Draft Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019

Luke Pollard Excerpts

Wednesday 17th July 2019 General Committees

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

It is good to see you back in the Chair, Mr Hanson. I will use my remarks to raise a number of concerns on behalf of the Opposition about the regulations and the way in which they have been put together. They seem a little like the pile of vomit we sometimes see on the street after a night out. With a cursory glance, we wonder, “Why are all those bits in there, and where does the carrot come from?” [Hon. Members: “It’s too early!”] No, no. Everyone needs to be awake on this. When we see the broad range of topics included in the regulations and the Minister’s statement that they were held back before exit day, we must consider why all these measures are being included together. The only contingent stream seems to be that they all under the responsibility of the Department for Environment, Food and Rural Affairs.

Stakeholders have raised concerns with the Opposition on which I will provide some detail. The Minister tried to head off some of the concerns raised already, but I would like to put a few questions on the record that perhaps she can answer. I warn her that our concerns are substantial, so she cannot be assured of the Opposition’s support; it will depend on the answers she gives.

We are concerned that the regulations represent a power grab by Ministers, potentially enabling them to reduce current EU environmental protections by amending their own duties, standards and monitoring requirements, in particular for toxic emissions. The withdrawal agreement and the draft Environment Bill do not maintain the current EU protections or keep us in step with improvements. Indeed, we have not yet really seen the full extent of the Bill. These regulations need to fit with the other jigsaw pieces the Minister alluded to that we passed before 29 March. Hon. Members who have sat on Delegated Legislation Committees on such topics will note that air quality, marine management, water and water resources are the subjects of many of the statutory instruments that we have passed.

I say gently to the Minister that there is utility in mentioning how related instruments will fit together in the first and second stages when one statutory instrument is considered while others are held for future consideration. That will help scrutiny of those SIs; otherwise, all we have is random bits of legislation that do not seem to fit together. I am sure there is a method in the tactics that are being pursued, but it makes scrutiny much harder.

A key concern is the governance gap between leaving the EU and the date when the Government’s proposed environmental watchdog starts to function. The public cannot have confidence in it if it is appointed by and reports to DEFRA. Some of the watchdog’s powers relate directly to the areas that the SI covers, so they are connected. We are concerned that the Brexit legislation is being used as an opportunity for the Government to take on additional powers, but not with the same level of scrutiny as we had before, and that the new environmental watchdog does not strengthen the protections that we have together.

We have concerns about how the SI’s provisions fit together with the overall Government strategy on air quality. We know that the Government’s plans have been ruled unlawful numerous times by the High Court. The clean air strategy was a disappointment with vague targets. Responsibility was shoved to some local authorities with a degree of power, but some of their resources were taken away. Stakeholders have raised concerns about how powers will be exercised in relation to air quality, so will the Minister set out any additional powers and the level of consultation? The key thing for lots of stakeholders is that if the Government change any of the powers, will the stakeholders be consulted and will the consultation be done in a meaningful way?

On environmental noise, the current proposals are not good enough. They do not cover noise from domestic activities and noise created by neighbours, noise in workplaces and noise from transport. The Minister mentioned stakeholder concerns and she is right to highlight the concerns flagged by Greener UK, but other organisations have also flagged concerns. They are concerned that the SI establishes broad powers for the relevant competent authority, usually the Secretary of State, to make amendments, by regulation, to a wide variety of significant legislation, which potentially has important implications for the environment. Although some of the powers are limited in that the powers may be exercised only to the extent that the Secretary of State considers it is appropriate to do so as a result of scientific and technical knowledge, the requirement does not apply to all of the powers in this SI. Indeed, it provides no clarity as to what

“appropriate...as a result of scientific and technical progress”,

actually means. That is a broad statement, so will the Minister clarify what considerations and technical tests she will apply in defining what scientific and technical knowledge means in relation to this measure? Simply being really good at science and sitting in a Government Department might not qualify, so it is important to have some external scrutiny of what that definition actually means.

All the regulations that can be made by the competent authority under the SI are, pursuant to regulation 47, subject to the negative procedure of scrutiny, which means that the regulations become law on the day they are signed by the relevant Minister and will remain so unless Parliament agrees a motion to reject the relevant regulation. In SIs in the past, the Opposition have raised concerns about how many of the additional powers the Government are taking for themselves and applying via the negative procedure, potentially limiting scrutiny. We know that many of these powers are exercised by European authorities at the moment, who have a wide range of scrutiny functions derived from the European Commission and the European Parliament, and we need to look at the transfer of such scrutiny powers to the United Kingdom and how they can be properly reviewed, so will the Minister set out why she feels powers in negative SIs, and not affirmative ones, are the right ones to take?

Key to many of the concerns is the lack of scrutiny. Will the Minister confirm for the record that the SI has been in the reading room and has had stakeholder feedback on its production? What changes, if any, have been made? The Minister knows that a pet hobby-horse of mine is impact assessments, and I am afraid this SI prompts the same critique as the others, which I have mentioned in this place many times before. Page 11 of the explanatory notes, under the section on “Impact”, states:

“There is no, or no significant, impact on business, charities or voluntary bodies”

or the public sector, and therefore:

“An Impact Assessment has not been prepared for this instrument because it creates regulation-making powers rather than changing any policy.”

I am concerned that the difference between “no impact” and “no significant impact” is an impact, and an impact assessment of the difference between “no impact” and “no significant impact” would be required. I know that Minister’s officials normally have to prepare lines to rebut my saying these things, and I wonder whether we can find a way to avoid that dance each time and have a mini impact assessment or a form of words that enable the time that officials spend rebutting my concerns about the impact assessment to be spent on applying some of these elements.

Now that we have got through the glut of DEFRA SIs ahead of the proposed exit day on 29 March, I wonder whether Government Ministers could persuade the House authorities through the usual channels to slightly adjust the set wording on the explanatory notes, to clarify whether there is “no impact” or “some impact”, so that we have those as two very different statements. These regulations could have some impact, but it has not been assessed. The Minister is probably correct that they take a lot of powers but might not necessarily change any policies. Given that there might be no change in the powers but that they could bring significant change when used, and that there is not always the same scrutiny of the exercise of those powers, I would be grateful if the Minister could set out her view on that.

The Opposition have some concerns about the environmental noise area. On the INSPIRE side, we are concerned about the devolution agenda and how different levels of devolution can ensure consistent application. If there is a difference between the devolution of INSPIRE in Scotland and in England, Wales and Northern Ireland, how would that be resolved? If they are applied in different ways, would the Minister be concerned about that? Has any consideration been given to how that spatial data can work together to ensure that we get the right stuff?

I will close my speech by addressing marine strategy. The Opposition is very keen for the Government to have a more ambitious marine strategy for the protection of our oceans and seas. We are concerned about the application of the powers that are being transferred to the Secretary of State. I encourage the Minister to use the powers that she already has, as well as the powers that she is taking, to protect our environment in a faster, fuller way. We are very concerned about the state of our oceans and marine environment. Colleagues’ research on marine plastics and pollution, and the report on toxins and chemicals that was published yesterday by the Select Committee on Environmental Audit, should concern us. I would be grateful if the Minister could set out how she expects the powers in the marine section to be used. Simply transferring those powers is one thing, but their application is another.

There is plenty in the SI that looks like just a paragraph, which is our key concern. The consultation that needs to follow the powers does not always seem to apply as thoroughly as it should. I am concerned about how this fits with the other areas that we have already approved, and whether we should expect any other, related SIs. In her opening remarks, the Minister said that she chose not to bring forward this SI in the flood that we had leading up to 29 March, because it was not deemed critical. The powers that the Minister has taken are still substantial and I would be grateful if she could set out what other, non-critical powers she is expecting to transfer that relate to water, water resources, marine management, air quality and environmental protection, and which might not be included in this SI but will relate to the powers contained in it and in the others that we have passed in those areas. It is really hard to scrutinise the full regulatory and legislative impacts if the Minister keeps dripping different elements in at the same time, and if there are no aggregated or collated versions at the end that enable easy scrutiny, apart from trawling though the entire statute book—as we know, that is a much bigger challenge.

On that basis, the Opposition remain concerned about large chunks of this SI. We would be grateful if the Minister could respond to the concerns raised by stakeholders around the power grab, the additional powers and how any scrutiny functions will be applied in the use of the powers.

--- Later in debate ---

[Dr Thérèse Coffey]

In response to the hon. Member for Falkirk, I have been there once in my life, but I have not seen the Falkirk wheel. Perhaps I will add it to my summer list.

I object to the terminology used by the hon. Member for Plymouth, Sutton and Devonport at the opening of his speech. Our officials and lawyers have worked very hard on this legislation; it is not vomit. It is actually good, normal, sensible legislation being brought to this House for scrutiny.

Hon. Members will be aware that we had a huge number of statutory instruments to process into group areas, especially where they were small and similar, with the same approach of basically updating, in this case, technical powers. I thought it was appropriate to group together the different areas in order to undertake that. I also want to point out that I wrote to the shadow Secretary of State on 5 July, making her aware of this and inviting her to get in touch, if any discussion was wanted. I appreciate that the Government have the full benefit of the civil service behind them and the Opposition rely on Short money for that support to help on policy matters.

I want to assure the hon. Member for Plymouth, Sutton and Devonport that this statutory instrument was put in the reading room. No feedback was given to the Department at that point. There has been a subsequent briefing from Greener UK. I am not aware of contact from any other organisation on this and, as a consequence, no changes to the regulations were needed before formal tabling, which we are debating today.

The hon. Member for Plymouth, Sutton and Devonport is just going to have to join either the Procedure Committee or the Joint Committee on Statutory Instruments. I have made that appeal to him before. This is just the way that Parliament works, and it is not for the Government to change how Parliament decides that it wants statutory instruments to be written. We are following the conventions and rules set out by Parliament. I know that the hon. Gentleman is a champion for change on a number of matters. I encourage him to join the relevant Committees to make that change.

On the points that the hon. Gentleman made about air quality, regulation 15 provides that, before making any regulations under the part regarding air quality, there is a statutory duty to consult. Consultation will be carried out in accordance with our standard principles. On noise, the statutory instrument simply replicates the powers in the directive. It would be an inappropriate use of the European Union (Withdrawal) Act 2018 to do anything more than what is in the directive. If we want to make changes in the future, that will be a separate matter for us to consider through means other than this device.

On negative SIs, I repeat to the Committee that, at the moment, the Commission can exercise the powers without any scrutiny by this Parliament whatsoever. Today’s proceedings will at least give Parliament the chance to look at future regulations. We will have consultation where it is deemed necessary, and then Parliament can, even through the negative procedure, suggest that the regulations be stopped, debated and voted on. Parliament does not have those powers today.

Marine is an important issue, on which I think the House is united in wanting to do more. Again, the regulations are simply about powers to update technical matters. The hon. Gentleman mentioned how we know what will change, scientifically. As it stands, the Commission is regularly approached by scientists, academics and others in order to get such changes made, to update the technical progress. We would expect a similar situation to happen, whereby the Government would be approached by people saying, “We think you need to update these particular regulations,” or simply making a suggestion on how we monitor data.

A future marine strategy is an ongoing process within Government. The hon. Gentleman also talked about the INSPIRE regulation and metadata. That is a devolved matter. Usually, the UK Government work in great collaboration on matters that can be helpfully dealt with on a UK-wide basis—we have seen that as regards a series of processes. There is no reason why such ongoing co-operation cannot continue; however, the whole point of devolution is that, if a devolved Administration want to do something different, they do not have to remain in step with the rest of the UK.

[Luke Pollard]

In relation to scientists approaching the Department and asking for changes, one of the key things about our marine environment is that fish and other aspects of the marine environment do not respect national boundaries. Ensuring that regulations and standards in our marine environment, especially in areas that jut up against our EU neighbours’ marine environment, is really important. Does the Minister anticipate changes in the way that standard and monitoring assessments are made by our EU friends that she will need to carry over into UK law, or does she expect the two standards, which are currently the same, to diverge?

[Dr Coffey]

I am not expecting particular changes, but it is important to point out that we also have marine boundaries with non-EU countries. There is regular, ongoing co-operation through the regional management organisation for fishing. We also have the OSPAR commission, which covers the north-east Atlantic. Again, that has non-EU countries in it. We already have ongoing co-operation. It is important to state that one element of leaving the European Union is that it will be for Parliament to decide to make changes, rather than automatically agreeing with what the European Union decides is appropriate for its regulations. That is part of the effect of leaving the European Union.

I hope that I have answered the hon. Gentlemen’s concerns. This is a special day for me, because I have been doing this role for three years. I am very much looking forward to continuing for at least another week or—who knows?—for longer. With that, I hope that the Committee will support the motion.