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COMMITTEE FOR THE ENVIRONMENT TOGETHER WITH THE MINUTES OF PROCEEDINGS, MINUTES OF
EVIDENCE, Ordered by The Committee for the
Environment to be printed 3 October 2002 COMMITTEE FOR THE ENVIRONMENT: Powers The Committee for the Environment is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, Section 29 of the NI Act 1998 and under Assembly Standing Order 46. The Committee has a scrutiny, policy development and consultation role with respect to the Minister of the Environment and has a role in the initiation of legislation. The Committee has power to:
Membership The Committee has 11 members including a Chairperson and Deputy Chairperson with a quorum of five. The membership of the Committee is as follows: Dr William McCrea (Chairperson)
1 Ms Patricia Lewsley replaced Ms Carmel Hanna as Deputy Chairperson on 21 January 2002. 2 Mr Billy Armstrong replaced Mr James Leslie on 8 April 2002. 3 Mr David McClarty replaced Mr Tom Hamilton on 26 February 2001, who had previously replaced Mr Tom Benson on 29 January 2001. Mr Benson died on 24 December 2000. 4 Mr Francie Molloy replaced Mr Mitchell McLaughlin on 4 February 2002. 5 Mrs Mary Nelis replaced Mr Mick Murphy on 1 July 2002. 6 Mr Michael Coyle replaced
Mr Arthur Doherty on 16 September 2002. TABLE OF CONTENTS Evidence on the Bill obtained by the Committee Clause by Clause Consideration Background to the Committee’s Scrutiny Differences with current Legislation Consideration of the Clauses of the Bill Related issues considered by Committee Appendix 1 – Minutes of Proceedings Appendix 2 – Minutes of Evidence Appendix 3 – Written Evidence and Correspondence considered by the Committee
1. The Pollution Prevention and Control Bill (the Bill) was referred to the Committee for consideration in accordance with Assembly Standing Order 31(1) on completion of the Second Stage of the Bill on 25 June 2002. 2. The Minister of the Environment (the Minister) made the following statement under Section 9 of the Northern Ireland Act 1998: "In my view the Pollution Prevention and Control Bill would be within the legislative competence of the Northern Ireland Assembly." 3. The stated purpose of the Bill is as follows: (i) make provision for implementing Council Directive 96/61/EC and for otherwise preventing and controlling pollution; (ii) amend the transitional provisions in relation to waste management licences in Article 47 of the Waste and Contaminated Land (Northern Ireland) Order 1997; (iii) make provision about certain expiring disposal licences; and (iv) for connected purposes. EVIDENCE ON THE BILL OBTAINED BY THE COMMITTEE 4. During the period covered by this Report, the Committee considered the Pollution Prevention and Control Bill and related issues at fifteen meetings: 6 September 2001, 22 November 2001, 18 and 25 April 2002, 30 May 2002, 6, 13, 20 and 27 June 2002, 4 July 2002 and 5, 12, 19, 26 September 2002 and 3 October 2002. The Minutes of Proceedings for these meetings are included at Appendix 1. 5. The Committee had before it the Pollution Prevention and Control Bill (NIA 19/01) and the Explanatory and Financial Memorandum that accompanied the Bill. 6. This Bill transposes the EC Directive 96/61/EC on Integrated Pollution Prevention and Control (the Directive) to ensure that Northern Ireland meets fully its EU obligations – the effective date for transposition of the Directive in all Member States was 31 October 1999. However, the transposition process formally commenced in Northern Ireland on 25 June 2001 when the Department of the Environment (the Department) issued a public Consultation Document inviting comments on its proposals for relevant primary and subordinate legislation. (Appendix 3, Annex 1 refers. The full Consultation Document may be viewed on www.nics.gov.uk/ehs.) 7. The Committee considered the Consultation Document and the Department’s proposals at its meeting on 6 September 2001 and identified a number of areas that required clarification before a final response could be made. A letter detailing the Committee’s initial concerns was sent to the Department on 11 September 2001. (Appendix 3, Annex 2 refers.) 8. The Department replied to the Committee on 10 October 2001. (Appendix 3, Annex 3 refers.) Following further consideration, the Committee sent a formal response to the Consultation Document on 22 November 2001. (Appendix 3, Annex 4 refers.) 9. On 14 December 2001, the Department wrote to acknowledge receipt of the Committee’s letter of 22 November 2001 and responded to two of the principal concerns highlighted by the Committee, namely, Simplified Permitting arrangements and Site Restoration. (Appendix 3, Annex 5 refers.) 10. Following agreement between the Committee and the Minister, in March 2002, on mutual co-operation to progress a number of Bills coming before the Committee, to comply with EU Directives, the Department wrote to the Committee on 3 April 2002, enclosing a copy of the Policy Memorandum that had been sent to the Executive Committee for approval. The Department also enclosed a summary of all responses received to its earlier Consultation Document. (Appendix 3, Annex 6 refers.) 11. On 25 April 2002 Department Officials attended the Committee’s meeting and gave a presentation on the principal provisions of the proposed Bill and to explain how the Department addressed the various responses to the Consultation Document. (The Speaking Notes of the Officials are included at Appendix 3, Annex 7.) The Officials subsequently answered questions from the Committee. 12. Following the presentation of 25 April 2002, the Committee wrote to the Department on 8 May 2002 with further questions and concerns, for example, exceptional circumstances for financial support for the farming industry. The Committee also asked for early sight of the text of the draft Bill. (Appendix 3, Annex 8 refers.) 13. On 21 May 2002 the Department wrote to advise the Committee that, on 16 May 2002, the Minister had written to the Executive Committee to seek agreement to proceed with the introduction of the Bill. (Appendix 3, annex 9 refers.) Subject to the Executive Committee’s agreement, it was intended to introduce the Bill to the Assembly on 10 June 2002 with the Second Stage Reading on 18 June 2002. The Department enclosed a draft copy of the proposed Bill, along with a draft Explanatory and Financial Memorandum (EFM). The Department highlighted that many of the Committee’s comments to date on the proposals have been concerned with matters more likely to be covered in the Regulations which will flow from the enabling powers within the proposed Bill. 14. On 22 May 2002 the Minister wrote to the Committee Chairperson to express his concern at the proposed timetable for the Bill and associated Regulations. The Minister advised the Committee that, on 7 March 2002, the European Court of Justice had issued a judgment in favour of the European Commission that had commenced infraction proceedings against the United Kingdom because of its ongoing failure to transpose the Directive in Northern Ireland. The Minister wrote: ‘This timetable does not sit easily alongside the anticipated pace of progress on the infraction case. Therefore, anything that can be done to expedite the passage of the Bill and therefore reduce the infraction risk must, in my view, be explored fully. Agreement to accelerated passage for the Bill would almost certainly mean that the Bill could complete its Assembly passage and receive Royal Assent by January/February 2003. This, in turn, could enable the Regulations to be debated before dissolution in March.’ (Appendix 3, Annex 10 refers.) 15. The Minister concluded by inviting the Committee to consider his request for accelerated passage and indicated that he would be willing to attend a meeting of the Committee to discuss the matter. 16. On 28 May 2002 the Department replied to the Committee’s letter of 8 May 2002 which detailed a number of questions arising from the presentation to the Committee by Officials on 25 April 2002. (Appendix 3, Annex 11 refers.) In its letter, the Department detailed the financial and other support made available to farmers in Great Britain and confirmed that similar provisions and charges would be included within the Northern Ireland Regulations. 17. At the Committee’s meeting on 30 May 2002, Department Officials attended to answer Members’ questions on the Minister’s letter of 22 May 2002, particularly on the effects of accelerated passage and the likely timetable needed to progress the Bill through the Assembly. The Committee agreed to invite the Minister to its next meeting on 6 June 2002 to discuss the matter further. 18. On 5 June 2002 the Committee wrote to the Department asking for clarification on the fees to be paid as a consequence of this legislation, particularly within the farming industry. (Appendix 3, Annex 12 refers.) The Committee also expressed a desire to meet with senior Officials from the European Commission, should they visit Northern Ireland in the near future. 19. The Minister attended the Committee meeting on 6 June 2002, accompanied by Department Officials. After making an opening statement, the Minister answered questions from the Committee on a range of issues – notably, the timetable for progression of the Bill through the Assembly under accelerated passage. 20. After the Minister had left the meeting on 6 June 2002, the Committee discussed and voted on his proposal for accelerated passage for this Bill. The Committee Chairperson wrote to the Minister on 7 June 2002 as follows: ‘The Committee could not agree to support your proposal for accelerated passage. Eight Members were present and the vote to support your proposal resulted in a tie – under Standing Order 26(6) the Motion falls. Should it be decided to take this Bill through normal procedure, I can assure you that the Committee would be mindful of the issues you have raised regarding the need for the Bill to receive Royal Assent and the key Regulations to be operational before dissolution in March 2003.’ (Appendix 3, annex 13 refers.) 21. In response, the Minister wrote to the Committee Chairperson on 11 June 2002 with a revised proposal: ‘….a proposal that if the Committee could undertake to complete Committee Stage scrutiny and its Report by mid-September 2002, I would not proceed with the Motion for accelerated passage. The Bill would then go to Consideration Stage in late September. In this way, the Bill would go through by normal procedure, while at the same time ensuring as far as possible that there will be sufficient time to enable both the primary and subordinate legislation to be in place before dissolution.’ (Appendix 3, Annex 14 refers.) 22. At its meeting on 13 June 2002 the Committee discussed the Minister’s letter of 11 June 2002 and unanimously agreed to accept the proposal for normal procedure and scrutiny for the Bill with the objective of publishing the Committee Stage Report by mid-September 2002, on the understanding that one additional week may be needed. The Committee also agreed to write to a number of key interested parties for their views on the Bill, after it was introduced to the Assembly. 23. On 14 June 2002 the Chairperson wrote to the Minister to advise him of the Committee’s agreement to undertake a scrutiny of the Bill with the objective of completing the Committee’s Report by mid-September 2002. (Appendix 3, Annex 15 refers.) 24. On 14 June 2002 the Department replied to the Committee’s letter of 5 June 2002. (Appendix 3, Annex 16 refers.) The Department confirmed that the level of fees for agricultural installations in England and Wales is similar to that in Scotland and that the details of the proposed charges for Northern Ireland across all sectors will be published later this year for public consultation. 25. On 17 June 2002 the Minister introduced the Bill to the Assembly. 26. On 18 June 2002 the Committee wrote to those key interested parties, identified by the Committee on 13 June 2002, seeking comments and, in particular, any concerns on the specific terms of the Bill. (Appendix 3, Annex 17 refers.) 27. On 25 June 2002 the Assembly agreed the Second Stage of the Bill. (Appendix 3, Annex 18, Hansard Report refers.) 28. On 27 June 2002 Department Officials attended the Committee’s meeting and gave a structured clause-by-clause presentation on the Bill before answering questions from the Members. (The Speaking Notes of the Officials are included at Appendix 3, Annex 19.) 29. On 1 July 2002 the Department wrote to the Committee to clarify and confirm some of the responses and undertakings given to Members during the meeting of 27 June 2002. (Appendix 3, Annex 20 refers.) The letter confirmed that the Department was prepared to accept some of the amendments suggested by the Committee, explained why some suggested amendments were considered inappropriate and updated the Committee on ongoing discussions with the farming industry on implementation arrangements for the legislation. 30. On 4 July 2002 Department Officials attended the Committee’s meeting and answered Members’ questions on the Department’s letter of 1 July 2002 and related issues. As there was insufficient time to deal with all of the concerns of Members, it was agreed that outstanding questions would be put in writing to the Department. 31. On 8 July 2002 the Committee wrote to the Department with the outstanding questions from its meeting of 4 July 2002. (Appendix 3, Annex 21 refers.) A response that the Committee had received as part of its consultation exercise with key interested parties was also forwarded to the Department for comments on the points raised. (Appendix 3, Annex 22 refers.) 32. On 6 August 2002 the Department wrote to the Committee responding to its 8 July letter. (Appendix 3, Annex 23 refers.) 33. On 19 August 2002 the Committee received a response from the Northern Ireland Meat Exporters Association (NIMEA) which was forwarded to the Department for comment. (Appendix 3, Annex 24 refers). 34. On 23 August 2002 the Committee received a response Department wrote to the Committee informing it that the draft Pollution Prevention and Control Regulations (Northern Ireland) 2003 would be published for consultation on Thursday 29 August 2002. (Appendix 3, Annex 25 refers.) The Department enclosed a copy of the Consultation Document, which can be viewed on www.doeni.gov.uk.. 35. On 28 August 2002 the Department wrote to the Committee enclosing an explanatory paper detailing the amendments and repeals provided for in Schedules 2 and 3 to the Bill. The Department also enclosed seven proposed amendments to the Bill. (Appendix 3, Annex 26 refers.) 36. On 3 September 2002 the Committee received a response from the Northern Ireland Chief Environmental Health Officers Group (CEHOG) which was forwarded to the Department for comment. (Appendix 3, Annex 27 refers.) 37. On 5 September 2002, Department Officials attended the Committee’s meeting and gave a presentation on the Bill, which primarily addressed the seven proposed amendments to the Bill. Other key issues discussed included an update on consultations with the farming industry, the PPC Regulations arising from the Bill, Human Rights issues and consequential amendments and repeals from the Bill. 38. Following the presentation on 5 September 2002, the Committee wrote to the Department on 6 September 2002 outlining a brief summary of the discussions, including those issues that the Officials were to consider further. (Appendix 3, Annex 28 refers.) 39. On 9 September 2002, the Committee received a response to its letter dated 6 September 2002. The Department enclosed a text in respect of two amendments to the Explanatory and Financial Memorandum (highlighted in bold italics), an amendment to Clause 2, and an amendment to Schedule 1. (Appendix 3, Annex 29 refers). 40. On 11 September 2002. the Department forwarded a summary of the main reservations which it had in relation to the provision on fines and penalties. (Appendix 3, Annex 30 refers). 41. On 12 September 2002. Department Officials attended the Committee’s meeting and gave a presentation on the issues within the Committee’s letter dated 6 September 2002. The Officials also gave an oral response to the issues raised within the responses received from NIMEA and CEHOG. 42. On 18 September 2002, the Department wrote to the Committee forwarding a Schedule detailing the six amendments to the Bill, as previously discussed and agreed to date with the Committee. (Appendix 3, Annex 31 refers). 43. On 19 September 2002, Department Officials attended the Committee’s meeting and clarified the position on Ministerial clearance on amendments to the Bill and stated that they had nothing further to add to the comments made at the last meeting on the committee’s two further suggested amendments. CLAUSE BY CLAUSE CONSIDERATION 44. On 26 September 2002, the Committee carried out a detailed Clause by Clause consideration of the Pollution, Prevention and Control Bill. Officials from the Department attended the meeting. 45. The Committee agreed to advise the Assembly on each Clause as follows:- Clause 1 Purpose of section 2 That the Committee is content with Clause 1 Clause 2 Regulation of polluting activities That the Committee is content with Clause 2, subject to the amendments proposed by the Minister in his letter to the Committee dated 23 September 2002 Clause 3 New transitional provisions for disposal licences treated as site licences That the Committee is content with Clause 3 Clause 4 Disposal licences which expire before commencement of waste That the Committee is content with Clause 4, subject to the amendments proposed by the Minister in his letter to the Committee dated 23 September 2002 New Clause to be inserted – ‘Financial Assistance’ That the Committee is content that a new Clause be inserted after Clause 4, as proposed by Minister of the Environment in his letter to the Committee for the Environment dated 23 September 2002 Clause 5 Interpretation That the Committee is content with Clause 5 Clause 6 Amendments and repeals That the Committee is content with Clause 6 Clause 7 Commencement That the Committee is content with Clause 7 Clause 8 Short title That the Committee is content with Clause 8 Schedule 1 Particular purposes for which provision may be made under Section 2 That the Committee is content with Schedule 1, subject to the proposed amendment from the Minister in his letter to the Committee dated 23 September 2002 Schedule 2 Amendments That the Committee is content with Schedule 2 Schedule 3 Repeals That the Committee is content with Schedule 3 BACKGROUND TO THE COMMITTEE’S SCRUTINY 46. Before presenting a more detailed analysis of the evidence, it is important that the circumstances under which the Committee had to carry out its examination of this Bill are understood. 47. Since its inception, this Committee has taken great pride in the high standard to which it has carried out its role and duties. Due consideration, weight and time has been given to every issue brought before the Committee - this is clearly evidenced within the previous Reports issued by the Committee. 48. EC Directive 96/61/EC, the relevant Directive on Integrated Pollution Prevention and Control, had a final transposition date of 31 October 1999 for all Member States. Yet the Consultation Document for its introduction to Northern Ireland was not issued by the Department until 25 June 2001 and a Bill was not introduced to the Assembly until almost a year later on 17 June 2002. Northern Ireland is the only region within the UK not to have transposed the Directive and the Committee was unsuccessful in establishing why appropriate action was not taken sooner to avoid what can only be described as an inordinate rush at this time. 49. In accordance with the Standing Orders of the Assembly, the Committee Stage of the Bill is due to conclude on 10 October 2002, with an option for the Committee to seek Assembly approval to extend its scrutiny for a further period. On 6 June 2002 the Committee rejected the Minister’s proposal for accelerated passage for the Bill on the basis that it was not proper to forgo, except in exceptional circumstances, what many would consider as the most vital part of a Bill’s passage through the House. However, as a demonstration of its willingness to co-operate with and to assist the Minister, the Committee agreed that it would work to complete its scrutiny of the Bill by mid-September, despite the genuine lack of Committee time to carry out a proper, in-depth examination. While this timetable rendered it extremely difficult to give the Bill the due degree of scrutiny, the Committee undertook as comprehensive an examination as possible in the circumstances. 50. From the outset the Committee recognised the importance of the EC Directive 96/61/EC as it is seen by many as the central piece of European legislation regulating all of industry’s environmental performance by introducing an integrated permitting procedure for qualifying existing and new installations. It is intended that the transposition of this Directive, through this Bill and subsequent Regulations, will replace the existing legislation – the Industrial Pollution Control (NI) Order 1997 (IPC) - with a more comprehensive system that will define an integrated permitting procedure for 30 industrial sectors with the aim of preventing pollution in air, land and water. The Committee found that the Directive requires permit holders to:- (a) apply preventative measures to avoid pollution; (b) avoid causing significant pollution; (c) minimise waste production; (d) use energy efficiently; (e) take preventative action to reduce accidental risk; and (f) pursue remedial action after the economic activity has ceased. DIFFERENCES WITH CURRENT LEGISLATION 51. The Committee identified a number of differences between the existing IPC legislation and the Directive in that:- (a) the Directive extends after site activity has ceased, by imposing a responsibility of site restoration; (b) the number of prescribed substances will be much greater than under IPC, particularly with water pollutants – this will especially impact where currently non-prescribed substances that need only be ‘rendered harmless’ will now be required to be prevented or minimised from release; (c) rather than ‘activity/process’ permitting, it will be the complete installation that will be permitted, meaning a much broader and comprehensive approach; (d) many more installations will be brought in under the Directive – the Minister has estimated a total of 250 existing and new installations will be affected. Those to be permitted for the first time will include poultry and pig intensive rearing units, slaughterhouses and landfilled waste sites; (e) as well as introducing permitting for both new and old installations, the range of environmental impacts to be considered by the enforcing authority is much wider to take account of issues such as accident prevention, noise, energy efficiency and raw material selection and use; (f) there are different arrangements for dealing with changes to the installations; (g) the conditions in permits must be reviewed periodically and updated according to technological and other changes; (h) unlike the current provisions, relevant installations will not be exempted from control purely on the basis of ‘triviality’; and (i) the Directive allows for general binding rules as an alternative to individually tailored permit conditions. 52. The Committee would highlight the fact that this Bill is largely an enabling instrument with the detail of the new regulatory controls to be introduced through Regulations – in fact, this Bill may well set a precedent for the Assembly in that it provides for consultation on certain Regulations carried out before the Bill is passed, that is, it is to be treated as if carried out after the passing of the Bill. 53. While the primary focus of the Committee’s scrutiny was on the introduction of the new regulatory regime, it did so in the knowledge that the Bill has two other purposes:- (a) in order to reduce the need for primary legislation, the Bill introduces a general power for EU measures to be transposed by way of Regulations – hopefully this will go some way to avoiding the unaccountable delays in transposing other Directives; and (b) it also provides transitional provisions for waste disposal licences, issued under the Pollution Control and Local Government (NI) Order 1978, to facilitate the new licencing system due in 2003. 54. This Committee firmly believes that those most likely to be affected by legislation, should be among the first to be asked for their views on what is specifically proposed. Consequently, copies of this Bill and the EFM were sent to a number of potential key stakeholders, identified largely because of their substantive responses to the Department’s earlier consultation that led to the preparation of this Bill. The consultees were:- (a) the Council for Nature and Conservation of the Countryside (CNCC), (b) the Northern Ireland Meat Exporters’ Association (NIMEA), (c) the Chief Environmental Health Officers Group (CEHOG), (d) the Committee for Culture, Arts and Leisure, (e) the Committee for Agriculture and Rural Affairs, and (f) the Ulster Farmers’ Union (UFU) Replies were received from (a), (b) and (c) and these were immediately referred to the Department for comment. The Department provided the Committee with written responses to the points raised by these consultees and answered other questions during presentations before the Committee. 55. The CNCC queried three areas of concern within the Bill, namely; (a) that the compilation of information within Schedule 1, Clause 11 covers all agreements; (b) that the remedial action within Schedule 1, Clause 15 covers the restoration of sites ‘post reasonable commercial operation’; and (c) that there are no details within the Bill on the procedures of Transboundary Consultation. The Department confirmed that each of these issues are addressed within the Regulations, issued for public consultation on 29 August 2002. 56. The NIMEA raised two areas of concern, namely; (a) that there is not one single enforcing agency within Northern Ireland as the role given to the 26 Councils is likely to lead to 26 interpretations of the legislation in its application; and (b) that the legislation accurately reflects the Directive and does not exceed the requirements. The Department explained that slaughterhouses, which the NIMEA represents, would only come within this new legislation if their output exceeds 50 tonnes per day and then they will fall solely within the remit of the Chief Inspector and not the District Council. Where the output is less than 50 tonnes a day, this legislation will not apply. As regards the transposition of the Directive, the Department emphasised the need to accurately reflect the Directive within the legislation and that Northern Ireland will go no further than the rest of the UK. 57. The CEHOG gave a general welcome to the Bill but did not comment, as such. Instead, it foresaw comments to be made on the relevant Regulations, issued for public consultation on 29 August 2002. CONSIDERATION OF THE CLAUSES OF THE BILL 58. As with all other Bills, the Committee utilised a ‘tried and tested’ approach that engendered co-operation and agreement between the Committee and the Department throughout this process. Having received and considered the Policy Memorandum on the Bill at an early stage and, subsequently, a draft of the Bill along with a draft EFM, the Committee was able to familiarise itself with the principal policy issues and to identify some initial concerns at an early stage. This pre-Committee Stage scrutiny was supported with presentations from Department Officials. Consequently, within the Committee Stage, when the Committee and Officials either agreed a possible need for changes in the text or sought clarification on the words/terms used in the Bill, the Officials promptly returned to the Department to consult and consider the intention of and possible effect on the stipulated policies. The Officials were then able to quickly return to the Committee with either suggested amendments or reasons/explanations as to why amendments may not be appropriate. The strength of this approach was that the Committee and Department went forward together, with the vast majority of concerns resolved to the satisfaction of both parties. This process culminated with the Minister agreeing to move a number of proposed amendments to the Bill with the support of the Committee. 59. The Long Title sets out the purpose the Bill. The Committee was content with this. 60. Clause 1 stipulates the purpose of Clause 2. The Committee was content with this. 61. Clause 2 is a key clause within the Bill as this empowers the Department to bring forward the required Regulations to create the new regime of pollution prevention and control to the extent provided for within Schedule 1. The Committee identified several areas of concern within the clause and, through discussion with the Department, was able to agree a number of proposed amendments. The following gives a brief summary of the issues raised within this Clause:- (a) Clause 2(4)(a) – as worded, the Committee failed to understand the specific exclusion of District Councils and the specific inclusion of small businesses. An amendment, to be brought forward by the Minister, will recognise the need for inclusive consultation with District Councils and representatives ‘of the interests of District Councils’ and the need to consult with all businesses, large and small, that is; Clause 2(4), line 2 - after consult insert ‘( ) district councils and such bodies or persons appearing to it to be representative of the interests of district councils as it may consider appropriate’ Clause 2(4)(a), line 2 - delete from ‘district councils’ to ‘businesses’ and insert ‘ industry, agriculture and business’ ‘ (b) Clause 2(5) – the Committee was seriously concerned with the scope of this subsection in that it was unclear what would be the limits to its effect, that is, to treat all consultation undertaken before the passing of the Bill as if undertaken after the passing of the Bill. While the Department’s initial response to the Committee was to suggest an amendment to reflect its limitations – which Legislative Counsel had concerns with – the Committee ultimately felt that it would be sufficient to clarify these within the EFM. The following revised wording for the EFM was agreed with the Department; ‘However, subsection (5) provides that consultation undertaken before the passing of the Act shall be considered as effective compliance with the requirements of subsection (4). This provision is intended to have a strictly limited application and its main purpose will be to enable the Department to publish for consultation the draft Regulations to be made under the Bill before the latter has been passed by the Assembly. This will enable the Bill and draft Regulations to be considered in parallel thereby ensuring that all the legislation necessary to deal with the ongoing infraction case can be enacted as quickly as possible. It is intended that the regulation-making powers in Clause 2 will be used by the Department to transpose the requirements of other EU Directives and it is possible that the Department may wish to use subsection (5) to facilitate the carrying out of consultation on some of these before the passing of the Act. However, in no circumstances will the Department use this power to rely on consultation carried out on any issue before the date of the introduction of the Bill to the Assembly.’ 62. Clause 3 provides for the necessary amendments to the Waste and Contaminated Land (NI) Order 1997, so that disposal licences may be treated, transitionally, as site licences. The Committee recognised the need for such amendments but felt that, while the key term ‘appointed day’ is defined within Clause (4)(9), it is very much a technical interpretation and is difficult to understand. Yet, when questioned on this, the Department was able to provide a relatively straightforward definition to the Committee. In accepting the necessity for what may appear a cumbersome legal definition within the Bill, it was agreed that it would be sufficient for the EFM to be amended as follows to reflect that simpler definition, including that for the term ‘relevant day’; ‘Secondly, through the definition of the terms ‘appointed day’ and ‘relevant day’ in subsection (9), the Clause provides a timescale within which its provisions are to apply. The ‘relevant day’ is defined as the day falling one year before the Act is passed. The ‘appointed day’ is defined as the date on which the Regulations introducing the new waste management licensing controls under the 1997 Order are brought into operation. Therefore, any existing disposal licence which expires between these dates but where the operator continues to carry on operations will be deemed not to have expired provided that any activities which are carried on were authorised under the expired licence. Because such licences will be deemed still to exist at the ‘appointed day’ they will at that date, by virtue of the transitional provisions in the 1997 Order, be converted to site licences under that Order and therefore subject to the new waste management licensing controls. The terms and conditions attached to the replaced licence continue to apply to its successor.’ 63. Clause 4 provides the necessary legislation for those disposal licences which expire before the commencement of waste management licencing. Both the Committee and Department identified and agreed the need for several changes. (a) Clause 4(2) - because of the subsequent deletion of Clause 4(5), there is no further need for the reference to that subsection, that is; Clauses 4(2), line 1 - delete ‘(subject to subsection 5)’ (b) Clause 4(5) – when the application of this clause was queried by the Committee, the Department readily accepted that this was incorrectly worded and that its inclusion within the Bill was unnecessary. It would be deleted by an amendment to be brought forward by the Minister, that is; Clause 4(5) - delete entire subsection (c) Clause 4(6) – when questioned, the Department had some difficulty in explaining the definition/application of the term ‘criminal proceedings which have been concluded’ and the Committee anticipated difficulties if this was not addressed. After taking legal advice, the Department agreed that the Minister would bring forward an amendment with a view to clarifying when this subsection would apply, that is; Clause 4(6), line 1 - delete ‘which have been concluded’ and insert ‘in which the accused has been convicted’ 64. New Clause after Clause 4 - this was proposed by the Department as it sought a general power to provide financial assistance in the form of grants to bodies in furtherance of the objectives of the Waste Strategy or the prevention or control of environmental pollution, that is; After Clause 4 insert - ‘Financial Assistance by Department (1) The Department may make Grants to any body having among its objects - (a) the furtherance of the objectives of the strategy in relation to the recovery and disposal of waste prepared by the Department under Article 19 of the Waste and Contaminated Land (Northern Ireland) Order 1997 (NI 19); or (b) the prevention or control of environmental pollution (2) Grants under this section shall be made (a) in accordance with the arrangements approved by the Department of Finance and Personnel; and (b) subject to such conditions as the Department may determine (including conditions for repayment in specified circumstances).’ 65. Clause 5, as worded, provides the legal interpretation of many of the key words and phrases within the Bill and the Committee was content with this. 66. Clause 6 provides for the numerous and requisite Amendments and Repeals as specified within Schedules 2 and 3 of the Bill. The Committee obtained clarification on the effects of these amendments and repeals and was content with the Clause. 67. Clause 7 provides for the Department to appoint, by order, the date on which Sections 4 and 6 and Schedules 2 and 3 of the Bill will come into operation and what that Order may contain. The Committee was content with this Clause. 68. Clause 8 provides for the Bill’s short title. The Committee was content with this Clause. 69. Schedule 1 is a key section in that it specifies the particular and extensive purposes for which provisions may be made under Section (Clause) 2. The Committee fully appreciated the enabling role of this Bill and examined this Schedule on the basis that subsequent Regulations would provide much of the detail necessary for the transposition of the Directive – in fact, those Regulations were issued for public consultation on 29 August 2002. However, the Committee did identify several concerns/queries within the Schedule that either needed to be clarified or amended. (a) Schedule 1, Clause 15(1)(a) - the Committee questioned the use of the word ‘remedial’ in that it may lack the definitive meaning found with the word ‘restoration’ when applied to the restoration of a site after commercial operations have ceased. The Department assured the Committee that the use of the word ‘remedial’ was an all-embracing term that did provide for restoration, a word that did not appear within the Directive itself – Article 3(f) of the Directive uses the word ‘return’ in relation to post-use of commercial sites. The Committee was referred to the Regulations, currently under public consultation, especially Regulations 19 and 26 that, inter alia, cover the issue of site restoration. (b) Schedule 1, Clause 15(1)(b) - the Committee queried the application of the provision of ‘financial security’ and the form/process that this would entail. The Department initially accepted that the application of this subsection was unclear but, in a subsequent discussion on 12 September 2002, it was able to provide a sufficient explanation that persuaded the Committee to accept its inclusion. (c) Schedule 1, Clause 15(1)(c) - the Committee was keen that imminent risks to all environmental pollution and not just serious pollution, as within the subsection, would be addressed. The Department provided an extensive explanation to justify use of the word ‘serious’ within this subsection (See below) and the Committee was content to retain the present wording; ‘In situations where the risk is considered to be less serious, enforcing authorities may serve an enforcement notice requiring the operator to deal with the breach without the need to cease operations. The definition of the term "pollution" in the Regulations could be taken to be the release of a pollutant in a very small quantity. Therefore, the removal of the word "serious" would have the effect of requiring enforcing authorities to issue suspension notices in a wide variety of circumstances. Not only would this cause disruption to industry but it would also be inconsistent with the purpose of the provision which is to allow for its use only in exceptional circumstances. The decision of what constitutes serious pollution will be taken by the enforcing authorities on the basis of knowledge and experience.’ (d) Schedule 1, Clause 25(2)(ii) - this clause provides for offences to be tried either summarily or on indictment. On conviction, the offender would be liable to imprisonment or a fine or both. If tried summarily, the present wording provides for a maximum fine of £20,000. Having successfully persuaded the Department to increase the level of fines available within the Planning (Amendment) Bill (NIA 12/01) from £20,000 to £30,000, the Committee pressed strongly for a similar change within this Bill. At the outset, the Department opposed such an increase on the basis that the arrangements for fines set out in the Bill reflect the penalty provisions in many pieces of environmental legislation. In taking the stance that this merely reflected a weakness within other pieces of environmental legislation, the Committee held to its view that this amount must be increased. The Department, subject to the agreement of the Secretary of State, subsequently agreed to the Committee’s proposal, that is; Schedule 1, Clause 25(2)(ii) - delete ‘£20,000’ and insert ‘£30,000’ (e) Schedule 1, Clause 25(2)(a) and (b) – the Department has included the following provision within the equivalent clauses of the Planning (Amendment) Bill (NIA 12/01); ‘…. in determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall, in particular, have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.’ It was the Committee’s view that something similar should be included within this Bill and suggested the wording may be appropriate. The Committee would point out that most of this wording reflected the Department’s own statement within it’s letter of 6 August 2002 on the information it normally brings before the courts to be taken into account when considering a level of fine. In that letter, the Department stated; ‘Decisions on the level of fine to be imposed are, as the Committee acknowledges, a matter for the Courts, although the Department has sought in the past, through the NI Courts Service and the Resident Magistrates Association, to draw attention to the seriousness of pollution incidents. Moreover, within the limits set by the legislation, Courts do have discretion to take into account the factors proposed by the Committee and the Department, as it does currently in respect of water pollution incidents, will provide the Courts with details of the costs of prosecution and, where relevant, the environmental impact of the pollution, so that these can be taken into account in setting fines.’ The Committee’s suggested wording was as follows; ‘In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to the seriousness of the pollution incident(s), the environmental impact of the pollution and, where relevant, details of the costs of restoration and prosecution and to any financial benefit which has accrued or appears likely to accrue to a person in consequence of the offence.’ The Department gave due consideration to the Committee’s recommendation and, after consultation with Legislative Counsel, presented the Committee with a number of arguments as to why the inclusion of the wording, suggested by the Committee, would not be proper. The Committee was satisified with the Department’s argument for rejecting the proposal and that this would be adequately addressed within the Regulations. RELATED ISSUES CONSIDERED BY COMMITTEE 70. Throughout both the Consultation Exercise and scrutiny of this Bill, the Committee sought out what effects the implementation of the Directive would have on industry within Northern Ireland. In moving the Second Stage of the Bill in the Assembly, the Minister stated; ‘I estimate that approximately 250 existing installations will be subject to the new Directive controls. Some are already regulated under the existing arrangements, but several installations will be brought under control for the first time to meet the Directive’s requirements. The main additions above a certain capacity will be: installations for intensive rearing of poultry and pigs; sites for landfilling waste; slaughterhouses; installations for the treatment and processing of milk; installations for the treatment and processing of animal raw materials; and installations for the treatment and processing of vegetable raw materials.’ 71. Because of the likely disproportionate effect on the agriculture industry, the Committee asked for assurance that those within this industry would not be subject to excessive new charges or bureaucracy when applying for the new permits. The Department informed the Committee as follows; ‘At the beginning of this year Environment and Heritage Service (EHS) officials contacted both the Ulster Farmers’Union and the Northern Ireland Agricultural Producers Association about the implementation of the legislation. Subsequently, presentations were made to the NI Poultry Federation and the UFU Central Pigs Committee about the implications for intensive pig and poultry farms. At the presentation to the Poultry Federation. membership of a working group was agreed including farmers, processors, feed suppliers and staff from DOE and DARD. At the UFU presentation, UFU agreed to identify farmers who would be willing to take part in a working group and to notify EHS. The first meeting of the poultry working group was held on 9 May 2002 and a second meeting on 19 June 2002. The main focus of these meetings was to review the draft Standard Farming Installation Rules to be applied in Northern Ireland. The first meeting of the pig working group was held on 12 June 2002 and a second meeting has been arranged for 14 August 2002. It is hoped at that meeting to complete the review of the Standard Farming Installation Rules. The Scotland and Northern Ireland Forum for Environmental Research (SNIFFER) is funding an IPPC case study on one broiler farm in Scotland and one in Northern Ireland. This study is well underway and will be completed later this year. The case study report will include recommendations for improving the IPPC application documentation for farms’. 72. The Committee continued to press the Department for updates throughout its scrutiny of the Bill and received the following; ‘…the next meeting of the pig working group is scheduled for 14 August. It is hoped at that meeting to complete the initial review of the Standard Farming Installation Rules. My letter of 1 July also referred to the ongoing study funded by the Scotland and Northern Ireland Forum for Environmental Research (SNIFFER). A further meeting of the poultry working group will be arranged once this case study has been completed later this year. At the meetings held to date, industry representatives have requested that charges arising from the new controls should be minimised. Officials have already given an undertaking that charges in Northern Ireland will not be higher than those in the rest of the United Kingdom and will continue to take account of the concerns of the industry in developing charging proposals. However, these will have to be balanced against the need for the proposals to achieve full cost recovery.’ 73. The Committee is satisfied with the information that it has received to date but informed the Department that it intends to closely monitor the implementation and subsequent costs. The Committee will also examine, in due course, this aspect of the PPC Regulations, issued for public consultation on 29 August 2002. 74. With such a heavy workload – the Committee is currently examining five Bills – it did not help to be constrained within such a tight timetable to complete the scrutiny of this Bill. Consequently, the Committee takes some degree of satisfaction from accomplishing as much as it has. 75. As stated earlier within this Report, the Bill is largely an enabling Bill, that is, the key clauses provide for the subsequent introduction of Regulations which will provide the detail of the new permitting regime. Therefore, the Committee’s scrutiny of the Bill was at a relatively high level, that is, without the fine detail contained within the Regulations, although the Committee has agreed a number of amendments to be tabled and moved by the Minister on the Bill. Amendments to the draft Regulations, currently out for public consultation, may well arise from the Committee’s consideration of them. 76. It is the Committee’s opinion that this will be a better Bill in light of the queries and concerns raised by the Committee and the subsequent amendments to be tabled and moved by the Minister. At this point, the Committee sees no need to bring forward any direct amendments of its own and will support those from the Minister. 77. The Committee is content with the Bill, subject to the proposed amendments. MINUTES OF PROCEEDINGS THURSDAY, 6 SEPTEMBER 2001
REV DR WILLIAM McCREA THURSDAY, 22 NOVEMBER 2001
REV DR WILLIAM McCREA
REV DR WILLIAM McCREA
5. Pollution Prevention and Control (Northern Ireland)
Bill 2002 REV DR WILLIAM McCREA
REV DR WILLIAM McCrea
REV DR WILLIAM McCREA
REV DR WILLIAM McCREA
The meeting commenced at 10.39 a.m. 4. Pollution, Prevention and Control Bill The Committee noted recent papers and Departmental responses on the Bill. Agreed: The Committee agreed to request Departmental Officials to next week's meeting to give a structured clause--by-clause presentation on the Bill. REV DR WILLIAM McCREA
The meeting commenced at 10.31 a.m. 3. Pollution, Prevention and Control Bill Mr Norman Simmons, Ms Janis Purdy, Ms Ethne Harkness and Mr Damian Campbell, Departmental Officials, joined the meeting at 10.39am. They gave a structured clause-by-clause presentation on the Bill and answered Members' questions. Mr Poots left the meeting at 10.44am and rejoined the meeting at 10.47am Mr Poots and Ms Lewsley left the meeting at 10.58am Mr Armstrong joined the meeting at 11.06am Mr McClarty left the meeting at 11.17am Key issues discussed included the purpose for which the powers in the Bill can be used, new transitional provisions for Disposal Licences to be treated as Site Licences, Disposal Licences which expire before commencement of Waste Management Licensing and Regulation of polluting activities. Concerns were raised on aspects of the wording of a number of clauses. The Chair thanked the Officials and they left the meeting at 11.41am. Agreed: The Committee to await draft Regulations from the Department and responses to a number of issues raised. REV DR WILLIAM McCREA
The meeting commenced at 10.30 a.m. REV DR WILLIAM McCREA
The meeting commenced at 10.31am. REV DR WILLIAM McCREA THURSDAY, 12 SEPTEMBER 2002
The meeting commenced at 10.01 am. REV DR WILLIAM McCREA
The meeting commenced at 10.30am. Mr Norman Simmons, Ms Ethne Harkness and Mr David Bell,
Departmental Officials, joined the meeting at 10.37am. REV DR WILLIAM McCREA
The meeting commenced at 10.35 am. REV DR WILLIAM McCREA THURSDAY, 3 OCTOBER 2002
The meeting commenced at 10.30am. REV DR WILLIAM McCREA MINUTES OF EVIDENCE Thursday 27 June 2002 Members present: Rev Dr William McCrea (Chairperson) Witnesses: Mr N Simmons ) 1. 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. 2. 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. 3. 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: 4. Section 2(2) of the European Communities Act 1972 enables any UK and Northern Ireland Department to make Regulations to transpose EC Directives. However, over the years, there has been a great deal of controversy over section 2(2), particularly about the extent to which it can be used. It is commonly accepted that it can be used only to implement the requirements of the Directive. In some cases, however, it cannot be used to provide the necessary back-up measures, such as enforcement et cetera, so the Bill makes provision, for the purposes of the relevant Directives, for the Department to use Regulations under it as an alternative to section 2(2). The advantage is that we will be able to use the Bill’s enforcement provisions, such as the power of entry. Sub-paragraphs (2) (a), (b) and (c) list the Directives that we are talking about, IPPC, the Waste Framework Directive and the Landfill Directive. Sub-paragraph (d) gives the Department the power to stipulate by order any other Directive for the purposes of this provision. 5. This is quite an extensive power, so there are safeguards to ensure that it is exercised properly. They are set out in clause 2, subsections (7) and (8). Subsection (8) says that the first Regulations to be made under this section, ie, those to implement the IPPC Directive, must be subject to affirmative resolution and, therefore, to debate in the Assembly. Subsection (8), paragraphs (b) and (c) add further provisos by saying that any Regulations made under this that create an offence or increase a penalty for an existing offence must also be subject to affirmative resolution. Paragraph (c), which is important, states that any Regulations made under this that amend primary legislation must also be subject to affirmative resolution and, therefore, to Assembly debate. 6. Paragraph (c) is similar to (b), except that it has a specific purpose. The United Kingdom has obligations under the Large Combustion Plants Directive to set emission values for certain key pollutants, such as sulphur dioxide. The Environmental Protection Act 1990 granted the Secretary of State a UK-wide power to make a national plan allocating quotas for various industrial sectors to ensure that those emission-limited values were not exceeded. Each industrial sector was allocated a quota, and if they did not exceed them, the UK’s quota was not exceeded. 7. However, there is a review of that process, and a new approach is being considered. Although the UK-wide approach will be retained, a new element of tradeability is to be introduced to allow flexibility. That means that those who stay within quota will benefit through possible allowances and so forth. We are talking about establishing a legislative framework to facilitate an emissions trading scheme, which is detailed in paragraphs 1 and 2 of schedule 1. Emissions trading is still at an embryonic stage: no decisions have been taken, and there has been no consultation and very little policy development. However, a legislative framework is necessary in case that route is taken. Such provisions are in the GB Environmental Protection Act 1990, and we felt that it would be expedient to include similar provisions in our Bill. 8. Clauses 3 and 4 deal with waste management and are designed to ensure smooth transition from the current system of disposal licences under the Pollution Control and Local Government (Northern Ireland) Order 1978 to the new system of waste management licences under the Waste and Contaminated Land (Northern Ireland) Order 1997. Councils are responsible for regulating disposal licences through the issue of licences to operators or through self-regulation under article 13 of the 1978 Order. The waste management licensing provisions will replace that in 2003. 9. Article 47 of the 1997 Order contains transitional provisions to ensure a changeover from the old regime to the new. A disposal licence that is viable when the new Regulations are introduced will be deemed a waste management licence under the new system, and it will continue to be viable for three years. The same applies to article 13 resolutions of district councils. The original intention behind that was to allow the Environment and Heritage Service time formally to convert all disposal licences to waste management licences. However, in retrospect there is a loophole in that provision that enables any operator to walk away from a site at the end of three years without any environmental or health obligations. Clause 3 amends article 47 to remove those three years. The result is that any disposal licence in existence at the date of the new regime’s commencement will become a waste management licence and will continue in force until revoked, suspended or otherwise dealt with under article 6 of the 1997 Order. That provides a continuum between disposal and waste management licences and closes a possible loophole in the arrangements. 10. Clause 4 is to provide another continuum between the old and the new arrangements and to ensure that people with disposal licences have minimal administrative inconvenience. However, it is likely that some licences will have expired inadvertently — a council may not have renewed the licence and the operator continued to operate inadvertently not knowing that it had expired. If a licence expired within 12 months of the passing of this Bill and the activities carried on are still within the bounds or conditions of the original licence, this clause will permit the disposal licence to be deemed as not having expired. At the transition to the new arrangements it will be treated as any other disposable licence and be deemed to be a waste management licence. 11. It is necessary to make some consequential amendments, and they are set out in subsections (3), (4), (5) and (6). Subsection (7) places a duty on a district council to inform anyone who is affected by that provision. Councils, as the regulatory authorities, have the information on licence holders and are best placed to inform them. I mentioned subsection (5) earlier when I was talking about a possible amendment. That may cause problems as it may go against the spirit of the clause by legitimising activities that were carried out with or without a licence. That means that anyone carrying out activities, whether he complied with the original licence or not, will benefit from the provision. I do not want that to happen. 12. We are discussing that with legislative counsel, and we may move an amendment to amend that provision or remove it completely. It is there to ensure that only those who carried out authorised activities can benefit, not those who carried out any activities. It may be a drafting error that needs to be corrected. 13. That concludes my run through clauses 1, 3, and 4. I am happy to take questions. 14. The Chairperson: This Bill is complicated, and that was why we wanted to give it proper scrutiny, rather than the rushed scrutiny we were faced with. Unfortunately, we will be unable to give the Bill full, in-depth scrutiny due to the timetable, and that is not a position that any Committee wants to be in. 15. Ms Lewsley: This was a council responsibility, and that will move to the Waste Management Division. How long will the transition period be, and how many months will be allowed for the change? 16. The Chairperson: To keep the record straight we should declare our interest. 17. 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. 18. The Chairperson: I want to ask a question on clause 2(4) about consultation. It says that "Before making any regulations under this section, the Department shall consult — such bodies or persons appearing to it to be representative of the interests of district councils". 19. Why representatives of the interests of district councils? Why not district councils? 20. Mr Simmons: The Society of Local Authority Chief Executives (SOLACE) and perhaps other bodies, which — 21. The Chairperson: They may not necessarily be representatives of the district councils. 22. Mr Simmons: No, but it is just to cover — 23. The Chairperson: They would be representatives of chief executives. Why consult representatives of chief executives when district councils carry the responsibilities? 24. Mr Simmons: This is to cover individual councils and any organisations that may represent their views. 25. The Chairperson: Yes, but that is still not the district councils themselves. 26. Mr Simmons: No, but consultation will cover all district councils individually. 27. 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? 28. Mr Simmons: No, but the intent is that district councils should be consulted individually. 29. The Chairperson: Then why not say that? 30. Mr Simmons: We could ask the Office of the Legislative Counsel to stipulate district councils as well as other interests. We will consider that. 31. The Chairperson: Are you sure about the wording of: "industry, agriculture and small businesses as it may consider appropriate". 32. Why "small businesses"? Surely, it should be "such businesses as it may consider appropriate". 33. Mr Simmons: Again, we are happy to consider that. We are required to consider the impact of all legislation on small businesses. That is the norm, and that is what these words were designed to reflect. 34. The Chairperson: How would you define the word "small"? 35. Mr Simmons: That is very subjective. We assess the impact on small businesses with regard to costs, et cetera. 36. The Chairperson: It is not in the definitions, is it? 37. Mr Simmons: No, it is not. 38. The Chairperson: So it could mean anything? 39. 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. 40. 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. 41. 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. 42. 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 — 43. Mr Simmons: We must wait for policy development and see how it will be taken forward. 44. 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? 45. Mr Simmons: To negative resolution. 46. Mr Ford: Why? 47. Mr Simmons: It would be negative unless specified otherwise. 48. 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? 49. Mr Simmons: As currently drafted, it is negative. If the Committee feels that it should be affirmative, we will look at that. 50. 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 "Nothing in this section affects any criminal proceedings which have been concluded before the coming into operation of this section." 51. Why "concluded" rather than "commenced"? 52. Mr Simmons: That is a moot point. Ms Harkness may wish to comment on it. 53. 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". 54. 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 been put in train 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? 55. 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. 56. 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. 57. 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? 58. 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. 59. 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. 60. 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. 61. Mr Ford: Surely if the licence has expired, the activity is no longer lawful. 62. 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. 63. Mr Ford: What is the context of the criminal proceedings mentioned in subsection 6? 64. 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. 65. Mr Ford: This subsection is not really dealing with that, because it refers to criminal proceedings. 66. 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. 67. Mr Ford: He could get off if his barrister delays the | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||