§ 6.27 p.m.
§ Lord Gregson
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Gregson.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Earl of Listowel in the Chair.]
Clauses 1 and 2 agreed to.
§ Clauses 3 [Restrictions on power under section 2]:
Lord Gregson moved the amendment:
Page 3, line 35, at end insert ("or
(c) in the opinion of the authority, it is undesirable for the applicant to be authorised to transport controlled waste because the applicant has not provided sufficient evidence of technical competence and financial soundness for that purpose.").
§ The noble Lord said: I ask the Committee to bear with me while I present this amendment, simply because it is an extremely complex matter with a long history in your Lordships' House. It is intended to give the Secretary of State powers to help eliminate the cowboys from the waste disposal industry by requiring carriers of controlled waste to show that they are technically competent and financially sound before they can be registered under the Bill.1478
§ Control of the waste disposal industry is provided for by the Control of Pollution Act 1974. It relies on the waste disposal authorities within local government to control the disposal of waste of all kinds. So that they shall be fully effective, we must give them the powers that they need.
§ In their Green Paper published earlier this year the Government have proposed to strengthen waste disposal control by three methods: first, to introduce a duty of care on all the producers; secondly, the registration of carriers; thirdly, a requirement for technical competence and financial soundness of operators of waste disposal sites. That is the cradle-to-grave control recommended by your Lordships' Select Committee in 1981.
§ The weak link in the Government's proposals is the registration of carriers. The Bill which we are now discussing is in line with their proposals. It allows waste disposal authorities to refuse registration in only two cases: if the application is on the wrong form or if the applicant has been convicted of a relevant offence. In my opinion that begs the question. What good is a registration if waste disposal authorities are obliged to register as carriers anyone, however suspect, until he has been convicted of an offence?
§ My amendment will have the effect of providing a more effective register, with evidence of the competence and financial soundness of the carriers. An effective register is in the interests of the public, the producers of waste and the carriers. I stress that the public want the standard of waste disposal improved across the board.
§ If the Government's Bill comes before Parliament next year, producers will be subject to the duty of care. They will wish to know that the registered carriers are competent and therefore by employing them they are prime facie complying with the duty of care. Good carriers will not want unfair competition from bad carriers who cheat the system. The amendment proposes that carriers should have the same requirement of technical competence and financial soundness which the Government propose for site operators.
In another place Mrs. Bottomley replied on behalf of the Government at Third Reading of the Bill:
We need a register of carriers of waste so that those who have a legitimate wish to continue their business feel secure that the people to whom they have entrusted their waste will satisfactorily meet the necessary standards".—[Official Report, Commons, 28/4/89; col. 1242.]
Furthermore, two House of Lords Science and Technology Committee reports (published in 1981 and 1989) called for the effective registration of carriers. The 1981 report stated:
Licensing of sites, while being essential, is rather like shutting the stable door after the horse has bolted if it is not coupled with licensing of the earlier stages of operation—those engaged in collection, transport, storage and disposal. Here accidents can occur, wastes can disappear or profits can be raised by skimping on control procedures; and the ease with which anyone with a lorry can set himself up as a disposal contractor is alarming".
The 1989 report commented:
Registration should be dependent on evidence of technical competence and financial soundness, equivalent to that which is proposed by the Government for site operators. Such a requirement would help to eliminate the "cowboy" carriers and
would be welcomed by producers as an assurance that they were dealing with responsible carriers and were thus complying with the duty of care. The Secretary of State for the Environment wanted to place the responsibility for vetting carriers on producers and objected to the introduction of a closed shop by means of registration. Even if registration had that effect, the Committee would prefer a closed shop of competent carriers to a free for all among incompetent carriers".
§ I am aware that the Road Traffic Acts require licensing of transport vehicles, but they exclude any vehicle below 3½ tonnes. That exclusion means that a great many vehicles used for fly-tipping and dumping hazardous waste fall straight through the net.
§ I am also fully aware that strengthening the register in this manner will have to be carefully co-ordinated with the words of the Transport of Dangerous Substances Acts 1981 and 1986. But I am sure that giving the Secretary of State these additional powers will make the task easier for the producers of waste to meet their obligations under the duty of care which the Government intend to introduce.
§ The duty of care is onerous, particularly if the waste is hazardous or special as defined by the Control of Pollution Act. The transport of special waste is closely defined by the 1981 and 1986 Acts. The requirements are that: the vehicle is fit for the purpose and tanks are regularly examined and tested; precautions are taken against fire and explosion; the vehicle operator and driver have information available to make them aware of the risks created by that substance and such information is available in writing in the cab; and the driver has received adequate instruction and training to enable him to understand the dangers and what to do in an emergency. The Act also makes requirements for the competence of the carrier and financial resources. Those provisions are already on the statute book. I am concerned to get them read across on to the list of carriers.
§ My concern is that industry, and especially small companies, will require the maximum help in meeting the duty of care. In the spirit of the comments made by Mrs. Bottomley in another place, I ask the Minister whether he is prepared to allow local authorities to include on the list of carriers those who offer the special service in order to assist industry to comply with the duty of care. The qualified carriers would welcome that, as would the producers and the local authorities. The public would feel much more assured and the cowboys would be frozen out. I look forward with interest to hearing the Government's comments.
§ Baroness White
I support the amendment tabled by my noble friend. I was a member of your Lordships' Select Committee on Science and Technology which recently considered the matter. I was not a member of the committee which sat in 1981 but a long time has passed since then. A recent report was placed before your Lordships' House to which I should like to draw attention.
In the Second Reading of the Bill great stress was placed on the difficulties in obtaining any kind of conviction of the fly-tippers, particularly in London. Although the problem is more serious in London, 1480 especially in respect of builders' waste, there are also problems in the country. I used to own a cotttage in mid-Wales and half a mile away was a disused quarry. One had to experience to believe the trouble which we had with fly-tipping in that remote and delectable rural area. Every kind of disagreeable waste, not especially special or hazardous, could be tipped in there late in the evening or early in the morning. The local police to whom we complained from time to time said that they had no chance of identifying or catching those responsible.
The question of fly-tipping is widespread. As a member of the Select Committee I strongly support its recommendations. They specifically include the proposals in the amendment moved by my noble friend Lord Gregson. We are strongly in favour of registration but we want to have effective registration. It cannot be based almost exclusively upon the conviction of someone for a proscribed offence. Obviously that must be a relevant consideration but there are situations where it is extraordinarily difficult to convict and yet one may have a very strong supposition that the persons concerned are not proper or adequate people to carry out that particular function. The only way in which one can estimate that objectively is, as is suggested by the amendment before the Committee, that evidence should be produced to the registration authority of technical competence and financial soundness for the purpose.
In considering this we must take into account the opinions of the Secretary of State for the Environment, because he personally gave evidence to the committee. I have here the transcript of that evidence. He took a very detached view indeed of registration and in replying to Question 172 he said:Registration will simply provide a list of those carriers who have not been convicted of a serious pollution offence"—in other words, a completely negative criterion and no suggestion that we should make any attempt to bring suitability for the operation into account. Mr. Ridley was quite clear that his main concern was to avoid anything which might be considered a closed shop. However, as my noble friend said, the committee dismissed that argument put forward by him and made it quite clear that it thought that the social problems and the health dangers of fly-tipping were even greater dangers than a closed shop.
When the noble Lord, Lord Nelson of Stafford, a member of the Select Committee, asked the Secretary of State at Question 175 whether he really thought that that negative criterion for registration—that is, simply not having been convicted of a serious pollution offence—would give adequate protection against the opportunities which present themselves to cowboys to get into this business, the Secretary of State replied:I never know whether cowboys is a term of endearment or censure".There was a certain flippancy in his whole approach to this question. I feel that my noble friend Lord Gregson is absolutely justified in putting before the Committee the proposed amendment to the Bill which would strengthen it in a way which the Select Committee considered very carefully and which we felt was an essential part of the proposed legislation.
§ Lord McIntosh of Haringey
I should like to add my support to my noble friend's amendment. This Bill is in itself an attempt to strengthen the law. That is what it is about. It has been brought forward because the existing law is not adequate to the purpose.
There are two ways of strengthening legislation of this kind. The first is to increase penalties, and there is some move towards that in the Bill although it is not the main thrust of the Bill. The second is to remove opportunities to commit an offence and I applaud the thrust of this amendment to remove opportunities for the commission of the very nasty and anti-social offence of fly-tipping.
I remind the Committee that this is a very modest amendment. It does not say that local authorities shall have a free hand to refuse applications. It certainly does not give rise to the fears expressed in some quarters that it might lead to a closed shop of contractors who alone would have the privilege of disposing of waste. It says only that the local authorities may refuse applications because there is insufficient evidence of technical competence and financial soundness for that purpose.
If contractors can show that they are financially sound and technically competent, it is no help for the local authority to know that it has nearly caught them on a number of occasions in fly-tipping offences but has not been able to make the offence stick by achieving a conviction in the courts. The dependence of Clause 3(l)(b) on the fact that an applicant has been convicted of a prescribed offence, as my noble friend Lady White makes clear, is simply not adequate. The whole point of the Bill is that people are not being convicted of offences because the law is not adequate to secure convictions. Therefore, to rely on past convictions under the existing legislation before the introduction of this Bill is not an adequate protection. It does not give the local authorities an opportunity to use the register with due discretion and due concern for the rights of contractors in a rather more effective way than is provided for in the Bill as drafted.
I very much hope that this amendment, which is a modest and not in any way a dramatic change to the Bill, will achieve the support of the Government, the Committee and indeed another place when it goes back there.
§ 6.45 p.m.
§ The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh)
I thank the noble Lord, Lord Gregson, for his concern about the problems of waste disposal which have led him to table this amendment. I know he has a long record of interest in waste management and I am most pleased that he has agreed to chair the Waste Management Industry Training and Advisory Board to continue his involvement.
I fully understand the reasons why the noble Lord has tabled this amendment but I hope to convince him that it is unnecessary in the first place and that, if it were to be introduced, it would place a very large burden on both local authorities and legitimate industry which could not be justified by the benefits to be gained.
1482 The registration system contained in the Bill did not seek to judge competence. It sought to be a simple list of carriers whom a waste producer could approach in the knowledge that anyone on that list had not been convicted of fly-tipping. This would be the first step but not the only one towards the producer's fulfilment of his duty of care. The register will work by removing from the register those carriers who are guilty of waste-related offences and by making waste producers very careful not to employ anyone who is not on that register, otherwise they, as well as the carrier, will be liable to prosecution. That is the intention of the register.
Reference has been made to the remarks made about the competence of registered carriers by the Secretary of State to the Science and Technology Committee. What the Secretary of State was describing was the duty of care by which a producer will be required to take all reasonable steps to ensure the legal disposal of his waste. The first step towards fulfilling that duty will be to use a carrier who is registered with the waste disposal authority. The register will act as a "white list" of carriers who have not been convicted of waste-related offences.
Beyond the first step of using a registered carrier, the producer will be required to take certain other steps. These will be contained in a code of practice which is now being prepared, but the additional steps are likely to include the producer providing adequate information on the waste sufficient to allow the carrier to handle it correctly, receiving a transfer note from the carrier and being satisfied to the best of his knowledge that the vehicle is suitable to carry the waste. As long as the producer has satisfied his duty of care he will not be open to prosecution. Questions of the competence of the carrier will not be addressed through the register but through other enquiries that a producer might make to satisfy himself that the carrier is a responsible person.
The noble Lord seeks to introduce a new power for waste disposal authorities to satisfy themselves of the competence and financial soundness of a carrier. These are no simple matters, and moreover they are matters which would be totally new to local authorities. A whole new system would need to be devised for local authorities whereby they could judge competence and financial soundness. Moreover for most carriers this would duplicate existing controls of the Department of Transport.
The Department of Transport already controls both vehicle operators and the carriage of dangerous goods. Through operator licensing, the vehicle licensing authorities require evidence of good repute, professional competence and financial soundness.
These authorities are able to refuse or revoke a licence to anyone who does not satisfy their requirements, and as far as professional competence is concerned the applicant must pass a written examination. Operator licences apply only to those who operate vehicles of over 3.5 tonnes gross weight. I know that this is a matter which greatly concerns the noble Lord and I shall return to that issue in a moment, but first I should like to outline the other controls that the Department of Transport puts on the carriage of dangerous substances.
1483 These dangerous substances include all our special waste, and, indeed, we shall be issuing a consultation paper on special wastes very soon which will propose a much wider definition so that even more waste substances will fall under the dangerous substances regulations. These regulations require that operators should obtain full details of the substance to be carried and ensure that the driver has these details and knows what to do in an emergency. The operators must use vehicles which are fit for the purpose and which have been regularly examined and tested. Drivers must have received training in relation to their own duties under the regulations to enable them to understand the dangers of the substance being carried and, equally important, what to do in an emergency. All dangerous substances are to be properly contained, packaged and labelled. These regulations apply to the carriage of dangerous substances in all sizes of vehicle.
The Government therefore believe that these requirements meet the needs for detailed operational control over the carriers of waste for the majority of owners. We accept that the licensing controls do not cover the use of vehicles of less than 3.5 tonnes gross weight, though the regulations cover the use of such vehicles for the carriage of special waste.
If there is a gap in control from the Department of Transport, it lies in the carriage of non-special waste in light goods vehicles. I do not believe that this gap presents a serious risk. The amount of waste that can be carried in light goods vehicles is relatively small and non-special waste does not present a danger to life. Therefore, any individual carrier using a light goods vehicle for the carriage of non-special waste would not present a significant hazard to the public or to the environment by the carriage of that waste.
However, let us consider what the proposed powers for local authorities would add to the provisions of the Bill. An applicant might demonstrate both competence and financial backing. This might be of extra use to producers in using the register but does not mean that the carrier will not contravene waste disposal law. The cowboy carrier might find it relatively easy to demonstrate these qualities to the satisfaction of the authority, but it is his criminal intent that will lead to the fly-tipping.
The real remedy as with all crime is to catch the fly-tipper, prosecute him and remove him from the register so that he cannot legitimately be employed to carry waste again. The answer does not lie in setting up a new licensing system which would enter new areas of competence for local authorities and duplicate a system already in existence for the larger vehicles. There surely cannot be a justification for requiring a HGV operator to satisfy two authorities of the same information. To extend the requirements for technical competence and financial soundness to light goods vehicles might bring in the operators of as many as 2 million extra vehicles under control.
The noble Lord, Lord Gregson, said that he seeks to provide a power for the Government to introduce tests of competency and financial soundness if at some future date they wish to do so. The 1484 Government do not believe the extra burdens that this amendment would place on both local authorities and legitimate businesses could be justified by the benefit to the producer of having additional information on the competence of the carrier on the register. The Government do not feel the need for any reserve power in the Bill. In reality, the fact that the noble Lord proposed this measure as a reserve power would be quickly forgotten and the Government would be pressed very hard to include it in the regulations.
I therefore believe that this amendment, though worthy in its motives, is unnecessary for the purposes of the Bill and would significantly change the character of the register that the Bill will introduce. Therefore, I hope that the Committee will be able to resist it.
§ Lord Gregson
I confine myself to two points. First, the Minister replied explicitly, but this is only an enabling amendment. It does not cause the Government to do anything if they do not want to do so. Secondly, I can see no reason, if someone is qualified under the transport Acts to carry special substances, why that endorsement cannot be entered on the list of carriers. I can see no reason unless the Department of the Environment and the Department of Transport actually exist in two different countries with very poor communication! In my opinion there is no reason whatever why that endorsement cannot be transferred across to the carriers list to give those small companies that have to deal with the burden of the duty of care—which I fully endorse—some very good information with which to find a carrier with confidence, because that is what the law requires. Therefore, I must press my amendment.
§ 6.56 p.m.
§ On Question, Whether the said amendment shall be agreed to?
§ Their Lordships divided: Contents, 41; Not-Contents, 45.1485
|DIVISION NO. 1|
|Addington, L.||Listowel, E.|
|Ailesbury, M.||McIntosh of Haringey, L.|
|Airedale, L.||McNair, L.|
|Amherst, E.||Mason of Barnsley, L.|
|Birdwood, L.||Mayhew, L.|
|Blyth, L.||Nelson of Stafford, L.|
|Bottomley, L.||Nicol, B.|
|Carter, L.||Northfield, L.|
|Cledwyn of Penrhos, L.||Peston, L.|
|Clitheroe, L.||Ponsonby of Shulbrede, L.|
|Cocks of Hartcliffe, L.||Raglan, L.|
|David, B.||Rugby, L.|
|Davies of Penrhys, L.||Seear, B.|
|Dean of Beswick, L.||Taylor of Mansfield, L.|
|Dormand of Easington, L.||Tordoff, L.|
|Ennals, L.||UnderhiU, L.|
|Galpern, L.||Whaddon, L.|
|Gregson, L. [Teller.]||White, B. [Teller.]|
|Hatch of Lusby, L.||Williams of Elvel, L.|
|Jenkins of Hillhead, L.||Young of Dartington, L.|
|Auckland, L.||Jenkin of Roding, L.|
|Bauer, L.||Kimball, L.|
|Belstead, L.||Lauderdale, E.|
|Boardman, L.||Long, V.|
|Boyd-Carpenter, L.||Mancroft, L.|
|Caithness, E.||Mersey, V.|
|Carnegy of Lour, B.||Mottistone, L.|
|Carnock, L.||Nelson, E.|
|Carr of Hadley, L.||Norrie, L.|
|Colwyn, L.||Orkney, E.|
|Davidson, V. [Teller.]||Pender, L.|
|De L'Isle, V.||Reay, L.|
|Denham, L. [Teller.]||Redesdale, L.|
|Dundee, E.||Rees, L.|
|Elliot of Harwood, B.||Rodney, L.|
|Ferrers, E.||Stockton, E.|
|Fortescue, E.||Strathclyde, L.|
|Gray of Contin, L.||Sudeley, L.|
|Hacking, L.||Swinfen, L.|
|Harmar-Nicholls, L.||Thomas of Gwydir, L.|
|Hemphill, L.||Trenchard, V.|
|Henley, L.||Vinson, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 3 agreed to.
§ Remaining clauses agreed to.
§ House resumed: Bill reported without amendment.