Procedure for regulations and orders: EPA 1990 s. 160A
Lists which regulations and orders under the EPA 1990 need affirmative approval and which are subject to negative procedure, with a table of specific sections.
Regulations and orders under this Act are subject to the negative procedure, other than— regulations or orders subject to the affirmative procedure by virtue of subsection (2); regulations made by a Northern Ireland department under section 156 (power to give effect to assimilated obligations and international obligations); an order under section 164(3) (commencement); an order under paragraph 4 of Schedule 3 (statutory nuisance). Regulations or orders made under a section listed in the first column of the following Table that are of the description specified in the second column are subject to the affirmative procedure— Section Description of regulations or orders 34CA (electronic waste tracking) regulations that— are the first set of regulations to be made by the relevant national authority (within the meaning given by section 34CA(12 under section 34CA, provide for conduct to be a criminal offence which is not a criminal offence under existing regulations made by that authority under that section, increase the maximum penalty for a criminal offence under existing regulations made by that authority under that section, provide for conduct to be subject to a civil sanction (within the meaning given by section 34CB(4 which is not subject to a civil sanction under existing regulations made by that authority under that section, or amend, repeal or revoke a provision contained in primary legislation (within the meaning given by section 34CB(8 .... 34D (prohibition on disposal of food waste to sewer: Wales) any regulations under that section. 45AZC (separation of waste) any regulations under that section. 45AA(10) (separate collection of waste: Wales) any regulations under that section. 46ZC(1) (civil penalty charges under section 46ZA: procedure and amount) any regulations under that subsection. 62ZA (regulation of hazardous waste in England and Wales) regulations that— provide for conduct to be a criminal offence which is not a criminal offence under existing regulations made by the relevant national authority (within the meaning given by section 62ZA(11 under section 62ZA, increase the maximum penalty for a criminal offence under existing regulations made by that authority under that section, or provide for conduct to be subject to a civil sanction (within the meaning given by section 62ZA(4 which is not subject to a civil sanction under existing regulations made by that authority under that section. 78M(4) (offences of not complying with a remediation notice) any order under that section. 79(1ZA) (statutory nuisance) any regulations under that section. 80ZA(11) (fixed penalty notices) any regulations under that section. 88A (litter from vehicles: England) regulations that include provision falling within section 88A(3)(a) or (6). 88C(5) (littering from a vehicle: Scottish civil penalty regime) any regulations under that subsection. section 141 (imports, exports and transit of waste) regulations that— confer powers of entry, seizure or detention in circumstances where there is no such power under existing regulations under section 141, provide for the charging of fees or charges that are not chargeable under existing regulations under that section, provide for conduct to be a criminal offence which is not a criminal offence under existing regulations under that section, increase the maximum penalty for a criminal offence under existing regulations under that section, provide for conduct to be subject to a civil sanction (within the meaning given by section 141(5B which is not subject to a civil sanction under existing regulations under that section, or amend, repeal or revoke a provision contained in primary legislation (within the meaning given by section 141(6 .... Regulations and orders made under this Act by the Secretary of State or the Welsh Ministers are to be made by statutory instrument, other than an order under paragraph 4 of Schedule 3. Where regulations or orders under this Act made or to be made by the Secretary of State— are subject to the negative procedure, the statutory instrument containing them is subject to annulment in pursuance of a resolution of either House of Parliament; are subject to the affirmative procedure, they may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament. Where regulations or orders under this Act made or to be made by the Welsh Ministers— are subject to the negative procedure, the statutory instrument containing them is subject to annulment in pursuance of a resolution of Senedd Cymru; are subject to the affirmative procedure, they may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, Senedd Cymru. See sections 28 and 29 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) for the meaning of “the negative procedure” and “ the affirmative procedure ” in relation to regulations or orders under this Act made or to be made by the Scottish Ministers. Any provision that may be made by regulations or order under this Act subject to the negative procedure may be made subject to the affirmative procedure.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This section sets out the parliamentary procedure for making regulations and orders under the Environmental Protection Act 1990. Most regulations and orders are subject to the 'negative procedure', meaning the statutory instrument can be annulled by a resolution of either House of Parliament (or Senedd Cymru for Welsh Ministers). However, certain regulations listed in the table are subject to the 'affirmative procedure', which requires a draft to be laid before and approved by Parliament (or Senedd Cymru) before being made.
Regulations and orders made by the Secretary of State or the Welsh Ministers must be made by statutory instrument, except for orders under paragraph 4 of Schedule 3 (statutory nuisance). The provision also notes that any regulation that could be made under the negative procedure may instead be made subject to the affirmative procedure.
When it applies
- The Secretary of State makes the first set of regulations under section 34CA on electronic waste tracking that create a new criminal offence.
- The Welsh Ministers make regulations under section 45AZC on separation of waste that are subject to affirmative procedure.
- An order under section 78M(4) imposing penalties for non-compliance with a remediation notice.
- The Secretary of State makes regulations under section 141 on imports of waste that confer new powers of entry.
- The Welsh Ministers make regulations under section 80ZA(11) on fixed penalty notices.
What this section does not say
- This section does not cover the content or validity of the regulations themselves, only the procedure for making them.
- It does not apply to orders under paragraph 4 of Schedule 3 (statutory nuisance) which are not made by statutory instrument.
- It does not detail the penalties or offences created by the regulations.
- It does not cover regulations made by the Scottish Ministers, which are subject to separate Scottish procedure.
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This page reproduces the text of EPA 1990 s. 160A in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.