Amendments Nos. 180a., 180b., 180c., 181 and 181a. are related and may be taken together by agreement. Is that agreed? Agreed.
SECTION 46.
I move amendment No. 180a.:
In page 67, subsection (1), between lines 4 and 5, to insert the following:
"(d) upon request from the local authority in the area to which the licence applies.".
Amendment No. 180a proposes an extra paragraph (d), to provide that the agency may review a waste licence "upon request from the local authority in the area to which the licence applies.". That is not restrictive in itself and perhaps it should also apply to a local authority in an adjacent area. Local authorities can act responsibly. Will the Minister consider the amendment so that there is at least an input from the local authority when the review of a licence is made?
There will be an input from local authorities in that they can make such a request and the agency may well act on it. However, the amendment seeks to give them a right to request a review. It is not necessary to do this. The agency would be open, following any normal request from a local authority — and a request from a local authority would carry more weight than a request from most bodies — to consider whether the conditions that apply are appropriate or whether a review is necessary.
I would not like the request in itself to constitute grounds for a review, and if this is included by an additional paragraph, as proposed by the amendment, it may be interpreted by the agency that a formal request from a local authority should trigger a review automatically. We should not have a plethora of reviews. Local authorities may get animated by a local objector, leading to a resolution being passed by the authority. I do not want a constant review mechanism to be triggered by this.
To return to the core proposition, we have created an expert agency, in place since 1992, which should be the authority to determine whether the conditions laid down are being complied with and when a review is necessary. The role of the local authority is certainly to be listened to, but not with an automatic triggering mechanism.
I do not accept the Minister's logic on this. I am inclined to support Deputy Sargent's assertion that if a local democratically elected body makes a request to the agency, then the agency should have a responsibility to respond. I would not envisage local authorities acting irresponsibly in this matter, as appears to be suggested. They would be more than careful because all these matters would be balanced by employment considerations and so on, perhaps too much so in certain cases.
With regard to the amendment in my name, where an operator breaches the terms of his licence, it should automatically mean that the agency should review the operation, his licence and the conditions imposed upon him. This in itself would ensure high standards. The fear of losing a licence under a review, or of having it reviewed or tightened, would be a strong incentive to maintain high standards.
If the Minister gives a good reason as to why it is not necessary to include the provision, I will accept it. If, however, he advises that people cannot be debarred automatically simply because they have a conviction, my response is that this power should exist in this area.
I understand the point the Deputy is making, and there is a good deal of logic supporting his case. However, it goes back to the previous discussion we had. A licence is intact through the process of a complex licensing mechanism. It is important that whatever decision we make with regard to the licence is environmentally sound. In the first instance, the agency is the best body to make that determination. Second, even where there is a breach of a condition, it may not be the best way to revoke the licence, or to make the holder of the licence ineligible.
It may be a requirement, and a better way to approach it, to review the licence and introduce new conditions, including a temporary suspension of the licence holder's right to dispose of waste, as long as all the other conditions which are environmentally important are continued intact. I do not want rogues to be simply debarred and to walk away from the damage they do.
With regard to the point made by Deputy Sargent in respect of the local authority, section 46 sets out the grounds for review. It does not mention any body which would automatically trigger such a review. If one starts to list such bodies, for example, if one includes local authorities, should not one also include environmental agencies and NGOs? If no body is mentioned, they all have a status. All one is doing is listing the conditions which would justify a review, as opposed to the bodies who would trigger such reviews. I would prefer not go down the road of listing the bodies.
I am at a disadvantage here, because a string of amendments have been included together and they all have distinct characteristics. The Minister has unfortunately not accepted the first of these amendments, which I have spoken to.
With regard to the insertion of the activity itself, there appears to be a loophole. Section 46 (3) (a) states: "the Agency considers that any emission arising from or as a result of the activity . . . [which] . . . constitutes a risk of environmental pollution,". Does this cover the risk of an accident? For example, in the case of Sellafield, where there is an ageing plant, it is not an emission that is in question at present, nor will it be until the activity itself becomes a problem. I want to ensure that we are not allowing for a loophole in the future for the sake of inserting a couple of words.
I am not pushing the issue of the endangering of human health because I realise that is within the remit of environmental protection and so on. However, the purpose of amendment No. 181a is to ensure that the local community does not feel totally alienated and disempowered. Doubtless the Minister is aware that this has happened in the past. Local communities living nearest to and most directly affected by the causes of environmental pollution could respond well to the section, especially if the agency considered their concerns, for example by way evidence that something is constituting a risk to environmental pollution. It would be some comfort that they would have a role as public watchdogs.
We are considering the case for a review. We are not necessarily considering revocation, thereby allowing a rogue get away with whatever he has done. We are not concerned with letting anybody off, and this invalidates the Minister's point. I would not agree that local authorities should be treated in the same way as NGOs, any individual or whoever. Local authorities are democratically elected bodies and are responsive to the needs of local communities. Sometimes they can be unduly influenced by one or two very vocal people. However, local authorities should have more standing under the terms of the Bill than anybody else. I ask the Minister to consider Deputy Sargent's amendments on Report Stage.
With regard to the breach of a condition of a licence, prosecution can take place in the courts, depending on the seriousness of the breach, rather than simply undertaking a review of the licence. Under section 10, the offence can be penalised to the extent of £10 million, which underscores the seriousness of the situation. If somebody is in flagrant violation of a licence, and it is an offence to dispose of waste in any way other than in accordance with the licence given, they should then face the courts, be prosecuted and suffer the consequences.
It should not be necessary to get the agency to review them and so forth although that might be a natural consequence. However, the real penalty would be the prosecution that would ensue under the terms of the Bill.
That is provided the penalty is sufficient and it is not £200 or £300.
It is up to £10 million or a term of ten years imprisonment.
That is provided for in the Bill. The Minister knows the courts as well as I do.
We can only enact the legislation; it is up to the courts under the separation of powers to implement it.
I disagree with the Deputy about inserting that amendment. We can all agree on the importance of local authorities but I do not want to adopt the policy of listing bodies which should be taken care of. This section does not list bodies but lists the conditions. Local authorities are extremely important and I have no doubt that the agency will have great regard for the submissions it receives from local authorities.
With regard to emissions and Deputy Sargent's amendment, it will be noted from section 46 (3) (a) that the section is framed on the basis of the emissions from or as a result of the activity rather than from the activity per se, which might constitute a risk of environmental pollution. Amendment No. 180b. makes a distinction between the activity and the emissions from the activity. I do not understand that. It seems to imply that environmental pollution can arise separately from both aspects, in other words, from the activity and from the actions of the activity — if that is not a convoluted way of putting it. Perhaps the Deputy would explain it? If there is a difference between the two I would like to hear about it.
Amendment No. 181 proposes to provide in subsection (3) for a further basis for the agency to review a licence where there has been a breach of the licence. I have already commented on that. There are occasions when the licence should be intact and there is a prosecution route to deal with such violations. That is the preferable route.
Amendment No. 181a. proposes to add a new paragraph (f) to section 46 (3) to provide that the agency may review a waste licence on the grounds of "evidence from any concerned member of the public which the Agency considers constitutes a risk of environmental pollution.". The Bill already provides that the agency may review a licence if there is a risk of environmental pollution. The Deputy wishes to specify the source of that information. That weakens the provision. At present, the agency can act on the belief that there is environmental pollution, regardless of the source of the information. It is not necessary to specify from what source the information was adduced. That would be a weakening clause.
I accept the Minister's final point. He is presenting it from his point of view and I accept it. However, I also must accept the views of people who feel disenfranchised as a result of the experiences they have had. The Minister requested that I give a fuller explanation of amendment No. 180b. When I specify that the activity rather than the emissions ought to be taken into account——
We are talking about emissions.
I know.
So it is emissions from the activity rather than from the activity per se?
If, for example, transportation is involved in the activity to which the licence refers there will be aspects of risk from the activity that may constitute environmental pollution. I do not want the provision to constitute a loophole. None of us can see what will happen in the future but it is important that we do not leave gaps. It is something the Minister might consider.
I and my advisers have gone through this and tried to understand the amendment. The definition of pollution is that it must arise from an emission — an emission of gas, dust, liquid or some material. Emissions are covered in the legislation.
There might be a broader view of what would constitute environmental pollution. I will not press the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 180b., 180c., 181, 181a., inclusive, not moved.
I move amendment No. 182:
In page 67, subsection (5) (a), line 48, delete "(6)" and substitute "(7)".
This is a drafting amendment. Section 46 deals with the review of waste licences. Subsection (5) (a) requires the agency to review a waste licence in specified circumstances including following refusal by it to accept the surrender of a licence. The amendment is a technical amendment for the purpose of correcting a typographical error. The reference to surrender of a licence under section 48 (6) should be to section 48 (7).
Amendment agreed to.
Section 46, as amended, agreed to.
Amendments Nos. 184 and 184a. are related to amendment No. 183 and the amendments will be discussed together.
I move amendment No. 183:
In page 68, subsection (2), line 16, after "Agency." to insert "They shall also jointly publish a notice in a national newspaper of their application for a transfer.".
The purpose of this amendment is to let the public know about these matters about which they have a right to know just as they have a right to know that plans are being made or that licences will be granted. The public should know if a person surrenders a waste licence. They might have legitimate reasons — particularly those who live in the vicinity of a waste holding operation — and points of view to put to the agency about something that should be done before the agency allows the surrender of the licence. The Minister can say that the agency must carry out many tasks including inspections, before it permits the surrender of the licence. However, members of the public should know that a licence is being surrendered or is being considered for surrender and they should be allowed to make their observations about the conditions under which the surrender or transfer should be granted.
There is no end to the transparency rules we can impose on people but we must be a little reasonable. The transfer of a licence clearly does not involve the degree of prior environmental investigation and public consultation as the determination of a licence. The environmental principles and safeguards pertaining to a licence will have been established during the original application process, which is quite onerous under the Bill and which involves public consultation. All that is involved in a transfer application is the transfer of the responsibility for the operation from one individual to another. It is not necessary to impose that level of public consultation again at that stage. I ask the Deputy to accept that as reasonable.
Amendment No. 184a., which is also put down in the interest of transparency, refers to the transferee. It states: "The proposed transferee shall cause to be published, or give notice of, his intention to assume the licence in such a form and to such persons as may be prescribed under section 45." I support Deputy Dempsey's amendment and I am not hung up on the wording.
The same logic applies. The amendment is unnecessary and I am not prepared to accept it.
What is to stop somebody with a bad environmental record getting a front person to apply for a licence? There is an element of local knowledge in this area and there should be consultation with the public at least to allow people to know something is happening. This principle could apply equally to the surrender of waste licences. A legitimate individual with no record of bad management of a facility could apply for a licence and some time later transfer to somebody less desirable. The agency might not be aware of it but members of the public might. It would not cause any great hardship to ask a waste licence holder to indicate by way of public notice that he is transferring the waste licence to somebody else. There is no consequence to that except maybe that a submission would be considered by the agency.
That is be one point. What consideration would the agency give to it? People have a right to natural justice.
I do not think the agency will——
The agency must be the determining body. The new licensee would have to comply with all the fit and proper conditions for a licence holder and the agency would have to make that determination. A notice in the local or national paper would not add to the knowledge available to the agency. If somebody has a conviction, that can be taken into account in determining whether the transfer should take place. What sum of knowledge would be available if there was local input? It certainly would not defend against the use of a front person as the Deputy suggests. The licensee would be legally responsible. If he is a front for somebody else, he is taking on the responsibility of being the licensee.
We are making too much of the transfer of licence. The important issue is the licence itself and the conditions dealing with that which will all remain intact and untouched. Deputy Dempsey also talked about the surrender of a licence which is a much more important issue because one is surrendering the responsibilities that attach to it. This is a different matter. The licence itself, its conditions and requirements will remain unaltered. The only difference would be the licensed person. It could be a relative or anybody else. It should properly be the responsibility of the agency to make that determination and assure themselves that the new licensee complies with the regulations as laid down and all the legal and financial requirements.
If the licence is transferred four or five times and the public do not know about it, it could take them a long time to——
The agency will know.
If people prosecute privately on foot of damage done to them as a result of the operations, they might have to go through about ten different companies. I do not see why it is such a big deal. I ask the Minister to reconsider.
I would not suggest that the Minister is trying to protect anybody. He is saying that the public will have to find their own way and that we will not give them further notice about a transferee taking up a licence. That sounds as if the public will be in blissful ignorance. I do not want to use the word "courtesy"again because the Minister is not legislating for courtesy. However, the Minister is at least expected to let the public know, perhaps with the minimum of effort. This is not an onerous request.
I have made all the points I want to make and I think my position is reasonable.
If amendment No. 183 is not acceptable, amendment No. 184 does not make any sense unless the Minister will allow public submissions. If somebody hears about this transfer of a licence, will the public have a right to make observations to the agency and will the agency have any obligation to listen to them?
The agency will listen to any submission. All the information relating to the licence will be in the register which is open to public inspection anyway.
Even without amendment No. 183, it should not cause any great difficulty to include a sentence stating that the agency should listen to submissions from the public, if the public happens to hear about a transfer.
If we include an element of public consultation, the Deputy's amendment will not suffice. He will have to specify time frames for submission, determination and judgment. It is unnecessary for a licence transfer.
Amendment, by leave, withdrawn.
Amendments Nos. 184 and 184a. not moved.
Section 47 agreed to.