Floods and Water (Amendment etc.) (EU Exit) Regulations 2019

Motion to Approve

Moved by

That the draft Regulations laid before the House on 5 December 2018 be approved.

My Lords, the instrument before your Lordships makes only technical changes to retained EU law to ensure that floods and water legislation will continue to function when the UK has left the EU. I emphasise that the instrument corrects technical deficiencies and creates no new policy. In addition, we have consulted with the devolved Administrations on the instrument, and they have given consent where appropriate.

Part 1 makes introductory provision about the citation, commencement, territorial extent and application of the instrument. Part 2 makes operability amendments to some primary legislation, such as the Water Act 1989, which applies to England and Wales only. The amendments replace the words “EU obligation” with “retained EU obligations” to reflect the change after the exit from the EU. They also address the use of the term “environmental objectives”, which is defined in the water framework directive. The amendments instead define that term by reference to our domestic legislation which implements the water framework directive rather than the EU directive itself.

Part 3 amends technical deficiencies in secondary legislation, and I will highlight the key types of amendments. Regarding the sludge regulations, Regulation 6 amends the 1989 regulations to include a reporting obligation for the Secretary of State and Welsh Ministers on the implementation of the regulations every three years.

Regulation 7 amends the urban waste water treatment regulations, which apply to England and Wales only. As well as changing references to “EU law”, so that they now refer to “retained EU law”, a requirement is included that relevant environmental reports are to be published by the Secretary of State and Welsh Ministers.

Regulation 8 deals with water fittings regulations, which extend and apply to England and Wales only.

The amendment in Regulation 9 to the drinking water undertakings regulations, which again extend to England and Wales, changes the word “implements” to “implemented”, to reflect that there will be no future requirements to transpose EU directives after exit day.

The Water Industry (Special Administration) Rules are amended by Regulation 12. The special administration regime is an insolvency regime specifically created for water and sewerage companies. It is a reserved matter, but the regime only applies to England and Wales, as Scotland and Northern Ireland have different water industry structures.

The silage, slurry and agricultural fuel oil regulations apply to England only. They are amended by Regulation 13 to allow products such as silos and slurry tanks that are of equivalent standards to the British standards to be installed, wherever they are manufactured.

On the question of the Incidental Flooding and Coastal Erosion (England) Order 2011, Regulation 14 amends the order, which applies to England only. As with the Water Act 1989, it changes the definition of “environmental objectives” so that it relates to our domestic legislation which implements the water framework directive rather than to the directive itself, which will not be part of our law.

The water supply and private water supplies regulations apply to England only. The amendments in Regulations 18 and 19 fix cross-references which are deficient. Provision is also included so that the Secretary of State has an obligation to produce and publish reports on drinking water quality.

Regulation 20 amends the England and Wales regulations which implement the EU water framework directive. Many of the corrections replace the term “EU instrument” with “retained EU law”. These amendments cover England and Wales, reflecting the fact that the two countries share a single set of regulations implementing the directive. The Welsh Government agree to this approach. This policy area is fully devolved for Northern Ireland and Scotland, but we have made very similar operability corrections to the separate regulations governing the cross-border river basin districts of Northumbria and Solway Tweed, which are shared between England and Scotland. This approach was agreed by the Scottish Government.

The inserted Schedule 5 makes a series of modifications to the water framework directive and two other connected directives so that references to those directives continue to work properly after EU exit. These include modifying references to “member States” and to EU legislation. There are also some necessary omissions such as articles about reporting to the Commission and to the Commission resolving issues between member states.

The two sets of water abstraction regulations referred to in Regulations 21 and 22 extend and apply to England and Wales. Regulation 22 fixes cross-references to terminology used in the water framework directive to make it operable.

The regulations amending and revoking EU decisions extend and apply to all the UK and have been drafted in liaison with the devolved Administrations and with their consent.

Having taken your Lordships through each element of the regulations, I hope that you will understand why I want to emphasise that they are about fixing technical deficiencies in the floods and water legislation to ensure that it continues to operate effectively. I emphasise again that this instrument does not introduce new policy and preserves the current regime for protecting and improving the water environment. I beg to move.

My Lords, I thank my noble friend for introducing so eloquently and thoroughly the statutory instrument before us. Probably the most relevant of my interests is that I work with the Water Industry Commission for Scotland, which is the Scottish water regulator. I have a number of questions that I would be grateful if my noble friend could address in summing up.

Article 20 of the water framework directive says that any change to standards, values, substantive lists and best environment practice should be made only in light of technical and scientific progress. While we have been members of the European Union, we have benefited from scientific and technical expertise being subject to control and review to make sure that we comply with the water framework directive, which was the mother of all directives, with daughter directives under it—I should declare an interest also in that I was an MEP when the nitrates directive was passed, and I do not think that anyone imagined that setting the level of nitrates in water in the way that we did would be quite so prohibitive in areas such as East Anglia, where nitrates already exist in high levels. What will be the procedure if such changes are made, and how will they be tested against the best scientific and technical advice? I share the concern expressed in our debate on the previous statutory instrument that we have not had the environment Bill setting up the office for environmental protection. There is further concern that it will not come into effect until 2020.

I therefore have two concerns. First, what scientific and technical expertise will be in place to make sure that any changes are monitored against the best possible scientific advice? I refer back to the terrible reputation we had in the 1980s as the sick man or dirty man of Europe. We all have to accept that not just water companies but all of us, as water customers, have paid huge amounts to actually have some of the cleanest rivers and bathing waters in Europe. Obviously, we do not want to jeopardise that.

My Lords, it is a great pleasure to follow the noble Baroness, Lady McIntosh of Pickering; I echo, but shall not repeat, all her comments. I have two further supplementary questions that I hope the Minister might address in his summing up.

First, in the previous statutory instrument the Minister was able to outline to the House an indication of some of the bodies which will be replicating some of the scientific expertise and processes which are at present undertaken by the European Union. That was extremely helpful, and I hope that he might be able to do that for this incredibly important SI as well, given the implications not just for environmental protection but for human health.

My second point follows on from the comments about who will monitor the delivery of the regulations. There is a change from the original EU regulation. In the original, the EU stipulates the format in which people have to report to the Commission, whereas in the regulation that has just been transposed into domestic regulation for us to approve, it is only up to the Secretary of State to indicate what he or she deems appropriate forms of reporting. This arguably leads to the charge that, by not stipulating the format for reporting, it could lead to a less effective means of monitoring the regulations, which I am sure none of us wants. I hope the Minister responds to that point.

My Lords, I too commend the noble Baroness, Lady McIntosh, for her points; I support all of them. I will briefly touch on the point made by the noble Baroness, Lady Parminter, about the format of reports. It seems to me that the format being decided not by a collaborative process across Europe but by the Secretary of State is a double whammy. The Government are not just filling in their own report card—they are designing their own report card, which they will then go on to fill in. I hope we can press the Minister on getting assurances that we will as far as possible shadow the extent and rigour of European formats for these reports in the future.

As the responsible Minister during much of the period in which these European Union regulations were being put into operation, I would not like to let this occasion pass without pointing out a slight amusement of mine. This transposition from EU law into British law seems to be a perfectly happy and reasonable thing—and we have not heard shrieks from the anti-Europeans on the subject—but at the time of the original regulations Britain had the dirtiest reputation in Europe. We had filthy bathing waters; our drinking water was below the standard of most countries certainly in northern Europe and probably the whole of the then European Union. We were forced, because we had to sign up to this, to improve the conditions of water in this country—I say this as someone who was for some time the chairman of a water company, seeing it from that side of the fence as well as the government side. This House ought to remember that it must keep the Government’s feet to the fire, because, before we were a member of the European Union, we would not have done any of these things. I suspect that today, had we not been a member of it, we would have been considerably backward now.

There is a real issue about this too, because we also have to remember that no man is an island—this island cannot do things without affecting other people. We will have to think, were we to leave the European Union, of the points that the noble Baroness, Lady McIntosh, has referred to—that, if we wish to, we will be able to take laws which have been passed in the rest of Europe into our own hands. Of course, it will take much more statutory time to do so; it will not be as easy as it has been up to now. But we have to realise that what we put into the channel from our side will affect people on the other side of the channel, just as what we do in the United Kingdom from the north of Ireland directly affects people in Ireland.

I remind the Government that, in this reasonable and sensible way of passing what we have on to the future were we to leave the European Union, we are only where we are because of the European Union. Those of us who had to fight that through the other House will recognise just how much we owe to our membership, just how much danger we are in by leaving, just how little the Government have already promised us, just how little there appears to be in the environment Bill, as far as we know, and just how much we will have to fight to maintain the standards in Britain if we are to leave the European Union—which is why it is barmy to do so.

My Lords, I will introduce the words “climate change” at this point, simply because it seems, to follow on slightly from the noble Lord, Lord Deben, that constancy and vigilance will be particularly important. If one thinks of the extremes of climate change that we are already experiencing—and there is every indication that it will get much worse—the constancy that the Minister is speaking about becomes extremely important. At times of drought and of far too much rain, many things start to go wrong. Drought is the obvious one, as you do not have enough water, but when there is too much rain—I speak as somebody who lives on a farm—you start getting an enormous amount of run-off of chemicals into the rivers, and things like that. Therefore, this constancy towards regulation, wariness for the future and extreme vigilance are incredibly important in this area.