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

Thérèse Coffey Excerpts

Wednesday 17th July 2019 General Committees

[The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Dr Thérèse Coffey)]

I beg to move,

That the Committee has considered the draft Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019.

It is a pleasure to serve under your chairmanship, Mr Hanson. This is yet another affirmative statutory instrument regarding the environment for consideration in respect of the UK leaving the European Union, in accordance with the result of the 2016 referendum, subsequent agreement by Parliament and the European Union (Withdrawal) Act 2018.

The Committee may wonder why we did not consider this statutory instrument prior to 29 March. That is because the functions it concerns were not deemed critical for day one operability and continuity. I therefore agreed to lay the instrument before Parliament after 29 March, given the huge amount of legal work and work by officials undertaken in the run-up to 29 March. However, now that we have the extension until 31 October, I want to ensure that the instrument is ready for exit day.

The statutory instrument creates regulation-making powers to be exercised by Ministers here and in the devolved Administrations. The instrument itself makes no change to policy and has no impact on businesses or the public. The regimes connected to the powers in the instrument will continue to function as they do now, and will change only if new regulations are made under the powers being created.

Part 2, which contains regulations 3 to 15, covers functions with respect to five EU directives relating to air quality: the directives on emissions of volatile organic compounds, ambient air quality and cleaner air, industrial emissions, medium combustion plants, and national emissions of certain atmospheric pollutants. Those functions include, for example, a power to specify a common format for monitoring data for volatile organic compounds, and a power to specify rules for determining start-up and shut-down periods for the purpose of certain plants covered by the industrial emissions directive.

The powers in part 2 that relate to volatile organic compounds and national air pollution programmes are conferred on the Secretary of State. Volatile organic compounds are a reserved matter. Powers relating to national emissions of certain atmospheric pollutants, on the other hand, are devolved, but the devolved Administrations have already agreed to those powers being transferred to the Secretary of State to exercise on behalf of the whole United Kingdom because they involve UK-wide obligations. However, the Secretary of State must, on each occasion, obtain the devolved Administrations’ consent before making regulations on those matters. The Secretary of State must also have regard to requests from devolved Administrations to make regulations effectively on their behalf.

For all other devolved matters in part 2, powers are conferred on the appropriate authority. The appropriate authority is defined for part 2 by regulation 4 and means, for England, the Secretary of State; for Wales, the Welsh Ministers; for Scotland, the Scottish Ministers; and for Northern Ireland, the Department of Agriculture, Environment and Rural Affairs. Regulation 14 provides that it is possible for the Secretary of State to make regulations on behalf of one or more devolved Administrations, but only with their agreement. That allows for a common approach on legislation across the United Kingdom, providing more certainty for industry and other stakeholders. Regulation 15 provides that the appropriate authority may make regulations under part 2 only after having consulted anyone whose interests appear

“likely to be substantially affected”

and any other appropriate persons.

In part 3, regulation 16 transfers functions in the EU environmental noise directive, which aims to avoid, prevent or reduce the harmful effects of exposure to noise pollution. Those functions are conferred on the appropriate authority, which is defined in the same way as for part 2. They allow for specified technical aspects of the directive in the UK’s transposing legislation to be amended by the appropriate authority in the light of scientific and technical progress. These are very limited and technical matters. The Government’s consultation principles will apply to determine whether consultation should be carried out before regulations are made.

Part 4, which contains regulations 17 to 22, confers functions under the EU directive establishing an infrastructure for spatial information, which is known as the INSPIRE directive. The functions in regulations 19 to 22 include powers to make provision in relation to metadata for spatial datasets and services, and interoperability and harmonisation of spatial datasets and services. Those powers can be used to amend a number of pieces of EU legislation that will become part of domestic law in the UK on exit day, such as the EU implementing regulation on metadata. Chapter 1 sets out definitions for this part, including regulation 18, which defines an “appropriate authority”. This is slightly different from the definition in parts 2 and 3, in that the Secretary of State is the appropriate authority for England, Wales and Northern Ireland, because INSPIRE is devolved only to Scotland. However, the Secretary of State may also legislate for Scotland if Scottish Ministers consent.

Regulation 23, in part 5, transfers functions contained in the EU marine strategy framework directive, which aims to protect the marine environment, by amending the Marine Strategy Regulations 2010, which transposed the directive to the entire United Kingdom. The functions relate to: assessing the state of UK seas and setting objectives, targets and indicators to measure progress towards good environmental status; carrying out programmes to monitor progress against the targets and indicators; and setting out a programme of measures for achieving good environmental status. These functions are conferred on the Secretary of State to exercise for the whole marine strategy area, as defined in regulation 3 of the Marine Strategy Regulations 2010. This includes the UK’s territorial seas, including coastal waters, offshore waters out to the limits of the UK’s renewable energy zone and the seabed in areas of the UK continental shelf beyond the renewable energy zone.

Some of these matters are devolved, but the devolved Administrations have agreed that, because they involve UK-wide obligations, these functions should be exercised by the Secretary of State. Before making regulations under this part, the Secretary of State must obtain the consent of relevant devolved Administrations. The Secretary of State may also consult interested parties, including, where appropriate, the OSPAR commission and other international organisations to which we will retain our obligations after we have left the EU. The Secretary of State must publish a report on his decision following consultation.

Part 6, comprising regulations 24 to 46, confers functions contained in eight EU water directives relating to the protection of waters in general, including the water framework directive, the groundwater directive, the environmental quality standards directive, the bathing water directive, the drinking water directive, the urban wastewater treatment directive, the nitrates directive and the sewage sludge directive. The functions include powers to: set out technical specifications for economic analysis and water quality monitoring; specify the procedures for establishing groundwater threshold values, assessing groundwater chemical status and identifying upward trends in groundwater pollutants; specify the symbols to be used for information on bathing water prohibition and to make provision about handling bathing water samples; and to specify reference methods for measuring nitrate levels in water.

The functions are clearly defined and are exercisable in most cases only in order to adapt the legislation to scientific and technical progress. They are conferred in each case on the appropriate authority defined by regulation 25, in the same way as for part 2. Regulation 25 also provides for the Secretary of State to legislate for the devolved Administrations, with their consent. Before making regulations under part 6, regulation 46 provides that the appropriate authority must consult the appropriate agency—the Environment Agency, Natural Resources Wales, the Scottish Environmental Protection Agency or the Northern Ireland Environment Agency—as appropriate, and indeed any other persons who the appropriate authority considers appropriate to consult. Part 7, comprising regulations 47 and 48, sets out the procedures for making regulations in each part of the United Kingdom and provides that such instruments are to be made in each case by the negative procedure.

These regulations, as I have tried to explain, extend to the whole United Kingdom, with the exception of part 5, which applies to the marine strategy area. The nature of these regulations is to allow for the straightforward transition of limited technical legislative functions that are currently conferred on the Commission by EU environmental directives. Some of the Commission’s powers enable it to make amendments to EU legislation, for example by adapting technical annexes to a directive to reflect changes in scientific and technical knowledge, without any need to refer back to either the European Council or the European Parliament. Other powers also enable the Commission to set out the details of things such as reporting requirements.

When the directives were transposed into domestic law, there was no option to take such powers, because they were specifically powers to be exercised by the Commission, not by member states. We have subsequently seen the Commission exercise its powers to legislate, and we have then used the powers in section 2(2) of the European Communities Act 1972 and similar implementing powers to make any legal changes needed to reflect updates to the directives or to implement the detailed rules set by the Commission. After EU exit, unless we give these sort of updating powers to authorities in the UK to exercise for domestic purposes, in many cases we would only be able to make changes to legislation through primary legislation.

The powers will be used to ensure that domestic legislation continues to function well in the future and reflects scientific developments. They are, however, limited in nature and not the kind of functions for which we would normally require primary legislation. As in other cases, they are suitable to be dealt with through secondary legislation. It is fair to say that if we had to resort to using primary legislation and did not have the powers, it would become increasingly difficult for the law to keep pace with both scientific and technical change.

The instruments provides that in future legislative functions will be exercised by making regulations through this Parliament and indeed devolved Administrations. Parliament is therefore capable of scrutinising such regulations. By contrast, Parliament currently has no say whatsoever over how the European Commission exercises the powers. In many cases the regulations also explicitly require consultation with interested parties and expert bodies before regulations are laid before Parliament. For example, regulation 15 in part 2, which relates to air quality, requires such consultation before regulations are laid, and regulation 23 makes similar provision relating to marine strategy.

I have been made aware of a briefing from Greener UK. In its letter, it asks for things to be done that are not done today. I stress that that is not the purpose of the European Union (Withdrawal) Act 2018, under which we are in effect translating EU law into domestic law. Indeed, in my transparency statement I must be clear that we are doing what we need to do and not new things. The powers in the Act are there for me to make operable and effectively mirror the language of the directives. I understand Greener UK’s concern that phrases such as “non-essential elements” may appear somewhat odd as regards normal parlance, but that is the wording in the directive that we are effectively translating.

I point out that the Secondary Legislation Scrutiny Committee did not report the regulations to the House. I believe the regulations are a sensible approach that will ensure that we continue to have appropriate legislation that helps us protect the environment.

--- 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.

[The Chair]

On this noble third anniversary, I will put the question.

Question put.