Draft Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019

Thérèse Coffey Excerpts

Thursday 14th February 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 and Wildlife (Legislative Functions) (EU Exit) Regulations 2019.

It is a pleasure to serve under your chairmanship, Mr Austin.

The draft regulations are an affirmative statutory instrument on the environment, for consideration in respect of the United Kingdom leaving the European Union in accordance with the result of the 2016 referendum and subsequent agreement by Parliament. Their purpose, under the European Union (Withdrawal) Act 2018, is to provide for public authorities in the United Kingdom to exercise a series of limited legislative functions that under EU legislation are currently conferred on the European Commission.

In each case, the legislative function was conferred on the Commission so that it could sort out the technical details of a specific EU regime and adapt to changes without the frequent need to refer back to the European Council and Parliament. The powers are vital to the functioning and development of the legislation, but they are strictly limited to specific technical and administrative matters. The functions are not the kind for which, in the domestic context, we would generally require primary legislation; rather, they are suitable to be dealt with by secondary legislation, or administratively.

Examples of the functions include specifying what forms are to be used; amending technical annexes to reflect advances in scientific and technical knowledge; and updating annexes to reflect changing requirements under international agreements. A good example would be a change under the multilateral convention on international trade in endangered species, known as CITES. In 2016, at the last conference of the parties, which I had the joy of attending, we adopted a decision to change the listing status of more than 500 species of wild animals and plants. The Commission subsequently amended the basic EU CITES regulation by a 2017 regulation. After we leave the EU, the UK authorities need to be able to continue updating such technical details for domestic purposes, to ensure that the legislation keeps pace with change, including technological developments and our international commitments, without the need for primary legislation every time that a change in such matters is required.

This coming May I hope to attend the CITES conference of the parties. It is highly likely to make further technical changes to the convention, and we will need to reflect those in our national legislation within the 90 days allowed under the convention. As I have suggested, it would be difficult, if not nigh impossible, to comply through primary legislation.

Until now, Parliaments and Assemblies in the United Kingdom have had little input into how such powers are exercised. With two minor exceptions, the draft regulations provide that the legislative functions coming to the UK will be exercised through secondary legislation, which is subject to scrutiny by our Parliaments. The exercise of the functions in specified cases also requires consultation with interested parties and expert bodies—for example, regulation 9 on industrial emissions or regulation 12 on CITES.

In other cases, the principles of good public administration and the Government’s own 2018 consultation principles will ensure that relevant expert advice is sought where appropriate, and that those affected by any policy developments are properly consulted. The regimes will otherwise continue to function similarly to how they do now.

[Kerry McCarthy (Bristol East) (Lab)]

I am glad that the Minister mentioned the need for expert advice. The Department for Environment, Food and Rural Affairs, however, is incredibly stretched at the moment, so what assurances will she give on sufficient expert scientific or technical input before statutory instruments are brought before the House? It is one thing to say that Parliament gets to scrutinise, but we are not experts, and experts need to be involved.

[Dr Coffey]

To use the example of CITES, such bodies will often input into consideration of changes to species to be protected in future. At the moment, Parliament gets no say on that whatever; it just gets done through international agreement, with the EU just changing it so it is there. There is an element of the different sorts of science experts that we have in the United Kingdom, but we will not necessarily need to limit ourselves to the United Kingdom alone in consideration of scientific expertise in the future. A key differential is that now Parliament will have a say on bringing such things into UK law. That is a step change from what we have today.

The draft statutory instrument makes a number of adjustments, but I assure the Committee that there is no change of policy, and there will be no impact on businesses or the public. Regulation 2 confers functions under the EU regulation on persistent organic pollutants, often known as POPs. That includes, for example, a power to amend POPs waste concentration limits, for the purpose of adapting to scientific and technical progress; and to ban, restrict or modify the use of POPs in accordance with international agreements.

Regulations 3 and 6 confer functions under the EU regulations on illegal timber and timber products. The functions include a power to recognise licensing schemes in partner countries to form the basis of licensing, and to amend the list of timber products to which the licensing scheme applies.

Regulation 4 confers functions under the EU regulation establishing a European pollutant release and transfer register. The functions include a power to take measures to initiate reporting on releases of relevant pollutants from diffuse sources where no data exist, and to adopt guidelines for the monitoring and reporting of emissions.

Regulation 5 confers functions under the EU regulation on trans-frontier shipments of waste. The functions include a power to establish and amend technical and organisational requirements for the practical implementation of electronic data interchange for the submission of documents and information.

Regulation 7 confers functions under the EU regulation on the Nagoya protocol on access to genetic resources, and the fair and equitable sharing of benefits. The functions include a power to establish and amend procedures for monitoring user compliance and for recognising best practice.

Regulation 8 confers functions under the EU regulation on mercury. The functions include a power to specify the forms to be used for export and import restrictions, and to set out technical requirements for the environmentally sound interim storage of mercury, mercury compounds and mixtures of mercury.

Regulation 9 confers one legislative function contained in an EU directive. That directive relates to industrial emissions, and the power relates to determining best available techniques for preventing or minimising emissions from activities covered by the directive.

Regulations 10 and 11 confer functions under the EU regulations governing the use of leghold traps and the import of pelts and goods. The functions include a power to grant derogations from the ban on the import of pelts and other products, and to determine the appropriate forms for certification of imported goods incorporating pelts of listed species.

Regulation 12 confers functions under the EU regulation implementing CITES. The functions include a power to establish restrictions on the introduction into the UK of listed species, and to provide for derogations from certain provisions.

[Kerry McCarthy]

Will the Minister give way?

[Dr Coffey]

Might I suggest that the hon. Lady makes a contribution to the debate so that I will be able to answer her questions fully?

I have explained that we will exercise those powers by laying statutory instruments before Parliament, which is not what happens today, as I have pointed out. For the sake of completeness, I draw the Committee’s attention to the two minor cases in which administrative procedures will be used, rather than secondary legislation. They relate to aspects of the POPs and leghold traps regimes. In the first case, the administrative function being conferred concerns the determination of the format for the provision of information by the competent authority; in the second case, it concerns the publication of model forms for use by importers. To be clear, the draft regulations concern administrative elements, rather than a change in policy.

In addition to the above measures, the draft regulations amend the retained direct EU legislation where that is necessary to make it function properly after exit. An example of such an amendment is changing references from “Community legislation” to “retained EU law”.

All the legislative functions covered by the draft regulations fall within the environment and wildlife policy areas of DEFRA. We have decided to deal with them in a single instrument that is subject to the affirmative procedure. The draft regulations allow the nine so-called “home” instruments, which would otherwise separately confer each legislative function, to be subject to the negative procedure. In each case, the conferral of legislative functions was the only element in the “home” SI that required the affirmative procedure. The structure of the regulations will allow the exercise of legislative functions by UK bodies in those areas of the environment to be considered together.

The draft regulations extend and apply to the whole of the United Kingdom. They deal with both reserved and devolved matters. In the case of reserved matters, the legislative function will be conferred on the Secretary of State to exercise on behalf of the whole UK. We have consulted extensively with the devolved Administrations about legislative functions that relate to devolved matters and, where appropriate, they have consented to our proceeding by means of the regulations. Where matters are devolved, functions are conferred on the Secretary of State and Ministers for the devolved Administrations. The default position is that each Administration will exercise a function separately. Where devolved Administrations consent on a case-by-case basis, however, the Secretary of State will be able to exercise functions on their behalf.

I point out that we are making technical amendments, in effect to allow us to continue to undertake our international obligations on such matters in a way that would not be possible if we did not have the powers. I hope that I have explained to the Committee how the European Commission does that now.

--- Later in debate ---

[Sandy Martin]

I totally agree with my hon. Friend. We would much prefer provision in every single regulation to make it clear that the Secretary of State cannot relax or move backwards on any current EU regulations under a statutory instrument subject to the negative procedure. That is the major flaw of a large number of such instruments. With most of the transferred powers, the functions can be exercised by the Secretary of State without a requirement to obtain expert or technical input or the need for consultation with those likely to be affected. That is a recurring theme.

Despite the reassurances of the Secretary of State— I mean, of the Minister—sorry, an instant promotion there.

[Dr Coffey]

In my dreams!

[Sandy Martin]

Despite the reassurances of the Minister, the draft regulations do not contain a requirement for future changes to be agreed with the devolved Administrations. It is hard to see how the regulations will operate effectively.

--- Later in debate ---

[Dr Coffey]

It is a pleasure to respond to the points raised. I saw the hon. Member for Ipswich last Friday in his constituency, when we had the great joy to be together for the opening of the Ipswich flood barrier, which was a great occasion. The hon. Gentleman said that the draft regulations need to be seen in connection with the draft Bill, but the whole point is that this is about the EU (Withdrawal) Act. I can only bring forward regulations that are connected to the operability of regulations in the UK in the future once we have left the European Union. This is not a change of policy, nor is it about raising concerns about putting non-regression clauses into the regulation. That would be a policy change—it would be something else to do—and the draft regulations are simply about operability.

The hon. Gentleman refers to the POPs regulation being passed by the European Parliament. He will know that it was also passed by the European Council, so we have been involved in several of the regulations, and I believe we have the competence to continue to do that. The key point, which my hon. Friend the Member for South Thanet made, is that at the moment this Parliament has no say, and the European Parliament has no say, and the Council has no say, on the regulatory changes that the European Commission undertakes in order to keep pace with the changes required by international agreements or other scientific changes. That power is rightly being brought back here, to the Secretary of State, or to devolved Ministers where the matter has been devolved. We have pointed out very clearly that we will bring those powers forward through statutory instruments, apart from in the case of two issues that are about what the form looks like. I do not think it would be a good use of parliamentary time to have regulations on how a new form is composed. We are considering those simple, straightforward issues today.

I recognise the hon. Gentleman’s point about countries agreeing to do things together, and he will be aware that most of the points that we are discussing are in international agreements, such as aspects of the Nagoya protocol. Once the United Kingdom is no longer part of the European Union, we will attend those discussions in our own right and will then need to find ways to bring changes into our legislation.

I respect the devolved Administrations, which is why we talked extensively with them about how to take the legislation forward. Although I am sure that we want to have a common framework, and the four nations are working together on that, and we will have international obligations, there may be times when the Scottish Government, the Welsh Government or the Northern Ireland Administration may want to do things in a slightly different way to achieve the same outcomes. That is what devolution is all about.

I am pleased by the comments made by hon. Members recognising that this is simply a straightforward, technical, operability change. I look forward to future debates, such as when we come back from CITES in May 2019, when I hope we will have protected even more species around the world and we will be bringing forward a statutory instrument to discuss those changes, if that is necessary.

Question put and agreed to.