Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019

Baroness Jones of Whitchurch Excerpts

Wednesday 27th February 2019 Grand Committee

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, first, I declare my interests as a member of a local authority and a vice-president of the LGA. I thank the Minister for his comprehensive opening remarks and for his time and that of the Defra officials in the very useful briefing sessions held ahead of these SIs being debated. This SI, as indicated by its title, is something of a catch-all on the waste front, covering a number of waste issues from scrap metal to hazardous waste, batteries and accumulators, glass cullet, as well as landfill. I have a number of minor points to raise.

In paragraph 2.2 of the Explanatory Memorandum there is reference to the criteria for determining when certain of the materials that I have just mentioned would cease to be waste and to calculations of the efficiency of recycling processes. I would be grateful if the Minister could say what is meant by the,

“efficiency of the recycling processes”.

A number of EU Commission decisions on waste are revoked, and the Minister has just broadly referred to that. They include Decision 76/431/EEC, which concerns the setting up of a committee on waste management. This is referred to on page 2 of the Explanatory Memorandum and in the main SI on page 62. Can the Minister explain why there is no mention of a replacement committee on waste management? Is there no longer any need for this committee?

The Minister referred to Decision 2003/138/EC establishing component and material coding standards for vehicles, which is being revoked along with Decision 2005/293/EC on the reuse/recovery and reuse/recycling targets on end-of-life vehicles on the basis that they are already enshrined in UK law. I just wonder why they need to be mentioned if they are already enshrined in UK law.

The powers under directive 2008/98/EC, which were in place before exit day, will transfer after exit day to,

“the appropriate authority, appropriate agency or local authority”.

After exit day, the European Eco-Management and Audit Scheme, EMAS, will no longer have status and registrations will become invalid, although those wishing to can register under EMAS Global. The Government are proposing to make alternative provision for references to the certification of environment management standards by retaining a reference to a conformity assessment body. Transitional provisions will ensure that certifications granted to quality management systems will continue to be recognised as valid. Can the Minister say what these transitional provisions will be and when they will come into operation?

I am concerned about the mechanism for publishing and monitoring targets on waste. The Secretary of State is required to produce a progress report on the UK’s target to recycle 50% of household waste by 2020. However, this does not have to be published until 1 January 2020 and is not a requirement for the devolved Administrations, which the Minister has already referred to. Given the public’s concern about the level of waste, especially plastic waste, would it be better to bring this date forward so that action can be taken to ensure that the targets are met and adhered to?

This SI empowers the Environment Agency and equivalent bodies in other areas, including local authorities, to deal with decisions relating to landfilling of waste and waste from extractive industries, as well as waste criteria for metals, glass and so on. There is, however, no mention of additional resources being allocated to allow these agencies and bodies to take on these powers. Could the Minister say whether there are any plans to provide sufficient resources for this work to be carried out effectively and efficiently?

Finally, reference is made to the reclassification of some hazardous waste products in 1357/2014. The list in Annex III—I am very grateful to officials for providing this—which is referred to in the SI, contains some extremely toxic materials, including explosives, flammable liquids, irritants and carcinogenic materials. This is potentially extremely concerning and could have implications for public safety. Could the Minister give a little more detail on how this might be implemented?

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the Minister for his introduction to this SI and his helpful prior briefing; I also thank the noble Baroness, Lady Bakewell, for her contribution.

As the Minister described, this SI contains a series of amendments to different aspects of the waste management system required to be in place by exit day. In the main, we are content with the proposals, which appear to replicate closely the current arrangements with the EU. These are regulations from which the UK has benefitted in the past and it is important that these standards are upheld.

However, I want to make a couple of points about the drafting, then I have some questions. On the drafting of the SI, although this is a very lengthy document, I found both the SI and the Explanatory Memorandum very clear and I commend those that drafted them. In particular, I welcome the inclusion in the SI of a very clear definition of who is the appropriate authority and appropriate agency in each case. The Minister will know that we have raised this issue time and again, but in this document, it is spelled out; indeed, the document goes further. Where there is a more generic reference, it is qualified by the phrase,

“the appropriate authority, appropriate agency or local authority which, immediately before exit day, was responsible for the United Kingdom’s compliance with that obligation”.

I commend that wording and I believe that this phrase could be used more widely in other SIs to avoid ambiguity. There is learning for us all in that.

I now have a few questions. Along with the noble Baroness, Lady Bakewell, I would be grateful if the Minister could clarify the arrangements for external verification, reference to which is made several times in the document. For example, on page 22, the amendment to Article 5(7) uses an EU regulation to define a “conformity assessment body”. Do the Government intend to retain that EU definition and accreditation in the longer term? Is that how we will operate—namely, that we will not have our own UK definition and we will stick with the EU definition?

Paragraph 7(c) adds that other accreditation can be solved through the EMAS scheme, which has been referred to. However, this seems to be slightly at odds with the wording on page 4 of the Explanatory Memorandum, which states that references to EMAS “will be omitted” and that any registration would have to be through EMAS Global. Can the Minister clarify that wording? What is the difference between EMAS and EMAS Global? Does EMAS Global have the same authority and impact as EMAS and are the same resources available to provide the required verification?

I refer now to the reporting on the UK target to recycle 50% of household waste by 2020. As the noble Baroness, Lady Bakewell, said, this is an issue of great public interest, particularly as we seem to be heading towards missing that very important target. This was a requirement to report to the EU, which has been replaced by one called the “progress report” to be published,

“in a manner that the Secretary of State considers appropriate”,

before 2022. I am grateful to Richard Gregson, the Defra lawyer, for sending me the existing wording to compare with the new wording. The original wording refers to an “implementation report” that should demonstrate compliance with the targets to the Commission. This is to be replaced by a progress report, which it appears the Secretary of State will publish to himself with no penalty for inaction.

Let us compare this to what would happen if we remained in the EU. I am advised that if a member state is found guilty of failing to meet targets in a directive, an EU penalty formula would be applied—in this case, a maximum fine of around €700,000 each day if we do not meet the target in 2020 and continue not to meet it for a significant period. It does not need too much imagination to see how that threat would concentrate the minds of those responsible for the targets in Defra. Moreover, it once again puts into stark relief the need for an independent watchdog that can hold the Government to account and issue fines that will deliver real compliance with these important environmental objectives.

I am very unhappy with the wording of this SI as it stands. It seems to represent a considerable watering down of the current provision and I would contend that it goes further and represents a policy change as the 50% target now becomes advisory rather than compulsory. This is of course compounded by the fact, as we have heard, that the targets will apply to England only with no obligation on the devolved nations to report. I ask the Minister to look at this wording again to bring it more in line with the expectation of implementation as set out in the original wording and to put on record that the interim watchdog, the details of which we still await although the clock is ticking, will have equivalent powers to issue fines similar to those currently in operation in the EU.

Finally, on a small point of detail, there is a provision on extractive mining which covers the definition and the dangers therein. However, paragraph 5(c) of new Article 2B on page 16 of the SI includes a reference to,

“Article 2 of Council Directive 2009/158/EC on animal health conditions”,

relating to trade with the EU and third countries in “poultry and hatching eggs”. I struggle to see the connection between poultry and hatching eggs and extractive mining. I would be grateful if the Minister could explain that connection and why this provision appears not only in the paragraph that I have referred to but in several others. I am curious to hear the answer to that, but I look forward more seriously to his substantive response on the issue of waste targets.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

I am sorry to intervene but on this important subject of reports on recycling, particularly of plastic waste, which my noble friend will remember that I am very interested in, he seems to be saying that this is about implementing an EU obligation which we will no longer have. I thought that the principle of these regulations, which I fully support, was to bring into UK law equivalent provisions to those that exist in EU law. Therefore, it would be helpful if he could tell us—either now or in writing—what the plan is for reporting on the recycling of plastic and other waste in the UK once these regulations come in, because I am worried that there might be a gap. I think that is what the noble Baroness was saying earlier.

[Baroness Jones of Whitchurch]

Perhaps I might add to that. One cannot have it both ways, as the Minister is trying to do here, because the new wording says that in the progress report for 2020, the Secretary of State shall demonstrate,

“compliance with the targets set in article 11(2)”

of directive 2008. It makes reference to that directive, so it is either a progress report or an implementation report. Either way, it is referring to the directive, and I would contend—as with the noble Baroness’s helpful intervention—that an implementation report puts slightly more teeth into it than a progress report.