Waste and Environmental Protection (Amendment) (Northern Ireland) (EU Exit) Regulations 2019

Baroness Chisholm of Owlpen Excerpts

Wednesday 23rd October 2019 Lords Chamber

Moved by

[Baroness Chisholm of Owlpen]

That the draft Regulations laid before the House on 15 July be approved.

Relevant document: 58th Report, Session 2017–19, from the Secondary Legislation Scrutiny Committee.

[Baroness Chisholm of Owlpen (Con)]

My Lords, the regulations make corrections to three other Northern Ireland EU exit instruments and amend one piece of Northern Ireland primary legislation to address failures of retained EU law to operate effectively with regard to Northern Ireland waste legislation, arising from the withdrawal of the United Kingdom from the European Union. Part 2 of the instrument amends the Waste and Contaminated Land (Northern Ireland) Order 1997. Part 3 amends three Northern Ireland EU exit SIs to correct some earlier operability changes made to primary and secondary waste legislation in Northern Ireland. This is considered necessary to ensure that a consistent approach is taken to address operability issues identified across the relevant Northern Ireland waste legislation.

All the amendments are to provisions which relate to the interpretation and application of article 16 of the waste framework directive, once the UK exits the European Union. The amendments ensure that the requirement on the United Kingdom to move towards the aim of becoming self-sufficient in waste disposal and in the recovery of waste is adequately and accurately reflected in domestic legislation. The amendments also ensure that the relevant legislation in Northern Ireland is updated to ensure there are no inoperable references to “best available techniques”. The amendments are therefore primarily corrections which are technical in nature. Importantly, there are no policy changes and there is no reduction in the environmental standards or obligations to which Northern Ireland is currently subject.

The regulations are made under Section 8 of, and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018. The Act retains EU-derived legislation in UK law. Section 8 of the Act enables regulations, such as those we are considering, to be made to address deficiencies in EU-derived legislation that arise from the UK leaving the European Union.

The regulations extend and apply solely to Northern Ireland. They concern matters which would normally be dealt with by the Northern Ireland devolved Administration. The Government’s preference is that these Northern Ireland regulations be made and scrutinised by the devolved institutions in Belfast. However, there is no sitting Assembly in Northern Ireland and it would not be possible to make the regulations. The Government are committed to the restoration of devolved government in Northern Ireland but, given existing circumstances, we have decided to process these and other Northern Ireland regulations made under the withdrawal Act through Parliament in order to maintain the integrity of the Northern Ireland statute book. In pursuing this course, we have worked closely with the Northern Ireland Department of Agriculture, Environment and Rural Affairs.

As with other regulations made under the withdrawal Act, these regulations have been drafted on the basis of leaving the EU without an agreement. It is, of course, the Government’s preference that there will be an agreed basis for leaving the EU. The Secondary Legislation Scrutiny Committee highlighted this SI as an instrument of interest. The committee published comments by Green Alliance which highlight the group’s concerns about the removal of references to “best available techniques” in Northern Ireland legislation. They fear that this could lower environmental standards. I categorically reassure noble Lords that there is absolutely no risk of any lowering of standards. Notwithstanding the Government’s repeated commitments to protect environmental standards, the Government are already bound by other legislation to take best available techniques into account. This SI does not change that. The Waste Management Licensing Regulations (Northern Ireland) 2003 set out these requirements in the context of establishing an adequate network of installations for waste disposal and for the recovery of mixed municipal waste from households in Northern Ireland.

The corrections and amendments in this instrument remove the requirement to take best available techniques into account in the context of article 16.1 of the waste framework directive. We are doing so to ensure that the United Kingdom can set its own best available technique requirements and emission limits going forward, rather than having to comply with those which may be produced by the European Commission after the UK exits the European Union. In respect of the amendment to the Waste and Contaminated Land (Northern Ireland) Order 1997, the reference to best available techniques in Schedule 3, which was directly copied from article 16 of the waste framework directive, has been omitted because the term is not defined or used elsewhere in the order. This would render the term inoperable.

The Government have committed to putting a process in place for determining future UK best available technique conclusions for industrial emissions post the UK’s exit from the European Union. This is being developed with the devolved Administrations and competent authorities across the UK. Legislative changes may be required to reflect the agreed process in due course. If so, your Lordships and, where appropriate, the devolved Parliaments and Assemblies, will be able to scrutinise these at the appropriate time. No comments were raised by the JCSI in respect of the regulations. As the purpose of the regulations is to make corrections and minor technical amendments, no consultation was undertaken in respect of the provisions. The regulations will not have any significant impact on business, charities, voluntary bodies or the public sector, but will help ensure legal certainty for regulators, stakeholders and the Government and prevent any ambiguity around environmental obligations.

Similar legislative updates to those contained in this instrument have already been extended to England and Wales through the Environment and Rural Affairs (Amendment) (EU Exit) Regulations 2019, which amended the Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019 and the Waste (Miscellaneous Amendments) (EU Exit) (No. 2) Regulations 2019. These regulations maintain the integrity of the Northern Ireland statute book, ensure legal certainty as we approach our exit from the EU and ensure that we maintain environmental standards and protections across the UK. I beg to move.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I thank the Minister for her extensive introduction. I am grateful to her and her officials for their time in providing a briefing.

I am reassured that this SI makes no changes to the regulations covering waste and ensures that the law around waste disposal, installations and the recovery of mixed municipal waste collected from private households after Brexit will now be exactly the same over the whole of the UK. More importantly, perhaps, for Northern Ireland, it will be the same across the whole island of Ireland, as the UK and the EU statutes will be identical, so there will be no issues should a border ever be reintroduced.

This SI covers contaminated land and the supply and storage of prescribed substances and potentially hazardous substances. This could include asbestos. Can the Minister say whether this might also include, as a hazardous substance, nuclear waste, and, if so, whether that might now or in the future be nuclear waste created in England, Wales or Scotland and shipped to Northern Ireland for safe disposal?

As this SI transfers current EU law directly into UK and Northern Ireland law, I am confident that there will be no additional costs on local authorities as they already carry out duties under waste disposal, noise and environmental liabilities.

In the Explanatory Memorandum, paragraph 2.6 refers to the Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019, which have already been debated. Since SIs which have been debated are then allocated an official number, it would be helpful for this number to be used. For those of us grappling with numerous SIs, many with what appear to be the same long titles with only one word different, if where they have a number it is quoted each time they are referred to, this would make life far less confusing. That is a very minor point, but it would certainly assist the process if it were to happen. Apart from that, I am happy to support this SI.

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[Baroness Chisholm of Owlpen]

I thank noble Lords for taking part and for their various questions. As I said, this is a simple SI, taking forward important things into Northern Ireland’s statute book.

The noble Baroness, Lady Bakewell, mentioned numbers. I agree with her. When we had a meeting, the officials took note of this and said that it would make sense. The numbers are complicated enough without us not being able to identify which is which. I am sure that they have taken note of that again, but I know that they agreed with the noble Baroness on that.

As far as nuclear waste from England, Scotland and Wales coming to Northern Ireland for disposal is concerned, this SI will have no impact. As highlighted earlier, the purpose of some of the amendments is to adequately reflect the requirement placed on the United Kingdom by EU legislation to move towards becoming self-sufficient in the disposal of waste from the recovery of household waste. Northern Ireland does not have any high-activity radioactive waste, and there are no plans to site a geological disposal facility in Northern Ireland. Any future policy decision on geological disposal in Northern Ireland would be a matter for the Executive, and subject to community agreement and planning in environmental consents. Any action by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, or by its previous Ministers, on GDF, has been in support of proposals for safeguards to ensure that communities have given a voice to any decisions around the siting of a geological disposal facility. An updated policy framework for higher radioactive waste was published by BEIS in December 2018, and a process to identify a location to develop a GDF has commenced, but this applies only to England and Wales.

The noble Lord, Lord Grantchester, asked whether this SI would lead to any lowering of standards. The regulations do not water down or lower current environmental standards, in line with government commitments. The removal of,

“best available techniques do not weaken current standards”,

is because the current available techniques are still present in legislation. The UK has also committed to putting in place a process for determining future UK best available technique conclusions for industrial emissions post our exit from the European Union. However, the changes do not impact on current requirements, which will remain the same around meeting best available techniques when operating waste installations. We wanted to ensure that there will be no operability issues with the current legislation once the UK exits the European Union.

The noble Lord, Lord Grantchester, also asked what the UK process for developing best available techniques might involve. The devolved authorities and the relevant departments and authorities in England are developing this process. It is likely to include the establishment of new structures, including a new integrated pollution control standards council formed of representatives from the appropriate authorities—Defra, the Scottish Government, the Welsh Government and Department of Agriculture, Environment and Rural Affairs in Northern Ireland—a new regulators’ group formed of representatives from the UK regulators and technical working groups led by the sector leads from the UK regulators. They will invite participation from UK experts—industry, environmental and NGOs. These structures will work through a process that will involve technical issues and relevant evidence from stakeholders being considered before recommendations are made, so it is very much hoped that everybody will be involved in the process. Ultimately, this may lead to UK best available techniques being approved by the Secretary of State and relevant Ministers, and then reflected in legislation.

Like the noble Lord, Lord Bew, we regret that Northern Ireland is not making this legislation, but we feel that the most important thing is to make sure that the Northern Ireland statute book is up to date. That is why we were so determined to carry this through ourselves.

I think that I have answered all the questions. I thank noble Lords for their points. The regulations make corrections to current EU exit instruments and are minor technical amendments, as I said. It is important that we continue to safeguard, maintain and enhance our environmental protections in all parts of the kingdom, and the regulations help to ensure this for Northern Ireland.

Motion agreed.