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

Lord Krebs Excerpts

Wednesday 6th March 2019 Grand Committee

[Baroness Parminter (LD)]

My Lords, I thank the Minister for his introduction. This statutory instrument brings over legislation from the nature directives, which have been the bedrock of nature protection in Europe and the UK for many years. We know that species resident on sites protected by the habitats directive are recovering more strongly than species on sites that are not covered by it. The nature directives are the bedrock of protection and are important for species such as the bittern, which has recovered far more strongly by virtue of the habitats directive.

I shall give credit where credit is due. As the Minister rightly said, this statutory instrument was removed and relaid after concerns were raised by the RSPB and other environmental stakeholders. That is a model of how such matters should be treated. I commend the department on that, and I will not be opposing this statutory instrument.

I shall touch on a particular issue the Minister raised. He did not quite address it to my satisfaction, so I shall press him a little further. It is about reporting under these regulations. The Explanatory Memorandum makes it clear that the reporting requirements will be carried across, and I pay tribute to the Secondary Legislation Scrutiny Committee which teased out a bit more from the department on that matter to make sure that there was greater clarity about the format of those reports. The formats for reporting are very clear under the directives, but they are not clear in the statutory instrument or the Explanatory Memorandum. The Secondary Legislation Scrutiny Committee got the department to put on record that the formats for reporting will be agreed with statutory agencies and the devolved Administrations. That is to be welcomed. However, there is no clarity on the provision for reviewing those reports and highlighting any failures for action. The Government say that they will meet their international obligations, which is welcome, but there is no guarantee that that reporting will be timely or at a pace that will allow failures to be rectified speedily. At the moment, the EU has the power to enforce action for failures. Is there any sufficient capacity to enforce, including by fines for breaches of the regulations?

When he sums up, will the Minister say a bit more about how the Government see these vital reporting requirements being reviewed and how we can be sure that transgressions against them are speedily rectified? I am sure the Minister will talk about the office for environmental protection, which we hope will be forthcoming in due course, but it will not be truly independent since the Government will appoint its board and will be responsible for its budget. Discussion so far suggests that there will be insufficient enforcement mechanisms. For example, there is no power to call the Government to hearings or, as a last resort, to levy fines. We do not have the office for environmental protection yet, so what will happen to reporting in the meantime? If the Minister could offer us some reassurances on how reporting will be reviewed and how we will rectify any failures, I would appreciate it.

[Lord Krebs (CB)]

I welcome and appreciate the Minister’s introduction. Overall, what he said is reassuring. In addition to the point that has already been made, I want to pick up on scientific input, which was mentioned in the Minister’s introduction. Will he clarify in a little more detail the point that changes will be allowed only due to “technical and scientific progress”? The statutory instrument does not specify where the expert input will come from and whether it will involve the statutory nature conservation advisers. Will the Minister elaborate a little on the nature of the scientific input, how it will be taken into account, the degree of transparency in the publication of any scientific advice and how it will work across the four nations of the United Kingdom?

[Baroness Young of Old Scone (Lab)]

My Lords, I thank the Minister for his exposition on these three statutory instruments. I shall start with the first two on the conservation of habitats and species. I have spent almost 30 years of my life campaigning for the nature directives—for their introduction, refinement and implementation, and, on occasion, in their defence. They have been hugely instrumental in protecting internationally important species and habitats, so I say to the Minister: tread gently because you tread on my dreams.

I am delighted that the Government accepted many of the concerns of the NGOs and others, and withdrew and then relaid the first statutory instrument. I commend the excellent work of Greener UK and its constituent NGOs in that respect. The SIs are certainly in better shape now, but there remain a number of points on which I seek ministerial assurance.

We welcome the new provision for statutory guidance to be produced in consultation with the appropriate nature conservation body. This guidance will be required urgently to ensure clarity across all sectors on the meaning of all these changes. I hope the Minister can assure the Committee that consultation on the statutory guidance will begin right away and not take more than a few months to conclude.

We welcome the new regulation introducing management objectives for special protection areas and special areas of conservation, and for their joint network, but I must admit that I am rather perturbed at the wording of the first SAC objective, which talks about achieving,

“a favourable conservation status … (so far as it lies in the United Kingdom’s territory, and so far as is proportionate)”.

This proportionality is about the management of sites, not their designation, and seems to introduce a new restriction that is not in the habitats directive—which, of course, I read nightly before I go to bed. The Minister kindly organised a briefing session with his civil servants, where it emerged that this was about prioritisation, and we explored on what basis that prioritisation process would take place. Surely if a site has been designated as being of international importance, the objective of achieving favourable conservation status ought to be axiomatic; we do not designate sites in order to watch them get worse. We may have only a small proportion of a particular European habitat and species, but we should still have a responsibility to get it into favourable conservation status. Equally, if we are the principal guardian of a habitat such as blanket bog or a species such as the great crested newt, we have a particular responsibility on behalf of the European biosphere to do a good job in looking after them. Do the Government think we have too many newts and blanket bog sites? I may be misjudging the Government, and I would be grateful if the Minister could explain what is intended by the concept that management effort should be “proportionate”.

I turn to reporting, which has been raised by the noble Baroness, Lady Parminter. We welcome the change to the instrument, which brings in a requirement for reporting on progress, and on exceptions and derogations, but, as the noble Baroness said, the regulations do not make provision for anyone to review these reports or highlight any lack of progress, as is currently undertaken by the European Commission. As it stands, the statutory instrument is a diminution in protection for these vital species, sites and habitats. Although the reports will be forwarded to the Berne convention, the convention has not exactly been alacritous in following up failings and enabling action to be taken.

I ask the Minister to ensure that provisions be made for an independent review to be included, with the stress on the word “independent”. This would preferably have been in the legislation but we are now beyond that point, so can the Minister assure the Committee that a suitable independent body such as the OEP will be given this reviewing role? Although the progress in setting up the OEP is slightly glacial, the first report under these provisions is not due for two years, so I hope it would be set up in time to pick up the reviewing function.

The regulations introduce a new power for the relevant authorities to make changes to the birds and habitats directives’ annexes and the habitat regulations’ schedules, which will include prohibited methods of capturing and killing mammals and fish. Changes would be allowed on the basis only of technical and scientific progress. I echo the point made by the noble Lord, Lord Krebs, that expert input, and a duty to consult relevant statutory nature conservation advisers and take account of their advice, is needed in connection with this change, particularly since the changes would be achieved through negative procedure SIs, with their inflexibility to challenge once laid. It would be useful if the Minister could say whether the guidance that will be issued for this SI will confirm the process by which the Government will seek expert input, including from the statutory advisers, and whether this process will be agreed with the devolved Administrations.

On the amendment to Regulation 36, to move the paragraphs on prohibited means of killing mammals and fish into a schedule that would then be amendable by Ministers, could the Minister confirm, firmly and unequivocally, that these powers will not be used to roll back animal welfare standards? I am not sure the Government understand what a hornets’ nest they are inviting in making it easier to challenge what has been quite a difficult process of changing this particular set of provisions about killing.

A highly important issue, which some may see as a bit of a sideshow, is the name of the network of sites designated under the nature directives—currently Natura 2000. I declare an interest, because about 25% of the sites in that network were designated under my chairmanship of English Nature, a piece of work of which I am immensely proud. We are talking about my children and I love them all.

The statutory instrument proposes that this network be called the national site network. This has problems on three counts. The first is practical: sites of special scientific interest are also known as national sites, since they are important for national and not European criteria. Also, planners across the country risk getting mightily confused, as there is already reference to national sites in the National Planning Policy Framework. These are different sites with different criteria.

The second issue is that several of the Natura 2000 sites in Northern Ireland span the border with the south. I have happy memories of driving along the border in the dark during the Troubles, in an RSPB Land Rover, which I hoped was clearly marked, trying to track down the last crekking corncrake in Northern Ireland. If we crash out on 29 March and have a hard border in Northern Ireland, presumably wildlife will have to wait at the border, in common with everyone else, but we certainly should not call these border sites national sites because they are clearly transnational. Also, “national” has a distinctly different meaning in Northern Ireland.

The third and most important reason for not calling the network of sites the national site network is that the one thing that distinguishes the sites designated under the nature directives is that they are not national in importance, but designated for the very reason that they are international in importance. Therefore, could I persuade the Minister to confirm that no matter what this statutory instrument calls the network, the Government will swiftly announce that for the purposes of clarity it will forthwith be known as the international site network? This network would include the Ramsar sites to complete the set, and would be clearly distinguishable from the SSSIs and the marine conservation zones.

On the impact of the statutory instruments on provisions in Northern Ireland, the office for environmental protection will not operate in Northern Ireland. Northern Ireland is also the only country in the UK that does not have an independent nature conservation advisory body, so who will take an independent role in overseeing the implementation of these statutory instruments in Northern Ireland? For example, when I spoke on the need for reports to be reviewed by an independent body or for independent conservation advice to be taken, it was not clear who could take this role in Northern Ireland. We are sweeping away the powers that the European Union had in ensuring protections were enforced, but we are not proposing anything to replace that vital function in Northern Ireland. In the absence of a functioning Northern Ireland Assembly and Executive, what do the Government propose?

I see from the scrutiny of these statutory instruments in the other place that the Minister indicated that DAERA civil servants had asked that the possibility of the OEP covering Northern Ireland should be kept in play until Northern Ireland Ministers returned and could decide. Can the Minister cast more light on this? I hope he will confirm that these are issues that need to be tackled and tell us what discussions have been held on this with Northern Ireland civil servants. I hope the Minister will also agree that continued environmental co-operation on the island of Ireland will be vital post Brexit, since it is, after all, a single biogeographic unit.