Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020

Lord Goldsmith of Richmond Park Excerpts

Wednesday 9th December 2020 Grand Committee

Moved by

[Lord Goldsmith of Richmond Park]

That the Grand Committee do consider the Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020.

Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, the Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020 and the Waste and Environmental Permitting etc. (Legislative Functions and Amendment etc.) (EU Exit) Regulations 2020 make small but important changes to ensure that our existing domestic legislation reflects that the UK is no longer part of the EU. Both instruments take power back from the European Commission, which will allow the UK to maintain its high environmental standards. The instruments require the Government to carry out a public consultation before using these powers.

I will take each instrument in turn. The Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020 cover two different subject areas: first, regulation of hazardous substances in electrical and electronic equipment, or EEE; and, secondly, regulation of essential requirements for packaging—that is, the requirements producers need to fulfil if they place packaging on the market, such as manufacturing and composition requirements.

Hazardous substances in EEE are regulated by the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2012—the so-called RoHS regulations, which implement an EU directive, the RoHS directive. This instrument transfers to the Secretary of State powers currently held by the European Commission under the RoHS directive. After the end of the transition period, these powers will allow the Secretary of State to grant, renew or revoke exemptions to the restriction of hazardous substances in electrical and electronic equipment as specified in the RoHS regulations. Exemptions allow the use of restricted hazardous substances above threshold limits for specific uses, such as solders in medical equipment. The Secretary of State will also be allowed to amend the list of restricted substances and maximum concentration values, and to prescribe detailed rules for complying with maximum concentration values.

These powers will apply in England, Wales and Scotland, but not in Northern Ireland. This is because the RoHS directive will continue to apply in Northern Ireland after the end of the transition period due to the Northern Ireland protocol. These changes are vital, as the instrument will allow the Secretary of State to make important decisions on RoHS.

The instrument also amends the RoHS regulations and the Packaging (Essential Requirements) Regulations 2015. It amends both those regulations separately for Great Britain and for Northern Ireland.

The amendments to the RoHS regulations for Great Britain introduce key measures to ensure a smooth end to the transition period for businesses placing manufactured goods on the GB market. These include transitional provisions for importer labelling to provide a 24-month period in which importer details can be provided on accompanying documentation, and a similar transitional provision for the application of the new UK marking, which will replace the European Union’s CE marking. This will provide businesses with more time before undertaking relabelling.

The instrument also ensures that, except for qualifying Northern Ireland goods, the automatic recognition in Great Britain of EEE meeting EU requirements will expire 12 months after the end of the transition period. It amends both the RoHS regulations and the Packaging (Essential Requirements) Regulations to make provision for access for “qualifying Northern Ireland goods” to the GB market.

Finally, the instrument amends the RoHS regulations and the Packaging (Essential Requirements) Regulations separately for Northern Ireland. The amendments applying in Northern Ireland are more limited. They are to reflect that the RoHS directive and the packaging directive will continue to apply in Northern Ireland, though not the rest of the United Kingdom, by virtue of the Northern Ireland protocol. They will allow the UK to meet its obligations under the Northern Ireland protocol relating to packaging and RoHS.

We have ensured that the changes for Northern Ireland are as minimal as possible, while also allowing the UK to fulfil its obligations under the Northern Ireland protocol. However, there are some unavoidable costs for businesses as a result of the amendments to the RoHS regulations, including familiarisation and new labelling costs.

No impact assessment was prepared for the instrument as any costs to, or benefits for, businesses, charities and voluntary bodies were predicted to fall below £5 million in one year.

This instrument is reserved as it covers specific technical standards and requirements on all businesses in relation to products, which is a reserved matter under all three devolution settlements.

I turn to the second instrument, the Waste and Environmental Permitting etc. (Legislative Functions and Amendment etc.) (EU Exit) Regulations 2020. This instrument includes a mixture of devolved and reserved content. We have worked with the devolved Administrations on this instrument and it has received consent from Scottish and Welsh Ministers, but DAERA Ministers have decided not to provide consent on this SI. However, given that time to make this SI is now short and the overriding need to provide certainty for businesses at the end of the transition period and to discharge our protocol obligations, we are proceeding with debating this SI without consent. We will continue to work closely with the Northern Ireland Executive in the coming days to resolve outstanding concerns in advance of making this SI.

This is a technical instrument that makes small but important changes to existing legislation so that it refers to the latest versions of the EU directives and domestic regulations as amended by the EU circular economy package. These are small changes but they will ensure that legislation relating to waste and environmental permitting can be properly enforced by the Environment Agency and its devolved counterparts.

The instrument also makes some small technical amendments to provisions of earlier EU exit SIs that amend domestic legislation relating to batteries, and it changes the extent of amendments in an earlier EU exit SI to the restriction of the use of certain hazardous substances regulations and the Packaging (Essential Requirements) Regulations so that they do not extend to Northern Ireland. These changes are needed to reflect that the directives that those regulations implement will continue to apply in Northern Ireland but not in Great Britain, as a virtue of the Northern Ireland protocol.

In practice, we have kept the GB and NI requirements exactly the same for batteries on the ground that there will be no changes to how batteries are collected, treated and recycled. The requirements for batteries reaching market in the first place will also remain exactly the same. This instrument simply ensures that the correct references are in place depending on whether the legislation applies in GB or Northern Ireland.

The SI also transfers the European Commission’s powers related to Article 7(1) of the waste framework directive. This power is being transferred to the Secretary of State and the devolved Administrations. This power will allow the Secretary of State and the devolved Administrations to establish their own lists of waste or to amend the existing list of waste as it becomes part of retained EU law after the end of the transition period. The list of waste gives identifying codes to different categories of waste, which are used by waste management businesses, and specifies which categories of waste are to be treated as hazardous waste. The Secretary of State will need the consent of the devolved Administrations to make amendments to the list of waste on their behalf.

The schedule to this instrument revokes some recent EU decisions or regulations. These revocations are either to tidy up our statute book or because we should no longer be bound to those decisions after the transition period ends—for example, because they specify formats for reporting data to the European Commission, which the United Kingdom will cease to do at the end of the transition period. I beg to move.

--- Later in debate ---

[Lord Goldsmith of Richmond Park (Con)]

I thank noble Lords who have contributed to the debate. As we look forward to the transition period ending, it is essential that our legislation reflects this new future. I will do my best in the time allowed to address the questions put to me. I will do so in no particular order.

The noble Lord, Lord Mann, raised the important issue of legacy or cross-over issues. He wanted reassurance that no issues can arise where prosecutions have been ongoing regarding orphan sites. I reassure him that nothing in the SI will lead to investigations or prosecutions related to orphaned waste sites, or any other type of waste crime, being paused, discontinued or otherwise disrupted. I hope that answers his question. I am happy to continue that discussion afterwards if it does not.

The noble Baroness, Lady Bakewell, raised a number of issues relating to the influx of old cars that will need to be dealt with following the new rules coming into play in 2030. On end-of-life vehicles, regulations already exist that place the financial cost of proper disposal in the hands of manufacturers. Currently, more than 90% of an average vehicle by weight is recovered or recycled. However, we plan to review the existing requirements, and in doing so will take into account the impact of the move to electric vehicles.

The noble Baroness also talked about the Waste Electrical and Electronic Equipment Regulations. We are reviewing those regulations with a view to driving up reuse and recycling, and to encourage better ecodesign to ensure that manufacturers and retailers, including online marketplaces and distance sellers, take full responsibility for the waste that they generate. That is a theme that runs through the Environment Bill: putting the onus, wherever possible, on producers not consumers.

I will briefly address some issues raised by the noble Baroness, Lady Bennett of Manor Castle. She referenced in particular the concerns raised by ClientEarth. I will say absolutely confidently and clearly on the record that the Government will not seek to lessen or weaken the protection of the environment through any future amendments to the RoHS regulations. Incidentally, if there were any changes, they would be subject to public consultation. When exercising powers under Regulation 5 of the Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020, the Secretary of State is bound by Regulation 8(1) to undertake a consultation before making regulations.

The noble Baroness mentioned the importance of the new OEP, which will come to life following the successful passage, one hopes, of the Environment Bill. She is absolutely right that the OEP has an extraordinarily important job to do. It needs to retain its independence, to be free from ministerial interference and to be sufficiently resourced. That is very much my view and that of the Government.

I scribbled down “producer responsibility”, but I think that I have already covered that. I will make the general point that that is probably the single most effective way we have to minimise waste generally, both in electrical goods and outside of them.

The noble Baroness also asked about maintaining current standards to protect consumer health, but also to protect the environment. The Government remain completely committed to ensuring that the level of protection afforded to consumers against unsafe or non-compliant goods is not in any way diminished now that the UK has left the European Union. Through our own regulatory regime, we will continue to seek to ensure that products are safe for consumers, compliant with Great Britain and Northern Ireland rules, and environmentally sustainable, with the smallest possible impact.

The noble Baroness, Lady Hayman, raised a number of issues, and I thank her for calling me earlier to discuss some of them. Incidentally, I am grateful to her for her support. She cited paragraph 12.1 of the Explanatory Memorandum, where, she says, she has spotted a contradiction as to whether this will have an impact on business. To be clear, the withdrawal agreement Bill set out an impact assessment on the provisions governing the UK’s exit from the EU, including the terms of the Northern Ireland protocol. This SI is the detailed implementation of that policy, which has already been assessed by that impact assessment. Therefore, no new burdens need to be assessed in that regard.

The noble Baroness asked how the SI will be enforced for restricted substances and how we are making sure that any changes to the list of restricted substances are properly scrutinised. The SI will be enforced by the Office for Product Safety and Standards on behalf of the Secretary of State. Any changes to the list of restrictions will be subject to a public consultation. The noble Baroness asked whether I will commit, on behalf of the Secretary of State, to a public consultation before making any changes to the list of restricted substances. The Government will not seek to lessen or weaken the protection of the environment through any future amendments to the RoHS regulations. However, any changes would absolutely be subject to consultation —that would happen.

The noble Baroness asked about a number of other issues. She asked what transitional measures we are putting in place. New regulatory regimes will be ready to come into force immediately after the end of the transition period. However, under exceptional circumstances as a result of the Covid-19 pandemic, we are now giving businesses more time to get ready to operate new UK rules, including a 24-month transition period for the application of the new UK marking, which will replace the European Union’s CE marking. During this period, importer details can be provided on accompanying documentation.

A number of noble Lords have raised the issue of supporting business through this process. As well as providing certainty for businesses about requirements, this SI provides transitional measures to help minimise the costs arising from uncertainty and to give businesses additional time, as I mentioned earlier. Additionally, this SI will ensure unfettered access for Northern Ireland to the rest of the UK, which means no new regulatory checks, customs checks or additional approvals for Northern Ireland businesses to place qualifying goods on the GB market.

The noble Baroness asked me to clarify—I hope I am getting the right Peer—how the EU circular economy package is relevant to this SI and what practical changes it involves and so on. We have had to amend our previous EU exit SIs from 2019 as the underlying EU and domestic legislation to which they related has since been amended by the EU circular economy package. In order to become up to date, we have had to revisit some of those SIs. That means that the technical references in the previous SIs are no longer relevant and no longer work. This SI rectifies that problem, as other SIs have, and ensures that our legislation will be fully operable at the end of the transition period. I was going to give examples of that, but in the interests of time, I shall move on.

The noble Lord, Lord Bhatia, talked about the importance of safeguarding environmental and health standards and the importance of minimising waste generally. I think I have covered most of those issues in previous answers, and I hope he is satisfied by that. If not, again, I am very happy to continue that discussion after this debate.

My noble friend Lady McIntosh asked a number of questions about the consultation. She asked whether any consultation would be published in full. She mentioned the EAC inquiry, and I can tell her that we will be responding in full to the EAC. I am afraid that I do not have a date, but I am assured that it will be early next year. She also spoke of the concerns raised by ClientEarth. Just to reiterate, Regulation 8(1) requires the Secretary of State to carry out consultation before making the kinds of changes that have been cited by ClientEarth as areas of concern. I hope that reassures my noble friend.

My noble friend also asked what kind of consultation had been carried out and with whom. Industry and local authorities were not consulted during the development of both SIs because of sensitivities surrounding the protocol. However, discussions were held with the Department of Agriculture, Environment and Rural Affairs, the Northern Ireland Environment Agency, the Scottish Government, the Scottish Environment Protection Agency, the Welsh Government, Natural Resources Wales, the Environment Agency and the Office for Product Safety and Standards. Those discussions led to the approach implemented in this SI. The changes to the RoHS regulations implemented by these SIs are consistent with the Government’s approach to implementing the Northern Ireland protocol.

I am seconds away from being out of time and I am pretty sure that I have not answered all questions. My noble friend asked in what circumstances would objectives be changed—the implication being, in what circumstances would we be willing to lower environmental health standards? The answer is that we are not willing to compromise on environmental health. That is a rule and a principle to which we are absolutely committed.

I hope that I have covered most of the questions. To conclude, I trust that noble Lords understand and accept the need for these instruments—I think that is the message that we have received. They make small but important changes to existing legislation and make amendments to the legislation relating to RoHS, packaging and batteries so that the UK complies with the Northern Ireland protocol. We have tried to minimise the impact of this on business where possible. Once again, I thank noble Lords for their contributions and support today.

Motion agreed.