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

Lord Gardiner of Kimble Excerpts

Wednesday 6th March 2019 Grand Committee

Moved by

[Lord Gardiner of Kimble]

That the Grand Committee do consider the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019

Relevant document: 17th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A)

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

My Lords, given the interconnections of the three instruments, I hope it will be helpful to your Lordships if I speak to all three together. The instruments before your Lordships make technical corrections to maintain the effectiveness and continuity of EU-derived legislation that would otherwise be left partially inoperable on exit.

The conservation of habitats and species regulations extend in part to the UK and to England and Wales only. The Conservation (Natural Habitats etc.) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 and the Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019 relate only to Northern Ireland.

The UK Government remain committed to the restoration of devolved government in Northern Ireland. However, in the absence of a Northern Ireland Executive, UK government Ministers have decided that, in the interest of legal clarity in Northern Ireland, the Government should take through the necessary statutory legislation at Westminster for Northern Ireland, in close consultation with the relevant Northern Ireland department. In pursuing this course, we have worked closely with the Northern Ireland Department of Agriculture, Environment and Rural Affairs—DAERA —and I am most grateful for the support given by DAERA officials.

The technical changes made by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 enable the UK to continue to meet its international commitments, such as the Berne and Bonn conventions, and ensure that regulations transposing the EU habitats and wild birds directives are operable. Principally, it makes amendments to three existing instruments that transpose the habitats and wild birds directives so that they are operable: the Conservation of Habitats and Species Regulations 2017, the Conservation of Offshore Marine Habitats and Species Regulations 2017, and the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001. The instrument also amends Section 27 of the Wildlife and Countryside Act 1981 to ensure that existing protections continue.

The Conservation of Habitats and Species Regulations 2017 and the Conservation of Offshore Marine Habitats and Species Regulations 2017 are the principal pieces of secondary legislation that transpose the terrestrial and offshore marine aspects of the EU habitats directive and certain elements of the EU wild birds directive—commonly referred to as the nature directives—into domestic law. The Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 apply to specific activities only in relation to the directives. The nature directives lay down the rules for the protection and management of habitats, and the protection and exploitation of species. These three regulations fulfil the objectives of the nature directives in the UK’s terrestrial areas and inland waters, and its inshore and offshore marine areas, by ensuring that activities are carried out in a manner consistent with the directives.

The territorial extent of this instrument is the United Kingdom, with exceptions. Part 2 extends to England and Wales. Part 3 extends to England and Wales, but also extends in certain circumstances to certain specified reserved matters in Scotland and Northern Ireland. We have worked with the devolved Administrations on this instrument, and where it relates to devolved matters, they have given consent. The Scottish Government are making similar changes by means of their own secondary legislation within their areas of legislative competence.

As part of national operability, this instrument implements a number of changes, one of which is a national site network. Sites designated under the nature directives have contributed to the EU’s Natura 2000 network. These sites will now form a national site network and will continue to help fulfil the UK’s international biodiversity obligations, for example under the Berne convention, where they will continue to form the UK’s contribution to that convention’s Emerald network. New Regulations 16A and 18A set out ministerial responsibility to manage, and where necessary adapt, the national site network in co-operation with Ministers in the devolved Administrations. That obligation will be exercised with the support and expertise of the statutory nature conservation bodies. The network’s management objectives look to secure compliance with the overarching aims of the habitats and the wild birds directives.

I turn to the issue of reporting. To ensure transparency and accountability, Ministers will produce reports on how the regulations are being implemented within six years from the date of exit and every six years thereafter. The Secretary of State will compile these reports into a combined UK report within two years of that. This is in line with existing reporting requirements, and the reports will be publicly available. The requirement for biennial reporting on exemptions or derogations from the strict protections for habitats and species is maintained.

Let me turn to the designation of special areas of conservation. Functions currently undertaken by the European Commission in designating any future SACs will be transferred to Ministers. Ministers will assess new SAC proposals acting on specialist advice from the appropriate nature conservation body. In Defra’s case that will be Natural England, along with the Joint Nature Conservation Committee, using existing criteria.

I turn now to imperative reasons of overriding public interest. This instrument transfers the role of the European Commission to Ministers in being able to offer an opinion to local decision-makers such as local planning authorities. The opinion concerns whether imperative reasons of overriding public interest may apply in the granting of a planning application for a proposal which may adversely affect priority habitats, but where there is no feasible alternative. In doing so, Ministers will need to take account of the national interest and consult widely, including the Government and the other devolved Administrations, along with the Joint Nature Conservation Committee. It is my understanding that imperative reasons of overriding public interest have never been deployed in relation to priority features with regard to planning proposals anywhere in the UK, in that no file or dossier has been submitted to the European Commission for an opinion.

I will now address the amendments to annexes and schedules. A new instrument-making power allows Ministers to make amendments to the annexes and schedules where this is supported by technical and scientific progress. This brings into a national context provisions which already exist at EU level. The devolved Administrations will have the same powers. Any amendment under this provision which cannot be supported by expert opinion is open to challenge in Parliament or the courts. This instrument will ensure that the strict protections that have been in place for many years for our most vulnerable habitats and species are maintained when we leave the European Union.

On consultation, although there was no statutory requirement to consult publicly on the instruments, officials undertook engagement with key stakeholders. Indeed, following concerns raised by the RSPB, we chose to withdraw and re-lay the SI to provide absolute legal clarity that the management objectives of the new national site network to protect wild bird species and their special protection areas remain equivalent to those in the wild birds directive. The RSPB and Greener UK have welcomed this. It is a very good example of where there has been consideration by people who can look at these things with a fresh eye, and we were absolutely seized of the importance of making it absolutely clear. So I welcome this as an example of where, if one does not get it perfect the first time, let us try again.

I turn to the Conservation (Natural Habitats etc.) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019. As I have said, these regulations extend to Northern Ireland only. Importantly, they mirror the five main changes to the regulations I have just set out—in short, replicating for Northern Ireland Parts 1, 2 and 3 of the England and Wales legislation. It was felt that Northern Ireland officials should draft a separate regulation for two reasons. First, nature conservation is a devolved function in Northern Ireland. Secondly, the structures in Northern Ireland are different from those in England and Wales in that DAERA, a government department, undertakes all aspects of nature conservation. Therefore, many of the amending clauses could not simply be replicated for all three countries, and several Northern Ireland amendments would have to sit separately in any encompassing statutory instrument.

As is evident, Northern Ireland is unique within the United Kingdom as it shares a land border with the Republic of Ireland. There are excellent working relationships on nature conservation between officials in Northern Ireland and their counterparts in the Republic. This co-operation occurs within a framework of the North/South Ministerial Council, in which the environment is identified as an area of joint working. For example, the Loughs Agency is a cross-border body set up under the 1998 Good Friday agreement to manage commercial fishery activity in Lough Foyle and Carlingford Lough and to undertake valuable work in the conservation of vulnerable species. Similar arrangements apply on an east/west basis. The British-Irish Council has played a positive role in nature conservation issues, for example the sharing of information and experiences on the many invasive alien species threatening our important habitats. The council has also supported initiatives such as an all-Ireland pollinator strategy, which contains practical actions and information designed to increase the number of pollinators throughout the island of Ireland.

Finally, I turn to the Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019. These regulations address failures of retained EU law to operate effectively with regard to six pieces of Northern Ireland primary legislation and two sets of regulations, as set out in the Explanatory Memorandum. The regulations are similar to the amendments made to legislation in England and the UK by the Environment (Amendment etc.) (EU Exit) Regulations 2019, which have already been affirmed in both Houses. We have a separate set of regulations for Northern Ireland, as in the areas covered there is a well-established body of Northern Ireland legislation. Where there are already UK-wide instruments, we have taken forward regulations that include Northern Ireland and other jurisdictions. Taking forward Northern Ireland-only amendments in this case helps preserve the integrity of Northern Ireland’s statute book—albeit that the amendments are being made by UK statutory instruments rather than by the normal Northern Ireland statutory rules.

As an example of the amendments made by the instrument, Regulations 15 to 17 make changes to the Producer Responsibility Obligations (Northern Ireland) Order 1998, replacing,

“obligations of the United Kingdom under the Community Treaties”,

with, “retained EU obligations”. This is an example of where, if we did not make the amendment, the references to the UK’s obligations under community treaties would be inoperable as there would be no obligations.

In this instrument there is no policy change and—I must emphasise—no reduction in the environmental standards or obligations to which Northern Ireland is currently subject. I beg to move.

--- Later in debate ---

We need to reflect that Northern Ireland exports a proportion of its waste and will continue to do so for many years. It has no plant to process refuse-derived fuel, so where is it therefore transported? Under the proximity principle it is to the south, where it generates electricity that is no doubt shared with the north. A hard border in Northern Ireland might result in loads of rotting rubbish festering at the border—another good reason for ceasing this Brexit folly.

[Lord Gardiner of Kimble]

My Lords, I am most grateful for all of the contributions, and I was struck hearing about bedrocks and bitterns, treading on dreams, and hornets’ nests. I found the experience rather more frightening than I had already intended. However, this is an important area and I am most grateful to the noble Baronesses for acknowledging that we did the right thing in withdrawing and re-laying the instrument, because we wanted to make it absolutely clear that our good faith in these matters is strong.

The noble Baronesses, Lady Parminter and Lady Young, both raised the important issue of reporting. As we explained in our written evidence to the Secondary Legislation Scrutiny Committee, the reporting requirements introduced at Regulation 8 of this instrument are intended to ensure that, at a minimum, they reflect those set out in article 17 of the habitats directive and article 12 of the wild birds directive. However, as that regulation makes clear, these requirements are not exclusive since currently within the EU, the Commission determines the full extent and format of the reports, in consultation with experts across member states. Similarly, UK Ministers would expect to determine the format of such reports administratively, in consultation with our statutory advisers and those from the devolved Administrations, ensuring that we meet all our international reporting obligations.

The provisions for a composite report, including an evaluation of progress and contribution of the national site network—about which I will speak in a moment—in our view replicates the current legal requirement on the Commission. Accordingly, on operability, there is no need to provide an additional statutory review provision. This instrument also converts environmental reporting obligations in the directives into a requirement to publish reports in the future. This will ensure transparency and scrutiny of our environmental performance. The UK will continue to report on a similar basis as a contracting party to the Berne convention and will be obliged under resolution 8 of the standing committee on the convention, adopted in 2012, to report on the conservation status of species and habitats every six years, covering the previous six years.

We are also required under article 9 of the Berne convention to submit reports every two years on exceptions that have been permitted, the protection of wild fauna and flora, and an assessment of their impact, in the same way as we do now via the EU. The convention standing committee can review the implementation of the convention through legal and policy reports from independent experts. Indeed, the OEP—more about which in a moment—will be an independent, statutory environmental body and may well be interested in this matter. I say to the noble Baroness, Lady Parminter, that on reporting and timeliness—timeliness is important—six years is the usual period for compiling these reports, which are comprehensive. That is what is in the nature directives.

Perhaps I could spend a little time on proportionality, which was referred to by the noble Baroness, Lady Young. I wish to assure or reassure her—whatever the right word is—that it is not the intention of this provision to reduce in any way existing nature conservation protections. This provision is about not the designation and management of sites, and therefore the permitting of certain activities, but the overall management of the UK network in the context of achieving favourable conservation status for species and habitats across their biogeographical area and within their natural range.

New Regulations 16A and 18A place a wide duty on Ministers, in co-operation with other authorities in the UK, to manage and adapt the network to maintain or, where appropriate, restore at a favourable conservation status threatened and vulnerable habitats and species throughout their natural range. This duty can be exercised only where those natural ranges fall within UK jurisdiction. It is also to be discharged with regard to the importance of the UK globally in the conservation of those species or habitats. We can contribute to achieving a favourable conservation status for vulnerable or threatened species and habitats only in the proportion to which their range falls within UK jurisdiction.

In this respect, the provision reflects the requirement in article 3 of the habitats directive to have, “A coherent … ecological network” to maintain and manage species and habitats,

“at a favourable conservation status”,

and therefore for Ministers in future to have regard to what is being done beyond UK borders to contribute most effectively to maintaining and restoring those features at favourable conservation status in their natural range. If I may return to where I began, I place it on record that there is absolutely no intent at all for this provision to reduce in any way existing nature conservation protections.

The noble Baroness, Lady Young, raised the office for environmental protection, the independent statutory environmental body which will hold government and public bodies to account on environmental standards, replacing the current oversight of the European Commission. This body will provide independent scrutiny and advice on environmental legislation and the Government’s environmental improvement plan, and hold government to account on the implementation of environmental law, including taking legal action where necessary. It will also of course have access to these publicly available reports. I say particularly to the noble Baroness, Lady Parminter, who raised this, that we are finalising interim measures that may be necessary under a no-deal scenario and before the office for environmental protection is established. Again, the Government are doing what they can in Brussels and elsewhere to ensure that we have a deal, but with or without a deal there will be no period of time during which government actions cannot be held to account.

The noble Lord, Lord Krebs, queried—rightly, given his expertise—the availability of technical and scientific expertise. I hope he might agree with my impression, from going around the Council of Ministers and other bodies, that this country has significant expertise in nature conservation, which is recognised at home and at international level. Hundreds of scientists are employed in our statutory nature conservation bodies and the depth and breadth of their experience is hugely regarded. Ministers will continue to benefit from the advice of their statutory nature conservation bodies: in England, this is Natural England while at the UK level, it is the JNCC. Natural England provides statutory advice to public authorities and is responsible for ensuring that the natural environment is protected and improved. It has a responsibility to help people to enjoy, understand and access the natural environment.

The JNCC already has a statutory duty to advise Ministers on developing and implementing policies on nature conservation matters. The JNCC has an independent chair and five independent members, some with scientific experience and some with a legal background. The majority of the joint committee is made up of appointments by the four countries’ statutory conservation bodies.

The noble Baroness, Lady Young, raised the question of committing to produce statutory guidance. We plan to issue guidance on the operability changes to the regulations as part of our EU exit arrangements. We are developing a page for GOV.UK to explain the main changes to the regulations and to signpost to existing guidance. Following the UK’s exit, our intention is to review and update our own domestic guidance on all aspects of the regime. We plan to consult and involve a range of interested stakeholders to ensure that guidance on wildlife legislation is fit for purpose and can contribute to ensuring that we maintain and enhance existing protections.

The noble Baroness, Lady Young, queried the power of the Secretary of State to amend schedules. This is where she referred to a hornets’ nest; I hope that I can reassure her. The prohibited capture and killing methods listed in this schedule are those set out not only in annexe 6 of the habitats directive but in the almost identical appendix 4 of the Berne convention, from where it derives and of which we will remain a contracting party. There has been no reason to amend appendix 4 since 2002. The provisions for amending the annexes and schedules in this instrument, including moving prohibited killing from the body of the regulations to the schedule, simply ensure that we retain the same power of amendment as the Commission has at present to update annexes. This is an updating power to be used only—I emphasise only—for the purpose of adapting these annexes to technical and scientific progress, and therefore a power that can be exercised only where it is supported by expert opinion from the JNCC and Natural England. We will, of course, continue to work closely with devolved Administrations to secure nature conservation outcomes across the UK.

Northern Ireland was also raised by the noble Baroness, Lady Young. It is important—again, I hope I can reassure her—that in the case of Northern Ireland, DAERA has a statutory advisory body known as the Council for Nature Conservation and the Countryside. This body includes academics, land managers and environmental non-government bodies with a wide range of conservation expertise in terrestrial and marine environments. The CNCC is tasked with providing a focused view on DAERA’s functions, including relating to nature conservation. There could be a specific role for the CNCC in future reporting mechanisms.

The noble Baroness, Lady Young, also asked about a possible extension of the OEP to Northern Ireland. She is absolutely right that Northern Ireland Civil Service officials have requested that the scope of the office be expanded to include Northern Ireland. The Secretary of State has agreed to this; I hope that is helpful to your Lordships. Discussions are ongoing between officials as to how this might be taken forward. Any decisions by Northern Ireland officials will be taken in light of the requirements of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 and the Northern Ireland Secretary of State’s guidance thereunder.

The noble Baroness, Lady Young, also raised the name of the national site network. These sites will continue to be selected under the criteria in annexe 3 of the habitats directive and article 4.1 and 4.2 of the wild birds directive, which—as she will know better than I do—makes them distinct from SSSIs. The National Planning Policy Framework and other policy guidance does not particularly recognise the Natura 2000 network by offering planning protections but is concerned instead with the different types of protected sites, such as special areas of conservation, special protection areas and European sites. This instrument retains those names. I emphasise to the noble Baroness—I have noted her appeal for a different name—that the term “National Site Network” is a legal one for the purposes of these regulations. It will be open to Ministers in the UK to agree a distinct name for the network in a similar way to, for instance, the Emerald network. We do not need a legal power to do that. It might be my duty to play back her commentary on the national site network. I should also say that we intend, nevertheless, to publish guidance explaining the main changes that will arise due to operability.