Grand Committee
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the hybrid Grand Committee will now begin. Some Members are here in person respecting social distancing, while others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear a face covering except when seated at their desks, to speak sitting down and to wipe down their desks, chairs and other touch points before and after use. If there is a Division in the House, the Committee will adjourn for five minutes.
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Environment and Wildlife (Miscellaneous Amendments etc.) (EU Exit) Regulations 2020
(4 years, 1 month ago)
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Lord Goldsmith of Richmond Park
That the Grand Committee do consider the Environment and Wildlife (Miscellaneous Amendments etc.) (EU Exit) Regulations 2020.
Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)
My Lords, it is a pleasure to lead this debate today to discuss these regulations. The instrument makes operability changes to retained EU law and implements the Northern Ireland protocol in the context of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, CITES. This will be done by making changes to the UK’s existing CITES regime, comprised primarily of retained EU law, in so far as it will operate in Great Britain, to ensure that the relevant EU regulations can continue to be properly implemented in Northern Ireland as required by the protocol.
Additionally, these regulations will consolidate previous instruments, making operability fixes to retained EU law so that the changes appear in one place. The regulations also make both further operability fixes in respect of more recent EU legislation that will become retained EU law and minor corrections to regulations that were not dealt with in earlier instruments.
CITES provides protection to more than 35,000 different species of endangered animals and plants. With its 183 parties, it is one of the conservation agreements with the largest global membership. The range of species covered by CITES is incredibly diverse, from zoo animals such as lions and giraffes, and household pets such as parrots and turtles, to corals, orchids and rosewood, commonly found in guitars. By regulating international trade in animals and plants and in their parts—such as fur, feathers and seeds—CITES aims to reduce the threat to these species in the wild.
CITES is implemented throughout the EU via the EU wildlife trade regulations, which are currently applicable in the UK. The EUWTR set out the controls for trade in specimens of endangered species of wild animals and plants to and from the EU, the UK and the rest of the world. Many UK businesses currently trade in CITES specimens. The relevant sectors are varied, including musical instrument makers and musicians, fashion, antiques, pharmaceuticals, floristry and businesses that trade in live animals for aquariums, zoos and pets. The UK is party to CITES in its own right and will continue to be bound by its obligations after the end of the transition period, regardless of the outcome of negotiations with the EU on the future relationship.
The UK is committed to supporting the work of CITES now and in future. At the CITES conference of parties in August 2019, the UK used its world-leading scientific and technical expertise to play a pivotal role in proceedings. As a result, 93 new species, including mako sharks, the spider-tailed horned viper, star and pancake tortoises, two species of swallowtail butterfly and several species of gecko and newt, will now benefit from enhanced protection under the convention. This is only one part of the Government’s continued commitment to tackling the catastrophic loss of biodiversity that we are now facing.
The primary purposes of this instrument are to make operability fixes to retained EU law and to implement the Northern Ireland protocol with regard to CITES. In doing so, we are consolidating amendments made by previous CITES exit SIs, which have not yet come into force, into one instrument.
In implementing the protocol, CITES documents and relevant checks will be required for CITES specimens travelling between Northern Ireland and Great Britain in both directions. This will affect traders in Northern Ireland and traders in Great Britain who regularly move specimens in and out of Northern Ireland. This is to implement our convention obligations and the provisions of the Northern Ireland protocol.
In addition to consolidating operability fixes made in previous instruments, this instrument will make operability fixes in respect of more recent EU legislation that will become retained EU law and minor corrections not included in those previous instruments. For example the instrument deals with a new suspensions regulation, which came into force in October 2019. That regulation provides for bans on imports of certain species needing additional protection. By consolidating changes made in previous instruments that have not yet come into force, this instrument will also serve to make the legislation clearer and more easily accessible to end users.
The instrument makes a number of amendments. The regulations make no changes to policy other than those necessitated by the Northern Ireland protocol. Part 2 of the instrument amends domestic regulations which provide for, among other things, enforcement powers with regards to CITES. Part 3 amends retained EU regulations on CITES to ensure that the regime is operable in Great Britain after the end of the transition period. The instrument was sent to the JCSI for pre-scrutiny and was returned with minor comments relating primarily to minor drafting issues.
This SI does not change policy other than as required by the implementation of the Northern Ireland protocol, so no consultation was undertaken. However, drafts of the instrument have been shared with the devolved Administrations during its development and drafting. In line with published guidance, there is no need to conduct an impact assessment for the instrument because there is no or no significant impact on the public, private or voluntary sectors.
The territorial extent of the instrument is the United Kingdom. The changes made by it, as a result of the UK’s withdrawal from the European Union and the implementation of the Northern Ireland protocol, will affect Defra and the Animal and Plant Health Agency as documentation which was previously required at the EU border will now be required at the UK border—Great Britain or Northern Ireland, as the case may be. APHA has increased staff numbers in anticipation of this increased workload.
The regulations will also result in new documentary requirements at checks at the border for certain traders, which will affect Border Force. Defra has been in communication with Border Force throughout the transition period, and Border Force has trained new staff to address this additional requirement.
As a result of the protocol, as mentioned previously, documentation will be required for movement of CITES specimens between Great Britain and Northern Ireland. This will require additional enforcement by Border Force at ports of entry and exit between Great Britain and Northern Ireland. Border Force has increased staff numbers in order to address this increase and is well prepared for these additional checks from the end of the transition period. I beg to move.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
Before I call the noble Lord, Lord Greaves, I want to highlight that a few noble Lords have withdrawn so that those online can be ready. The noble Lords, Lord Clark of Windermere, Lord Bowness and Lord Bhatia, have withdrawn and the noble Lord, Lord Mann, is not in the Room, so after the noble Lord, Lord Greaves, I will call the noble Lord, Lord Loomba.
Lord Greaves (LD) [V]
My Lords, this is not a major matter of controversy today. It is, as the Minister has set out, a statutory instrument that mainly makes sure that existing rules and regulations, particularly in relation to air quality and the British implementation of CITES, continue after the end of the year until such time further changes have been made. In addition, there is the Northern Ireland business, which I have no doubt will affect all kinds of things in due course, but, for the moment, I do not want to say anything about that.
A lot of us do not have a lot of time for this Government and do not think that what they are going to do will be wonderful, but we are, to some extent, hopeful that the Minister in this House, who has introduced these regulations, will be a friend of the environment. At the moment, we are simply saying, “Yes, okay, this seems to be what is necessary in a technical way to go forward”. The important question now is, after we have disentangled ourselves from the European Union—at least in legal terms—at the end of this year, will the Government’s approach to the environment improve or will it not? Is the legislation that we are going to get—and we all look forward very much to the arrival of the Environment Bill in your Lordships’ House—going to result in improved legislation and stronger controls over pollution, for example, or is it going to be an opportunity to deregulate and allow things to get worse? We do not really know the answer to that yet. We have had an Agriculture Bill that is full of promises of what might happen but with no clear guarantees of what will happen, and so we are just marking time at the moment. On that basis, this statutory instrument is to be supported.
Lord Loomba (CB) [V]
My Lords, these regulations are part of key legislation that will govern our relationship with the EU after the transition period ends and uphold the agreement on the Northern Ireland protocol that ensures the peace process is maintained.
These regulations are permitted under the withdrawal Act 2018 to amend retained EU law on the trade of endangered species of wild flora and fauna across the border between the UK, in Northern Ireland, and the EU, in Ireland. However, for such important legislation that will govern part of our relationship with the EU, there has been no consultation before it was laid before Parliament for agreement. As a reserved matter, this also includes consultation with the devolved Administrations, including the Northern Ireland Assembly.
Alongside the fact that no consultation has taken place with interested parties, neither have the Government undertaken an impact assessment for these regulations in preparation for them coming into force. This is because the Government believe there is unlikely to be any, or any significant, impact on businesses, charities or voluntary bodies. In addition, there does not appear to be a secure mechanism in place to guarantee that the regulations are reviewed in a timely manner and updated, as required, to ensure they maintain their relevance and are fit for purpose.
In these circumstances, what assurances can the Minister give that, despite the lack of consultation and impact assessment, and there being no reviewing policy in place, these regulations are not going to have a detrimental effect on cross-border issues between the UK and the EU?
Baroness Bennett of Manor Castle (GP) [V]
My Lords, it is a pleasure to follow the noble Lords, Lord Greaves and Lord Loomba, who have set out the technical aspects of the SI that we are debating today. They have probably covered that ground well enough.
This is a real opportunity to consider global biodiversity issues, perhaps the first that your Lordships’ House has had since the final report on the Aichi biodiversity targets from the UN Convention on Biological Diversity. This brings to an end the UN decade on biodiversity—although perhaps it should be named the UN decade of biodiversity loss and collapse, because, of the 20 objectives set out for improving and saving biodiversity in 2010, none of the targets were met and only six were partially met.
Here, we are talking particularly about CITES and wildlife trade, and the implementation and application of those rules. In his introduction, the Minister referred to 93 new species being added to CITES, including a species of viper. I want to take this opportunity to draw the Minister’s attention—if it has not already been drawn to this—to an excellent article in Nature Communications dated September 2020. It talks about the underregulated global trade in reptiles, which is of particular relevance given his introductory remarks. The figures in this article really are quite shocking: 35% of reptile species are traded online, three-quarters of the trade is not covered by international regulation, and 90% of the species and half the traded individuals are captured from the wild. This journal article covers the fact that CITES is currently focused on the most economically valuable species that are traded in large volumes.
I note, of course, that all of these issues have come under a renewed focus in the light of the Covid-19 pandemic. We are not yet sure of the path of the virus between bats and humans, but pangolins have certainly been suggested, and pangolins were added to CITES only in 2016. What this article suggests, and what I have seen in subsequent debate, is that CITES should consider turning around the burden of proof and method of regulation. It suggests that CITES should recognise certain species for which trade is allowed and then have a presumption that other species are not allowed to be traded unless they are known. I draw attention to the facts in this article: the researchers found that within about a year of a new species being discovered, there is first evidence of it being traded.
I understand that the Minister might not be able to reply immediately, but I ask him to ask his department to look at this article and to consider the incredibly parlous state of our global wildlife, and what the UK might do as a partner in CITES to make it more effective and really tackle the global biodiversity crisis.
Lord Randall of Uxbridge (Con) [V]
My Lords, I first declare my entry in the register as a vice-president of Fauna and Flora International and other environmental organisations.
It is a pleasure to follow the noble Baroness, Lady Bennett of Manor Castle. She raises some important points about reptiles and other species. CITES is a very powerful tool, but it is not the only thing that should be implemented. I can say without hesitation to the noble Lord, Lord Greaves, that my noble friend the Minister is indeed a champion for the environment and we are very lucky to have him here.
It came as a surprise to me that, post Brexit, there will be separate CITES regimes in Northern Ireland, where EU law will continue to be implemented, and Great Britain, where retained EU law will apply. Perhaps I should have realised that. As we have heard, CITES regulates international trade through a system of documents, including export and import permits, which have to be presented at the border. While no such permits or checks are required for intra-EU trade, CITES permits and checks which were implemented at the EU border will now need to be implemented at the UK border after the end of the transition period. As a result of those separate CITES regimes that will operate in Great Britain and Northern Ireland, permits and checks will be required for moving relevant species between Great Britain and Northern Ireland in both directions.
Regulation 7(2)(a) and (k) remove references to the “committee” and the “scientific review group”. Other parts of the regulations, including Regulations 7(5)(b)(ii)(aa) and 7(5)(c)(ii)(aa), remove requirements to consider the opinion of the scientific review group before the domestic scientific authority can advise on the import of wild species. While the UK will no longer collaborate with other member states in this way, the loss of this collaboration mechanism with other scientific bodies is potentially disappointing. In addition, in certain instances, references to the Scientific Review Group are replaced by references to a “scientific authority”, but in other instances the role of the Scientific Review Group is not replaced.
Regulation 7(9)(a) removes the power for the Secretary of State to prohibit the holding of specimens, in particular live animals. I am a little unclear why this change is being made. Perhaps my noble friend can explain the implications.
Regulation 7(15)(b) removes the role of an enforcement group of representatives of each member state’s authorities with a responsibility for ensuring the implementation of the provisions of Council Regulation 338/97. While the UK will no longer work with other member states to this end, the idea of an enforcement group is welcome and has not been replaced by any proposal for a domestic body, such as a body with a representative from each of the four devolved Administrations.
Regulation 7(17)(b) removes the requirement for sanctions for breach of Council Regulation 338/97 to include provisions relating to the seizure and, where appropriate, confiscation of specimens. I am unclear why this change is being made.
Overall, I would like some reassurance that the regulations will in no way be to the detriment of enforcing CITES in these islands.
Baroness Jones of Moulsecoomb (GP) [V]
It is a pleasure to follow the noble Lord, Lord Randall. I want to echo his comments about the Minister, because I do understand that he cares deeply about these issues. Equally, legislation can always be improved, and I hope that he listens hard to noble Lords in this debate so that things can be improved. The noble Lord, Lord Randall, also covered some of the territory that I wanted to cover. However, I will carry on.
The noble Lord mentioned the loss of collaboration mechanisms with other scientific bodies. ClientEarth posed some questions to Defra, some of whose replies were a little glib. So I will ask two, three or four questions about that. I am curious about whether the scientific authorities—the Joint Nature Conservation Committee for fauna and the Royal Botanic Gardens, Kew—will have an expanded role or some extra funding. Clearly, if they are on their own or they have to set up new networks, they will need a little more money. I hope that the Government are thinking about that.
Secondly, on the enforcement group, Defra talks about the National Wildlife Crime Unit and Border Force—the Minister mentioned that Border Force had some extra officers. The position of the National Wildlife Crime Unit, which is essentially within the police, is a bit more nebulous in that, in 2016, it was given four-year funding, securing what Defra called its long-term future—I think that most of us would not think that four years was long term. That obviously runs out this year, so can the Minister tell me whether it has had extra funding and how much that funding was? When I was a member of the Metropolitan Police Authority in London, I was well aware that the Wildlife Crime Unit did the most incredible work. It was not valued, particularly by senior officers, despite the fact that it was often a very good news story for the Met police. It was constantly under threat of being removed or suffering a loss of security and funding. So can the Minister reassure me on all these questions but also that the National Wildlife Crime Unit has enough long-term funding to do the job properly?
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
After the next speaker, the noble Baroness, Lady McIntosh of Pickering, I shall call the noble Baroness, Lady Parminter.
Baroness McIntosh of Pickering (Con)
I welcome the regulations and place on record my support for CITES. I understand that all the retained EU law will be contained in one place once the regulations are adopted, which I welcome. I share my noble friend Lord Randall’s concern that two separate regimes will operate, one for Great Britain and one for Northern Ireland. It begs the question of what happens in the event of species covered by the regulations moving between Northern Ireland and the Republic of Ireland after 1 January.
I understand that the criminal offences which flow from a breach of the regulations are fairly substantial: up to seven years in prison or an unlimited fine or both. Can my noble friend confirm that these criminal offences are kept under constant review and say what the mechanism is for that? Are they brought to Parliament for such a review? Also, what happens to the fines? Are they hypothecated and put to good future use for endangered species, or are they just put into a central pot?
My noble friend the Minister was rather dismissive of the report from the Secondary Legislation Scrutiny Committee, but I will refer in particular to paragraph 57, which states:
“We particularly note that, as highlighted by ClientEarth, a specific power for the Secretary of State to prohibit the holding of specimens, including live animals, is removed. While Defra regards a direct replacement of this power as unnecessary, we consider that holding or trading animals may pose a risk of spreading disease.”
I agree. Would my noble friend like to take this opportunity to respond fully to that concern, which is a little broader than he considered?
As the noble Baroness, Lady Jones of Moulsecoomb, mentioned, Defra was a little dismissive in its response to the questions raised by ClientEarth in the context of the Secondary Legislation Scrutiny Committee report. I want to place on record my regret that, having left the EU, we will no longer participate in, or be bound by, EU structures, including the EU Scientific Review Group, under our CITES regulations applicable in Great Britain. Does my noble friend not recognise that the EU Scientific Review Group performs a notable amount of work, and is it not something that we would be like to be associated with, albeit loosely? Was he perhaps unaware that, at one stage, a Scottish scientist was the chief scientific adviser to the European Commission? I would like to commend her work in this regard.
Baroness Parminter (LD) [V]
My Lords, I thank the Minister for his opening remarks and the noble Baroness, Lady Bennett of Manor Castle, for putting this statutory instrument in its rightful context of why we need CITES as an important tool in helping tackle the devastating biodiversity loss that we are facing on a global scale and, particularly in the context of CITES, the devastating loss of our global wildlife.
This is of course another operability statutory instrument required because the Government have agreed that there will be a border in the North Sea, given that Northern Ireland will remain in the European Union’s single market and customs union after the end of this year, when we sadly leave the Union. However, as my noble friend Lord Greaves said, we support this statutory instrument but have a few questions and issues, some of which have been mentioned by other colleagues, so I shall not dwell on them at length—which I am sure will please other noble Lords. I also have some questions of my own.
The first issue I want to raise, which has not been raised by other noble Lords, is whether the paperwork or unloading centres for the trade in wildlife will be ready in time. At the moment, Northern Ireland inputs hardly any CITES species and there is limited trade from Northern Ireland into the rest of Great Britain, but, frankly, we do not know what will happen to trade patterns once we leave the EU. It may well be that the trade is diverted up through Ireland and across to the UK; we will therefore need adequate offloading centres and checks.
Will the ports at Larne, Belfast and Warrenpoint be ready by January to fulfil the obligations for checks on animals? Defra says that the Border Force has sufficient staff to meet all the requirements for CITES checks. I would be grateful if the Minister could tell us how many staff it has appointed to deal with the potential increase. Also, can he update us on DAERA’s plans to build an extension at Belfast for the extra holding and inspection facilities, and the anticipated completion date?
The noble Lord, Lord Randall, and others mentioned issues that were rightly brought to our attention by the Secondary Legislation Scrutiny Committee and ClientEarth, including changing the regulations and removing the Secretary of State’s powers to prohibit the holding of specimens. I agree with them that, given our current concerns over the impact of zoonotic diseases, the Minister needs to say a bit more about why we are not retaining the power in these regulations.
Further, I agree with the comments from the noble Baroness, Lady Jones of Moulsecoomb, the noble Lord, Lord Randall, and others questioning the loss of scientific expertise; ClientEarth expressed the same concerns very forcefully, and I look forward to the Minister’s answer on that.
There is one final thing that I would ask the Minister to update us on. Of course, the regulations make it clear what will happen to wild animals that are pets coming to and from Northern Ireland. They will require new processes and new documentation. Can the Minister confirm what I have not heard confirmed: that taking domestic pets, such as our cats and dogs, to Northern Ireland will be the same as taking them to France after 1 January—that is, they will require pet passports? If so, when will we receive a statutory instrument to that effect? In the list of Defra SIs coming up before the end of the year, I have not yet seen anything on that issue.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank the Minister for his explanation of the purpose of this SI.
The CITES international agreement is an absolutely vital protection for endangered wild animals and plants, as the Minister explained. We know that the trade across borders is worth billions of pounds. It covers exotic live animals as well as animal products and plants. Sadly, it attracts some of the most unscrupulous international gangs, which will readily flout the rules in pursuit of profit. So it is crucial that we have robust laws to ensure that the rules are properly enforced and that no loopholes can be exploited. So far, we on these Benches have supported the UK Government’s leadership on international co-operation with CITES, although we believe that they could have moved faster to enforce and expand UK laws to protect endangered species.
It is important that the regulations before us today are absolutely watertight. This is particularly important as the application of the Northern Ireland protocol opens up a new dynamic in border control. We do not want any minor discrepancies between the different regimes in Great Britain and Northern Ireland—and, by extension, in the single market—to unintentionally open loopholes that could be exploited by criminal gangs.
These regulations will make clear the separation between CITES as it will operate in Great Britain after the end of the transition period and the EU regulations that will operate in Northern Ireland. As the Explanatory Memorandum makes clear in paragraph 7.5:
“A consequence of the arrangements made under the Protocol is that CITES permits and relevant checks will be required for movement of CITES specimens between Northern Ireland and Great Britain.”
So I ask the Minister for more details about how he sees these checks taking place, following on from some of questions posed by the noble Baroness, Lady Parminter. Can he explain where the customs posts will be sited and how many border crossing points he envisages carrying out these checks?
This trade is specialised, and the smugglers are often very devious. The Minister has already explained that the customs staff carrying out this work have been appropriately trained, but can he reassure us that he is satisfied that enough staff will be in place for this responsibility? Also, are the staff newly trained or do they have experience of checking for endangered species elsewhere? Is that experience already there or are we talking about new people trying to tackle, as I say, very devious traders?
Can the Minister give an indication of how many cases Defra envisages will arise each year? Is it envisaged that the new customs checks will lead to delays? Given that we are talking about live plants and animals, has any thought been given to the welfare and preservation of these species? What protections will be provided?
Given that these regulations are due to come into effect on 1 January, which is only eight weeks away, what communication is envisaged to ensure that everybody who will be affected understands how the new protocol rules will be applied? Paragraph 11 of the Explanatory Memorandum states:
“Guidance will be provided … to clearly set out the actions businesses and individuals need to take to prepare for the end of the Transition Period”.
Has this guidance been issued, and does it specifically cover the CITES issues that we are considering today?
I will ask a couple of questions about the details of the regulations, following on from some of the questions about enforcement posed by ClientEarth in its written submission to the Secondary Legislation Scrutiny Committee and asked by both the noble Lord, Lord Randall, and the noble Baroness, Lady Jones. On page 4 of the regulations, and in subsequent references, the phrase
“after considering any opinion by the Scientific Review Group”,
is deleted, and it is stated that there will be a separate UK substitute. Can the Minister confirm that, whatever organisation the UK substitutes for the Scientific Review Group, it will have the same degree of involvement in decisions in the UK as the EU Scientific Review Group has?
On page 11 and elsewhere, the phrase
“a competent scientific authority of the Member State concerned”
is deleted, and the phrase
“the competent scientific authority of the United Kingdom”
is inserted. The change from “a competent” to “the competent” seems to imply that there is only one competent scientific authority in the UK. So can the Minister advise us which scientific body or bodies will provide this advice in future, and who will decide that on a case-by-case basis?
Finally, this is a consolidated SI, bringing together changes in several instruments that we have considered before, rather than amending each previous SI. The reason given is
“to make the legislation clearer and more accessible to all users.”
So far, so good—we support this approach—but can the Minister say when Defra decided to change its approach? Will this policy now be adopted for the future updating of SIs? Why was this approach not adopted earlier in the process, to avoid the consideration of SIs that will now not even be enacted? I look forward to his response.
Lord Goldsmith of Richmond Park (Con)
I thank noble Lords who have contributed to this debate. In order to prepare for the end of the transition period, it is essential that we have the right legislation in place to continue to protect endangered species, in accordance with our international obligations, and ensure that trade does not threaten the survival of these species in the wild.
A wide range of questions and suggestions was put forward in this debate and I will do my best to address them all. I will start with the noble Lord, Lord Greaves, who acknowledged that this was not a major piece of legislation but raised concerns more generally about the future of government policy in relation to biodiversity and broader environmental issues. I would simply say to him that if you judge this Government on the basis of what has happened even in just the last year, it is very clear which direction we are heading in. The Prime Minister at last year’s UNGA, about a year ago, committed to doubling our international climate finance but also made the commitment, just as importantly in my view, that a big chunk of the uplift would be spent on nature-based solutions—which would of course have huge ramifications for reversing biodiversity loss. If you invest in nature to tackle climate change—which in fact is a prerequisite of tackling climate change—you are dealing with many other problems at the same time, not least biodiversity loss: 80% of the world’s terrestrial biodiversity, for example, lives in the world’s forests, which are being cut down at a rate of 30 football pitches per minute.
Looking at the decisions that have flowed since that announcement, we see that we have committed to greatly increasing funding for the world-renowned Darwin Initiative, which was set up in 1992 and has already backed 1,220 projects in 159 countries, spanning the continents of Africa, Asia and central and South America. We have greatly increased the Illegal Wildlife Trade Challenge Fund. The Prime Minister announced a major uplift and already it has spent £26 million on 85 projects since 2014, covering a wide range of issues, with campaigns from ranger training in vulnerable countries to supporting demand-reduction campaigns in those countries and areas where the demand for the illegal wildlife trade is acute, in particular in the Far East.
The Prime Minister has also announced a new International Biodiversity Fund of £220 million. Partly from that—although it comes from other sources as well—we have created and are due to launch a new £100 million Biodiverse Landscapes Fund, which I think is a world first and is designed to create links between existing protected or threatened areas on a trans-boundary basis, providing safe travel for threatened species and also jobs for those people living in and around them. I recognise that we do not have that long, but there are many other examples of what we do. So the direction of travel is clear and, much as I appreciate his kind words about my involvement in government, I am absolutely not a lone voice on our appetite to do whatever we can, because much heavy lifting is necessary to try to reverse the catastrophic trends we have seen in relation to biodiversity loss.
The last two points I will make relate to comments by the noble Lord, Lord Randall. Just a few weeks ago the United Kingdom, through the Prime Minister, announced that 32 countries have signed up to the Global Ocean Alliance that we have set up. It is an alliance of countries committed to protecting 30% of the world’s oceans by 2030. On the back of our record on biodiversity, we have now been invited to join the high-ambition coalition of countries, led by Costa Rica, which probably does more on these issues than any other country, and France, which also has a good track record on biodiversity. We are very happy to have joined. As part of the coalition we are pushing for the 30% target for the oceans to apply equally to land.
We also had probably the most important role to play in crafting the Leaders’ Pledge for Nature, which has been signed by 75 countries and is undoubtedly the strongest such declaration that exists. That is a direct consequence of extremely hard work by my colleagues in both the FCDO and Defra. We really transformed that document from platitudes to something that is very much more concrete, radical and ambitious.
The noble Lord, Lord Loomba, asked about consultations and impact assessments. In fact, he answered his own question. The reason these were not undertaken was that the SI does not lead to any kind of substantive change. It really is a tidying-up exercise, tailoring a piece of legislation to accommodate the Northern Ireland protocol and also changes in the European Union, in relation, for example, to species which have since been suspended, that have happened since we introduced the last CITES SIs.
The position that the Government have taken is right and I would also say that it is not really a choice. We have to do this SI. Not proceeding with this would prevent proper implementation of the Northern Ireland protocol in so far as it relates to CITES and it would be confusing to both traders and regulators, because we would have a conflict in the legislation between EU provisions and UK provisions. It would also likely render the CITES regime inoperable in the UK, which could, and probably would, disrupt a number of industries, undermining the UK’s record on biodiversity, which I have already covered, and potentially increasing the risk of the illegal wildlife trade. So it is necessary that we are doing what we are doing, and it is appropriate that there was no consultation or impact assessment in the manner in which the noble Lord suggested.
The last point that the noble Lord raised was to ask whether our approach would be reviewed in a timely manner. CITES is a continuously evolving process. As a full and very enthusiastic member of CITES—and not just enthusiastic but very active—our approach will necessarily evolve, along with decisions made by scientists. I have seen myself things that I would not have seen had I not been a Minister: behind the scenes, our officials, round the clock, over 24 hours in some cases, negotiating for important changes—and delivering them.
One example of that is the recent ruling against the trade in live elephants, away from countries where they naturally have a home to countries where elephants do not exist. This is something that I think is supported by most people in this country. We pushed for such a ban, against huge resistance across the board. It was a long shot, but my colleagues in Defra decided that it was worth expending particular energy and effort in that regard—and they succeeded. As a consequence, a law was passed which I can absolutely guarantee would not have been passed had it not been for the intervention of the UK. So we are not a reluctant member of CITES; we are a very active and enthusiastic member and that will continue, regardless of who occupies my post.
The noble Baroness, Lady Bennett, raised the Aichi targets. This is a hugely important issue. The Aichi targets are pretty good. If every country did what countries were supposed to do, having signed up to the Aichi targets, we would probably be having a very different discussion today and the world would be in better shape than it is. But, as we have seen, the trends have continued, and in some cases accelerated, in the wrong direction. Every country failed to meet its Aichi targets, including the United Kingdom. On the whole they were ignored.
One reason for that is that there is no national pegging of those targets. There is no NDC equivalent for nature that countries can put together to show how they are going to meet the targets, and against which they can be measured and judged. That is one of the things that the UK is bringing to the table in the CBD. We are not hosting the CBD—it is being hosted by China in Kunming next year—but one of the things that we are absolutely committed to doing, and in which I sincerely hope we will succeed, although obviously it is not entirely up to us, is to do everything we can to ensure not only that we will we have agreed ambitious, meaningful targets but that there will be mechanisms within the agreement to allow countries to be held properly to account and make it harder for countries to ignore their obligations, in the same way that we have seen in relation to carbon. There is lots more to do on reducing carbon emissions, but there is no doubt that we are now on the right trajectory politically. We have seen in the last few weeks some really big interventions by China, Korea, Japan and so on. I very much take the noble Baroness’s point on that.
The noble Baroness mentioned an article in Nature Communications. I have not read the article. It is about the lack of regulations in relation to reptiles. She mentioned that 35% of the reptiles are sold online and that three-quarters of the reptiles sold are not covered by regulations. She mentioned that a very large proportion of them—she gave a number, but I am afraid that I did not have time to write it down—are taken from the wild. What she conveyed to me was extremely worrying. I will read the article and make sure that my colleagues in Defra do as well. If we need to act on the back of it and change our position in any respect, or add our voice to a particular call, I will give the noble Baroness my commitment that that is what we will do—and I will be very happy to take that conversation offline as well if she thinks that that would be useful.
The noble Lord, Lord Randall, was very kind to describe me as a nature champion. He has long been a champion of the natural world, and I wish that there were more of his sort in politics today—he has shown massive commitment. He mentioned a number of different issues, including our willingness to be led by the science. He talked about the Scientific Review Group and the Enforcement Group. The answer is that, as we have left the EU, we will no longer participate directly and be bound by those EU structures, including the Scientific Review Group, under our CITES regulations. The scientific authorities that we have here at our disposal—the Joint Nature Conservation Committee, which the noble Baroness, Lady Jones, mentioned, for fauna, and the Royal Botanical Gardens at Kew for flora, will continue to provide advice on a wide range of CITES matters and we will continue to collaborate internationally, as you would expect us to, with other CITES scientific authorities, as appropriate. I do not believe that there will be a knowledge gap there. We do not live in a bubble—we have plenty of friends in the context of CITES; information is often shared on a regular basis, and that informs good policy and helps us to develop the positions that we eventually take.
Implied in the question was a concern that we might end up moving to a position of weakening our approach through CITES; that concern was also raised by the noble Baroness, Lady Jones. As a party to CITES in our own right, we will continue to meet our obligations and commitments under the convention. We are committed to ensuring that no species becomes extinct as the result of unsustainable trade; that is where we need to get to. As I hope I conveyed to the noble Lord, Lord Greaves, at the beginning of this debate, we are absolutely committed to playing the biggest possible role that we can internationally in trying to reverse the trends that we are unfortunately seeing. We are retaining EU protections in UK law, which in some instances go further than CITES requires. For example, birds of prey are given the highest level of protection despite the fact that they are not all listed in appendix 1, and in other areas, we will always be willing to go further than the CITES rules require of us. As I hope I have conveyed, the appetite is very much there.
I will move around a bit, but I want to comment on a point made by the noble Baroness, Lady Jones, who implied that we have an opportunity in this SI to go further than we are currently going. I agree with her completely that we need to go further in every regard regarding biodiversity, that we could be doing much more in relation to the illegal wildlife trade, that our ambitions in relation to the CBD need to be fulfilled and realised, and that we need to be able to make our voices heard in lots of different fora.
However, this is just a technical SI that amends the relevant CITES EU law to make sure that it operates properly at the end of the transition period. That is all it exists to do, and to make the regulations stricter would go beyond the scope of the powers in the Act. Having said that, just like the European Union, we will always be able to go further than the convention minimums based on the scientific advice that we receive; in many cases, we have done just that. I will return to some of the points raised by the noble Baroness but I want to try to make sure that I answer as many of these questions as possible.
My noble friend Lady McIntosh asked about the relationship between Northern Ireland and the Republic of Ireland in relation to the movement of goods. The answer is that there will be no checks between them. There will be checks between Northern Ireland and Great Britain and vice versa but not between Northern Ireland and the Republic of Ireland. She also raised a concern about having two separate regimes after the transition period. Criminal offences for the breach of regulations are fairly substantial; I can confirm that those offences are under review and will be kept under review permanently, as is appropriate.
In response to my noble friend’s question about the Secondary Legislation Scrutiny Committee—I think she said that we were a bit dismissive—nothing is black and white; it is neither entirely good nor entirely bad that we are leaving the European Union. In my view, there is a significant net benefit, but that does not mean that there are not areas where co-operation would be beneficial. Having left the EU, we will no longer be part of the SRG; we will have to work particularly hard to ensure that we benefit from some of the work that is done in the European Union on CITES to ensure that we are as close as possible. There is no real difference except on certain areas in certain countries in Europe; there is a common commitment to tackling these issues.
The noble Baroness, Lady Parminter, mentioned pet passports. I am afraid that we do not have the answer to that yet. I will update her on the latest answer that we have but I do not think that it will satisfy her questions, so I will have to come back to her in due course with the best I can. She may have to be patient; I apologise for that. She also asked about the border in the North Sea after the transition period; I am grateful to her for saying that she supports the SI. Northern Ireland imports hardly any CITES specimens but we do not yet know what will happen with trade patterns; obviously, the future is hard to predict. However, our ports have received additional investment and we will have 29 ports of entry and exit for the movement of CITES goods designated by the end of this year. The full list of designations is listed on GOV.UK, and Belfast is to be designated—that question was asked by the noble Baronesses, Lady Parminter and Lady Jones.
I keep confusing my Baroness Joneses, but I turn now to the Green one—I cannot remember her geographical location. She is a wonderful, inspiring figure and a champion of nature. She made the point that the Government require an element of humility and should always be willing to improve and take advice. She is of course right. I enjoy being lobbied by those who lobby with good faith and who genuinely want better outcomes. Where I can improve our approach, that is what I exist to do in both Defra and the FCDO.
As I mentioned in response to a question from the other noble Baroness, Lady Jones, this is a narrow statutory instrument that has a particular job to do: ensure that the laws work post transition period. There is plenty more that we can do. As the noble Lord, Lord Randall, pointed out, CITES is just one of the tools that we have at our disposal; there are many others and our job is to try to make use of all the tools available to us.
The noble Baroness, Lady Jones, from the Green Party—I am so sorry for breaking all the protocols. Where is she from? Oh, Moulsecoomb. I apologise to her if she is listening; I am sure that she is. She asked about the National Wildlife Crime Unit. Defra and the Home Office play a part in this. Defra has committed to continuing to provide the funding needed—as has the Home Office, I believe, although I do not want to say this as a matter of fact in case I am wrong. I commit to the noble Baroness that if that is not the case and what I have just said is wrong, I will do all I can in my capacity as a Minister to ensure that the National Wildlife Crime Unit has the resources and funding that it needs. It is an extraordinarily important piece of the puzzle. If it is not properly resourced, it makes honouring our commitments under CITES, and others relating to the illegal wildlife trade, much harder. I will get back to her with, I hope, proper reassurance. If not, I assure her that I will do all that I can to ensure that the NWCU has the resources it needs.
My opposite number, the noble Baroness, Lady Jones, mentioned the Scientific Review Group. As I mentioned earlier, as we have left the EU, we will no longer participate in or be bound by those structures. However, our own authorities are world renowned and provide good advice on a regular basis. The Joint Nature Conservation Committee and the Royal Botanical Gardens at Kew, which I had the honour of representing for 10 years as its local MP, will continue to provide whatever advice and information we need.
I am confident that we will have the information, knowledge, tools and capacity not just to maintain our existing commitments and activities in this area but to improve them. That is the Government’s ambition and my ambition as a Minister; I will certainly do all that I can to ensure that that is the case. I hope that I have answered all the key questions.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
The Grand Committee stands adjourned until 3.45 pm. I remind Members to sanitise their desks and chairs before leaving the Room.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the hybrid Grand Committee will now resume. Some Members are here in person, respecting social distancing, while others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear face coverings except when seated at their desk, to speak sitting down and to wipe down their desks and chairs. If there is a Division in the House, the Committee will adjourn for five minutes.
Pesticides (Amendment) (EU Exit) Regulations 2020
(4 years, 1 month ago)
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Lord Goldsmith of Richmond Park
That the Grand Committee do consider the Pesticides (Amendment) (EU Exit) Regulations 2020
Relevant document: 31st Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)
My Lords, I will be covering two instruments in this group, both relating to the effective regulation of chemicals, one that relates to pesticides and one that relates to persistent organic pollutants. The first of these, the Pesticides (Amendment) (EU Exit) Regulations 2020, makes further updates to retained EU legislation for plant protection products and maximum residue levels. Plant protection products, or pesticides, as most people refer to them, are regulated within the EU by two main EU regulations. They are Regulation EC 1107/2009 concerning the authorisation of active substances and the placing of pesticides on the market, and Regulation EC 396/2005 on maximum residue levels of pesticides permitted on food and feed. They are also regulated by means of EU directive 2009/128/EC which established a framework for Community action to achieve the sustainable use of pesticides.
In preparation for leaving the EU, we have already put in place a series of pesticides EU exit SIs to ensure that the regulatory regime can operate sensibly in future and provide continued protection for human health and the environment, primarily through the Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019, which I will refer to throughout this debate as the PPP EU Exit SI, the Pesticides (Maximum Residue Levels) (Amendment etc.) (EU Exit) Regulations 2019, otherwise known as the MRL EU Exit SI, and finally the Pesticides and Fertilisers (Miscellaneous Amendments) (EU Exit) Regulations 2019, SI 2019/306, known as the SUD EU Exit SI.
These earlier EU exit statutory instruments were put in place in readiness for the original exit day in March 2019 and have dealt with the majority of changes required. The instrument we are considering today makes a number of additional but relatively minor amendments to deal with developments since the original EU exit SIs were produced. They have no, or no significant, impact on business. We have worked closely with the devolved Administrations to develop this further instrument and they have consented to it being made on a UK-wide basis.
Amendments are required for four main reasons. First, new EU legislation has come into force since the earlier EU exit SIs were finalised, either shortly prior to or during the transition period. This needs to be corrected in the same way as in the earlier EU exit SIs so that it works correctly in a national context, including where the new EU legislation interacts with corrections already made in the earlier SIs. Secondly, to make necessary changes as a consequence of the Northern Ireland protocol by amending the earlier UK-wide EU exit SIs so that redundant references related to Northern Ireland are removed and legislative cross-references work correctly. Thirdly, to make updates to some transitional provisions within the earlier EU exit SIs, so that they apply from the end of the transition period when the retained law comes into force, rather than from exit day, and so work as intended. Finally, to make minor technical corrections to secondary domestic legislation as regards the establishment of harmonised risk indicators in order to correct new deficiencies in the retained EU law. In short, without this instrument various highly technical provisions will not be retained in national law in a way that will work correctly.
The second of the two instruments is the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2020. It makes technical amendments to the POPs regulation to maintain continuity in retained EU law in order to ensure that legislation which manages persistent organic pollutants, which I will hereafter refer to as POPs, is operable following the end of the transition period. In addition, it reflects the requirements of the Northern Ireland protocol. The EU POPs regulation was put in place to fulfil commitments under both the United Nations Stockholm Convention on Persistent Organic Pollutants and the Convention on Long-Range Transboundary Air Pollution. The UK is a party to both these conventions. This new instrument ensures that we preserve the current regime for managing POPs, which are substances that are recognised as being particularly dangerous to humans and the environment, and this instrument is needed for two reasons.
First, EU Regulation 850/2004 was recast in July 2019 as EU Regulation 2019/1021 of the European Parliament and of the Council on Persistent Organic Pollutants. An earlier EU exit instrument that was put in place in readiness for the original exit day in March 2019 now needs to be replaced to reflect the revision to the EU regulation. Many of the amendments to correct deficiencies in that earlier EU exit instrument are replicated in this new instrument. Secondly, this instrument will make the changes required as a consequence of the Northern Ireland protocol. References related to Northern Ireland are removed and legislative cross-references work correctly. This will ensure that the retained EU law on POPs has practical application only in Great Britain, where appropriate. We have worked with the devolved Administrations on this instrument, and where it relates to devolved matters, they have given consent.
The following provisions were included in the 2019 exit SI and are now included in the current SI. The first is the repatriation of all decision-making functions and powers from the EU to the Secretary of State, the Welsh Minister and the Scottish Minister to exercise in their respective areas. The Secretary of State may exercise these functions on behalf of a devolved Administration, with their consent. The Secretary of State will publish reports on the management of POPs, which are currently submitted to the European Commission for publication, and the following provisions relate to the new provisions in the EU recast of the original legislation.
The Environment Agency will assume the role given to the European Chemicals Agency to provide technical and scientific support. This role will be fulfilled with the consent of the devolved Administrations. Additionally, the EU regulation places a duty on the UK to take necessary measures to trace and control POPs once they enter the waste stream. Ordinarily, these measures would be implemented in the UK under Section 2(2) of the European Communities Act 1972. However, as work on delivering these measures will continue beyond the end of the transition period, this instrument creates a new power for GB to make regulations to implement that specific duty. The exercise of this new power will be subject to parliamentary approval and is time limited, with a requirement to make any regulations before 31 October 2023.
Finally, the requirement to amend this regulation has also provided an opportunity to include the Northern Ireland protocol provisions applicable to this regulation. Northern Ireland will continue to apply EU regulation 2019/1021 to manage POPs in the environment but, where regulations apply to the UK as a party to the conventions I mentioned earlier, they remain applicable to Northern Ireland. Neither the JCSI nor the SLHC had any comments on these instruments and I can confirm that they will be able to function with or without a deal with the European Union.
As I have previously said, the Government are committed to ensuring continued levels of protection for human health and the environment, as well as providing stability and continuity for business. I beg to move.
Lord Greaves (LD) [V]
My Lords, I am grateful to the Minister for setting out these extremely detailed and complicated regulations. I confess that, despite making an attempt, I do not pretend to understand them all. Still, it is clear that they refer to plant protection products, pesticides and fertilisers, and maximum residue levels of pesticides. They deal with the new situation in Northern Ireland, as did the previous regulations, to take account of the fact that Northern Ireland will still be in line with the EU. What will be the difference, if any, between the regulations in Northern Ireland and those in the UK?
During the debate in your Lordships’ House on the Agriculture Bill, an amendment was passed to strengthen the protection for residents and others in the vicinity of crop spraying using harmful, poisonous substances. The House passed it and the House of Commons sent it back, and it was a sadness to many that the House did not pursue it further in ping-pong. One reason why that was the case is the belief that it can come back in the Agriculture Bill and we can all have another go at it, but it would be very helpful if the Minister could say whether the Government, in a more relaxed way away from legislation, are looking at whether regulations can be introduced to provide greater distancing—social distancing, I suppose—between people spraying pesticides and residents and others.
Clearly this SI does not remedy that position, but there has been concern from the UK Pesticides Campaign at the removal of the ability to challenge a failure to comply with these regulations at a European level, which will clearly be the position after the end of the year. The question for the Minister is: what will be the way in which people in this country can go to the courts to force the Government or other authorities to comply with legislation?
The UK Pesticides Campaign has also raised a question about the collection of information and reporting of suspected poisonings. It says that, as far as it can see, the requirement for that in so far as it exists at the moment—the campaign has suggested that the requirement is not strong enough anyway—will be removed by the regulations. I have seen a response to that from Defra saying that the matter is covered by other regulations. I do not understand that at all, but I shall read out some names: the EU official controls regulation 2017, which came into force on 14 December last and was implemented in the UK by the Official Controls (Plant Protection Products) Regulations 2020. That is what I understand the reply to say. Perhaps the Minister can explain whether this is the case, exactly how it works and whether the collection and reporting of information has in practice not been changed in any way by their removal from the regulations. I do not know whether he can do that today; if not, perhaps he can write and tell us all about it.
There have also been concerns from ClientEarth, most of which again are very technical. I shall pick out two general concerns that it is putting forward that the Minister might like to devote a little attention to when he replies. The first is the suggestion that, because there is no longer a requirement that detailed criteria on the uniform application of conditions on by-products
“shall ensure a high level of protection of the environment and human health and facilitate the prudent and rational utilisation of natural resources”,
that means there is a weakening of environmental protections. If the Minister believes that is not the case, perhaps he can explain how and why.
ClientEarth also suggests that there is a removal from these regulations, or at least a weakening, of the polluter pays principle. It would be helpful if the Minister explained the degree to which the Government believe in the polluter pays principle and the degree to which they intend to strengthen it rather than weaken it, if that is the case. I look forward to the Minister’s reply and to the contributions by other people to this debate.
Lord Berkeley of Knighton (CB) [V]
My Lords, I am very glad to see that we are embracing many of the EU standards, particularly about pollutants, on which I agree with the comments of the noble Lord, Lord Greaves, that we shared prior to departure and which improve environmental standards. I approach this subject as one who would dearly love to see zero use of chemicals; spraying is expensive and not pleasant. However, I must declare that I have a farm. It is one where we are gradually moving to fewer and fewer chemicals, but it is a struggle. I shall point out as examples some of the concerns that have been relayed to me in my many miles of tramping the fields and hills. I hope this view from the ground, as it were, might be helpful to the Minister.
I suppose that, as with everything with life, we have to try to find a degree of balance between conservation and feeding ourselves, and indeed those in the rest of the world who are less fortunate than us. The banning of neonicotinoids is an interesting example that has garnered a lot of press. From my research and that of the Rothamsted Research centre, I would say that the science is still incomplete, in that there are so many variations of chemical compounds needing further research.
One concern here is that farmers—by the way, I am not one who has oil-seed rape—have no other way for dealing with cabbage stem flea beetle, and that they might therefore now spray non-systemic chemicals that are even more injurious to insects and wildlife. The other alternative is, of course, not to grow oil-seed rape at all; indeed, as the Minister will know, there has been a widespread reduction by hundreds and thousands of acres, leading, ironically, to some beekeepers now lamenting the loss of pollen and pollination. It is enormously hard to get this right.
Ideally, we should be able to financially encourage farmers to transition gradually to organic farming, because for those with limited acres it is just not possible to compete with smaller yields; large farms are rather more able to spread their cropping. Stewardship schemes are a great help. I would like to see these grow still further in the light of these EU exit amendment regulations so that we need fewer and fewer chemicals, but can still continue to grow the food that we and the rest of the world need.
Lord Randall of Uxbridge (Con) [V]
My Lords, I take the issue of pesticides and their potential harm to both wildlife and, importantly, human life very seriously. As the noble Lord, Lord Greaves, mentioned, in the recent Agriculture Bill debates in your Lordships’ House we debated and voted on some important amendments that unfortunately were rejected in the other place. I know the noble Lord meant to say that we may return to those matters in the Environment Bill rather than the Agriculture Bill, and I certainly hope we will.
I will make a few comments about these two instruments. In the Pesticides (Amendment) (EU Exit) Regulations 2020 there are many references to the “competent authority” and/or the “agency”. I think the former is the Secretary of State for Defra—although in reality the Secretary of State will of course base his decision on the advice and recommendations provided by the Government’s regulatory body for pesticides, the Chemicals Regulation Division, which itself is part of the Health and Safety Executive—while the agency will most certainly be the CRD.
I will raise some concerns that I have been made aware of, and I would like some reassurance from my noble friend. Considering that sales of pesticides in the UK alone each year are around £627 million, and that reports have put the value of the world pesticides industry at a staggering $58.46 billion and seemingly increasing by the year, this is obviously a very big business with powerful vested and self-serving interests. Understandably, the primary concern of pesticide manufacturers is obviously to protect the sales of their products and related profits, and to keep such pesticides being used.
As I understand it, the CRD receives approximately 60% of its funding from the agrochemical industry, which is broken down into the fees charged to companies for applications and a charge on the UK turnover of pesticide companies. I have some nagging concerns about this. During the debates on the Agriculture Bill in your Lordships’ House, the noble Lord, Lord Whitty, spoke of his own concerns over UK pesticides policy from his experience when he was a Minister at Defra, including the closeness between the government regulators for pesticides and the pesticide companies that they are supposed to regulate.
Having said that, I will return to one specific question regarding the Pesticides (Amendment) (EU Exit) Regulations 2020. I am grateful to the Green Alliance for bringing various matters to my attention; anyone who knows me well will recognise that fine legal scrutiny is not my forte. Regulation 2(2) provides that the requirement to submit supplementary dossiers for the renewal procedure of an active substance no later than 30 months before the expiry of the approval applies only to substances approved for use where the approval expires on or after 12 May 2026. It is not clear why that change has been made. Perhaps my noble friend can elucidate on that question.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I must begin by thanking the Minister for his generous response to my contribution in the previous debate. I look forward to future exchanges on the subject.
On the subject of this debate, it is a great pleasure to follow the noble Lord, Lord Randall of Uxbridge, who is a great champion of nature, and indeed the two previous noble Lords, who said many things with which I can agree. The noble Lords, Lord Randall and Lord Greaves, in particular reflected on the widespread disappointment that the amendments to the Agriculture Bill that would have protected people who live in close proximity to agricultural land ultimately did not make it through the system. As both noble Lords said, we can but try again in the Environment Bill.
I am going to pick up something that the Minister said in his introduction when he referred to continued high levels of protection. The practical reality, whether we are talking about pesticides or persistent organic pollutants, is that we have a poisoned country, a poisoned landscape and, indeed, a poisoned planet. To start any debate on this topic, it is important to acknowledge that we have utterly failed in the past and that, while today we are bringing forward regulations that are much better than those in the United States and other regimes, even the EU regulations that we are transferring across are not nearly strong enough.
I have a couple of specific detailed questions. Like others, I rely rather heavily on the work of ClientEarth. Regulation 3(8) removes the wording that would permit the appropriate authority to make regulations in respect of the official controls, first, relating to production, packaging, labelling, storage, transport, marketing, formulation, parallel trade and the use of plant protection products, and, secondly and particularly, regarding the collection of information on the reporting of suspected poisonings. This is a direct question for the Minister, either for now or in future: that apparent loss of collection reporting on suspected poisonings is obviously a deeply worrying one, and it would be interesting to hear why that has happened and how it might be fixed. I also refer to wording relating to health and the hazards and risk of pesticides in Article 24 of new EU regulation 625/2017 regarding protection from pesticides and the risk of poisoning.
I also want to refer to chronic poisoning. Often, we hope or expect that, where there is an acute case, there will be reporting; it is the kind of thing that we might expect our media to pick up on. But with chronic poisoning developing over a number of years, such as in operators, agricultural workers or people living close to pesticide application areas—the amendment to the Agriculture Bill tried to address this issue—we have seen reports going back to 1987 of inadequate monitoring in the UK, yet we have not seen any change in policy or any real move to deal with that chronic situation.
Finally, I want to move on to some broader points that build on what the noble Lord, Lord Randall, said. The sale of pesticides in the UK each year is worth £627 million and, around the world, it is nearly $60 billion. Obviously, this is a big, powerful vested interest. As the noble Lord said, that vested interest wants to protect its sales, but I very much agree with what the noble Lord, Lord Berkeley, said earlier: we want and need to move toward a world that uses no pesticides.
My response to the noble Lord’s concerns about neonicotinoids and the impact of their withdrawal on growing rapeseed in the UK is that we must grow a diverse range of crops that are suited to our conditions. I have stood in a field in Lincolnshire with a star rapeseed grower and discussed the difficulties of growing rapeseed in the UK. It has always been clear that rapeseed is not particularly suited to UK conditions, so we need to move to a different approach. It is one that the Government have focused on, at least in terms of talking about it, including to some degree in the Agriculture Bill—agroecology. If we are going to move in the direction of working with nature to use the power, force and richness of healthy soils and the richness of the interactions of integrated pest management, that is the way we need to go. Indeed, I note that both the EU directives that we are transferring across here focus on the need to move to pest management systems that do not rely on pesticides. What are the Government doing to take further steps in that direction?
We have been through so many cycles, from DDT onwards, of a pesticide being discovered and promoted as the new wonder chemical—a perfectly safe, perfectly wonderful solution to all our problems. Usually, a couple of decades later, we ban it because it has been a disaster. That is a cycle that we desperately need to stop.
Baroness McIntosh of Pickering (Con)
My Lords, I thank my noble friend the Minister for introducing the regulations and welcome the Government’s commitment to protecting the environment. I hope that my noble friend and the Government will be mindful of the impact that these regulations will have on industry. I want to bring to his attention two specific ways in which that might happen.
I want to make a general point at the outset. My noble friend considers that nature lovers are something of a new craze. I remind him of the contribution of perhaps one of the first eco-warriors. When I was a little girl, Professor David Bellamy, who I think was at Durham University at the time, tried to protect the blue gentians that grew in the northern Pennines— particularly in Teesdale, where I grew up—from flooding by a reservoir that was being built to take water to Middlesbrough. In the event, the reservoir was built and the blue gentians were flooded; they were one of the few alpine plants to grow in Teesdale, outside an alpine region. I regret that, at the time, David Bellamy’s campaign was unsuccessful, but I recognise the contribution that he made.
The two specific issues that I want to raise come from work that we have been doing on the EU Environment Sub-Committee. First, on persistent organic pollutants —or POPs, as my noble friend calls them—paragraph 2.5 of the Explanatory Memorandum for the relevant regulations refers to the fact that the repatriation of powers, in particular the work currently undertaken by the European Chemicals Agency, will now be “exercised at national level”. Is my noble friend aware of what will happen because of that? My noble friend Lord Randall of Uxbridge referred to the contribution that the chemicals industry makes to this country; after the food sector, it is one of the largest manufacturing sectors here.
To all intents and purposes, if chemicals manufacturers want to continue to export and import, they will now have to register twice. They will have to register on the United Kingdom register, which is currently being set up at some expense, and they will have to continue to re-register with the European Chemicals Agency. Has my noble friend considered what the cost will be? Have the Government done an impact assessment in this regard? It would be helpful to know that. There is one little reference to this issue, but it will have a huge impact and obviously will cause significant costs—as we learned in the evidence given to the sub-committee, which is on our website. I would welcome my noble friend’s acknowledgement of the fact that there will a double registration requirement.
My second concern is identified in the paragraph of the Secondary Legislation Scrutiny Committee’s report on where Defra responded to its queries, published at length on page 18 of that report and relating to the draft pesticides amendment regulation before us. I quote:
“HSE will continue to undertake regulatory functions on behalf of all administrations and to operate on a four countries basis, assessing product applications through a single process, wherever possible.”
The EU Environment Sub-Committee took evidence in this regard from the chemicals industry, HSE and Defra. Our concern was that the staff are not yet in place in HSE and do not have the requisite training to do the work that we expect them to do. Will my noble friend take this issue back to Defra and follow it up with the Secretary of State? Time is short and it is extremely important that we give HSE the tools, in terms of staff and training, to do the work that we require it to do.
With those two concerns, I welcome the opportunity to consider the draft regulations, but I hope that my noble friend will address the very real issues that I have brought to his attention.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I thank the Minister for his introduction to these statutory instruments, which will tidy up existing legislation and ensure that there are no gaps once we come to the end of the Brexit transition period in December.
The first SI moves rules on plant protection products and maximum residue levels from EU law into UK law, with the exception of Northern Ireland. The Northern Ireland protocol means that Northern Ireland remains part of the EU and therefore has no need to transfer legislation. I congratulate noble Lords on their contributions and concur with their comments.
Paragraph 6.3 of the Explanatory Memorandum states:
“Defra has complied with the requirements stated in paragraph 4.7.6 of Statutory Instrument Practice to consult with the SI registrar. Defra thinks it would be disproportionate to apply the free issue procedure to this SI.”
Can the Minister give some clarification on what that means? Paragraph 6.4 states:
“A further instrument will be required in 2021 to incorporate further EU regulations and decisions that come into force between 1 May 2020 and 31 December 2020”.
Since we know when these will come into force—and, presumably, know what they will cover—why were they not included in this SI with an implementation date of 31 December?
The EU has a multi-annual control programme, which is updated every year and outlines sampling strategies for a three-year period. This SI will ensure that the same standards of protection are maintained at the end of the implementation period. Can the Minister confirm that the same sampling strategies will also be maintained every three years?
Pymetrozine is an insecticide suitable for use, in integrated crop management, to control aphids and other plant-sucking insects. It is essential that it is applied carefully and with regard to other creatures, including humans, and to ensure that pollinators that are essential for biodiversity are not also destroyed alongside pests. I note that the UK Pymetrozine regulation status is approved but the EU regulatory status is not approved. I find this strange, since 24 of the 27 EU states have approved the substance for use. Can the Minister give some clarity on just what is likely to be approved under this SI and what is not?
Under these proposals, and those passed in the Internal Market Bill in the other place, can the Minister confirm that certain grains which have been grown with the use of fertilisers and pesticides in England, would not be able to be supplied in Scotland, if the devolved Administration has banned their use for grains in Scotland under the new powers they are getting and the exemptions of the market access principles in the Internal Market Bill? I am happy to have a written response on this.
I turn now to the Persistent Organic Pollutants. The first pollutant in the list of the SI was a pollutant by-product of Agent Orange. It has no known commercial applications but is used as a research chemical. It was tested, but never used commercially, as a flame-proofing agent and as a pesticide against insects and wood-destroying fungi. There are other toxins registered, including polychlorinated biphenyls, or PCBs, which are stable man-made organic compounds, used from the 1920s as cooling and insulating fluids as they did not burn easily. Although most were banned in 1986, they linger on in detectable levels in animals, fish and humans. When they are incinerated, they can produce dioxins, which are some of the most toxic substances known to science.
The biggest manufacturer of PCBs was Monsanto. They were used in an enormous number of products, from lubricants to pesticides and flame retardants. As a result of high levels of PCBs found in fish, due to man-made chemicals dumped as waste in Lake Michigan, concerns were raised, as PCBs had found their way into the breast milk of nursing mothers who had eaten fish living in the lake. Their children showed higher rates of development and learning disorders compared to those of local women who had not eaten the fish. While they are no longer manufactured, they still leak from old electrical devices and can be released from hazardous waste sites and illegal dumps. Can the Minister give reassurance that this situation is being monitored closely and that action is being taken to deal with the PCB residues?
Lastly, I draw noble Lords’ attention to the pollution in the River Wye that was caused by the sheer volume of chicken farms close to, and along, the banks of the river, with chicken manure getting into the water. While chicken manure is not on the list of toxic substances on page 16 of the SI, it is undoubtedly true that in the Wye it is persistent, it is organic, and it is a pollutant. Can the Minister say what legislation is likely to cover this type of pollutant, if it is not covered in this SI?
Baroness Young of Old Scone (Lab) [V]
My Lords, I will start with the draft pesticides amendment regulations. Section 2 of the Explanatory Memorandum outlines the reasons for these regulations being laid, as the Minister outlined. I find it interesting that in this case the department has chosen not to repeal earlier instruments and consolidate all the changes into a single instrument, as has just been done with the Environment and Wildlife (Miscellaneous Amendments etc.) (EU Exit) Regulations that your Lordships have just debated. Could the Minister say why a consistent approach is not being adopted? Is there a risk that we will have two sorts of environmental regulation, where some are tidied up and accessible and others are a tangled bowl of spaghetti and unintelligible to normal human beings and only able to be understood by specialist lawyers? I think it will be a retrograde step if the general public—and, indeed, members of your Lordships’ House—were unable to really fathom this tangle.
The Explanatory Memorandum, in paragraph 7.9, also outlines how the UK’s national strategy on control programmes and sampling will run alongside the 2020 to 2022 time period that the EU uses. Can the Minister tell us at what point Her Majesty’s Government will begin planning for beyond 2022? What sort of engagement will there be with stakeholders? For me, the most fascinating point about these regulations is whether, on this issue, HMG may choose to continue to align with our EU neighbours, even after the period to 2022 ends.
Turning to a provision that has already been passed that means that GB will be allowing substances to continue to be approved for three years longer than the EU, I would like some reassurance that this provision has been fully appraised. This is part of the whole transition process. Can the Minister tell us what risks there might be of substances continuing to be approved for three years longer than they normally would be? How have the Government assessed these risks?
I would also like to remark on the general issue that many of your Lordships have already raised, about the use and application of pesticides. I look forward very much, from these Benches, to the opportunity to debate this issue again when the Environment Bill comes to your Lordships’ House.
I turn now to the draft persistent organic pollutants—POPs—regulations. This instrument creates a new power to take measures to control and trace waste contaminated by POPs in relation to GB. This is a recent requirement under EU law, and the measures have not yet been developed either here or in Europe. Any legislative changes, we are reassured, will be subject to the affirmative procedure and will have to be made by 31 October 2023. When the department was asked about this deadline by the Secondary Legislation Scrutiny Committee, it explained its thinking about timescales that are not determined by the EU. Worryingly, it indicated that the powers to create this control and tracing system would be used “only if needed”. Can the Minister indicate the circumstances in which a control and tracing system would not be needed?
Can I also raise with the Minister the issue that the noble Lord, Lord Greaves, and indeed ClientEarth have already pointed out? This instrument omits a current requirement, under EU law, that when it is decided whether a specific substance is a by-product rather than waste, detailed criteria on the application of conditions on by-products shall
“ensure a high level of protection of human health and the environment”.
When asked about this omission, the department indicated to the Secondary Legislation Scrutiny Committee that further regulations would be needed next year, and that would be the appropriate place to set out any such conditions, and to consider whether to make the exercise of the power subject to the condition identified by ClientEarth. Again, I am worried about the word “whether”, which seems to imply that a provision already existing in the EU safeguards might not continue. Can the Minister assure us that there will be no watering down of this provision in the regulations that come forward next year?
Turning to the issue of regulatory and advisory expertise, in a number of instances, references to the European Chemicals Agency are replaced with references to “relevant authorities”. That means that the Environment Agency primarily will have responsibility for technical and scientific support to the POPs regime for the UK as a whole—supported, of course, by the relevant agencies in the devolved nations.
I should declare an interest as a former chief executive of the Environment Agency; I know that the agency has considerable expertise in the POPs field and has played a key role at both EU and Stockholm convention level. Cuts to EA resources over the last few years lead me to ask the Minister what additional resources will be provided to the EA to carry out this additional responsibility and ensure that it truly can replace the European Chemicals Agency.
I look forward to the Minister’s responses on these issues.
Lord Goldsmith of Richmond Park (Con)
My Lords, I thank noble Lords who have contributed to this debate today. In order to prepare for the end of the transition period after leaving the EU, it is essential that we have the right legislation in place to continue to regulate both pesticides and persistent organic pollutants effectively so as to protect human health and the environment. A wide range of issues was raised by noble Lords; I will do my best to address them as fully as possible.
The noble Lord, Lord Greaves, asked about divergence between Great Britain and Northern Ireland. Under the terms of the withdrawal agreement and Northern Ireland protocol, the EU pesticides regime will continue to apply in Northern Ireland after the end of the transition period in the same way as during it. It is inevitable that divergence in pesticides decisions between the EU and GB regimes will eventually occur, but the Health and Safety Executive will endeavour to assess and determine pesticide authorisations in Great Britain and Northern Ireland through a single process wherever we possibly can.
The noble Lord asked about the application of pesticides near to people’s homes—an issue which came up during debates on the Agriculture Bill. The use of pesticides is allowed only where a scientific assessment shows that it will have no harmful effect on people, including residents and bystanders. The assessment of risk is rigorous and authorisation is frequently refused. Pesticide users are required by law to take all reasonable precautions to protect human health and the environment and to apply the product only to the area that they intend to treat. This issue was raised by a number of noble Lords, and the question of how rigorous the protections are is a valid point to make. Clearly, the ambition has to be that we move as far as we can away from the use of pesticides at all. That is reflected in government policy, and I will come to that in slightly more detail as I answer questions asked by the noble Lord, Lord Randall.
The noble Lord, Lord Greaves, also asked how decisions can be tested or challenged in court. The answer is that enforcement is a matter for the designated enforcement bodies. Usually, in the case of pesticides and POPs, that is the Health and Safety Executive. He cited the work of the ClientEarth organisation and asked what assurance I can give that our standards of protection will not be weakened in any way. The answer is that the Government will continue to ensure that current standards of environmental and health protection will be maintained after the end of the transition period. We have made that commitment many times, and it has not been diluted in any way. We will be taking our own independent decisions in Great Britain under retained law, but the statutory requirements on standards of protection and the considerable body of EU technical guidance are carried across unchanged.
The noble Lord also asked about principle of the “polluter pays” and whether it is in any sense undermined either through this instrument or generally speaking in our approach to regulating chemicals. It was not exactly clear which he was referring to, but the answer is the same. This statutory instrument has no bearing on the “polluter pays” principle, but that principle is at the heart of our approach in the upcoming Environment Bill, whether we are talking about pollution, waste or any other negative environmental impact, where the onus will be on the polluter or producer of waste.
The noble Lord, Lord Berkeley, made a powerful case for a shift away from pesticides towards cleaner systems, and he is right. That clearly has to be the ambition of any responsible Government. We want to minimise and eventually phase out the use of pesticides, and that means adopting different forms of food production over time. The only thing I would say to him, because this is not directly relevant to the effects of this SI, is that we are on the cusp of shifting our entire land use subsidy system away from the common agricultural policy—which, as he knows, incentivised landowners to convert whatever land they have, no matter how ecologically valuable, to make it farmable. No single piece of legislation anywhere in Europe has done more harm to our biodiversity and landscape than the common agricultural policy. That system is being changed wholesale and replaced with a system where payments will be conditional on good environmental stewardship. That can mean any number of different things, depending on where the land happens to be and how it is used, but it is inconceivable that the new environmental land management system will not catapult us in the direction in which we need to go of reversing biodiversity loss and promoting the kind of farming to which the noble Lord referred.
The noble Lord, Lord Randall, made the point that the chemicals industry is extraordinarily powerful and has enjoyed the position of being able to lobby very effectively, particularly across the European Union, where a single decision can have an impact on a vast area. That was certainly the case in the creation of the REACH programme. While many noble Lords look to REACH as the gold standard in chemicals regulation, the reality is that early proposals for REACH were much stronger than what eventually emerged. That was a consequence of probably the largest lobbying exercise by any sector at any time on the continent. I remember at the time writing and publishing articles about it in The Ecologist magazine, which I edited.
We saw an extraordinary weakening of rules on, for example, endocrine-disrupting chemicals—a point raised later in the debate by the noble Baroness, Lady Bakewell, who talked about the effect of polluted water on breast milk and the consequent development of children. I remember that, 15 years ago, a study was conducted into the issue of precocious puberty, or early onset puberty, in the United States. The figures were extraordinary, pointing to 1% of three year-old girls showing some signs of puberty, as compared with 1% of eight year-olds just 20 or 25 years before. There is no doubt that chemical contamination which finds its way into the food supply—into the food chain and through our water—has dramatic impacts on the health of children. It affects their development in all kinds of unpredictable and damaging ways, so I very much agree with her.
The noble Lord, Lord Randall, asked specifically why the SI delays introduction of changes to the format of the renewal dossiers until 2026, rather than 2023, as in the EU. This measure is to provide a smooth transition between EU and retained law. It has the effect that the relevant requirements which apply to active substances under retained law will be the same as for those same substances when they are considered under the EU regime. The change in date reflects that active substance approvals which expire in the first three years after the end of the transition period will be extended to allow the necessary time for evaluation under the national regime. This avoids the same substance having different requirements when it is addressed under the Great Britain regime than when it was considered under the EU regime. I hope that addresses his concern.
The noble Baroness, Lady Bennett, raised the same issue of pesticides being applied near homes, and I refer her to the answer I provided earlier. She also talked more broadly about the need to shift our food production away from the use of pesticides. Again, I strongly agree with her and refer her to my answer earlier to the noble Lord, Lord Berkeley. I remind her that the introduction of the ELM system will be the single biggest lever we have at our disposal to change the way land is managed.
The noble Baroness, Lady Bennett, talked more specifically about pesticide reduction policies. A lot of work is under way to research, develop and promote means to move away from chemical pesticides, including plant breeding for pesticide-resistant varieties, the use of natural predators, the development of biopesticides and the use of a variety of cultural methods to reduce pest pressures. The Government are funding much of that work through their support for the research councils.
The noble Baroness also asked a general question about whether our standards will be maintained. The Government have committed to continue to ensure that our existing standards are maintained after the transition period, and that will be true across all our chemical regulations policies.
My noble friend Lady McIntosh asked about staff and training—about capacity. I reassure her that we are working closely with the Health and Safety Executive to ensure the transition is as smooth as possible, and we have been carefully planning the expected programme of work. Without a doubt, some additional capacity will be required, and we will ramp it up as need be and over time. Clearly, we place great importance on protecting human health and the environment, so it will be necessary to resource the regime so that it can operate. We are well aware of that, and we will resolve those issues through the current spending review. However, the commitment is clearly there, as is the shared belief that this is a priority concern and we need to ensure that we have the capacity, the expertise and the resources that we need.
My noble friend Lady McIntosh also asked whether we will duplicate EU decisions. Great Britain authorities will take decisions that are in the best interests of the UK independently of EU decisions; there is no duplication of efforts. It has always been necessary to consider the evidence to inform the UK position on EU decisions, and our GB decision-making will be underpinned by that robust evidence base and impact assessment. The opportunity for UK stakeholders to input will not only remain but be enhanced.
The noble Baroness, Lady Bakewell, asked a number of questions. She asked about the MRL monitoring programme obligations and whether they will be carried forward into the national regime. They will, and they look ahead three years. She asked if we could explain the paragraph in the Explanatory Memorandum about the free issue procedure. This procedure is used to issue SIs where we have to correct mistakes. On PCBs, new legislation was passed this year to remove PCBs from use in electrical equipment by 2025. Legacy land contamination is managed under the contaminated land regime in Part IIA of the Environmental Protection Act 1990.
The noble Baroness, Lady Young, mentioned a number of issues that I hope I have already addressed. She also talked about POPs waste. Measures concerning the traceability control of POPs waste are clearly complex and will take some time to fully implement. However, it would not be appropriate to have that power indefinitely, and it may not be needed if it is dealt with under the Environment Bill. The noble Baroness also asked about control programmes and sampling. We will develop our plans for national maximum residue level monitoring programmes, including stakeholder engagement, in due course, so I will get back to her with information about that.
I hope and believe that I have answered the questions raised—I am looking through my notes to see if there are any that I missed out. My apologies—the noble Baroness, Lady Young, also asked about capacity and resources to deliver the national regime. The competent authorities across the UK will continue to manage and enforce the POPs regime as they do now, and, as I said, the Environment Agency has been working closely with Defra and the HSE to get the right resources in place to deliver its role. It has already increased its resource and it has an additional recruitment plan for early 2021 to ensure that it has the right capability and capacity for anticipated peaks and workload over the coming years.
I hope that I have answered all the questions that have been raised. I thank all noble Lords for their contributions and look forward to such debates in the months to come.
Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2020
(4 years, 1 month ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Goldsmith of Richmond Park
That the Grand Committee do consider the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations.
Relevant document: 31st Report from the Secondary Legislation Scrutiny Committee
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
The Grand Committee stands adjourned until 5 pm. I remind Members to sanitise their desks and chairs before leaving the Room.
Arrangement of Business
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, the hybrid Grand Committee will now resume. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. I must ask Members in the Room to wear a face covering except when seated at their desk, to speak sitting down and to wipe down their desk, chair and any other touch points before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
Flags (Northern Ireland) (Amendment) (No. 2) Regulations 2020
Viscount Younger of Leckie
That the Grand Committee do consider the Flags (Northern Ireland) (Amendment) (No. 2) Regulations 2020.
Viscount Younger of Leckie (Con)
My Lords, the draft regulations were laid before the House on 23 September.
The flying of a specific flag can represent an important symbol, with wider implications of what that act means by way of a sense of identity or cultural heritage. It is from this perspective that flag flying from government buildings and courthouses in Northern Ireland has been regulated by the Government, via Westminster regulations, since 2000. This followed earlier political disagreements in Northern Ireland regarding adherence to the relevant guidance on the matter.
The regulations made in 2000 therefore sought to prescribe the designated days that the union flag and, in certain circumstances, other flags must be flown on government buildings and courthouses in Northern Ireland. The regulations impose a legal requirement that must be followed for 16 days currently—soon to be 19 days—out of the year, as I shall explain.
The current 16 days to be observed by flying the union flag cover a range of royal birthdays and specific days that mark important milestones for the nations coming together as one union, such as Coronation Day, Commonwealth Day, and Remembrance Day—events that are recognised and celebrated right across the UK.
The Flags (Northern Ireland) Order 2000 sets out the clear process which must be followed in order to amend the flags regulations of 2000, respecting the devolution settlement and allowing the views of elected representatives on the ground in Northern Ireland to be considered. This includes referring any proposed amendments to the Northern Ireland Assembly for it to consider and on which to report its views to the Secretary of State before any regulations are made in Westminster.
The instrument before the Committee today delivers on a commitment made by the Government with respect to flag flying in the New Decade, New Approach agreement that saw the restoration of devolved government in Northern Ireland earlier this year. That commitment was to update the flags regulations to bring the list of designated flag-flying days from Northern Ireland government buildings and courthouses into line with the Department for Digital, Culture, Media and Sport’s designated days—meaning that, going forward, the same designated days will be observed in Northern Ireland as in the rest of the UK. This will involve the addition of three designated days: the birthdays of the Duchess of Cambridge, the Duke of Cambridge and the Duchess of Cornwall. This amendment will bring designated flag-flying days for Northern Ireland government buildings and courthouses into line with those observed elsewhere in the United Kingdom through guidance issued by the Department for Digital, Culture, Media and Sport each year.
The first new birthday to be observed—that of the Duchess of Cambridge—will be recognised on 9 January, hence our proceeding now while parliamentary time allows to deliver on this NDNA commitment.
The second amendment relates to the list of specified buildings in Northern Ireland. This list has not been amended since the 2000 regulations were made, when a decision was taken that the relevant buildings would be the headquarters of Northern Ireland departments. However, the list needs updating as it includes a building, Churchill House, that was demolished in 2004, and does not include two buildings that have since become the headquarters of Northern Ireland government departments in recent years. Therefore, this instrument removes Churchill House from the list of specified buildings and adds Clare House, the headquarters of the Department of Finance, and Causeway Exchange, the headquarters of the Department for Communities, to that list in the regulations.
As per the requirements set out in the 2000 order, the Secretary of State wrote to the Assembly Speaker, Alex Maskey, on 1 September asking that the Assembly consider and debate the draft regulations. A letter was sent back from the Speaker on 14 September reporting the views of the Assembly back to the Secretary of State. I am pleased to note that the Assembly took the opportunity to debate this matter robustly, as one might expect. Naturally, the contributions to the debate highlighted the different views that Members hold on the issue, but overall, no concerns were raised with the regulations being taken forward as per the NDNA commitment. I thank the Members and the Assembly for the time they have taken to carefully consider the instrument and report back views for us to move forward with delivery of these regulations.
Noble Lords will be very aware, as I am, of the range of key priorities being taken forward for Northern Ireland at present, from a range of debates we have recently had in this place. However, on this, I am pleased to say that it seems to be a more straightforward delivery of one of our NDNA commitments. For the record, we completely recognise the importance of flag flying and the related culture and identity matters in Northern Ireland. I note that this is but one commitment in the overall package of wider commitments we have made with respect to language, culture and identity issues for Northern Ireland under the NDNA and work is ongoing to deliver the other commitments in full at the earliest opportunity.
The 2000 flags order also requires regard to be shown to the Belfast agreement when making or amending flags regulations. In practice, this ensures that any changes appropriately balance the issues of recognition of all identities, diversity and tolerance, consistent with the principles and spirit of the Belfast agreement. I am satisfied that these regulations, like the 2000 regulations that they amend, comply with the Belfast agreement by reflecting Northern Ireland’s constitutional position as part of the United Kingdom in a balanced and proportionate manner.
I note as a point of interest that the House of Commons debated this instrument on 21 October in very short order. I look forward to hearing the contributions from noble Lords today. I commend the draft order to the Committee and I beg to move.
Baroness Harris of Richmond (LD) [V]
My Lords, I thank the Minister for setting out the order. It was in 2005 that a joint protocol was issued in relation to the display of flags in public areas, and later in 2011, the consultation document on the programme for cohesion, sharing and integration identified “developing shared space” which talked about cultural identity as a long-term theme for action, which included the flying of flags. The Northern Ireland Human Rights Commission also issued a paper which was intended to provide assistance to those making decisions on flags, symbols or emblems in Northern Ireland and cited the applicable international human rights standards as well as a whole plethora of international instruments which NIHRC cites, as well as standards proposed by the UN and regional HR bodies. I commend its document to noble Lords.
A lot of work has been carried out by Northern Ireland departments relating to flags, and it has been accepted as a symbol of sovereignty that, as we have heard, the union flag reflects the fact that the majority of people in Northern Ireland, in accordance with the provisions set out in the Belfast Good Friday agreement 1998 and the Northern Ireland Act 1998, voted for this. The Flags Regulations (Northern Ireland) 2000 govern the flying of flags in Northern Ireland, as we have also heard.
Today, we are simply talking about flags flown from government buildings and courthouses. As we have heard, the Secretary of State has the power to make regulations regarding the flying of flags on these buildings. Today, we are deciding on a permit to alter those regulations under the 2000 order, which the Northern Ireland Assembly discussed on 14 September at Stormont. The discussion was robust, not least because, when the devolved Government were restored—almost a year ago now—the British and Irish Governments agreed on New Decade, New Approach, which committed both Governments to making the list of designated flag-flying days in Northern Ireland the same as in the rest of the UK. Summing up the debate in the Assembly, UUP Member Robbie Butler made reference to the sensitivities around debates about flags, saying that they have been
“a cause of much angst and many sad debates”.
Most Members felt that it was time to move on and that there were far more important issues for the Assembly to deal with, although inevitably there were differing views.
We debated this on 25 March last year, when we deleted the designated status of the Europe Day flag—with some disappointment on my part, I might add—but this order adds three more designated days when the union flag is to be flown and deletes a now-demolished building, which is sensible. It also adds two more Northern Ireland Government departments. Northern Ireland has many more important policy decisions to make. We should move more swiftly and agree this order. I wish the Assembly well in its future deliberations.
Lord Hay of Ballyore (DUP) [V]
My Lords, I thank the Minister for introducing these new regulations. As he has said, under them, Northern Ireland will have three additional days. This brings Northern Ireland into line with the rest of the United Kingdom, which is important. I also believe that the new regulations recognise Northern Ireland’s Britishness—that it is part of the United Kingdom—and our place firmly within the union. It is important to ensure that Northern Ireland maintains the same statutory days as the rest of the United Kingdom.
As the Minister said, these regulations arise out of the New Decade, New Approach document, which was published in January with agreement from all sides. It was welcomed in Northern Ireland and allowed the Assembly to get back up and running again. I think that that was welcomed by the whole of the population in Northern Ireland at the time. My understanding is that there was a robust debate in the Northern Ireland Assembly on these new regulations, as some Members have already said.
I recognise that flags can be a controversial issue in Northern Ireland for some people; they have caused many debates there. I believe that the flag of our country should be treated with respect and should not be flown in a provocative way or a manner that creates a problem for another community. This is an important day for Northern Ireland because, as I said, the regulations bring it more closely in line with the rest of the United Kingdom.
Some Members continually quote the Belfast agreement but, whatever else it can be faulted for, it involved—we were told—an acceptance of Northern Ireland as part of the United Kingdom. If that is correct, how can there be resistance to the flying of the flag of the United Kingdom on government buildings in Northern Ireland? If there is a recognition that we are part of the United Kingdom, I would have thought that one would follow the other. Can the Minister assure us that the flag of our country will fly on designated public buildings in Northern Ireland, especially when Northern Ireland celebrates its centenary next year?
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
The next speaker is the noble Lord, Lord Rogan. Lord Rogan? We will move on and try to come back to the noble Lord in case he is having difficulties. I call the noble Baroness, Lady Ritchie of Downpatrick.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I thank the Minister for his explanation of this statutory instrument. While this is very much a technical amendment, it is worth recognising that flags in Northern Ireland can sometimes be controversial and go to the very heart of our society and community. I acknowledge what the noble Lord, Lord Hay of Ballyore, said: that the union flag should be displayed in a respectful way.
I come from the democratic Irish nationalist tradition and see a need for two flags on government buildings to reflect the partisan nature of our society. Northern Ireland is divided. Sadly, flags are used on many occasions to mark out territory, define identity and cause internecine conflict between two traditions. That situation is more heightened at different times of the year. I do not agree that that should be the case because flags of whichever hue or tradition they represent should be treated with respect by those who wish to fly them and by others who may not necessarily be of that tradition.
In the early days of the Northern Ireland Assembly, of which the noble Lord, Lord Hay, was a Member, I served under him when he was Speaker. In 1998, an ad hoc committee on flags was established. We all recall that, at that stage, the various parties defined their position according to identity but there was no particular outcome. Out of the Stormont House agreement emerged the Commission on Flags, Identity, Culture and Tradition. It first met in June 2016 and forwarded its report in the middle of this year to the First Minister and Deputy First Minister—but, significantly, it has not been published. Perhaps the Minister could find out the reason for the hold-up and when its publication and a debate on it in the Assembly are likely to take place.
Quite honestly, with our population suffering from the ravages of Covid and our economy to be impacted by Brexit, we need to move on to reconciliation and the healing process. I think of the words of my late former party leader, John Hume, who, along with others, was instrumental in providing the framework based on relationships that led to the Good Friday/Belfast agreement. When it was signed, he said there was a necessity to move on to reconciliation and a healing process. Undoubtedly, flags must be part of that, as well as cultural identity, language and symbols. We must reach consensus around that and show that we are moving on.
Unfortunately, that healing process has not yet taken place, hence the conflict around flags, symbols and parades. There needs to be recognition and acceptance by us all, and all of society, of the value of each of the two traditions, including a respect by each tradition of the other and a level of mutual understanding. I hope that this debate can propel the necessary discussion that needs to take place on healing and reconciliation. Can the Minister provide us with an update on the implementation of New Decade, New Approach, particularly in relation to cultural identity and language commitments?
I was Minister in the Department for Social Development, which was the original department and forerunner to the Department for Communities. Along with the then First and Deputy First Ministers, we spearheaded, shall we say, the development that became the Victoria House regeneration project, which replaced Churchill House. That was 2007 to 2010, and Churchill House was long demolished at that stage. I find that an interesting piece of history none the less.
I also ask the Minister to indicate what he and his colleagues could do with the Irish Government, as joint guarantors of the agreement, the Northern Ireland Executive and political parties to bring about that necessary healing process, which requires respect for political difference, mutual understanding, the lessening of fear, and the building of confidence with our various traditions in Northern Ireland.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
We now return to the noble Lord, Lord Rogan.
Lord Rogan (UUP) [V]
My Lords, I apologise to the noble Baroness, Lady Ritchie. In no way would I want to go before her. I also thank the Minister for introducing these regulations this evening. I welcome the regulations and, in particular, the three additional dates on which the union flag will now be flown on government buildings in Northern Ireland.
The regulations stem from the New Decade, New Approach agreement that was signed up to by the DUP and Sinn Féin/IRA in January as a precursor to the return of devolved government in Stormont. But despite assenting to this document, Sinn Féin/IRA has characteristically reverted to type and sought to undermine and ridicule those provisions of greatest importance to the pro-union members of the community. This includes the flag regulations we are discussing this evening.
Speaking in the Assembly debate on this subject in September, the Sinn Féin/IRA MLA Emma Sheerin described the flying of the union flag above Parliament buildings and other civic areas as “somewhat tired”. She added that even holding the debate itself was
“at best bizarre and inappropriate and at worst insulting.”
Speaking in the same debate, her party colleague John O’Dowd, a former Education Minister in the Northern Ireland Administration, said:
“This is a take-note debate, and, at the end of this, we will vote that we have taken note of it. That should be in no way interpreted by the Secretary of State or by anyone in or beyond the Chamber that we support the motion that we need to fly more flags, because we do not.”
Republicans often claim that they want to build a “shared future” with their unionist neighbours based on mutual respect, but there is little evidence that their words are little more than hollow platitudes. Next year marks 100 years since the creation of Northern Ireland and the formation of the United Kingdom as we know it today. It is a wonderful opportunity to celebrate all that is good about the Province and its people and our union, with its diverse peoples and cultures. The centenary will also provide a unique vehicle to promote Northern Ireland’s many attractions as a place to visit. This could not have happened at a better time, given the horrific damage Covid-19 has done and continues to do to the local tourism and hospitality sectors.
However, last week, all the Sinn Féin/IRA and, I am sorry to say, SDLP representatives on Derry City and Strabane District Council could do was vote that their local authority should not participate in any commemorative or celebratory events related to the centenary. The motion was carried. As your Lordships can imagine, this decision has caused great disappointment and anger to unionist people, not just in that council area but across Northern Ireland in general.
I am a unionist to my fingertips and always will be, but I am also a democrat. I have no objection to those holding a diametrically opposed view to mine, on condition that they seek to achieve their political objectives through peaceful means alone. However, the Belfast agreement was rooted in the principle of mutual respect for the two traditions—unionism and nationalism—that coexist on the island of Ireland. It does no one any favours when, on matters such as the flag regulations we are discussing today, local politicians whose parties signed up to New Decade, New Approach refuse to adhere to the spirit in which that document was agreed. I support the regulations.
Baroness Suttie (LD)
I start by paying tribute to the PSNI and the effective way in which it has dealt with the incidents in Derry/Londonderry and Belfast in the past 24 hours. They are a reminder of the fragility of the peace process, which none of us should ever take for granted. I also thank the Minister for his introduction to these regulations.
As other noble Lords have said, the regulations before us today implement a commitment set out in New Decade, New Approach. When the Northern Ireland Executive was restored in January this year it was agreed that designated flag flying days in Northern Ireland should be brought into line with the rest of the United Kingdom. From the Liberal Democrat Benches, we therefore support these regulations, which are carrying out that commitment.
As other noble Lords have said, flags as symbols are a sensitive issue and can provoke strong feelings, as we have heard in the debate this afternoon. Equally, they can provoke strong negative reactions. Ultimately, it is about respect, as the noble Baroness, Lady Ritchie, said so powerfully this afternoon, and respecting how people feel about a flag and its symbolism, even if you do not entirely share or understand those sentiments. Like other noble Lords, I have read the debate on these regulations in the Northern Ireland Assembly on 14 September, and there, too, the strength of feeling from Assembly Members was made extremely clear.
The New Decade, New Approach agreement was a long time coming. The three years when there was no Executive did not serve the people of Northern Ireland well. Agreement to move on was very much to be welcomed, but there is still so much to be done to make further progress. I therefore repeat the remark made by the noble Baroness, Lady Ritchie, that it would be useful to hear from the Minister today in his reply to this debate whether the Government have drawn up a timetable for the implementation of other sections of that agreement and whether a report on progress will be forthcoming, not least on legacy issues and future long-term funding.
January this year, when the New Decade, New Approach agreement was signed, now feels a very long time ago, a time when we could still live and travel freely, a time before we had even heard of Covid-19. Northern Ireland is now into its second week of its second lockdown, with all the consequences on society and economy that it brings, and people and businesses in Northern Ireland still face ongoing uncertainty provoked by Brexit and the Northern Ireland protocol and additional uncertainties stemming from the internal market Bill.
I conclude by agreeing with my Alliance Party colleague Kellie Armstrong, who said during the debate on these regulations in the Northern Ireland Assembly,
“all I ask is that we show each other respect.”
She went on:
“it is time for us to move forward.”
Lord Murphy of Torfaen (Lab) [V]
My Lords, this has been a short but interesting debate which goes to the heart of the issue which has dominated Northern Ireland since the signing of the Good Friday agreement: that of parity of esteem and respect for everybody in Northern Ireland irrespective of the community or background from which one comes. On the surface, this seems a particularly innocuous statutory instrument, especially as we are debating it in such turbulent and difficult times. We are talking about three royal birthdays and two government buildings, and flags flying accordingly, but as your Lordships have said, it is not as simple as that. Certainly, the debate in the Assembly highlighted the strong feelings that still exist in Northern Ireland about the nature of flags.
Flags are not going to go away, but they can be respected. Each and every one of us should respect the flags which are respected by other people and communities. In press conferences in Scotland or Wales over the last number of months, we have seen the saltire or the Welsh dragon by the respective First Ministers. That is a sign of respect for those countries. In Northern Ireland, of course, it is much more complicated, but there should still be that respect. The noble Baroness, Lady Ritchie, outlined eloquently how important it is, whatever we are doing, to ensure there is such parity of esteem and respect.
It is not easy. Flags have been abused an awful lot during the past 40 or 50 years—waved and used in a way that they should not be—but they also reflect identity. At the heart of the issue of Northern Ireland when we come to try to get a reconciliation is the need to respect people’s identities, and that includes respecting the symbols of their identities as well.
This statutory instrument reflects the New Decade, New Approach agreement, when it brought designated flag-flying days into line with the United Kingdom. That was agreed between the parties in Northern Ireland, so I obviously support this statutory instrument, as I am sure will everybody else today. However, it has to be done against the background of ensuring that people are respected irrespective of how they look at the issue of flags. As many have said, the debate in the Assembly showed varying views about the flags.
I join your Lordships in asking the Minister about the other issues in New Decade, New Approach, particularly the meetings of the joint board, and whether we are seeing some progress despite the fact that, inevitably, the whole of Northern Ireland politics and government, as it is in the rest of the United Kingdom and the Republic of Ireland, is dominated by Covid-19. We should go on addressing those issues which can bring about reconciliation and which can ensure that, once all this terrible business is over, Northern Ireland continues with an Assembly and an Executive and the path to reconciliation so well established in the Good Friday agreement 22 years ago.
Viscount Younger of Leckie (Con)
My Lords, I thank all Peers who have spoken for their overall support for these regulations. It was cheering to note that many speeches repeated some parts of mine, which shows that there is a consensus around this Committee. I recognise that flag flying in Northern Ireland can sometimes be a divisive issue, as the noble Baroness, Lady Ritchie, said, and that there will be differing views about this statutory instrument and the underlying principles of the regulations.
I thought I might start by going back to note the judgment last year of the Northern Ireland Court of Appeal, which ruled that the 2000 regulations
“should be regarded as a pragmatic reflection of the current reality of the constitutional position and actively consented to in accordance with the spirit of the Agreement that Irish people, North and South, signed up to.”
It went on to state that the measure
“prefers neither one community over another, nor does it hold one individual in higher esteem than another. It is not discriminatory. It simply reflects the constitutional position of Northern Ireland as part of the United Kingdom.”
With some opening remarks, that sums up the debate rather well.
It is good to see that Members agree with me that the changes proposed in this particular instrument are balanced and proportionate. In line with the commitment made by the Government in New Decade, New Approach, the number of designated flag-flying days listed in the regulations will not exceed those observed in the rest of the UK, while the addition of two specified buildings ensures consistency with the intent of the 2000 regulations.
I recognise that this is just one commitment made under the NDNA. While we have made good progress on delivering its range of important commitments, we still have more to do.
That brings me nicely to the questions raised by the noble Baronesses, Lady Harris of Richmond and Lady Ritchie, and the noble Lord, Lord Murphy. The noble Baroness, Lady Harris, spoke movingly about the importance of flags, identity and culture, and this allows me to expand a bit on her remarks. There is more work to do on the other language and cultural commitments that the Government are delivering under the NDNA. The Government are committed to recognising Ulster Scots as a national minority. We are also committed to delivering additional funding for Northern Ireland Screen to broaden the remit of the existing Ulster Scots and Irish language broadcasting funds. I reassure the Committee that this work is ongoing and we hope to deliver on these important commitments before the end of the year.
I will say a little more about the importance of Irish language legislation. It is essential that the Executive also move forward with their commitments under the NDNA agreement, including the important commitments on language, culture, identity and associated legislation. I again reassure the Committee that we continue to engage with the Executive in this regard. As I said earlier, there are many other key priorities that are very much alive and ongoing in Northern Ireland.
I move on to an important interesting question raised by the noble Lord, Lord Hay of Ballyore, about flying flags on centenary day. It is interesting to note that, as far as I am aware—I will check on this—no actual day officially marks the centenary. This could be debated, but I reassure the Committee that we want to use the centenary to promote Northern Ireland as an attractive place to visit and do business, to celebrate the contribution that the people of Northern Ireland make to all aspects of life in the UK and further afield, and to develop a better understand of our shared history. In August, the Prime Minister visited Northern Ireland, where he announced the establishment of a centenary forum and historical advisory panel, ensuring that we listen to their diverse perspectives as we create a bold and ambitious centenary programme. Both those groups have now met and their composition was recently confirmed, publicly. Although I cannot give a precise answer to the question raised by the noble Lord, Lord Hay, he has raised an important point about the centenary date. It is as yet uncertain and not mentioned in these regulations. We will keep in touch with him as matters progress.
I focus now on the remarks of the noble Baroness, Lady Ritchie. I was delighted that we are debating again so soon after the water boundaries regulations last week, when the noble Baroness made a moving speech, focusing on her role in the constituency of Carlingford Lough. I was interested to hear her strike the right chord in this debate, which was picked up by the noble Lord, Lord Murphy, and other noble Lords, in the importance that she gave to reconciliation. I was pleased and rather moved when she brought up the name of the late John Hume, bearing in mind the huge amount of work that he did in Northern Ireland to help bring about peace. I also note, as raised by the noble Lord, Lord Murphy, that the words “respect” and “mutual recognition” formed an important part of this debate. They resonate around this Committee.
I also bring up some points raised by the noble Lord, Lord Rogan, who made a strong speech about the importance of the Belfast agreement. In agreeing with him, I say this. We must continue to have proper regard for the Belfast Good Friday agreement. I am clear as to our legal duties in this regard. These changes do not amend the principles that underpin the 2000 regulations, as I said earlier. The changes are minimal, yet important, to bring Northern Ireland in line with the practice taken at UK Government level. I am of the view that the changes appropriately balance issues of recognition of all identities, diversity and tolerance, consistent with the principles and spirit of the Belfast agreement. I hope that nails down the point raised by the noble Lord.
I hope that I have covered the majority of the questions. I will certainly read Hansard to check that I have answered all the questions raised. In the meantime, I am pleased to be delivering this commitment on flag flying today—one of the measures that, as I said earlier, forms part of our wider commitments relating to language, culture and identity. I commend this draft order to the Committee, and I beg to move.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
The Grand Committee stands adjourned until 6.15 pm. I remind Members to sanitise their desks and chairs before leaving the Room.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
My Lords, the hybrid Grand Committee will now resume. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. I must ask Members in the room to wear a face covering, except when seated at their desk, to speak sitting down and to wipe down their desk, chair and any other touch points before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House the Committee will adjourn for five minutes.
The time limit is one hour. Before I call the Minister, I inform the Grand Committee that the noble Lord, Lord Berkeley, has withdrawn, so after the Minister I will call the noble Lord, Lord Stephen.
Electricity (Risk-Preparedness) (Amendment etc.) (EU Exit) Regulations 2020
Baroness Bloomfield of Hinton Waldrist
That the Grand Committee do consider the Electricity (Risk-Preparedness) (Amendment etc.) (EU Exit) Regulations 2020.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, on 31 December 2020, when the transition period ends, direct EU legislation such as this, which forms part of the legal framework governing our energy markets, will be incorporated into domestic law by the European Union (Withdrawal) Act 2018. This statutory instrument will ensure that Great Britain’s energy legislation continues to work effectively after the end of the transition period. It forms part of the department’s wider package of work to ensure the continued smooth functioning of the UK’s energy system after the transition period.
Great Britain has a reliable energy system, and maintaining a safe and secure energy supply is a key priority for this Government. The UK’s exit from the EU will not affect this. This statutory instrument applies to Great Britain and makes amendments and revocations to Regulation (EU) 2019/941 on risk preparedness in the electricity sector, amending existing rules to ensure they operate effectively in domestic law, while revoking provisions no longer relevant after the transition period. The risk-preparedness regulation came into force in June 2019 and creates an EU framework for preventing, preparing for and managing electricity crises. The regulation requires, among other things, that member states identify all possible electricity crisis scenarios at national and regional levels and then prepare risk-preparedness plans based on those scenarios.
The changes made by this statutory instrument reflect our intention to continue to develop measures for robust risk-preparedness management in the electricity sector, especially as we work to further decarbonise Britain’s energy system. Specifically, this statutory instrument amends provisions relating to the development of electricity crisis scenarios and a risk-preparedness plan to ensure they operate properly after the transition period. By retaining these functions, we will ensure that our understanding of the risks continues to improve and that we have robust mitigations in place to maintain our secure and reliable electricity system.
BEIS is the lead government department for electricity emergencies and works closely with industry partners, including National Grid and Ofgem, to consider risks to supply and ways to manage these risks effectively. This SI will build on and supplement existing arrangements and plans, ensuring there is a clear framework for the identification of risks to the electricity system and setting out measures to mitigate these risks within a risk-preparedness plan. This plan will complement existing documents that require industry consultation and development, including the regularly updated national emergency plan for downstream gas and electricity.
The Secretary of State for Business, Energy and Industrial Strategy will work with these GB bodies and market participants—for example, the transmission system operators—to fulfil the obligations to develop crisis scenarios and risk-preparedness plans by specified dates. This provides clarity on roles and functions after the transition period for electricity crisis planning and management in Great Britain. This includes consultation with the transmission system operator, the regulatory authority, Ofgem, distribution network operators and other relevant parties to identify the most relevant electricity crisis scenarios that may impact the electricity system.
After the transition period, the UK will make independent decisions on our energy policies. This statutory instrument therefore revokes certain obligations within the regulation, such as the obligation to submit risk-preparedness plans to EU bodies and institutions. It also corrects deficient references to EU bodies and institutions—for example, by removing references to the European Network of Transmission System Operators for Electricity, and the European Commission. It also replaces the term “member state” with references to “the Secretary of State” where necessary to ensure continued operability.
The revocations made by this SI are proportionate and necessary to ensure the continued functioning of the regulation in domestic law after the end of the transition period. Overall, this statutory instrument will ensure the operability and integrity of GB energy legislation, providing certainty for market participants and safeguarding the resilience of the electricity system by ensuring the continued functioning of risk-preparedness planning provisions.
These regulations are an appropriate use of the powers of the withdrawal Act and will maximise continuity in our energy regulation, provide certainty to market participants and support a well-functioning, competitive and resilient energy system for consumers. I beg to move.
Lord Stephen (LD) [V]
I begin by declaring my renewable energy interests as set out in the register.
This is an increasingly important issue. Electricity demand will rise over the coming decades and we will be increasingly dependent on electricity for powering our vehicles and heating our homes, as well as for existing uses such as televisions, lighting, computers and much more. I welcome the preparation of a risk-preparedness report by Ministers. I believe this should be given considerable urgency, and I hope the report is ambitious and helps to drive the energy transformation we need, rather than being purely protective and defensive to avoid disasters, breakdowns and blackouts.
By this, I mean that the greatest prize in electricity security is not simply avoiding power cuts. Of course, we have all seen the dire headlines, and there has been an increasing number of mega power cuts over the last decade, which have caused huge problems in Pakistan, Canada, America, Turkey and the Philippines, for example. Sadly, the UK has not been immune, as we saw on 7 August last year. But it is about more than stopping the system falling over. It is about how you drive the future and seize opportunities as quickly and early as possible. In short, do you wait for a crisis to hit you, as they did in Australia—you might remember Tesla riding to the rescue with its 100-megawatt battery, delivered in 100 days—or do you realise there is an imperative of central importance here: tackling climate change and delivering on the target of net zero by 2050?
The scale of the challenge is simply huge. Our UK target for new offshore renewables by 2030 was 30 gigawatts, and the Government have now raised that to 40 gigawatts. To achieve net zero, the Committee on Climate Change estimates that we will need to go much further: 70 gigawatts of new installed capacity by 2050. The target, I believe, could go higher still.
To give this some sense of scale, back in the old days, when we relied on coal, nuclear and gas plants, with a few hydropower stations too, the total installed capacity for the whole of the UK was around 60 gigawatts. Across Europe, the numbers are going to be even more staggering, with perhaps as much as 900 gigawatts or even a terawatt of new renewable capacity required over the coming decades.
This all amounts to an enormous challenge. We do not have anything like the strength and flexibility of grid onshore or offshore, or the interconnectors, ocean cables and HVDC infrastructure needed to cope with this exponential increase. We do not have anything like the scale of investment required in batteries and other forms of electricity storage, nor yet do we have the legislative and regulatory structure to be certain that we can make it happen. However, I firmly believe that that can change; it must, and we have to do it as fast as humanly possible.
As an aside, if we happen to have—as media reports suggest—£10 billion or £20 billion of taxpayers’ money available then this is where the priority should be for investment, not supporting a new generation of nuclear power stations that might take 15 or 20 years to come online and which will cost far more, megawatt for megawatt and pound for pound, than the power that is already coming from renewable sources. Let us commit right here, right now to this investment in upgrading the grid and creating long-term electricity storage; it is urgent and vital. That is why entrepreneurs such as Eddie O’Connor are now investing in projects such as SuperNode. Eddie is a renewable energy visionary and, having founded both SSE Airtricity and Mainstream, is one of the most respected individuals in the sector. His latest venture is all about the grid, kick-starting progress towards the vision of a hugely interconnected Europe powered by renewable energy.
Let us be clear: if the UK is determined then we can be the engine, the driving force, right at the centre of the renewables revolution. The UK could lead the way with a strong, stable grid, exporting our wind, tidal and wave power and delivering the future. If all we do is prepare for crisis, and if we do not invest, then our grid will stagnate and big opportunities will be lost. Sadly, if that happens then we will have more days like 9 August last year when our lights went out and more than 1 million people across Britain were left without electricity. We must not let that happen ever again. We do not want to be like Australia, sending for the cavalry and calling on Elon Musk to patch up the damage.
We want to seize the future. We want to be at the heart of a booming renewables sector with a strong modern grid, far more battery storage and way more interconnectivity, working with our European partners and neighbours to deliver the very best and cleanest supergrid in the world. It is complex and difficult but, perhaps today of all days as America goes to the polls, it is worth remembering the words of a great US President who said that we do these things
“not because they are easy, but because they are hard.”
Yes, it is hard and it sometimes feels like shooting for the stars, but I am convinced that we can do it and that the future is bright if we get out there and make it happen.
Lord Campbell-Savours (Lab) [V]
Before dealing specifically with this SI, I want to refer to a point repeatedly being raised by colleagues across the House on the delayed handling of SIs. Members have naturally argued for earlier consideration, but at the end of the day there are now huge numbers of measures going through the process and I would not like to see a process introduced that further delayed the introduction of those SIs that are urgently required.
I turn to the SI before us. I will concentrate my remarks on what has been described in Commons debates as smooth working in the supply of energy, as well as the need to avoid a crisis in supply and the development of risk preparedness planning. Providing certainty for market participation and resilience in supply systems is clearly critical if we are to plough our own furrow in the new Europe we are embarked on.
That brings me to the whole issue of interconnectors. In the Commons, Minister Kwasi Kwarteng, when pressed on interconnectors, responded that
“we intend to build many more.”—[Official Report, Commons Delegated Legislation Committee, 7/10/20; col. 3.]
I want to press the Minister on that response as it begs the question: what further interconnector arrangements are under consideration? I have in mind proposals for an interconnector with Iceland, originally made some years ago. But before referring to that particular project, I need to state that my wife is Icelandic and she has relatives who are engaged in the energy debate in Iceland.
The Icelandic proposal is to build an interconnector between Iceland and the UK. It would extend over 700 miles and would carry between 800 and 1,400 megawatts of power. I understand that it would be the largest subsea interconnector in the world. The project partners are National Grid, the Icelandic state-owned generator Landsvirkjun, and Landsnet, the transmission system operator. I want to press the Minister on where we are in the debate on a way forward. I know that she has taken a historic interest in this project as part of her keen interest in energy-related environmental matters, which also include barrages, but there have been hold-ups which are placing question marks over the whole project’s development.
The latest information available to me points to difficulties over the need to upgrade the transmission system which encircles Iceland and which is limited to 100 megawatts’ transmission capacity. An interconnector would be dependent on that ringed transmission system, which is clearly inadequate as currently operated. It would need to be substantially upgraded, if only to supply power to the interconnector. The ring is, in effect, the collector. The problem is further aggravated by the very vocal environmental protection movement in Iceland—which normally I strongly support—which is deeply concerned about damage to the visual environment from ugly power plants and overhead power lines. These considerations form part of a balance of arguments which are perfectly understandable in a country where environmental protection issues are crucial. They are key to Iceland’s ability to attract a worldwide tourist trade.
However, there are now dark clouds on the horizon for the Icelandic economy. First, the future of the aluminium industry, which hitherto has been internationally competitive, is threatened by increasing Chinese competition subsidised by cheap coal. Secondly, the pandemic has long-term implications for the Icelandic economy, which is increasingly dependent on tourism, and huge pandemic-related reductions in tourist movements have had a major effect on national income. Energy exports could certainly help alleviate downturn damage. The country will inevitably have to have that in mind when considering the perfectly legitimate concerns of the environment movement. Equally, the environment lobby there will need to consider the consequences of what may be a long-term dilemma arising out of reduced national income. No one knows where the pandemic is going to take us. The powers that be in Iceland will not be unaware of the looming dangers if alternative sources of national income cannot be found.
Admittedly, Icelandic resilience saw the country through the fisheries crisis in the 1960s and the recent financial crisis, but nevertheless the balance of these arguments may be such that Iceland has to make major compromises in its economic and industrial strategy, which could include a serious debate on potential interconnection business, from which Britain could benefit. I do not envy the heartfelt debate that may now have to take place. No doubt Björk, the Icelandic singer, will wish to consider these matters when she makes her next very substantial financial contribution to the Icelandic environmental movement.
This order is about electricity supplies in the new Europe. It will inevitably lead to the reshaping of the energy supply market, with Europe to the south and, potentially, Iceland to the north. It will be interesting to know where the Government stand on the use of these interconnectors in the policy of preparedness referred to by the Minister which stands at the heart of this statutory instrument.
Lord Oates (LD)
My Lords, I declare my interests as set out in the register as chair of the advisory board of Weber Shandwick UK. I am grateful to the Minister for her summary of the legislation. As so often with EU exit regulations, it not only raises issues of detail in relation to the statutory instrument itself, but gives rise to a whole series of questions about our future relationship with EU member states and the extent to which the Government are prepared to work collaboratively with our European neighbours going forward. In this case, it would be to ensure the security of our electricity supply in a crisis and to provide mutual aid to neighbouring countries should they require it.
My noble friend Lord Stephen has also raised critical issues about how we get ahead of the crisis to come, particularly with regard to investment in renewables. He made the important point that we need to focus in this area, not on new nuclear. The truth is that the economics of nuclear have been destroyed by the success of renewables, largely due to the vision of the then Secretary of State for Energy and Climate Change, Ed Davey, in pursuing offshore wind in particular.
Before I turn to the broader questions, I wonder if the Minister will be able to help the Grand Committee with some of the detail of these new regulations. As she explained, the instrument makes a number of amendments to Regulation EU 2019/941. She and the Explanatory Memorandum set out that these are intended to remedy deficiencies in retained EU law by, for example, substituting references to EU institutions for references to the Secretary of State and removing obligations for the UK to provide information to EU institutions. However, a dive into the detail of the statutory instrument suggests to me that it goes beyond such necessary technical changes, and I hope that the Minister will be able to provide some clarity here.
For example, the new regulation omits Articles 5 and 6 of the existing regulation. These relate to the methodology for identifying regional electricity crises and the identification of such scenarios. This has some logic, given that we are no longer part of the regional planning framework. However, incorporated within Article 5 are the key issues to consider in identifying regional crisis scenarios, and these are then referenced in relation to national crisis scenarios under the existing Article 7. They include for example, that
“The proposed methodology shall identify electricity crisis scenarios in relation to system adequacy, system security and fuel security on the basis of at least the following risks: (a) rare and extreme natural hazards; (b) accidental hazards going beyond the N-1 security criterion and exceptional contingencies; (c) consequential hazards including the consequences of malicious attacks and of fuel shortages.”
The existing Article 7 is amended under this regulation to omit the first sentence of paragraph 3, which states that
“The national electricity crisis scenarios shall be identified on the basis of at least the risks referred to in article 5(2)”.
Presumably, this sentence is deleted on the basis that Article 5 is omitted in its entirety from the new regulations. However, this means that we no longer have any agreed minimum criteria which the Secretary of State has to apply when identifying national electricity scenarios. Can the Minister tell us what criteria the Secretary of State intends to apply? If she cannot do so, can she explain on what basis Parliament will be able to determine whether the Secretary of State has discharged his responsibilities properly in this regard?
Secondly, the new regulation omits paragraph 4 of the original Article 7, which requires member states to inform the Electricity Coordination Group and the Commission
“of their assessment of the risks in relation to the ownership of infrastructure relevant for security of electricity supply, and any measures taken to prevent or mitigate such risks, with an indication of why such measures are considered necessary and proportionate”.
Again, I understand the change to omit the reference to the Electricity Coordination Group and the European Commission, but why is there no provision to provide this information to Parliament? During the Brexit discussions, we heard much about a return to parliamentary sovereignty once we had left the EU, but we seem to have returned to executive dominance. Perhaps the Minister could deal with that allegation by explaining how Parliament will be kept informed on these matters.
The new regulation also omits Articles 8 and 9, relating to
“short-term and seasonal adequacy assessments”.
Naturally, these articles would need to be amended as they refer to EU institutions and a regional approach, but why are they omitted entirely rather than amended? Do we think we will be immune to short-term and seasonal adequacy challenges simply because we have left the EU? In fact, are the impacts of these not likely to be even more acute given that we are no longer part of the regional crisis framework?
Lastly, on issues of detail, can the Minister explain why the new regulation omits the second sentence of paragraph 7 of Article 10? This relates to the
“protection of the confidentiality of sensitive information”
on the basis of the principles set out under Article 19. As Article 19 is retained in amended form in the new regulation, why has this reference to the protection of information been removed? I hope the Minister will be able to address these detailed questions in her response.
However, beyond the detail is the wider issue of post-Brexit co-operation with our neighbours and friends. The new regulation omits requirements for regional and bilateral measures, but, surely, whatever one’s views of the European Union, it makes sense to have such arrangements in place both for our benefit and the purposes of mutual assistance. Can the Minister outline the Government’s approach in this regard?
The Government’s guidance on trading in electricity after 1 January 2021 makes it clear that, from that date, we will no longer be governed by EU legislation, which
“provides for efficient trade and cross-border cooperation in operating the electricity system”.
Instead, we will be reliant on alternative trading arrangements, which, less than two months from exit from the transition period, have still not been determined. Given our reliance on interconnectors and the Government’s estimate that, by 2025, they will account for nearly a quarter of all our supply, it is vital that we sort out these issues, establish a co-operative approach with our friends and neighbours, and start with regulations that adequately protect us in the event of an electricity crisis scenario being played out.
Lord Grantchester (Lab)
I thank the Minister for her introduction of the statutory instrument before the Committee today. As she said, this relates to risk-preparedness in relation to electricity failure now that the UK has left the EU, whether a deal on the future relationship with the EU is reached or not. The instrument transfers into UK law Regulation (EU) 2019/941. I will approve it, as it does not differ materially from the case that held previously, when the UK was a member state.
Great Britain will produce its own risk management plan. However, I have a few questions to ask the Minister. I have just made reference to Great Britain rather than the United Kingdom. I understand that, with the Executive now up and running again in Northern Ireland, Ministers there will be making the decisions. However, could the Minister go further and make any comments around the implications for the situation across the island of Ireland? The regulations could well be different from those in the rest of the UK for these reasons in themselves.
Risk management is a function that has to be recognised, with assessments and procedures reflected at all levels of organisational management. Can the Minister confirm that this will continue to be the situation throughout Great Britain, as before?
The EU directive included a provision that the UK’s plans were published and circulated with neighbouring countries, with the EU as a whole and with the EU co-ordination body ENTSO-E. Can the Minister inform the Committee whether Great Britain will publish and share its plans in the future? Will that be partially answered by whether a deal is struck with the EU before 31 December 2020 or not?
There are interconnectors for grid access to the continent that I am sure will continue, and I am grateful to my noble friend Lord Campbell-Savours for identifying the importance of interconnectors and their future development, especially to Ireland, and how they could reshape the UK energy market. Will Great Britain publish the risk management plans and share them within the UK, including Parliament and the devolved Administrations, or would that make the plans vulnerable to terrorist attack in some way different from the way plans were published prior to circulation under the EU? Will plans be published merely to necessary electricity authorities? Who might those authorities be in the new Great Britain context? Ultimately, is it the responsibility of the Secretary of State? I am grateful to the noble Lord, Lord Oates, for his questioning of future intentions to share plans with members of the EU, and on what basis.
I have some more questions. The Explanatory Memorandum makes reference to the Downstream Gas & Electricity Resilience and Energy Resilience and Emergency Response units at the department. Can the Minister confirm any different role in risk management terms of these units and how they co-ordinate effectively in the risk management plans? It was a little difficult to hear her introduction with the noise interference of the Division bell, and I apologise.
Finally, can the Minister say who is responsible for auditing these plans now that the UK has left the EU? There must be some transparency in regard to the risk preparedness of Great Britain in the event of failure in the electricity system. I agree with the noble Lord, Lord Stephen, that future resilience in terms of climate change and renewables needs to be recognised. These risks are more likely to be identified and challenged with management at the audit stage. Any further clarity that the Minister may be able to provide would be most helpful.
Baroness Bloomfield of Hinton Waldrist (Con)
I thank noble Lords who have contributed to this debate, which has widened out considerably—as indeed it should—from the rather dry statutory instrument that we are faced with.
The noble Lord, Lord Stephen, raised an important point about the transformation of our energy system. As we transition towards net zero, maintaining energy resilience will continue to be a priority for the Government. The electricity system operator has a plan in place to transform the operation of Great Britain’s electricity system and put in place the innovative systems products and services to ensure that the network is ready to handle 100% zero-carbon by 2025. I hope that this provides some reassurance to the noble Lord, Lord Oates, that this is our goal that we are working towards. This statutory instrument will ensure the continued security and resilience of the electricity system by identifying and mitigating new risks to the system.
The noble Lord, Lord Campbell-Savours, raised the issue of additional interconnector arrangements, and in particular the proposed Icelandic interconnector. Although I cannot comment on specific projects, I can assure the noble Lord that interconnectors will continue to play an important part in our energy system. There are currently six interconnectors between the GB electricity market and near neighbours, with a total capacity of 6 gigawatts. In 2019 net imports accounted for 6.1% of total supply. There are further plans for the delivery of a large number of electricity interconnectors, adding 11.9 gigawatts to the existing operational 6 gigawatts by 2023. These interconnectors provide significant benefits, including lower consumer bills as well as security of energy supply and, after the end of the transition period, our energy system will still be physically linked to the EU. Further interconnection is in the mutual interest of the UK and the EU, and we have continued to see new interconnector projects progress.
Going back to the Iceland interconnector, I agree entirely with the noble Lord, Lord Campbell-Savours, that it sounds like an appealing project until you get into the weeds of it. While you can build a 1,500-kilometre interconnector for up to 1.2 gigawatts between Iceland and the UK, there are a number of barriers under the water, thrown up by the seabed survey, which, while not showstoppers, would make it extremely difficult to do. From what I remember of the project, the main stumbling block was that most of the energy—geothermally and hydro-generated—comes from the south-west corner of the country, yet the best place to build an interconnector is the north-east. Getting over that terrain, much of which is bedrock, would have meant that the interconnector itself could not be buried. The effect on the environment of pylons or overland HVDC cables would have been enormous. Björk is the least of the issues there, I think; the entire environmental lobby would be very exercised by the prospect. Given that tourism is such a huge part of Iceland’s economy—and has been until the pandemic—I wish the project well, but there are a lot of difficult problems to overcome.
The Government are committed to achieving a smooth end to the transition period for our energy system. We have brought forward a package of legislation to ensure that retained EU law is workable and free of deficiencies by the end of the transition period. This draft instrument falls within this category of legislation. The Government retain their obligation to produce these resilience plans on the same basis as before; this statutory instrument merely removes our obligation to circulate these plans among the EU, but it remains very much in our interest to carry out these studies—in fact, it is now set in law that we should do so. The failure to address the deficiencies of the SI would have caused uncertainty and inefficiency in the operation of Great Britain’s market regulation, the role and functions of domestic and EU bodies in the markets, and requirements on market participants.
I must stress that this draft instrument and the UK’s departure from the EU as a whole do not, and will not, alter the fact that our energy system is resilient and secure. In Great Britain, the Government have been working closely with the electricity system operator, the national grid, and the regulatory body, the Office of Gas and Electricity Markets, to ensure that measures are in place to deliver continuity of supply and confidence in the regulatory framework in all scenarios. The Government are therefore confident that the UK’s electricity system is able to respond to any challenges, whether these are as a result of leaving the EU or other challenges facing the UK, such as the coronavirus pandemic.
Our energy system will still be linked to the EU after the end of the transition period through these interconnectors. The UK, as a result, has one of the most secure energy systems in the world and the industry has well-placed contingency plans to keep energy flowing and to ensure that our energy supplies are safe. This draft instrument will support this by ensuring that the sector is well prepared for a variety of risks that could impact the system. The noble Lord, Lord Grantchester, referred to the plans that were published previously, and asked whether these will be published in the future, and to which parties. We will publish the risk preparedness plans in 2022.
This draft instrument will help maintain a robust framework for electricity risk management, with continuity for the market and certainty for market participants. It will do this by retaining relevant functions to ensure the electricity risk preparedness regulations work properly and, where necessary, revoking provisions that will no longer be relevant after the transition period.
The noble Lord, Lord Grantchester, also asked how the SI affects risk preparedness planning with Ireland. We are working very closely with Northern Irish colleagues to determine what is in the scope of the Northern Ireland protocol, and how they will comply with their obligations under the risk preparedness regulation after the end of the transition period, which they will be obligated to continue by virtue of the Northern Ireland protocol. For example, this includes the reporting function to the EU and the more difficult issue of nominating a competent authority that would feed into the EU processes.
In conclusion, this draft instrument is required to ensure continuity for our energy system, and certainty for both market participants and consumers. In doing so, it will form an important part of the GB framework for preparing, preventing, and managing electricity crises. The noble Lord, Lord Oates, raised some very important points. Apart from the broader points he raised about the investments we are making in new forms of energy and, indeed, in battery technology, I was very interested to hear of the reports of new types of energy he mentioned, and I will look at Hansard. I will write to him on the other specific points he raised on the SI, so that his detailed questions receive the detailed answers they need.
On the emergency response, BEIS is the lead department for electricity emergencies, working closely with industry partners to consider risks to the supply and ways to effectively manage these risks. BEIS leads the emergency response, working closely with industry, with plans clearly set out in the National Emergency Plan: Downstream Gas and Electricity.
I commend these draft regulations to the Committee.
The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)
My Lords, that completes the business before the Grand Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the Room.