Draft Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019

David Drew Excerpts

Wednesday 6th March 2019 General Committees

[The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Dr Thérèse Coffey)]

I beg to move,

That the Committee has considered the draft Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019.

It is a pleasure to serve under your chairmanship, Mr Hanson. The draft regulations are among a number of statutory instruments under the affirmative procedure, to be considered as the UK leaves the European Union, and will ensure that legislation that protects biodiversity through the conservation of natural habitats and species of wild fauna and flora, and conserves wild bird populations, will continue to function after exit.

The draft regulations make technical legal amendments to maintain the effectiveness and continuity of legislation that would otherwise be left partially inoperable. The adjustments represent no changes of policy, nor will they have any impact on businesses or the public. The draft statutory instrument is introduced under the correcting powers in the European Union (Withdrawal) Act 2018, and principally makes amendments to the Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species Regulations 2017 to address technical operability issues.

The territorial extent of the draft regulations is the United Kingdom, with some exceptions. Part 2 extends to England and Wales. Part 3 extends to England and Wales, but also extends certain provisions in certain circumstances to Scotland and Northern Ireland, in relation to certain specified reserved matters. As the implementation of biodiversity and nature conservation policy is a devolved matter, we have worked closely with the devolved Administrations on the regulations and on their respective instruments. Where the regulations relate to devolved matters they have given consent.

The Scottish Government and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland are making similar changes through their own secondary legislation. The Committee may be aware that we debated the DAERA measure in Committee on Monday, and it was passed by the House of Commons last night. The Scottish measure was debated in the Scottish Parliament’s Environment, Climate Change and Land Reform Committee yesterday.

Members of the Committee may be aware that the Royal Society for the Protection of Birds expressed concern that management objectives for the new national network of protected sites established under the regulations with regard to special protection areas were not commensurate with the objectives for the EU Natura 2000 network of sites, which are being replaced under new regulations 16A and 18A. We had some back and forth legal debate between Government lawyers and the RSPB, and to make sure the position was absolutely clear the Secretary of State took the decision to withdraw the provision in question, and re-lay the measure after redrafting. That was to make it absolutely clear that existing protections for species of wild birds and their specially protected areas will continue when we exit the EU. That has been welcomed by the RSPB.

Part 2 of the draft regulations amends the Wildlife and Countryside Act 1981 to ensure that species of wild birds found in or regularly visiting the UK, but not elsewhere in the EU, continue to be protected. Part 3 amends the Conservation of Habitats and Species Regulations 2017 covering England and Wales. Part 4 amends the Conservation of Offshore Marine Habitats and Species Regulations 2017 covering the United Kingdom’s offshore marine area. The changes in part 4 largely mirror the changes made in part 3.

[Dr David Drew (Stroud) (Lab/Co-op)]

What is the impact if we do not pass the Fisheries Bill and we crash out of the EU? Would that have an impact on this statutory instrument?

[Dr Coffey]

The Government have no intention of crashing out of anywhere. It is important to state that the statutory instrument is not directly related to fishing. I am aware of the issues, because I have signed legislation with regard to fisheries in the past 48 hours, when for a few short days we did not have a Minister. I am delighted that my right hon. Friend the Member for Scarborough and Whitby (Mr Goodwill) is now in post. He was due to attend this Committee, before he was elevated. He has significant fishing interests in his constituency, and he will now be cracking on, I am sure.

Part 5 of the regulations amends the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 with regard to the functions concerning imperative reasons of overriding public interest—often known as IROPI—and is consistent with changes made to the 2017 regulations.

The majority of changes under this instrument involve various terms in regulations or directives that relate to the EU being amended to be relevant to the UK. For example, the instrument removes references in the EU legislation to the UK as an EU member state. The five main changes mainly involve a transfer of functions from the European Commission to Ministers.

Sites designated in the UK under the nature directives are currently part of the EU’s Natura 2000 network. That is the contribution from the UK to what is called the Emerald network, which is run and administered by the Council of Europe, fulfilling the Bern convention. The sites in the UK will now form a national site network and will continue to fulfil the UK’s international biodiversity obligations. That was covered for Northern Ireland the other day, and it is being covered separately by the Scottish Parliament for Scotland, so we are dealing with other sites in the rest of the UK, as laid out. At the end of November last year, I wrote to the secretariat of the Bern convention, confirming that the sites would continue to form the UK’s contribution to the convention’s Emerald network of protected sites.

New regulations 16A and 18A set out ministerial responsibility to manage and, where necessary, adapt the national site network in co-operation with other Ministers. The network’s management objectives look to secure compliance with the overarching aims of the habitats and the wild birds directives, which will be in retained EU law.

This instrument transfers to Ministers functions relating to the designation of special areas of conservation that are currently undertaken by the Commission. Ministers will assess any new SAC designation proposals, acting on advice from the appropriate nature conservation body—Natural England in the case of the Government—and the Joint Nature Conservation Committee and using existing criteria. Selection of those sites will continue to be based on the criteria in annex III of the habitats directive.

This instrument, at regulations 25 and 26, transfers to Ministers the role of the Commission to offer an opinion to local decision makers, such as local planning authorities, as to whether IROPI apply where a plan or project may adversely affect priority habitats but there is no feasible alternative. In doing that, Ministers will need to take account of the national interest and consult widely, including with devolved Administrations and the JNCC. I think it is worth sharing with the Committee, as I did on Monday, that there have been no instances of that ever happening in the UK. Nevertheless, the Commission currently has the power to offer an opinion, and we thought it important, for operability, that that be brought over and made a power of Ministers.

A new instrument-making power, in new regulation 145 of the conservation of habitats regulations and new regulation 84B of the offshore marine regulations, allows Ministers to make amendments to the annexes and schedules where those reflect technical and scientific progress. The devolved Administrations will have the same powers. In essence, this is a “keeping pace” approach. Quite regularly, we see certain changes and learn new and different things about a variety of issues in relation to habitats, species and birds, and it is important that we have the power to keep up to date. Any amendment under the provision would need to be supported by expert opinion. Once the statutory instrument is, as I hope, passed, we will set out in guidance the means by which Ministers will seek that expert input, including from our statutory advisers, before deciding on any amendment to the schedules and annexes.

To ensure transparency and accountability of environmental performance, new regulation 9A of the conservation of habitats regulations will require Ministers to report publicly on the implementation of the regulations in their jurisdictions within six years from the date of exit and every six years thereafter. The position is exactly the same now, and the Secretary of State will compile reports into a combined UK report within two years. The requirement for biennial reporting on the use of any permitted exemptions or derogations from the strict protections of habitats and species is maintained. As a contracting party to the Bern convention, from which the habitats directive arises, the UK will remain obliged under article 9 and resolution 8 of the convention to submit those reports to the secretariat.

The draft instrument will ensure that the strict protections that have been in place for many years for our most vulnerable habitats and species will be maintained once we leave the European Union. For that reason, I commend the draft instrument to the Committee.

--- Later in debate ---

[Dr Drew]

I am very pleased to serve under your chairmanship, Mr Hanson, and delighted to follow my boss. I will make just a couple of additional points, which I hope the Minister can answer. This is about my past, because in a previous incarnation I spent a lot of time with my hon. Friend the Member for Bridgend (Mrs Moon), worrying about the environmental liability directive.

That may not seem pertinent to this bit of legislation, but it was based around the Natura 2000 network. That was at the height of the genetically modified crops issue, and the directive effectively said that if a farmer in one place caused, through emissions in the air or indeed through the watercourse, pollution or some form of deterioration in another site, they were responsible for making good the damage.

This SI is about conservation and habitats, so I ask the Minister: do we intend to continue with the environmental liability directive in a UK context? If not, what are we going to put in its place? It would be interesting to know, because I am not sure whether different bodies will oversee this—perhaps I am not reading this correctly.

As my hon. Friend the Member for Workington has said, Natural England is under enormous pressure at the moment. It may well be that, through the way the EU operates, it has already subsumed a lot of the responsibilities that the Commission imbued it with, and therefore this is something it will do as a matter of course, but I would be interested to know the structure of accountability. These things matter when they go wrong. When things are working perfectly all right, that is fine, but we all know that these pollution events are not uncommon. Certainly with air pollution, we are in the era of air quality and it is important to know what we will do if these important conservation areas are adversely affected. It will be no good if our current protections are not carried forward; indeed, one would hope they would be enhanced.

[The Chair]

I am grateful to the hon. Gentleman for those last comments, and I am sure the Minister will answer in relation to the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019, which are before us today.