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House of Commons Hansard
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General Committees
28 January 2019

Delegated Legislation Committee

Draft Storage of Carbon Dioxide (Amendment and Power to Modify) (EU Exit) Regulations 2018

The Committee consisted of the following Members:

Chair: Mr Peter Bone

† Abrahams, Debbie (Oldham East and Saddleworth) (Lab)

† Badenoch, Mrs Kemi (Saffron Walden) (Con)

† Brown, Alan (Kilmarnock and Loudoun) (SNP)

† Cunningham, Mr Jim (Coventry South) (Lab)

Eagle, Ms Angela (Wallasey) (Lab)

† Hair, Kirstene (Angus) (Con)

† Harris, Rebecca (Lord Commissioner of Her Majesty's Treasury)

† Hughes, Eddie (Walsall North) (Con)

† Mackinlay, Craig (South Thanet) (Con)

Morris, Grahame (Easington) (Lab)

† O'Brien, Neil (Harborough) (Con)

† Perry, Claire (Minister for Energy and Clean Growth)

Powell, Lucy (Manchester Central) (Lab/Co-op)

† Prentis, Victoria (Banbury) (Con)

† Smith, Nick (Blaenau Gwent) (Lab)

† Whitehead, Dr Alan (Southampton, Test) (Lab)

† Wood, Mike (Dudley South) (Con)

Gail Poulton, Committee Clerk

† attended the Committee

Twelfth Delegated Legislation Committee

Monday 28 January 2019

[Mr Peter Bone in the Chair]

Draft Storage of Carbon Dioxide (Amendment and Power to Modify) (EU Exit) Regulations 2018

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I beg to move,

That the Committee has considered the draft Storage of Carbon Dioxide (Amendment and Power to Modify) (EU Exit) Regulations 2018.

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

I will first give the Committee a bit of background. As we approach EU exit, my Department is working extremely hard to ensure that our energy and climate change legislation continues to function effectively after exit day. The draft statutory instrument would be in place whether there was a deal or no deal. The best way to show its importance is to draw the Committee’s attention to paragraphs 2.3 and 2.4 of the explanatory memorandum. To save everyone the trouble of looking, they essentially say that we want the Government to have the option to deploy carbon capture, usage and storage—CCUS—at scale during the 2030s, subject to the usual caveats about cost. We need to ensure that the regulatory regime for the geological storage of CO2 remains functional following our withdrawal from the EU. Without the statutory instrument, we would not have an adequately functioning licensing regime, as outlined in paragraphs 7.2 to 7.5 of the explanatory memorandum, and that would prevent projects in areas where the Storage of Carbon Dioxide (Licensing etc.) Regulations 2010 apply from proceeding.

There is now broad international consensus that CCUS is vital in helping to keep increases in temperature at or below 2°. The Intergovernmental Panel on Climate Change has set out many estimates that will help us with that, including the view that it could be up to 140% more expensive to meet the 2° target without CCS—an additional $12 trillion. In our clean growth strategy and last November’s CCUS action plan, we have set out a desire to rapidly progress CCUS and have a scaled deployment by the mid-2020s, with the option to deploy more extensively into the 2030s, but we must have a functional regime for the storage of CO2 to ensure that the deployment is adequately met. It is of note that our aquifers, primarily those offshore, are considered to be among the most structurally sound and accessible for CO2 storage in the world, so it is hugely important to get this right.

In 2009, the EU introduced the CCS directive, which established the first legal framework for the environmentally safe geological storage of CO2. We implemented those requirements in the Energy Act 2008 and in subsequent regulations, and the draft SI will mean that that framework can continue to function when we leave the EU.

I will make three brief points about the details of the draft SI. First, it corrects references to the UK as a member state and removes obligations to consult with the European Commission, ensuring that we can continue to issue licences and permits as a sovereign nation. Secondly, it gives the Secretary of State a new power to update technical requirements relating to storage site characterisation and monitoring in the light of technological or scientific progress. The power can only be used to reflect such progress, but it is an equivalent power to that currently held under the CCS directive. Thirdly, the draft statutory instrument will ensure that there continue to be robust monitoring and safety standards for CO2 stores, consistent with current legislation.

The draft SI applies amendments in respect of devolved matters to varying degrees, but the Committee will be pleased to know that we have sought and received formal consent from Scotland, Wales and Northern Ireland to introduce the regulations. We have, of course, consulted extensively with the Oil and Gas Authority, as both our licence-granting and permitting body and our regulator.

The amendments in the draft regulations will have no adverse impacts on and place no additional burdens on existing CCUS projects, including Project Acorn, which we have been pleased to co-fund and which was recently awarded a CO2 licence by the Oil and Gas Authority. The changes will ensure that the UK continues to have a robust, effective and safe regulatory regime for storing CO2, which is a vital component of supporting the progress of CCUS in the UK.

I will not detain the Committee by talking about why CCUS is so important and why the UK is in the lead in advancing this technology, but it was striking at the excellent global conference that we co-organised with the International Energy Agency in Edinburgh last November that we had possibly the most senior array of CEOs, Energy Ministers and general commentators involved, who welcomed the fact that we were driving it forward.

To conclude, we are committed to supporting the development of CCUS, but to do that we must have a fully functioning regime for the safe and permanent storage of CO2 in the UK when we exit the EU and become a sovereign nation. The amendments proposed in this SI provide for just that. I therefore commend the draft regulations to the Committee.

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It is a pleasure to serve under your chairmanship, Mr Bone. I cannot resist commenting on the interesting circumstances: with the extension of SIs, we are going into different Committee Rooms, and I am used to having a rather closer relationship with the Opposition Front Bench than I have this afternoon.

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With the Government Front Bench.

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Sorry, with the Government Front Bench—the Minister usually has a closer relationship with the Opposition Front Bench. That does not mean, of course, that we shall be particularly far away from each other on the proposals in the SI this afternoon.

Essentially, the SI transposes three sets of regulations that underpin different aspects of the UK’s regime for carbon dioxide storage, including the regulations that should be adhered to, the circumstances of termination of licences that should be adhered to and the access for infrastructure. Those matters are contained in different sets of regulations, all of which stem from the EU carbon capture and storage directive. Obviously, in the event of a no-deal Brexit, we would not be a member state as defined by the directive. Therefore, it is necessary to secure the effect of those regulations without referring to our being a member state. As the Minister said, it is very important that we do maintain the effect of the regulations.

I would like the Minister to confirm that in her opinion—this is certainly my opinion—the changes made in today’s SI merely serve that purpose and do not do anything to the substance of those three SIs. My understanding is that their substance remains exactly as it was.

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I am very happy to clarify that the hon. Gentleman’s understanding is correct: this is simply a transposition exercise.

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I suppose that I could be a little curmudgeonly by saying that it would be rather nice if we had some carbon capture and storage to put into those regulations. We do not at the moment, so in a sense nothing will actually change with the regulations coming on stream, inasmuch as there is nothing that will be regulated or licensed, or indeed terminated, by the transposition of the regulations. I hear what the Minister says about the intentions for carbon capture and storage in the future. I hope that it will indeed proceed rapidly, after its previous setbacks, and that the regulations will be necessary sooner rather than later.

I do not have any particular cavils or quibbles with either the intention or the practice of what is being done today. Indeed, I very much support the idea that we must have a good, solid carbon dioxide storage licensing and regulation regime. That is what there has been previously and what there should be in the future. The draft regulations will ensure that that is the case, so I am very happy to inform the Committee not only that we do not wish to divide the Committee, but that we support these changes.

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

Obviously, the SNP supports carbon capture and storage, and likewise we will not seek a Division. We are still a wee bit bitter about the £1 billion that has been pulled, but it is good that the Government say they want to be a global leader in the field. The Minister mentioned an action plan, but can she confirm that there is a clear pathway, in terms of Government funding and a programme, to reach that large scale by 2030?

The Minister said in response to the shadow Minister, the hon. Member for Southampton, Test, that the regulations do not make any change of substance. Perhaps it is just the way it is written, but will she clarify something in paragraphs 2.1 and 7.2 of the explanatory memorandum? It states that the instrument

“addresses failures of retained EU law to operate effectively”.

Does that relate just to the need to incorporate EU law into UK law, or have the Government identified deficiencies that the draft regulations will rectify? If so, what are they?

With respect to Brexit, is there any cross-collaboration and research across the EU that could be put at risk?

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I shall try to answer some of those questions. It is a delight that the hon. Member for Southampton, Test, who is always scrupulous in his scrutiny of every SI, can find no reason to detain or divide the Committee. It must be worth proceeding with this matter on a cross-party basis.

The hon. Gentleman, like the hon. Member for Kilmarnock and Loudoun who represents the SNP, made a point about action. I think it is fair to say that we have accelerated our actions substantially in the past year in a way that does not overburden taxpayers or, indeed, consumers with extremely high costs for the deployment of the technology. In fact, we have tried to set out targeted amounts of funding. I announced £45 million of innovation funding at the conference in Edinburgh, and we have had high-quality bids to the extent that we are considering increasing that funding pool. We have been setting out clearly how we want to go forward and deploy at scale on an individual site basis. That has been the target of the £170 million of industrial decarbonisation money that we set out through the industrial strategy, which essentially requires CCUS to be fundamentally in that mix.

That has been the real acceleration. It is not just a matter of thinking about CCUS as part of the decarbonisation of power generation, because of course people say, “Well, just find more renewables.” It is about embedding it in the decarbonisation of industrial activity, which is so much more difficult to do. We look forward to seeing the bids that come forward for that funding.

It is also worth pointing out that there are only 22 at-scale CCS plants operating globally. Sixteen of them rely on the CO2 that is extracted for enhanced oil recovery, which does not feel like a carbon reduction process to me. It is striking that very few Governments have been able to deploy it at scale, including our good friends in Norway, because it has been perceived to be too expensive and just about the decarbonisation of energy. However, I am struck by the quality of the projects we have coming forward, including Pale Blue Dot Energy’s Acorn project, which is starting to look at decarbonisation on a cluster basis.

Of course it is not just domestic action that we are taking forward. We are a lead partner in the Mission Innovation taskforce, which is looking at CCUS on a global scale, and we are the largest donor of overseas development assistance to global CCUS projects. We are trying to put our money where our mouth is and to focus on this technology.

The hon. Member for Kilmarnock and Loudoun queried the deficiencies referred to in the explanatory memorandum, but they are not deficiencies in the current drafting of the law. The deficiencies will arise, for example, through the reference to the UK as a member state on our exit from the EU. The intention is that the existing regulations can continue to apply as intended. As the hon. Member for Southampton, Test said, the SI essentially transposes the existing regulations to allow us to maintain the relevant regulations on exit day.

Question put and agreed to.

Committee rose.

Draft Environment (Amendment etc.) (EU Exit) Regulations 2019

The Committee consisted of the following Members:

Chair: Stewart Hosie

Campbell, Mr Ronnie (Blyth Valley) (Lab)

† Caulfield, Maria (Lewes) (Con)

† Coffey, Dr Thérèse (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)

† Debbonaire, Thangam (Bristol West) (Lab)

† Grogan, John (Keighley) (Lab)

† Hart, Simon (Carmarthen West and South Pembrokeshire) (Con)

† Hayman, Sue (Workington) (Lab)

† Johnson, Gareth (Dartford) (Con)

† Killen, Ged (Rutherglen and Hamilton West) (Lab/Co-op)

† Martin, Sandy (Ipswich) (Lab)

† Monaghan, Carol (Glasgow North West) (SNP)

† Paterson, Mr Owen (North Shropshire) (Con)

† Pursglove, Tom (Corby) (Con)

† Seely, Mr Bob (Isle of Wight) (Con)

† Shapps, Grant (Welwyn Hatfield) (Con)

† Stewart, Iain (Milton Keynes South) (Con)

† West, Catherine (Hornsey and Wood Green) (Lab)

Yohanna Sallberg, Committee Clerk

† attended the Committee

First Delegated Legislation Committee

Monday 28 January 2019

[Stewart Hosie in the Chair]

Draft Environment (Amendment etc.) (EU Exit) Regulations 2019

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I beg to move,

That the Committee has considered the draft Environment (Amendment etc.) (EU Exit) Regulations 2019.

Mr Hosie, it is a pleasure to serve under your chairmanship. This is the first of the affirmative statutory instruments concerning the environment to be considered before the UK leaves the European Union, following the result of the 2016 referendum and Parliament’s subsequent agreement.

In line with the European Union (Withdrawal) Act 2018, the draft regulations simply make technical, legal amendments to maintain the effectiveness and continuity of UK legislation that would otherwise be left partially inoperable, so that the law continues to function as it does today following our exit from the EU. The draft regulations will also prevent the automatic incorporation of EU legislation into our national law where that would be inappropriate. This SI, like others, is quite lengthy and makes many adjustments, but I assure the Committee that it represents no changes to policy and will have no impact on businesses or the public, although I draw Members’ attention to two voluntary EU schemes on eco-labelling and environmental management.

The draft regulations do four main things. Part 2 amends three cross-cutting environmental Acts. Part 3 amends three cross-cutting environmental statutory instruments. Part 4 refers to appropriate savings. That is a legal term, which is nothing to do with finances or budgets but in essence allows us to retain existing directions and regulations made under the Environment Act 1995. Part 5 prevents some EU environmental regulations and decisions that are either out of date or will have no further function once we have left the EU from being brought into UK law automatically by the operation of the withdrawal Act.

The Acts dealt with in part 2 make reference to our obligations as an EU member state and to EU legislation. We need to change or remove those references because they will either no longer work legally or be inappropriate after our exit. Where we change such references, we often refer instead to “retained EU law” or “retained EU obligations”. Those terms are defined in the withdrawal Act.

Regulation 2 includes amendments to references in the Environmental Protection Act 1990 to obligations under EU law, replacing them with references to retained EU law and retained EU obligations. Regulation 3 adjusts powers in the Environment Act 1995 to make directions and regulations for the purpose of implementing EU law so that they refer instead to retained EU obligations, with appropriate savings detailed in part 4. There are also amendments to the power for appropriate agencies to impose charges in relation to retained EU law.

Part 4 saves existing directions made under the Environment Act 1995 so that they continue to apply notwithstanding the changes to the relevant powers set out in part 2. Those directions can, if necessary, be varied or revoked in the future. That will ensure, for example, that ministerial directions made for the purpose of implementing obligations of the UK under EU treaties, such as the recent air quality directions to local authorities in England, remain valid following our exit.

Returning to part 2, regulation 4 adjusts the power in the Pollution Prevention and Control Act 1999 to make regulations under section 2 of that Act by substituting references to retained EU obligations for existing references to the UK’s obligations under EU treaties, and by replacing the provisions that allow relevant directives to be designated from time to time with provisions specifying in the Act a closed list of directives in connection with which regulations may be made. Part 2 of the schedule to the draft regulations revokes domestic designation orders for England that are redundant in the light of those amendments to the 1999 Act.

The amendments in part 2 of the draft regulations have the same extent as the provisions they amend. For example, only some provisions of the Environmental Protection Act 1990 apply to Northern Ireland, and some apply to Northern Ireland only for specified purposes, whereas section 113(5) of that Act, which is amended by regulation 2(4), specifically concerns Scottish Ministers and extends to Scotland only. I do not pretend that this is straightforward, but I assure the Committee that our lawyers have been through this with a fine-toothed comb.

Part 3 of the draft regulations amends three cross-cutting environmental statutory instruments: the Contaminated Land (England) Regulations 2000, the Environmental Noise (England) Regulations 2006 and the Environmental Damage (Prevention and Remediation) (England) Regulations 2015. These instruments make similar references to EU law as are contained in those Acts and need amending for the same reason. They apply in England only. Devolved Administrations will address similar issues separately in devolved legislation. The draft regulations make no changes to either the policy or its impact on businesses and the public. The statutory instruments will continue to operate substantively as they do at present.

Directly applicable EU legislation is a type of EU legislation currently in force in the UK that applies without further legislation by our Parliaments, and includes EU regulations and decisions. These will automatically be brought into our national law by the withdrawal Act as part of retained EU law. However, in some cases that will not be appropriate. When we are no longer a member state, the UK will no longer be allowed to authorise participation in the EU’s eco-management and audit scheme—EMAS—and the eco-labelling scheme, with existing EMAS registrations and eco-labels granted by UK bodies no longer being valid. Business participation in both schemes is voluntary. Businesses holding existing EMAS registrations and eco-labels will still be legally able to sell their products to EU member states and can apply to join these schemes through other member states offering the service.

The EMAS regulation establishes an eco-management and audit scheme. As I said, business participation in the schemes is voluntary, and only 17 UK-registered organisations are involved in it, while a similar International Organisation for Standardisation scheme has more than 16,000 UK-registered participants. The eco-label regulation establishes another voluntary scheme under which producers, importers and retailers can choose to apply for an EU eco-label for their products.

To avoid any confusion for businesses wanting to join such schemes in the future, we deem it appropriate to stop these regulations and decisions being brought into UK law, as set out in part 1 of the schedule to the draft regulations. As I said, it will be open to companies to re-register through other member states that offer the service. However, we have also committed, through our resources and waste strategy, to consider a domestic eco-label scheme. Information notes on EMAS and eco-labels have been published and circulated, to inform businesses both of the decision not to immediately set up a new eco-label scheme in the UK and of the fact that organisations currently registered with the scheme can continue to be registered through EMAS Global or another EU27-competent body.

Further EU decisions referred to in the schedule include EU environmental action programmes, which are the overarching policy statements that set the EU’s objectives for the next several years. These EU decisions are either already out of date or will serve no ongoing purpose after we leave the EU. These changes apply to the whole of the UK and have been agreed between the Governments of the four nations. A series of other decisions mentioned in the schedule are on implementing decisions for the EMAS and eco-label schemes, which will be redundant after we leave the EU.

While the House continues to decide the next steps on the way the country leaves the EU, the amendments in the draft regulations are an essential element of ensuring that UK law continues to operate smoothly when we actually leave. They do not represent a change in policy, and the regulatory impact experienced by businesses and the public will not change as a result of their adoption.

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It is a pleasure to serve under your chairmanship, Mr Hosie. The Minister and I are here to discuss the statutory instrument that will make provision for the regulatory framework in this area after Brexit in the event that we crash out of the EU without a deal.

As several of my Back-Bench colleagues have done, I want to point out our challenge in ensuring proper scrutiny of the sheer volume of legislation passing through Committees. Secondary legislation ought to be used for technical, non-partisan, non-controversial changes, because of the limited accountability that it allows for. However, the Government continue to push through contentious legislation with high policy content via this vehicle. The frustration that we must spend time and resources creating a framework that might never be used is a point that has already been made in Committees. Public money has been spent on planning for what should not be viewed as a potential eventuality.

As a result of the reckless approach by the Prime Minister and her Government, statutory instruments that are being passed in Committees may well disappear on 29 March 2019. Alternatively, they could represent real and substantive changes to the statute book. As such, they need proper and in-depth scrutiny. Equally, in the event that the Government allow a no-deal scenario to materialise, we must bear in mind the stress that financial markets will be under. Statutory instruments must also be considered against that backdrop.

I understand that the devolved Administrations have been consulted on this particular SI and are content that there is no divergence in policy. In future, how will the UK and devolved Governments work together to ensure high standards across the four countries so that every citizen has full access to environmental justice that is not prohibitively expensive, as the UK is committed to via the 1998 Aarhus convention? Unlike a great many SIs that the Government are hurrying through this place, the measures contained within this particular SI are not contentious, as colleagues in the devolved Administrations have said. What we have here is an SI that, in fact, does much of what the Minister said: it does not make great changes.

Although we have great concerns about the SI process and using that legislative mechanism for many of the SIs that are being introduced—the Minister knows, because we have discussed it, that one of my particular concerns relates to the REACH regulations—we do not intend to oppose this particular SI, because it does not make great changes. However, we urge the Minister to take back to her colleagues in the Government our deep concerns about the way this legislation is being used.

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I thank the hon. Lady for setting out those points and also for acknowledging that we are doing what it says on the tin—not quite Ronseal-style, but she gets my drift.

I recognise the concerns that many hon. Members have about secondary legislation potentially being a backdoor for significant changes. I assure the hon. Lady that, through the transparency statements we sign, I have to make sure that I am in line with the ministerial code. The statement that I make to Parliament must be absolutely accurate. I give her the assurance that that is the case, and I hope that all my fellow Ministers in Government will do so. We have somebody here from the Whips Office, my hon. Friend the Member for Milton Keynes North—

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It is important.

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My apology. It is important; my hon. Friend is right—and he can take back the message that the hon. Lady has shared with us today.

In terms of access to environmental justice, we absolutely honour the Aarhus convention and will continue to do so. We see that already in existing procedures with our own UK courts today. I hope that the hon. Lady will be assured by what we have laid out in our draft clauses, which are out for pre-legislative scrutiny, with regard to environmental governance in the future.

As for how the UK and devolved Governments will work together to ensure that we have a coherent approach to environmental standards, it is the case that we have worked together as a group of four nations. At times it has been challenging to get agreement to every part of an SI, and it is perhaps one reason why it takes a bit longer than people would like. We have also respected the parliamentary processes in the other nations, making sure that appropriate scrutiny can be undertaken, but it is our intention to work towards a common framework for a number of different regulations. Nevertheless, I make the point that we absolutely respect the devolved approach, and where other nations’ Governments want to do something different, then we will respect that. Having said that, my understanding and experience of Ministers from the other Governments is that there is a lot of common ground and that we wish that to continue in order to have an improved environment.

Question put and agreed to.

Committee rose.

Draft Airports Slot Allocation (Amendment) (EU Exit) Regulations 2019

The Committee consisted of the following Members:

Chair: Sir David Amess

† Clarke, Mr Simon (Middlesbrough South and East Cleveland) (Con)

† Donelan, Michelle (Chippenham) (Con)

† Farrelly, Paul (Newcastle-under-Lyme) (Lab)

† Foxcroft, Vicky (Lewisham, Deptford) (Lab)

George, Ruth (High Peak) (Lab)

† Gibson, Patricia (North Ayrshire and Arran) (SNP)

† Heappey, James (Wells) (Con)

† Henderson, Gordon (Sittingbourne and Sheppey) (Con)

† Kawczynski, Daniel (Shrewsbury and Atcham) (Con)

† Mearns, Ian (Gateshead) (Lab)

† Norman, Jesse (Minister of State, Department for Transport)

Reeves, Ellie (Lewisham West and Penge) (Lab)

† Slaughter, Andy (Hammersmith) (Lab)

† Spelman, Dame Caroline (Meriden) (Con)

† Tomlinson, Michael (Mid Dorset and North Poole) (Con)

† Turner, Karl (Kingston upon Hull East) (Lab)

† Vickers, Martin (Cleethorpes) (Con)

Bradley Albrow, Committee Clerk

† attended the Committee

Second Delegated Legislation Committee

Monday 28 January 2019

[Sir David Amess in the Chair]

Draft Airports Slot Allocation (Amendment) (EU Exit) Regulations 2019

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I beg to move,

That the Committee has considered the draft Airports Slot Allocation (Amendment) (EU Exit) Regulations 2019.

It is a great pleasure to serve under your chairmanship, Sir David.

The draft instrument will be made under the powers conferred by the European Union (Withdrawal) Act 2018 and will be needed if the UK leaves the European Union without a deal in March. As with several other statutory instruments, it is a small and technical, but important, piece of legislation. As hon. Members are aware, the Government remain committed to leaving the EU with a deal that has been approved by Parliament. On 21 January, the Prime Minister set out her plans to deliver that deal. Although the Government strongly believe that leaving with a deal is the best outcome for the UK and the EU, it is our duty to make reasonable preparations for all scenarios, including by ensuring that there is a functioning statute book, irrespective of the outcome of the negotiations.

The instrument is an important part of those preparations and ensures that there will continue to be a well-functioning legislative and regulatory regime for aviation, including for the allocation of slots at congested airports. “Airport slots” refer to an air service’s right to use a bundle of facilities at airports—for example, runways, stands and terminals—for landing or take off at particular dates and times.

At congested airports where the demand for slots exceeds the available infrastructure, EU regulation 95/93 sets out the process for available slots to be allocated fairly and transparently. It sets out the conditions that must be met for the airport to be considered as having its schedules facilitated or subject to slot co-ordination. Factors that should be taken into account when designating an airport as slot co-ordinated include:

“When air carriers representing more than a half of the operations at an airport…or the airport authority consider that capacity is insufficient for actual or planned operations…or…when new entrants encounter serious problems in securing slots”.

The EU regulation specifies that any decision that an airport should be subject to slot co-ordination should be taken following thorough capacity analysis and consultation with airport users, including air carriers, airport authorities, air traffic control authorities and passengers’ organisations. The airports in the UK currently designated as fully co-ordinated are Birmingham, London City, Gatwick, Heathrow, Luton, Manchester and Stansted. Bristol airport is partially co-ordinated for the summer season.

The EU regulation also sets out that slots should be allocated in a neutral, non-discriminatory and transparent manner by an independent slot co-ordinator appointed by the relevant member state. Airport Coordination Ltd, the UK-appointed slot co-ordinator for UK airports, has performed that function for some time.

Under the EU regulation, slots can be allocated on the basis that the air carrier in question has held the slot in the previous season and has demonstrated that it used the slot for at least 80% of that season. Any remaining unused slots are returned to what is known as the “slot pool”, alongside any newly available slots. Some 50% of slots in the slot pool are available to new entrants. The regulation also makes provision for member states to reserve certain slots for essential domestic services, such as public service obligations.

Under the EU regulation, it is possible for slots to be exchanged between air carriers or for a carrier to transfer a slot to a different route or type of service, with the exception of slots allocated to new entrants, which may not transfer or exchange slots for the first two seasons. Finally, the regulation contains provisions for reciprocity to ensure that community carriers that request slots in non-EU countries are treated fairly.

The draft instrument makes minor changes to ensure that, once the UK has left the EU, retained EU regulation 95/93 continues to function correctly alongside the domestic Airports Slot Allocation Regulations 2006, which were made to implement the EU regulation. Most of the changes that the instrument makes are to ensure that the scope of the retained regulation is correct—for example, by amending article 1 to reflect the fact that the retained regulation will apply only to airports in the United Kingdom after exit day; by removing references to “community law” and EU treaties; and by removing or amending references to “member states”, which will no longer include the UK after exit day.

The EU regulation confers certain functions to member states, such as designating the airport as having its schedules facilitated or co-ordinated, and appointing a schedules facilitator or airport co-ordinator. These functions were conferred on the Secretary of State by domestic implementing regulations in 2006. This instrument corrects the EU regulation, so that when it is retained in UK law on exit day, these functions will be conferred on the Secretary of State in line with the implementing regulations. Other roles for EU institutions, such as the European Commission’s role in carrying out investigations, are removed or replaced.

The instrument also makes corrections to some of the definitions contained in the EU regulation, for instance substituting the definition of a community air carrier with a definition of a UK air carrier. The EU regulation defined “new entrant” for the purposes of allocating slots from a slot pool as air carriers requesting slots for scheduled services between two community airports, where at most two other carriers operate that route. This instrument amends that definition to allow for continuity, so that the regulation retained in UK law captures both air carriers requesting slots for passenger services between two UK airports and carriers requesting slots for services between a UK airport and an airport in a European economic area state.

The EU regulation provides that a proportion of slots can be reserved for public service obligations—PSOs. The SI amends the definition of a PSO in line with the corrections already made to provisions in EU law on PSOs through the Operation of Air Services (Amendment etc.) (EU Exit) Regulations 2018. This means that instead of being open to community air carriers, qualifying air carriers will be eligible to operate PSOs in the UK. This will include UK air carriers and carriers from other countries that have cabotage rights in the UK—that is, the right to fly between two points in the UK. As is currently the case, any PSO can only be limited to one carrier by the Secretary of State after a tendering process has been followed. This change has no effect on the PSO routes already operating in the UK, which I know will be of interest to Members.

On reciprocity, this instrument amends the provisions in the EU regulation so that instead of ensuring that community carriers requesting slots in non-EU countries are treated fairly, the provisions ensure that UK carriers requesting slots in countries other than the UK are treated fairly with respect to the allocation of slots at that country’s airports. The instrument therefore sets out that it is the Secretary of State, rather than the European Commission, who may wholly or partially suspend the operation of the retained regulation 95/93 in relation to air carriers from a non-UK country. The EU regulation currently provides for that action to be taken through a regulation and this instrument transfers that function to the Secretary of State, who could carry it out through regulations following the normal negative resolution procedure.

Finally, this instrument makes some minor changes to the 2006 implementing regulations, for instance removing the requirement for co-ordination committees at airports to invite the European Commission to meetings. It also makes a change to annex 13 to the European economic area agreement, which requires parties to the agreement to inform the European Commission about serious difficulties encountered by UK air carriers in obtaining airport slots in third countries. This provision will not apply to the UK after exit day when it is no longer a party to the EEA agreement, and so will be removed by this instrument as it is redundant.

We are continuing to work to achieve a positive future relationship with the EU and a deal that has the support of the House, but we are also continuing to ensure that the UK’s legal framework for aviation and the allocation of airport slots remains operable in a no-deal scenario. I commend this instrument to the Committee.

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It is always an absolute pleasure and privilege to serve under your chairmanship, Sir David.

We are supportive of the instrument, so I will keep my remarks brief. As the Minister alluded to, the regulations we are discussing are among the many aspects of EU law that will fall into UK law under the Government’s European Union (Withdrawal) Act. The principal changes in the instrument remove references to or the roles of the EU, the European Court of Justice and other bodies in relation to airport slot allocation. The instrument will ensure that UK carriers, which will no longer be community carriers when we leave the EU, continue to operate under the same conditions and to have the same access as before. It transfers all the current rules of the slot allocation system into UK law, and binds us to international conventions, such as the International Air Transport Association’s world slot guidance.

As I said at the outset, the instrument is necessary, although I understand that the Scottish National party’s spokesperson, the hon. Member for North Ayrshire and Arran, may have some difficulties with it. If the matter is pressed to a Division, Her Majesty’s loyal Opposition will abstain.

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The instrument uses powers under the withdrawal Act to ensure that the retained EU law functions correctly after the UK has left the EU. However, this Delegated Legislation Committee is a missed opportunity, as once again the UK Government have failed to provide key protections for Scottish airports and flight routes. Indeed, the SNP was unable to support the third runway at Heathrow because the Department for Transport was not able—or perhaps not willing—to specify the number of Scotland to London flights it would protect, beyond a vague commitment of around 100 extra per week under public service obligations. The Minister himself has spoken about the lack of a formal guarantee of public service obligations for the flights of greatest benefit to Scotland, and the hon. Member for Gordon (Colin Clark), a Tory MP, has pointed out that Heathrow’s international success has undoubtedly squeezed out domestic routes.

I ask the Minister why, after two years of promising that an aviation agreement was imminent, the Secretary of State for Transport eventually admitted that talks have not even begun. I also ask whether the Minister has seen the latest briefing from the Airport Operators Association regarding its concerns about a no-deal Brexit, and whether he would care to comment on that briefing. The SNP recognises that a well-designed Heathrow expansion plan would provide significant benefits to Scotland’s economy and connectivity. However, we cannot support anything that short-changes Scotland’s passengers, its airports or its economy, as the lack of protection for Scotland’s airports in this statutory instrument would.

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I am happy to respond to the concerns raised by the hon. Member for North Ayrshire and Arran. She has said that the instrument is a missed opportunity to support Scottish airports; unfortunately, that is a misreading of the secondary legislation. The only purpose to which the legislation can be put, under the European Union (Withdrawal) Act, is to transfer EU legislation—suitably corrected—into UK legislation. The question of whether to approve any future legislation that might affect those terms is a further decision for Parliament; all that can be done under this piece of law is to “lift and shift”, which is what this instrument does. In my remarks, I made it perfectly clear that nothing has been done through the instrument that could in any way affect the public service obligations from which Scotland benefits.

The hon. Lady raised the matter of discussions. The Department and the Government have always been engaged, ready and willing to have discussions about the terms of an air services agreement. The concern has not been on our side; the concern has been about what position the EU wishes to take. I am sure that the hon. Lady will be reassured that many of the moves that have been made over the past few weeks have been positive ones, notably the declarations that there will be overflights over EU states, that there will be a 90-day period of visa-free access, and that security checks and other measures will not be replicated in the aftermath of Brexit.

The hon. Lady asked a question about the briefing from the Airport Operators Association. I am afraid that I have not seen that briefing, so I cannot comment on it, but I invite her to send it to me if she would like.

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The Minister has said that he has not read the briefing from the Airport Operators Association, but does he understand the very serious concerns about the prospect of a no-deal Brexit, for which we seem to be preparing today?

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If I may say so, those concerns are no more than the concerns we within the Government have expressed about the need for a deal, and that is what we are pressing for. As we have said repeatedly, we support a deal and are pressing for one. We invite the hon. Lady’s party to support a deal, which it has so far failed to do. The fact that the deal is being impeded in part by the votes of her own party casts her comments in an ironic light. However, that has not been the problem; the problem has been on the other side of the equation.

The hon. Lady raised the issue of whether Scotland is being short-changed by this legislation. In fact, the exact opposite is true: the interests of Scots are being fully protected within the legislation, and we would expect them to remain so.

I am happy to answer questions, as I have done so far. This is an important and small, but technical, piece of legislation that we need in order to continue to prepare for Brexit, and I commend it to the House.

Question put.

Division 1

28 January 2019

The Committee divided:

Ayes: 9
Noes: 1

Question accordingly agreed to.

View Details

Committee rose.

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

The Committee consisted of the following Members:

Chair: Sir Christopher Chope

† Braverman, Suella (Fareham) (Con)

† Coffey, Dr Thérèse (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)

† Crabb, Stephen (Preseli Pembrokeshire) (Con)

† Creasy, Stella (Walthamstow) (Lab/Co-op)

† Elmore, Chris (Ogmore) (Lab)

† Evennett, Sir David (Bexleyheath and Crayford) (Con)

† Huq, Dr Rupa (Ealing Central and Acton) (Lab)

† Mann, John (Bassetlaw) (Lab)

† Mercer, Johnny (Plymouth, Moor View) (Con)

† Monaghan, Carol (Glasgow North West) (SNP)

† Moore, Damien (Southport) (Con)

† Pollard, Luke (Plymouth, Sutton and Devonport) (Lab/Co-op)

† Seely, Mr Bob (Isle of Wight) (Con)

† Smith, Royston (Southampton, Itchen) (Con)

† Stewart, Iain (Milton Keynes South) (Con)

† Streeting, Wes (Ilford North) (Lab)

† Twist, Liz (Blaydon) (Lab)

Ian Bradshaw, Committee Clerk

† attended the Committee

Third Delegated Legislation Committee

Monday 28 January 2019

[Sir Christopher Chope in the Chair]

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

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I beg to move,

That the Committee has considered the draft Floods and Water (Amendment etc.) (EU Exit) Regulations 2019.

It is a pleasure to serve under your chairmanship, Sir Christopher. This is the second of the affirmative statutory instruments on the environment to be considered as the UK leaves the European Union, as provided for by the result of the 2016 referendum and as subsequently agreed by Parliament. In line with the European Union (Withdrawal) Act 2018, the regulations simply make technical, legal amendments to maintain the effectiveness and continuity of UK legislation that would otherwise be left partially inoperable, so that following our exit from the EU, the law will continue to function as it does today. As the Committee will see, this statutory instrument and others are quite lengthy and make many adjustments. However, I can assure the Committee that those adjustments represent no changes of policy; nor will they have any impact on businesses or the public. We have also worked with the devolved Administrations on this instrument, and where it relates to devolved matters, they have given consent.

Part 2 of the SI makes operability amendments to four Acts. Those amendments mainly replace the words “EU obligations” with “retained EU obligations” to reflect the fact that such obligations will be retained in domestic law after EU exit. Regulation 4 also addresses the use of the term “environmental objectives”, which is defined in the water framework directive. The amendments define that term by reference to our domestic legislation that implemented the water framework directive, rather than the EU directive itself.

Regulation 2, regarding the Water Act 1989, applies to England and Wales only. It changes “an EU obligation” to “a retained EU obligation”; similar changes to the Water Industry Act 1991 and the Water Act 2014 are set out in regulations 3 and 5 respectively. In regulation 4, similar changes are made to the Water Resources Act 1991, and under the definition of “environmental objectives”, to which I referred, we specifically mention the two river basin districts that cross the border between England and Scotland. That issue is tackled in further detail in part 3 of the SI, in regulations 10 and 11.

Part 3 amends technical deficiencies in several pieces of secondary legislation, and I will highlight the key types of amendments. Regulation 6 amends the Sludge (Use in Agriculture) Regulations 1989, which apply to England and Wales only. It places an obligation on the Secretary of State and Welsh Ministers to report every three years on the implementation of regulations, which reflects current reporting to the European Commission.

Regulation 7 amends the Urban Waste Water Treatment (England and Wales) Regulations 1994, which apply to England and Wales only. It changes references to EU law to references to “retained EU law”, and includes a requirement for relevant environmental reports to be published by the Secretary of State and the Welsh Ministers.

Regulation 8 deals with water fittings regulations, which extend and apply to England and Wales. That amendment removes automatic approval for plumbing systems and water fittings with EU or European economic area markings, but ensures that those products can still be approved if they meet the equivalent UK standard.

Regulation 9 amends the Drinking Water (Undertakings) (England and Wales) Regulations 2000, which extend to England and Wales. It changes the word “implement” to “implemented”, to reflect the fact that there will be no future requirements to transpose EU directives after exit.

I have already referred to regulations 10 and 11 regarding the cross-border river basin districts. Given that article 10 of the water framework directive refers to other directives that are already transposed into domestic law, there is no need to use article 10, as it has no impact on ongoing regulation. Our lawyers have devised this way of making sure that we do not have even longer, and even more, SIs than are necessary for regulation. If we did not omit article 10, the ongoing chain of cross-references in regulations would mean we had to make considerably more changes, and make other SIs even longer.

The Water Industry (Special Administration) Rules 2009 are amended by regulation 12. Rule 123(2) is omitted, as it refers to the EU regulation on the service of judicial documents between member states, which will no longer apply. 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 Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010 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.

Regulation 14 amends the Incidental Flooding and Coastal Erosion (England) Order 2011, which applies to England only. It changes the definition of “environmental objectives”, so that it relates to the domestic UK legislation that implemented the water framework directive, rather than to the directive itself.

Regulation 15 amends the Bathing Water Regulations 2013, which extend to England and Wales. The amendments correct cross-references to the bathing water directive that would be deficient on exit. A requirement is also included for the Secretary of State and Welsh Ministers to publish a report each year containing information about the bathing water season.

Similar amendments to deal with cross-references to EU legislation are made to the Nitrate Pollution Prevention Regulations 2015 by regulation 16. These regulations apply to England only. An obligation is also placed on the Secretary of State to publish reports on the implementation of these regulations.

Regulation 17 amends the Flood Reinsurance (Scheme Funding and Administration) Regulations 2015. This is a reserved area, so the regulations cover all the United Kingdom. A minor technical amendment is made to the reference to the scheme administrator’s obligation arising from directly applicable EU legislation. This will instead read as the obligations arising from retained direct EU legislation.

Regulations 18 and 19 refer to water supply and private water supplies regulations, which apply to England only. The amendments fix cross-references that are deficient. An obligation is also placed on the Secretary of State to produce and publish reports on drinking water quality.

Regulation 20 amends the England and Wales regulations that implement the EU water framework directive for operability. It replaces the term “EU instrument” with the term “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 agreed to this approach. The Committee will recognise that the instrument makes operability corrections to regulations on the water framework directive, such as those governing the cross-border river basin districts between England and Scotland.

Just as with regulations 10 and 11, proposed new schedule 5 to the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 instrument 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. This process includes modifying references to member states and to EU legislation, and omitting redundant articles, such as one referring to the European Commission resolving issues between member states.

The two sets of water abstraction regulations mentioned in regulations 21 and 22 extend and apply to England and Wales. The changes in regulation 21 reflect the changes made by the EU exit SI amending the Conservation of Habitats and Species Regulations 2017. Changes in regulation 22 fix cross-references to terminology used in the water framework directive to make it operable.

In part 4, there are technical amendments to several EU decisions. The amendments to and revocations of these decisions and other EU decisions extend and apply to all the UK; they have been drafted in liaison with the devolved Administrations, and with their consent.

Regulation 23 removes a provision about the entry into force date of the EU decision on symbols on bathing water signage. Regulation 24 removes a similar boilerplate provision in an EU decision on equivalence of microbiological standards. The substantive content of these decisions will be part of retained EU law on exit.

Regulation 25 amends the EU decision on the values of monitoring system classifications for water quality. This decision is amended so that references to obligations on member states in that decision are read as a reference to the appropriate Minister or regulator in the United Kingdom.

Regulation 26 concerns the EU decision on establishing a watch list of substances for monitoring in water. The watch list contains new substances that are of concern for water quality. Once several years’ data is collected on these substances, they may be placed on the priority substances list, and their presence in water would have to be tackled to meet water framework directive objectives. A United Kingdom watch list will be preserved; the instrument simply removes references to “Union-wide” monitoring.

Regulation 27 revokes three decisions. An EU decision establishing the list of priority substances to be monitored in water is revoked. These are substances considered most harmful to the water environment. The decision only inserted into the water framework directive a revised list of priority substances that has already been incorporated into domestic law through the implementing water framework directive regulations.

The EU decision to establish a list of monitoring sites to form a network for monitoring water quality will also be revoked. Most member states, including the United Kingdom, set up those sites some years ago, and the United Kingdom will no longer need to provide that list to the European Commission. The EU decision on formats for reporting to the European Commission under the urban waste water treatment directive will be revoked too, as the UK will no longer report to the Commission. All those proposed revocations were drafted in agreement with the four nations of the United Kingdom.

I emphasise to the Committee that the instrument addresses technical deficiencies in floods and water legislation to ensure that it continues to operate effectively when we leave the European Union. It does not introduce new policy, and preserves the current regime for protecting and improving the water environment.

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It is a pleasure to serve under your chairmanship, Sir Christopher. I am only disappointed that there are no cameras in the Committee Room; the people who normally watch proceedings on parliamentlive.tv can only listen, and will miss out on the lovely little dogs that the hon. Member for Milton Keynes South has on his tie, and the lack of jacket of the hon. Member for Isle of Wight. Hopefully my carefully chosen water-themed jokes will get belly laughs from Members, rather than just smiles. [Interruption.] Thanks for the laughs.

In all seriousness, the purpose of the statutory instrument, as the Minister says, is to preserve and protect the existing EU policy regime, rather than introduce new policies. The Minister told us that all she is doing is transposing EU law into UK law, deleting “Europe” and inserting “UK”, and deleting “EU Commission” and inserting “Secretary of State”, and that we have nothing to worry about. The Opposition fear that that is simply not the case. We have seen with the Fisheries Bill that sometimes one thing is said, and another is done in practice, such as removing the date for achieving maximum sustainable yield while adding new objectives added.

With today’s SI, we believe that the Government are again trying to pull the wool over our eyes. I am concerned, as are many environmental groups, that Ministers are picking and choosing, as we feared, which protections to keep and which to bin. We intend to vote against the motion, because the SI does not prevent a roll-back of environmental protections. It also lacks detail on transparency, impact assessments, reporting, governance and consultation.

I am concerned that we are being asked to wave through SIs at break-neck speed as we approach Brexit. They are starting to look a bit like a bad Brexit mash-up; pieces of EU legislation are left in or out at the Minister’s choosing, and many SIs are put together along vague themes, as we see today. The Opposition have serious concerns about the scale and pace at which the Government are ramming Brexit legislation through to minimise scrutiny. Since June 2018, 343 statutory instruments have been laid before Parliament. How many does the Minister expect to be completed by exit day on 29 March, and how many does she expect will relate to the Department for Environment, Food and Rural Affairs?

The SI deals with both flooding and water legislation. The typical length of an SI is 19 pages, yet this one is 27 pages. This single SI seeks to amend four pieces of primary legislation and 17 pieces of secondary legislation, and to amend or revoke five EU decisions. The Water Industry Act 1991 alone is 279 pages. We have only up to 90 minutes to scrutinise the changes made by the SI. I fear that the Minister is trying to cram too much in for consideration.

For the record, Labour believes that there is insufficient time for proper scrutiny of the SIs that the Government are introducing. We do not have time to review the SI line by line, and we cannot table any amendments, as many environmental stakeholders have asked us to. The Government expect us to wave through hundreds of such hurried SIs. We are expected not to make a fuss. If we asked for more time for scrutiny, we would somehow be accused of trying to block Brexit. Far from it. There is a deep irony: Brexit was sold to the country as a way of taking back control, but at every stage the Government have tried to thwart parliamentary scrutiny, and have loaded Committees such as this with a majority, even though they do not enjoy one in the House.

I worry whether the Minister has enough time in her schedule to review carefully all the SIs that her Department is seeking to introduce. I know that her colleague the Minister for Agriculture, Fisheries and Food has two Bills as well as all his SIs. The Department has a considerable work load that risks SIs being accepted by the House without proper scrutiny. The hon. Lady should be prepared for me to ask a series of questions, and I am glad to see that she has her pen out already. I fear that she might not be able to answer some of them, and if that is the case I would be grateful if she and her officials prepared the answers and wrote to me.

It is the inconsistencies in the SI that worry me most. Greener UK has raised technical concerns about the wording, and I am sure the Minister is familiar with those. It is concerned about the compliance rules, which have been removed inconsistently. For example, measures required under the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 will no longer be in compliance with article 10 of the water framework directive, which covers issues such as the implementation of emission controls, emission limits and best environmental practices. At the same time, references to directives, such as those on integrated pollution prevention, urban waste water treatment, and protection against water pollution caused by nitrates from agricultural run-off have all been removed, seemingly without explanation.

Are arrangements for consulting non-governmental organisations in advance of the publication of SIs in place, and have they been used for these regulations? That process is meant to prevent such inconsistencies and omissions from creeping in. Does the Minister feel that those pre-scrutiny arrangements are working well for SIs? If so, how come so many inconsistencies need to be raised at this point? Will she publish the consultation feedback from the relevant bodies and the devolved Administrations that she mentioned earlier?

The key question Members must consider is whether the regulations enable a roll-back in environmental protections and set us up to fall behind current, and any future, EU standards. Lord Gardiner of Kimble, the DEFRA Minister in the Lords, said last week, as that House considered the SI:

“We will retain our rigorous parliamentary scrutiny and strong domestic legal framework for environmental protection, but we want to go further.”—[Official Report, House of Lords, 22 January 2019; Vol. 795, c. 687.]

However, there is no requirement on the Government to transpose future European directives after exit day.

On water regulation, we have benefited over the years from robust EU regulation, which has helped drive up the quality of our drinking water, bathing waters and groundwater, something I know, as a Plymouth MP, from the improvements in quality we have seen in the far south-west. It is vital to hold on to those benefits for the future and not allow standards to fall back.

My noble colleague in the other place, Baroness Jones of Whitchurch, rightly said that the EU had saved the UK from

“our reputation as the ‘dirty man of Europe’”.—[Official Report, House of Lords, 22 January 2019; Vol. 795, c. 686.]

If we do not keep pace with Europe’s environmental legislation we risk reclaiming that title, and the dirty man of Europe runs the risk of becoming the sick man of Europe.

I have a number of concerns about the SI that represent roll-back in environmental protections, and I would be grateful if the Minister could address them. The Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010 are amended to allow products that are of an equivalent standard to the British standards to be installed. The amendments align our legislation with World Trade Organisation principles. Does she agree that moving from EU regulation to WTO principles would potentially be a downgrade for keeping pace with our EU standards in the future?

The SI applies to England, Wales, Scotland and Northern Ireland. Can the Minister confirm that it preserves the current devolution settlement and that all those devolved Assemblies have consented to all parts of the regulations? Some powers are extended to the UK and some to Great Britain. Can she set out what happens where there has been application to other parts but not to Northern Ireland, to ensure that we have complete coverage of the topics after the SI comes into effect?

I am concerned that insufficient care has been taken in the drafting of the document, which is, I believe, in part due to the sheer volume of work that DEFRA officials are confronted with. Proposed new schedule 5, part 1, paragraph 13 says to omit “Community, local and national” from paragraph 2, annex 4 of the water framework directive. However, that paragraph of the water framework directive says, “Community, national or local”. Does the Minister believe that the order of the words is important, and can she say what legal effect the different order and co-ordinating conjunctions may have?

In part 4 of the same schedule, paragraph 27 revokes a number of decisions, including EU decision 2455/2001, which establishes a list of priority substances in the field of water policy, Commission decision 2005/646 on the establishment of a register of sites to form the intercallibration network in accordance with directive 2000/60, and Commission implementing decision 2014/431 concerning formats for reporting on the national programmes to be implemented. Why has that legislation been retained only to be revoked, and what will replace those elements if nothing is offered in return? I understand revoking intercallibration and Commission reporting, but revocation of decision 2455/2001/EC on establishing a list of priority substances in the field of water policies appears to hack away at important rulings on water substances. Some stakeholders have raised concerns particularly about that element. Will the Minister confirm what consultation has taken place to ensure there is no roll-back of protections that will undermine environmental quality in that respect?

On the impact assessment—or lack of—the SI’s explanatory note states:

“There is no, or no significant, impact”,

but two points down it states,

“we expect it to have no impact”.

Is it no impact or no significant impact? If there is no impact, what assessment has taken place to establish whether it is no impact or no significant impact?

The note states that no impact assessment has been prepared to establish whether there is an impact or not. If there has been no impact assessment to establish where there has been no impact, can the Minister establish whether there is no impact or no significant impact, because the two things are different? It would be interesting to understand whether a pre-impact assessment has taken place to establish whether an impact assessment were necessary, because no impact and no significant impact are indeed two separate bits. This is the moment when Members are not supposed to smile—they are supposed to guffaw. [Laughter.] Thank you very much. However, a serious point is raised in terms of what level of pre-scrutiny has taken place to establish the measures in this SI.

The note also states that

“no review clause is required.”

Perhaps the Minister will think again about that, given the pace and scale at which these SIs are flying through our Parliament. This single SI seeks to amend four pieces of primary legislation and 17 pieces of secondary legislation, and there is no review clause and no sunset clause for review.

I also want to press the Minister on an odd choice of wording. Why does part 1 of proposed new schedule 5 state:

“Article 10 is to be ignored”,

and not omitted? That choice of language is used throughout the SI. It is the same for articles 12, 15, 24 and annex 1. Will she set out, especially for those listening at home, the difference between “omitted” and “ignored”? What does it mean for the courts, regulators and future Ministers? It is the same for paragraph 30 in part 3. Why are the articles to be ignored and not omitted? What is the Minister trying to bring about with that different use of language?

Paragraph 15 in part 1 states:

“Annex 6 is to be read as if Part A were omitted.”

What is the difference between something being omitted and something being read as if something were omitted? Why not simply omit them? Paragraph 14(e)(ii) states that annex 5, section 1.4.1, is to be read as if

“points (iv) to (ix) were omitted”.

Why does it not say they should be ignored?

In part 3, regulation 30 states:

“Article 6(1)(c) and (2)”

of the environmental quality standards directive “are to be ignored”. Why are those to be ignored and not omitted or read as if they were omitted? The detail really matters. I am tired of Brexit soundbites. I am talking about the detail of getting Brexit right. It is on those aspects of the difference in language that complications with the implementation and reporting of this SI could be caused in future legal cases .

Environmental stakeholders and colleagues in the other place have raised legitimate concerns about the lacklustre proposals that this SI sets out for reporting on transposed regulations. Part 3, paragraph 11(3)(d), states that

“the report is published in such manner as the Ministers consider appropriate.”

Can the Minister provide an example of what format she would consider appropriate in relation to that paragraph, and what criteria she would deem appropriate?

In part 3, on the Private Water Supplies (England) Regulations 2016 and “Reporting 21A”, what guidance has the Minister received to keep reporting on the quality of water for human consumption at a maximum of three years? Why not two or four?

In part 4, what additional funding will be given to the Environment Agency, the National Resources Body for Wales, the Scottish Environment Protection Agency, and Northern Ireland’s Department of Agriculture, Environment and Rural Affairs to cope with the new demands? The Opposition welcome the fact that the draft SI introduces specific reporting requirements into domestic legislation and provides for reports to include the results of quality assessments and description of any measures taken or proposed to be taken. Frankly, we have concerns that the measure makes no provision for the reports to be reviewed or for any failures to be identified and addressed, as is currently required by the European Commission. That is important.

Environmental stakeholders have highlighted that the UK can grant several derogations under the directive. The draft statutory instrument provides for derogations to be decided and granted by the Secretary of State alone. At the moment, the Commission reviews such decisions and determines whether the application is valid, but there is no equivalent review process in the instrument—only a requirement to publish the grounds for the notification. Unless the Minister can suggest otherwise, that is a lowering of environmental oversight. The Opposition doubt that the mere act of publishing the reports will be sufficient to match the current level of scrutiny. We suggest that the statutory instrument, or a future one, should include a requirement for reports to be reviewed and assessed.

The statutory instrument also revokes the agreed format of reports for the European Commission on the urban waste water treatment directive. Will that be just an administrative change, as the Minister suggested, or will it change how data is transferred between devolved Administrations in the United Kingdom, or between us and our EU friends in relation to pollution controls across boundaries, or the system that UK regulatory bodies and commercial entities have invested in? In our view, the lack of reporting is too open to interpretation by the Secretary of State and by those preparing the reports, and it could contribute to reduced quality and less effective monitoring and scrutiny of important environmental commitments.

The statutory instrument contains examples of specific reporting requirements, such as regulation 7(3), which introduces regulation 12A into the Urban Waste Water Treatment (England and Wales) Regulations 1994 for situation reports every two years; regulation 15, which introduces regulation 15A into the Bathing Water Regulations 2013 for annual reports; and regulation 16, which introduces a new requirement to the Nitrate Pollution Prevention Regulations 2015 under regulation 40A for an implementation report every four years.

When we considered the Fisheries Bill in Committee, the then Minister quizzed me at length about why we were proposing an amendment of six years. That was a good question and I would like to turn it back to this Minister. Why are there different lengths of time for reporting? Have any changes been made in transposing them into the statutory instrument?

Environmental stakeholders have expressed concerns about the future reporting of the provisions. Is the Minister aware of those concerns? The statutory instrument has been through some form of consultation, but how far into the process was that—pre or post drafting? What changes did she make to address the valid concerns of stakeholders that have been expressed to me and, I am sure, to her?

When the statutory instrument was considered in the other place, Baroness McIntosh of Pickering expressed concerns about who will review the reports. Due to the lack of time, her question was not answered by the Minister there, so I would be grateful if this Minister set out her answer to that question. The baroness rightly said:

“although these reports are being made public, the draft statutory instrument makes no provision for these reports to be reviewed if any failures emerge from them. Such failures would currently be addressed by the European Commission…what body will deal with any future…failures?…What mechanism will there be to make sure that these are reviewed?”—[Official Report, House of Lords, 22 January 2019; Vol. 795, c. 681.]

It is up to the Secretary of State to indicate only what he or she deems an appropriate form of report and there is no requirement for any flaws to be dealt with subsequently. In the other place, Baroness Young said:

“The Government are not just filling in their own report card—they are designing their own report card”.—[Official Report, House of Lords, 22 January 2019; Vol. 795, c. 683.]

I could not have put it better myself. The lack of proper scrutiny of the reports is deeply worrying.

There is a real danger of a governance gap in this statutory instrument and many of the others that the Government are introducing. We are hurtling towards exit day on 29 March without the appropriate mechanisms in place for 30 March, as the statutory instrument may come into UK law before we have the new environmental regulator that the Secretary of State has announced. Does the Minister have a contingency plan for the gap between those two events? How does she plan to bridge the gap between us being released from the EU Commission’s oversight and the setting up of the new Office for Environmental Protection, especially in relation to the reports that I mentioned?

The instrument mentions the cross-border Solway Tweed river basin district and the Northumbria river basin district, with which I am sure we are all deeply familiar. Lord Gardiner of Kimble said,

“we have consulted with the devolved Administrations on the instrument, and they have given consent where appropriate.”—[Official Report, House of Lords, 22 January 2019; Vol. 795, c. 678.]

As well as the devolved Administrations, what was the feedback from local councils on the draft instrument?

I also read in the debate in the other place that various environmental NGOs and others were given sight of the draft instrument before it was laid before Parliament. Peers asked if there was any opportunity to bring parliamentarians into this process, to which Lord Gardiner said that pre-laying scrutiny of statutory instruments by interested MPs was an “interesting and legitimate point”. Will the Minister consider adopting this sensible proposal, given the scale and pace at which the Government are pushing out these SIs? Every little helps, and given the mess that the draft SI is in, every little bit would certainly help it.

A common thread in the tidal wave of rushed SIs is the loss of the independent scientific expertise currently provided at the EU level. We are all aware that the Secretary of State is tired of experts, but important issues, such as the setting of water quality standards and acceptable nitrate levels, as well as advice on what is technically feasible and not disproportionately costly, depend on the advice of experts. It is crucial that this expertise remains robust and independent in the future, to avoid our risking not only an incorrect application of the law but the adequate protection of environmental standards.

For example, the water framework directive requires that any changes to standards, values, substance lists and best environmental practices should be made only in the light of expert advice. To what extent will UK law be meaningfully interpreted if we do not have those supporting mechanisms? What additional funding will be provided for scientific expertise following the loss of our access to EU scientific expertise, and does the Minister have any plans to increase science funding in that respect?

At the moment, we have access to Europe-wide research and analysis to shape our decisions on such things, but that will not necessarily be available to us in future. That point was made very well by my noble Friend Baroness Jones, who stated:

“While I do not doubt the expertise within our own scientific community, there are issues about the considerable extra workload, in terms of depth and quantity, that we will be placing on our own scientific advisers.” —[Official Report, House of Lords, 22 January 2019; Vol. 795, c. 687.]

I echo those concerns. What steps are being taken to ensure that scientific advice will be of the same technical and authoritative standard after we leave the European Union?

Opposition Members share concerns about unexplained changes to the UK’s legal framework. The draft SI sets out which aspects of key EU directives will continue to apply in future. Some key provisions have been retained, such as regulation 3 of the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017. However, some parts of the directives that the UK must comply with are not considered in the draft instrument. While some of these removals are understandable, the reasons for other omissions are less obvious and even appear arbitrary, according to stakeholder feedback.

For example, measures required under the 2017 regulations, as well as specific regulations on Northumbria and the Solway Tweed river basin districts, will no longer need to comply with article 10 of the water framework directive, which requires our taking a combined approach in establishing and implementing emissions controls, relevant emission limit values and, in the case of diffuse impacts, controls including, as appropriate, best environmental practices. The reason for that is unclear. We are concerned that specific references to several highly relevant directives have been removed without explanation, including on integrated pollution prevention and control, urban wastewater treatment and the protection of water against pollution caused by nitrates from agricultural sources. Will the Minister explain on what basis elements of EU law have been retained or removed?

Unfortunately, time does not allow me to go into details of the eel management element of the draft instrument. However, I know that Members of all parties will be concerned about recent media reports of coked-up eels that have absorbed the cocaine that goes into the River Thames. That was not included in the draft instrument, but we forgive the Minister for that inadvertent oversight.

The Opposition have serious reservations about approving the draft instrument. I expect Government Members to vote for whatever they are told to, so I appeal not to their better judgment, but to that of the Government Whip, from whom they take their instructions. Because the Government have a compliant majority on the Committee, the draft instrument will probably be voted through; from the looks on the faces of Government Members, many just want the Committee to end. However, it should not be, as it is messy, open to serious concerns and does not adequately answer the concerns of stakeholders that I have set out.

We are worried about the Government’s cavalier approach to transposing current EU legislation. The SI attempts to do too much without careful consideration of the detail. It is only to be expected, given the Government’s sometimes cavalier approach to exiting the European Union, that we have such a messy SI in front of us. The Opposition find that this process of picking and choosing parts of EU law to keep and bin has been arbitrary. We have ended up with a pick-and-mix bag of laws that does not match the current standards of EU laws. That concern is shared by stakeholders. The draft SI falls short of preventing a roll-back on environmental protections. It falls short on transparency, in its impact assessments and on reporting, governance and consultation, and it lacks clarity on what is being changed or transposed. On behalf of those environmental stakeholders who have got in touch with the Opposition, I say that the SI is not good enough, so the Opposition will not support it.

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It would be remiss of me not to remind the Committee of the significant announcement that the Prime Minister made on environmental standards last Monday. She made clear in detail that she and her Government had agreed to accept the amendment in my name and that of several of my colleagues. Environmental standards were a significant part of that amendment. It required the Government to ensure that we have environmental standards at least as high as the European Union’s, and to bring back to Parliament any change that could be considered a future enhancement of European Union standards. Under the amendment, it is for Parliament to determine whether this country should adopt those changes into our law.

It is a little bit chicken and egg, not in relation to Brexit, but in relation to the EU (Withdrawal) Act 2018. The Prime Minister’s acceding to our request was not merely good words from a Prime Minister. Whichever Prime Minister it is, my experience is always that good words and good intentions are not sufficient; let us see the ink on the Bill to demonstrate what those words mean. The Prime Minister made it crystal clear that that amendment would be incorporated into the withdrawal Act when it reaches the House. That will guarantee that we will compete, having left the European Union as an independent country, on the basis of the highest standards.

The three areas we identified—I anticipate a fourth on equality—will be incorporated as well. They were workers’ rights in terms of employment law, health and safety and environmental standards. I therefore look forward to hearing from the Minister how that very appropriate move by the Prime Minister will affect her consideration, not least of engagement with the trade unions once we have left the European Union to ensure that third parties can be assured and that the Government are robust and quick in ensuring that at all times and in all matters, we compete as a free and independent country and as the best in Europe, rather than the cheapest and worst in Europe.

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It is a pleasure to respond to the points made by the hon. Member for Plymouth, Sutton and Devonport. I recognise that the hon. Gentleman wants to get into politics, and I am sure that the Labour Government in Cardiff will be disappointed to hear that the Westminster Labour Opposition have decided to vote against the SI to which the Welsh Government had consented and participated in drafting. I hope he will consider that carefully when he has the conversation with Lesley Griffiths to discuss their approach and why they do not believe the assurances given by the Welsh Labour Government.

I am conscious that a number of different words and terminology are used in the SI. I do not pretend to be a lawyer; I rely on my lawyers for that. I am pleased that we have got them here today to help answer many of the questions that the hon. Gentleman asked, but there are some procedural points for Parliament. First, the explanatory note states that

“no, or no significant, impact…is foreseen.”

I challenged my lawyers about it, but that is the wording that the Joint Committee on Statutory Instruments stipulates for such instruments. I wanted to remove the words “or no significant”, so that the wording would read “no impact”, but the procedures of both Houses did not allow me to take that approach. Further examples of wording decreed by the JCSI will continue to arise in every statutory instrument that we lay before Parliament.

The hon. Gentleman asked for clarity on some other legal elements, particularly with respect to the words “omitted” and “ignored”. The Government have adopted the drafting approach of using the word “omit” in reference to UK regulations that we are amending, but “ignore” in reference to EU directives that we are modifying. It would not surprise me if hon. Members wanted even more clarity, so I am happy to send a note to Committee members to set out the matter in more detail. The draft regulations use legislative wording in a technical format to ensure consistency; I will not pretend that every piece of legislative phrasing will necessarily be what we would use in general speech.

The hon. Gentleman spoke about stakeholders. I have to say that the document from Greener UK and Wildlife and Countryside Link was brought to my attention only today. Our reading room system, which is also available online, is open to a number of stakeholders, including stakeholders from Scotland, Wales and Northern Ireland, so that they can see our statutory instruments and comment on them. No stakeholder made any comment about the draft regulations, so the concerns raised today by the Opposition come as news to me, but I hope to address them.

The hon. Gentleman spoke in detail about how there will be no requirement to transpose future EU directives. He described that as a problem with the draft regulations, but the point is that we are leaving the European Union, so we will not be subject to future European directives as we have been before. It will be for this Parliament to decide what changes and enhancements to make to our environmental standards.

I assure the hon. Member for Bassetlaw that the draft regulations are not about trying to roll back or do different things; they are about ensuring that the law that we have today will still work on the day after we leave.

With respect to scientific expertise, updates and so on, it is fair to say that the United Kingdom has a strong record of contributing to EU-wide research. It is my understanding that the research used by the Commission is publicly available, so it will be open to us to use research shared across the European Union about any changes made, as well as research available domestically. I do not think that there will be an extra onus on advisers beyond what there is today. We work with other member states of the European Union when we are considering making changes to regulations, and I expect that that will still be the case.

The Greener UK briefing—which, as I say, was not presented to the Government with any questions in advance of this Committee—refers to article 20 of the water framework directive, which permits certain technical annexes and articles to be adapted by the European Commission based on scientific and technical progress. The concern has been raised that such powers will somehow no longer be in place. The power will be transferred to the Secretary of State and to Ministers in the devolved Administrations in a future DEFRA cross-cutting statutory instrument that will be entitled Transfer of Functions (Environment Directives) (EU Exit) (Miscellaneous Amendments). That instrument will be made under the affirmative procedure, but we deem that the functions that it transfers—including the function in question—are not time-critical for day one. We would be aware today of any changes that the European Commission proposed to make through the European Parliament and the European Council. No such change has been proposed at this stage; therefore, that function does not need to be ready for day one. We believe that laying the SI before Parliament in April will give us the powers and functions necessary for the future.

The hon. Member for Plymouth, Sutton and Devonport referred to WTO rules. I assure the Committee that this is about WTO rules that say, “You cannot treat one country differently from another.” The SI is about making that change. As it stands, standards in the United Kingdom are the same as in the rest of the European Union. We are bringing over those standards, and it will be for the United Kingdom to decide what standards are appropriate in the future. I remind the Committee that there are a number of differences, albeit not in this case, between us and most of the European Union, such as the way we treat electricity and our plug system. That does not mean that we will make big changes going forward, or would make them for the WTO.

I am not sure that the hon. Gentleman is right about insufficient care in drafting. I believe that we have covered the points that he made on the inter-calibration network. The reality is that that work has already been done. It will not be done again; we do not see the need. As I said, the Scottish Government, the Welsh Government and directors on behalf of the Northern Ireland Administration agreed to revoke that decision, as well as to make some other changes.

On different levels of reporting—on whether reporting should be every three years, five years or two years—the point is that we are not changing what we have to do today. If we decide in the future that we want to change the reporting cycles, we can, but we will not do it through this legislation. We will bring over what we have to today, and that will become the requirement from day one.

I do not think that there is a need to introduce a review clause, or a sunset clause for review of any of the regulations. That would add unnecessary uncertainty—and, by the way, I would then be in contravention of what statutory instruments are allowed to do under the European Union (Withdrawal) Act, which allows me to make regulations only so that the system is operable, not to introduce new conditions. We are not trying to change stuff for the future; we are actually trying to keep it the same.

On the governance gap, the hon. Gentleman will be conscious of the draft clauses that the Government have tabled. So far, only in England is a proposal in place for a similar body to the European Commission in terms of scrutiny and powers. Other Governments will have to make their own decisions. Although Northern Ireland is interested in consulting on having an office for environmental protection, alongside that for England, we have not been advised by either the Welsh or the Scottish Government that they would like to do the same as us.

The hon. Gentleman asked why the amendment to annex IV of the water framework directive omits the words “Community, local and national” from the annex. The annex states:

“The summary of the register required as part of the river basin management plan shall include maps indicating the location of each protected area and a description of the Community, national or local legislation under which they have been designated.”

Such a description is required because that information would be pertinent to the European Union; it is not necessary in our domestic legislation.

I understand what the hon. Gentleman said about derogations. It is important to state that the Commission does not decide about a derogation; my understanding is that it will give advice. The Secretary of State will take over any function that the Commission has in relation to derogations; as now, they will continue to make decisions on derogations by considering the evidence against specific criteria. Those criteria are being brought into domestic law through the SI, both for drinking water and for nitrates. The basis for decisions will remain the same.

On drinking water, the United Kingdom has used derogations in the past. In England, the last one to be granted was in 2006 for a period of one year. I believe that it is fair to say that the UK has extremely high-quality drinking water, and we can meet all the standards in the drinking water directive. For that reason, we do not intend to use, or envisage using, the derogative provision in the future. With regard to nitrates derogations, the Secretary of State is required to publish on a regular cycle an explanation of why they have been allowed. For drinking water, the water supplier must publish the information; that will continue.

In my opening comments I went into some detail about why we have made changes to article 10. I explained to the Committee that the directives linked to article 10 have already been brought into UK law. I also explained to the Committee that if we do not do it this way, we will have even longer SIs, and more of them, to deal with those cross-cutting references. We believe that it is straightforward—I appreciate that not everybody is an environment lawyer—to make these changes. Greener UK did not raise this point with the Government before it published its concerns just a couple of days ago. I am very happy to take those away and explain to it why what we have done absolutely keeps our current obligations in our transposed law.

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The example the Minister has just given sums up perfectly the concern that environmental stakeholders have about the volume of SIs coming out. Perhaps the Minister could reassure stakeholders that there will be additional scrutiny of future SIs, in order to give them, the Opposition and parliamentarians the chance to review properly what is being proposed.

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As I say, the reading room—the pre-legislative procedure—is deliberately open to stakeholders. I shall take away the hon. Gentleman’s request for pre-access for Members of Parliament; I am not aware of that being the normal procedure, but I am very happy to check that. In essence, stakeholders did not share any of these concerns with the Government, even though they saw the regulations a week before they were laid before Parliament, which is why those concerns came as a surprise.

It is important to state that the reports that we will publish will be exactly what is provided for in current legislation. On formatting, we must recognise that the Commission puts forward proposals for 28 EU member states; we will be reporting on something that is fit for the United Kingdom. As for other nations in the UK, my expectation is that when we try to agree common frameworks, which we are starting to do, we will have regard to each other in how we go about reporting on different elements. At the moment, no change is required; the regulations just stop us from having to change our reporting in future if the European Commission decides to do something for the EU27, should we not think it necessary to change our reporting format. This will kind of ensure that we are not locked into certain aspects of the EU’s operational activities when we are no longer part of it.

I hope that I have answered a number of questions from the hon. Member for Plymouth, Sutton and Devonport. I am conscious that the legal wording can get rather technical, but I believe that the regulations do exactly what they say on the tin: they bring over the regulations that are required to ensure that the day after exit, things operate just as they did the day before—does no more and no less. Otherwise I would have been breaking the Ministerial Code when I signed the transparency statement. There is no change in policy; the regulations are simply technical. I therefore encourage the hon. Gentleman to reconsider voting against the regulations. I point out that the Labour-run Welsh Government and the Scottish Government, run by the Scottish National party, have both endorsed this SI.

Question put.

Division 1

28 January 2019

The Committee divided:

Ayes: 9
Noes: 7

Question accordingly agreed to.

View Details

Resolved,

That the Committee has considered the draft Floods and Water (Amendment etc.) (EU Exit) Regulations 2019.

Committee rose.

Draft Carriage of Dangerous Goods (Amendment) Regulations 2019

The Committee consisted of the following Members:

Chair: Mr Adrian Bailey

† Boles, Nick (Grantham and Stamford) (Con)

† Brown, Alan (Kilmarnock and Loudoun) (SNP)

† Clark, Colin (Gordon) (Con)

† Fitzpatrick, Jim (Poplar and Limehouse) (Lab)

† Glindon, Mary (North Tyneside) (Lab)

† Harrington, Richard (Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy)

† Harris, Rebecca (Lord Commissioner of Her Majesty's Treasury)

† Hayes, Helen (Dulwich and West Norwood) (Lab)

† Jenkyns, Andrea (Morley and Outwood) (Con)

† Kerr, Stephen (Stirling) (Con)

† Mann, Scott (North Cornwall) (Con)

† O'Brien, Neil (Harborough) (Con)

† Smith, Nick (Blaenau Gwent) (Lab)

† Swire, Sir Hugo (East Devon) (Con)

† Western, Matt (Warwick and Leamington) (Lab)

† Whitehead, Dr Alan (Southampton, Test) (Lab)

† Zeichner, Daniel (Cambridge) (Lab)

Ben Sneddon, Committee Clerk

† attended the Committee

Fourth Delegated Legislation Committee

Monday 28 January 2019

[Mr Adrian Bailey in the Chair]

Draft Carriage of Dangerous Goods (Amendment) Regulations 2019

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I beg to move,

That the Committee has considered the draft Carriage of Dangerous Goods (Amendment) Regulations 2019.

Good evening, Mr Bailey. This is not the first time that I have served in Committee in front of you, and it has always been a pleasure.

This statutory instrument amends the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009, which regulate the transport of most dangerous goods in Great Britain by rail, road and inland waterway. The amendments made by this instrument strengthen our emergency preparedness and response arrangements for the transport of radioactive material and will bring Great Britain in line with the highest international safety standards. It implements the emergency preparedness and response requirements of the Euratom basic safety standards directive of 2013.

The instrument also contains provisions unrelated to emergency preparedness and response that were included to avoid the additional burden on parliamentary time of having three separate instruments relating to the transport of dangerous goods. One of these reintroduces provisions on the control of so-called volatile organic compounds resulting from the storage of petrol and its distribution from terminals to service stations. It corrects an unintended revocation of guidance for the design and construction of petrol tanks in respect of the control of such compounds. The other simply updates a cross-reference in the Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008.

Before I explain the changes in detail, it might be helpful, as a reminder to hon. Members, to say a few background words about the Government’s position in relation to the safety of radioactive materials. The safety and security of those materials on sites or in transport will, I hope it goes without saying, always remain the highest priority for Government. The UK has well developed emergency response arrangements and we are committed to taking account of international standards. It should be pointed out that the risk of a radiation emergency is extremely low and that risk has not changed, but robust arrangements must be in place for radioactive emergencies, however unlikely they may be. The directive that I mentioned gave the Government an opportunity to review and update Great Britain’s existing emergency preparedness framework in the light of the new internationally recognised safety standards, which build on work done by the International Atomic Energy Agency.

Although we will be leaving the EU and the Euratom treaty, the Government remain wholly committed to the highest standards of radiological safety. My Department held a joint consultation with the Ministry of Defence and the Health and Safety Executive on the changes made by this instrument. Last October, we published our response to the consultation, and I am happy to report that the proposals received broad support. Respondents recognised that the changes would strengthen Great Britain’s emergency preparedness and response arrangements for radiological emergencies. They welcomed the fact that the proposals align with IAEA best practice and the highest safety standards.

The amendments made by this instrument are as follows. We have broadened the definition of “emergency” to include risks to quality of life, property and the environment. That takes a comprehensive view of the effects of an emergency. We have also updated the principles and purposes that duty holders are to have regard to when drafting emergency plans, to ensure that the plans are flexible and proportionate. We are including in the regulations a definition of “emergency worker” and comprehensive requirements as to the training, equipment and medical surveillance that employees with roles under an emergency plan must be provided with. We are also expanding the requirement regularly to review and test emergency plans, including with a new requirement to take account of lessons learned from emergency exercises at national and international level.

For civil nuclear transport, the competent authority in Great Britain, which is the Office for Nuclear Regulation, will have a duty to provide information to the public about the nature and effect of a potential radiation emergency. This ensures that the general public have access to information about what to do in such an emergency.

The regulations will introduce a national reference level and require the carrier and consignor of radioactive materials to ensure that the emergency plan prioritises keeping radiation exposure below that level. The regulations also include a duty to provide a handover report to assist the transition from an emergency exposure situation to the recovery phase.

Part 2 of the regulations makes a technical update to a cross-reference in the Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008; and part 3 reinstates a previously revoked provision that implements an EU directive on volatile organic compound emissions resulting from the storage of petrol and its distribution.

The regulations will apply to England, Wales and Scotland; Northern Ireland will separately update its own version of the regulations with similar changes. The changes will affect all operators that transport radioactive materials by road, rail and inland waterway in Great Britain. The impact on business of the changes will be minimal. The main burden will be costs associated with familiarisation with the amendments and making any revisions to emergency plans. We calculate that to be a relatively minor, one-off cost. The other two changes included in the instrument—those on volatile organic compounds and trans-frontier shipment of radioactive waste—are purely technical and will not have any impact on industry.

In August 2017, the then Secretary of State for Defence agreed that although it is not legally obligated to, the Ministry of Defence will, where possible, comply with the emergency preparedness and response elements of the basic safety standards directive. Where Defence has exemptions, derogations or disapplications from applicable health and safety legislation, such as this legislation, it is committed to maintaining departmental arrangements that produce outcomes that are, so far as is reasonably practicable, at least as good as those required by UK legislation.

I look forward to hearing what hon. Members have to say about the proposed changes.

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It is a pleasure to serve under your chairmanship, Mr Bailey. I have to notify the Committee that the credit that I might have had for speaking briefly should be applied to my speech on the SI that we debated earlier. I will not be brief on this legislation, because there are really serious issues with it.

I appreciate the purpose of the legislation. Unlike with other SIs that we have debated, the purpose is not simply to transpose what was already in legislation to a circumstance in which we are no longer in the EU. Indeed, the SI that we talked about earlier was a straightforward transposition of material that had already been in legislation. It was simply a case of noting that we would no longer be a member state and therefore the regulations should apply in exactly the same way, but with those provisions.

This SI places certain elements arising from Euratom directives into UK legislation. In so doing, it makes a number of provisions that I think we ought to look at very carefully. Before we do that, I have to raise two particular concerns, one of which I think is probably fatal to the legislation as it stands. The first issue that I would like the Committee to at least note is that this is actually the second time that this instrument has been laid. An instrument was laid on 13 December and was withdrawn, and a second instrument, with precisely the same title, was relaid on, I think, 20 December. This is a very minor point, but there may be some confusion as to which version we are talking about today, because version 1 is still up on the internet. I hope that we have version 2 before us this afternoon.

If we compare version 1 with version 2, which is in front of us—the version that was relaid just before Christmas—we see that although there are minor changes, such as to a date in a piece of earlier legislation, there is also a major change. The first version stated that an impact assessment would be available, but in the second version there is no mention of an impact assessment. That has disappeared between 13 and 20 December. Was there ever an impact assessment? If there was, why was the second version of the SI amended to indicate that there was none, and if there was not, why was it referred to in the first version of the SI? There is a bit of a mystery there, and it is quite important: if there is an impact assessment, it ought to be before us today.

The second issue, which is far more procedurally serious, is that the SI makes an amendment to the Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008. The part of the SI that that amendment appears in is not a particularly crucial one, but it is nevertheless important: it places within the 2008 regulations an annex from Euratom regulations, which contains a variety of values that are important to our current proceedings. Members might ask, “What is the problem with that?” The central problem is that when we met last week to discuss the Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2018, we agreed to a change in those regulations—we all agreed to it; there was no opposition. That change, among other things, revoked the Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008, so we are discussing amending regulations that we have revoked. The transposition of that annex into the new regulation will have no force at all, because the 2008 regulations longer exist.

There are provisions about the amount of time over which revocation takes place, but I have consulted on this issue, and it appears the objective position is that we are trying to amend something that has been revoked, although it is not clear whether that affects the whole of the SI or only one part of it. In any event, we are seeking to put through on an unamendable basis a piece of legislation that is manifestly defective in its drafting. Mr Bailey, I seek your guidance as to what the procedure might be under these circumstances: whether we should go through with this statutory instrument—pass it through and out the other end, then think about it subsequently, knowing that we have passed into legislation something that is defective—or whether there are remedies available at an earlier stage in the process.

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My hon. Friend is raising a fundamental point about what we are doing this evening. Does he think it would be appropriate for the Minister to clarify on a point of order whether we are trying to amend something that does not exist, or whether the guidance that we have received from my hon. Friend—who is highly regarded in these matters, and who will have done his research—is in some way, shape or form in error?

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I call the Minister.

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I am not trying to flatter the shadow Minister, but I work with him a lot and listen very carefully to what he has to say. Usually, the answers to his questions are extremely complex and I have to do my homework to understand them. However, in this case, my recollection of last week—I will ask my officials for clarification—is that the Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2018 were for the event of no deal only. Therefore, I do not believe his point is relevant; perhaps we will discuss that, but that is my understanding. It is a very constructive and, I am sure, well-researched point, but I think it misses the no-deal point—heaven forbid there is no deal.

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The citation and commencement of the regulations that we passed last week stated that they will come into force on exit day, whenever that is. Although that is when the SI will come into force, the revocation applies from when it is made, so it carries forward into legislation. That does not alter the fact that, although another SI will come into force on exit day, we are seeking to amend something that does not exist. Both statutory instruments come into force on exit day, regardless of whether there is no deal or a deal, because they have been made properly through the parliamentary process. If we pass these draft regulations, that is what will happen.

I am grateful to my hon. Friend the Member for Poplar and Limehouse for his intervention. We ought to think very carefully whether we are able to proceed with these particular draft regulations, in the absence of a definitive view that, given what we know now, they are not defective and can be voted on and put in legislation.

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It seems to me that last week we debated draft regulations, but they have not yet been made. That is why, respectfully, I do not think the hon. Gentleman’s point is valid.

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Order. I have sought advice on this point, and my understanding is that we can proceed.

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If I may intervene again, Mr Bailey, I am certain that is the case, but if the shadow Minister wishes to have a meeting I will be very happy to put his mind at rest. It would involve going into details with lawyers and so on; I do not think I can do that now. Irrespective of what happens with the SI, I owe him that courtesy and will be very pleased to do that.

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I thank the Minister for that offer; I am sure I will take it up. Thank you, too, Mr Bailey, for your guidance on whether we could proceed. I thought we probably could. Nevertheless, what we will end up with will not simply fall because it is contingent legislation; when exit day comes upon us, it will be defective because it amends something that no longer exists and therefore has no force. At the very least, it will be necessary to consider whether further legislation needs to be put into place to correct that before exit day. That is the minimum I would expect under the circumstances. It cannot just be brushed under the carpet; it is a serious issue relating to the force of the proposed legislation. Obviously, if we sit together and knowingly make legislation that does not work, we can at some stage be held accountable for that. Therefore, we need to take the matter very seriously.

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If that were the case, it would be my responsibility and that of the Government, and not the responsibility of the hon. Gentleman, who has made his point very clearly.

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I thank the Minister. I personally take the view that we are all in this room together making this legislation and we all have an equal responsibility for making sure that it works, regardless of whether we are Members of the Opposition or of the Government. My comments are made in that spirit, not in the spirit of opposition, because I want the legislation to work as well as possible.

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rose—

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I have not yet come to the substance of what I am going to say, but I will give way.

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For the record, I accept that comment in the spirit in which the shadow Minister made it. I did not think for one moment that it was a political point. He has made a very valid point and I hope I have answered it, but I accept the fact and take responsibility for that.

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I thank the Minister for that point. I think I have voiced my concerns in the best way I can, so perhaps we should move on to discuss the rest of the SI.

My other substantive point is about the status of exposure to radiation. The regulations list two ways in which an emergency worker may expect be exposed to radiation. The Minister has rightly stated that the regulations include a central new element, which is the definition and identification of “emergency worker”. That is someone involved in the carriage of radioactive and hazardous materials—typically the driver of a vehicle that is transporting nuclear waste and other material. The expectation set out by the regulations is that the employer of that emergency worker has to ensure that they have the necessary information and training in the event of an emergency. The emergency could be one of a variety of things, such as the vehicle developing a leak or breaking down, or the danger of exposure to radiation, potentially as a result of an accident, and the emergency worker should have the training and knowledge required for such circumstances.

Regulations 8 and 9 set out the dose limits to which an emergency worker may be exposed—the limit that emergency planning should ensure is not exceeded. Regulation 9 focuses on reference levels and states that the dose should be kept below 100 mSv, which is the measure of radioactive intensity to which someone is exposed,

“or the emergency specific reference level if applicable.”

Regulation 8 states:

“Regulation 12 of the 2017 Regulations”—

meaning the overall limits—

“does not apply to an emergency worker, where that emergency worker…is engaged in preventing the occurrence of a radiation emergency; or…is acting to mitigate the consequences of a radiation emergency.”

It continues:

“An emergency worker may be exposed to an effective dose not exceeding 500mSv whilst they are undertaking the activities set out in sub-paragraph (1).”

We therefore have a picture of a general reference level of 100 mSv, although over what period is not specified—nor is the period that the 500 mSv relates to—which can be exceeded under the circumstances of an emergency being realised.

If members of the Committee are still with me, which I am sure they are, they will know that the reference level should refer to the Ionising Radiations Regulations 2017, which set out the maximum dose to which employees over the age of 18 should be exposed. For the purpose of regulation 12, schedule 3 to those regulations sets the limitation as,

“100 mSv in any period of five consecutive calendar years subject to a maximum equivalent dose of 50 mSv in any single calendar year”.

That is subject to exceptional circumstances. The normal anticipated dose for employees and trainees of 18 or above is 20 mSv in any calendar year. In using the definition of someone being an emergency worker, we appear to have substantially exceeded the reference levels set out for employees in the 2017 regulations.

Secondly, the instrument sets out that, in emergency circumstances where that level is understandably exceeded, if someone is engaged in preventing the occurrence of a radiation emergency—that is, if a lorry driver is really grappling with the circumstance that has arisen in that nuclear emergency—the level should not exceed 500 mSv. The Minister stated that that is in line with more recent IAEA guidance about restricting the exposure of emergency workers.

Indeed, the guidance in the IAEA regulatory arrangements is that the other values may be exceeded in emergencies and that the actual level is 500 mSv, but let us look at the circumstances under which that guidance applies. It states:

“This value may be exceeded under circumstances in which the expected benefits to others clearly outweigh the emergency worker’s own health risks, and the emergency worker volunteers to take the action and understands and accepts these health risks”.

That is classified under life-saving actions, or actions to

“prevent severe deterministic effects and actions to prevent the development of catastrophic conditions that could significantly affect people and the environment”.

The category is set out for Chernobyl meltdown-type arrangements, where someone, having been fully appraised of the circumstances, knowingly volunteers to put themselves in a life-threatening situation and literally puts their life on the line through life-saving actions or large actions to deal with a nuclear emergency and the environmental concerns that may arise from it.

Those are not the emergency worker arrangements set out in these regulations—the two do not match. Either the regulations have simply drawn the exposure values too highly, or they have not taken account of the circumstances under which those exposure values might be contemplated. In drawing up the emergency worker arrangements, the draft instrument never covers that particular point raised in the IAEA regulations. It simply mentions possible radioactive nuclear carriage emergencies for which someone could receive training. It does not state that they must agree to take the action or should understand those health risks, unless general training and action is somehow regarded as someone signing away their life and health on each occasion that they drive a nuclear truck.

The draft regulations are completely inadequate in dealing with the proper safety arrangements for people who transport nuclear materials, and actually open the door to a great deal more exposure for those people than I think any of us would regard as reasonable in such circumstances. I appreciate that there are circumstances of nuclear emergency where that exposure may be necessary in order to take action to deal with it. However, those circumstances are not laid out in the draft regulations. In coming to its conclusions, the IAEA envisages an entirely different series of circumstances regarding the possible level of exposure.

The draft instrument ought to be taken away and redrafted, not only for the reason I have suggested—because it does not work—but because it does not appear to have a firm grip on the circumstances, or the escalation of circumstances, that might be necessary to deal with levels of nuclear radiation exposure. Unless the IAEA guidelines are properly written into the draft instrument, we will simply allow various people to put themselves in much greater danger than they sign up for as emergency workers. We should not easily contemplate signing that away.

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It is a pleasure to serve under your chairmanship, Mr Bailey. I have a few brief questions. Paragraph 11.1 of the explanatory notes to the draft instrument says that the Office for Nuclear Regulation will publish guidance, following an informal consultation in 2019. Why will there be such a lag until it publishes that guidance, and why is it only guidance, not statutory guidance?

The following questions are probably more basic or high level and touch on what the shadow Minister outlined. Paragraph 7.3 of the explanatory notes tells of the national reference level of exposure being 100 mSv over one year. How was that exposure level defined? Why do the notes say that that is a cumulative exposure level over one year, yet the reference to one year is not included in paragraph 9 of the schedule?

How does the Minister see emergency plans working if there is a spike towards the end of that one year, taking workers over the 100 mSv exposure level? What guidance needs to be given or action taken if there are several spikes? For example, it is one thing to set the level at 100 mSv over a year, but what if there are a series of spikes of 30 mSv each at one time? That seems to me to be a more dangerous exposure than a 100 mSv exposure over one year. What cognisance has been taken of routine, year-on-year exposure to 100 mSv? It seems to me that a long-term, cumulative effect must increase the cancer risk associated with radiation.

As the shadow Minister touched on, why will emergency workers be allowed to be exposed to that massive spike of 500 mSv? Workers at Chernobyl were relocated at 350 mSv, so why are we saying that our emergency workers can be exposed to an even greater level than what happened at Chernobyl?

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It is a pleasure to serve under your chairmanship, Mr Bailey. I rise to make two brief points. The first is in respect of the concerns raised by my hon. Friend the Member for Southampton, Test and the hon. Member for Kilmarnock and Loudoun about dosage levels and exposure. The mention of measurements takes me back to the drills we carried out and the advice we were given during my time in the fire service. My hon. Friend, who has done his research about this measure, raised concerns about dosage levels, and that makes me concerned, too.

Secondly, I accept the Minister’s generous offer to accept responsibility should there be a problem with the basic nature of this measure, in the light of the discussion we had about whether it is valid. His integrity is well known. However, as silence is assent, we would have some responsibility were we to say nothing about it.

Therefore, on both those counts, were my hon. Friend the shadow Minister and my hon. Friend the Member for Blaenau Gwent—as our Whip, he is the other half of our leadership team—to recommend that we should vote against the measure, the Minister having failed to persuade them otherwise in his winding-up speech, I would feel obliged to follow their recommendation.

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I thank the hon. Members for Southampton, Test, for Kilmarnock and Loudoun and for Poplar and Limehouse for their contributions. I will try to deal with the majority of their points.

I certainly respect the point made by the hon. Member for Poplar and Limehouse that the Opposition may feel it necessary to vote against the measure because, as the shadow Minister argued, it is invalid because it is contradictory. I fully respect that point, particularly given the Whip’s guidance. As you will know from your long parliamentary experience, Mr Bailey, one tends to do what Whips advise one to do, and that is particularly true in the case of the hon. Member for Blaenau Gwent. I will try my best briefly to dissuade them.

First, I will try to put to bed the point about the impact assessment, which was mentioned in the first version of the draft regulations but not in the second version. I think the difference was between the versions published on 13 December and 20 December. The decision was taken not to carry out an impact assessment simply because it was viewed as de minimis. There is a de minimis threshold of £5 million. The instrument makes no changes that would involve a significant impact on business, charities, voluntary bodies or the public sector, so we decided not to carry out an impact assessment. That was quite within the rules. I apologise for the confusion, but we had to take a decision, and that is what we decided. Hon. Members may disapprove of that, but there is no impact assessment because the impact is de minimis. It is not the case that there was one and we did not like it so we thought it should be hidden.

I think I answered in interventions the point about contradictions in the legislation. That may or may not be acceptable to the Opposition, but there is no point in my repeating it.

I turn to the point about dose limits for emergency workers’ exposure to radiation. I think everyone shares the intention of ensuring that that does not happen, but if it does the rules are very clear. The whole thing really is very complicated. It is certainly true that planning for an emergency scenario is very different from planning for a normal work scenario. The 500 mSv limit applies only in the circumstances set out in paragraph 8(1)(a) and (b) of the schedule. I do not think the IAEA was thinking only of catastrophic scenarios; I think it was generally allowing for lawful exposures with the intention of reducing harm. That is a very relevant point, but it is very complicated.

I am afraid I gave up physics at the age of 16, for the very good reason that I had failed my exams in it, but the dose limits in the Ionising Radiation Regulations 2017 apply generally to work with radiation. Paragraph 8(1) of the schedule disapplies them in the case of an emergency, because they could cause the employer to commit a criminal offence in dealing with such emergencies. That is why it sets a reference level appropriate to emergencies.

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I have given my speaking notes to Hansard, so I have to do this from memory, but does the Minister consider that the regulations as they stand give effect to what is in the IAEA definition of exposure to radiation—the knowledge and understanding that is required, and the informed consent that must be given if that high level of radiation is to be permitted under those circumstances? I cannot see anything in the regulations that says that, and I would be interested if the Minister could point me to anything in the regulations that requires that informed consent to be provided for under those circumstances, as is set out in the IAEA regulations.

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I consider my response satisfactory and I am prepared to write to the hon. Gentleman on the specific point he brought up. He did very well without his speaking notes.

Returning to the 500 mSv reference level, it transposes an EU directive and brings us into line with international standards. Those might not be the right standards, although we think they are, but it is certainly absolutely in line with them. It is meant as a reference level for planning purposes, and reflects an upper limit. It does not mean that that level is acceptable or normal, but it gives an upper limit. The goal in any emergency plan is, of course, to minimise exposure—that is the whole purpose of the draft regulations—but regulations must set a ceiling, and the definition of an emergency would include doses far below that level.

Repeating the point that the hon. Member for Kilmarnock and Loudoun, the SNP spokesman, made, the levels are intended to apply to an emergency situation. Any operator regularly exposing the public to nuclear emergencies would face other sanctions from the appropriate authorities. It is not just these draft regulations that would be relevant in such a case.

I hope that I have explained the points that were brought up by Opposition Members. Despite those points, I certainly in every way commend the draft Carriage of Dangerous Goods (Amendment) Regulations 2019 to the Committee.

Question put.

Division 1

28 January 2019

The Committee divided:

Ayes: 9
Noes: 8

Question accordingly agreed to.

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Resolved,

That the Committee has considered the draft Carriage of Dangerous Goods (Amendment) Regulations 2019.

Committee rose.