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

Baroness Parminter Excerpts

Monday 15th July 2019 Grand Committee

[Baroness Young of Old Scone (Lab)]

My Lords, I declare a very old interest as a former chief executive of the Environment Agency and as former chairman of English Nature.

I am very concerned about this set of regulations. The Minister described them as limited but I do not think that they are. The Secretary of State is being given rather broad powers to make amendments by regulation to a wide range of significant legislation, which has really important impacts for the environment. That is made worse by the fact that these regulations have the appearance of having been prepared by different civil servants and glued together at the last minute, because they are rather a mess of inconsistency.

For example, some powers are limited to the extent that the competent authority can make changes only,

“if appropriate to do so as a result of scientific and technical progress”.

However, that requirement does not apply to all the powers—for example, it does not apply to the air-quality regulation or the regulation applying to medium combustion plants. It would be interesting to know why the Minister is happy—if indeed he is—with this range of inconsistency. I will come on to talk more about inconsistencies in other areas. With regard to making changes only as a result of the advance of scientific and technical knowledge, does that mean that the Minister can simply change the regulations that do not have that provision on a whim rather than according to science? I am sure that is not what is intended but one might read that into the regulations.

Of course, the regulations do not define appropriate change as a result of scientific and technical knowledge. If the environment is to be safeguarded, I believe that that has to be not just clarified but interpreted as requiring that powers can be exercised only where the new provisions ensure an equivalent or higher level of environmental protection. That needs to be reflected in the wording of the statutory instrument. There is another flourish of inconsistency that is useful: Regulation 45(2) on the sewage sludge regulation—we get all the good jobs in this House—has a useful additional level of protection, which might be made to refer to all the regulations in this statutory instrument.

Perhaps I may also ask the Minister about the relationship between this set of regulations, with its scientific and technical knowledge requirement, and some of the requirements about advances in scientific and technical knowledge that are already included in the directives. For example, under the industrial emissions directive there is BAT, which means best available technique; and under the urban wastewater treatment directive, there is BATNEEC, which means best available technique not entailing excessive costs. Those are useful ratchet mechanisms, because they go in only one direction—the direction of improvement. However, the regulations do not mention how BAT and BATNEEC will be dealt with under those two directives.

Of course, all the forthcoming changes will be subject to negative scrutiny. It is not a question of more scrutiny taking disproportionate time, but it is inadequate to say that they will go through on the negative procedure because that does not give adequate credence to their importance. There is always a risk of weakening existing environmental protection by cock-up rather than conspiracy, if the Committee will pardon that technical term. I vividly remember the day when the Government announced that there were one-third fewer breaches of the air quality directive in London, before we quietly pointed out to them behind the scenes that that was because the budget had been cut and there were one-third fewer monitoring stations, especially in areas of high pollution, so inevitably there were one-third fewer exceedances. Even with the best of intentions, there needs to be a higher level of scrutiny to make sure that there is no inadvertent, even if not deliberate, weakening of existing environmental protection.

There is also inconsistency in the duty to consult. For example, some of the regulations talk about consulting, as the Minister mentioned, but there is a very good consultative body—the UK technical advisory group—for the water framework directive, the groundwater directive and the priority substances directive, yet no mention of those directives needing consultation despite the standard and regular consultation process that already goes on with it.

At the end of the day, there is the vexed question of compliance. You could say that it is Parliament’s job to scrutinise secondary legislation and make sure that it is okay, but the reality is that we will have a new environmental regulator. Prior due diligence on the sorts of changes that would go through in secondary legislation is not currently in that regulator’s role, and it ought to be.

[Baroness Parminter (LD)]

My Lords, our Benches certainly accept that, if we are to leave the European Union, the Secretary of State or the devolved authorities need these powers to ensure that the legislation, such as it is, does not remain static but moves forward in the light of scientific knowledge and understanding. The number of areas that we are talking about in environmental legislation is reflected in this jumbo statutory instrument, so we also accept that the only way to provide them is probably through the secondary legislation route, given the chances of us being able to get primary legislation slots for all the changes that might be necessary.

However, following what the noble Baroness, Lady Young of Old Scone, said, we are disappointed that the opportunity has not been taken in this jumbo SI to ensure maximum protection for the environment. That is particularly so when we are having these discussions in advance of an environment Bill that sets the framework for future UK legislation outside Europe; and in advance of creating the office for environmental protection, which, in addition to statutory authorities such as the environment agencies, will be able to hold people to account.

In a slightly different way, I want to pick up a point that the noble Baroness made about changes being made only in response to scientific and technical advances. In some areas—she alluded to one, and I have another on water quality—the regulations pin down how the Secretary of State or devolved authorities can use these powers. Regulation 32(3) alludes to the fact that the devolved authorities can use the powers on water quality by looking to scientific evidence only where there will be possible harm to the aquatic environment. So, this instrument contains provisions on how the devolved authorities or the Secretary of State can use those powers to protect the environment. If it is good enough in the case of water quality to limit the powers that the Secretary of State can use in response to scientific and technical changes—and to do so only to advance environmental protection—why is that not the case in all areas? The phrase about it being in response to scientific and technical changes does not have a rider; it says that it ensures the equivalent or a higher level of protection for the environment. I think we are both making the same point.

The noble Baroness, Lady Young, also mentioned consultation but I want to pick up on a slightly different point. Given the nature of these changes, it is critical that all relevant stakeholders are consulted. However, there is an omission on the issue of environmental noise, which the statutory instrument covers. In his summing up, can the Minister say specifically why environmental noise does not merit consultation? He referred to it in general terms but not specifically. Of course, we can change negative statutory instruments to affirmative ones, but it would reassure us parliamentarians and bring us a degree of comfort if we knew that all the changes had been subjected to scrutiny by all the relevant bodies.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the Minister for introducing the SI and for the helpful briefing that he arranged beforehand.

As he explained, this is another of the many SIs that we have considered to transfer legislative functions from the EU and the European Commission to the UK. In this case, the functions are transferred overwhelmingly to the Secretary of State and devolved Ministers. We have debated the limitations of this process many times before; I do not intend to go into all the arguments again but there is an undoubted democratic deficit in transferring powers from a complex European process, with all its checks and balances, to one person, however well intentioned that person may be.

With that in mind, I want to raise some issues and ask some questions. First, the department’s written response to stakeholders on the issue of environmental law governance drew attention to the proposals for the office for environmental protection contained in the draft Environment (Principles and Governance) Bill, which is intended to provide continued scrutiny and oversight. That Bill, which is not before us yet, now plays a particularly significant role. Because of where we are politically, the withdrawal Bill, which we spent many happy hours arguing over and which had a large number of environmental protections built into it, will not be taken forward; we seem to be losing it. All we have now to underpin environment guarantees is the office for environmental protection, which does not exist yet. What role will that body play in scrutinising the sort of regulations that are before us today and the Secretary of State’s powers in them? For example, is it envisaged that the OEP will collect data and monitor the effectiveness of the regulations? That includes points of detail; as the Minister said, this is about annexes and so on. Will its role go into that sort of detail? Will it also be responsible for scrutinising the Secretary of State’s performance and delivery in carrying out the functions that we are about to give him or her?

Can the Minister clarify what role this new body will play and whether it will have that oversight? While we are on the subject, can he also bring us up to date about when we will see the OEP? It seems the timetable is slipping, yet an awful lot is riding on the future of that organisation. It would be helpful if he could update us on that because, once that body is in place and we have had the assurances about what we hope will be its all-embracing role, some of these other issues will fall into place and we will not be so anxious about them.