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Waste (Amendment) (Northern Ireland) Order 2007

Volume 689: debated on Wednesday 21 February 2007

rose to move, That the Grand Committee do report to the House that it has considered the Waste (Amendment) (Northern Ireland) Order 2007.

The noble Baroness said: The draft Waste (Amendment) (Northern Ireland) Order introduces provisions broadly in line with those already in force in England and Wales by the enactment of the Clean Neighbourhoods and Environment Act 2005. The order aims to provide stronger enforcement powers and stiffer penalties to deter unlawful waste activity. I hope that it will be helpful to the Committee if I comment briefly on the background to the order. I shall then say a few words about the detailed proposals.

There is clear evidence that organised criminal gangs are involved in the illegal cross-border transport and illegal management of waste. Such activity generates large profits for those involved. It also causes substantial environmental damage, leads to high clean-up costs and the loss of significant revenues for the Exchequer, and has an impact on the competitive status of legitimate waste businesses. It is small wonder then that the Organised Crime Task Force annual report of 2006 identified such activity as a continuing threat for Northern Ireland. How will this order help combat the problems posed by illegal waste activity? Perhaps it will be helpful if I highlight four main provisions.

The first provision is a general power for authorised officers of the Department of the Environment in Northern Ireland to stop a vehicle on a public road. In other parts of the UK, this power is available only to uniformed constables. However, the unique problems faced by Northern Ireland justify such a provision. Vehicles are the key tool of illegal waste operators, and it is essential that the regulatory authorities in Northern Ireland have clear and effective powers to target those vehicles. Once a vehicle has been stopped, the enforcement authorities need to establish whether it is involved in illegal waste activity. Secondly, therefore, the order also contains powers for the search and seizure of vehicles where such activity is suspected. These powers will be available to police officers and officials.

Thirdly, the order increases the penalties for offences involving the illegal treatment, keeping or dumping of waste. These provisions send out the clear message that illegal waste activity is viewed as a serious environmental crime, and will be punished accordingly.

Finally, the order gives new powers to the courts which are designed to ensure that penalties are proportionate to the crime that has been committed; in other words, that the punishment adequately reflects the crime. Courts will have powers to order the confiscation of vehicles, plant and machinery, and to require offenders to pay investigation, enforcement and clean-up costs.

In addition, when determining the level of penalty that should be imposed, courts can have regard to any financial benefit that an offender has accrued. These provisions give practical effect to the “polluter pays” principle.

I have tried to summarise the key elements of the order. There are of course other, more detailed, provisions, and I shall willingly answer any questions on them. In itself, the order will not provide a sufficient deterrent to illegal waste activity. Further subordinate legislation will be required in due course. However, this is a foundation on which an effective enforcement framework can be built.

I have already referred to the scale of illegal waste activity in Northern Ireland, a problem that must be addressed. The enforcement authorities face a significant challenge, but this order gives them some of the powers that they need to respond effectively. The increased penalties will act as a more effective deterrent. The order will bring Northern Ireland into line with England and Wales, while including other provisions which reflect the particular needs and circumstances of Northern Ireland. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Waste (Amendment) (Northern Ireland) Order 2007.—(Baroness Farrington of Ribbleton.)

I thank the noble Baroness for the way in which she presented the order. I declare two interests. First, I am a landowner and farmer living in Northern Ireland. Secondly, I have had a waste disposal business as part of my responsibilities when working as chief executive of the Redland businesses in Ireland.

I was pleased to hear the last utterances of the Minister that further subordinate legislation is required. My first reading of this order was “You ain’t gone far enough”. It is and has been a huge problem, as the noble Baroness has said. I first went into business in the early 1970s in Northern Ireland, and it has been a big problem since then. It is a cowboy problem that has developed into an organised crime problem and then into an international problem. Not only is the environment at risk; waste disposal is a serious, technical and dangerous business if not done properly.

I look first at Articles 10 and 12. It could be said that this is part of my interest, but I am concerned by Article 10. It is no good passing the buck to landowners. That would not achieve much, because acres and acres of land in Northern Ireland are wildernesses, as the Minister will know. Certainly in winter, when herds are not out, farmers do not walk all over their land every day or every week. Other means and deterrents must be strong enough to prevent the casual tipper in the countryside.

I accept that there are landowners with disused quarries and such who have done private deals to fill them up with waste of one sort or another without planning permission. I am unhappy to some extent with the framing of Article 10. The onus of proof on everybody’s part could be near to impossible on many occasions. The buck would be passed around: the lawyers will make their money; the landowner and the farmer will suffer and have to pay, with worries and hassle; and the criminal will be wandering around with a smile on his face. The order does not do much to stop that.

It is good to have Article 12, about householders and the different receptacles used for recyclable and non-recyclable waste, in here. However, a lot more thought must given to the infrastructure of that legislation. In London, where I live in the week, we have recyclable and non-recyclable bins that must go out at night, and you do not know what time the bin men are coming in the morning. Sometimes they do not come until two o’clock in the afternoon, by which time dogs—or, in my case, unfortunately, pigeons—get at it.

I have had letters of summons for £2,000 fines from the authority because somebody has handed in a letter with my name on it and said that they found it outside my house. The Committee will be glad to hear that I managed to sort the matter out, but that is real life. The neighbour situation, to which my honourable friend David Lidington referred when this order was debated in the other place, is also a serious worry. If somebody has a grudge against a neighbour, they can cause a huge amount of hassle and trouble very easily. Those issues are not addressed in the legislation. More thinking, more regulation, and more infrastructure needs to go into how to interpret this law. If it is interpreted with considerable common sense and understanding, and as more knowledge is built up or more regulations are introduced when needed, that will be okay.

One of the most important aspects, which is tackled to some extent, is the licensing of those who carry out waste disposal operations. I hope and assume that the licence goes to the driver of the HGV who is doing the disposal. It does not say so here, but I assume that if an organisation is licensed, the driver of the HGV carrying the waste is expected by law to carry his disposal licence. If he is stopped, it is no good just telling Joe Bloggs from the department, “I have a licence. We are fixed”. He must be able to produce a government licence when he is stopped. I sincerely hope that that is part of this legislation. If it is not, it is not worth a great deal.

Another aspect that I want to recommend is that before those licences are issued, a form of training should be compulsory to those drivers—and operators, if necessary—to have an understanding of the law and what they are allowed to do with the waste they are disposing of. They are on public roads. Sometimes they are driving tankers containing dangerous materials, so they ought to have a special licence saying that they have been trained, they are entitled to dispose of the waste, and that it is their job. Otherwise, how will it be controlled? There is more to come on that issue.

I turn to the last of my key points. Finance is very important. My briefing tells me that the prices for disposal in the Republic of Ireland are considerably higher than those in the north. That tells its own story. The Republic is a very competitive place. They are good business people and they are competitive. But if the price for disposing of their waste is significantly higher than that in the north, there must be a story as to why they bring their waste across. There is no currency gain; it is purely that it is cheaper to find a disposer in the north than in the south. I suggest that the reason why prices in the north are so much less is because of the cowboy trade. No one in the industry professionally and legally can offer the prices required to carry out that business in a regulated and legal way. Waste could include arsenic, chemicals, and so on. The more technical and difficult the waste, the more likely the tenderer is to get a good price because the cowboys do not want to get into that. I have been there. People laugh at you and say, “Oh, don’t be silly. Jim will take it away for you. Don’t worry”. There are cowboys behind the scenes, which I believe is understood by the department and the Government.

This order does not go nearly far enough, but it is a start. It says that regulations will be produced that back it up as subordinate legislation. I hope that they will not be too long in coming. In principle, I support the order. It is a move in the right direction.

I, too, thank the Minister for delivering the order to us. The majority of the provisions replicate those in the Clean Neighbourhoods and Environment Act 2005.

As we heard graphically from the noble Lord, Lord Glentoran, who has a great deal of experience in this area, organised gangs are making very large profits on the movement of illegal waste. The environment must get damaged if waste disposal is not properly regulated, and the costs to clean up those unregulated areas are very significant. The draft order provides much stronger powers for enforcement officers and additional powers for the courts to impose wider-ranging and more significant pecuniary penalties to combat and deter illegal waste activity.

I was pleased to see that consultation on the proposals has been undertaken, the main responders being district councils. Their main concerns were that the proposals were focused far too narrowly—the noble Lord, Lord Glentoran, made this point—on the powers of the department to deal with waste management and disposal activities. They did not provide a greater role for district councils to become involved in this important area. I am pleased that the Government have recognised that and propose to engage further with district councils on the possibility of enhancing their powers.

In Articles 3 to 9 on the disposal and depositing of waste, I hope that guidance will be given on how the powers of those dealing with such incidents will be undertaken. There will be a need to understand proportionality in dealing with possible offenders, especially as the powers now being given to the people who will police these incidents will be greatly enhanced. Will the Minister explain the term “authorised officer”? We have a definition in Article 9(11), which states:

“In this Article [5E] and Article 5F … ‘authorised officer’ means an officer of the Department who is authorised in writing by the Department for the purposes of this Article”.

The authorised officer will work alongside, or with, the police. I am concerned about the level and quality of such officers. They will need training. They will have quasi police powers if they are not with a police officer, so that is important. Will the Minister say what discussions there have been with the Republic of Ireland on these measures? It is extremely important that dialogue between the north and the south is clear so that both sides understand the difficulties that each has with the importation and exportation of illegal waste. We on these Benches also welcome the proposals in the main, and hope that the situation on illegal waste tipping is brought to a rapid end.

I thank both noble Lords who have taken part in this short debate. We are working closely with the Republic of Ireland on this matter, and have recently had joint operations on it. One reason why we would want authority to be given to an appropriate level of officer to deal with this is that, as we all know, the police are on occasions suddenly called away on an emergency. We do not want a particular issue to fall by default because the police are called away.

At an operational level, the departmental officers regularly discuss and share information with their RoI counterparts and assist in investigations. RoI officers have attended Northern Ireland operations in which waste from the Republic has been identified. Department of the Environment officers have been witnesses in RoI prosecution cases. The authorities in both jurisdictions have prepared an action plan to deal with existing waste illegally dumped in Northern Ireland, and to prevent possible future waste movements. The draft plan was presented to the European Commission at a meeting in October 2006, and the Commission welcomed it as a positive step in tackling the problem.

The noble Lord, Lord Glentoran, and the noble Baroness, Lady Harris, recognise that it is a cross-border issue on which we are co-operating fully on both sides. It is also, of course, a European Union issue on which member countries are required to work to the agreed directives. We only have one land border in our country, but the issue must be tackled by countries across the whole European Union. As the noble Lord, Lord Glentoran, recognised, the issue is often that disposal sites are cheaper on one side of the border than on the other. The noble Lord was also concerned about the fact that district councils want, and could have, more authority and powers to deal with this. We are currently in close discussion with them, and envisage that they will be able to have their concerns met as the process moves ahead. It is perfectly true that it is not only an environmental problem, but could be a dangerous health problem. It is important that we deal with that.

The noble Lord, Lord Glentoran, raised the issue of the recent judgment in the Challice case, in which Exeter City Council brought charges against a resident for contamination of their recycling container. The council could not prove that the resident had personally done this. That prosecution was brought under existing waste legislation rather than under the new fixed penalty system introduced under the Clean Neighbourhoods and Environment Act 2005. The new regulatory regime will, we hope, assist in enforcement. I see the noble Baroness, Lady Hanham, in her place, and I remember our discussions during the passage of the Clean Neighbourhoods and Environment Act. We agree that it is difficult to guarantee that waste bins placed on a public road will not be tampered with but, if we are going to tackling recycling, we must encourage people to take responsibility. We will continue to monitor the legislation.

The noble Lord, Lord Glentoran, raised the issue of fairness to landowners. The order will help councils to deal with derelict sites where there is no occupier of the land, or with an absentee landlord allowing his land to be used as an unlawful dump. The aim is to allow action to be taken against irresponsible landowners without penalising the victims. We recognise that people are often the victims of fly-tipping.

As is currently the case with an occupier, an owner will have rights of appeal against such a notice, and a court will not expect an owner to pay removal or remedial costs if satisfied that the owner neither deposited, nor knowingly caused or permitted the deposit of, the waste. The courts will be given greater deterrence powers, and will be required to take into account any financial benefit that an offender has accrued when considering the level of penalties. They will have the power to order the forfeiture of the vehicle and order offenders convicted of the unlawful deposit of waste to pay the full clean-up costs.

I understand the concern of the noble Lord, Lord Glentoran, but it is important that we increase the deterrence of this unlawful activity, which causes damage and threatens health. The noble Lord also raised the issue of disposal licences. There will be detailed guidance on the legislation. It will be the responsibility of licensed companies to pass information on to their drivers, and Article 15 provides for the revocation of licences in the case of non-compliance.

Drivers are subject to legislation on the registration of carriers, and will have to have the relevant documentation to identify them as a registered carrier. They are also subject to the duty of care legislation, and must therefore have a waste transport form, indicating the nature of the waste, its origin and destination, such as a particular licensed waste disposal site. The fixed penalty notice that is introduced if the above is not adhered to is extremely important.

I have tried to cover the issues raised, and I hope that I have covered all the points. We do not want to penalise landowners who are victims. My understanding is that the authorised official would be somebody at a competent level. If I am wrong, or if I can add anything, I shall write to the noble Baroness, Lady Harris. I thank both noble Lords. I beg to move.

On Question, Motion agreed to.