Members present:

Rev Dr William McCrea (Chairperson)
Ms Lewsley (Deputy Chairperson)
Mr Armstrong
Mr Ford
Mr McClarty
Mr Molloy
Mr M Murphy
Mr Poots
Mr Watson

Witnesses:

Mr N Simmons )
Ms J Purdy ) Department of the Environment
Ms E Harkness )
Mr D Campbell )

The Chairperson: Good morning and welcome to the officials from the Department of the Environment, Mr Simmons, Ms Purdy, Ms Harkness and Mr Campbell. They will be giving us an overview of the Bill, which the Committee wants to scrutinise as much as possible within the time agreed with the Minister.

Mr Simmons: The Bill has two types of provisions: those necessary to implement the integrated pollution prevention and control (IPPC) Directive and non-IPPC provisions. I will talk about the non-IPPC provisions in clauses 1,3 and 4, and my colleague, Ms Harkness, will talk about the remaining clauses and schedules that deal with IPPC. I also wish to give the Committee information on two amendments that we may ask the Minister to table at Consideration Stage. I will talk about one of those in the context of clause 4, and my colleague, Mr Campbell, from the Environment and Heritage Service, will talk about the other one, which would provide a grant-making power for the waste strategy and is outside the field of IPPC.

Clause 1 is the core provision of the Bill and sets out the purposes for which the powers in the Bill can be used. Subsection (a) is concerned with IPPC. Other than in pursuance of that Directive, subsection (b) regulates activities that can cause environmental pollution. That is the power, which we have mentioned to the Committee previously, to implement other measures by regulations under this Bill. Schedule (1), paragraph (20) on page 9, sets that out in more detail. Paragraph (20) lists several provisions that the Department can make regulations under for the purposes of this Bill. Sub-paragraph (b) is most important because it states:

Ms Lewsley: This was a council responsibility, which will move to the Waste Management Division. How long will the transition period be, and how many months will be allowed for the change?

The Chairperson: To keep the record straight we should declare our interest.

Mr Simmons: Article 47 of the Waste and Contaminated Land (Northern Ireland) 1997 Order says that the trigger date is the date that the new regulations come into force. Then all existing disposal licences currently regulated by councils will become waste management licences under the new regime, and responsibility will transfer to the Environment and Heritage Service. This clause is meant to deal with the three-year transition period, and the purpose is to move the three years.

The Chairperson: I want to ask a question on clause 2(4) about consultation. It says that

The Chairperson: They may not necessarily be representatives of the district councils.

Mr Simmons: No, but it is just to cover —

The Chairperson: They would be representatives of chief executives. Why consult representatives of chief executives when district councils carry the responsibilities?

Mr Simmons: This is to cover individual councils and any organisations that may represent their views.

The Chairperson: Yes, but that is still not the district councils themselves.

Mr Simmons: No, but consultation will cover all district councils individually.

The Chairperson: Will it? Your immediate answer was that that meant SOLACE. If you discuss something with the chief executives of councils, would you feel that you had the views of the councils?

Mr Simmons: No, but the intent is that district councils should be consulted individually.

The Chairperson: Then why not say that?

Mr Simmons: We could ask the Office of the Legislative Counsel to stipulate district councils as well as other interests. We will consider that.

The Chairperson: Are you sure about the wording of:

The Chairperson: How would you define the word "small"?

Mr Simmons: That is very subjective. We assess the impact on small businesses with regard to costs, et cetera.

The Chairperson: It is not in the definitions, is it?

Mr Simmons: No, it is not.

The Chairperson: So it could mean anything?

Mr Simmons: It could, except that we usually carry out a cost assessment exercise for small businesses, and that is why it is included. We are happy to consider any points that you wish to make on that.

Mr Ford: I want to ask about clause 1(c) and the trading licences that you spoke of in the schedule in paragraph 1 ongoing. Are you satisfied that that will necessarily cover all potential for trading across the UK? Is that included simply as an enabling provision? Is it not likely to be superseded by the UK-wide legislation and regulations made under that? I am not sure how legislation can be introduced in Northern Ireland to deal with trading on an intra-UK regional basis.

Mr Simmons: As I said at the outset, the 1990 Act originally made provision for a single UK-wide trading scheme. That was abandoned in favour of giving powers to individual regions. For example, a similar provision exists in the Scottish, English and Welsh and the Northern Ireland legislation. There is some debate about the difficulties of getting that into a national plan. It is far from clear how it will be done or how it will work in practice. We are simply providing the same mechanism that exists elsewhere in the UK.

Mr Ford: So, we must wait for Regulations and for the Department of Tansport, Local Government and the Regions or the Department of Trade and Industry to produce the —

Mr Simmons: We must wait for policy development and see how it will be taken forward.

Mr Ford: Paragraph 20(2)(d) of schedule 1 deals with the relevant Directives and their designation by Order. Would they be subject to negative or affirmative resolution?

Mr Simmons: To negative resolution.

Mr Ford: Why?

Mr Simmons: It would be negative unless specified otherwise.

Mr Ford: Is this not something of such consequence that if additional EU Directives are introduced, they ought to be properly debated in the Assembly?

Mr Simmons: As currently drafted, it is negative. If the Committee feels that it should be affirmative, we will look at that.

Mr Ford: I object to negative resolution in principle when it is to do with major matters or new legislation, and any new EU Directive is new legislation. Clause 4, subsection 6 states that

Ms Harkness: It is normal to use the term "concluded" rather than "commenced" to preserve the integrity of proceedings that have already started. It is easily definable in that we know when proceedings are concluded. If we used "commenced" when there are investigative processes and decisions to prosecute beforehand, we would have to decide exactly when proceedings "commenced".

There is also a matter of principle. Once proceedings have concluded, a court decision follows and something happens that is conclusive. One does not want to reopen that, because the complexities of saying that proceedings have commenced would be immense. If something illegitimate or unauthorised has been happening, and a process has begun to address that, why not continue with that process, given that what we are talking about is something that is illegitimate and something that we do not want to give protection to?

Mr Ford: You seem to adopting my argument. If a district council has commenced criminal proceedings and a smart barrister delays those proceedings while this legislation goes through, his client may get off on the grounds of delays in the court system rather than on the evidence presented.

Ms Harkness: That is a possibility. There will be hard borderline cases and people who will say that their proceedings might have concluded if things had happened more expeditiously. That is inevitable in any situation where there is a cut-off point. There will always be people just at that point.

Mr Ford: Yes, but why are you proposing to allow that cut-off point potentially to benefit those who have been engaging in criminal activity and have barristers smart enough to delay the proceedings?

Ms Harkness: It is not intended to give immunity to such people. The clause addresses a situation in which both parties, the district council and the operator, have continued to carry out relevant activities on the assumption that they were still authorised.

Mr Ford: Of course, there is the wider issue of whether people should be granted any exemption in that area. I know of many other areas under the Department’s control where it allows people to carry on blissfully, regardless of whether they have legal authorisation or not. Where anybody has gone beyond what is legal and a prosecution is underway, there is no logic for stopping the prosecution because of this Act, if it was an appropriate prosecution before the Act was introduced.

Mr Simmons: Anyone acting illegally is outside the scope of this clause. It only extends to people who were carrying out authorised activities within the scope of the original licence. Anyone carrying out an unlicensed activity is outside the scope of this clause, and, therefore, does not benefit at all.

Mr Ford: Surely if the licence has expired, the activity is no longer lawful.

Mr Simmons: This clause effectively legalises the licence, but only to the extent that the activities carried out were within the scope of the original licence. It does not say that if you were carrying out any activity, whether or not it was within the scope of the original licence, you get off.

Mr Ford: What is the context of the criminal proceedings mentioned in subsection 6?

Mr Simmons: There could be criminal proceedings before this clause took effect. This clause is only effective for activities carried out within 12 months of the passing of this Act and the new arrangements coming into operation. It is not open-ended and not totally retrospective.

Mr Ford: This subsection is not really dealing with that, because it refers to criminal proceedings.

Mr Simmons: There could be criminal proceedings for an activity within the meaning of this clause before the clause came into force, so it is to stop anybody in that situation claiming that it gets him off.

Mr Ford: He could get off if his barrister delays the court case.

Mr Simmons: No, not if the case is concluded.

The Chairperson: The Member has said something worthy, and this part needs to be looked at again. You emphasise the phrase "not if the procedure concluded", and our legal advice is that there is a difficulty with the interpretation of the word "concluded". It is open to legal challenge, as it can be interpreted in different ways. Therefore, we need to look at this again. We will be getting legal advice on what you have said this morning.

Mr Simmons: Can you clarify for me exactly what the Committee wants?

The Chairperson: We want the word "concluded" defined.

Mr Ford: I would like slightly more than that. I want to know why the word "concluded" is used, rather than some other word. Does "concluded" mean that a case has gone to the House of Lords, or the European Court?

The Chairperson: The Member’s point has to be investigated further for clarity. We must ensure that we are getting this right because of the two issues — the term "concluded", and the legal interpretation.

I want to draw your attention to clause 2(5), which refers to "consultation undertaken before the passing of this Act". The Department has said that that refers only to the first Regulations to be made under the Act, as specified by clause 2(8)(a). Should there not be a reference to subsection (8)(a) in clause 2(5), to identify the Regulations that this clause specifically refers to?

Mr Simmons: You have raised that point before. There is a difference between intent and interpretation, and the Department is happy to look at that. It should only apply in a limited set of circumstances — to those Regulations, and possibly to Regulations on the Landfill Directive, on which the Department will be consulting. I accept your point, and the Department will examine it.

The Chairperson: It is important that the intent be laid down clearly. If it is not, it will be another loophole for smart lawyers to drive a coach and horses through.

Ms Harkness: I am concerned about clause 2 of the Bill. Clause 2(1) gives the Department the Regulation- making power. The substance and detail of the new pollution control regime will be found in the Regulations that will be made under this enabling Bill. The scope of the Regulation-making power is found in clause 2(1) and clause 2(2), and the power to make Regulations is for certain specific, defined purposes. Those defined purposes are listed in schedule 1.

The Regulations must be in relation to the three matters that are mentioned in clause 1. That informs us of the parameters of the Regulation-making power. The remainder of clause 2 deals with consultation and procedure.

The list of purposes for which Regulations may be made under section 2 is in part I of schedule 1 of the Bill. The first group of purposes is headed "Preliminary". Paragraph 1 gives the power to make Regulations and establish standards, objectives and requirements. It also refers to quota trading and transfer schemes.

Paragraph 2 gives the power to make Regulations. That will give functions to the Department and the Secretary of State, and it will determine what bodies or persons will act as enforcing authorities. The enforcing authorities will be the chief inspector and the district councils, and the Regulations will divide the responsibilities between those two enforcing authorities.

Paragraph 3 states that the Department or the Secretary of State will be given power to give directions to enforcing authorities or, less stringently, guidance which enforcing authorities must regard. The possible subjects of those directions or guidance are contained in paragraphs 3(a), (b) and (c).

Paragraph 3(a) provides for directions to the effect that functions exercisable by one enforcing authority are to be exercised by another, or by the Department or the Secretary of State. Paragraph 3(b) covers directions given in order to facilitate implementation of international obligations. Environmental law is increasingly a matter of international concern, and this allows for that dimension. Paragraph 3(c) refers to more specific directions relating to the exercise of any function in a particular case or class of case.

The next group of purposes listed in the schedule are paragraphs 4 to 10, and they come under the heading "Permits". Paragraph 4 allows the Regulations to insist or impose the obligation to have permits subject to conditions. Paragraphs 5 and 6 go together. Paragraph 5 allows restrictions or other requirements to be imposed as part of the contents of the permits, and paragraph 6 refers to the imposition of conditions. They deal with what permits can allow or disallow.

It may be worth mentioning the reference to the phraseology "fit and proper persons" in paragraph 5. That demonstrates the overlap with waste management licensing; that requirement is taken from that legislation, and will have to be slotted in where appropriate for these permits.

Paragraph 7 relates to review or variation of permits. Paragraph 8 relates to transfer and surrender of permits, and revocation of permits by enforcing authorities. Paragraphs 9 and 10 deal with charging schemes for the grant of permits, and the various procedures involved in that. Paragraph 10 relates to charging schemes that will deal with issues such as covering the cost of testing or analysis expenses.

The next group of purposes listed in the schedule come under the heading "Information, publicity and consultation". Under paragraph 11, there may be Regulations to enable persons to compile and provide information on emissions, energy consumption and efficiency, which is part of the wider dimension that the Directive is introducing to pollution control and waste issues. Information will have to be forthcoming under those Regulations if they are made and approved.

Paragraph 12 allows for publicity to be given to specified matters, and a component part of that will be the requirement to keep registers of information that will be open to public inspection, and arrangements will have to be made for that. The Regulations will have to deal with the meaning of the phrase "commercially confidential" and how it is measured, enforced or administered. Under paragraph 13, the Regulations may make provision for consultation by enforcing authorities.

The schedule then moves to a group of paragraphs that come under the heading "Enforcement and offences". Paragraph 14 states that Regulations may be made to deal with monitoring and inspecting activities covered by permits, including the power to take samples or arrange for preventative or remedial action, and persons may be appointed to carry out those functions.

Paragraph 15 states that provision may be made for appropriate notices enforceable by High Court proceedings to be served on holders of permits and sets out the types of notices envisaged. Paragraph 16 states that permits may be suspended in particular circumstances as part of a process of enforcement or, at the very least, encouragement.

Paragraphs 17 and 18 concern the power to create offences. Paragraph 18 states that, when someone is convicted of an offence, there may be an order for remedial action, carried out either by the offender or by another party, but with the offender covering the costs. That would be in addition to, or instead of, punishment in the classic sense. That is obviously important in achieving the objectives. Regulations may be made to confer rights to appeal and govern the processing of those appeals — how they are to be heard and so on. Mr Simmons has already dealt with paragraph 20 in the course of his presentation.

That leaves us with part II of schedule 1, which has supplementary provisions to fill in gaps in what has gone before. Those cover the matters set out in paragraphs 21 to 26: particular types of pollution; determination of matters by enforcing authorities; more detail regarding the imposition of conditions; charging schemes; offences; and interpretation of the terminology used in the schedule.

That is the list of purposes that will set the parameters within which the Department may act in making Regulations. It points the way ahead for the next step in the process, which is consideration of the Regulations.

The Chairperson: Thank you very much for taking us through the Bill. There do not seem to be any questions — you are very fortunate, Ms Harkness. There is a great deal to be digested, and this is the first opportunity. I have no doubt that questions will occur to members.

Clause 7 states that

Mr Simmons: Clause 4 details one of the waste management provisions. The timing of that is dependent on the activity of the waste management licensing Bill, so it is a non-IPPC provision. Likewise, clause 6, which deals with amendments and repeals must, as Ms Harkness said, be phased in, as it is a complicated mechanism. The IPPC provisions will come into operation in line with the normal provisions of the Bill.

Ms Harkness: Those will come into operation immediately.

Mr Simmons: We are talking about the non-IPPC provisions. The IPPC provisions will be effective as soon as the Bill receives Royal Assent, because it is urgent.

Mr Molloy: I do not want to be of a suspicious mind, but it smacks of the power that the Minister in the South took upon himself in waste management. Is power being removed from district councils, so that the Department has an overall authority? District councils will still have the powers of implementation and the collection and disposal of waste.

Mr Simmons: In fairness, the decisions were taken several years ago in the context of the Waste and Contaminated Land (Northern Ireland) Order 1997. The principle behind it was to split responsibility for regulation and operation. Currently, district councils are responsible for operational matters, in that they collect and dispose of waste, and they are also responsible for regulation, in a sense, and in some cases it means that they regulate themselves.

The idea is to separate the responsibility for regulation from operation. The framework adopted was to leave responsibility with the councils for operational matters, but take the regulatory function and put it elsewhere.

Mr Molloy: So my suspicions are correct — decisions will be made and councils will be told what to do.

Mr Simmons: That is one interpretation. As I said, the decision was taken against the background of splitting responsibility for regulation and operational matters.

The Chairperson: Surely councils should have more power.

Mr Simmons: That issue is outside the scope of the Bill, which only builds on the decisions that were taken several years ago.

The Chairperson: That situation is in this Bill.

Mr Simmons: Yes, but it simply applies the decisions that were taken several years ago.

The Chairperson: We do not take decisions just because they applied years ago. We are constantly told that this is a new era where a decision does not apply just because it happened years ago. It is something that ought to be looked at.

Mr Simmons: The Bill simply applies the current statutory provisions. If the Committee wants to examine that, then we will take that on board, although currently the Bill works within the statute book, which is all it can do.

It would be helpful if the Committee had a copy of the Regulations when looking at schedule 1. We hope to supply a copy of the Regulations before summer recess, and that should facilitate your consideration of schedule 1.

Mr Ford: For once, I have a slight degree of sympathy with the departmental officials on the clause 2/schedule 1 issue. I do not accept the Minister’s assurance that the Bill is merely an enabling Bill. The fact that we have discussed some of the other aspects at length proves that the Committee was right to state that it is not an enabling Bill in its entirety.

I am interested in the contents of schedules 2 and 3, which are not explained in either the explanatory memorandum or any of the Department’s notes to which I have referred. There are approximately a dozen amendments and a dozen repeals. I understand the reference to the Water (Northern Ireland) Order 1999 but many other areas are unclear. Therefore perhaps it would be useful if the officials could provide the Committee with a written explanation of the amendments and repeals.

Mr Simmons: I am happy to arrange that.

Mr Armstrong: Paragraph 11 of schedule 1 refers to information, publicity and consultation. Who is charged with providing the information and publicity? Will persons other than the producers of the pollution be responsible? Will the Regulations also apply to third parties?

Mr Simmons: Under the Directive, there is a general requirement that information should be made publicly available. That means that everyone is responsible for the provision of information. A system of public registers, which will contain information relating to individual applications, will be made available. The only exceptions to that are instances of commercial confidentiality or national security.

Mr Armstrong: Paragraph 11(a)(ii) refers to information "on energy consumption and on the efficiency with which energy is used". Who will use that information?

Mr Simmons: The Directive requires all integrated pollution prevention and control (IPPC) permits to assess various environmental impacts, one of which is the efficient use of energy. Therefore, in granting the permit, the enforcing authority will assess the efficient use of energy, and the information that it collates and the determination to which it comes will be made available in the public register.

Mr Armstrong: Perhaps as we progress, there will be more questions.

The Chairperson: Paragraph 23 of the explanatory memorandum refers to powers of entry. Paragraph 25 states that the provisions comply with human rights requirements. Has the Human Rights Commission been consulted?

Mr Simmons: It has.

The Chairperson: The Local Air Quality Management Bill also proposed to provide powers of entry, and the Department has had to return to the Human Rights Commission with its proposals.

Mr Simmons: The commission was consulted on the policy proposals. It made no comment, but asked for the detail of the Regulations; therefore we will send it a copy.

The Chairperson: Will the Regulations be sent to the Human Rights Commission?

Mr Simmons: Yes.

The Chairperson: The Committee was informed that the Human Rights Commission had to reconsider the Local Air Quality Management Bill. Therefore it wants to ensure that the Pollution Prevention and Control Bill is checked. Has the Ulster Farmers’ Union (UFU) made any further recommendations on the poultry and pig aspect?

Mr Simmons: There have been no further representations relating to the Bill. However, as the Minister said on Tuesday, our colleagues in Environment and Heritage Service are working closely with the UFU and the Department of Agriculture and Rural Development in relation to the Directive. They have created two working groups, which meet regularly, to discuss the operational matters associated with the new controls. Therefore there is ongoing liaison, but nothing further has been recommended for the provisions of the Bill. However, we will send the Regulations on when they have been published.

The Chairperson: We will be interested in them, now that they are working together. I am sure that they have some idea of what has been said. Perhaps the Committee could have first-hand knowledge of what has been said in the working parties, to keep us abreast of that situation. In the past, we were promised that there were to be meetings between the Department and the Ulster Farmers’ Union, and found that they did not take place until 6.00 pm on the night before the Department was to appear before the Committee. I would like to be sure that those working parties were meeting.

When will we receive the draft Regulations?

Mr Simmons: We hope to furnish the Committee with a set —

The Chairperson: Are these the Regulations or the draft Regulations?

Mr Simmons: These are the draft Regulations, which will be published for consultation. They still have to be finalised, subject to the consultation papers, but they will be 98% complete, and will provide the Committee with enough information. When we publish for consultation, we will send the Committee a copy of the draft Regulations, accompanied by the consultation paper.

The Chairperson: Thank you.

Mr Simmons: There is one other proposed amendment.

Mr Campbell: The proposed amendment is connected to the waste management strategy. It seeks to broaden the powers available to the Department to provide direct grant aid and funding to the various stakeholders identified in the Waste Management Strategy, the obvious example being the voluntary sector. When we examined this matter and considered the various grant aids available, we found that we had a deficiency in terms of the powers available to us. They did not allow us to pay money directly. There are other mechanisms to circumvent that, but they are clumsy and administratively difficult, and involve joining up with other Departments and transferring money. It was felt that we should have direct powers available to us in order to provide grant aid, to form memberships of various groups and to provide funding over a wide range of areas.

The Chairperson: It is critical that we have the wording of your proposed amendment as quickly as possible.

Mr Campbell: We are working on that.

The Chairperson: We do not want to be bounced. We must be able to consider any amendments.

Mr Molloy: The cross-departmental roles that have been mentioned may be of benefit. Rather than proposing an amendment, is there a way of constructing a cross-departmental structure that would mirror the joined-up government approach?

Mr Campbell: That is correct. Those approaches are available, and we have been using those methods to get round the difficulty of not having direct powers. The perfect example is the industry fund, which the Minister launched on 6 June. That is a joint venture between Invest Northern Ireland, representing the Department of Enterprise, Trade and Investment, and the Department of the Environment. That works well, because they have expertise in the area of grant aid to industry and businesses of all sizes that we do not possess.

If we decided not to do that, however, we would not have had the choice, because we did not have the power to pay grant aid to industry. The real purpose is to provide options, and there may be occasions when it is useful to do something directly and quickly if necessary. As a Department, we cannot be seen to always be dependent on other Departments, which may have other priorities and resource issues.

The Chairperson: We are limited in time because the Minister wants this stage completed. The Department has to come back to the Committee on quite a few points, and we ask that that information be made available for next week. If, in the intervening period, you have any papers for members’ information in preparation for that discussion, we would appreciate their being sent on. The Department is setting the timescale, so must work with us to help us to fulfil our duty.

27 June 2002 (part ii) / Menu / 4 July 2002 (part i)