Draft Conservation (Natural Habitats Etc.) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 Draft Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019

Thérèse Coffey Excerpts

Monday 4th March 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 Conservation (Natural Habitats, etc.) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019.

[The Chair]

With this it will be convenient to consider the draft Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019.

[Dr Coffey]

It is a pleasure to serve under your chairmanship, Mr Hosie. These are the two affirmative statutory instruments in my portfolio that extend and apply solely to Northern Ireland. These regulations relate only to Northern Ireland and concern devolved areas of policy, which would normally be dealt with by the devolved Administration at Stormont. Another Committee of the House will debate regulations on habitats applicable to other parts of the UK later this week, and the second of the two regulations to which I am speaking has already been considered and passed by Parliament in regard to England and Wales.

Because there is already a well-established body of separate Northern Ireland legislation in these two areas, having separate SIs will help to preserve the coherence of the Northern Ireland statute book. The UK Parliament is being asked to consider and pass these SIs in the absence of the Northern Ireland Assembly. That said, I am delighted—the Committee will not be surprised to know—that the civil service continues to operate fully in Northern Ireland and officials there have prepared these statutory instruments. I requested that we be joined by officials from the Department of Agriculture, Environment and Rural Affairs, to help answer any questions that members of the Committee may have.

These two sets of regulations are made under section 8 and paragraph 21(b) of schedule 7 to the European Union (Withdrawal) Act 2018. The Act retains EU-derived legislation in UK law. Section 8 of the Act enables regulations to be made to address deficiencies in EU-derived legislation, so that the law continues to be operable.

The Conservation (Natural Habitats, etc.) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 ensure that legislation protecting biodiversity through the conservation of natural habitats and species will continue to function after exit from the EU. The regulations make technical amendments to maintain the effectiveness and continuity of legislation that would otherwise be left partially inoperable. The amendments represent no changes of policy, nor will they have any impact on businesses or the public.

Part 2 amends the Wildlife (Northern Ireland) Order 1985, to ensure that species of wild birds found in or regularly visiting the UK, but not elsewhere in the EU, continue to be protected. Part 2 also includes a technical amendment to the Water (Northern Ireland) Order 1999. The change will ensure the operability of two powers within the order, to give effect to retained EU obligations.

Part 3 is the main focus of the regulation and amends the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995. The 1995 regulations, together with the Wildlife (Amendment) (Northern Ireland) Order 1995, transposed the requirements of the habitats directive and the wild birds directive into Northern Ireland law. Various terms in the regulations or the directives that relate to the EU are amended to be relevant to the UK. For example, the instrument removes references to the UK as an EU member state. The instrument introduces five main changes, mainly involving a transfer of functions from the European Commission to Ministers.

Sites designated in the United Kingdom under the nature directives are part of the EU’s Natura 2000 network. Those sites are the EU’s contribution to the Emerald network, established by the Council of Europe to fulfil the Bern convention. Those sites will now form a national site network and will continue to fulfil the UK’s international biodiversity obligations. Any such area that is currently part of the Natura 2000 network will continue automatically to be part of the Emerald network on leaving the European Union.

New regulations set out by the Northern Ireland Department of Agriculture, Environment and Rural Affairs make it its responsibility to manage and, where necessary, adapt the national site network in co-operation with other authorities. The network’s management objectives look to secure compliance with the aims of the habitats directive and the wild birds directive as retained EU law.

On the designation of special areas of conservation, functions currently undertaken by the European Commission are being transferred to DAERA, which will assess any new special areas of conservation designation proposals, acting on advice from the Joint Nature Conservation Committee using existing criteria.

Regarding IROPI, which stands for imperative reasons of overriding public interest, this instrument transfers the role of the European Commission in being able to offer an opinion to local decision makers such as local planning authorities to DAERA. The opinion concerns whether imperative reasons of overriding public interest may apply in the granting of a planning application for a proposal that might adversely affect priority habitats where there is no feasible alternative. In doing so, DAERA would need to take account of the national interest and consult widely, including the UK Government, other devolved Administrations and the Joint Nature Conservation Committee. I should point out that it is my understanding that IROPI has never been deployed in relation to priority features regarding planning proposals anywhere in the UK, such that no final dossier has been submitted to the European Commission for an opinion.

Turning to amendments to annexes and schedules, a new instrument-making power allows DAERA to make amendments to the annexes and schedules as required to reflect technical and scientific progress. DAERA will set out in guidance the means by which expert input is sought, including from statutory advisers, before making any amendment to the schedules and annexes. To ensure transparency and accountability of environmental performance, in line with current requirements, DAERA will report publicly on the implementation of the regulations within six years of the date of exit and every six years thereafter.

The second set of regulations we are considering, namely the draft Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019, address failures of retained EU law to operate effectively with regard to Northern Ireland environmental legislation, arising from the withdrawal of the United Kingdom from the European Union. Legislation amended by the regulations covers a wide range of environmental law in Northern Ireland, including the management of waste, producer responsibility, permitting and licensing, noise, environmental liability, air quality and genetically modified organisms.

The regulations amend six pieces of Northern Ireland primary legislation and two sets of regulations. Part 2 of the regulations makes amendments to the following Northern Ireland primary legislation: the Genetically Modified Organisms (Northern Ireland) Order 1991; the Industrial Pollution Control (Northern Ireland) Order 1997; the Waste and Contaminated Land (Northern Ireland) Order 1997; the Producer Responsibility Obligations (Northern Ireland) Order 1998; the Environment (Northern Ireland) Order 2002 and the Environmental Better Regulation Act (Northern Ireland) 2016.

Part 3 of the regulations sets out amendments to the Environmental Noise Regulations (Northern Ireland) 2006 and the Liability (Prevention and Remediation) Regulations (Northern Ireland) 2009. Part 4 of the regulations makes savings in respect of the amendments made to the Environment (Northern Ireland) Order 2002 by this instrument.

[Emma Reynolds (Wolverhampton North East) (Lab)]

I have a question of clarification: in the explanatory memorandum to the Environment (Miscellaneous Amendments) regulations that we are discussing, in section 7.2 it says:

“With EU exit day less than one year away”.

As I understand it, the Government are insisting that we will still leave the EU at the end of this month. I just wondered why that wording was used; is there something the Minister knows that we do not? Also, although I understand she is a hard-working Minister and someone I have always had great respect for, how many other SIs does her Department need to get through before the end of March, and will it have a functioning statute book by the time we leave?

[Dr Coffey]

The 29 March is within a year. I think this SI was written prior to Christmas, and deliberately written to give that sense. I think it is standard wording that is being used across every Northern Ireland statutory instrument being taken through the UK Parliament, so we have not changed the wording in that regard.

I do not have the answer to the hon. Lady’s second question; she may wish to speak to the Under-Secretary of State for Environment, Food and Rural Affairs, my hon. Friend the Member for Macclesfield (David Rutley) who is in charge of statutory instruments for DEFRA. In terms of statutory instruments for which I am responsible, our last SI together, which might be not quite my last opportunity to debate with the hon. Member for Plymouth, Sutton and Devonport, is a week tomorrow. I am confident from my side, but as the hon. Member for Wolverhampton North East would expect, we will ensure that the legislation is in place.

In summary, the draft regulations are technical in nature and amend various aspects of environmental legislation, focusing primarily on references to EU law, to Commission processes and to the UK being a member state of the European Union, which will no longer be the case. If we do not address those deficiencies, the result could be legal uncertainty for regulators, stakeholders and the Government, ambiguity about environmental obligations, and difficulty with enforcement for regulators. There are no policy changes and no reduction in the environmental standards or obligations to which Northern Ireland is currently subject. I commend the draft regulations to the Committee.

--- Later in debate ---

[Dr Coffey]

It is a pleasure to respond to some of the queries that the hon. Member for Plymouth, Sutton and Devonport has raised. On the professionalism of the civil service in Northern Ireland, I have full confidence that it will continue the effective regulation that it undertakes today, including its regulators, the Northern Ireland Environment Agency. I expect it to be enforcing the law in exactly the same way on 29 March as it will from 30 March onward. The point of these statutory instruments is to allow it to do so and to ensure that the obligations and the law continue as they are.

On the question of fatigue among non-governmental organisations and time to consider stakeholder feedback, there has been considerable time to consider these particular statutory instruments. Some of the stakeholder feedback was received before Christmas and some has been received since—a discussion about whether the ongoing status of the special areas of conservation was clear in law. We agreed with certain things that the Royal Society for the Protection of Birds said and not with others, but the feedback prompted us to make the statutory instrument clearer. We chose to withdraw and re-lay it to ensure that it was clear, and the RSPB confirmed, as did Greener UK, that that was welcome.

I am conscious of the hon. Gentleman’s concern about the phrase,

“no, or no significant, impact”.

I tried to explain to him in a previous Committee that that is a standard of the Joint Committee on Statutory Instruments, the body that has set out how certain things must be drafted and laid out in the explanatory memorandums. I suggest, since he has taken a huge interest in the JCSI, that the Opposition Whip might wish to volunteer the hon. Gentleman to sit on that Committee in future. “Due to have regard” is a fairly standard legal phrase that is used, in effect, where Government or a regulator must look at regulations and those regulations are what they follow. That is the intent of that phrase.

Regarding the report format, I understand the hon. Gentleman’s concerns about how it might be scrutinised and whether it will lead to reduced quality, but it is fair to say that the reports sent to the Commission at the moment are all done to accommodate the needs of the EU 28. It may be that in future it is decided that there is a simpler way of preparing the information required, and we may want a more tailored way of doing so. I know that we regularly see minor changes here and there from the Commission, where we update how we report on certain matters; this SI just leaves us the power to make similar changes.

[Luke Pollard]

Could the Minister set out how any changes in format would work with the Republic of Ireland, given that Northern Ireland shares a land border with another EU member state and there are some habitats that cross the land border between Northern Ireland and the Republic?

[Dr Coffey]

The hon. Gentleman will be aware that the Good Friday agreement requires both countries to have regard to each other, to collaborate and to co-operate, but not, even now, to be identical in every aspect, although of course EU regulations apply directly to both. However, for example, directives can allow legislation to be written somewhat differently if it achieves the same outcome.

I expect that that co-operation will continue, whether through the North South Ministerial Council or the British-Irish Council, a meeting of which I attended about 10 days ago. Lough Foyle and Carlingford Lough each have one management body, involving the north and the Republic working together, so there are already good examples of direct collaboration on different things that are needed. However, I expect that DAERA will consult on any changes to formats.

On scrutiny, obviously the regulator will still be in place and will be able to scrutinise exactly what is going on, and it will be for the Administration to decide whether to scrutinise the reports that are generated. It will be open to the Assembly to undertake that role in due course. A lot of those reports, especially on habitats, have to be presented to the Council of Europe, through the Bern convention secretariat, which again offers opportunities for scrutiny. There is also the ongoing scrutiny that is often done outside Parliament, which I expect will continue.

On the different aspects of new schedule 3A, scientific and technical progress comes up quite a bit when discussing elements of the environment or animal welfare. Quite straightforwardly, the new schedule recognises, as happened not that long ago when we discussed updating humane trapping standards—I think several Committee members were there—that there is some progress for which we need to update the law, rather than its being stuck in aspic. The new schedule gives us the opportunity to do that.

The hon. Gentleman asked whether that means that animal welfare standards could be lowered. It would be a brave Northern Irish Administration that wanted to do that. Nevertheless, it is fair to say that we are committed to the non-regression clause of the withdrawal agreement, which I expect includes animal welfare. I say again that my hon. Friend the Member for Camborne and Redruth has been one of the biggest champions of ensuring that we preserve our animal welfare standards. In fact, it will actually go the other way; it will be the United Kingdom pressing the EU 27 to make sure that they keep up with the animal welfare standards that we have championed for so long.

On scrutiny of Northern Ireland after we leave the EU, the Northern Irish Administration have asked us to consider including them in the remit of our proposed Office for Environmental Protection, which we are considering as part of our pre-legislative scrutiny. However, it is my understanding that it is not the case that Northern Ireland will automatically come under the scrutiny of that office; that will be a decision for Northern Irish Ministers to make in the future. The hon. Gentleman will be aware that both the Welsh and Scottish Governments have chosen to not join the OEP, but I am pleased to see that DAERA wants to at least set in place the possible opportunity and mechanism for such scrutiny and ongoing monitoring in the future.

The hon. Gentleman asked specifically about aspects of new schedule 3A. I understand that the new schedule allows us to mirror, if appropriate, future changes to the corresponding annexe of the directive, or to the Bern convention. We have talked about designations of special areas of conservation under the amended regulation 7(1) of the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995. Existing sites of Community importance are mostly designated. That is my understanding of the situation in Northern Ireland. They certainly have to be designated within six years, which is the current practice.

In essence, the obligation is on member states to designate sites as soon as they meet the selection criteria, as we have seen in the UK recently with the designation of sites for harbour porpoise. They have gone through the process of being deemed of Community importance, and now have gone or are going through the SAC process. Those things all take a certain amount of regulation to take them forward, but there is no change, as far as I am aware, in the regulations from how we operate today. That is relevant to the retained EU legislation.

I know that the hon. Gentleman is frustrated about the pace of trying to get through a lot of statutory instruments. I assure him that I have met the Democratic Unionist party spokesman to discuss a lot of these Northern Ireland statutory instruments, just as I have extended the offer to the Opposition and to the Scottish National party to come to us in advance with queries about any of the statutory instruments. That offer still stands for the remaining few statutory instruments related to my portfolio.

I am conscious that I may not have addressed all the hon. Gentleman’s concerns. I hope he accepts, however, that we are not changing policy—that is an opportunity for Parliament in the future—but making sure that the important legislation that we have in place for preserving the natural environment and trying to do more to address its decline, as he rightly pointed out, especially when it comes to species conservation, will still be in place in Northern Ireland, and that the regulators will have the powers, through the amendments in the second set of regulations, to ensure that there is proper ongoing environmental assessment and management.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Conservation (Natural Habitats, etc.) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019.

Draft Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019

Resolved,

That the Committee has considered the draft Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019.—(Dr Thérèse Coffey.)