Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Monday 15th July 2019 Grand Committee

Moved by

[Lord Gardiner of Kimble]

That the Grand Committee do consider the Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, this statutory instrument transfers a series of limited, technical legislative functions that are currently conferred by EU environmental directives upon the EU Commission so that after exit day they can be exercised by the Secretary of State or the devolved Administrations. The regulations relate to a number of environmental policy areas: air quality, environmental noise, infrastructure for spatial information, marine, and water quality.

The powers relate to minor elements of the relevant directives. They do not allow for a general change in their implementation. One example of the type of functions being transferred is the power that the Commission currently has under the directive on environmental noise. This is a power to adopt directly applicable tertiary legislation to amend assessment methods for noise indicators in the light of scientific and technical progress. Under this instrument, the Secretary of State and the devolved Administrations will be able to update the corresponding domestic legislation to reflect the latest scientific and technical noise assessment methods.

While this instrument covers a number of directives and policy areas, it does no more than replicate the provisions in the directives so that UK authorities can exercise the powers member states considered were appropriate to delegate to the Commission. These powers will ensure that our domestic legislation continues to function properly. They are limited in nature and are not the kind of functions for which we would generally in the domestic context require primary legislation. They concern technical detail that would normally be dealt with by secondary legislation. If we had to use primary legislation to make the types of changes that will be possible under this instrument, it would take a disproportionate amount of parliamentary time and make it increasingly difficult for the law to keep pace with scientific and technical change. The powers will be subject to parliamentary scrutiny by way of the negative resolution procedure, which, for the reasons I have just mentioned, I believe is suitable due to the limited technical nature of the powers.

Part 2—Regulations 3 to 15—confers functions relating to five EU directives relating to air quality. These are the directives on emissions of volatile organic compounds—known as VOCs—ambient air quality and cleaner air, industrial emissions, medium combustion plants, and national emissions of certain atmospheric pollutants. These functions include, for example, a power to specify a common format of monitoring data for VOCs, and to specify rules for determining start-up and shut-down periods for the purpose of certain plants covered by the industrial emissions directive.

The powers in Part 2 that relate to VOCs and national emissions of certain atmospheric pollutants are conferred on the Secretary of State. VOCs are a reserved matter. Powers relating to national emissions of certain atmospheric pollutants, on the other hand, are devolved, but in this specific case the devolved Administrations have already agreed to their being transferred to the Secretary of State alone to exercise on behalf of the whole UK, because they concern national, UK-wide obligations. In each case, the Secretary of State can act only after the devolved Administrations give their consent, and the Secretary of State must also have regard to requests from devolved Administrations to make regulations.

For all other devolved matters in Part 2, powers are conferred on the “appropriate authority”. The “appropriate authority” is defined for this part by Regulation 4 and means for England, the Secretary of State; for Wales, the Welsh Ministers; for Scotland, the Scottish Ministers; and for Northern Ireland the Department of Agriculture, Environment and Rural Affairs.

Regulation 14 provides that it is possible for the Secretary of State to make regulations on behalf of one or more devolved Administrations, but only with their agreement. This allows for a common approach and legislation across the UK, providing more certainty for industry and other stakeholders. Regulation 15 provides that the appropriate authority may make regulations under Part 2 only after consulting anyone whose interests appear likely to be substantially affected and any other appropriate persons.

In Part 3 on environmental noise, Regulation 16 transfers limited functions relating only to supplementary noise indicators and assessment methods for noise indicators, which are contained in the EU environmental noise directive. This directive aims to avoid, prevent or reduce the harmful effects of exposure to noise pollution. These functions are conferred on the appropriate authority, defined in the same way as for Part 2.

Part 4 relates to infrastructure of spatial information. Regulations 17 to 22 confer functions under the EU directive, establishing an infrastructure for spatial information, known as the INSPIRE directive. Spatial information refers to specific locations and much environmental information falls into this category. Regulation 18 provides that the Secretary of State is the appropriate authority for England, Wales and Northern Ireland because INSPIRE is devolved only to Scotland, where Scottish Ministers are the appropriate authority. The Secretary of State may also legislate for Scotland if Scottish Ministers consent.

The functions in Regulations 19 to 22 include powers to make provision relating to metadata for spatial data sets and services, and interoperability and harmonisation of spatial data sets and services. These are the technical details of the INSPIRE framework, which the Commission was given power to set out in decisions, rather than in the directive itself.

Part 5 deals with marine strategy. Regulation 23 transfers functions contained in the EU marine strategy framework directive, which aims to protect the marine environment. Part 5 contains powers to lay down specifications and standardised methods to monitor and assess the marine environment, to reflect scientific and technical progress; to specify indicative lists of characteristics, pressures and impacts relevant to marine waters, of,

“characteristics to be taken into account for setting environmental targets”,

and of “requirements for monitoring programmes”; and to specify standardised methods for the application of,

“qualitative descriptors for determining good environmental status”,

of, characteristics, pressures and impacts relevant to marine waters, of

“characteristics to be taken into account for setting environmental targets”,

and of “monitoring programmes”.

Despite covering a mixture of reserved and devolved matters, the devolved Administrations have already agreed that these functions will be conferred on the Secretary of State alone to exercise for the whole of the marine strategy area, as defined in Regulation 3 of the Marine Strategy Regulations. This includes the UK territorial seas, including coastal waters, offshore waters out to the limits of the UK’s renewable energy zone and the sea bed in areas of the UK continental shelf beyond the renewable energy zone.

As with national emissions of certain atmospheric pollutants in Part 2, before making regulations under this part relating to Wales, Scotland and Northern Ireland, or relating to devolved functions, the Secretary of State must obtain the consent of relevant devolved Administrations. The Secretary of State must also consult interested parties including, where appropriate, the Ospar Commission and other international organisations to which we will retain obligations after we leave the EU. The Secretary of State must publish a report on his decision following a consultation. This mirrors the existing approach to consultation relating to the UK’s marine strategy, which is set out in the regulations.

Part 6 covers water quality. Regulations 24 to 46 confer functions contained in eight EU water directives. These directives relate to protection of waters in general—the water framework directive—and the groundwater environmental quality standards, bathing water, drinking water, urban wastewater treatment, nitrates and sewage sludge directives. The functions include powers to set out technical specifications for economic analysis and water-quality monitoring; to specify the procedures for establishing groundwater threshold values, assessing groundwater chemical status and identifying upward trends in groundwater pollutants; to specify the symbols to be used for information on bathing water prohibition and for making provision about the handling of bathing water samples; and to specify reference methods for measuring nitrate levels in water.

The functions are clearly defined and are exercisable in most cases only to adapt the legislation to scientific and technical progress. They are conferred in each case on the appropriate authority, defined by Regulation 25 in the same way as for Part 2. Regulation 25 also provides for the Secretary of State to legislate for devolved Administrations with their consent.

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We need to make sure that, whatever happens with these SIs, and however the Secretary of State exercises his powers in the future, it will be only to deliver a higher level of environmental protection. I hope the Minister will be able to give that guarantee today and I look forward to his response.

[Lord Gardiner of Kimble]

My Lords, I am most grateful to the noble Baronesses for their comments on these regulations. I repeat that they create powers that will enable us to adapt our environmental legislation to reflect scientific and technical developments. We believe that they do this in a practical and proportionate way that provides for greater public consultation and parliamentary scrutiny than now occurs in the manner in which the Commission exercises the powers. I therefore say, in great friendship, to the noble Baroness, Lady Young of Old Scone, that whatever our views on the matter, we should all be pleased that in this area and in this particular place we will enable, with consultation and scrutiny—I will elaborate on that—something that is not currently available to us. Candidly, that is because, as regards the decisions that the Commission is taking, member states took the view, practically and proportionally, that these matters did not require the sort of approach that the noble Baronesses are perhaps suggesting would have been more desirable.

None of this work this afternoon is about a regression. I put it on record that it is not. I do not want the noble Baroness to be worried because this work is designed so that she is not. The whole purpose of this instrument is that it does not of itself change substantive policy, which is about having rigour on the environment. It does not change operational delivery, which we all want. It does not impose additional costs on individuals, public organisations or businesses. It is not intended to result in additional environmental impacts compared with the way in which the legislation previously operated. As I say, it is all about keeping within the rigour of what there was before while providing us with a further opportunity.

I should say straightaway that I have a note here on the office for environmental protection, to which the noble Baronesses, Lady Young of Old Scone and Lady Jones of Whitchurch, referred. We are planning for the office for environmental protection to be operational by 1 January 2021. It will be an independent statutory organisation, established by the environment Bill, to provide environmental scrutiny and advice, respond to complaints and take enforcement action. If necessary, we are ready with interim arrangements—all those are in place—which will provide an initial assessment of complaints, scrutiny of the 25-year environment plan and ad hoc advice until the OEP is established.

The environment Bill plots a course to establish a pioneering new system of green governance, improve air quality, restore and enhance nature, improve waste management and resource efficiency, and improve surface water, groundwater and wastewater management. A full list of the remits is still to be finalised but that was a taster of what is a work of great ambition. The Bill will be introduced in the second Session; I am afraid that noble Lords will not find me saying when that might be. There might be quite a lot of noble Lords in the same position, so I cannot say any more about when. However, it is important work and, whoever is looking after these matters, it will be a very interesting time for scrutiny in your Lordships’ House.

I was quite rightly pressed on scientific and technical progress. The Explanatory Memorandum for this instrument explains that the powers will usually be used as a result of scientific and technical progress. This is because, in some cases—for example, in relation to monitoring and reporting standards—changes might be necessary for other reasons, such as having better regulatory measures. We also seek to replicate the provisions in directives, which take different approaches as the EU has considered it appropriate. Where the Commission’s power can be used only to reflect scientific and technical progress, we have carried over that restriction. Pressure for changes as a result of scientific and technical progress most frequently occurs, I understand, on a bottom-up basis: that is, it comes from the scientific and technical community, or the business community. In other words, it tends to come from the very experts who government would need to consult before making legislation. More generally, and where appropriate, we would normally consult experts before making regulations on such technical matters.

All of your Lordships referred to the exercise of powers by negative statutory instruments. As I have tried to explain, these powers essentially relate to technical matters that EU member states have considered it appropriate to delegate to the Commission. These are the kinds of matters of detail for which, in domestic contexts, we would normally use secondary legislation—I think that the noble Baroness, Lady Parminter, alluded to this at the beginning of her remarks—and, generally, the negative resolution procedure. We consider this approach proportionate with the powers that this instrument transfers.

The real point is that we have been desperately keen not to be in a position where we would cause environmental legislation to ossify; I think that everyone would agree with that. When we are furnished with ways in which we can, through technical changes, enhance the environment and do things better, we clearly need to attend to those changes—and do so pretty smartish. Negative statutory instruments go through the JCSI and the SLSC for scrutiny; of course, if alarm bells ring or there is an issue, parliamentarians have ways of drawing matters to Parliament’s attention. I do not see demons in this but one did appear under some future arrangements. There are all sorts of ways in which tenacious Members of both Houses would deal with this.