Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2022

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2022.

My Lords, I beg to move that these regulations, which were laid before this House on 19 October, be considered. The instrument makes necessary technical corrections to the retained regulation on persistent organic pollutants, which I will hereafter refer to as POPs, to ensure that it continues to fully function in Great Britain following EU exit. The technical amendments in this instrument address deficiencies in Annex I of the retained POPs regulation, reinstate a set of exemptions also in Annex I that were omitted in error, and correct some provisions that have no legal effect.

I should make it clear that all the amendments introduced by this instrument are technical operability amendments and do not introduce any policy changes. These corrections are permitted by use of the powers available within Section 8 of, and Schedule 7 to, the European Union (Withdrawal) Act 2018. We have worked with the devolved Administrations on this instrument.

These regulations form an essential part of secondary legislation needed to implement the UK’s commitments under both the United Nations Stockholm convention on POPs, to which the UK is a party, and the protocol on POPs to the 1979 Convention on Long-Range Transboundary Air Pollution. POPs are substances recognised as being particularly dangerous to the health of humans, wildlife and the environment. This instrument preserves the current regime for managing, restricting or eliminating POPs in the UK.

I turn to the details of this instrument. When the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2020 were drafted in preparation for the end of the implementation period, some errors were made. This resulted in a number of minor issues that need to be remedied by the new instrument.

First, a set of derogations that allow specific and time-bound permitted uses of particular POPs were accidentally deleted from the retained regulations during the drafting of the 2020 POPs regulations. These derogations, which relate to the POP called decaBDE, are reinstated by the new instrument, returning to the pre-EU exit position. Secondly, there are deficiencies for two POPs in the retained POPs regulations. These substances are PFOS, including its derivatives, and PFOA, including its salts and related compounds. The deficiencies, which consist of references to the EU Commission, were not corrected by the 2020 POPs regulations. The new instrument now corrects these deficiencies by referring to “the appropriate authority”. Finally, there are provisions in the 2020 POPs regulations that have no legal effect in relation to the POP called PFOS. This is due to the EU making changes to its POPs regulations in September 2020 that were not captured or incorporated in time for EU exit implementation day. This instrument removes these provisions in the retained regulations.

This instrument was not subject to consultation, as it does not alter existing policy. The purpose of this instrument is solely to enable the current legislative and policy framework to remain unchanged by correcting deficiencies. In line with published guidance, there was no need to conduct an impact assessment for this instrument. This is because no, or no significant, impact on the private or voluntary sector is foreseen, as the instrument relates to maintenance of existing regulatory standards and the cost of any direct impact from it falls under £5 million.

The Environment Agency is the delivery body for POPs regulations for England, and Natural Resources Wales and the Scottish Environment Protection Agency are the delivery bodies for Wales and Scotland respectively. They have been involved in the development of this instrument and have no concerns in relation to its implementation or resources.

The territorial extent of this instrument is the United Kingdom. Its territorial application is Great Britain. The EU POPs regulations apply in Northern Ireland. The devolved Administrations were engaged in the development of the instrument and have consented to it being made on a UK-wide basis.

In conclusion, I emphasise that the measures in this instrument will ensure that the UK’s retained POPs legislation will be fully operational, with previous inoperabilities corrected. The Government’s 25-year environment plan made clear our commitment to support and protect the natural environment, wildlife and human health. The draft regulations will allow the UK to continue to meet existing commitments relating to POPs, and continue to fully implement the Stockholm convention requirements to prohibit, eliminate or restrict the production and use of POPs. I commend the draft regulations to the Committee and hope that noble Lords will support these measures and their objectives.

My Lords, the Minister has clearly set out why we are debating this statutory instrument. In 2020, under the auspices of Defra, a very large number of SIs were brought forward and debated—mostly in Grand Committee. Since then, many of them have been amended, mostly for very minor errors. Given the number of SIs, it is not surprising that errors occurred. However, those relating to persistent organic pollutants, or POPs as they are referred to, are more serious, as they could have meant that the UK was not compliant with the Stockholm convention, which aims to prohibit, eliminate or restrict the production and use of POPs.

The original SI was repealed, and Regulation (EU) 2019/1021 replaced it on 15 July 2019. This SI contained errors. We are at the end of 2022 and are only now correcting these errors, mainly due to the current powers expiring at the end of this month. So it is very much the 11th hour, if not quite the 59th minute.

This is about not policy change but ensuring that current policy legally complies with existing regulations. Given the toxic nature of some POPs, it is surprising that these errors were not picked up earlier. I am content that this SI should pass but I have a general question for the Minister.

In the run-up to Brexit and immediately after, there were a large number of Defra-based SIs, as I referred to earlier. The Retained EU Law (Revocation and Reform) Bill has begun its passage in the other place and has been red-rated by the Regulatory Policy Committee. I will not comment on that here but there are rumours that, when passed, this revocation and reform Bill will begin the process for implementing some 2,400 statutory instruments. My heart sank when I heard that as a large number of those SIs are likely to fall within the remit of Defra. My question to the Minister, therefore, is this: is he confident that there will be sufficient staff in Defra to deal with the mountain of SIs coming their way, and that sufficient detail will be covered to ensure that there are no future errors in vital statutory instruments?

My Lords, we do not have any problem with this statutory instrument as it stands, but our concerns are similar to those of the noble Baroness, Lady Bakewell.

First, I congratulate the Minister on his introduction. He did say that these are necessary technical amendments; some of them sounded extremely technical so I congratulate him on introducing those technical aspects to us today.

Our big concern is exactly as the noble Baroness, Lady Bakewell, said: there were many, many SIs during the Brexit process and we repeatedly raised issues around drafting accuracy. As the Minister knows, a number of those instruments had to come back to us. So it is concerning that, some time on from the first time around, we now have this issue. This was not picked up quickly. Can the Minister explain why it has taken so long to bring it to light? What has happened to draw it to the department’s attention? Was there an audit? Was there a practical issue that shed light on it? As the noble Baroness asked, how do we ensure that this does not happen again in future, because we know that we will be seeing a lot more SIs again? That is our biggest concern: not what is in the SI itself but the process and what has been happening.

I thank noble Lords for their valuable contributions to this debate. The regulations we have debated here today make no change to our existing policy to tackle the restriction and management of POPs. This instrument will ensure that we have the operable regulations we need to continue to protect the current and future health of the population, wildlife and environment of both the United Kingdom and the rest of the world. I absolutely concede the point that this SI has been brought to the Committee because of an error. A Government who do not make mistakes is a Government who do nothing; we are not perfect but we try to be. Did I get that right? Yes, I think I did.

I am very grateful to providence that I was not in the House at the time of that tsunami of statutory instruments. I can see that the scars still linger on the backs of some noble Lords who had to go through that relentless process. We remain committed to all the effects of Brexit, in getting the right regulations on to the statute book in a fit and proper state, and we will endeavour not to have to use noble Lords’ time in correcting them in future.

The unintentional omission of several exemptions for decaBDE did not come to light until June 2021. The process of taking an SI through from inception to coming into force is long and detailed, with many required steps and layers of scrutiny, even when making only minor corrective points with zero changes to policy. This instrument has been progressed as swiftly as possible, while ensuring that the necessary steps are taken, so that it comes into force before the required powers expire on 31 December this year.

Defra has conducted a detailed scoping exercise to identify REUL, retained EU laws, in its policy areas. Defra is in the process of analysing its REUL stock and determining what should be preserved as part of domestic law, as well as REUL that should be repealed or amended. There will be a department-wide programme to co-ordinate this analysis. We are working through how best to involve different stakeholders in this process and I absolutely pledge to keep the House informed throughout it.

Motion agreed.