Draft Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019
(5 years, 4 months ago)
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The Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Dr Thérèse Coffey)
I beg to move,
That the Committee has considered the draft Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019.
It is a pleasure to serve under your chairmanship, Mr Hanson. This is yet another affirmative statutory instrument regarding the environment for consideration in respect of the UK leaving the European Union, in accordance with the result of the 2016 referendum, subsequent agreement by Parliament and the European Union (Withdrawal) Act 2018.
The Committee may wonder why we did not consider this statutory instrument prior to 29 March. That is because the functions it concerns were not deemed critical for day one operability and continuity. I therefore agreed to lay the instrument before Parliament after 29 March, given the huge amount of legal work and work by officials undertaken in the run-up to 29 March. However, now that we have the extension until 31 October, I want to ensure that the instrument is ready for exit day.
The statutory instrument creates regulation-making powers to be exercised by Ministers here and in the devolved Administrations. The instrument itself makes no change to policy and has no impact on businesses or the public. The regimes connected to the powers in the instrument will continue to function as they do now, and will change only if new regulations are made under the powers being created.
Part 2, which contains regulations 3 to 15, covers functions with respect to five EU directives relating to air quality: the directives on emissions of volatile organic compounds, ambient air quality and cleaner air, industrial emissions, medium combustion plants, and national emissions of certain atmospheric pollutants. Those functions include, for example, a power to specify a common format for monitoring data for volatile organic compounds, and a power to specify rules for determining start-up and shut-down periods for the purpose of certain plants covered by the industrial emissions directive.
The powers in part 2 that relate to volatile organic compounds and national air pollution programmes are conferred on the Secretary of State. Volatile organic compounds are a reserved matter. Powers relating to national emissions of certain atmospheric pollutants, on the other hand, are devolved, but the devolved Administrations have already agreed to those powers being transferred to the Secretary of State to exercise on behalf of the whole United Kingdom because they involve UK-wide obligations. However, the Secretary of State must, on each occasion, obtain the devolved Administrations’ consent before making regulations on those matters. The Secretary of State must also have regard to requests from devolved Administrations to make regulations effectively on their behalf.
For all other devolved matters in part 2, powers are conferred on the appropriate authority. The appropriate authority is defined for part 2 by regulation 4 and means, for England, the Secretary of State; for Wales, the Welsh Ministers; for Scotland, the Scottish Ministers; and for Northern Ireland, the Department of Agriculture, Environment and Rural Affairs. Regulation 14 provides that it is possible for the Secretary of State to make regulations on behalf of one or more devolved Administrations, but only with their agreement. That allows for a common approach on legislation across the United Kingdom, providing more certainty for industry and other stakeholders. Regulation 15 provides that the appropriate authority may make regulations under part 2 only after having consulted anyone whose interests appear
“likely to be substantially affected”
and any other appropriate persons.
In part 3, regulation 16 transfers functions in the EU environmental noise directive, which aims to avoid, prevent or reduce the harmful effects of exposure to noise pollution. Those functions are conferred on the appropriate authority, which is defined in the same way as for part 2. They allow for specified technical aspects of the directive in the UK’s transposing legislation to be amended by the appropriate authority in the light of scientific and technical progress. These are very limited and technical matters. The Government’s consultation principles will apply to determine whether consultation should be carried out before regulations are made.
Part 4, which contains regulations 17 to 22, confers functions under the EU directive establishing an infrastructure for spatial information, which is known as the INSPIRE directive. The functions in regulations 19 to 22 include powers to make provision in relation to metadata for spatial datasets and services, and interoperability and harmonisation of spatial datasets and services. Those powers can be used to amend a number of pieces of EU legislation that will become part of domestic law in the UK on exit day, such as the EU implementing regulation on metadata. Chapter 1 sets out definitions for this part, including regulation 18, which defines an “appropriate authority”. This is slightly different from the definition in parts 2 and 3, in that the Secretary of State is the appropriate authority for England, Wales and Northern Ireland, because INSPIRE is devolved only to Scotland. However, the Secretary of State may also legislate for Scotland if Scottish Ministers consent.
Regulation 23, in part 5, transfers functions contained in the EU marine strategy framework directive, which aims to protect the marine environment, by amending the Marine Strategy Regulations 2010, which transposed the directive to the entire United Kingdom. The functions relate to: assessing the state of UK seas and setting objectives, targets and indicators to measure progress towards good environmental status; carrying out programmes to monitor progress against the targets and indicators; and setting out a programme of measures for achieving good environmental status. These functions are conferred on the Secretary of State to exercise for the whole marine strategy area, as defined in regulation 3 of the Marine Strategy Regulations 2010. This includes the UK’s territorial seas, including coastal waters, offshore waters out to the limits of the UK’s renewable energy zone and the seabed in areas of the UK continental shelf beyond the renewable energy zone.
Some of these matters are devolved, but the devolved Administrations have agreed that, because they involve UK-wide obligations, these functions should be exercised by the Secretary of State. Before making regulations under this part, the Secretary of State must obtain the consent of relevant devolved Administrations. The Secretary of State may also consult interested parties, including, where appropriate, the OSPAR commission and other international organisations to which we will retain our obligations after we have left the EU. The Secretary of State must publish a report on his decision following consultation.
Part 6, comprising regulations 24 to 46, confers functions contained in eight EU water directives relating to the protection of waters in general, including the water framework directive, the groundwater directive, the environmental quality standards directive, the bathing water directive, the drinking water directive, the urban wastewater treatment directive, the nitrates directive and the sewage sludge directive. The functions include powers to: set out technical specifications for economic analysis and water quality monitoring; specify the procedures for establishing groundwater threshold values, assessing groundwater chemical status and identifying upward trends in groundwater pollutants; specify the symbols to be used for information on bathing water prohibition and to make provision about handling bathing water samples; and to specify reference methods for measuring nitrate levels in water.
The functions are clearly defined and are exercisable in most cases only in order to adapt the legislation to scientific and technical progress. They are conferred in each case on the appropriate authority defined by regulation 25, in the same way as for part 2. Regulation 25 also provides for the Secretary of State to legislate for the devolved Administrations, with their consent. Before making regulations under part 6, regulation 46 provides that the appropriate authority must consult the appropriate agency—the Environment Agency, Natural Resources Wales, the Scottish Environmental Protection Agency or the Northern Ireland Environment Agency—as appropriate, and indeed any other persons who the appropriate authority considers appropriate to consult. Part 7, comprising regulations 47 and 48, sets out the procedures for making regulations in each part of the United Kingdom and provides that such instruments are to be made in each case by the negative procedure.
These regulations, as I have tried to explain, extend to the whole United Kingdom, with the exception of part 5, which applies to the marine strategy area. The nature of these regulations is to allow for the straightforward transition of limited technical legislative functions that are currently conferred on the Commission by EU environmental directives. Some of the Commission’s powers enable it to make amendments to EU legislation, for example by adapting technical annexes to a directive to reflect changes in scientific and technical knowledge, without any need to refer back to either the European Council or the European Parliament. Other powers also enable the Commission to set out the details of things such as reporting requirements.
When the directives were transposed into domestic law, there was no option to take such powers, because they were specifically powers to be exercised by the Commission, not by member states. We have subsequently seen the Commission exercise its powers to legislate, and we have then used the powers in section 2(2) of the European Communities Act 1972 and similar implementing powers to make any legal changes needed to reflect updates to the directives or to implement the detailed rules set by the Commission. After EU exit, unless we give these sort of updating powers to authorities in the UK to exercise for domestic purposes, in many cases we would only be able to make changes to legislation through primary legislation.
The powers will be used to ensure that domestic legislation continues to function well in the future and reflects scientific developments. They are, however, limited in nature and not the kind of functions for which we would normally require primary legislation. As in other cases, they are suitable to be dealt with through secondary legislation. It is fair to say that if we had to resort to using primary legislation and did not have the powers, it would become increasingly difficult for the law to keep pace with both scientific and technical change.
The instruments provides that in future legislative functions will be exercised by making regulations through this Parliament and indeed devolved Administrations. Parliament is therefore capable of scrutinising such regulations. By contrast, Parliament currently has no say whatsoever over how the European Commission exercises the powers. In many cases the regulations also explicitly require consultation with interested parties and expert bodies before regulations are laid before Parliament. For example, regulation 15 in part 2, which relates to air quality, requires such consultation before regulations are laid, and regulation 23 makes similar provision relating to marine strategy.
I have been made aware of a briefing from Greener UK. In its letter, it asks for things to be done that are not done today. I stress that that is not the purpose of the European Union (Withdrawal) Act 2018, under which we are in effect translating EU law into domestic law. Indeed, in my transparency statement I must be clear that we are doing what we need to do and not new things. The powers in the Act are there for me to make operable and effectively mirror the language of the directives. I understand Greener UK’s concern that phrases such as “non-essential elements” may appear somewhat odd as regards normal parlance, but that is the wording in the directive that we are effectively translating.
I point out that the Secondary Legislation Scrutiny Committee did not report the regulations to the House. I believe the regulations are a sensible approach that will ensure that we continue to have appropriate legislation that helps us protect the environment.
Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)
It is good to see you back in the Chair, Mr Hanson. I will use my remarks to raise a number of concerns on behalf of the Opposition about the regulations and the way in which they have been put together. They seem a little like the pile of vomit we sometimes see on the street after a night out. With a cursory glance, we wonder, “Why are all those bits in there, and where does the carrot come from?” [Hon. Members: “It’s too early!”] No, no. Everyone needs to be awake on this. When we see the broad range of topics included in the regulations and the Minister’s statement that they were held back before exit day, we must consider why all these measures are being included together. The only contingent stream seems to be that they all under the responsibility of the Department for Environment, Food and Rural Affairs.
Stakeholders have raised concerns with the Opposition on which I will provide some detail. The Minister tried to head off some of the concerns raised already, but I would like to put a few questions on the record that perhaps she can answer. I warn her that our concerns are substantial, so she cannot be assured of the Opposition’s support; it will depend on the answers she gives.
We are concerned that the regulations represent a power grab by Ministers, potentially enabling them to reduce current EU environmental protections by amending their own duties, standards and monitoring requirements, in particular for toxic emissions. The withdrawal agreement and the draft Environment Bill do not maintain the current EU protections or keep us in step with improvements. Indeed, we have not yet really seen the full extent of the Bill. These regulations need to fit with the other jigsaw pieces the Minister alluded to that we passed before 29 March. Hon. Members who have sat on Delegated Legislation Committees on such topics will note that air quality, marine management, water and water resources are the subjects of many of the statutory instruments that we have passed.
I say gently to the Minister that there is utility in mentioning how related instruments will fit together in the first and second stages when one statutory instrument is considered while others are held for future consideration. That will help scrutiny of those SIs; otherwise, all we have is random bits of legislation that do not seem to fit together. I am sure there is a method in the tactics that are being pursued, but it makes scrutiny much harder.
A key concern is the governance gap between leaving the EU and the date when the Government’s proposed environmental watchdog starts to function. The public cannot have confidence in it if it is appointed by and reports to DEFRA. Some of the watchdog’s powers relate directly to the areas that the SI covers, so they are connected. We are concerned that the Brexit legislation is being used as an opportunity for the Government to take on additional powers, but not with the same level of scrutiny as we had before, and that the new environmental watchdog does not strengthen the protections that we have together.
We have concerns about how the SI’s provisions fit together with the overall Government strategy on air quality. We know that the Government’s plans have been ruled unlawful numerous times by the High Court. The clean air strategy was a disappointment with vague targets. Responsibility was shoved to some local authorities with a degree of power, but some of their resources were taken away. Stakeholders have raised concerns about how powers will be exercised in relation to air quality, so will the Minister set out any additional powers and the level of consultation? The key thing for lots of stakeholders is that if the Government change any of the powers, will the stakeholders be consulted and will the consultation be done in a meaningful way?
On environmental noise, the current proposals are not good enough. They do not cover noise from domestic activities and noise created by neighbours, noise in workplaces and noise from transport. The Minister mentioned stakeholder concerns and she is right to highlight the concerns flagged by Greener UK, but other organisations have also flagged concerns. They are concerned that the SI establishes broad powers for the relevant competent authority, usually the Secretary of State, to make amendments, by regulation, to a wide variety of significant legislation, which potentially has important implications for the environment. Although some of the powers are limited in that the powers may be exercised only to the extent that the Secretary of State considers it is appropriate to do so as a result of scientific and technical knowledge, the requirement does not apply to all of the powers in this SI. Indeed, it provides no clarity as to what
“appropriate...as a result of scientific and technical progress”,
actually means. That is a broad statement, so will the Minister clarify what considerations and technical tests she will apply in defining what scientific and technical knowledge means in relation to this measure? Simply being really good at science and sitting in a Government Department might not qualify, so it is important to have some external scrutiny of what that definition actually means.
All the regulations that can be made by the competent authority under the SI are, pursuant to regulation 47, subject to the negative procedure of scrutiny, which means that the regulations become law on the day they are signed by the relevant Minister and will remain so unless Parliament agrees a motion to reject the relevant regulation. In SIs in the past, the Opposition have raised concerns about how many of the additional powers the Government are taking for themselves and applying via the negative procedure, potentially limiting scrutiny. We know that many of these powers are exercised by European authorities at the moment, who have a wide range of scrutiny functions derived from the European Commission and the European Parliament, and we need to look at the transfer of such scrutiny powers to the United Kingdom and how they can be properly reviewed, so will the Minister set out why she feels powers in negative SIs, and not affirmative ones, are the right ones to take?
Key to many of the concerns is the lack of scrutiny. Will the Minister confirm for the record that the SI has been in the reading room and has had stakeholder feedback on its production? What changes, if any, have been made? The Minister knows that a pet hobby-horse of mine is impact assessments, and I am afraid this SI prompts the same critique as the others, which I have mentioned in this place many times before. Page 11 of the explanatory notes, under the section on “Impact”, states:
“There is no, or no significant, impact on business, charities or voluntary bodies”
or the public sector, and therefore:
“An Impact Assessment has not been prepared for this instrument because it creates regulation-making powers rather than changing any policy.”
I am concerned that the difference between “no impact” and “no significant impact” is an impact, and an impact assessment of the difference between “no impact” and “no significant impact” would be required. I know that Minister’s officials normally have to prepare lines to rebut my saying these things, and I wonder whether we can find a way to avoid that dance each time and have a mini impact assessment or a form of words that enable the time that officials spend rebutting my concerns about the impact assessment to be spent on applying some of these elements.
Now that we have got through the glut of DEFRA SIs ahead of the proposed exit day on 29 March, I wonder whether Government Ministers could persuade the House authorities through the usual channels to slightly adjust the set wording on the explanatory notes, to clarify whether there is “no impact” or “some impact”, so that we have those as two very different statements. These regulations could have some impact, but it has not been assessed. The Minister is probably correct that they take a lot of powers but might not necessarily change any policies. Given that there might be no change in the powers but that they could bring significant change when used, and that there is not always the same scrutiny of the exercise of those powers, I would be grateful if the Minister could set out her view on that.
The Opposition have some concerns about the environmental noise area. On the INSPIRE side, we are concerned about the devolution agenda and how different levels of devolution can ensure consistent application. If there is a difference between the devolution of INSPIRE in Scotland and in England, Wales and Northern Ireland, how would that be resolved? If they are applied in different ways, would the Minister be concerned about that? Has any consideration been given to how that spatial data can work together to ensure that we get the right stuff?
I will close my speech by addressing marine strategy. The Opposition is very keen for the Government to have a more ambitious marine strategy for the protection of our oceans and seas. We are concerned about the application of the powers that are being transferred to the Secretary of State. I encourage the Minister to use the powers that she already has, as well as the powers that she is taking, to protect our environment in a faster, fuller way. We are very concerned about the state of our oceans and marine environment. Colleagues’ research on marine plastics and pollution, and the report on toxins and chemicals that was published yesterday by the Select Committee on Environmental Audit, should concern us. I would be grateful if the Minister could set out how she expects the powers in the marine section to be used. Simply transferring those powers is one thing, but their application is another.
There is plenty in the SI that looks like just a paragraph, which is our key concern. The consultation that needs to follow the powers does not always seem to apply as thoroughly as it should. I am concerned about how this fits with the other areas that we have already approved, and whether we should expect any other, related SIs. In her opening remarks, the Minister said that she chose not to bring forward this SI in the flood that we had leading up to 29 March, because it was not deemed critical. The powers that the Minister has taken are still substantial and I would be grateful if she could set out what other, non-critical powers she is expecting to transfer that relate to water, water resources, marine management, air quality and environmental protection, and which might not be included in this SI but will relate to the powers contained in it and in the others that we have passed in those areas. It is really hard to scrutinise the full regulatory and legislative impacts if the Minister keeps dripping different elements in at the same time, and if there are no aggregated or collated versions at the end that enable easy scrutiny, apart from trawling though the entire statute book—as we know, that is a much bigger challenge.
On that basis, the Opposition remain concerned about large chunks of this SI. We would be grateful if the Minister could respond to the concerns raised by stakeholders around the power grab, the additional powers and how any scrutiny functions will be applied in the use of the powers.
John Mc Nally (Falkirk) (SNP)
It is always a pleasure to serve under your chairmanship, Mr Hanson. I have a few brief points. I thank the Minister for her comments and references to devolved Administrations. The fact that they are speaking with each other is reassuring. I am confident in the Scottish Government’s ability to scrutinise the UK Government.
As Members will know, improving air quality is a priority for the Scottish Government. Our ambition is for Scotland to have the cleanest air in Europe. Compared with the rest of the UK and other parts of Europe, Scotland has a high level of air quality, which we are trying to protect at all costs.
None the less, we have also set out stringent air quality targets, higher than those in the rest of the UK. Scotland has adopted in legislation the World Health Organisation guideline values for fine particulate matter, PM2.5, and I believe we are the first country in Europe to do so. We spend more than £1 billion a year on public transport and doubled the active travel budget in 2018 to support sustainable travel options.
Finally, I am certain that others, and certainly Scottish MPs, will join me in congratulating Falkirk on being the best walking neighbourhood in the UK—a clear demonstration of putting our feet where our mouth is—getting people out of their cars and developing a healthier life choice. That is an award well recognised by everybody in this House. Unfortunately, I could not attend the award ceremony because I was speaking on climate change at that time. Nevertheless, I think it should be recognised.
Ian C. Lucas (Wrexham) (Lab)
I am listening carefully to the hon. Gentleman. I urge all Members to go to see the Falkirk wheel, if they have not already inspected it. It is essential to understand the importance of water and the way engineering and water can combine for the public good. It is also makes a wonderful day out.
The Chair
Before the hon. Member for Falkirk responds, I have looked at the order carefully and the word “Falkirk” does not appear in it. I would be grateful if he could stick to the matters in the order.
John Mc Nally
Thank you, Mr Hanson. I thought the point was relevant to today’s debate.
Dr Thérèse Coffey
In response to the hon. Member for Falkirk, I have been there once in my life, but I have not seen the Falkirk wheel. Perhaps I will add it to my summer list.
I object to the terminology used by the hon. Member for Plymouth, Sutton and Devonport at the opening of his speech. Our officials and lawyers have worked very hard on this legislation; it is not vomit. It is actually good, normal, sensible legislation being brought to this House for scrutiny.
Hon. Members will be aware that we had a huge number of statutory instruments to process into group areas, especially where they were small and similar, with the same approach of basically updating, in this case, technical powers. I thought it was appropriate to group together the different areas in order to undertake that. I also want to point out that I wrote to the shadow Secretary of State on 5 July, making her aware of this and inviting her to get in touch, if any discussion was wanted. I appreciate that the Government have the full benefit of the civil service behind them and the Opposition rely on Short money for that support to help on policy matters.
I want to assure the hon. Member for Plymouth, Sutton and Devonport that this statutory instrument was put in the reading room. No feedback was given to the Department at that point. There has been a subsequent briefing from Greener UK. I am not aware of contact from any other organisation on this and, as a consequence, no changes to the regulations were needed before formal tabling, which we are debating today.
The hon. Member for Plymouth, Sutton and Devonport is just going to have to join either the Procedure Committee or the Joint Committee on Statutory Instruments. I have made that appeal to him before. This is just the way that Parliament works, and it is not for the Government to change how Parliament decides that it wants statutory instruments to be written. We are following the conventions and rules set out by Parliament. I know that the hon. Gentleman is a champion for change on a number of matters. I encourage him to join the relevant Committees to make that change.
On the points that the hon. Gentleman made about air quality, regulation 15 provides that, before making any regulations under the part regarding air quality, there is a statutory duty to consult. Consultation will be carried out in accordance with our standard principles. On noise, the statutory instrument simply replicates the powers in the directive. It would be an inappropriate use of the European Union (Withdrawal) Act 2018 to do anything more than what is in the directive. If we want to make changes in the future, that will be a separate matter for us to consider through means other than this device.
On negative SIs, I repeat to the Committee that, at the moment, the Commission can exercise the powers without any scrutiny by this Parliament whatsoever. Today’s proceedings will at least give Parliament the chance to look at future regulations. We will have consultation where it is deemed necessary, and then Parliament can, even through the negative procedure, suggest that the regulations be stopped, debated and voted on. Parliament does not have those powers today.
Marine is an important issue, on which I think the House is united in wanting to do more. Again, the regulations are simply about powers to update technical matters. The hon. Gentleman mentioned how we know what will change, scientifically. As it stands, the Commission is regularly approached by scientists, academics and others in order to get such changes made, to update the technical progress. We would expect a similar situation to happen, whereby the Government would be approached by people saying, “We think you need to update these particular regulations,” or simply making a suggestion on how we monitor data.
A future marine strategy is an ongoing process within Government. The hon. Gentleman also talked about the INSPIRE regulation and metadata. That is a devolved matter. Usually, the UK Government work in great collaboration on matters that can be helpfully dealt with on a UK-wide basis—we have seen that as regards a series of processes. There is no reason why such ongoing co-operation cannot continue; however, the whole point of devolution is that, if a devolved Administration want to do something different, they do not have to remain in step with the rest of the UK.
Luke Pollard
In relation to scientists approaching the Department and asking for changes, one of the key things about our marine environment is that fish and other aspects of the marine environment do not respect national boundaries. Ensuring that regulations and standards in our marine environment, especially in areas that jut up against our EU neighbours’ marine environment, is really important. Does the Minister anticipate changes in the way that standard and monitoring assessments are made by our EU friends that she will need to carry over into UK law, or does she expect the two standards, which are currently the same, to diverge?
Dr Coffey
I am not expecting particular changes, but it is important to point out that we also have marine boundaries with non-EU countries. There is regular, ongoing co-operation through the regional management organisation for fishing. We also have the OSPAR commission, which covers the north-east Atlantic. Again, that has non-EU countries in it. We already have ongoing co-operation. It is important to state that one element of leaving the European Union is that it will be for Parliament to decide to make changes, rather than automatically agreeing with what the European Union decides is appropriate for its regulations. That is part of the effect of leaving the European Union.
I hope that I have answered the hon. Gentlemen’s concerns. This is a special day for me, because I have been doing this role for three years. I am very much looking forward to continuing for at least another week or—who knows?—for longer. With that, I hope that the Committee will support the motion.