Grand Committee

Wednesday 9th December 2020 Grand Committee

Wednesday 9 December 2020

Arrangement of Business

Wednesday 9th December 2020 Grand Committee

Announcement

14:38

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

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 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 microphone system for physical participants has changed. Your microphone will no longer be turned on at all times, to reduce the noise for remote participants. When it is your turn to speak, please press the button on the microphone stand. Once you have done so, wait for the green flashing light to turn red before you begin speaking. The process for unmuting and muting for remote participants remains the same.

The time limit for the following debate is one hour.

Ozone-Depleting Substances and Fluorinated Greenhouse Gases (Amendment etc.) (EU Exit) Regulations 2020

Wednesday 9th December 2020 Grand Committee

Considered in Grand Committee

14:39

Moved by

[Lord Goldsmith of Richmond Park]

That the Grand Committee do consider the Ozone-Depleting Substances and Fluorinated Greenhouse Gases (Amendment etc.) (EU Exit) Regulations 2020.

Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[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, there are three instruments in this group before the Committee today. Two are concerned with the regulation of chemicals and chemical products, and the third concerns the regulation of fluorinated gases and ozone-depleting substances. A common thread is that each one contains provisions necessary to implement the protocol on Ireland and Northern Ireland.

We have worked with the devolved Administrations on all three instruments and they have given consent. I confirm that all three instruments will be able to function with or without a deal with the European Union. I also confirm that all three instruments have been considered by the JCSI and that no issues have been drawn to the attention of the House.

The first instrument that I will cover is the Ozone-Depleting Substances and Fluorinated Greenhouse Gases (Amendment etc.) (EU Exit) Regulations 2020. The EU’s ODS regulation and F-gas regulation implement the Montreal protocol by controlling and reducing the use of ODS and HFCs, which are the main types of F-gas. Registration, licensing of production, imports and exports and quota limits underpin these controls.

The instrument will enable the UK to meet the requirements of the Northern Ireland protocol regarding restricting the use of ozone-depleting substances and fluorinated greenhouse gases, which I will refer to as ODS and F-gases from hereon. This will be done by making changes to existing EU exit legislation. The instrument also amends dates to prevent errors of law.

The Northern Ireland protocol requires that the EU F-gas and ODS regulations remain applicable to and in Northern Ireland. Northern Ireland will remain part of the EU’s systems. This means establishing quota systems for Great Britain that are separate from the EU systems. Producers or importers will require GB quota to place on the GB market, with businesses selling into Northern Ireland needing EU quota.

This instrument also introduces provisions to control the movement of F-gases and ODS between Great Britain and Northern Ireland. This movement will be deemed as imports or exports. Controlling such movement is vital to maintain the integrity of the GB F-gas and ODS systems, meet the Northern Ireland protocol requirements, and ensure UK compliance with its Montreal protocol obligations.

The instrument meets two key principles: first, to continue our contribution to UK climate ambition through complying with our Montreal protocol obligations; and, secondly, to impose the most light-touch measures that we can on the movement of goods between Northern Ireland and Great Britain while adhering to the Northern Ireland protocol and meeting our international obligations.

The previous SI, the Ozone-Depleting Substances and Fluorinated Greenhouse Gases (Amendment etc.) (EU Exit) Regulations 2019, as amended by this instrument, will transfer powers and functions previously held by European institutions to appropriate bodies in England, Scotland and Wales. The Scottish and Welsh devolved Administrations will have the competence to establish their own ODS and F-gas systems if they choose to do so in the future. They have also agreed in principle to the operation of GB-wide ODS and F-gas systems. The Secondary Legislation Scrutiny Committee highlighted this instrument given its impact on movement of goods between Northern Ireland and Great Britain.

I now move on to the Control of Mercury (Amendment) (EU Exit) Regulations 2020. This instrument makes amendments to the retained EU law to ensure that legislation which manages the control of mercury is operable at the end of the transition period. In addition, it reflects the requirements of the Northern Ireland protocol. This instrument revokes and replaces the Control of Mercury (Amendment) (EU Exit) Regulations 2019, as well as Regulation 8 of the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019. These provisions are now included in this instrument. Revoking the two SIs made in 2019 and remaking the provisions contained in those SIs in this instrument ensures that we do not have more than one set of amending legislation.

This instrument also amends the Control of Mercury (Enforcement) Regulations 2017. In addition, we will be introducing new procedural requirements for the transport of elemental mercury between GB and Northern Ireland and introducing a prohibition on the transport of specified products containing mercury between GB and Northern Ireland. There are currently no controls on the movement of these specified products containing mercury or elemental mercury between EU member states. These new requirements should prevent the uncontrolled flow of elemental mercury and the specified products containing mercury from the EU into Great Britain via Northern Ireland.

This instrument provides for the exercise, by the appropriate GB Minister, of a number of legislative functions currently carried out by the European Commission. These legislative functions were previously included in Regulation 8 of the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019. That instrument was debated in the House of Lords and House of Commons on 12 and 14 February 2019 respectively and agreed by both Committees.

Following the UK’s withdrawal from the EU, the retained EU legislation, as amended by this instrument, will continue to implement the UK’s obligations as a party to the Minamata convention and provide a regulatory framework for the management of mercury. Northern Ireland will continue to apply EU regulation 2017/852 to manage mercury in the environment.

This SI meets the Government’s commitment to the Northern Ireland protocol and ensures continued levels of protection for human health and the environment, as well as providing stability and continuity for business.

I turn to the third and final instrument, the Detergents (Amendment) (EU Exit) Regulations 2020, whose primary aim is to ensure that the UK meets its obligations under the Northern Ireland protocol in respect of Regulation (EC) No. 648/2004 on detergents—the EU detergents regulation. This has been done by amending the existing EU exit regulations on detergents, which are already in place.

I will highlight the key amendments that this instrument makes to the existing EU exit regulations. Noble Lords will not be surprised to learn that they are merely technical in nature. This instrument makes special provision for detergents in Northern Ireland in respect of qualifying Northern Ireland goods, creating a category of protected imports from Northern Ireland and enabling them unfettered access to the Great Britain market, while maintaining standards of protection for the environment and human health. The technical changes made by this instrument will give effect to the Northern Ireland protocol by ensuring that the EU detergents regulation, as it has effect in EU law, continues to apply in Northern Ireland, and that the amendments to the retained version of the EU detergents regulation extend to Great Britain only.

Trade from Northern Ireland to the rest of the UK should continue to take place as it does now—that is, there will be unfettered access, as provided for by the protocol. Therefore, at the end of the transition period, businesses in Northern Ireland may continue to place their goods in any part of the UK internal market without new restrictions.

In addition to these changes made to the existing EU exit regulations on detergents, this instrument amends the Detergents Regulations 2010—the domestic enforcement regulations on detergents—ensuring that the Northern Ireland enforcement authorities can continue to enforce the EU detergents regulation as it has effect in EU law, while the retained version of the EU detergents regulation can continue to be enforced in Great Britain. The changes made to the 2010 regulations will also have the effect of ensuring that the competent authority functions, currently exercised by the Secretary of State under the EU detergents regulation, will be exercised by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.

The Secondary Legislation Scrutiny Committee has considered and cleared this SI from scrutiny without comment. I assure Members of the Committee that the overarching aim of this instrument is to provide continuity for detergent businesses, to ensure that, following the end of the transition period, the high standards of human health and environmental safety will continue across the UK, and to reflect the obligations under the Northern Ireland protocol. I beg to move.

14:48

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, I will focus on mercury today, not because ozone-depleting substances, fluorinated greenhouse gases and indeed detergents are not extremely important but because mercury is so toxic and is in use for quite a number of developmental practices. I am quite concerned that it should be taken very seriously.

Exposure to mercury is a huge problem. There is a sort of global pool that moves around between air, water, sediment, soil and, of course, organisms, including ourselves. It is a highly toxic metal which causes significant harm to human health and to ecosystems. Of particular concern are the levels of mercury in seas and oceans, where mercury accumulates up the food chain and reaches humans in concentrated mass through the consumption of seafood—it has certainly put me off seafood. The most damaging human health impact is exposure of pregnant women and unborn children, with permanent impacts on brain function, so we absolutely have to take it seriously and make sure that we are doing as much as we can to render it safe.

The EU has taken the problem of mercury very seriously. It has implemented the legislation that we are discussing today and set Europe the goal of becoming mercury-free, which is quite an ambition. Is it the Government’s intention to continue to reduce our use of mercury to zero? When will the UK eliminate mercury usage entirely? Also, will the Government do something about it internationally? We have all read newspaper stories about children looking for gold and using mercury to separate the gold out, which is absolutely horrific. Perhaps it is done already—I do not know—but there is an argument for labelling all gold from that sort of production process “mercury gold” and explaining to people why perhaps they should not buy it. It is part of our role as an engaged nation to deal with this problem internationally. It is not something that we can turn our back on. Also, mercury-polluted sites can wash out into watercourses, where mercury is released into the air. What are the Government going to do to decontaminate mercury from the environment and remediate damaged ecosystems?

I hope that the Minister can answer my questions. If not, perhaps he will write to me.

14:51

[Lord Oates (LD)]

My Lords, I thank the Minister for the clarity of his introduction of these three sets of regulations and for outlining their intent. I also thank the noble Baroness, Lady Jones, for asking a number of important questions about the mercury regulations.

In many ways, these are technical amendments to ensure that our law continues to comply with the international obligations that we have signed up to, particularly the Ireland-Northern Ireland protocol, the Montreal Protocol on Substances that Deplete the Ozone Layer and the Minamata Convention on Mercury. I hope that we can all agree on the importance of upholding our international obligations now that the Government have stepped back from the idea of breaking international law in the internal market Bill. I hope that this episode proves a one-off aberration rather than a pattern of behaviour—although I should note that it has already caused us huge damage around the world and fundamentally undermined our ability to hold others to their international obligations. Nevertheless, at least we have stepped back from the brink.

Whether or not we disagree on that point, I think that we can certainly agree on the need to control the substances under discussion today. To that extent, I have no argument with the technical provisions included in the three sets of regulations, which are clearly necessary. However, the regulations give rise to questions about restrictions on the movement of goods within the United Kingdom, and fundamental questions about the application of the law of a foreign entity to the citizens of a part of the United Kingdom. The regulations confirm that Northern Ireland will remain within the EU market for fluorinated gases and ozone-depleting substances. Defra has confirmed that the controls would apply to the movement of all ODS gas, goods and trade between Northern Ireland and GB, including household fridges, air-conditioning products and aerosol sprays. This means that there would be checks at the GB/NI boundary—

14:53

Sitting suspended for a Division in the House.

14:59

[Lord Oates (LD)]

My Lords, the regulations confirm that Northern Ireland will remain within the EU market for fluorinated gases and ozone-depleting substances. Defra has confirmed that controls will apply to the movement of all ODS and F-gas goods and trade between Northern Ireland and Great Britain, including household fridges, air-conditioning products and aerosol sprays, and that this will mean checks at what it describes as the GB/Northern Ireland boundary. Can the Minister expand on the nature of the checks that will be required at the GB/NI boundary and say whether these will apply to both NI to GB and GB to NI movement, and whether export declarations will be required?

The Explanatory Memorandum also states that the regulations will provide for

“unfettered access of detergents and surfactants … from Northern Ireland into Great Britain.”

Can the Minister tell us whether there will be unfettered access of detergents from Great Britain to Northern Ireland? Will there be checks required, or any other limitations on the free movement of detergents within the customs territory of the United Kingdom?

The regulations also underline the fact that EU law will continue to apply in Northern Ireland in respect of the control of ozone-depleting substances and fluorinated gases and of detergents. Can the Minister tell us what role Parliament, and the Northern Ireland Assembly in particular, will have in scrutinising the EU law that will apply to our citizens? Should EU law change in these areas, is it the intention of Her Majesty’s Government to follow such changes in GB law, or will we diverge from the law in Northern Ireland? Given the Minister’s commitment to Brexit, I am sure that he will have considered the ramifications of the law of a foreign entity being applied to the citizens of a part of our country and will have given appropriate thought to how effective scrutiny of such law can be applied.

The Minister may be aware that this issue has been a cause of serious concern to Members of the House of Lords European Union Select Committee since the withdrawal agreement was signed. As recently as Friday 4 December, the chairman of that committee, the noble Earl, Lord Kinnoull, raised this issue once again in a letter to the Chancellor of the Duchy of Lancaster. In this letter he said:

“I want to stress that, with now less than a month to go until the protocol on Ireland/Northern Ireland becomes operational, the urgency of agreeing mechanisms for the scrutiny of the EU laws that will apply to Northern Ireland under the protocol is acute.”


Finally, I would be grateful if the Minister could cast some light on when the Government intend to address these issues and why the people of Northern Ireland are being treated so disrespectfully by them leaving it so late to put in place the necessary mechanisms to do so.

15:02

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the Minister for introducing these SIs this afternoon and for the helpful discussion that we were able to have beforehand.

I will look first at the ozone-depleting substances and fluorinated greenhouse gases regulations. The Minister has explained that their purpose is to implement the Northern Ireland protocol, specifically in relation to restrictions on the use of ozone-depleting substances and fluorinated greenhouse gases. As a result of the changes proposed by this instrument, as we have heard, two separate systems will operate in Northern Ireland and Great Britain after the end of the transition period, with controls on the movement of relevant gases, substances and equipment requiring checks between Northern Ireland and Great Britain. The noble Lord, Lord Oates, asked a number of questions in this area, and I am interested to hear the Minister’s response.

The department says that this approach is necessary to implement the protocol and to ensure that the UK remains compliant with its international obligations and can deliver its wider climate change commitments. What work has been carried out by the department on the potential practical impacts on trade between Northern Ireland and Great Britain?

This instrument amends a previous EU exit SI, rather than revoking and replacing it. There is an inconsistency in Defra’s approach to this legislation. Some instruments have provided an element of consolidation, but others have slightly muddied the waters. Look at the SIs in front of us today. Paragraph 3.1 in the EM for the new regulations for the control of mercury states that it is completely replacing the previous SI, whereas others are just adding to them. It would be interesting to get some clarification of the department’s thinking on the latest instruments we have been looking at.

Looking in more detail at the ozone-depleting substances regulations, we see that paragraph 2.8 of the EM notes that current Commission competences will be transferred to England, Scotland and Wales. Can the Minister confirm whether this will be a complete and like-for-like transfer of powers, or whether there are some areas which have been deemed surplus to requirements?

Paragraph 2.10 notes that the devolved Administrations can establish and operate their own systems if they want to, and the Minister referred to this in his introduction. What consultation was carried out with them and has the Minister had any indication of whether this is the direction they would like to take? If so, what kind of timescales are we looking at?

Paragraphs 10.1 and 11.1 mention the detailed technical guidance on how the ODS and F-gas systems will operate in GB after the end of the implementation period. Paragraph 11.1 explicitly states that this was due to be published in October. Can the Minister confirm whether this has actually happened, and, if so, when it was published? Has the promised engagement with industry now also been undertaken?

Finally on this SI, paragraph 14.1 confirms that the EU requirement for a review of the regulation by 2022 will be retained, with the Secretary of State and devolved Administrations to carry out this task, either together or separately. Does the Minister have any idea how long this process is expected to take and when it is likely to commence?

I turn to the control of mercury regulations. We have recently considered a number of SIs to implement the Northern Ireland protocol which have not raised any concerns in relation to trade between Northern Ireland and Great Britain. However, the noble Baroness, Lady Jones, drew attention to the extreme toxicity of mercury. Paragraph 2.7 of the EM outlines the new procedural requirements for products containing mercury to move between the two, including a prohibition on the movement of mercury-added products in both directions. I draw attention to this because it is a major departure from the current system, where products can move freely between EU members. Can the Minister give further detail about the department’s thinking in drawing up this new system?

Paragraph 10.2 states that the market for such goods is

“small and decreasing in size”

and that data indicates it will affect only a

“small number of imports per year.”

The Minister referenced in his introduction paragraph 10.3, which states that industry engagement suggests

“there is very little movement of any elemental mercury or mercury added products”

between Northern Ireland and Great Britain or between Great Britain and the EU. Does the Minister have an estimate of how many movements we are looking at? Does he see any practical problems that could arise from the approach being taken?

Finally, I turn to the detergents amendment. The Minister has already explained that, among other things, this instrument will allow the continued movement of detergents and surfactants from Northern Ireland to Great Britain after the end of the transition period. Paragraph 7.4 of the Explanatory Memorandum notes that while movement will be maintained, so will safeguard measures within Great Britain to protect human health and the environment. The SI also amends a couple of EU-derived regulations, as well as making minor amendments to previous exit SIs to ensure compatibility with the Northern Ireland protocol. We have no real concerns on this SI and are pleased to note that the devolved Administrations were given the opportunity to comment during the drafting of the proposals.

I look forward to the Minister’s response to my earlier questions.

15:09

[Lord Goldsmith of Richmond Park (Con)]

My Lords, as I said at the start of the debate, these instruments are necessary to make sure that the Northern Ireland protocol is implemented properly. They correct operability deficiencies necessary for the implementation of the protocol. They also respond to the Government’s commitment to unfettered access for Northern Ireland goods and help to make sure that we are fully prepared for the end of the transition period on 31 December. These instruments will also ensure that the UK continues to meet its international obligations for mercury as a party to the Minamata convention, and for fluorinated gases and ozone-depleting substances under the Montreal protocol. They will also ensure that we continue to maintain the high standards of biodegradability for detergents and surfactants. The contents of all three are low key and technical, but they are all essential to fulfil our obligations under the Northern Ireland protocol and they all contribute in their own way to the effective functioning of the internal UK market, and to the Government’s continued commitment to environmental protection.

I thank noble Lords for their contributions and questions. I will endeavour to answer as many of them as I can, starting with the noble Lord, Lord Oates. With his permission, I will not engage on the issue of the UK internal market Bill, as it is slightly off-topic, but I heard his comments and very much note them.

The noble Lord made a number of interesting and useful points. Broadly, on our intentions in relation to the Government’s application and maintenance of high standards in future, we have been clear that we will maintain the existing regulation of mercury and will continue to fulfil the UK’s commitments under the Minamata convention. This is an answer to a number of contributions: we will not look to diverge for the sake of it. In relation to detergents, the decisions we make will reflect what is best for the UK and the environment. In future, there may be some divergence over time between the GB and EU regimes, but that will be based on what is in our interest and on independent decision-making, and in the context of wanting to maintain the highest possible standards. Having the freedom to make our own decisions based on the science that we have and tailored to the needs of our businesses categorically does not mean reducing standards in any meaningful sense at all, as we have made clear.

In relation to our global obligations, the UK in its entirety is obliged to comply with the obligations set out under the UN Montreal protocol. Those obligations relate primarily to consumption controls. From 1 January, compliance will be achieved by controlling consumption within Great Britain through licensing and quotas, and by maintaining oversight of consumption in Northern Ireland, which will be controlled through the EU F-gas and ODS regulation. The UK will report to the UN Ozone Secretariat on UK annual consumption.

The noble Lord asked about the border and how movements and transactions will be monitored and how enforcement will take place. As he would expect, there will be close co-operation between the UK, Scottish and Welsh Governments in the operation of the GB system, and continuous dialogue of course with Northern Ireland. Officials of the Administrations, including Northern Ireland for UK-level matters, are working on the UK common framework for F-gas and ODS, which will set out the arrangements for co-operation, including the governance arrangements, decision-making and dispute resolution procedures.

In no particular order, because I have managed to write the questions down in no particular order, I will address some of the important points raised by the noble Baroness, Lady Jones. She raises the issue of the toxicity of mercury, and mentioned a story that I do not think I have read about children in Ghana. There are many such examples, and the problem is not limited to Ghana. Illegal mining takes place throughout parts of the Amazon, particularly Colombia, where the effects on the water systems and the health of people, including young children, are abhorrent. It is a really toxic, destructive and dangerous substance. She rightly said that the EU had taken the issue of mercury seriously, and the UK has absolutely been part of that; indeed, the UK has been a leading voice in maintaining standards at the appropriate level. We will remain strongly committed to the effective and safe management of chemicals to protect both the environment and the public, and that will not change after the transition period. We will continue to implement decisions made internationally under the Minamata convention, on which this legislation is based.

The noble Baroness asked when the UK will eliminate mercury usage entirely. Use of mercury in dental amalgam is an issue that often comes up; that will continue to be the main use of mercury in the UK. I am told that the UK Chief Dental Officers are considering how to reduce the use of dental amalgam, as laid out in the national plan to phase down the use of dental amalgam, published in June last year. I admit that this is not an area that I have followed closely in terms of their plans for the future but, like her, I hope that they take a very enthusiastic and bullish approach to minimising, and eventually eliminating, exposure to mercury.

The noble Baroness asked what the Government are doing internationally to end the use of mercury. The UK is a party in its own right to the Minamata convention and will continue to uphold and fulfil our obligations under it, which includes reducing man-made emissions to the environment. Existing legislation has driven down the use of mercury significantly. We have seen emissions of mercury to air decline by 90% in the last 30 years. A commitment to further reduce land-based emissions of mercury to air and water by 50% by 2030 is set out in the Government’s 25-year environment plan, to which we are very much committed.

The last point the noble Baroness raised was on mercury-polluted sites and what we can do to clear them up. I point out that, technically, it is the responsibility of the local authorities to identify and prioritise contaminated land remediation where there is an unacceptable risk to health and the environment as under Part 2 of the Environmental Protection Act, but Part 2 also outlines the “polluter pays” principle regarding contaminated land remediation. This is very much a central theme in the Environment Bill, which will shortly come to the House. Applied rigorously and properly, and robustly enforced, the “polluter pays” principle would create a strong lever to prevent those responsible for mercury releases from doing so. The only way to ensure that in future we will see less of this kind of pollution will be through turning that pollution into a very serious financial liability. That is what the “polluter pays” principle does, and for as long as I am Minister, I want to enforce and press it very firmly.

I turn to the points raised by the noble Baroness, Lady Hayman. I thank her for her time earlier, when we chatted through some of these issues and she raised some of her concerns. I will have to whizz through this, but I will try to get through it.

This SI amends the previous EU SI, but the noble Baroness asked whether there are any surplus elements—is it amended, revoked or revised? The previous exit SI will remain in place, but it is amended by this SI to implement the protocol on Northern Ireland/Ireland. The SI also amends dates in the previous EU SI that fell before the end of the implementation period to prevent errors of law. The noble Baroness asked whether the transferral was like for like or whether there are any changes in relation to paragraph 2.8. The transfer of functions is, as she asks, like for like, or at least it is as like for like as is feasibly possible. There will be some changes to account for differences in the UK and EU processes—for example, EU references to “implementing acts” have been replaced with references to “regulations”—but it is effectively like for like.

The noble Baroness asked whether the devolved Administrations are likely to set up their own systems. The Scottish and Welsh Governments have agreed in principle to GB-wide systems administered by the Environment Agency. This will involve devolved Ministers consenting to various functions being administered on their behalf by the Secretary of State and directing the Environment Agency to administer certain regulatory functions. At this stage, the DAs have not expressed any plans to establish and operate their own systems, but they will have the power to do so, if they so choose.

The noble Baroness referenced paragraphs 10.1 and 11.1 on technical guidance and asked when it will be published, or indeed if it has. It was published on 15 October and was shared with stakeholders, and it can be found on the government website.

In reference to paragraph 14.1, the noble Baroness asked how long the process will take and when it is likely to start. We plan to formally launch the review process early in 2021 and we envisage that it could take between 12 and 18 months. However, in any case, we have to publish a report following the review no later than by the end of 2022.

I am out of time—my apologies. I will write to the noble Baroness with answers to the remaining questions.

Motion agreed.

Control of Mercury (Amendment) (EU Exit) Regulations 2020

Wednesday 9th December 2020 Grand Committee

Considered in Grand Committee

15:19

Moved by

[Lord Goldsmith of Richmond Park]

That the Grand Committee do consider the Control of Mercury (Amendment) (EU Exit) Regulations 2020.

Motion agreed.

Detergents (Amendment) (EU Exit) Regulations 2020

Wednesday 9th December 2020 Grand Committee

Considered in Grand Committee

15:19

Moved by

[Lord Goldsmith of Richmond Park]

That the Grand Committee do consider the Detergents (Amendment) (EU Exit) Regulations 2020.

Motion agreed.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

The Grand Committee stands adjourned until 3.45 pm. I remind Members to sanitise their desks and chairs before leaving the Room.

15:20

Sitting suspended.

Arrangement of Business

Wednesday 9th December 2020 Grand Committee

Announcement

15:46

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the hybrid Grand Committee will now resume. Some Members are here in person, respecting social distancing, and 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 microphone system for physical participants has changed. Your microphones will no longer be turned on at all times, in order to reduce the noise for remote participants. When it is your turn to speak, please press the button on the microphone stand. Once you have done that, wait for the green flashing light to turn red before you begin speaking. The process for unmuting and muting for remote participants remains the same.

Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020

Wednesday 9th December 2020 Grand Committee

Considered in Grand Committee

15:47

Moved by

[Lord Goldsmith of Richmond Park]

That the Grand Committee do consider the Hazardous Substances and Packaging (Legislative Functions and Amendment) (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, the Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020 and the Waste and Environmental Permitting etc. (Legislative Functions and Amendment etc.) (EU Exit) Regulations 2020 make small but important changes to ensure that our existing domestic legislation reflects that the UK is no longer part of the EU. Both instruments take power back from the European Commission, which will allow the UK to maintain its high environmental standards. The instruments require the Government to carry out a public consultation before using these powers.

I will take each instrument in turn. The Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020 cover two different subject areas: first, regulation of hazardous substances in electrical and electronic equipment, or EEE; and, secondly, regulation of essential requirements for packaging—that is, the requirements producers need to fulfil if they place packaging on the market, such as manufacturing and composition requirements.

Hazardous substances in EEE are regulated by the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012—the so-called RoHS regulations, which implement an EU directive, the RoHS directive. This instrument transfers to the Secretary of State powers currently held by the European Commission under the RoHS directive. After the end of the transition period, these powers will allow the Secretary of State to grant, renew or revoke exemptions to the restriction of hazardous substances in electrical and electronic equipment as specified in the RoHS regulations. Exemptions allow the use of restricted hazardous substances above threshold limits for specific uses, such as solders in medical equipment. The Secretary of State will also be allowed to amend the list of restricted substances and maximum concentration values, and to prescribe detailed rules for complying with maximum concentration values.

These powers will apply in England, Wales and Scotland, but not in Northern Ireland. This is because the RoHS directive will continue to apply in Northern Ireland after the end of the transition period due to the Northern Ireland protocol. These changes are vital, as the instrument will allow the Secretary of State to make important decisions on RoHS.

The instrument also amends the RoHS regulations and the Packaging (Essential Requirements) Regulations 2015. It amends both those regulations separately for Great Britain and for Northern Ireland.

The amendments to the RoHS regulations for Great Britain introduce key measures to ensure a smooth end to the transition period for businesses placing manufactured goods on the GB market. These include transitional provisions for importer labelling to provide a 24-month period in which importer details can be provided on accompanying documentation, and a similar transitional provision for the application of the new UK marking, which will replace the European Union’s CE marking. This will provide businesses with more time before undertaking relabelling.

The instrument also ensures that, except for qualifying Northern Ireland goods, the automatic recognition in Great Britain of EEE meeting EU requirements will expire 12 months after the end of the transition period. It amends both the RoHS regulations and the Packaging (Essential Requirements) Regulations to make provision for access for “qualifying Northern Ireland goods” to the GB market.

Finally, the instrument amends the RoHS regulations and the Packaging (Essential Requirements) Regulations separately for Northern Ireland. The amendments applying in Northern Ireland are more limited. They are to reflect that the RoHS directive and the packaging directive will continue to apply in Northern Ireland, though not the rest of the United Kingdom, by virtue of the Northern Ireland protocol. They will allow the UK to meet its obligations under the Northern Ireland protocol relating to packaging and RoHS.

We have ensured that the changes for Northern Ireland are as minimal as possible, while also allowing the UK to fulfil its obligations under the Northern Ireland protocol. However, there are some unavoidable costs for businesses as a result of the amendments to the RoHS regulations, including familiarisation and new labelling costs.

No impact assessment was prepared for the instrument as any costs to, or benefits for, businesses, charities and voluntary bodies were predicted to fall below £5 million in one year.

This instrument is reserved as it covers specific technical standards and requirements on all businesses in relation to products, which is a reserved matter under all three devolution settlements.

I turn to the second instrument, the Waste and Environmental Permitting etc. (Legislative Functions and Amendment etc.) (EU Exit) Regulations 2020. This instrument includes a mixture of devolved and reserved content. We have worked with the devolved Administrations on this instrument and it has received consent from Scottish and Welsh Ministers, but DAERA Ministers have decided not to provide consent on this SI. However, given that time to make this SI is now short and the overriding need to provide certainty for businesses at the end of the transition period and to discharge our protocol obligations, we are proceeding with debating this SI without consent. We will continue to work closely with the Northern Ireland Executive in the coming days to resolve outstanding concerns in advance of making this SI.

This is a technical instrument that makes small but important changes to existing legislation so that it refers to the latest versions of the EU directives and domestic regulations as amended by the EU circular economy package. These are small changes but they will ensure that legislation relating to waste and environmental permitting can be properly enforced by the Environment Agency and its devolved counterparts.

The instrument also makes some small technical amendments to provisions of earlier EU exit SIs that amend domestic legislation relating to batteries, and it changes the extent of amendments in an earlier EU exit SI to the restriction of the use of certain hazardous substances regulations and the Packaging (Essential Requirements) Regulations so that they do not extend to Northern Ireland. These changes are needed to reflect that the directives that those regulations implement will continue to apply in Northern Ireland but not in Great Britain, as a virtue of the Northern Ireland protocol.

In practice, we have kept the GB and NI requirements exactly the same for batteries on the ground that there will be no changes to how batteries are collected, treated and recycled. The requirements for batteries reaching market in the first place will also remain exactly the same. This instrument simply ensures that the correct references are in place depending on whether the legislation applies in GB or Northern Ireland.

The SI also transfers the European Commission’s powers related to Article 7(1) of the waste framework directive. This power is being transferred to the Secretary of State and the devolved Administrations. This power will allow the Secretary of State and the devolved Administrations to establish their own lists of waste or to amend the existing list of waste as it becomes part of retained EU law after the end of the transition period. The list of waste gives identifying codes to different categories of waste, which are used by waste management businesses, and specifies which categories of waste are to be treated as hazardous waste. The Secretary of State will need the consent of the devolved Administrations to make amendments to the list of waste on their behalf.

The schedule to this instrument revokes some recent EU decisions or regulations. These revocations are either to tidy up our statute book or because we should no longer be bound to those decisions after the transition period ends—for example, because they specify formats for reporting data to the European Commission, which the United Kingdom will cease to do at the end of the transition period. I beg to move.

15:55

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I thank the Minister for his very clear explanation. I will focus primarily on the first of these two instruments, although I express concern that, as he has just told us, there is not full devolved consent to the second one. I hope that can be resolved very quickly.

I begin with the department’s response to the submission from ClientEarth to the Secondary Legislation Scrutiny Committee, specifically on the point about the transferring of the competent national authority position in England. The departmental response says that the Environment Agency will continue to act as the competent authority.

I note that in October this year, just a couple of months ago, the chair of the Environment Agency called for greater funding from the Government to help the enforcement body to better prevent pollution—the issue that this SI addresses. In response to an article published in the Times on 24 October which reported that there had been a sharp rise in serious breaches of pollution rules designed to protect people and wildlife, the chair of the Environment Agency said in a Defra blog:

“We constantly innovate to do more with less. But ultimately we will get the environment we pay for. A core part of that is funding the Environment Agency properly. The government has an opportunity to do that in this year’s spending review. We hope it will.”


I have checked the spending review documents and, so far as I can see, there is none of the extra funding that has been asked for—you might say begged for—but I would be delighted if the Minister could tell me I had missed something. It would have to be a very big offering in the spending review, given that in March a report on Greenpeace’s Unearthed blog revealed that a surge in pollution incidents driven by climate change was “overwhelming” the staff. That came on top of data showing that teams tasked with responding to pollution incidents have seen their numbers decline by 15% since 2015.

All the SIs that we are debating now seem to create extra responsibilities and extra work, so the question is where the resources are going to come from, given that we have a huge regulatory gap already. I note the invaluable report in 2019 by the Institute for Environmental Management and Assessment, in coalition with 19 other organisations. It revealed that funding for 10 environmental and social regulators fell by 50% on average between 2009 and 2017 in real terms, with the Environment Agency budget down by 62%. The total number of full-time staff working at these regulators was down by 30% over the period, with spending by local authorities and fire authorities down by 35%. Before these regulations and before the end of the transition period, we had, however limited it may have been, oversight through the EU and, as ClientEarth has successfully used, the legal mechanisms through that.

The departmental response said that once the office for environmental protection is established and functioning, it will take over these roles. That is a debate for another day, but it highlights the importance of the independence and funding of that body, as a crucial body in maintaining our environmental health in the UK. In the meantime, as ClientEarth put it, we will have the Government regulating themselves. We have a period of uncertainty—a hiatus, rather like we have in your Lordships’ House’s Forthcoming Business at the moment.

Since we have just had a report from the Environmental Audit Committee, I want to turn to the broader issue of electronic waste in general. In this very Committee last week I referred to a need for a right to repair, as the committee in the other place has done. The report notes that the UK creates the second highest level of electronic waste in the world after Norway—we are almost world-leading, but not, I hope, in a way that the Government would intend. A lot of the electronic waste that these regulations refer to currently goes to landfill or incineration, and some 40% of it is dumped overseas. The MPs on the committee noted that the Environment Agency was again not doing nearly enough to monitor where that waste was going and how often it was going abroad illegally.

The committee also noted the fact that we have online retailers making massive profits but not taking responsibility for the products they get those profits from. I have so many things to mention that I am going to run out of time.

Finally, if we are to be practical, let us bring this down to earth. Here in Sheffield, where I am talking to noble Lords from, there are no bins in local areas for electronic waste. There are no bins that you can walk to and put electronic waste in. There is no range of bins in supermarkets and hardware stores, as there is in many parts of the continent, where electronic waste, such as light bulbs, can be deposited. Here, we are dealing with the detail, but I ask the Minister to make sure that the Government consider the huge and wide-ranging problem—the tsunami, as the Commons committee described it—of electronic waste, which we must deal with and get a grip on very soon.

16:00

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am delighted to follow the noble Baroness, Lady Bennett. I agree with much of what she said. My understanding is that the changes introduced by my noble friend in these two welcome SIs are part of the circular economy; obviously, that rationalises waste disposal, so it would be a good thing.

I want to make a general comment to my noble friend in thanking him for introducing these regulations. We are coming to the end of multiple statutory instruments over a period of two or three months. His department has borne the brunt of them, so I thank him and our noble friends Lord Gardiner and Lady Bloomfield for all their work. I also thank the team of officials at Defra for preparing for these measures and bringing us to this place.

I have a couple of questions. One is a general question relating to both sets of regulations. My noble friend said that a period of consultation would be held before the powers laid out in the regulations came into effect. Can he explain what form that consultation will take? Will it be a proper consultation period of at least two months? Also, will he undertake to publish all responses to the consultation in full so that those of us with an interest can see whether there are any issues pertaining to it?

In paragraph 62 of its 32nd report, the Secondary Legislation Scrutiny Committee mentioned that it

“received a submission from ClientEarth which raises concerns about a potential lessening of consultation requirements and a weakening of the objective to protect human health and the environment.”

Against that background, in what circumstances would the protections be changed? Can my noble friend give the Committee an undertaking that the objective would not in any way seek to compromise the protection of human health and the environment? I know how much he cares passionately for the environment so I am sure that he will confirm that that is not the case, but ClientEarth raised this issue during the committee’s scrutiny so it is worthy of a response.

On the waste and environmental permitting regulations, my noble friend said that DAERA had not given its consent. He went on to say that, when the amendments are brought forward under the powers set out in these regulations, the department would need the consent of the devolved Administrations to bring these powers into effect. If DAERA continued to withhold its consent, what would happen? Could it simply not bring these regulations into effect in Northern Ireland? Finally, can he share with us the reason why DAERA has been unable to give its consent to date?

16:04

[Lord Mann (Non-Afl)]

My Lords, I shall restrict my comments to the changes in the waste and environmental permitting regulations. I have questions for the Minister relating to assurances—even guarantees—on crossover and legacy issues.

I have spent a disproportionate amount of my life over the past five years dealing with orphan waste sites and the inability of the British state at every level to get on top of the problem. It is a nationwide problem. It manifests in public when orphan waste sites are set alight, with spectacular fires and consequential dangerous pollution leading to the evacuation of commercial and domestic premises for rational safety purposes. I have looked at this issue in detail; there is nobody at any level in the Environment Agency whom I have not had visit at least one orphan waste site, including one that I am very familiar with and live not too far from.

I note that, in most parts of the country, five authorities are responsible: district councils, county councils, the Environment Agency, HMRC—because of the landfill tax—and the Crown Estate, which, if a site is orphaned, then owns it. That is five arms of governance dealing with one problem.

The problem is not straightforward to deal with but straightforward to understand. Hazardous waste is moved around sites, usually at night. The sites are permitted but no one is sure what exactly is on them. When the authorities catch up with it, the hazardous waste moves to another site; or, when it reaches the culmination of the cycle of illegal movement, the owners of the site—the permit holders—disappear. They vanish. The site becomes orphaned and, by law, ends up in the ownership of the Crown Estate, which sees it not as an asset but as a liability and waits on others to find a way to sort out its liability.

The waste therefore remains with no one agency able to have total power of responsibility for removing it; it is a shared responsibility. If two-tier authorities, with district councils and county councils plus the Environment Agency, manage to negotiate with HMRC an important agreement that landfill tax could be removed—that is 85% of the cost of the removal of hazardous waste—that itself does not bring a site back into productive use for waste or other purposes.

At some stage, the Minister needs to crack this problem. Perhaps he could crack a few heads together and simplify the system, for better or for worse, and ensure a clear designation of ownership of the problem. There will never be a resolution with it split between five arms of the state. The roundabout will carry on going on.

Specifically and importantly on the regulations before us, and this is a key reason for my speaking, I have noted how the law has been carefully manipulated over the past few years in many parts of the country to avoid problems and to allow re-permitting. Are there any legacy or crossover issues in relation to this change that would allow an operator to have ongoing investigations ignored when it comes to application of the new legislation, which itself might be a rationale given to allow re-permitting, and therefore the continuation of the cycle, even of the same operators whose practices have appeared incredibly dubious in the past but were not criminally prosecuted? How will those legacy crossover issues be dealt with? Are they an issue? If they are not, that would be reassuring to know, because many investigations go back many years—I could cite some that go back more than two decades in terms of the evidence base required. Is there any risk therefore in this change of unforeseen circumstances that could give the illegal or inappropriate operator powers that the Government would not wish them to have?

16:10

[Lord Bhatia (Non-Afl) [V]]

My Lords, this SI has been prepared by the Department for Environment, Food and Rural Affairs. It transfers legislative functions currently conferred on the European Commission by directive 2011/65/EU of the European Parliament and the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment to be exercisable instead by the Secretary of State in relation to England, Wales and Scotland after the end of the EU exit transition period. The directive requires member states to ensure that electrical and electronic equipment placed on the market does not contain certain hazardous substances.

The legislative powers conferred on the Commission by the RoHS directive are transferred into domestic law so that the list of restricted substances in EEE may be amended following reviews, and exemptions may be granted, renewed or revoked by secondary legislation. The SI transfers powers under the RoHS directive currently held by the European Commission to the Secretary of State in relation to England, Wales and Scotland. There is bound to be an impact on businesses. Can the Minister explain whether those who breach the guidelines will be fined and, if so, up to what level?

16:12

[Baroness Bakewell of Hardington Mandeville (LD)]

I thank the Minister for his introduction in setting out these two statutory instruments. As he said, they make minor adjustments to enable the Secretary of State to carry out functions relating to packaging and restriction of certain hazardous substances in electrical and electronic equipment.

The Explanatory Memorandum to the Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations is bland and reassuring. However, the instrument is full of detail and percentages relating to some very hazardous substances such as cadmium, mercury and lead, and the uses to which they are put. While this is alarming, there is no change to the use to which the substances are put; it is only to who will be responsible for licensing.

Paragraph 12.3 of the Explanatory Memorandum states that minimal costs are involved in changing labelling and packaging for business, charities and voluntary bodies—these are stated to be below £5 million, which I am sure is the case. However, given the severe impact of the Covid epidemic, particularly on charities and voluntary bodies, I wonder whether this might be the last straw for some that have suffered severe loss of income during the past year. Taking this into account, will the Government consider covering the cost of repackaging and relabelling to comply with the law for those who are not businesses but who would find the cost unsustainable?

The Waste and Environmental Permitting etc. (Legislative Functions and Amendment etc.) (EU Exit) Regulations 2020 also deal with classification of what is deemed hazardous waste material. It will be important for the Secretary of State and the devolved Administrations to be able to make legislation that is appropriate for each authority once power has passed from the EU to the United Kingdom. Consultation between the devolved Administrations and the Secretary of State on any proposed modifications to the directives will be essential, otherwise confusion will ensue.

Paragraph 6.3 of the Explanatory Memorandum refers to the list of EU directives on waste management in Statutory Instrument 2019/188. Having looked this up, it all came flooding back to me, as we debated this last year. I remember particularly the issue of end-of-life vehicles.

As we begin the transfer to wholly electric vehicles, a significant number of petrol and diesel-driven vehicles will need to be disposed of. All will have components classed as waste, including batteries, which are classed as hazardous waste. The volume of these vehicles is such that scrap yards are likely to be extremely busy. Much of their business is around reclaiming parts that are then sold on to owners looking to repair their vehicles. As the number of petrol and diesel vehicles diminishes, this trade in spare parts is also likely to diminish. The noble Baroness, Lady Bennett, referred to the volume of electronic device waste. It would be somewhat unfair of me to ask the Minister whether the Government have made any plans to deal with the sheer volume of vehicles needing to be scrapped as we move to electric, but perhaps he could write to me with an answer.

Apart from that, I am content with this statutory instrument, which merely replicates current EU legislation and makes only minor amendments, such as replacing “exit day” with “IP completion day”. I look forward to the Minister’s response to this short debate.

16:17

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the Minister for introducing these SIs this afternoon and for our helpful conversations this morning. I shall speak first to the hazardous substances and packaging regulations 2020. As we have heard, these draft regulations propose to transfer the legislative functions from the European Commission to the Secretary of State in relation to England, Scotland and Wales after the end of the transition period. The instrument also proposes changes to help ensure that the UK meets its obligations under the Northern Ireland protocol.

The Minister referred to paragraph 12.3 of the EM, which states:

“An Impact Assessment has not been prepared for this instrument because no significant impact on business, charities or voluntary bodies is foreseen”.


But this is an important transfer of powers. Paragraph 12.1 of the EM states:

“There will be an impact on business.”


So there is an impact on business, but there is no impact assessment because no impact is foreseen. It would be helpful if the Minister could clarify what assessment has been done of an impact and how severe it is.

Paragraph 2.4 of the EM states that allowing future changes to the list of restricted substances, exemptions and so on by secondary legislation is appropriate because it will enable changes,

“of a technical nature, to be made in a timely and proportionate manner.”

While it may be appropriate for most technical changes to be made in this way, will the Minister commit to ensure that there is appropriate scrutiny of any future SI that may make more substantive changes?

Paragraphs 10.1 and 10.2 of the EM mention “regular discussions” between the relevant departments and agencies. How regular have such discussions been? Is there a need for ongoing discussions beyond the end of the transition period and, if so, would they take place regularly or just on an ad hoc basis where necessary?

The department has also stated that it is “the Government’s intention” to carry out public consultation. The noble Baronesses, Lady Bennett and Lady McIntosh, both mentioned ClientEarth’s concerns about a potential lessening of consultation requirements and a weakening of the objective to protect human health and the environment. Can the Minister confirm that a public consultation—including seeking the views of environmental groups—will be carried out when the list of substances is amended? Can he provide any information as to when this may start and the length of consultation we are looking at? As others have asked, can he also confirm that the power to amend the list of substances will not be used to weaken environmental protection?

The EM also outlines the cost implications of these changes, which the Minister and others have mentioned, particularly of new labelling requirements. What kind of window will there be for adjustment to the new requirements? In the case of GIs on food products, an earlier SI said that the UK label and logo would not become fully operational for three years. The noble Baroness, Lady Bakewell, mentioned the fact that the Covid-19 pandemic has caused many businesses financial difficulties. Could the Minister see whether the Government can provide support to businesses during this transition period to the new system?

The second instrument, the waste and environmental permitting regulations, is much lengthier and amends a variety of existing EU exit SIs, both to correct deficiencies and to bring legislation up to date following recent developments in EU law, and again to implement the Northern Ireland protocol. The Schedule is a lengthy list of revocations—14 in total. These are briefly referenced in the Explanatory Memorandum, but there is no justification or explanation for them. I know that the Minister gave some clarification of the reasons behind these revocations during his introduction, but it would be useful to have more detail in the document as to the reasons. Is it because the measures being revoked are unnecessary in the context of us having left the EU, or, if they are necessary, are provisions being found elsewhere? That is just so we have a proper understanding of the reasoning behind this.

As a final piece of clarification, the third bullet point in paragraph 7.1 of the EM notes that some legislation that provides for EU directives has been superseded by the circular economy package, meaning that

“The opportunity has also been taken, in a few places, to simplify provisions”.


Can the Minister confirm what practical changes, if any, will come through from those changes?

16:22

[Lord Goldsmith of Richmond Park (Con)]

I thank noble Lords who have contributed to the debate. As we look forward to the transition period ending, it is essential that our legislation reflects this new future. I will do my best in the time allowed to address the questions put to me. I will do so in no particular order.

The noble Lord, Lord Mann, raised the important issue of legacy or cross-over issues. He wanted reassurance that no issues can arise where prosecutions have been ongoing regarding orphan sites. I reassure him that nothing in the SI will lead to investigations or prosecutions related to orphaned waste sites, or any other type of waste crime, being paused, discontinued or otherwise disrupted. I hope that answers his question. I am happy to continue that discussion afterwards if it does not.

The noble Baroness, Lady Bakewell, raised a number of issues relating to the influx of old cars that will need to be dealt with following the new rules coming into play in 2030. On end-of-life vehicles, regulations already exist that place the financial cost of proper disposal in the hands of manufacturers. Currently, more than 90% of an average vehicle by weight is recovered or recycled. However, we plan to review the existing requirements, and in doing so will take into account the impact of the move to electric vehicles.

The noble Baroness also talked about the Waste Electrical and Electronic Equipment Regulations. We are reviewing those regulations with a view to driving up reuse and recycling, and to encourage better ecodesign to ensure that manufacturers and retailers, including online marketplaces and distance sellers, take full responsibility for the waste that they generate. That is a theme that runs through the Environment Bill: putting the onus, wherever possible, on producers not consumers.

I will briefly address some issues raised by the noble Baroness, Lady Bennett of Manor Castle. She referenced in particular the concerns raised by ClientEarth. I will say absolutely confidently and clearly on the record that the Government will not seek to lessen or weaken the protection of the environment through any future amendments to the RoHS regulations. Incidentally, if there were any changes, they would be subject to public consultation. When exercising powers under Regulation 5 of the Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020, the Secretary of State is bound by Regulation 8(1) to undertake a consultation before making regulations.

The noble Baroness mentioned the importance of the new OEP, which will come to life following the successful passage, one hopes, of the Environment Bill. She is absolutely right that the OEP has an extraordinarily important job to do. It needs to retain its independence, to be free from ministerial interference and to be sufficiently resourced. That is very much my view and that of the Government.

I scribbled down “producer responsibility”, but I think that I have already covered that. I will make the general point that that is probably the single most effective way we have to minimise waste generally, both in electrical goods and outside of them.

The noble Baroness also asked about maintaining current standards to protect consumer health, but also to protect the environment. The Government remain completely committed to ensuring that the level of protection afforded to consumers against unsafe or non-compliant goods is not in any way diminished now that the UK has left the European Union. Through our own regulatory regime, we will continue to seek to ensure that products are safe for consumers, compliant with Great Britain and Northern Ireland rules, and environmentally sustainable, with the smallest possible impact.

The noble Baroness, Lady Hayman, raised a number of issues, and I thank her for calling me earlier to discuss some of them. Incidentally, I am grateful to her for her support. She cited paragraph 12.1 of the Explanatory Memorandum, where, she says, she has spotted a contradiction as to whether this will have an impact on business. To be clear, the withdrawal agreement Bill set out an impact assessment on the provisions governing the UK’s exit from the EU, including the terms of the Northern Ireland protocol. This SI is the detailed implementation of that policy, which has already been assessed by that impact assessment. Therefore, no new burdens need to be assessed in that regard.

The noble Baroness asked how the SI will be enforced for restricted substances and how we are making sure that any changes to the list of restricted substances are properly scrutinised. The SI will be enforced by the Office for Product Safety and Standards on behalf of the Secretary of State. Any changes to the list of restrictions will be subject to a public consultation. The noble Baroness asked whether I will commit, on behalf of the Secretary of State, to a public consultation before making any changes to the list of restricted substances. The Government will not seek to lessen or weaken the protection of the environment through any future amendments to the RoHS regulations. However, any changes would absolutely be subject to consultation —that would happen.

The noble Baroness asked about a number of other issues. She asked what transitional measures we are putting in place. New regulatory regimes will be ready to come into force immediately after the end of the transition period. However, under exceptional circumstances as a result of the Covid-19 pandemic, we are now giving businesses more time to get ready to operate new UK rules, including a 24-month transition period for the application of the new UK marking, which will replace the European Union’s CE marking. During this period, importer details can be provided on accompanying documentation.

A number of noble Lords have raised the issue of supporting business through this process. As well as providing certainty for businesses about requirements, this SI provides transitional measures to help minimise the costs arising from uncertainty and to give businesses additional time, as I mentioned earlier. Additionally, this SI will ensure unfettered access for Northern Ireland to the rest of the UK, which means no new regulatory checks, customs checks or additional approvals for Northern Ireland businesses to place qualifying goods on the GB market.

The noble Baroness asked me to clarify—I hope I am getting the right Peer—how the EU circular economy package is relevant to this SI and what practical changes it involves and so on. We have had to amend our previous EU exit SIs from 2019 as the underlying EU and domestic legislation to which they related has since been amended by the EU circular economy package. In order to become up to date, we have had to revisit some of those SIs. That means that the technical references in the previous SIs are no longer relevant and no longer work. This SI rectifies that problem, as other SIs have, and ensures that our legislation will be fully operable at the end of the transition period. I was going to give examples of that, but in the interests of time, I shall move on.

The noble Lord, Lord Bhatia, talked about the importance of safeguarding environmental and health standards and the importance of minimising waste generally. I think I have covered most of those issues in previous answers, and I hope he is satisfied by that. If not, again, I am very happy to continue that discussion after this debate.

My noble friend Lady McIntosh asked a number of questions about the consultation. She asked whether any consultation would be published in full. She mentioned the EAC inquiry, and I can tell her that we will be responding in full to the EAC. I am afraid that I do not have a date, but I am assured that it will be early next year. She also spoke of the concerns raised by ClientEarth. Just to reiterate, Regulation 8(1) requires the Secretary of State to carry out consultation before making the kinds of changes that have been cited by ClientEarth as areas of concern. I hope that reassures my noble friend.

My noble friend also asked what kind of consultation had been carried out and with whom. Industry and local authorities were not consulted during the development of both SIs because of sensitivities surrounding the protocol. However, discussions were held with the Department of Agriculture, Environment and Rural Affairs, the Northern Ireland Environment Agency, the Scottish Government, the Scottish Environment Protection Agency, the Welsh Government, Natural Resources Wales, the Environment Agency and the Office for Product Safety and Standards. Those discussions led to the approach implemented in this SI. The changes to the RoHS regulations implemented by these SIs are consistent with the Government’s approach to implementing the Northern Ireland protocol.

I am seconds away from being out of time and I am pretty sure that I have not answered all questions. My noble friend asked in what circumstances would objectives be changed—the implication being, in what circumstances would we be willing to lower environmental health standards? The answer is that we are not willing to compromise on environmental health. That is a rule and a principle to which we are absolutely committed.

I hope that I have covered most of the questions. To conclude, I trust that noble Lords understand and accept the need for these instruments—I think that is the message that we have received. They make small but important changes to existing legislation and make amendments to the legislation relating to RoHS, packaging and batteries so that the UK complies with the Northern Ireland protocol. We have tried to minimise the impact of this on business where possible. Once again, I thank noble Lords for their contributions and support today.

Motion agreed.

Waste and Environmental Permitting etc. (Legislative Functions and Amendment etc.) (EU Exit) Regulations 2020

Wednesday 9th December 2020 Grand Committee

Considered in Grand Committee

16:33

Moved by

[Lord Goldsmith of Richmond Park]

That the Grand Committee do consider the Waste and Environmental Permitting etc. (Legislative Functions and Amendment etc.) (EU Exit) Regulations 2020.

Motion agreed.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

The Grand Committee now stands adjourned until 5 pm. I remind Members to sanitise their desk before they leave.

16:34

Sitting suspended.

Arrangement of Business

Wednesday 9th December 2020 Grand Committee

Announcement

17:00

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (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 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 microphone system for physical participants has changed. Your microphone will no longer be turned on at all times, to reduce the noise for remote participants. When it is your turn to speak, please press the button on the microphone stand. Once you have done so, wait for the green flashing light to turn red before you begin speaking. The process for unmuting and muting for remote participants remains the same.

The time limit for the following debate is one hour.

Chemicals (Health and Safety) and Genetically Modified Organisms (Contained Use) (Amendment etc.) (EU Exit) Regulations 2020

Wednesday 9th December 2020 Grand Committee

Considered in Grand Committee

17:01

Moved by

[Baroness Stedman-Scott]

That the Grand Committee do consider the Chemicals (Health and Safety) and Genetically Modified Organisms (Contained Use) (Amendment etc.) (EU Exit) Regulations 2020.

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Stedman-Scott) (Con)]

My Lords, this draft statutory instrument was laid before Parliament on 15 October. Through this instrument, we are making the necessary arrangements to implement the terms of the withdrawal agreement and the Northern Ireland protocol in law for chemicals regulations. This will ensure that these regulations function effectively from the end of the transition period and that the existing high standard of protection for human health and the environment will be maintained.

In preparation for our exit from the European Union, a statutory instrument was made last year to ensure that the regulatory framework for chemicals remained functional after exit and to provide certainty for businesses and the public. It achieved that by making technical amendments to the retained EU law, such as changing EU-specific references and transferring functions and powers currently held by the European Commission to the appropriate authorities in each of the UK’s constituent nations.

Since the 2019 regulations were made, the withdrawal agreement, including the Northern Ireland protocol, has been agreed. The protocol requires that EU legislation will continue to apply in Northern Ireland after the end of the transition period. The existing EU exit legislation therefore needs to be amended to reflect the fact that retained EU law will be substantively applicable in Great Britain only.

If approved, these draft regulations will make the necessary amendments to three retained EU regulations as well as to EU-derived domestic legislation. I appreciate that the technical and composite nature of the regulations makes this particularly complex; the decision to present these proposals as a single instrument was for the benefit of the House, to reduce pressure on parliamentary time and to ensure that we are able to deliver an orderly transition. As this is such a technical instrument, I shall provide a concise summary of the regulations and the changes that we are making for noble Lords.

Of the three retained EU regulations to be amended, the first is the biocidal products regulation. This governs the placing on the market and use of products that contain chemicals which protect humans, animals, materials or articles from harmful organisms like pests or bacteria. This market covers a wide range of products such as wood preservatives, insecticides such as wasp spray, or anti-fouling paint to remove barnacles from boats.

Secondly, the classification, labelling and packaging of substances and mixtures regulation ensures that the hazardous intrinsic properties of chemicals are properly identified and effectively communicated to those throughout the supply chain, including to the point of use. The current classification laws are sophisticated and incorporate a detailed technical system of classification criteria. This classification is partly done through standardised hazard pictograms and symbols and warning phrases associated with specific hazards, such as explosivity, acute toxicity, or carcinogenicity.

Lastly, the export and import of hazardous chemicals regulations require the export of listed chemicals to be notified to the importing country and, for some chemicals, the consent of the importing country must be obtained before export can proceed.

This instrument makes three main changes, which I shall summarise. First, we are updating some transitional provisions in the 2019 regulations so that they apply from the end of the transition period, when the retained law comes into force, rather than from exit day. It should be noted that while this instrument’s title references genetically modified organisms, the only amendments to the relevant legislation are to update two references to “exit day”.

Secondly, it removes Northern Ireland from the scope of the 2019 regulations by omitting references to Northern Ireland and changing UK-specific references to read “Great Britain”. The instrument also revokes changes made to domestic legislation in Northern Ireland in the 2019 regulations, which are no longer required due to the protocol. Lastly, this instrument legislates for the Government’s commitment on unfettered access for these chemical regulations as well as the need to ensure that UK authorities have the appropriate information and regulatory safeguards in respect of chemicals placed on the market in Great Britain.

The Health and Safety Executive currently acts as a UK competent authority within the EU regimes for chemicals regulation. Under this instrument, it will become the GB regulatory authority. The Health and Safety Executive for Northern Ireland will be the regulatory authority with responsibility for Northern Ireland, and we are working closely with Northern Irish colleagues to prepare for the end of the transition period and support them afterwards. Both organisations have demonstrated their resilience through the pandemic, and I am confident that they have the capacity to undertake any new responsibilities brought about by EU exit.

This instrument was not subject to consultation as it does not alter existing policy. Published guidance has been followed and, in line with it, a full impact assessment has not been conducted as the instrument does not meet the de minimis threshold. However, I assure noble Lords that the changes brought about by it have been communicated through a series of stakeholder events throughout autumn and guidance published on the HSE website in October.

The devolved Administrations have also been fully engaged in the development of this instrument and have provided consent for the elements that relate to them. We are also in the process of agreeing a provisional common framework for chemicals that aims to maintain existing standards and promote common approaches to chemicals policy in the future.

In conclusion, this instrument will provide important continuity and clarity to the chemicals industry, ensuring that the legal requirements that apply to chemicals regulation are clear following the end of the transition period. I hope that colleagues of all parties will join me in supporting the draft regulations, and I commend them to the Committee. I beg to move.

17:08

[Baroness Altmann (Con)]

My Lords, I thank the Minister for her excellent explanation of the statutory instrument before us. As she mentioned, there are three issues in one. They have some complexities attached, but in my view the aim of the statutory instrument is important and welcome. I hope all noble Lords will be content with it.

All three issues, although separate, are important from the point of view of public health and safety. When we are dealing with biocidal products or the classification and labelling of potentially hazardous products, as well as imports and exports of hazardous chemicals and pesticides, it is only right that the Government make sure that they address the various issues that will need to be taken care of as we leave the EU.

I welcome the Northern Ireland protocol and recognise the need to separate GB from Northern Ireland, which is entailed in these instruments. I also welcome the fact that small businesses are not exempt because, when we are dealing with products and issues of this nature, it is really important that we and the public can be confident that all kinds of hazards are being considered.

I want to ask my noble friend the Minister about a particular issue. I also, by the way, put on record my thanks to her for arranging for interested Peers a very helpful briefing, attended by her and ministerial and official colleagues; it was very much appreciated. The issue concerns the resourcing of our hugely well respected HSE. The Health and Safety Executive will need to assess these various issues. I welcome the fact that the Government are introducing time limits; Article 37(5) of the CLP regulation, for example, currently states “without undue delay”. Providing a timeframe for approval is most helpful. How confident are the Government that the HSE is equipped to do this in the timescale required and with the resourcing implications of these timescales?

I also understand that the GB MCL list must be updated. I would like some clarification on the readiness of that list and the capacity both to identify the various potential problems and to notify those who will be affected.

I do not have much else to add on this matter. I welcome the instruments and thank my noble friend for her explanation of them.

17:12

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Altmann. I share her concerns about the Health and Safety Executive’s resourcing—something that there has been considerable public concern about in the context of Covid-19 and the many other threats that we see, particularly to workplace and public safety.

I feel that I should warn the noble Baroness, Lady McIntosh of Pickering, who will follow me in this debate—as she did in the debate on the previous statutory instrument, where she made a particularly excellent contribution—that I plan to be brief. I have two brief sets of questions.

My first question relates to the Explanatory Memorandum to the statutory instrument that this statutory instrument amends. It states:

“Each Administration of GB will continue to be able to make its own decisions about the release of GMOs in its territory. The existing processes for each Administration reaching its own decisions at national level will continue as now.”


I am aware that, as we speak, the internal market Bill is still the subject of debate and negotiation, we might say, in the Chamber, but I wonder whether the Minister can tell me how the rights to control the release of genetically modified organisms and the sale of products containing genetically modified organisms will relate to that Bill and the rules being made around it. Also, of course, there is the inevitable complication of how this will affect products going between Northern Ireland and Great Britain.

Also, that Explanatory Memorandum talks about the release of genetically modified organisms. Of course, no one can control the spread of genetically modified organisms and the genes that they contain; it is worth highlighting that point given that we share extensive borders. No Administration on these islands can control the spread of those genes or, potentially, those organisms.

Briefly, my second point addresses the biocidal products side of this statutory instrument. I note in particular research published last month in the peer-reviewed Science of the Total Environment journal that refers to the insecticides part of this statutory instrument. This research showed that two products—fipronil and imidacloprid—widely used in flea treatments for domestic animals, particularly dogs and cats, were showing up in very high levels in our rivers. Fipronil showed up in 99% of samples in 20 rivers, and in one case it was measured at 38 times the safe level. Are the Government looking at this issue, and indeed many other broader issues, as a matter of urgency?

One issue that is increasingly being thrown up by the science is what is known as the cocktail effect: the potential impact that the mixing of different chemicals, and interactions between antimicrobial resistance and different chemicals, might have on antimicrobial resistance, on human bodies and on the environment in general. It is very much rising up the agenda.

17:16

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I too welcome the regulations before us and thank my noble friend for moving them so eloquently. If she would permit me, I will put a couple of questions to her.

My noble friend explained the role of the Health and Safety Executive in becoming the regulatory authority for Great Britain under these regulations. We heard this week from my noble friend Lord Goldsmith, in connection with the REACH regulations that we considered in a similar statutory instrument Committee, that the department has recruited only 30 of the 300 staff needed to act to bring in GB REACH under this new regime, albeit that is a separate statutory instrument. Given the enhanced role that the HSE will play in setting up GB REACH, will my noble friend confirm that there will be sufficient staff in the Health and Safety Executive and that it will have sufficient resources to take on this additional role? Presumably it will already have been involved in liaising with ECHA or whichever EU body is concerned with this, but I have grave concerns that we will overtask the Health and Safety Executive with new responsibilities and find that it is understaffed and underresourced. I would be very grateful to have an assurance in that regard.

My next concern relates to paragraph 2.2 of the Explanatory Memorandum, which refers specifically to the fact that the biocidal products regulation

“sets timelines for Member State evaluations, opinion-forming and decision-making.”

It goes on to say that it

“promotes the reduction of animal testing by establishing mandatory data sharing obligations and encouraging the use of alternative testing methods.”

I am fully signed up to and very much support the mandatory data-sharing obligations and the use of alternative testing methods. What checks does my noble friend envisage there will be on these mandatory data-sharing obligations? I presume she will reassure me that we have come a long way from certain shops, which I will not name, that claimed that none of their products were tested on animals, only for us to find out after we had all bought them that in fact they had been. How do we know this data is tested and accurate?

Secondly, I am fully signed up to and would encourage the use of alternative testing methods, but can my noble friend explain what these alternative testing methods are and what regime is in place, and how these are monitored to ensure that they are fit for purpose? Again, this is an area that captures the public mood. The public want to buy products—cosmetics or whatever—that have not been tested on animals. This is something that captures the public imagination, so what alternative testing regime is in place?

Finally, paragraph 2.5 on page 2 of the Explanatory Memorandum to these regulations, to which my noble friend referred in her introduction, talks of

“measures for the contained use of genetically modified micro-organisms with a view to protecting human health and the environment.”

I feel that we still need to know a lot more about, and understand better, the use of GMOs. My question to my noble friend is a simple one. We were covered by the EU regime in this regard, and are now transitioning out and will, after 31 December, have left the European protections that we have previously enjoyed. Will my noble friend give a commitment today that any future use beyond the contained use which we currently understand will be brought forward by legislation—most likely, I presume, secondary legislation? Will she give a commitment that there will be no change to the current contained use, as set out today, without a further chance to have scrutiny of the necessary regulations ?

Having put forward my concerns, I hope that my noble friend will be able to give me the reassurance I am seeking.

17:21

[Baroness Parminter (LD) [V]]

Like my colleagues, I thank the Minister and the civil servants for organising the briefing meeting and for so patiently taking those of us who were there through this complex statutory instrument.

I certainly do not oppose the statutory instrument. I accept that there are no policy changes and that it is about operationalising existing legislation and implementing the Northern Ireland protocol. However, it is another SI that brings home the reality of Brexit and the loss of co-operation with the European Chemicals Agency, which, over decades, has built up its reputation as a centre of knowledge on the safe management of chemicals for the benefit of both humans and the environment.

We all share, I am sure, the hope that there is still a possibility of co-operation between the UK and the ECHA if there were to be a deal between the UK and the EU. Irrespective of that, the UK is now creating its own regulatory process, which will be a major headache for our businesses, with two time-consuming, separate processes if they want to sell products in both the UK and the EU, obstacles around data sharing and data rights, and indeed more expense.

As the noble Baroness, Lady Altmann, rightly highlighted, there is the risk of divergence, as the rules can be interpreted in different ways, with two different legal regimes. Clearly, that will mean divergence not just between the EU and the UK but, as this SI makes clear, between Northern Ireland and the rest of the UK.

One issue that I would like to touch on that other colleagues have not—I do not wish to repeat the excellent points that they have already made—is the fact that this SI specifies, for the first time, timeframes for the decision-making by the HSE and UK Ministers to approve substances after 31 December. Currently, the legislation states “without undue delay”. I contend that it could be seen as pre-emptive to batten down the hatches so firmly in this legislation by setting timeframes for those decisions.

Why? As the Minister made clear in her opening remarks, there has been no consultation on this statutory instrument. While of course businesses will always say that they want more certainty, we do not know that that is something that the business community really felt was an imperative. Secondly, as the noble Baroness, Lady McIntosh of Pickering, and others have made clear, the HSE has yet to have the capacity, and indeed the certainty of resources, to be able to deliver all those duties. So there is a real question mark about whether sufficient time is being given to undertake all the necessary tests, and to consult appropriately with affected stakeholders, so that the HSE and Ministers can form a judgment.

It is disappointing that in the Explanatory Memorandum there is no mention of undertaking environmental assessments, whereas it does mention working with economists to produce a proportionate impact estimate. That is particularly worrying, given that once the Environment Bill comes on to the statute book, all departments and agencies, including the HSE, will be obliged to apply the Government’s policy statement on environmental principles, including interpreting the precautionary principle. Therefore, like other colleagues, I hope the Minister can reassure us that there will be sufficient time and resources to undertake all the necessary tests so that business and the British public have continued confidence in the safety of the chemicals that will be used in our country.

17:26

[Baroness Sherlock (Lab) [V]]

My Lords, I thank the Minister for her explanation of these regulations and all noble Lords who have spoken for their contributions. I too am grateful for the briefing that we received from the officials, which transformed these rather complicated regulations into something that I could at least wrestle with in a fairly basic manner.

If I have understood them correctly, I think the Government’s intention is that, from the end of the transition period, the existing EU regimes at that point in time will be saved into national law through the provisions of the withdrawal Act, and that the primary point of these regulations is to correct deficiencies arising from Brexit beyond what was provided for in the 2019 regulations. Then, of course, there is the issue of Northern Ireland, where the protocol means that some areas of law in Northern Ireland will remain aligned with the EU.

I have questions about two areas on which I would like to get more information. First, on the question of Northern Ireland, the Minister mentioned unfettered access. Paragraph 17(1) of the Command Paper The UK’s Approach to the Northern Ireland Protocol says, about trade going from Northern Ireland to the rest of the UK, that

“this should take place as it does now. There should be no additional process or paperwork and there will be no restrictions on Northern Ireland goods arriving in the rest of the UK—that is, there will be unfettered access, as provided for by the Protocol.”

The thing is that, on the face of it, these regulations stop totally unfettered access for some goods, or at least they place a barrier to be overcome before a product can be marketed from Northern Ireland into GB. I am not saying that is a bad thing, just that it is different.

For instance, the regulations provide that for the BPR, where a Northern Ireland-based business has obtained an authorisation or permit for a biocidal product and wants to market that product in GB, the HSE will treat the product as authorised in the whole of the UK but only as long as certain conditions are met, including that the active substance is on the GB approved list and that the business notifies the HSE by submitting the same information that was submitted in support of the original authorisation. Once that authorisation has been submitted, the product can be sold in GB after 90 days, provided that the HSE does not raise any objections. If the HSE has any concerns about its safety or efficacy, it can request further information—another 90-day delay.

The HSE also has a safety valve. A product can be prohibited, or its sale or use restricted, if that can be justified on certain grounds, including environmental, the protection of health or life, the protection of vulnerable groups or animals or plants, and various other things, including artistic, historic or archaeological values.

I want to understand what is happening here. Is the HSE conducting an independent assessment of the safety and efficacy of a product, or is it simply checking that the product has met the regulatory requirements of the EU and then noting the information? If it is the former, then it is obviously possible that the HSE will reach a different view from that of the EU regulators. Indeed, because there is no dynamic alignment with EU standards after transition, it is entirely possible that our regimes will diverge over time. If so, how does that sit with the statement in the Command Paper that there will be no restrictions on Northern Ireland goods being marketed into the rest of the UK?

The second area I want to explore, as did most other noble Lords, is the role of the HSE in relation to these provisions and indeed Brexit. That was raised by the noble Baronesses, Lady Altmann and Lady Bennett, and other noble Lords. Essentially, the organisation is having to establish a new, independent regulatory regime for GB and have a regime aligned with the EU for Northern Ireland, all the while dealing with the huge challenge of helping to make workplaces Covid-secure during the pandemic, and in the context of having had its budget pretty much halved over the last decade.

I will ask the Minister some questions. First, on staffing, the noble Baroness, Lady McIntosh of Pickering, mentioned a commitment to recruit 300 staff, I think to cover the REACH business, of which only 50 had been hired. We were told in briefing that the HSE had plans to recruit 100 more staff by the end of January and up to 130 by the end of the financial year. Can the Minister clarify whether these are two separate figures? Is the figure I mentioned of 100 and 130 just for the DWP-funded activity? If so, can she tell us how many of those staff have been recruited?

Secondly, how much additional money has the HSE been given specifically to cope with its new role in a post-Brexit world, separate from extra Covid funding, and what is that as a percentage of its budget? It is quite clear that the Committee wants to hear a categorical assurance from the Minister that Ministers have satisfied themselves that the resources available to the HSE are adequate to enable it to deal not just with Covid, but with its new regulatory and inspection regime. On a related point to that made by the noble Baroness, Lady Altmann, I would like to know specifically on the BPR authorisations what assessment has been made as to the capacity of the HSE to make all the necessary evaluations within 90 days of receiving the submissions specified in the regulations.

I have asked enough questions and other noble Lords have asked good ones too. I look forward to the Minister’s reply.

17:31

[Baroness Stedman-Scott (Con)]

My Lords, I thank all noble Lords who have contributed to this debate. I too add my thanks to the officials, who have helped us understand the detail of this SI and whose support has proved invaluable.

In winding up, I will address some of the important points raised during the discussions. First, my noble friend Lady Altmann mentioned the CLP and the MCL list. This will copy all existing harmonised EU classifications on 1 January, and HSE will be able to carry out its responsibilities to update.

The noble Baroness, Lady Bennett, talked about the chemical cocktail effect. I will ensure that the Health and Safety Executive writes directly to her and that a record is sent to all Members in the Committee and placed in the Library. The noble Baroness also talked about REACH. The REACH regulation is not included in this SI. Defra has the policy responsibility for the REACH regulation and has brought forward separate legislation on it, which I understand was debated yesterday.

The noble Baroness, Lady Bennett, and my noble friend Lady McIntosh talked about GMOs. The responsibility for aspects of GMO policy is spread throughout government. However, regarding contained usage, there will be no reduction in standards, and existing protections covering human health and the environment are maintained and will continue to work in the same way post EU exit.

The noble Baroness, Lady Sherlock, and my noble friend Lady McIntosh talked about resourcing and recruitment. The Health and Safety Executive has identified a total of 147 posts to be filled by the end of the financial year. We have made good progress and at present we have filled 108 of the 147 posts—73%—and are confident that this means we will be ready for the end of the transition period. Of the 73% of posts we have filled to date, we expect the vast majority to start in January, with the remainder taking up post before April. Several campaigns are still ongoing and due for completion in January 2021. We will continue to seek recruitment into our outstanding posts as a priority until the end of March. In total, we are recruiting an additional 117 brand new posts into the Chemicals Regulation Division relating specifically to EU exit. This represents a 45% increase in our baseline staffing number—260—from January 2020, and demonstrates our significant commitment to take on the new functions required.

My noble friend Lady McIntosh raised the issue of animal testing and asked whether, if we cannot access animal testing data, that would require applicants to do more tests. The Health and Safety Executive will apply the principle in the biocidal products regulation that vertebrate tests “shall not be repeated” and may be undertaken

“only as a last resort.”

Therefore, if the data owner has not submitted the study to the HSE, we would expect the applicant to make every effort to obtain access to it. Should the applicant not be able to reach agreement on data access with the data owner, decisions would need to be made on a case-by-case basis and we would need to discuss options with the applicant. We would accept a vertebrate study only if all options had been exhausted; I understand that this is the “last resort” principle.

My noble friend also talked about GMOs and contained use. We will not reduce standards and changes to legislation will follow the usual scrutiny and consultation.

The noble Baroness, Lady Parminter, talked about timescale changes and Article 37 of the CLP. This instrument amends the timescales put in place by the SI made in 2019 due to operational concerns raised since then. These amendments will ensure that the HSE has sufficient time to carry out its operational responsibilities. In addition, the current wording of the EU regulation states that decisions are taken “without undue delay”. However, those affected by regulatory decisions should be clear about when those decisions will take place. Therefore, our amendments specify that a decision is required within three months of a recommendation being made to Ministers and that, within one month of the decision, the HSE must update the GB MCL list.

The noble Baroness also asked about certainty for business. The decision to amend the timescales so that they are operationally deliverable was made under the advice of and after consultation with the specialist regulatory scientists in the HSE and the devolved Administrations. The system mirrors the EU system as much as possible so that the industry will be familiar with the assessment process.

The noble Baroness, Lady Parminter, also mentioned environmental assessment as part of the process. As part of the technical assessment, the HSE must look at the impact that a substance’s intrinsic hazards may have on environmental end-points. The HSE is supported by the Environment Agency in undertaking this work.

The noble Baroness, Lady Sherlock, and my noble friend Lady Altmann referred to unfettered access. The Government’s approach to unfettered access and the Northern Ireland protocol was set out in the main Command Paper and subsequent business guidance. This outlines that there will be some specific requirements for movements from Northern Ireland to GB for items categorised as highly regulated goods. Chemicals are highly regulated goods because they can pose a significant risk to human health and the environment.

The noble Baroness, Lady Sherlock, asked whether the Health and Safety Executive undertakes assessments for biocidal products during the 90-day period. All chemicals are highly regulated goods because they can pose a significant risk to human health and the environment. There is a transparency requirement for a Northern Ireland business to notify the Health and Safety Executive with information that it would submit to the EU before the biocidal product is placed on the market.

On the noble Baroness’s question about finances, I can confirm that, for the 2020-21 financial year, an additional £6.1 million was made available, with £1.6 million for the DWP and £4.5 million to help Defra to prepare for delivering the new chemicals framework. This represents a 60% increase on the 2019-20 financial year.

As many noble Lords will attest to, our chemicals sector is world-leading and vital for other key industries, such as the pharmaceutical, automotive and aerospace industries. We want to make sure that this continues. We also need to provide certainty for businesses in Northern Ireland to ensure both that the statute book is fully functional for the end of the year and that those businesses have unfettered access to the market in Great Britain. This instrument seeks to do that and meet our obligations under the protocol.

I am sure that noble Lords are all with me on the fact that we need to provide continuity and clarity to the chemicals industry following the end of the transition period. I want to ensure that legal requirements that apply in relation to chemicals regulations are clear and provide certainty to all. We must maintain our high level of protection in the workplace and for others, which this instrument will do.

I hope that I have covered all the points that were made. I will look at Hansard and, if there any points that I have not covered, I will make sure that noble Lords are written to.

Motion agreed.

[The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)]

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.

Committee adjourned at 5.40 pm.