Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Wednesday 27th February 2019 Grand Committee

Moved by

[Lord Gardiner of Kimble]

That the Grand Committee do consider the Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019.

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

My Lords, the Government take the issue of waste and resource efficiency very seriously and place real importance on this area. We always have in mind the need for strong policies to enhance and promote the circular economy and encourage actions to reduce, reuse and recycle. This instrument being presented before your Lordships makes technical changes to ensure the operability of waste-related legislation after exit. These technical and legal amendments will maintain the effectiveness and continuity of UK legislation that would otherwise be left partially inoperable following our exit from the EU. We wish to ensure that the law will continue to function as it does today. It will preserve the current regime, ensuring protection and maintaining improvement in the environment.

I can assure noble Lords that these adjustments represent no changes of policy, nor will they have an impact on businesses or the public, or indeed put any additional burden on or require any working practice changes for the Environment Agency or other UK enforcement bodies. Our recently announced resources and waste strategy sets out how we will preserve our stock of material resources by minimising waste, promoting resource efficiency and moving towards a circular economy. At the same time, we will minimise the damage caused to our natural environment by reducing and managing waste safely and carefully, and by tackling waste crime. It combines actions we will now take with firm commitments for the coming years and gives a clear longer-term policy direction in line with our 25-year environment plan.

The instrument makes technical amendments to three waste-related Acts of Parliament: the Control of Pollution (Amendment) Act 1989, Part II of the Environmental Protection Act 1990, and the Waste and Emissions Trading Act 2003. It also amends 14 related EU regulations and decisions to ensure operability. The general changes in this instrument include amending references to the European Union, EU institutions and EU administrative processes to UK equivalents, and updating legal references to refer to relevant UK legislation. The instrument introduces modifications into the Acts of Parliament and retained direct EU legislation relating to waste, so that references to EU directives continue to function after exit day as they function before exit day.

One purpose of these modifications is to ensure continuity as to which public bodies exercise certain functions. Those obligations and discretions placed on member states under the directives will continue to be exercised after exit by the same appropriate authorities, appropriate agencies and/or local authorities before exit. In this context, “appropriate authority” means the Secretary of State in relation to England and each of the devolved Administrations in relation to their respective parts of the United Kingdom. “Appropriate agency” means the Environment Agency in relation to England and the relevant environment agency or body in the other parts of the United Kingdom.

The main amendments made to these EU regulations by this instrument are therefore to insert new provisions which set out modifications to the way in which references to EU directives in the EU regulations are to be read on and after exit day. Additionally, technical operability amendments are made to account for the fact that we are no longer a member state. The UK will no longer be allowed to authorise participation in the EU’s Eco-Management and Audit Scheme, known as EMAS.

In the United Kingdom, verification will be through a conformity assessment body accredited by the United Kingdom Accreditation Service. In the meantime, verifiers can still apply to be accredited EMAS verifiers through other member states offering the service. Defra made all the businesses and organisations directly impacted aware of this prior to legislation being laid.

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[Lord Gardiner of Kimble]

My Lords, I first thank the noble Baroness, Lady Jones of Whitchurch, for her generous remarks on the drafting of the statutory instrument and Explanatory Memorandum. I am the first to say that I always go to the Explanatory Memorandum and hope that I can then somehow figure out the statutory instrument—so many regulations can be most complicated. I will pass the noble Baroness’s remarks back as a template; they are on the dot.

I re-emphasise from the start that these regulations make only technical changes that maintain continuity. They will not: make any changes to policy; lead to any change in operational delivery; impose additional costs on businesses, individuals or public organisations; or result in any additional environmental impacts, compared with the legislation being amended or replaced.

The noble Baroness, Lady Bakewell, made an important reference to the efficiency of recycling processes under paragraph 2.2 of the Explanatory Memorandum. Regulation 493/2012 sets out a method of calculating recycling efficiency in relation to waste batteries and accumulators. The calculation method is set out in Annexe I to that regulation. It provides a standard approach for all recyclers of waste batteries so that, in any given case, it can be confirmed whether recycling processes have met the minimum efficiency standards set out in Annexe III to Directive 2006/66/EC. I am sorry to be technical again, but I wanted to make that response.

The noble Baroness, Lady Bakewell, also asked about revocations in relation to the end-of-life vehicles directive. The three EU decisions relating to that directive, referenced in the Schedule to the instrument, are to be revoked instead of being retained and amended. Commission decision 2001/753/EC sets out a questionnaire for member states to report on the implementation of the end-of-life vehicles directive. Following exit, the requirements of this decision would be redundant. The requirements of the two Commission decisions on end-of-life vehicles which relate to minimum requirements for the certificate of destruction, and component and coding standards, are already implemented in UK law. This has been done through Regulation 29 in Schedule 3 and Regulation 15 in Schedule 2 respectively to the End-of-Life Vehicles Regulations 2003. Accordingly, these two decisions are to be revoked as their requirements are already embedded in domestic legislation.

I very much agree with the noble Baroness about plastic waste. Clearly, a huge amount is going on in both the public and private sector to reduce the use of plastic, in relation to the resources and waste strategy as well as what we look to retailers to do, but clearly there is much more to be done. I will endeavour to explain the references to the reporting progress requirement, which the noble Baroness, Lady Jones of Whitchurch, emphasised. As has been said, Article 5 of Commission decision 2011/753/EU, as amended by this instrument, requires the Secretary of State to publish a progress report before 1 January 2022. Following exit, it would not be appropriate to publish a report on the implementation of EU obligations.

This amendment commits the Government to publish a report on progress towards the attainment of the 50% target set out in law for England and the devolved Administrations. The format of this report is to be determined, but it would set out whether England has attained the target and any other necessary information on progress in relation to these targets. On the question of progress or implementation, my understanding is that it is all related to it being set out as before: a report on the implementation of an EU obligation would no longer be an obligation when we are no longer a member. The noble Baroness should not interpret removing “implementation” and putting in “progress”—

[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.

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[Lord Gardiner of Kimble]

The noble Baroness is absolutely right. It is in reference to Article 11(2) of the waste framework directive, which is still referred to in domestic legislation with the modifications that have been made in this instrument. The 50% household waste recycling target is already part of our statute. I understand what she says: she thinks that “implementation” is stronger than “progress”. But because it is already in statute, it is still going to have to deal with whatever references are contained in Article 11(2). There will still be the same requirements of that directive in setting out whether the target has been attained and any other relevant information.

The noble Baroness referred to the environment Bill, which clearly everyone is waiting for. Everyone will be waiting for the new independent body—the office of environmental protection, with its powers to review and take action in relation to the attainment of this target. We will definitely need to attend to those points.

I also have some references, which I have mentioned before. It is understood that with the environment Bill not being on the statute book until sometime in the second Session, while I am not in a position today to talk about the form of that body, the Government have made it absolutely clear that there will be no governance gap. If there were any issues between the day of exit and the day of that office having legal authority, it would be in a position to act on it with full authority. Clearly, the body needs to have a legal entity but, in the meantime, interim arrangements will be announced should there be a governance gap. Obviously we are seeking a deal. I think noble Lords realise that everyone wants a deal, meaning that there would not be a governance gap, but if there is a need to ensure that these matters are attended to, announcements would be made.

Perhaps I should not quibble about the word, but I had better use it again and refer to the “progress” report. We will publish, as we do, yearly statistics setting out the UK and devolved Administrations’ progress towards meeting the 50% recycling target. We need to do it.

I am afraid that I did not realise my noble friend Lady Neville-Rolfe has been here since the beginning of the debate. I am sorry. I would have expected her to say something before. These statutory instruments are absolutely to do with operability. We will need to attend to a range of areas through the resources and waste strategy and the clean growth strategy. As I said, work is going on in the public and private sectors to ensure that we move quickly to a circular economy so that we are less wasteful as human beings.

On efficiencies and transitional provision for EMAS, EMAS Global is the European Commission’s answer to allowing non-member states to enter and place goods on the market in accordance with the management standards set out in EMAS. Those are the arrangements as I understand them.

The noble Baroness, Lady Jones, mentioned the wording “appropriate authority”. This wording has been used more frequently in exit SIs where modifications have been made to EU directives. By their nature, directives often place obligations on a number of different authorities, and we need to maintain that effect. In other EU regulations, decisions are placed more firmly on a finite set of authorities and bodies. In those cases, EU exit legislation will refer specifically to the authority in question.

On poultry and the connection between extractive waste and animal health, given the reference in Regulation 9, I should say to the noble Baroness, Lady Jones, that the reference to EU poultry legislation relates to modifications to the industrial emissions directive which is further down the page. The connection between the two is that the industrial emissions directive applies to pollution arising from industrial activities. One of those activities, which is described further at 6.6 of Annexe 1 of the industrial emissions directive, is the intensive rearing of poultry and pigs. I hope that explains how that appears on that page.

The noble Baroness, Lady Bakewell, raised hazardous waste. Annexe 3 of the waste framework directive sets out the definition of waste which can be classed as hazardous. The statutory instrument makes provision in law to allow reference to Annexe 3—I am sorry, I will have to set that out more clearly—in delivering what waste can be considered hazardous. I have an awful feeling that my official must have been a doctor in another life—prescriptions for chemists are always interesting. I should declare that I have three godchildren who are doctors.

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[Baroness Bakewell of Hardington Mandeville]

Unless I missed it, the Minister did not refer to the committee on waste management. I am very concerned about what, if anything, will replace it.

[Lord Gardiner of Kimble]

My Lords, I think a letter would be a good idea.

Motion agreed.

Aquatic Animal Health and Alien Species in Aquaculture (Amendment) (Northern Ireland) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Wednesday 20th February 2019 Grand Committee

Moved by

[Lord Gardiner of Kimble]

That the Grand Committee do consider the Aquatic Animal Health and Alien Species in Aquaculture (Amendment) (Northern Ireland) (EU Exit) Regulations 2019.

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

My Lords, as indicated, this instrument extends to Northern Ireland only. I am most grateful to officials from the Department of Agriculture, Environment and Rural Affairs who are here today to assist with advice and support.

The island of Ireland has only 10 native species of fish, which is 40 fewer than in Great Britain and 80 fewer than continental Europe. With fewer species, in turn, it has fewer aquatic pests and diseases and consequently has a higher aquatic health status. We must ensure that this situation is maintained. We also acknowledge the vulnerability of the Northern Ireland aquatic environment and therefore the aquaculture industry to the introduction of diseases and alien species.

In Northern Ireland, aquaculture is a small but very valuable market. In 2017, Northern Ireland aquaculture production accounted for 1,248 tonnes of fin-fish at a value of £6.8 million on 36 active licensed sites, and 5,831 tonnes of shellfish at a value of £9.07 million on 43 active aquaculture sites. The sector employs 93 full-time and 33 part-time staff. Freedom from disease underpins international regulations on the trade in live animals and their products. Northern Ireland enjoys a higher health status than the rest of the UK, as I said, as many of the most serious aquatic animal diseases do not currently exist there. The maintenance and protection of Northern Ireland’s aquatic health status safeguards the interest of the aquaculture sector, as well as the public, who derive health and well-being benefits from angling and other recreational activities.

This instrument will provide the necessary technical corrections to the Aquatic Animal Health Regulations (Northern Ireland) 2009—the principal regulations—and the Alien and Locally Absent Species in Aquaculture Regulations (Northern Ireland) 2012 to enable operability when the UK leaves the EU. These regulations do not introduce any policy changes.

The UK Government remain committed to restoring devolution in Northern Ireland. However, in the absence of a Northern Ireland Executive, UK Ministers have decided that in the interest of legal certainty in Northern Ireland the Government will take through the necessary secondary legislation at Westminster for Northern Ireland, in close consultation with the relevant Northern Ireland department.

The proposed amendments fall into three main categories. First, cross-references to EU instruments are amended so that they are operable. These amendments modify cross-references to the 2006 directive contained in the principal regulations, and are essential to ensure the operability of those regulations. These are common amendments which appear throughout EU exit statutory instruments for Northern Ireland, England and Wales and Scotland. The amendments include: the substitution of references to “Member State” or “Member States” with references to “Northern Ireland”, “the Department of Agriculture, Environment and Rural Affairs”, “Competent Authority”, or “UK or a constituent UK territory”; the substitution of references to “EU” with references to “UK”; and the substitution of references to articles in the directive with references to provisions in the domestic Northern Ireland regulations that transposed the directive—for example,

“as if … the reference to Article 4 of Directive 2006/88 were to regulation 7”.

Some of those cross-references themselves contain further cross-references to the directive. In those cases, the cross-references have been followed through to modify all necessary provisions.

The second category is provisions which will be redundant or inoperable in Northern Ireland law after EU exit. This instrument makes an amendment to the Alien and Locally Absent Species in Aquaculture Regulations (Northern Ireland) 2012. The amendment removes the reference to a representative of the European Commission being able to accompany an inspector from the Department of Agriculture, Environment and Rural Affairs.

The last category is cross-references to directly applicable EU instruments to reflect technical amendments made to such instruments by other UK-wide SIs. Part II of annexe IV of directive 2006/88 contains a disease schedule which could have been modified only by the EU. It is to be replaced with a new annexe 1A inserted into Regulation 1251/2008 by the UK-wide Aquatic Animal Health and Alien Species in Aquaculture (Amendment etc.) (EU Exit) Regulations 2019. That will enable the UK to amend the list in retained EU law following exit. The amendments are made to replace references to annexe IV of the directive with references to annexe 1A to the regulation, which will ensure correct references to retained EU law in domestic Northern Ireland regulations.

Given the unique biodiversity of the island of Ireland, DAERA officials work closely with their southern counterparts on a wide range of fish health issues, especially contingency planning, trade matters, disease and biosecurity. Co-operation on those matters was in place long before both countries joined the EU and will continue when the UK leaves it. There is a very close working relationship across the island of Ireland on fish health and aquaculture. For example, the all-island Bottom Grown Mussel Consultative Forum facilitates the management of the seed mussel fishery on an all-island basis. It consists of officials from government departments, scientists, enforcers, the Irish fisheries board and the aquaculture industry. The group has been instrumental in securing Marine Stewardship Council certification for Irish bottom-grown mussels. That prestigious status ensures premium market access for Ireland’s top-quality mussels, demonstrating that the sector is vigilant in disease prevention and control, maintains high biosecurity standards and is environmentally aware. MSC certification underpins industry and consumer confidence and is a lucrative marketing tool.

The intention of the instrument is to maintain the status quo and keep the aquatic animal health and alien species in aquaculture regimes functioning as now. It does not create new policy or change existing policy. As a result, there are not expected to be any significant impacts arising from it. In bringing forward this legislation, a workable legal framework underpinning business as usual will be preserved after exit for aquatic animal health and alien and locally absent species in aquaculture. As I said, the instrument will assist Northern Ireland with its very high aquatic health status, which it shares with the other part of the island of Ireland. I beg to move.

[Lord Adonis (Lab)]

My Lords, we are expected to consider these statutory instruments in Grand Committee this afternoon about no deal, but imminently the Chamber will consider another string of statutory instruments regarding no deal at the same time. Incapable as I am of being in two places at once, I want to put on record that I think that situation is totally unacceptable. The more important business is of course in the Chamber, because it can actually approve the regulations rather than simply debating them. I think this is now the fourth time that this has happened. Last time, I made representations to the Government Chief Whip and the Opposition Chief Whip, but clearly those representations have not been effective—otherwise we would not be in this situation again today.

I do not intend to take any further part in the Grand Committee this afternoon, because I need to be in the Chamber, but I intend to speak on these regulations when they come to the Chamber, not least because there is very sparse attendance in the Grand Committee this afternoon, and I think other noble Lords would have wished to be here if they did not have to attend to their duties in the Chamber. I regard this debate as essentially unreasonable, in that it has been scheduled alongside the debates taking place in the Chamber. I do not think they will be able to substitute for the debate in the Chamber because they are happening at the same time.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the Minister for his clear introduction and for the courtesy of meeting us beforehand. I also thank all noble Lords who have contributed to this debate. I remind the Minister and other noble Lords who have been with us on the journey of these SIs that we remain concerned about the whole process for dealing with them. My noble friend Lord Adonis raised one of the issues, but there are a number of other process issues. I do not intend to repeat them today, but the Minister will be well aware of our concerns. For example, we do not have the aquatic animal health and alien species in aquaculture regulations here today, although the Explanatory Memorandum says they should be linked to this SI. That is just one of the issues about the rather haphazard way in which these SIs are being tabled for consideration.

However, we are broadly in agreement with these regulations. They seem to do their best to maintain the status quo in aquaculture in Northern Ireland. It is clearly important to have a strong biosecurity framework which protects animal health and gives maximum protection from imported and exported disease, so it is important that these regulations are in place from day one.

I reiterate that it is a great regret to us that we do not have a functioning Northern Ireland Executive, so that we have to make decisions in their absence. Perhaps if we were not taking up all government time on the distraction of Brexit the Government would have more time to resolve the huge political challenges that face the UK, but perhaps that is an issue for another day.

On the specifics of this SI, the Minister referred to the close co-operation of Northern Ireland and the Republic of Ireland, and the noble Lord, Lord Teverson, referred to their shared interests, which are inevitable because they share inland waterways and a coastal aquaculture. Obviously there is a particular danger of cross-contamination within those waterways. But have the Government of the Republic of Ireland been consulted on the content of this SI, and have they registered that they are content with our proposals, given that they have such a lot in common with us?

Also, can the Minister explain in more detail how the buffer zones are intended to work? When I read the SI and the Explanatory Memorandum, I was unclear whether this was a new legislative function, and whether this is imposed around each separate aquatic business or on a larger geographical basis. Does this help protect the waterways between Northern Ireland and the Republic?

Finally, I pick up the point raised by the noble Baroness, Lady Macintosh. The Explanatory Memorandum explains in paragraph 7.5 that EU aquatic animal health standards, as we have them at the moment, are higher than international standards, and that if we do not adhere to EU standards in the future, that could result in the UK being unable to trade products with the EU and third countries. It goes on to say that the Government have, therefore,

“decided to maintain regulations regarding aquatic animal health at or above EU standards”.

We very much welcome this approach. It is an approach that we believe should be applied more widely across other food and animal trade issues which will be dealt with in other SIs scheduled for consideration. It could have been applied in our debate last week on pesticides, for example, but the Government took a different approach on that issue and set up a separate UK regulatory regime, which was not linked to the existing EU one.

Can the Minister clarify the actual clause in the SI that gives effect to this policy? Can he also explain the circumstances in which the principle of applying standards at least as good as those of the EU will apply in future SIs, as we all have an interest in this being rolled out more widely? I look forward to his response.

[Lord Gardiner of Kimble]

My Lords, I am most grateful for a very thought-provoking debate on these matters. I emphasise that the amendments in this instrument are purely about technical changes to ensure that all the arrangements that are being brought over into our statute book are operable and so forth. A number of points were made; if I could run through them and then, if there are any others, I might receive some assistance.

Both my noble friend Lady McIntosh and the noble Baroness, Lady Jones of Whitchurch, referred to equivalent or higher standards. The Explanatory Memorandum states that:

“EU law regarding aquatic animal health set standards equivalent or higher than the international standards set by the … OIE”.


We want to ensure that we are able to trade with our European partners and others post Brexit. Therefore it is vital that our aquatic animal health status is at least of equivalent or a higher standard, to ensure that there are no barriers from a disease perspective. As I have explained, particularly in Northern Ireland, the health status is very high, and there are far fewer aquatic diseases in the island of Ireland. The UK, and Northern Ireland in particular, might want to diverge precisely to set higher standards. We will be able to do so, so that we remain focused on biosecurity and proactive in preventing disease. As I said in my opening remarks, with the far fewer fish diseases that there are on the island of Ireland, that is an absolute imperative.

The noble Lord, Lord Teverson, mentioned the single epidemiological unit. It will of course remain. It actually does not relate to Europe; this is an arrangement agreed by the Irish Government and the Northern Ireland Assembly. As I hope I have outlined, it is absolutely essential if the two Administrations are to deal effectively with ensuring that there is a healthy status.

As I said, there is excellent co-operation and collaboration between DAERA and the Department of Agriculture, Food and the Marine in aquatic animal health and aquaculture. That collaboration is regular and extensive. Both departments work closely with research institutes, such as the Marine Institute in Galway and the Agri-Food and Biosciences Institute in Belfast on a range of fish health issues. Also, the north/south fisheries liaison group involves co-operation on operational issues relating to inland fisheries management. It was established by Inland Fisheries Ireland and its parent department, the Department of Communications, Climate Action and Environment in the Republic of Ireland, DAERA in Northern Ireland and the Loughs Agency. That is important because, if I remember rightly, the five sea loughs are cross-border. The Loughs Agency is a cross-border implementation body, established under the Belfast Good Friday agreement. In addition, there is a north/south standing scientific committee for inland fisheries. I have many other examples of the intrinsic way both parts of the island of Ireland work on these matters.

The noble Baroness, Lady Jones of Whitchurch, asked specifically what consultation there had been with the Irish Government. Of course, as a matter of courtesy, DAERA will inform them of these technical changes at the next bilateral, but there was no formal discussion because, with the continuum of all the fora I have described, this is how it will be operable in Northern Ireland. As a matter of courtesy, DAERA of course has extensive and regular dialogue.

The noble Baroness, Lady Jones of Whitchurch, asked about buffer zones. The wording on buffer zones in this instrument is consistent across England, Wales and Scotland. There is no conferral of a legislative power. DAERA is not transposing article 49(2) of the 2006 directive, but merely ensuring that references to it in the principal regulations, or to provisions that cross-refer to it, operate properly by referring to “the competent authority” rather than “the member state”. The power for DAERA, as the competent authority, to establish buffer zones is precisely to prevent or to limit the spread of disease. The key point is that that is already conferred by Regulation 27 of the Aquatic Animal Health Regulations (Northern Ireland) 2009, which transposes article 49 of Directive 2006/88/EC. I am sorry for what seems rather a considerable number of words, but they are to show that it is within DAERA as the competent authority to establish those buffer zones.

To my noble friend Lady McIntosh I say that, yes, this is a matter for a no-deal scenario but, whether the United Kingdom leaves with no deal or not—obviously, the Government are working extremely hard with others to secure a deal—clearly some of these technical operability points would have to be attended to at some point. I do not believe that a lot of our work would have to be attended to to get it into the prism of being UK or Northern Ireland-compliant. As the competent authority, DAERA will also continue to inspect all live fish imports. The FSA in Northern Ireland has a role in relation to products going for human consumption. The MSC is a certification body only—it does not have enforcement powers in Northern Ireland.

My noble friend Lady McIntosh also raised the question of crabs. Northern Ireland is a strong exporter of crabs landed in the Province, and they are largely sold to the EU, but this should not affect any crabs exported from the Faroe Islands. I was interested in the point raised by the noble Lord, Lord Teverson, about the Faroe Islands, which, no doubt, will be a matter for further consideration and discussion.

The issue of tariffs is still under consideration by the Government, and the Secretary of State said yesterday at the NFU conference that it is matter on which there is considerable focus.

On the question of the export health certificates, the UK remains committed to not imposing a hard border between Northern Ireland and the Republic under any circumstances. In a no-deal scenario, it is assumed that the EU will require an export health certificate for all exports of products of animal origin, which includes all fishery and aquaculture products. For live exports of aquatic animals, fish health certification will be required to meet EU standards—I conjecture that that would apply to Northern Ireland produce, for the reasons I have described. Consignments approved for export will have to be inspected by an official inspector before departure; that will be an increased imposition on current trading arrangements and will ultimately fall to DAERA resources.

I wonder whether there are any other points that I need to answer; if there are any, I will look again at Hansard. I say to the noble Baroness, Lady Jones of Whitchurch, that with Defra business I will use every endeavour to inform all interested noble Lords. Those who contacted the official on the telephone number found in the back of the Explanatory Memorandum—including, I think, the noble Baronesses, Lady Jones of Whitchurch and Lady Parminter—have said to me, “This is wonderful because it so rarely happens”. That is purpose of Defra being a helping hand and not a heavy one, so I encourage that. I informed a number of Northern Ireland Peers that the debate was happening, to say what it was about. They obviously thought the discussions were technical and on operability, but I am very keen that there is this dialogue in the Moses Room. A lot of detailed discussions can take place in the Moses Room. I am mindful of what the noble Lord, Lord Adonis, said about further discussions, but the truth is that all the noble Lords I would expect to see on an issue such as this, where there is a specialism and an interest, are here.

I will look at Hansard to see which areas I might not have precisely covered, but on the basis that I think I have covered as many as I can at the moment, I commend the regulations.

Motion agreed.

Equine (Records, Identification and Movement) (Amendment) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Wednesday 20th February 2019 Grand Committee

Moved by

[Lord Gardiner of Kimble]

That the Grand Committee do consider the Equine (Records, Identification and Movement) (Amendment) (EU Exit) Regulations 2019.

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

My Lords, it is probably appropriate that I declare an interest as a member of the British Horse Society, although, sadly, at the moment I do not own any horses.

The purpose of this statutory instrument is to ensure that EU law regarding equine identification, which will be retained following withdrawal, has the necessary technical amendments made to it so that equine legislation remains operable. This will ensure that the human food chain can continue to be protected and that equines can continue to be traded and moved into and through the EU, while maintaining robust standards of equine health. The current system of equine identification is set out in EU legislation, primarily by Commission Implementing Regulation (EU) 2015/262 —the equine passport regulation.

The regulations before us do not make any changes to current policy or enforcement already in force, but I would like to set out the principal changes that they make. Part 2 sets out the technical amendments to the text of the retained EU equine passport regulation to ensure continued operability. Part 3 makes similar technical amendments to certain directly retained Commission decisions relating to equines—namely, on the collection of data for competitions, the recognition of stud books and the co-ordination of information exchange between those stud books. Part 4 makes amendments to the EEA agreement, as retained in UK law under the EU withdrawal Act.

These necessary technical amendments to ensure operability involve changing references to the Union in the current EU regulation to refer, instead, to the UK or, where the admission of equines with appropriate ID documents from the EU is concerned, to equines from both the EU and the UK. References to authorities in member states are amended to refer to the appropriate authorities in the UK, which in relation to England will be the Secretary of State, in relation to Scotland will be Scottish Ministers, in relation to Wales will be Welsh Ministers, and in relation to Northern Ireland will be the Department of Agriculture, Environment and Rural Affairs.

In Parts 2 and 3 of the regulations, certain articles of the Commission regulation and Commission decisions are omitted by this legislation. For clarification, this is because they contain provisions that will no longer have relevance once Section 2(2) of the European Communities Act is repealed. The omitted articles will therefore become redundant. For example, a requirement to provide for enforcement, or an ability to derogate from the legislation, can no longer be given effect because there will be no legislative power to do so once Section 2(2) is repealed. However, where relevant, necessary provisions have already been given effect by domestic legislation and they will be preserved and continue to have effect by virtue of the EU withdrawal Act.

I draw your Lordships’ attention to one addition that the regulations make, which is the insertion of a new article 15A. This is because, in the event of a no-deal exit, it will be necessary to have the facility to generate a supplementary travel document to accompany some equine movements. Such a document is a standard requirement for certain types of movement originating from a third country. Equine IDs issued by passport-issuing organisations in the UK will not be sufficient for this purpose because the ID must be issued by the competent authority.

This travel document will be necessary only for unregistered equines. These are equines that are not registered on an EU approved stud book or by an international organisation that manages the competition or racing of horses, including ponies. The Animal and Plant Health Agency has drawn up a simple single-page document which will satisfy the requirements of the legislation. It can be printed off and signed by the vet at the same time as other travel documentation is issued. The Animal and Plant Health Agency has taken on additional staff and undertaken training to ensure day-one readiness. In Northern Ireland, the role will be performed by the Department of Agriculture, Environment and Rural Affairs, which has similarly indicated appropriate readiness.

The House of Lords sifting committee raised the cost of blood tests for equines moving into or through the European Union. To be clear, European rules require that third countries must be assigned a disease risk status. There are seven possible categories which are based on the geographic region of the third country and the level of associated equine health risk. Blood testing is a mandatory requirement for all equines from third countries. The number of tests required reflects the disease risk category assigned to the third country. Given the UK’s high health status and high welfare standards, of which we should be rightly proud, we would expect to be assessed as low risk and therefore subject to the minimum of such tests, which should limit the cost implications on the sector.

The UK has already submitted an application to the EU for the third-country listing of equines as a contingency, as part of a wider application covering other live animals and animal products. The Commission has since indicated its desire to list the UK “swiftly”, if necessary. I should stress that these testing requirements, as with the need for a supplementary travel document, are not in any way due to this legislation. Both requirements are a consequence of the UK becoming a third country; thus we would be subject to existing laws set down for third countries. The equine sector is very familiar with blood tests and it is already the industry norm for current UK to third-country movements.

For the avoidance of doubt, while all equines will require blood tests prior to movement, the supplementary travel document will be necessary, as I have said, only with respect to the movement of “unregistered” equines into the EU. My department has been working closely with key members of the equine industry to ensure that the new processes are as simple as possible. We are communicating the detail of the necessary changes to equine owners and all involved in horse movement. The extent of these regulations is the UK. All the devolved Administrations have been consulted and involved in the preparation of this legislation; indeed, they have consented to it coming into force. I beg to move.

[Baroness Byford (Con)]

My Lords, I thank my noble friend for introducing this statutory instrument. I have one or two observations, but I am grateful to him for explaining why the Lords sifting committee has recommended that it should be an affirmative instrument. Clearly, the blood testing will be new for some people who are going to be exporting. I am also glad that the single lifetime document will continue as it is.

I want to ask my noble friend about an aspect that has always worried me and continues to do so: the export of ponies or horses, which on the whole are supposed to be going for riding or other purposes but often go into the human health chain. I am glad that the SI refers to this because it clearly mentions the potential harmful substances which could be in those animals when they are exported. Can he tell me a little more about the Government’s thinking on that aspect rather than the stud, breeding and horseracing side that we automatically think about? However, I think that hundreds of animals are still being shipped abroad for whatever purpose—in the end, we are not quite sure about that.

I turn to the Explanatory Memorandum. Paragraph 13.2 on page 4 refers to “retrospective microchipping” for older horses,

“which will apply from 1 October 2020”.

What will happen between now and then or is something already in place that I have missed? That is quite likely because these statutory instruments are complex.

As far as I am concerned, I welcome the instrument. It is really a matter of transferring EU laws to make it possible for us to continue in the same way. However, we must bear in mind that becoming a third country brings with it additional requirements for those involved in the sector. However, I am much more at ease with those that are registered than perhaps I am with the unregistered. I am not sure how this statutory instrument deals with that aspect of animal welfare and, in fact, in the end of human health welfare too.

--- Later in debate ---

Finally, I understand that the recent Equine Identification (England) Regulations 2018 will become subject to review by no later than October 2023. This is some considerable time ahead, and no doubt is the normal due process procedure in normal times. Would the Minister consider whether this process should be reviewed and reconsidered, given the various regimes, should no deal indeed turn out to be what happens?

[Lord Gardiner of Kimble]

My Lords, I am most grateful again for this very constructive debate. Some of the issues have gone beyond the instrument itself, but I am delighted to answer as many of them as I can. If there are points of detail to follow up, I will ensure that we do so.

In reply to the noble Baroness, Lady Parminter, and the noble Lord, Lord Trees—in fact all of your Lordships, because this is something that we all care desperately about—this SI absolutely is about the continuation of the existing high standards of biosecurity and equine health. There is no change to anything at all in these technical and operability amendments. I say again to my noble friend Lady Byford and the noble Baroness, Lady Parminter, that there are absolutely no changes in the standards required for horses entering the food chain. Articles 34 and 37 of EU regulation 15/262 cover the action that must be taken when an equine dies or is slaughtered to ensure that the animal’s ID and medication record reflect any medical products administered to the animal and its status regarding the food chain.

In reply to the noble Lord, Lord Trees, and the noble Baroness, Lady Parminter, the Food Standards Agency enforces checks carried out at slaughterhouses and will take appropriate enforcement should that be required. The combination of the legislation, passports, microchips, the UK’s central equine database and checks by the FSA help to ensure that, with that architecture, the safety of the human food chain is secure.

To confirm, because it is terribly important, particularly to my noble friend Lady Byford, these regulations will not affect government policy on the slaughter of equines for food. The existing equine identification rules do not prevent the slaughter of an equine for human consumption, provided the equine is properly identified in accordance with the legislation and has not been signed out of the food chain.

On the issue of passports, which the noble Baroness, Lady Parminter, and the noble Lord, Lord Grantchester, referred to in one sense, the current rules around applications for and the issuing of an equine passport are set out in our domestic regulations—for example, at Regulation 6 of the Equine Identification (England) Regulations 2018. For article 12, referred to by the noble Lord, Lord Grantchester, concerning a derogation allowing for a shortening of the deadline for issuing a passport, domestic secondary legislation already sets out the appropriate and necessary deadlines. Therefore, the article is omitted from the retained primary because it is covered in domestic law. The relevant provision in England can be found in Regulation 6 of the Equine Identification (England) Regulations.

On the point raised by the noble Lord, Lord Grantchester, semi-wild ponies are in so many ways an iconic and cultural part of many of our wonderful landscapes. Article 13, which was omitted from the retained legislation, contains the derogation available on semi-wild ponies. The domestic regulations, which came into force for England on 1 October 2018 and in Wales on 12 February 2019, make use of the derogation for semi-wild ponies. Therefore, the allowance rules pertaining to semi-wild ponies are not changing. For example, this is a provision in Regulations 17 to 23 in Part 3 of the Equine Identification (England) Regulations. An equivalent provision is made in the Welsh regulations.

I am well aware of the long-standing nature of the tripartite agreement, which was raised by my noble friend Lady McIntosh. The Government recognise the importance of the tripartite agreement and we have published the implications of a no-deal Brexit on equine movement in the technical notice Taking Horses Abroad if there’s No Brexit Deal. This made clear that we would no longer have access to the tripartite agreement if the UK leaves without an agreement. Of course, we are seeking and want a deal, and I am well aware of all the equine interests. There has been a very strong working relationship with the equine sector for a long period of time. We fully realise that we want to ensure the free movement of equines as part of the tripartite agreement. If we did not have that access all EU member states would be subject to the same rules on equine movements—we are planning for this scenario, although we do not want these circumstances to arise. I think everyone in the equine world—many in Ireland, although not so many in France—is working as hard as they can to get these matters resolved.

My noble friend Lady Byford mentioned retrospective chipping. This is in our domestic regulations. The 2020 deadline for microchipping is to give time to owners of horses that were not previously required to be microchipped to adjust to the new requirement, but these microchipping requirements are so important for identification if horses are stolen or get loose, or if there are strays. There are all sorts of reasons why it was absolutely right that we extended microchipping to all horses and to give that ability for older horses that were not part of the original regime. I suggest that anyone who has not had their horse microchipped and, inevitably, has a routine visit from the vet, gets it done at the same time.

A number of other points were made. As I said in my opening remarks—the noble Lord, Lord Grantchester, referred to it—we have been in close communication with the Commission about a listing, not only on this matter but more widely. Clearly, the stud book issue is alongside that. Although obviously I cannot guarantee it, we are very positive about the response and understanding in the reference to “swiftly” because member states are of course keen to continue with the movement of equines, particularly between the Republic of Ireland and the UK, where there is a strong equine connection, and indeed between the UK and France. It is absolutely understood that it will be of mutual benefit to get those listings.

Aquatic Animal Health and Plant Health (Legislative Functions) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Wednesday 20th February 2019 Grand Committee

Moved by

[Lord Gardiner of Kimble]

That the Grand Committee do consider the Aquatic Animal Health and Plant Health (Legislative Functions) (EU Exit) Regulations 2019.

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

My Lords, I shall speak also to the instrument grouped with these regulations, as they are so interconnected. I should make it clear, first, that neither instrument makes any change to policy. These instruments are technical in nature and are to ensure a smooth transfer of powers from the EU to the UK. Secondly, I make it completely clear that these instruments in no way diminish our controls in the important subject areas covered. There is no proposal to alter or reduce our biosecurity controls for animals or plants, our animal welfare standards or our capacity to protect public health. Thirdly, Ministers will be able to make negative resolution statutory instruments only on specific procedural or technical matters that are laid down in the various legislative functions currently exercisable by the European Commission. The new enabling powers will therefore be confined to those matters that the European Parliament and Council have delegated to the European Commission to implement by way of tertiary legislation with input from relevant experts.

Legislative functions are currently conferred on the Commission by EU legislation. They enable the Commission to set out the technical details of the regimes in what is known as tertiary legislation. The two instruments take those powers currently held by the Commission and transfer them to the appropriate Ministers in the UK. These instruments are therefore correcting measures enabled by the European Union (Withdrawal) Act 2018. As I have said, the crucial point is that they do not introduce new policy. They preserve the current animal, fish and plant health regimes and simply ensure that we continue to operate effectively.

The Animals (Legislative Functions) (EU Exit) Regulations 2019 cover the area of animal health and welfare. They provide for legislative functions to be exercisable by UK authorities. The exercise of those functions will principally be by way of domestic secondary legislation by the appropriate authorities, made under the negative resolution procedure as they will involve minor technical amendments to the EU retained law. This instrument transfers existing functions currently conferred on the Commission in the areas of: animal transport—Regulations 2 and 6; livestock identification—Regulations 3 and 5; transmissible spongiform encephalopathies or TSEs—Regulation 4; seal products—Regulation 7; animal slaughter—Regulation 9; animal by-products or ABPs—Regulation 8 and 10; and zootechnical conditions— Regulation 11.

These functions include matters such as: amending implementation rules and procedures when amending detailed rules of sampling and laboratory methods; approval of new scientific disease-related tests; revisions to disease monitoring and surveillance; setting down rules for breeding programmes to recognise disease resistance in livestock; determining feed safety practices; amendment of training and educational programmes; and the uniform application of disease contingency plans. They also include the power to amend the welfare requirements for transporting live animals and methods of animal slaughter to take account of scientific and technical progress.

Regulation 12, “Saving and transitional provision” is a cross-cutting regulation applying across this instrument. It contains transitional and saving provisions relating to standard form documents. For example, although new forms will be introduced for the UK, under these regulations, it will also be permissible to use the current EU forms for several months after exit day.

Turning to the Aquatic Animal Health and Plant Health (Legislative Functions) (EU Exit) Regulations 2019, there is one matter which I wish to draw to your Lordships’ attention. This relates to the Explanatory Memorandum, which has been amended. The amended version, which was published on Monday, merely deletes incorrect references to powers not included in the SI, and therefore does not affect the content of the SI. The first was about editing the criteria for listing diseases. This was not included in the SI as the focus of this instrument is to ensure day-one readiness. The power to amend the criteria is not required to be transferred as the current criteria are well-established and effective. The second change involved the power to set out detailed rules for the introduction into the EU of aquaculture animals and related products from third countries. This was moved from this instrument to the Import of and Trade in Animals and Animal Products (Amendment etc.) (EU Exit) Regulations 2019, which contain a number of similar amendments. The detailed rules on imports into the EU are currently set out by the Commission in model health certificates, and the proposed amendments remove these model health certificates from retained EU law and allow the Secretary of State and the devolved Administrations to publish new health certificates for imports into the UK. I hope your Lordships will accept my apologies for any inconvenience or confusion. None of this affects this SI, but I wanted to be straightforward and open about the changes.

This instrument also provides for a series of legislative functions currently conferred by European Union legislation upon the European Commission to be exercisable instead by Governments in the United Kingdom. The difference is that this instrument relates to EU directives while the previous instrument covers EU regulations. Directives are transposed into domestic law by regulations or, in some cases, primary legislation, when they come forward, so they are already on the statute book. However, the functions conferred on the Commission in those directives were not transposed as it would not have been appropriate to do so, but they are now being brought in by these regulations to the appropriate Ministers in the UK.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the Minister for his introduction today, and his courtesy in providing us with a pre-briefing. I thank all noble Lords who have contributed to this discussion, and I refer to my entry in the register of interests. Like the noble Baroness, Lady Bakewell, we reiterate our concern about the process for dealing with these SIs. Once again, we register our concern about the reliance on powers being granted to the Secretary of State without external scrutiny and challenge.

It seems a bit of an act of desperation to produce these composite SIs, which have completely different subject matters, particularly when there are other SIs in the pipeline covering more specific regulations relating to these individual topics. In retrospect, it will make it very difficult for people to navigate their way through all these different bits of legislation and the different SIs.

I turn to the aquatic animal health and plant health SI. We accept that, for the most part, the substance of this SI is non-contentious, but I have a few questions. First, this instrument transfers a number of technical legislative functions to the Secretary of State, but it also refers to “appropriate authority” and “other responsible authorities”, suggesting that these powers may be sub-delegated. If that is the case, to which public bodies do the Government propose to sub-delegate these powers? Assuming that these powers will be sub-delegated, will the public bodies have to report on their use of the powers under the relevant provisions of the European Union (Withdrawal) Act 2018?

The second issue is on plant health. The SI transfers responsibility to the Secretary of State for import restrictions and bans on plants and plant produce, as well as emergency measures for restrictions on imports to prevent plant pests being imported. According to the Explanatory Memorandum, this power is conferred,

“in light of developments in scientific or technical knowledge or technically justified and consistent with the risk to plant health”.

So far, so good, but could the Minister clarify how these functions will be carried out by the Secretary of State, which organisations will be authorised to make that scientific or technical assessment, what will the status be of any advice given in these circumstances, and what additional resources will be required to carry out these functions previously carried out by the EU Commission?

Finally, I have a question relating to the controls on disease in aquaculture animals. In Regulation 6, on page 3, reference is made to adding, varying or removing an exotic or non-exotic disease from the proscribed list. Obviously, we want to make sure that diseases harmful to aquatic animals are controlled and are not inadvertently spread from the EU or third countries, but the circumstances in which these controls are put in place in aquaculture seem to concentrate solely on the adverse economic impact and the likely production or export losses. There is no reference to the welfare or suffering of the species involved.

I realise I am treading on a controversial issue here, but should the Secretary of State not have a wider responsibility to ensure good animal husbandry and a disease-free environment for these fish regardless of the economic consequences? I realise that this SI transfers current EU regulations, but is this something that the Minister will aspire to address when the opportunity arises? I hope that when he replies he will take into account the increasing evidence that fish that are farmed in an aquaculture environment that most closely replicates their natural environment are kept disease free and are less stressed, more productive and more robust in the longer term, so there is a longer-term benefit all round.

Turning to the Animals (Legislative Functions) (EU Exit) Regulations, again it would be helpful to know the appropriate authority in these regulations and the extent to which its advice is given independently and made public. I also have a few issues of detail to raise with the Minister. First, like the noble Lord, Lord Trees, I am concerned that the regulations on TSEs seem to water down the requirement in the annual monitoring programme to check animals in remote areas with low animal density. They also allow the overall programme to be revised based on a comprehensive risk analysis. Who will carry out this risk analysis and what organisations will be consulted before any changes are made?

The regulations also allow proteins derived from fish to be added to the feed of young ruminants based on a scientific assessment of their dietary needs. Will the Minister clarify who will be responsible for carrying out the scientific assessment? Does he accept that any relaxation of the current rules relating to TSEs should be made with extreme caution?

I refer the Minister to Regulation 7, which relates to the trade in seal products; I gave him notice of this question. As I read this regulation, it seems to water down our current ban on products derived from seal hunts. For,

“Commission shall adopt implementing acts”,

it substitutes,

“the Secretary of State may make regulations”.

It goes on:

“The Secretary of State may, by regulations … prohibit the placing on the market of seal products derived from seals killed as a result of a seal hunt conducted primarily for commercial reasons”.


What is intended to be achieved by that change and why do the regulations not spell out clearly a continued requirement to ban such products on the basis currently in operation in the EU? I look forward to his response on these issues.

[Lord Gardiner of Kimble]

My Lords, this has again been a very interesting and helpful debate. I understand that this is a subject that excites public concern and interest. The noble Baroness, Lady Bakewell, was concerned about future Secretaries of State. This instrument is about a very distinct area of operability. Changes of the sort the noble Baroness was envisaging would come through a completely different route. The work we are doing today is very technical and is about issues that the European Parliament and Council have defined as being for the Commission to manage. These instruments are very tightly drawn. Therefore, any changes of the sort that the noble Baroness might be envisaging are not in them because they are not about changing policies in the areas that have come up in these regulations.

I turn to one issue immediately. I can safely say to your Lordships that I am extremely concerned about TSEs and extremely cautious. The noble Lord, Lord Trees, and the noble Baroness, Lady Jones of Whitchurch, raised them. I want to make it absolutely clear that the TSE monitoring programme will not be watered down by the amendments; it will continue unchanged after we leave. Similarly, the Government have no plans to alter feeding stuffs regulations. These regulations exactly reflect the current EU programmes. Our existing monitoring programme for TSEs will remain at the current level, and we have no plans to change it. The Animal and Plant Health Agency is the national reference laboratory for TSEs and has the latest scientific evidence. I say that only to ensure that there is a recognition of the expertise that we have, as the noble Lord, Lord Trees, in particular, will know. Obviously one can never bind anyone else, but this is an area where, given what we have seen in a whole range of areas, we should always be extremely cautious.

As to whether there is any intention of loosening restrictions, the Government do not allow the feeding of fish meal to young ruminants and have no plans to alter that position. Again, any future changes would have to be based on a scientific assessment of the dietary needs of young ruminants and of the control aspects for permitting the young of ruminant species to be fed proteins derived from fish. However, as I said, this Government have no plans to alter the current situation.

I should have declared my farming interests and I apologise to your Lordships for not having done so.

Following the outbreaks of BSE and foot and mouth disease, which resulted from animal by-products entering the animal feed chain, in 2003 the EU implemented legislation to ensure the safe handling and disposal of animal by-products. The Government take very seriously the ever-present risk of the entry and spread of serious livestock disease. We all recall the pain and distress of those outbreaks. I can just remember the 1967 outbreak when I was at school. I was quite young, but I remember it very dramatically. There was also the foot and mouth outbreak in 2001. I want to be absolutely emphatic on this issue. Although this instrument has nothing to do with these matters in terms of the policy, which is not being changed, we simply must not and will not relax our guard. High standards of biosecurity are essential.

My noble friend Lady McIntosh and the noble Baroness, Lady Bakewell—I was going to say “my noble friend”—asked about rabbits and hares. Rabbit, and possibly hare, form a normal and much greater part of the diet in parts of the EU. There are currently no FSA-approved establishments for the slaughter of farmed rabbits or indeed hares—I have never even heard of hares being farmed. While the UK has a small rabbit farming industry, we are unaware of any commercial farms producing rabbits or hares for meat. Article 11 of directive 1099/2009 provides a derogation that currently allows farms to slaughter up to 10,000 rabbits, hares and poultry per annum outside an FSA-approved establishment, but there are currently no FSA-approved establishments here. This provision was brought back as part of that regime, but I am not sure it has a UK resonance. We have no plans to change any of the arrangements.

Animals (Legislative Functions) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Wednesday 20th February 2019 Grand Committee

Moved by

[Lord Gardiner of Kimble]

That the Grand Committee do consider the Animals (Legislative Functions) (EU Exit) Regulations 2019.

Motion agreed.

Vehicle Pollution: Children’s Health

Lord Gardiner of Kimble Excerpts

Monday 18th February 2019 Lords Chamber

[Baroness Seccombe]

To ask Her Majesty’s Government what steps they are taking to reduce air pollution from vehicles and what assessment they have made of the impact of such pollution on children’s health.

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

My Lords, the clean air strategy, which has been praised by the World Health Organization, sets out action to reduce emissions from a range of sources to improve public health. Alongside that, the more than £3.5 billion planned to tackle roadside nitrogen dioxide concentrations includes £1.5 billion to support the uptake of ultra-low-emission vehicles and grants for 85,000 domestic electric vehicle chargers. Long-term exposure to air pollution is a particular threat to vulnerable groups including the very young, whose lungs are still developing.

[Baroness Seccombe (Con)]

My Lords, I thank my noble friend but in the side roads near the tented city opposite there are drivers sitting in their parked cars with their engines idling, discharging poisonous fumes. We know that this is illegal but it still persists. I worry about the effect on passers-by but my main concern is for little vulnerable children with little vulnerable lungs and the effect that it has on them. What can be done about this?

[Lord Gardiner of Kimble]

My Lords, my noble friend is right: it is already an offence to leave a vehicle running unnecessarily while it is stationary. I know that in the City of Westminster idling around schools and in the West End is a particular concern; I know that that council is working on it and issuing warnings and, if necessary, fixed penalty notices. The main point here is that we have to change behaviours and raise awareness. Many local authorities are now doing this, and more will do so.

[Lord Winston (Lab)]

My Lords, I declare an interest as the chairman of the Genesis Research Trust, which does research into miscarriage and stillbirth. The question is not just about born children; it is about unborn children. There is now considerable evidence from the National Institutes of Health that pollution may contribute to not only miscarriage and stillbirth but also cancer in the long term as an epigenetic effect. Is research being actively proposed, either by the Department of Health or by someone else, to look into the issue of stillbirth? There are over 3,200 stillbirths a year in Britain, one of the largest figures of any developed country, and it is a massive shock that most of them are unexplained.

[Lord Gardiner of Kimble]

My Lords, I do not have specific detail on the stillbirth issue and I will look into that. However, a joint survey by the UK’s leading children’s charity UNICEF UK and the Royal College of Paediatrics and Child Health found that 92% of child health experts believed that the public were more concerned about the negative impact of air pollution. That is undoubtedly one of the reasons why it is imperative that we all act. It is why, in working with local authorities, we need to deal with not only the over-exceedance of nitrogen dioxide but all sources of pollution.

[Lord Fox (LD)]

My Lords, the Minister spoke about reducing vehicle emissions. As he knows, the Road to Zero is a very long road; it reaches its conclusion in 2040. Meanwhile pollution is increasing and people are being damaged today, as the noble Baroness pointed out. What is happening now that will reduce pollution today?

[Lord Gardiner of Kimble]

That is precisely why we require local authorities to come forward with plans. Nottingham, the first authority with an agreed plan, is retrofitting 171 buses to reduce emissions and replacing heavy, high-polluting vehicles such as bin lorries with electric vehicles, all under its current plan. Leeds is putting in a clean air zone, starting from 6 January next year. A number of immediate plans are taking place this year and next year, but in the meantime, this is obviously a continuum to reaching the point we want—zero emissions and many fewer pollutants.

[Baroness Bull (CB)]

My Lords, we are increasingly aware of the impacts of air pollution on physical health, but recently published evidence has shown a convincing link between air pollution and mental health. In particular, research has found that children exposed to air pollution at age 12 have an increased likelihood of depression and conduct disorder when they reach age 18. Can the Minister confirm that in assessing the impact of air pollution on health, we will take both mental and physical health into account?

--- Later in debate ---

[Lord Gardiner of Kimble]

That is a very good point. I know that the Committee on the Medical Effects of Air Pollutants has started to consider the effects of air pollution on adverse birth outcomes, which may address the question from the noble Lord, Lord Winston. However, what the noble Baroness said about not only the physical but the mental aspects of air pollution is hugely important.

[Baroness Jones of Whitchurch (Lab)]

My Lords, is it not the case that the Government have been very slow in taking action on this very serious issue of the effect of air pollution on child health? The fact is that they have been dragged to the courts to make them take action, but their response has been too little, too late. What is stopping the Government now revisiting that 2040 deadline for the sale of polluting vehicles, and replacing it with a more demanding, immediate and urgent target? That would save people’s lives, particularly children’s lives.

[Lord Gardiner of Kimble]

My Lords, clearly there is an end target. As I have already set out, a lot of work is being done during that time, but much more needs to be done. The World Health Organization has complimented us on our clean air strategy, saying that it is an example to the rest of the world. I think that is a very good thing for our country.

[Baroness Couttie (Con)]

My Lords, I declare my interests as set out in the register. Does the Minister agree that awareness is extremely important in tackling this issue? Does he agree that initiatives undertaken by councils such as Westminster—which uses not just wardens but volunteers, particularly round schools, to knock on people’s windows, telling them to turn their engines off, and informing them about the problems that the air pollution they are creating causes—are extremely valuable in the fight against this terrible scourge?

[Lord Gardiner of Kimble]

My Lords, I am well aware of my noble friend’s expertise and leadership on this matter. As I said earlier, a number of local authorities—the Surrey Air Alliance, the Sussex Air Quality Partnership, the London boroughs of Hackney, Islington and Tower Hamlets, and the City of Westminster—are raising awareness. However, it is for us to change our behaviours; we must stop parents idling their cars outside schools, for instance.

Recycling

Lord Gardiner of Kimble Excerpts

Wednesday 13th February 2019 Lords Chamber

[Baroness Neville-Rolfe]

To ask Her Majesty’s Government whether they intend to introduce a simple and uniform system for both (1) labelling plastic and (2) bin collections in England, with the aim of reducing the use of plastic and encouraging recycling; and if so, by what date.

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

My Lords, we intend to introduce a uniform recycling labelling system for all packaging, including plastic packaging. We also intend to have a simpler, more consistent waste collection system. We will consult on these proposals arising from the resources and waste strategy very shortly. Thereafter, we will seek legislative opportunities so that these measures can be introduced by 2023.

[Baroness Neville-Rolfe (Con)]

My Lords, I am a little disappointed, because the time for action is now, as our useful debate before Christmas showed. People need to use less plastic and to recycle more of what they use. There is a woeful lack of clarity on what is recyclable. The simple “one to seven” industry codes need to appear clearly on all plastics, and all local authorities should have a uniform bin system—one for food waste, one for garbage, and one or more for recycling. There should also be uniform guidance on plastic, perhaps linked to the numbers I have mentioned.

Irresponsible use of plastic is causing huge damage to the environment. Does my noble friend accept—I think he does—that focused, simple, uniform action is needed and that our mother of Parliaments needs to move fast on this?

[Lord Gardiner of Kimble]

My Lords, I understand and share my noble friend’s wish for action. The truth is that we need to get this right in consultation and working with local authorities and industry. However, that does not stop a lot of progress being made before the primary and secondary legislation comes through. That is why I am very pleased that only recently Cornwall Council, for instance, announced that it will adopt a weekly separate collection of food waste and a weekly collection of segregated recyclable materials. Indeed, many supermarkets and retailers are engaging in this now. I agree—I want it done as soon as possible, but we need to get it right.

[Baroness Jones of Whitchurch (Lab)]

My Lords, should we not take a much harder line with manufacturers that produce plastics that cannot be recycled? The Government could start by producing an approved list of materials that are acceptable, which should then be underpinned by charges to those who continue to produce non-compliant products. The Government could do that immediately.

[Lord Gardiner of Kimble]

My Lords, that is why we have committed in our resources and waste strategy to reforming current packaging producer responsibility systems. The measures that we wish to bring forward will incentivise producers to make much more sustainable decisions at design stage and point of manufacture. This is consistent with the “polluter pays” principle. We want producers to be more responsible for the full costs of managing their packaging.

[Baroness Deech (CB)]

My Lords, should not this House be leading the way in reducing the use of plastic? Virtually all the mail that comes home from this House, especially during the Recess, is in heavy plastic—magazines arrive wrapped in plastic—and I hope the Government will encourage the authorities to stop doing that.

[Lord Gardiner of Kimble]

My Lords, obviously both Houses are aiming to eliminate avoidable single-use plastic by this year. I am mindful of what the noble Baroness has said and in Defra and across Whitehall we are all seeking to reduce the use of plastic. It is a very good point.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, it is not feasible to force all local authorities into standardised waste collections. Geographical areas across the country vary from blocks of flats in cities through to isolated rural homes down winding lanes. Currently, 50 different types of plastic are produced and used in the UK compared to two in Norway. Surely a more productive way forward is for the plastics industry to play its part by producing fewer plastic types and ensuring that what is produced is recyclable. Does the Minister agree?

[Lord Gardiner of Kimble]

Yes and yes. We need through research and investment, both public and private, to ensure that materials and plastic are reused and recycled much more and that there is consistency. The noble Baroness is right: the lowest recycling rate is in Newham at 14% and yet in the East Riding of Yorkshire it is 64%. There is great disparity in all regions and we need to work on obtaining a more consistent and higher rate of recycling.

[The Lord Bishop of Salisbury]

My Lords, the issue is not only recycle and reuse but reduce. I was at the celebration of the first anniversary of the Eco Synagogue a few weeks ago and saw real alternatives to plastic being developed by industry, such as Indonesian seaweed to replace 16 billion packets of ketchup, mayonnaise and the like. Alternatives are being produced but industry is so heavily invested in the production of plastic that it is difficult to make the commercial switch. What are the Government doing to fund the development of alternatives to plastic which will help us to make the change that is needed?

--- Later in debate ---

[Lord Gardiner of Kimble]

The right reverend Prelate referred to research. Innovation and research is a considerable part of the resources and waste strategy, and there is £20 million for the plastic research and innovation fund. This is about finding not only better forms of plastic but compostable alternatives. We have the exciting prospect of recycling and reusing more in dealing with our waste in this country.

[Viscount Ridley (Con)]

My Lords, does not the evidence strongly suggest that where we cannot eliminate the use of plastic we ought to incinerate it, rather than send it for so-called recycling to the Far East, where much of it ends up in rivers and thereby in the ocean?

[Lord Gardiner of Kimble]

My noble friend is right. This is why waste incineration for energy has increased to 41.4% whereas landfill, for instance, has fallen from 79% in 2000 to 12.5% currently. We are now increasing considerably the amount of energy recovery from incineration. If it is not to be reused or recycled then this is a much better option than any of the others, including landfill.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I strongly disagree with the Minister and the fellow opposite—the noble Viscount, Lord Ridley—because although, obviously, we should not be sending plastic abroad, we should also not be incinerating it. To call incinerated energy green is nonsense—it is not green. I produced a report last year, a copy of which I think I sent to the Minister, saying that incineration was about to overtake recycling. Has that point been reached? Are we burning more waste than we are recycling?

[Lord Gardiner of Kimble]

No we are not, my Lords. To be precise, in 2017 the household recycling rate was 45.2%. Perhaps we should discuss this outside the Chamber but my understanding is that 50% of energy from waste is deemed to be renewable. It is better if, rather than using landfill in that waste hierarchy, we recover energy where we cannot reuse or recycle. The overwhelming point is that innovation and research will help us to reduce the use of plastic and, wherever possible, reuse and recycle it.

Farming: Carbon Emissions

Lord Gardiner of Kimble Excerpts

Tuesday 12th February 2019 Lords Chamber

[Baroness Jones of Moulsecoomb]

To ask Her Majesty’s Government what plans they have to achieve net zero carbon emissions in farming.

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

My Lords, I declare my farming interests as set out in the register. Agricultural emission statistics are calculated by a team led by Rothamsted Research. Since 1990, emissions from agriculture have fallen by 16% and overall by more than 40%. We need to go further. The clean growth strategy, 25-year environment plan and the clean air strategy set out specific commitments to reduce emissions. We are working on an emissions reduction plan for agriculture as part of our long-term vision for a lower-emissions agricultural sector.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I thank the Minister for his reply, and I am very glad to know that work is happening. However, the NFU website states that the challenges of Brexit are as a “drop in the ocean” compared with the climate emergency which is unfolding on our planet and that agriculture is still a large producer of greenhouse gases. Farmers are going to find it very expensive to move over to any sort of zero emissions. What sort of financial incentives are the Government going to offer them?

[Lord Gardiner of Kimble]

My Lords, in the context of our own emissions, agriculture is about 10%. We clearly need to work with the farming industry on its production of food and its maintenance of the countryside. There are so many reasons why we need to work with the farming community. With the environment Bill and the Agriculture Bill, we will bring forward an environmental land management scheme where mitigation of and adaptation to climate change are going to be so important. Therefore, public money for public good is part of what we are providing, along with specific schemes to reduce, for instance, ammonia.

[Viscount Hailsham (Con)]

My Lords, while I welcome what the Minister has said, does he agree that it is very important not to impose on British farmers obligations that are not met in competitor countries? Life is going to be hard enough post Brexit for the British farmer. I declare my interest as in the register.

[Lord Gardiner of Kimble]

My Lords, clearly we believe that the production of high-quality food and enhancing the environment are eminently compatible. I absolutely understand what my noble friend has said. It is essential that, in all that we want to do, we work with farmers because they look after 70% of the land and we want them to help us produce food and enhance the environment.

[Lord Grantchester (Lab)]

My Lords, the whole food supply chain needs a partnership approach with research to relate to practical outcomes, on a similar model to that undertaken by the 10 sustainable farming groups set up by Tesco to build long-term relationships with farmers. What steps are the Government taking to ensure that the UK’s agricultural research is directly connected and translates to on-farm operations, with ambitious climate change measures, enabling farmers and the wider rural economy to benefit?

[Lord Gardiner of Kimble]

My Lords, research is essential, whether it is agritech or research into tackling endemic disease, which obviously affects livestock. For instance, we want to deal with bovine viral diarrhoea and salmonella in poultry and pigs. All the research will help us to reduce emissions, whether it is through low-emission fertilisers or whatever. In all that, we need to collaborate strongly.

[Lord Teverson (LD)]

My Lords, just as, in the energy sector, energy efficiency is the best way to reduce emissions, surely in agriculture one of the best ways to reduce emissions is by reducing food waste. What action are the Government taking to reduce the one-third of food waste there is in the supply chain, particularly when in this country we have food banks looking for food, for all the reasons that we know?

[Lord Gardiner of Kimble]

The noble Lord is absolutely right about another key strand of work, which is reducing the extraordinarily high amount of food waste produced by many households. That is happening with retailers through WRAP and the Courtauld commitment, but we need to change how we conduct ourselves and reduce food waste, because it is highly inefficient unnecessarily to produce food.

[Lord Krebs (CB)]

My Lords, the Minister will be aware of the climate change committee’s 2018 progress report to Parliament, in which it states that not enough progress has been made in reducing emission from agriculture and land use in comparison with other sectors of the economy. It particularly highlights the failure of voluntary measures to achieve reductions. Does he therefore agree that in future, if we are to move towards net zero in agriculture, there will have to be more mandatory legislation to encourage farmers to comply?

--- Later in debate ---

[Lord Gardiner of Kimble]

My Lords, clearly we want to work in partnership with the farming community, and we have supported the industry-led Greenhouse Gas Action Plan, but we are waiting to hear from the Committee on Climate Change’s advice, including setting a net zero target beyond our 2050 target. We will clearly need to work with the industry, but it is essential that we reduce emissions from agriculture.

[The Lord Bishop of St Albans]

My Lords, one point that the NFU made is that our wonderful British beef farmers are already two and a half times more efficient than the world average and four times more efficient compared with the beef from South America, so surely one of the most important things that Her Majesty’s Government could do is to put their weight behind British beef farming. What plans do they have for that sector post Brexit?

[Lord Gardiner of Kimble]

My Lords, the right reverend Prelate is absolutely right about our impressive productivity. For example, in pork, there are 36% fewer emissions; in dairy, 7% fewer. We will continue to work with industry on breeding programmes to improve the efficiency of feed conversion in beef. Clearly, all that and the £90 million investment in the transforming food production challenge is about finding better techniques to ensure that we have great products at home and abroad.

[Baroness Byford (Con)]

My Lords, going back to the original Question, what strategies are the Government using to move this issue forward? Will it go out to consultation? If so, what is the timetable for that? Secondly, I remind the Minister of the great benefit of grass-grazing animals in this country. There is a double bonus there.

[Lord Gardiner of Kimble]

My Lords, that is undoubtedly true. I have already declared my interest as a farmer. Having grass on the farm is a great way to have diversity in our countryside and produce food. As I said, we need to work with the farming industry to ensure that we can achieve the low emissions we all need and that farms continue producing food. For instance, under the farming ammonia reduction grant scheme, the funding of slurry store covers will reduce emissions during storage by up to 80%, so there is a lot we want to do with farmers.

Environment (Amendment etc.) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Tuesday 12th February 2019 Lords Chamber

Moved by

[Lord Gardiner of Kimble]

That the draft Regulations laid before the House on 5 December 2018 be approved.

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

My Lords, in line with the European Union (Withdrawal) Act 2018, these regulations make technical, legal amendments to maintain the effectiveness and continuity of UK legislation that would otherwise be left partially inoperable. The regulations will also, where appropriate, prevent the otherwise automatic incorporation of EU legislation into our national law. The SI presents no changes of policy.

The regulations consist of three main components. The first set of amendments, in Part 2, are to three environmental Acts: the Environmental Protection Act 1990, the Environment Act 1995 and the Pollution Prevention and Control Act 1999. Because these regulations amend primary legislation, they have undergone additional legal scrutiny by the Office of the Parliamentary Counsel.

Regulation 2 amends the Environmental Protection Act 1990. This Act contains references to the UK’s obligations under EU law, which will no longer work legally after exit, and we are replacing them with references to “retained EU law” and “retained EU obligations”.

Regulation 3 amends the Environment Act 1995 and makes similar amendments to those in Regulation 2. It also includes adjustments to powers in the Act to make directions and regulations for the purposes of implementing EU law, so that they can instead be made for the purposes of retained EU obligations following exit. There are also amendments to the power for appropriate agencies—for instance, the Environment Agency, the Natural Resources Body for Wales or the Scottish Environment Protection Agency—to impose charges in relation to retained EU law.

Regulation 4 amends the Pollution Prevention and Control Act 1999 and makes similar amendments to those in Regulation 2. It also adjusts the power in the Act to make regulations under Section 2 of the Act for the purposes set out in Schedule 1 to the Act. That power can currently be used in relation to EU directives, which Ministers designate from time to time. Regulation 4(3) removes this power to designate but lists the directives which have already been designated, preserving our existing ability to change and improve the relevant environmental regulations. If we did not do so, the reduction in the scope of the power could mean that we would have to use primary legislation to make the necessary changes to maintain and update environmental standards.

Part 4 of these regulations addresses existing directions and regulations made using powers under the Environment Act 1995. We are providing for them to continue for what will be domestic purposes. This will ensure, for example, that the recent air quality directions to English local authorities, requiring them to prepare local air quality plans, remain in force.

Part 3 of these regulations makes amendments to three cross-cutting environmental statutory instruments: the Contaminated Land (England) Regulations 2006, the Environmental Noise (England) Regulations 2006 and the Environmental Damage (Prevention and Remediation) (England) Regulations 2015. These instruments make similar references to EU law to those made in the Acts I have already mentioned, and for the same reason need to be amended. The instruments apply to England only; devolved Administrations are addressing separately any similar issues in devolved legislation. The amendments in these regulations make no changes to policy and these instruments will continue to operate substantively as they do now.

There is a type of EU legislation that is directly applicable. This is law that applies in the UK without any further legislation by our Parliaments, and includes EU regulations and decisions. These will automatically be brought into national law by the European Union (Withdrawal) Act, as part of retained EU law. In some cases, however, that is not appropriate. When we are no longer a member state, the UK will no longer be allowed to authorise participation in the EU’s Eco-Management and Audit Scheme—EMAS—or the EU’s Ecolabel scheme. Existing EMAS and Ecolabel registrations with UK bodies will no longer be valid. These regulations do not bring about this change: it is a result of our leaving the EU. These regulations make appropriate legal amendments to reflect the situation.

The EU EMAS regulation establishes the Eco-Management and Audit Scheme. Participation in this scheme is entirely voluntary, and there are only 17 UK-registered organisations. ISO 14001, a similar scheme established by the International Organization for Standardization, has more than 16,000 UK-registered participants. The EU Ecolabel regulation establishes another entirely voluntary scheme, under which producers, importers and retailers can apply for the EU Ecolabel for their products. Again, uptake in the UK has been low. In fact, a European Commission fitness check of EMAS and Ecolabel across member states in 2017 found that the schemes were substantially limited by levels of uptake.

The Government nevertheless attach importance to voluntary schemes that encourage businesses to improve their environmental performance. In our resources and waste strategy, we recognise that providing transparency of information can help those consumers or organisations that want to make environmentally friendly choices to do so. Guidance is also provided on how to look after their products and dispose of them at end of life. We will develop options for domestic eco-labelling before consulting more widely.

In the meantime, businesses holding existing EMAS registrations and Ecolabels will still be able to sell their products in EU member states, and they can apply to rejoin these schemes through other member states offering the service. We have published and circulated information notes on EMAS and Ecolabels to affected businesses. If we do not act, the European Union (Withdrawal) Act will bring EMAS and Ecolabel regulations into our national law. For the purposes of good public administration, and to avoid any confusion for businesses wanting to join such schemes in the future, these regulations stop that happening.

Finally, there are further EU decisions included in the schedule to these regulations, which refer to EU environmental action programmes. These EU decisions are either already out of date or will serve no ongoing purpose after we leave the EU. We will be making these amendments for the same reasons as with EMAS and Ecolabels.

These provisions apply to the whole of the UK and have been agreed between all four nations. The amendments in these regulations will ensure that UK law continues to operate smoothly when we leave. They represent no change in policy and the regulatory impact experienced by businesses and the public will not change as a result of these regulations. I beg to move.

[Baroness Byford (Con)]

My Lords, I thank my noble friend for introducing this section of statutory instruments and have listened carefully to what he said: there is no change in policy. Indeed, it is important that we pass these statutory instruments to maintain the existing regulations that we have been connected with.

My noble friend also talked about sustainability in the long term but recognised that the current audit and labelling schemes will no longer be valid. Perhaps I might press him a little more on that because clearly we will have to introduce a scheme to replace the existing ones. Is he able to tell us a little more about that and how the department will approach it? Also on that issue, I think he said that we were going to be consulting more widely. Again, it is a matter of timeframe: how soon that will happen? Clearly, that would help us in dealing with this statutory instrument.

Lastly, my noble friend mentioned that some aspects of existing EU law have become out of date and we would need to transfer powers to a new set of regulations. Can he give us any indication of how many of the changes taking place are to regulations that are considered out of date?

--- Later in debate ---

[Baroness Young of Old Scone (Lab)]

My Lords, I thank the Minister for his exposition of the statutory instrument. I know that it has made his brain hurt, so he is in common with all of us. I will focus on some specific issues and particularly tax him on one of its more arcane elements. This SI is one of those known as a jumbo regulation, because it sweeps up so many provisions in a high-level way, but it has one oddity. Regulation 5(4) dives into the detail of the Northumbria and Solway Tweed river basins. Can the Minister explain this arcanity in his response?

In a more mainstream way, I want to focus on some other issues. The Schedule to the regulations stops the EU legislation on the environmental action programme, EMAS and the Ecolabel from being brought into UK law. Personally, I am sad that we will no longer have the framework of the environmental action programmes, which were, at a minimum, the forum for EU member states to come together to express ambition for the environment. In my experience, EU Ministers and the Commission working together were braver and bolder than they would be individually when they came back home and were faced with conflicting pressures against the environment. That is another loss that we will suffer from leaving the Union.

I turn to EMAS, the European Management and Audit Scheme, of which we will no longer be a part when we leave the EU. The Minister kindly provided a briefing session involving him and a veritable army of Defra civil servants; I think of the £4 billion costs so far of exiting the EU. We were rather surprised to learn at the briefing that, as he outlined, only 17 organisations in the UK have adopted EMAS, compared to 16,000 which perform to ISA 14001, which is the global standard.

The Minister confirmed that the Government are, therefore, not planning to develop an EMAS-type scheme for the UK after Brexit. EMAS has some benefits in its approach which are beyond ISA 14001. It delivers not just continuous improvement in environmental performance and credibility—it is externally validated—but, most importantly, it promotes much greater transparency, with publicly available information on environmental performance by businesses and organisations. I ask the Minister to consider how this virtue of greater transparency could be applied to environmental performance schemes in the UK, post Brexit. What arrangements will be made for promoting continuous improvement in the environmental performance of businesses and other organisations?

At the Minister’s briefing sessions, we also heard that only 50 UK organisations use the EU Ecolabel. Ecolabels—for they are many and varied—help the public make informed purchasing choices in products and services with a reduced environmental impact. The Government made a commitment, through the waste and resources strategy, to look at developing a UK ecolabel. I say commitment, but the strategy actually says that the Government will consult key stakeholders, consult “more widely”, consider whether ecolabelling makes any difference to the public’s buying habits, consider how to encourage the public to use label information in purchasing, then decide whether a statutory scheme is needed at all. Perhaps business could just do it.

This all seems a bit “jam tomorrow”. I know that Defra is the department for food, farming and rural affairs, but tomorrow’s jam is the only food it seems to concentrate on these days. I assume that all this considering and consulting cannot happen before 29 March, so we have another example of a gap in the environmental governance framework post Brexit, with no clear timetable for the introduction of a UK alternative ecolabel. Can the Minister tell us the timetable for the introduction of a UK ecolabel and whether it will cover simply waste and resources issues or the wider environmental impacts of products and services?

Of course, as was pointed out by the noble Lord, Lord Whitty, it will be important for us to maintain alignment with the EU Ecolabel scheme if we want to trade with our nearest neighbours. What assurances can the Minister give that importers and exporters will not have to operate with different labels for the home market and the export market? In the midst of all that, how will he ensure that ecolabelling is kept as simple as possible for consumers?

While we are talking about tomorrow’s jam, the major hiatus concerns who will monitor, enforce, sanction and handle complaints about the way the new arrangements are carried out by UK authorities. We are not talking about inconsequential matters: this SI alone covers serious environmental issues contained in the Environmental Protection Act, the Pollution Prevention and Control Act, and regulations on contaminated land and environmental noise—to name but a few. The Government promised us the office for environmental protection to fill some of the gaps left by the substantial remedies we currently enjoy as an EU member, which will disappear as we leave the EU. For example, in instances where government and public bodies fail to perform, cases can be referred to Europe, with remedies through the infraction and fining process and, ultimately, the judgments of the European Court of Justice. However, we have no timetable for the legislation needed to create the office for environmental protection—the environment Bill—or its establishment in practical terms. We have no clarity yet about the real weight of its powers.

The talk on the streets is that, bearing the legislative timetable in mind, the OEP is unlikely to be fully operative until the end of the transition period, if we have one. Can the Minister confirm his understanding of the timetable? He very kindly wrote to me to say that there would be interim arrangements in the meantime but that he could not yet tell me what they might be. We are only six weeks away from potentially needing such arrangements. Either Ministers know what they are planning, and arrangements are under way behind the scenes but they are unwilling to be open with Parliament, or they do not know and no arrangements are being planned. Which is worse: being secretive or being unprepared? It is a case of one or the other; I leave noble Lords to choose one.

The environment and the people of this country are at risk from this potentially protracted governance gap. Is the Minister in a position yet to provide a timetable for the permanent and interim solutions? Can he give the House details of, or even a broad clue about, the interim solution? I hope that he accepts these comments and questions as a constructive contribution, as they are intended.

[Lord Gardiner of Kimble]

My Lords, I will say from the outset that I consider all the contributions made in the debate immensely constructive. If I am not in a position to answer any questions concerning precise detail, I will address them in due course. I was struck by the exchanges between my noble friend Lady Byford and the noble Lord, Lord Whitty; I have been in other skirmishes with them when they put their heads together, knowing that they dealt with the water Bill or whatever, so I know that I am in difficult territory. I can confirm that my noble friend Lady Byford is absolutely right that there is no change of policy.

Noble Lords raised ecolabelling and EMAS immediately. As I said, we are not in a position to continue with those schemes because we are leaving the EU. However, if we get a deal, such arrangements and schemes would continue during the implementation period; everyone seems to be working extremely hard on that. Of course, how those schemes could continue would then be open to further phases of negotiation. The question concerns how we would proceed given that, as the EU has conceded, uptake across the European Union for such schemes has been low. I was struck by the number of participants in ISO schemes compared with European ones: thousands of organisations in EU countries are registered with the ISO, but only a comparatively small number are registered with EU schemes. I do not wish to denigrate the EU Ecolabel or EMAS in any way, but it is worth considering that the number of UK-based registrants to ISO schemes is substantial.

A number of questions were asked about our vision. Noble Lords have heard this before but our vision is for environmental standards to be not only maintained but enhanced. Our waste and resources strategy recognised that information transparency is essential. As I said, we will develop options for domestic ecolabelling before consulting more widely. I am not in a position to outline the precise timing for that, but we wish to develop those options as part of our strategy. I suspect that if we get a deal—I hope we do—the ISO scheme, which runs in parallel with the ecolabelling scheme, will continue. I am sure that we would welcome noble Lords’ views about how best to ecolabel.

One issue is particularly important. I sympathise with noble Lords and say that we have a lot of ambition for primary legislation. We wish to enshrine in the environment Bill the 25-year environment plan and the establishment of the Office for Environmental Protection, which will be independent and will hold the Government to account. It is a matter of parliamentary timing. We said that legislation would be brought forward in the second Session, and we are absolutely clear that it will have teeth. It will ensure that all the areas referred to by noble Lords who have concerns about governance are addressed.

I wrote to the noble Baronesses, Lady Jones of Whitchurch and Lady Young of Old Scone, about interim arrangements. I am not in a position tonight to say precisely what they are. I do not recognise what the noble Baroness, Lady Young of Old Scone, said, because we have said in public that we are considering interim arrangements. I am simply not in a position to say tonight. I know that it is being worked on, because it has come from colleagues that this matter is being worked on. I have promised to tell both noble Baronesses, as well as all noble Lords in this debate, as soon as there is some announcement about what the interim arrangements are.

--- Later in debate ---

[Baroness Byford]

I wonder if my noble friend might give way. Is it possible to find out what body or who will be responsible before the new environmental body is set up? The difficulty is that it could be many weeks or months; we really do not know how soon that will come in. Therefore, the natural question is: after 29 March, if things are not going as we hope, where does the buck stop? Who is responsible in the meantime? It may well be that his own department takes that on, but I did not think it was clear in the statutory instruments we have just been debating. I would be grateful for some clarification.

[Lord Gardiner of Kimble]

I have to say that that area is not what this statutory instrument is about. I can say that we will bring forward measures so that there is no gap in environmental governance in the event of a no-deal Brexit. We fully realise that the independent environmental body will not be complete; we have to have primary legislation for that. But I can say—I hope it provides some reassurance—that once the office comes into effect it will have the power to review and take action on any breaches that occur from the day of us leaving. There will therefore be no period of time during which government actions cannot be held to account by an enforcement agency. I hope that is an assurance that the Government’s bona fides on this are very strong and that we do not want there to be an environmental governance gap. I am not sure that I can add anything further, but I look forward to the noble Baroness’s intervention.

[Baroness Young of Old Scone]

I thank the Minister for giving way. I just express a slight nervousness about the provision, which I absolutely recognise is necessary, for the new body to be able to take action on complaints that arise from the day of exit, whenever that is. If we were to leave without a deal and the new body did not come into being for 18 months or two years, which is quite possible under the current timetable, I would not like to think of this growing pile of complaints mounting up as the new body comes into being, so that its first act is facing a huge backlog.

[Lord Gardiner of Kimble]

I entirely accept what the noble Baroness has said. It is our duty as a Government, whoever is in office, to ensure that we enhance the environment. That is the whole purpose of the 25-year environmental plan, but I am very conscious of what the noble Baroness has said. In the meantime, I commend this instrument to the Committee.

Motion agreed.

Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019

Lord Gardiner of Kimble Excerpts

Tuesday 12th February 2019 Lords Chamber

Moved by

[Lord Gardiner of Kimble]

That the draft Regulations laid before the House on 8 January be approved.

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

My Lords, the instrument before your Lordships makes technical amendments to maintain the effectiveness and continuity of retained direct EU legislation that would otherwise be left partially inoperable, so that the law as of today will continue to function properly following exit. There are no policy changes made by this instrument.

The purpose of these regulations, in line with the European Union (Withdrawal) Act 2018, is to provide for public authorities in the UK to exercise a series of legislative functions currently conferred by EU legislation on the European Commission. In each case, the legislative function was conferred on the EU Commission so that it can interrogate the technical details of a specific EU regime and adapt them to changes without the frequent need to refer back to the EU Council and EU Parliament. These powers are clearly defined and strictly limited to technical and administrative matters. They are not the kind of matter for which we would generally, in the domestic context, require primary legislation. Rather, they would be suitable to be dealt with by secondary legislation or administratively.

Examples of these functions include specifying the forms to be used, amending technical annexes to reflect advances in scientific and technical knowledge, and updating annexes to reflect requirements under international agreements. We need the UK authorities to be able to continue to update such technical details for ongoing domestic purposes to ensure that the legislation can keep pace with change, including technological developments and our international commitments, without the need for primary legislation every time a change in such matters is required.

Parliaments and Assemblies in the UK have, until now, had little input into how these powers are exercised. In each case, these regulations set out the procedure for the exercise of these legislative functions in future. With two minor exceptions, the powers will be exercised through secondary legislation that will be subject to the scrutiny of our Parliaments.

This SI makes a number of adjustments. These represent no changes in policy, nor will they have any impact on businesses or the public.

Regulation 2 confers functions under the EU regulation on persistent organic pollutants, or POPs. These include a power to amend POPs waste concentration limits for the purpose of adapting to scientific and technical progress, and to ban, restrict or modify the use of POPs in accordance with international agreements.

Regulations 3 and 6 confer functions under the EU regulations on illegal timber and timber products. These include a power to recognise licensing schemes in partner countries to form the basis of licensing, and to amend the list of timber products to which the licensing scheme applies.

Regulation 4 confers functions under the EU regulation establishing a European pollutant release and transfer register. These include a power to take measures to initiate reporting on releases of relevant pollutants from diffuse sources where no data exists, and to adopt guidelines for the monitoring and reporting of emissions.

Regulation 5 confers functions under the EU regulation on transfrontier shipments of waste. These include a power to establish and amend technical and organisational requirements for the practical implementation of electronic data interchange for the submission of documents and information.

Regulation 7 confers functions under the EU regulation on the Nagoya protocol on access to genetic resources and the fair and equitable sharing of benefits. These include a power to establish and amend procedures for monitoring user compliance and for recognising best practice.

Regulation 8 confers functions under the EU regulation on mercury. These include a power to specify the forms to be used for export and import restrictions, and to set out technical requirements for the environmentally sound interim storage of mercury, mercury compounds and mixtures of mercury.

Regulation 9 confers one legislative function contained in an EU directive relating to industrial emissions. The power relates to determining best available techniques for preventing or minimising emissions from activities covered by the directive.

Regulations 10 and 11 confer functions under the EU regulations governing the use of leghold traps and the import of pelts and goods. These include a power to grant derogations from the ban on the import of pelts and other products, and to determine the appropriate forms for certification of imported goods incorporating pelts of listed species.

Regulation 12 confers functions under the EU regulation implementing CITES. These include a power to establish restrictions on the introduction into the UK of listed species, and to provide for derogations from certain provisions.

As I have explained, in future we will exercise these powers through laying statutory instruments before Parliament. However, I draw your Lordships’ attention to the two minor cases where administrative procedures will be used, rather than secondary legislation. These relate to POPs and leghold traps. In the first case, the administrative function being conferred concerns the determination of the format for the provision of information by the competent authority; in the second, it concerns the publication of model forms for use by importers.

In addition, the regulations also amend the retained direct EU legislation in the context of the provisions conferring these legislative functions where that is necessary to make it function properly after exit. An example of such an amendment is changing references from “Community legislation” to “retained EU law”.

--- Later in debate ---

[Baroness Young of Old Scone (Lab)]

My Lords, these regulations will allow UK authorities to exercise legislative functions in the UK after exit day in a range of areas, including, as has already been outlined, persistent organic pollutants, importation of timber products and derogations from certain CITES provisions.

The Explanatory Memorandum says that this statutory instrument does not make any substantive policy changes, but the UK public authorities exercising these newly transferred functions could immediately make changes that would have significant environmental impacts. So these regulations open up the way for significant policy changes. In view of the scale and importance of the powers being transferred to the appropriate public authority, can the Minister give assurances on the following concerns?

Will these powers remain with the Secretary of State and the equivalent in the devolved Administrations and not be delegated further? Bearing in mind the comments made during the debate on a previous SI, on the governance gap and the lack of an oversight and sanctioning body, how will these public authorities be held accountable? How will complaints against their operation of these new powers be handled?

The SI does not include mechanisms for enabling access to the necessary expert and technical advice. Do the appropriate public authorities have access to sufficient expert or technical input, and will that be sought and published on every change proposed? How do the Government intend to access the wealth of scientific and technical expertise and data available across the EU which might not be replicable within the UK? What access will the UK have, during the implementation period and after EU exit, to the EU’s systems for tracking and sharing relevant data?

Turning to the issue of consultation, what commitment will the Government make for consultation on the future exercise of these powers and proposals for changes by the appropriate public authority? The statutory instrument lays out, at Regulation 9(10), limited consultation arrangements in one specific area under the powers to make decisions on best available technique—BAT—but not on any other powers. Can the Minister assure the House that wide consultation will be the norm, with stakeholders, NGOs and the public?

I now turn to devolution. These amending regulations, as the Minister has explained, cover legislation in areas where all four nations are currently bound by the same EU requirements. The Minister very kindly at his briefing session assured us that the regulations have been discussed and agreed with the devolved Administrations, and the degree of devolution in transferring the powers to an appropriate public body has been designed on the basis of whether the matters are reserved matters. That was fine where the policy framework and the standards were EU-wide while implementation was devolved to the four nations. In the future, when policy and implementation are devolved to the nations, divergence in standards could happen quite quickly. This would have an impact on businesses operating across the four nations and on their ability to trade with our EU neighbours.

Let me give an example from Part 3 of the statutory instrument. BAT—best available technique—is one of the foundations of environmental regulation covering industrial emissions and is the basis of the regulation of things such as cement plants, steel works, power stations and chemical works that create emissions. If we have four different versions, potentially, of best available technique across the four nations, how would UK-wide regulated companies cope? How would they trade their technologies to our European neighbours, which might be regulating against a fifth version of best available technology? This cannot be sensible. That is only one example of how diverging standards across the four nations would not be good for British business and possibly not good for the environment as well.

I welcome the confirmation from the Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs on 28 January in the other place of the Government’s,

“intention to work towards a common framework for a number of different regulations”.—[Official Report, Commons, First Delegated Legislation Committee, 28/1/19; cols. 7-8.].

Can the Minister tell the House when this common framework will be published and when it will come into effect? What regulations will it cover?

[Lord Gardiner of Kimble]

My Lords, I thank the noble Baronesses for their contributions to this debate.

I hope that I can clarify immediately for the noble Baroness, Lady Parminter, the issue of leghold traps. Perhaps I should have referred to it, but in my opening remarks I said that Regulations 10 and 11 confer functions under the EU regulations governing the use of leghold traps and the import of pelts. I went on then to talk about the distinct two elements, which are in effect about forms and the format of forms. By way of reassurance, it is not that there will be no requirement for statutory instruments on leghold traps but that, candidly—proportionately—most people would think it unreasonable to have a statutory instrument on the format of a form. I hope that I can immediately take that concern out of the way.

On CITES, we are considered a very strong participant in CITES and we take our international obligations extremely seriously. I was at the conference in London during the passage of the Ivory Bill and many countries there recognised what our country is doing. We are a party to CITES in our own right. We have higher protections than mandated by that convention, and we will comply with all international decisions made at the CITES meeting in May this year. Clearly, it is important that there is alignment not only among us in Europe but across the world to ensure the importance of looking after wildlife around the world. Certainly, our commitment in terms of our international obligations is very strong. Whatever arrangements there are, we will want to work very closely with partners in the EU and internationally.

To answer the noble Baroness, Lady Young of Old Scone, if this statutory instrument is passed today, we will be in a position through statutory instruments to make changes. These are distinct technical areas that we are taking forward, but more generally I hope that I can reassure the noble Baroness and noble Lords that we wish to enhance rather than retreat. There may be changes, but this particular statutory instrument deals with those technical points that we are drawing back.

The issue of expertise is hugely important. The Government rely on the best experts available. We will use our consultation principles requiring relevant expert advice to be sought where appropriate, and those affected by any policy must be properly consulted. The noble Baroness is absolutely right that, in the case of these regulations, Regulation 9(10) explicitly requires the Secretary of State, or DA Ministers as appropriate, to consult bodies and persons likely to be affected. Of course, many of the obligations relevant to these regulations derive from our participation in international conventions such as the Stockholm convention on POPs and the CITES convention and will continue to involve us directly in multilateral expert dialogues. But the noble Baroness is right. Clearly in this area we will want to seek the views of experts and we will want to consult.

Access to EU systems will clearly be a matter for negotiation. We are all working for a deal, but I very much hope that, in terms of access, the importance of mutuality across the continent will mean that we continue to work collaboratively together.

I do not have in front of me a precise note of timings on the common framework, but the noble Baroness is absolutely right. The discussions that we have had with the devolved Administrations on this matter and others show that, for all the political knockabout, it makes sense in so much of this to work together on a UK basis. That is why, although some of the matters are devolved, we have worked extremely collaboratively and productively with the devolved Administrations. The whole purpose of the common framework is to acknowledge exactly what the noble Baroness said. We all agree mutually that any divergence should be the exception in something like this because I am sure that we all—in England in the UK Government and in the devolved Administrations—want to work positively for the environment. As soon as I am in a position to clarify anything further about the common framework I will, but all I can say is that I hear very positive signs of what I think we would all suggest was a common-sense way forward on such important matters.

I will study Hansard and if there are any particular points that I have not covered, I will of course write. In the meantime, I beg to move.

Motion agreed.