Air Quality (Legislative Functions) (Amendment) Regulations 2021

Lord Whitty Excerpts

Wednesday 19th May 2021 Grand Committee

[Lord Whitty (Lab) [V]]

My Lords, I thank the Minister for his explanation. I declare an interest: I have just retired as president of Environmental Protection UK, which almost started its life as the National Society For Clean Air, and I am still a vice-president. Therefore, anything with “air quality” in the title attracts my attention.

I have to confess that I first put my name down for this debate under a bit of a misapprehension. The title of this SI, with its reference to legislative functions, implied to me that we might get to know which of the functions hitherto carried out by the European Commission and its agencies would be transferred to which UK bodies and regulators. Indeed, I hoped that we might get a clearer idea than is apparent from either the latest version of Defra’s air quality strategy or the text of the Environment Bill—in its present form at least—on which authorities will be responsible for the regulations and the enforcement of which bits of that strategy, thus indicating which public authorities would be responsible for those functions that previously rested with the European institutions. I hoped that we could get some clarification with this SI, but no such luck.

As the Minister explained, the SI deals with a much wider issue in a sense, but also a much narrower one. The wider context is that we are now internationally a party to the UNECE agreement on dangerous pollution registration as an independent signatory, having previously been party via our membership of the EU and the European pollutant release and transfer register. We therefore have little leeway on a long-standing international agreement under the Aarhus convention, transposed into EU law, as I understand it, in 2006.

What is before us is also narrower because the main obligation under it is not on government bodies but on the industrial operators to maintain their register of pollution and waste release, leakages and transfers. But, of course, this registration system requires government bodies to oversee its operation, and it is not clear even from what the Minister said, let alone the text, which government bodies we are talking about. The crude transfer from the European Commission to the Secretary of State does not answer that question—which body in practice is, as the text says, the “appropriate authority”? Is it Defra? Is it the Environment Agency? Is it local authorities, which generally bear the brunt of air quality enforcement in practice? Is this UK-wide? What are the responsibilities of the devolved Governments in Scotland, Wales and Northern Ireland, all of which have direct regulatory relations with the relevant operators that have to maintain registers under these provisions? Even if it is England only, it is not all that clear who is responsible.

I was for a number of years a Minister in Defra and its predecessor departments, and then for six years a member of the board of the Environment Agency. I briefly had responsibility for air quality at Defra, but in the six years I was on the Environment Agency board, every year we considered a chart of our performance against our KSIs. Most of the achievements were amber and many gratifyingly green, but on air quality, year after year, they were red, and that never changed. The reason for that lay not in the responsibilities of the Environment Agency itself, nor, indeed, of the local authorities of which the Environment Agency had oversight, but because the largest air-quality issues were largely problems for the Department for Transport or its agencies, or for BEIS or whatever the department covering energy and construction was called at the time. In other words, the department and agency which were formally responsible for air quality strategy had no jurisdiction over the largest problems of air-quality pollution and health hazards—road transport being the largest, but there were also major contributions by static machinery on construction and energy sites.

The issue of what is the appropriate authority goes beyond this particular SI, and we may need to return to it at a later stage. We need eventually to be clear on this. I hope that we will be before we start substantive discussion on the Environment Bill, but I have to tell Ministers that in its present form, the Bill is not clear on air quality.

I have just a couple of other questions. First, the UNECE agreement prevents signatories from deleting pollutants from the list but allows signatories—previously the EU and now the UK—to add to the list for their jurisdictions. Do Her Majesty’s Government at present have any plans to add to the list or to change the thresholds for reporting that are in Annexe 2, Article 5 of the protocol?

Some of those thresholds seem very high for releases into the atmosphere per annum, and some of the releases into water and soil really ought to be banned altogether in a sustainable system. The whole issue of what is the threshold for reporting probably needs to be addressed now that we have “taken back control” of our rules. Otherwise, a number of smaller entities that release pollutants and waste will not really be covered. Do the Government have plans to review the thresholds and, if so, will that be part of the Environment Bill, or will it be later?

Lastly, I go back to the devolution issue. We talk about “appropriate agencies”. Are decisions in this area to be taken by Defra and/or the Environment Agency, which are the key entities for England, or are we to have a four-nation framework, under which all four UK Governments will take an agreed position? If there is not a unified position, the companies obliged to run the register will be required to do so in a number of different jurisdictions. They will find that bureaucratically difficult if there are marginally different criteria north and south of the Tweed, or east and west of Offa’s Dyke, for example. Even if the criteria are the same, the duty to record the register and provide it to the appropriate authority will be fourfold rather than, as currently, a single reporting system.

As I said, I was under a bit of a misapprehension as to how wide this SI went, but it raises some of those problems. I am happy to nod the SI through this afternoon, but we will need some clarification of those issues—if not today, I ask the Minister to consider it in the course of the passage of the Environment Bill, if not before.