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

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019.

My Lords, this statutory instrument transfers a series of limited, technical legislative functions that are currently conferred by EU environmental directives upon the EU Commission so that after exit day they can be exercised by the Secretary of State or the devolved Administrations. The regulations relate to a number of environmental policy areas: air quality, environmental noise, infrastructure for spatial information, marine, and water quality.

The powers relate to minor elements of the relevant directives. They do not allow for a general change in their implementation. One example of the type of functions being transferred is the power that the Commission currently has under the directive on environmental noise. This is a power to adopt directly applicable tertiary legislation to amend assessment methods for noise indicators in the light of scientific and technical progress. Under this instrument, the Secretary of State and the devolved Administrations will be able to update the corresponding domestic legislation to reflect the latest scientific and technical noise assessment methods.

While this instrument covers a number of directives and policy areas, it does no more than replicate the provisions in the directives so that UK authorities can exercise the powers member states considered were appropriate to delegate to the Commission. These powers will ensure that our domestic legislation continues to function properly. They are limited in nature and are not the kind of functions for which we would generally in the domestic context require primary legislation. They concern technical detail that would normally be dealt with by secondary legislation. If we had to use primary legislation to make the types of changes that will be possible under this instrument, it would take a disproportionate amount of parliamentary time and make it increasingly difficult for the law to keep pace with scientific and technical change. The powers will be subject to parliamentary scrutiny by way of the negative resolution procedure, which, for the reasons I have just mentioned, I believe is suitable due to the limited technical nature of the powers.

Before making any regulations under this part, Regulation 46 provides that the appropriate authority must consult the appropriate agency—the Environment Agency, Natural Resources Wales, SEPA or the Northern Ireland Environment Agency as appropriate—and any other persons that the appropriate authority considers appropriate.

The provisions in this instrument ensure that UK law can keep pace with developments after exit. They make no changes to substantive policy content or in regulatory impact. To the extent that they affect devolved matters, the devolved Administrations have, where appropriate, given their consent to both the policy and the wording of the regulations. With that introduction, which was rather lengthy but, I hope, helpful as to the range of the SI, I beg to move.

My Lords, I declare a very old interest as a former chief executive of the Environment Agency and as former chairman of English Nature.

I am very concerned about this set of regulations. The Minister described them as limited but I do not think that they are. The Secretary of State is being given rather broad powers to make amendments by regulation to a wide range of significant legislation, which has really important impacts for the environment. That is made worse by the fact that these regulations have the appearance of having been prepared by different civil servants and glued together at the last minute, because they are rather a mess of inconsistency.

For example, some powers are limited to the extent that the competent authority can make changes only,

“if appropriate to do so as a result of scientific and technical progress”.

However, that requirement does not apply to all the powers—for example, it does not apply to the air-quality regulation or the regulation applying to medium combustion plants. It would be interesting to know why the Minister is happy—if indeed he is—with this range of inconsistency. I will come on to talk more about inconsistencies in other areas. With regard to making changes only as a result of the advance of scientific and technical knowledge, does that mean that the Minister can simply change the regulations that do not have that provision on a whim rather than according to science? I am sure that is not what is intended but one might read that into the regulations.

Of course, the regulations do not define appropriate change as a result of scientific and technical knowledge. If the environment is to be safeguarded, I believe that that has to be not just clarified but interpreted as requiring that powers can be exercised only where the new provisions ensure an equivalent or higher level of environmental protection. That needs to be reflected in the wording of the statutory instrument. There is another flourish of inconsistency that is useful: Regulation 45(2) on the sewage sludge regulation—we get all the good jobs in this House—has a useful additional level of protection, which might be made to refer to all the regulations in this statutory instrument.

My Lords, our Benches certainly accept that, if we are to leave the European Union, the Secretary of State or the devolved authorities need these powers to ensure that the legislation, such as it is, does not remain static but moves forward in the light of scientific knowledge and understanding. The number of areas that we are talking about in environmental legislation is reflected in this jumbo statutory instrument, so we also accept that the only way to provide them is probably through the secondary legislation route, given the chances of us being able to get primary legislation slots for all the changes that might be necessary.

However, following what the noble Baroness, Lady Young of Old Scone, said, we are disappointed that the opportunity has not been taken in this jumbo SI to ensure maximum protection for the environment. That is particularly so when we are having these discussions in advance of an environment Bill that sets the framework for future UK legislation outside Europe; and in advance of creating the office for environmental protection, which, in addition to statutory authorities such as the environment agencies, will be able to hold people to account.

In a slightly different way, I want to pick up a point that the noble Baroness made about changes being made only in response to scientific and technical advances. In some areas—she alluded to one, and I have another on water quality—the regulations pin down how the Secretary of State or devolved authorities can use these powers. Regulation 32(3) alludes to the fact that the devolved authorities can use the powers on water quality by looking to scientific evidence only where there will be possible harm to the aquatic environment. So, this instrument contains provisions on how the devolved authorities or the Secretary of State can use those powers to protect the environment. If it is good enough in the case of water quality to limit the powers that the Secretary of State can use in response to scientific and technical changes—and to do so only to advance environmental protection—why is that not the case in all areas? The phrase about it being in response to scientific and technical changes does not have a rider; it says that it ensures the equivalent or a higher level of protection for the environment. I think we are both making the same point.

My Lords, I am grateful to the Minister for introducing the SI and for the helpful briefing that he arranged beforehand.

As he explained, this is another of the many SIs that we have considered to transfer legislative functions from the EU and the European Commission to the UK. In this case, the functions are transferred overwhelmingly to the Secretary of State and devolved Ministers. We have debated the limitations of this process many times before; I do not intend to go into all the arguments again but there is an undoubted democratic deficit in transferring powers from a complex European process, with all its checks and balances, to one person, however well intentioned that person may be.

With that in mind, I want to raise some issues and ask some questions. First, the department’s written response to stakeholders on the issue of environmental law governance drew attention to the proposals for the office for environmental protection contained in the draft Environment (Principles and Governance) Bill, which is intended to provide continued scrutiny and oversight. That Bill, which is not before us yet, now plays a particularly significant role. Because of where we are politically, the withdrawal Bill, which we spent many happy hours arguing over and which had a large number of environmental protections built into it, will not be taken forward; we seem to be losing it. All we have now to underpin environment guarantees is the office for environmental protection, which does not exist yet. What role will that body play in scrutinising the sort of regulations that are before us today and the Secretary of State’s powers in them? For example, is it envisaged that the OEP will collect data and monitor the effectiveness of the regulations? That includes points of detail; as the Minister said, this is about annexes and so on. Will its role go into that sort of detail? Will it also be responsible for scrutinising the Secretary of State’s performance and delivery in carrying out the functions that we are about to give him or her?

Secondly, the Minister will be aware that the Green Alliance has raised concerns that these functions could be exercised with no regulatory oversight and little legislative scrutiny owing to the use of the negative procedure. My noble friend Lady Young and the noble Baroness, Lady Parminter, made this point. The department’s answer is that these powers would amend the “non-essential elements” of the directives but, as my noble friend pointed out, we are dealing with not just non-essential issues; they are not just minor or limited, as the Minister chose to try to present them. For example, a recent ruling by the European Court of Justice on an issue of air quality monitoring ruled that failure to implement the requirements of the annexes—we are largely dealing with annexes here—hampered the achievement of the fundamental objective to protect human health. The annexes are often just as important as the main body of the regulations. They are not just “non-essential” provisions. I would be pleased if the Minister could explain in a little more detail why there is blanket reliance on the negative procedure when it might not always be appropriate.

Thirdly, as my noble friend Lady Young said, there appear to be inconsistencies relating to the requirement to consult. She very articulately pointed out all the differences and different levels of consultation in the different regulations. For example, I understand that Regulation 15 stipulates that before making any regulations under Part 2, the Secretary of State must consult,

“bodies or persons … representative of the interests likely to be substantially affected by the regulations”.

That is one form of wording, but this requirement to consult does not apply equally to all the new powers set out in the SI. Can the Minister clarify why it is not a prerequisite to any exercise of power established by this SI that there should be prior consultation? There are two sorts of consultation: consultation of the people who have a particular interest, such as businesses and those required to carry out or uphold some of these regulations, but also public consultations. The public have a great deal of interest in some of these environmental issues. I would be pleased if the Minister could clarify why there is not a more widespread requirement to hold public consultations for some of these proposed changes.

Fourthly, stakeholders, and the noble Baronesses who spoke, have raised concerns about the “scientific and technical progress” stipulation. We all agree with it in principle, but the wording in the SI is ambiguous. For example, paragraph 7.1 of the Explanatory Memorandum refers to updates to the SI being made,

“usually as a result of scientific and technical progress”.

Clearly other factors will be taken into account. Can the Minister advise how such a requirement should be interpreted? Should there not be a more explicit requirement to defer to the latest science throughout the regulations? Should there not also be a greater clarification of what the latest scientific and technical knowledge actually means, including, for example, a requirement that it is provided from an independent, respected source?

What safeguards are in place to ensure that changes made by the Minister using these powers do not weaken rather than strengthen existing environmental protection? For example, the majority of the regulations in Part 6 of the SI establish scope for the Secretary of State to make potentially wide-ranging alterations to the standards, monitoring and measures set out in various water directives. However, they do not make it clear that that will be done only on the basis of the latest scientific evidence, so, as drafted, not all the powers are limited as a result of a link to that forward-looking analysis of the available scientific data.