be foreseen at the time of making the ambulatory reference. I do not know whether the welcome change in Defra's stance reflects a doubt on whether this part of the agreed Whitehall position was initially given as much weight as it might have been. It would be very helpful

28 Oct 2009 : Column 1233

if my noble friend could indicate whether the initial Defra position on the breadth and significance of the ambulatory reference in the Environmental Noise (England) (Amendment) Regulations 2009 was in line with the agreed Whitehall position as set out in Appendix 1 of the 25th report of the Merits Committee.

It would also be helpful if my noble friend could tell us the Government's stance on ambulatory references of the breadth and significance of the one that we are discussing in the light of the concerns expressed by the Merits Committee and the welcome change of view by the Minister of State at Defra. Finally, can my noble friend give some assurances that since effective parliamentary scrutiny is more important than administrative convenience, we will not see from any department any further ambulatory references that in the words of the current agreed Whitehall position will catch not just technical amendments but all future amendments to the Community instrument in question, which may be significant and may not necessarily be foreseen at the time of making the ambulatory reference?

8.05 pm

Lord Taylor of Holbeach: My Lords, I thank the noble Lord, Lord Rosser, for introducing the debate and note that the members of the Merits Committee were indeed right back in the summer to review the lack of definition in this Government proposal. I have some serious concerns and questions which I hope the Minister will be able to address.

I wonder whether the Government have considered any other ways of implementing these regulations which I note affect only England. For example, are the authorities in the devolved areas making changes? If so, do those changes follow exactly in all respects the ones being proposed for England? If not, in what respects do they differ? In particular, will the devolved Administrations amend the definition of "directive" precisely as proposed here?

The Merits of Statutory Instruments Committee has drawn attention to the effect that the proposed Regulation 3 change to the definition of directive will have. It suggests that any change to the European directive will be passed straight into English law without Parliament having any opportunity to debate it. In relation to the committee's concerns, Defra commented that if,

In view of the amount of bad practice demonstrated by Defra and its agencies-I am thinking of the Rural Payments Agency and Pirbright over the past few years-that statement comes into the "You cannot be serious" category. There is no certainty that such a law change will be known to all but a few and no chance that it can be democratically challenged.

Defra also commented in reference to the ambulatory reference that,

It is surely relevant that these costs will have to be met by the taxpayer and it is wrong to refuse Parliament the opportunity to discuss the implications. Can the

28 Oct 2009 : Column 1234

Minister tell the House the implications for resources-personnel and the like-and costs in general? What is the timescale against which they will be incurred?

The Explanatory Memorandum to these regulations states that the directive aims to determine exposure to environmental noise through noise mapping. So far, mapping covers 23 agglomerations-major roads, major railways and major airports. Is it envisaged that noise mapping will cover noise sources only from urban areas or those installations affecting a large area of land, or will it expand to cover smaller areas, for example, villages or hamlets? After all, noise disturbance can be particularly distressing in rural areas. Will Regulation 5 result in a wider dissemination of the location of quiet areas? Is Regulation 6 a response to the failure so far of the Government to attain the targets laid down in the existing regulations? Did the Government meet the September 2007 deadline and if not, where did they fail? There are no time limits set in the proposed Regulation 6, so what is the Government's timetable for laying down the limit values or other criteria that will determine action plans? How long will it then take to produce such plans?

The use of criteria to determine eligibility for anything can lead to serious errors. How will these criteria be assembled, discussed, implemented and reviewed, by whom and at what intervals? These regulations could have far-reaching consequences. Not only are important elements of our constitutional checks and balances affected, there is a real danger that it will set hares running and costs escalating with no parliamentary accountability.

I repeat that I am grateful to the noble Lord, Lord Rosser, for giving us an opportunity to challenge their introduction, and indeed for educating me and, I hope, the wider world, of the significance of ambulatory references. It also gives the Minister a chance to explain what the Government are up to.

Lord Greaves: My Lords, I congratulate and thank the noble Lord, Lord Rosser, on initiating this short debate. It is extremely important that this matter is discussed on the Floor of the House and that the issues involved are put on record. I agree with the noble Lord, Lord Taylor; I am not sure how many of us had ever heard of ambulatory references before this came up or, in the case of some of us, before we started to research for this little debate two or three days ago. As always, at the end of the week, I will go home, and they will ask, "What have you been up to down there?". I will say, "We've been causing the Government grief". They will say, "Great! What about?". I will say, "Ambulatory references", and they will look at me as though I am mad. However, joking apart, this is an important matter because it is about the right of Parliament, and this House in particular, properly to scrutinise legislation that derives from European directives. The Merits Committee has done the House a service in looking into this matter, identifying it and raising it, as has the European Committee. We should be grateful to the noble Lord, Lord Roper, and my noble friend Lady Maddock for taking it up directly with Defra Ministers on behalf of those committees and pursuing it so actively.

I do not want to add anything very much to what the noble Lord, Lord Rosser, has already said about the real issue. His explanation was admirable in making

28 Oct 2009 : Column 1235

a difficult, technical and quite obscure issue very clear. I thank him for that. The important matter is how far these ambulatory references-which mean that once a European directive and the amendments have been agreed, it goes straight into English law rather than having to come through as a statutory instrument-can be properly scrutinised. The noble Lord set that out admirably.

I read all the correspondence from Defra Ministers, but I did not understand half of it. I came to the view, which I always come to, perhaps slightly arrogantly, that if I cannot understand it, some of it must be gobbledegook. I suspect that gobbledegook is the wrong word, but the arguments that have been put forward and are set out in the two reports from the Merits Committee are a little obtuse, to put it mildly. When I come across the word "expediency", I am always a bit dubious, as the noble Lord, Lord Taylor, knows from our discussions on the marine Bill. The word "expediency" seems to be an excuse for bureaucrats to put things through without going through proper procedures, due process or proper scrutiny. That appears to have been the situation in this case.

The noble Lord, Lord Taylor of Holbeach, widened the discussion to cover the substantive issues in these regulations. I wondered whether we should do that today and came to the view that we should not, although they raise a number of interesting issues about how this directive has been transposed and how it will be carried out. Some of us will certainly want to look at this as time goes on to see what happens because it seems to have all the hallmarks of a system that might be quite expensive and bureaucratic and result in very little in practice. However, that is for another day.

Today, we should say the fact that we are having this debate and that Jim Fitzpatrick, the Minister of State at Defra, has agreed that the regulations should be amended to remove the part of the ambulatory reference that we find offensive is a victory for the scrutiny system of this House. I do not think that we should think that we should not stand up and say that. In particular, this is a vindication, yet again, of the setting up of the Merits Committee, which is one of the greatest procedural things to have happened while I have been a Member of this House.

Jim Fitzpatrick's letter promises amending regulations. He writes:

I do not think those amending regulations have yet been published. One further question to the excellent questions that the noble Lord, Lord Rosser, posed is: when can we expect that the amending regulations will be published?

8.15 pm

Lord Patten: My Lords, I thank the noble Lord, Lord Rosser, for taking me into constitutional and procedural waters wherein I have never before paddled. I do not think that I am of such learning that I could

28 Oct 2009 : Column 1236

improve on the questions about the ambience of ambulatory references that my noble friend Lord Taylor of Holbeach has already put to the Minister in his characteristically crisp and forensic way. However, we have the order at large in front of us this evening, and I am, apart from the noble Lord, Lord Rosser, the sole representative of the ordinary Back-Bench Peer in the street to speak this evening. I know that Front Benchers like the noble Lord, Lord Greaves, seek to limit the debate, but I think it is terribly important that we look at the substance of the regulations that we have in front of us and do not bow to the pressure from the Liberals to limit ourselves in speaking across the wider range.

I speak only where my pay grade takes me. It does not take me into constitutional waters, but it does take me to read the statutory instrument, which is shot through with a number of issues. I have examined these regulations, so let me give some context from the point of view of concern over the quality of life for our citizens in England and how it can be improved. One damaging aspect of the way we live and consume now is the production of sometimes nearly unbearable, often very disturbing, noise. Another example is the parallel problem of overlighting and the consequent pollution of the night sky. Light and noise pollution are twin scourges, but tonight we are concerned only with noise pollution and its abatement.

I also speak as someone who does not like the burden of regulation-exactly like my noble friend Lord Taylor of Holbeach on the Front Bench-and who recognises that the political zeitgeist is moving away from targets and performance tables to more localism in decision-making. In truth, both are necessary preconditions for good government; it is just that finding the golden mean between the two is very hard.

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