Draft Conservation (Natural Habitats Etc.) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 Draft Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019

Debate between Emma Reynolds and Luke Pollard

Monday 4th March 2019 General Committees

[Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship, Mr Hosie, I think for the first time. May I place on the record Opposition Members’ regret that the former DEFRA Minister, the hon. Member for Camborne and Redruth (George Eustice), resigned from the Government? He was a good Minister and we enjoyed many Committee sittings debating with each other. I know that he will offer a formidable Back-Bench critique to whoever replaces him on the Front Bench.

The Opposition will not oppose either of the statutory instruments we are considering, because we believe that our environment faces a climate crisis and that we must be able to protect it properly after the UK leaves the European Union. However, as with the other DEFRA statutory instruments we have considered, we have serious concerns about the scale and pace at which these SIs are being considered and the potential lack of proper scrutiny.

On environmental protections and governance in Northern Ireland, the Opposition are increasingly concerned that, due to the lack of an Executive, Northern Ireland not only faces unique challenges because it shares a border with an EU country but is not sufficiently well equipped to stop it lagging behind the rest of the EU on the environment in the future. I appreciate the Minister setting out the case for the two SIs. In the absence of an Assembly in Northern Ireland, it is important that Westminster scrutinises them, but we have particular concerns about several elements of them.

According to the World Wide Fund for Nature, humans have wiped out 60% of animal populations since the 1970s. Now, more than ever, is the time to strengthen our conservation efforts. The Government must be careful not to dilute any current environmental protections with these or any other SIs. We have a number of questions about that. I would be grateful if the Minister reflected on those and provided reassurance that there is no reduction in protections for our environment in the two SIs we are considering.

Both SIs seem uncontentious—they seem to effect a very simple transposition of regulations on to the UK statute book—but the Opposition are concerned that there is stakeholder fatigue among those people who would normally provide the expert advice that enables us properly to review SIs on the basis of an informed legal framework, especially at the pace we are going through them, to ensure there are no errors or problems with them. My hon. Friend the Member for Wolverhampton North East pointed out potential errors in the explanatory memorandum, or areas in which it may be seen as obscure. What else might have slipped through?

[Emma Reynolds]

Does my hon. Friend agree that this situation was totally avoidable? If the Government had gone ahead and started to put these SIs through Parliament earlier last year, we would have had more time for scrutiny.

[Luke Pollard]

I entirely agree. There is speed and pace to our considerations. In previous SI Committees, we have spoken about the importance of strong and robust pre-legislative scrutiny for such SIs. I have asked the Minister previously whether the particular SIs we were considering were part of the Department’s online reading room, which was made available to some stakeholders. She has suggested that those reading rooms are not suitable for parliamentarians to undertake pre-lay scrutiny of SIs. I would be grateful if she set out what stakeholder feedback, if any, was received about these two SIs in particular. It is important that we have decent scrutiny of them.

The Minister will be familiar with my concern about the impact assessments of SIs because we have spoken about them in every single Delegated Legislation Committee that we have sat on together, and I am sure that will be a feature of the one that she mentioned in her opening remarks. The explanatory notes state that the two SIs will have

“no, or no significant, impact”.

I say again that “no impact” and “no significant impact” are two different things. Although we are coming to an end of the SIs that she and I are doing together, I remain concerned about that, given that no impact assessment has been carried out. Although these are very technical and, on the face of them, uncontentious SIs, I am still concerned that Ministers will potentially have a “get out of jail free” card if an impact is discovered in the future.

Species are declining and we must do more to protect our natural habitats. The special areas of conservation included in these SIs protect 78 types of habitat and 43 species that are native to the United Kingdom and Ireland or are normally resident here. Throughout Europe, such areas protect 189 habitat types and 788 species. Their importance cannot be overstated. It is therefore very important that we transfer those protections to UK statute after we leave the European Union.

The Opposition are worried that this draft SI will dilute the current designation process, as outlined in regulation 7(1) of the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995, which state:

“Once a site of Community importance in Northern Ireland has been adopted…the Department shall designate that site as a special area of conservation as soon as possible and within six years at most.”

This draft SI removes the provision and does not replace it with a similar time requirement. Will the Minister explain why the time limit for establishing special areas of conservation has been removed from the SI? It could be because all those areas have been designated, or the Department expects no new ones, but that clarity would be welcome. We cannot afford to lose protections and accountability for protecting those habitats.

Regulation 9 outlines the duty to designate special areas of conservation. Proposed new regulation 6(8)(a) states:

“in relation to the application of stage 1 of the Annex III criteria, have regard to the advice of the appropriate authority”.

Sub-paragraph (b) states:

“in relation to the application of stage 2 of the Annex III criteria, have regard to the advice of the Joint Nature Conservation Committee.”

Will the Minister clarify what is meant by “have regard to”? How does it differ from “have the consent of” or “have consulted with” the JNCC? Those three phrases are very different and are contained in different elements of Northern Ireland environmental regulation.

Regulation 8 states that the Department shall publish reports

“in such form as it sees fit”.

That does not seem to match the current scrutiny outlined in article 17 of the habitats directive, which says:

“The report, in accordance with the format established by the committee, shall be forwarded to the Commission and made accessible to the public.”

I know, from having raised similar concerns relating to these points with the former Minister, that the format of reports was about reporting from the UK to the European Commission. I am concerned that the lack of definition of what the format should be could open the opportunity for reports not to be as full, and not to provide a paper trail, which would allow scrutiny by stakeholders and parliamentarians at a devolved or UK level. We have concerns that the regulation makes no provision for the reports to be reviewed or for any failings to be identified and addressed, as is currently required by the European Commission. The format of a report is about data collection, and it is also important that we ask about what happens to the report afterwards.

The Opposition are doubtful that the mere act of publishing the reports will be sufficient to match the current level of scrutiny. We suggest that this SI or a future one should include a requirement that reports are also reviewed and assessed. This draft SI revokes the agreed format for the reports to the European Commission. It merely requires that they are published in a way that the Secretary of State considers appropriate, with no reference to format in the future. In our view, that is too open to interpretation by the current and future Secretaries of State, and by those preparing the reports. It is likely to lead to reduced quality and possibly less effective monitoring and security of important environmental commitments in the future.

Proposed new schedule 3A, on the prohibited means of killing mammals and fish, raises the most concern for the Opposition. Regulation 36 is being amended to remove paragraphs (3) to (5) and place them into proposed new schedule 3A. Those paragraphs deal with animal welfare and conservation protections that we categorically believe should not be rolled back. They outline prohibited means of taking or killing mammals and fish. We know of the recent penchant among those on the Government Benches for the killing of foxes and the inhumane cull of badgers and our concern is to prevent the rolling back of animal welfare or environmental protections, in relation to the killing of mammals or fish, as an inadvertent consequence of any changes.

The draft SI gives Ministers powers to amend the list of prohibited methods of taking or killing. The explanatory note states that the new powers will allow for future amendments for scientific or technical reasons, but those terms are undefined. I should be grateful if the Minister would make a commitment not to use the powers to roll back animal welfare standards as the Government please.

It is important to say that I appreciate that, as Northern Ireland does not currently have a functioning Assembly and Executive, the Minister cannot bind future Administrations in Stormont as to what they might do with the powers. However, we have concerns about the mere creation of the potential for change. In the absence of an Assembly, I should be grateful if the Minister would also explain what scrutiny, if any, the changes will be subject to. Will the process for amending the methods for taking and killing mammals and fish set out in new schedule 3A be subject to any public consultation?

I mentioned stakeholder fatigue earlier. In relation to the brief review of the SIs, some stakeholders are concerned that there is no specific requirement for expert input or even a duty to consult relevant statutory nature conservation advisers or take account of their advice. I should be grateful if the Minister would set out the type of consultation that she envisages as most likely in the event of the list of killing methods being changed. The issue is of particular concern with respect to those changes that can be made without an affirmative SI, with its scrutiny processes in this place.

I now want to talk about the draft Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019. I am concerned that we are rushing to pass such items before the 29 March deadline. I have previously raised a concern about how this bit of the SI jigsaw fits with other SIs—already passed, or yet to be passed—to provide a coherent picture. There are elements of Northern Ireland regulation, especially in the absence of a functioning Assembly—and, I believe, as I look around the Room, Members from Northern Ireland reviewing the measures—that concern me. I want to make sure that their implementation in Northern Ireland will fit with the implementation of other SIs that have been passed, and those that may be passed in future.

The example used by my hon. Friend the Member for Wolverhampton North East, of EU exit day being less than a year away, raises concerns about what additional elements have been included in a generic form or held in a fridge in Whitehall waiting to be defrosted and warmed up again when the Government decide to put the SIs through Parliament. I appreciate what the Minister said about standard wordings but, as I have said in relation to impact assessments, standard wordings—such as the phrase

“no, or no significant, impact”—

still cause me concern. I am also concerned about standard wordings in some explanatory notes. I suggest to the Minister that it might be prudent at this point to have words with officials to make sure that any standard wordings do not raise such concerns as have been highlighted today.

The Opposition have no major issue with the draft regulations, but I would like to ask the Minister a number of questions about how they fit into the Government’s proposed regulatory environment, so that they can be implemented and can continue to protect the environment in Northern Ireland as currently happens. Given the lack of an Executive in Northern Ireland, can the Minister set out what plans there are for an environmental protection agency with responsibilities to ensure that there is sufficient oversight of these SIs as they are implemented, and whether the environmental protection agency as envisaged in the draft legislation that the Government are proposing would extend to Northern Ireland in the absence of an Assembly or an Executive in that respect?

I turn next to the question of how the protections that people in Northern Ireland have become accustomed to enjoying, due to Northern Ireland’s being part of the European Union, can be rolled over when there is no system necessarily to do so in the absence of a fully functioning Executive. The European Union has been acting as a stopgap, or backstop, to ensure that those protections are enforced; I would be grateful if the Minister could set out what conversations she has had with colleagues in Northern Ireland to ensure that there are no gaps and no concerns about what is happening in relation to that.

I have set out the Opposition’s case for wishing to scrutinise these two SIs. I say to the Minister and particularly to any Whips who might be sitting next to her that, when considering Northern Ireland SIs, it would be helpful if the Committee could at least include some hon. Members from Northern Ireland. I would feel uneasy if an SI Committee without any Plymouth MPs on it looked at regulations affecting Plymouth. That is a concern that I am sure colleagues on both sides of the Committee, without partisan interest, may feel about ensuring that regulations are drafted and implemented to ensure the fullest effect, especially because climate change is real, we know it is getting worse and we must ensure that the environmental protections that we as a House have put in place are not only effective, but implemented and scrutinised properly.