Motion to Take Note
My Lords, the issues that I want to raise are set out in the Merits of Statutory Instruments Committee’s 25th report to the House of 22 July this year. I am a member of that committee.
In its report, the committee drew the Environmental Noise (England) (Amendment) Regulations 2009 to the special attention of the House on the grounds that this instrument is politically and legally important. It is important because it inserts an ambulatory reference into the 2006 environmental noise regulations by exercising a power contained in the European Communities Act 1972, as amended by the Legislative and Regulatory Reform Act 2006. The power to create ambulatory references was drawn to the special attention of the House by the Delegated Powers and Regulatory Reform Committee during the passage of the Legislative and Regulatory Reform Act 2006.
While the power has been used by a number of departments in relation to technical amendments to EU legislation, the use of the power in the instrument that we are considering is the first time it has been used, of which the Merits Committee is aware, when it could allow for substantive changes to an EC directive to be directly applicable to this country. That is because Regulation 3(3) of the Environmental Noise (England) (Amendment) Regulations 2009 adds at the end of the definition of “Directive” the words,
“as amended from time to time”.
The Explanatory Memorandum that accompanied this instrument referred to the effect of this by saying in paragraph 7.6:
“There is a possibility that there will be changes to the”,
EC directive relating to the assessment and management of environmental noise,
“in the future, such as the updating of technical annexes or the possibility of other changes … This change will remove the need for further amendments to the Regulations if the Directive is changed”.
A subsequent note from the Department for Environment, Food and Rural Affairs confirmed that it was conceivable that this ambulatory reference could cover substantive matters which might impact on costs for public authorities and the timescales over which actions are required to be taken. In other words, Defra confirmed that the scope of the ambulatory reference in this instrument would not be confined to amendments of a technical nature.
Adding this ambulatory reference to the 2006 regulations means that some future changes, including significant ones, to the EC directive on environmental noise could be directly applicable to the UK, whereas previously an amending statutory instrument, subject to parliamentary procedure, has been needed to implement any changes to the directive.
The Select Committee on the European Union has also raised a general issue of concern about ambulatory references and the fact that a statutory instrument may be used automatically to implement future amendments of an existing EC directive. The committee pointed out in a letter to the Minister for Europe that the absence of further domestic legislation to implement an amending directive meant that there would be nothing in domestic law for the Merits Committee of the House to scrutinise. As a result, this would render the initial scrutiny of EC instruments undertaken by the EU committee even more important, as it would be the only opportunity for parliamentary scrutiny in these cases.
Following consideration of the Environmental Noise (England) (Amendment) Regulations 2009 by the Merits Committee, a letter was sent to the Minister of State at Defra, Jim Fitzpatrick MP, by the noble Baroness, Lady Maddock, setting out the concerns of the committee about the breadth and significance of the ambulatory reference in this instance. In his reply of 8 October, included in the Merits Committee’s 27th report published on 22 October 2009, the Minister of State set out the reasons why the department had not limited the ambulatory reference to purely technical changes or, alternatively, to certain defined areas of the directive. However, the Minister concluded his response by saying that, having considered the Merits Committee’s concerns as set out in its report, in this case the department had decided that it would be preferable to limit the ambit of the ambulatory reference to the technical aspects in the annexes to the directive, and that it intended to amend the regulations to that effect.
I want to raise some points in the light of that response from the Minister of State at Defra. In his response, he pointed out that the scope of paragraph 1A of Schedule 2 to the European Communities Act 1972 was not limited to technical amendments but could apply to amendments when the department considered it necessary or expedient. I am of course aware that there is an agreed Whitehall position on ambulatory references since it is set out in the Merits Committee’s 25th report, published on 22 July 2009. That position statement says that to minimise the risk of any unintended results, departments are asked to note that the ambulatory reference can apply only to certain sections or parts of a Community instrument such as an annexe, which does not appear to have been the case in this instance.
It also says that care should be taken before the power to make ambulatory references is used because of the effect that an ambulatory reference may have, as it will catch all future amendments to the Community instruments and not just technical ones. Such future amendments, says the agreed Whitehall position statement, may be significant and may not necessarily be foreseen at the time of making the ambulatory reference. I do not know whether the welcome change in Defra’s stance reflects a doubt on whether this part of the agreed Whitehall position was initially given as much weight as it might have been. It would be very helpful if my noble friend could indicate whether the initial Defra position on the breadth and significance of the ambulatory reference in the Environmental Noise (England) (Amendment) Regulations 2009 was in line with the agreed Whitehall position as set out in Appendix 1 of the 25th report of the Merits Committee.
It would also be helpful if my noble friend could tell us the Government’s stance on ambulatory references of the breadth and significance of the one that we are discussing in the light of the concerns expressed by the Merits Committee and the welcome change of view by the Minister of State at Defra. Finally, can my noble friend give some assurances that since effective parliamentary scrutiny is more important than administrative convenience, we will not see from any department any further ambulatory references that in the words of the current agreed Whitehall position will catch not just technical amendments but all future amendments to the Community instrument in question, which may be significant and may not necessarily be foreseen at the time of making the ambulatory reference?
My Lords, I thank the noble Lord, Lord Rosser, for introducing the debate and note that the members of the Merits Committee were indeed right back in the summer to review the lack of definition in this Government proposal. I have some serious concerns and questions which I hope the Minister will be able to address.
I wonder whether the Government have considered any other ways of implementing these regulations which I note affect only England. For example, are the authorities in the devolved areas making changes? If so, do those changes follow exactly in all respects the ones being proposed for England? If not, in what respects do they differ? In particular, will the devolved Administrations amend the definition of “directive” precisely as proposed here?
The Merits of Statutory Instruments Committee has drawn attention to the effect that the proposed Regulation 3 change to the definition of directive will have. It suggests that any change to the European directive will be passed straight into English law without Parliament having any opportunity to debate it. In relation to the committee’s concerns, Defra commented that if,
“an ambulatory reference brings in a substantial change in the law it is good practice for the responsible department to publicise it”.
In view of the amount of bad practice demonstrated by Defra and its agencies—I am thinking of the Rural Payments Agency and Pirbright over the past few years—that statement comes into the “You cannot be serious” category. There is no certainty that such a law change will be known to all but a few and no chance that it can be democratically challenged.
Defra also commented in reference to the ambulatory reference that,
“it is conceivable that it could cover substantive matters which might impact on costs for public authorities”
It is surely relevant that these costs will have to be met by the taxpayer and it is wrong to refuse Parliament the opportunity to discuss the implications. Can the Minister tell the House the implications for resources—personnel and the like—and costs in general? What is the timescale against which they will be incurred?
The Explanatory Memorandum to these regulations states that the directive aims to determine exposure to environmental noise through noise mapping. So far, mapping covers 23 agglomerations—major roads, major railways and major airports. Is it envisaged that noise mapping will cover noise sources only from urban areas or those installations affecting a large area of land, or will it expand to cover smaller areas, for example, villages or hamlets? After all, noise disturbance can be particularly distressing in rural areas. Will Regulation 5 result in a wider dissemination of the location of quiet areas? Is Regulation 6 a response to the failure so far of the Government to attain the targets laid down in the existing regulations? Did the Government meet the September 2007 deadline and if not, where did they fail? There are no time limits set in the proposed Regulation 6, so what is the Government’s timetable for laying down the limit values or other criteria that will determine action plans? How long will it then take to produce such plans?
The use of criteria to determine eligibility for anything can lead to serious errors. How will these criteria be assembled, discussed, implemented and reviewed, by whom and at what intervals? These regulations could have far-reaching consequences. Not only are important elements of our constitutional checks and balances affected, there is a real danger that it will set hares running and costs escalating with no parliamentary accountability.
I repeat that I am grateful to the noble Lord, Lord Rosser, for giving us an opportunity to challenge their introduction, and indeed for educating me and, I hope, the wider world, of the significance of ambulatory references. It also gives the Minister a chance to explain what the Government are up to.
My Lords, I congratulate and thank the noble Lord, Lord Rosser, on initiating this short debate. It is extremely important that this matter is discussed on the Floor of the House and that the issues involved are put on record. I agree with the noble Lord, Lord Taylor; I am not sure how many of us had ever heard of ambulatory references before this came up or, in the case of some of us, before we started to research for this little debate two or three days ago. As always, at the end of the week, I will go home, and they will ask, “What have you been up to down there?”. I will say, “We’ve been causing the Government grief”. They will say, “Great! What about?”. I will say, “Ambulatory references”, and they will look at me as though I am mad. However, joking apart, this is an important matter because it is about the right of Parliament, and this House in particular, properly to scrutinise legislation that derives from European directives. The Merits Committee has done the House a service in looking into this matter, identifying it and raising it, as has the European Committee. We should be grateful to the noble Lord, Lord Roper, and my noble friend Lady Maddock for taking it up directly with Defra Ministers on behalf of those committees and pursuing it so actively.
I do not want to add anything very much to what the noble Lord, Lord Rosser, has already said about the real issue. His explanation was admirable in making a difficult, technical and quite obscure issue very clear. I thank him for that. The important matter is how far these ambulatory references—which mean that once a European directive and the amendments have been agreed, it goes straight into English law rather than having to come through as a statutory instrument—can be properly scrutinised. The noble Lord set that out admirably.
I read all the correspondence from Defra Ministers, but I did not understand half of it. I came to the view, which I always come to, perhaps slightly arrogantly, that if I cannot understand it, some of it must be gobbledegook. I suspect that gobbledegook is the wrong word, but the arguments that have been put forward and are set out in the two reports from the Merits Committee are a little obtuse, to put it mildly. When I come across the word “expediency”, I am always a bit dubious, as the noble Lord, Lord Taylor, knows from our discussions on the marine Bill. The word “expediency” seems to be an excuse for bureaucrats to put things through without going through proper procedures, due process or proper scrutiny. That appears to have been the situation in this case.
The noble Lord, Lord Taylor of Holbeach, widened the discussion to cover the substantive issues in these regulations. I wondered whether we should do that today and came to the view that we should not, although they raise a number of interesting issues about how this directive has been transposed and how it will be carried out. Some of us will certainly want to look at this as time goes on to see what happens because it seems to have all the hallmarks of a system that might be quite expensive and bureaucratic and result in very little in practice. However, that is for another day.
Today, we should say the fact that we are having this debate and that Jim Fitzpatrick, the Minister of State at Defra, has agreed that the regulations should be amended to remove the part of the ambulatory reference that we find offensive is a victory for the scrutiny system of this House. I do not think that we should think that we should not stand up and say that. In particular, this is a vindication, yet again, of the setting up of the Merits Committee, which is one of the greatest procedural things to have happened while I have been a Member of this House.
Jim Fitzpatrick’s letter promises amending regulations. He writes:
“having considered the Committee's concerns as set out in its Report, in this particular case the Department is now persuaded that it would be preferable to limit the ambit of the ambulatory reference to the technical aspects in the Annexes to the Directive. We propose to amend the Regulations so as to limit the ambit of the ambulatory reference to technical matters contained in the Annexes to the Directive”.
I do not think those amending regulations have yet been published. One further question to the excellent questions that the noble Lord, Lord Rosser, posed is: when can we expect that the amending regulations will be published?
My Lords, I thank the noble Lord, Lord Rosser, for taking me into constitutional and procedural waters wherein I have never before paddled. I do not think that I am of such learning that I could improve on the questions about the ambience of ambulatory references that my noble friend Lord Taylor of Holbeach has already put to the Minister in his characteristically crisp and forensic way. However, we have the order at large in front of us this evening, and I am, apart from the noble Lord, Lord Rosser, the sole representative of the ordinary Back-Bench Peer in the street to speak this evening. I know that Front Benchers like the noble Lord, Lord Greaves, seek to limit the debate, but I think it is terribly important that we look at the substance of the regulations that we have in front of us and do not bow to the pressure from the Liberals to limit ourselves in speaking across the wider range.
I speak only where my pay grade takes me. It does not take me into constitutional waters, but it does take me to read the statutory instrument, which is shot through with a number of issues. I have examined these regulations, so let me give some context from the point of view of concern over the quality of life for our citizens in England and how it can be improved. One damaging aspect of the way we live and consume now is the production of sometimes nearly unbearable, often very disturbing, noise. Another example is the parallel problem of overlighting and the consequent pollution of the night sky. Light and noise pollution are twin scourges, but tonight we are concerned only with noise pollution and its abatement.
I also speak as someone who does not like the burden of regulation—exactly like my noble friend Lord Taylor of Holbeach on the Front Bench—and who recognises that the political zeitgeist is moving away from targets and performance tables to more localism in decision-making. In truth, both are necessary preconditions for good government; it is just that finding the golden mean between the two is very hard.
That said, I turn to the details of these regulations. Like my noble friend Lord Taylor of Holbeach, I welcome the use of mapping in this context. The production of consolidated noise maps is sensible and to the public good. Where I differ from the Government and these regulations is that I do not agree that there should be a replacement of a duty to produce them with a mere discretionary power. That is dangerous. This change from a duty to a mere discretionary power does not diminish the weight of regulation in terms of numbers, but just changes and devalues the potential efficacy of the regulations. This is something that I hope the Minister will give some attention to in his wind-up speech. I believe that the substitution in these regulations—the replacement of a duty to produce maps and guidance with a discretionary power—is likely to set back the assessment and management of environmental noise in England and, I dare say, in the devolved legislatures, if they are going down the same route. Indeed, the local or national political acceptance of every new major road, rail link or road link will depend on noise management in future, which in turn, I recognise, always depends on financial constraints. My noble friend Lord Taylor of Holbeach and I are at one on this in that we do not wish to see excessive government expenditure any more than we wish to see excessive government regulation. The regulations before us tonight do not remove regulations; they simply alter them and, I think, devalue them.
It is interesting to note in my own part of the West Country how happy people are living in housing, old or new, near roads on which sound-deadening surfaces have been laid—for example, on the A303 trunk road—compared with roads where traditional, noisier road metal is still the norm. Action near the worst noise-affected areas is urgently needed, although only as and when resources allow. I am therefore most concerned about Regulation 30, which gives the Secretary of State a general power to produce guidance in these cases and replaces the excellent existing duty in Regulation 14(1) of the 2006 regulations.
I recognise, after a deep reading of these regulations, that the Secretary of State is the competent authority for producing action plans for quiet areas near the agglomerations, roads and rail links to which my noble friend Lord Taylor of Holbeach has already referred, and that someone might therefore suggest that the Secretary of State should not be burdened by the duty of preparing guidance for herself or himself. I know that the Minister would not fall for that argument for a moment; I know that he is much too clever to attempt to run such a specious and intellectually derelict argument in any circumstances to justify this change in the guidance. I put it to the House that if guidance is not a duty on the Secretary of State, it is highly unlikely to be produced at all. In these respects, the regulations are no more than what that great parliamentarian the noble Lord, Lord Healey, called in another place “a spiffing wheeze” to get out of doing anything much at all, because it is now simply a power and not a duty.
I would be happy to bet the Minister—he has sometimes been a betting man in the past—that no such new quiet areas will be produced before the next election if the word “duty” is substituted by “power” under the regulations, but I hope that he will assure the House otherwise.
My Lords, I am grateful to all noble Lords who have participated in this most interesting debate, which, because the regulations deal with a minor constitutional matter, looked as though it might involve excessively limited detail but which expanded, under the guidance of my noble friend Lord Rosser in his opening speech, into consideration of a real issue to which the Merits Committee has drawn attention. I pay all due respect to that committee for its work in this area and to the way in which my noble friend Lord Rosser has advanced its arguments and concerns in this debate this evening. I also congratulate all the other speakers, to whom I hope I will be able to give some satisfactory answers in a moment, on the way in which they expressed their concerns about these issues. I hope that their concerns can be allayed, because there were moments when I thought that perhaps Defra was being accused of the most extraordinary constitutional outrage of seeking to conceal for all time activities that should properly be the concern of Parliament and of a sleight of hand.
I assure noble Lords that although the term “ambulatory” is new to many of us—I cannot pretend that I have been familiar with it in primary or subordinate legislation, any more than anyone else has been who has spoken in this debate; we have been obliged to learn it over the past few months—the issue of the ambulatory references does not carry quite the weight that it has been suggested it carries; they present no real constitutional difficulty. They do, however, need to be explained, and I very much want to elaborate on our response to the committee in a letter from my honourable friend the Agriculture Minister.
I shall seek to allay concerns about the breadth of the reference in Defra’s proposal to amend the regulations. We are actually talking about a very narrow perspective indeed. In the Minister’s letter to the noble Baroness, Lady Maddock, who chaired the committee, he said that we will amend the regulations to limit the ambulatory reference to the technical matters in the annexe to the directive. That is our clear and significant response to the committee’s concerns.
The noble Lord, Lord Patten, referred to the guidance with great anxiety. The internal Defra guidance will be issued to ensure that Explanatory Memoranda explain the scope and impact of any ambulatory reference in more detail so that we are all clear about what exactly is being put forward under this framework.
Why the concept of ambulatory references? It is extremely useful for the department. The noble Lord, Lord Greaves, gave the classic parliamentary response when he said that the word “expedience” makes his parliamentary hair stand on end, but it is not a damaging word in itself. Governments need expedience and to follow expedient strategies. After all, we are talking only about efficiency, effectiveness, and therefore cost-effectiveness, in the work that is done. The power to make ambulatory references, which is useful, relates to the substantial amount of European legislation that Defra must inevitably implement.
My Lords, the Minister very courteously referred to me a little earlier. I want to be absolutely certain that I am at one with him. He says that the Secretary of State for Environment, Food and Rural Affairs has the power, but that just enables him to do what he or she chooses to do. He or she has no duty to draw anything to the attention of this House, because the duty is being removed in these regulations and is being replaced by a power. That was the poor substance of my poor speech.
My Lords, I hope that the noble Lord will give me the opportunity to develop the argument a little further. I wanted to emphasise the very limited framework within which the Secretary of State’s power is defined. Inevitably, when directives are issued, it is important that we keep our own legislation up to date with changes in European legislation. If we fail to do so, we risk being found guilty of infraction by the Commission, which could subject us to significant fines. The power to make these ambulatory references was introduced to make it easier to keep our legislation up to date without having constantly to amend it. After all, where the amendments are small and technical, it would not be appropriate to increase the inevitable legislative burden on Parliament when the changes are not the source of any considerable political interest. Being the continuation of a policy that we are already signed up to with regard to the legislation following from the European directives, we therefore need these minor emendations. The subject of these regulations is a clear illustration in point. The noble Lord, Lord Patten, referred to what might be the burden of the regulations, whereas other noble Lords have stayed specifically with the question of the power.
I was grateful to the noble Lord, Lord Patten, for that because the regulations are about environmental noise. We all recognise that noise can cause serious disturbance and annoyance to people. There is emerging evidence that longer term exposure to high levels of noise can cause direct health effects. The Government also recognise that that has to be balanced against the obvious fact that noise is an inevitable consequence of our evolving society and that any measures we take to tackle noise have to balance the importance of trying to keep noise at as low a level as possible, but with the inevitable economic and social benefits that can accrue from the activity which causes noise. That is a constant factor of the situation we face.
The Government’s policy on noise is to promote good health and good quality of life through the management of noise in the context of sustainable development. We are doing that to avoid significant adverse effects on health and quality of life, and to mitigate and minimise such adverse effects. Successive Governments have addressed the effects noise causes over the years and we are aware that we need instruments of effective management. Under these regulations, the action plans are determined to see what can be done in those places worst affected by noise, but within the context of sustainable development. So we need to address that issue.
We operate within the framework of a European directive. All that is being sought with regard to the ambulatory reference is that it applies to environmental noise. This aspect applies in response to the noble Lord, Lord Taylor, who raised this issue. The noble Lord, Lord Greaves, and my noble friend Lord Rosser also made reference to how much this affects the United Kingdom. This ambulatory reference involves England only. The devolved Governments and Assemblies make their own decisions, but this power and the subject of consideration this evening are regulations which apply to England only.
My Lords, on a point which follows from that, I asked whether the Minister could inform the House of the arrangements that the devolved authorities are making. It would be interesting to see if they are following the same approach or whether they have a different approach. We can learn from the devolved authorities, which may take a view of democratic control that is different from the expediency advocated by the Minister.
My Lords, we do not have a great deal to go on yet, except that none of the devolved Assemblies has pursued the ambulatory route thus far. These are the first regulations to be applied under these terms. As the committee rightly identified, and my noble friend Lord Rosser exemplified in his speech, one of the reasons that the committee was so concerned about this issue was that it was the first to come to its attention against a background where quite clearly the concept of the power in relation to European directives can and does apply across a range of government departments. We are dealing with the first of its type, which is why I am profuse in my congratulations to the committee and to my noble friend on their sharp analysis of this position.
The real nub of this debate is the ambulatory reference. In his opening speech, my noble friend Lord Rosser identified the key issues, which the noble Lord, Lord Taylor, embellished. I will seek to address myself in due course to the details which he raised, but I want to get on to the three main points of the debate and the committee’s concern, which were exemplified by my noble friend. Towards his conclusion, he directed three specific questions. He asked about the breadth and significance of the ambulatory reference and whether it was within an agreed Whitehall position. As the Minister in the other place made clear in writing to the chairman of the Merits Committee, we set out in detail the potential consequences of the ambulatory reference in the event that the directive is amended. The unintended results arising from the reference were considered to be minimal. We did and do think that our approach is no departure from the agreed Whitehall position. I assure my noble friend and the House that when Defra was acting in these terms, it sought to act within the framework of the agreed Whitehall position across government departments with regard to the use of the ambulatory concept.
My noble friend also asked me to indicate the Government’s stance on ambulatory references of the breadth and significance of the one we are discussing in the light of the concerns, which he rightly reflected, from the Merits Committee. We do not think that there is any change from the agreed position. Care must be taken when using the power. Departments should note that ambulatory references can apply to only certain sections or parts of a community instrument in order to minimise the risk of unintended results. This will operate within a narrow framework, within which Defra and my department are working, which is common across Whitehall.
The third question put by my noble friend was whether we are likely to see any further ambulatory references that, in the words of the current agreed Whitehall position, will catch not just technical amendments but all future amendments to the Community instrument in question that may be significant and not necessarily foreseen. I am in a difficult position on this. I have indicated that the department has taken care to see that it is in line with the Whitehall position, but I would have difficulty trying to speak on behalf of the whole of Whitehall. I can speak on behalf of the department I serve directly, but it is more difficult to do that for the practices of other departments. However, it is not unreasonable to expect that all government departments will adhere to the agreed Whitehall position as I have described it whenever they consider issues of ambulatory references.
So far as Defra is concerned, each statutory instrument is to be considered on a case-by-case basis. As the noble Lord, Lord Taylor, indicated, there are real resource implications in keeping transposing legislation up to date with changes in European law, and this is one of the reasons why the power to make ambulatory references was introduced in the first place. I therefore have difficulty giving assurances that limit other departments from being able to use the power appropriately and efficiently on a case-by-case basis, but that is exactly the position which the department is establishing. I want to emphasise that, first, the instrument relates solely to England; secondly, we do not have illustrations of any kind of ambulatory use by the devolved Governments; and thirdly, I cannot bring any other department to bear on this issue at present because we are the first in the field. It is not surprising that Defra should be first, not because the department is unnecessarily seeking the limelight but rather that it is in the nature of the activities it covers that, inevitably, European directives will play an important part in them.
I want to respond to some of the specific questions put to me by the noble Lord, Lord Taylor. He asked what amendments were made to the 2009 regulations and how compliance with the amendments will be guaranteed. Failure to comply with any obligations is a breach of statutory duty. The department is bound to comply with these requirements, and that is why we have to act with care in relation to the positions. The legislation can be amended from time to time, but such legislation often contains cross-references to other statutes. When transposing European legislation into UK law, it is common to refer to a European directive in our domestic legislation. An ambulatory reference means that the reference is to the directive as it may be amended from time to time. I assure the House that we recognise the significance of the point that use of the ambulatory approach would not be appropriate where one was involved in issues of substantial policy changes to legislation; it is merely and largely a means by which technical changes made in Europe that we have to take account of in our legislation can be effected. We would not always want to introduce secondary legislation to do this, but naturally we are concerned to communicate such changes effectively.
The noble Lord, Lord Taylor, also asked about progress on maps and their extent. The directive requires the next round of mapping to include agglomerations with over 100,000 in the population and sets a threshold for major changes such as those required for railways, for example. The requirement already appears in the existing regulations. The noble Lord, Lord Greaves, asked when the amending regulations will be published. We will do this as soon as possible, and certainly it is expected that they will be available by the end of the year.
The noble Lord, Lord Taylor, also asked whether the amendments could cover substantive amendments that might have resource implications. Those implications are set out in five-yearly time limits in the directive. In other words, the allocation of resources is clearly identified and any amendments to the directive with resource implications would of course be the subject of very considerable negotiation. British officials would be involved in such negotiations and Ministers would take an interest. If the outcome were significant, then in fact the whole reference to the ambulatory approach would not be appropriate because we would be talking about substantive issues. I concede to all noble Lords who have emphasised the fact that this exercise of power to keep up to date with European directives must inevitably be on a very limited scale; it cannot involve significant changes to resource allocations—which, as noble Lords have emphasised, are the responsibility of Parliament—and the obligation on Ministers to inform Parliament when they are involved in activities of that kind.
I hope it will be recognised that the department has not acted in an improper way with regard to this exercise. It is the first in the field and is identifying an approach to European legislation that merits a degree of close scrutiny, which we have identified this evening. I emphasise that we are dealing with minor matters derivative from European legislation. Anything that developed from the directive which had significant resource applications would not come within the framework of this approach. I hope noble Lords and, in particular, my noble friend Lord Rosser, will feel reassured by the arguments I have put. I hope that he, in feeling reassured and having highlighted the importance of the issue, is able to withdraw his Motion.
Does the Minister accept that no one in the House is objecting to or complaining about the ambulatory references to the technical matters? That is not the issue. The objection is to a substantial matter that has been identified by the Merits Committee and the European Union Committee. When the Minister proudly says that Defra is first in the field with this, we hope that, having been forced by the pressure of scrutiny into withdrawal and coming up with alternative regulations, it will be the last in the field. Does the Minister understand that?
My Lords, I mentioned earlier that I am not in a position to speak on behalf of all departments. I recognise that Defra has had a difficulty with this issue and that we have communicated with the committee and indicated our approach to it. I am not in a position to suggest that the ambulatory approach is inappropriate in all circumstances. In fact, given the nature of European directives and the absolute necessity of keeping up to date with them, it is entirely appropriate that a government department may use this approach from time to time. I am giving assurances on how limited those opportunities are bound to be.
My Lords, I thank my noble friend for his reply and all noble Lords who have taken part in this brief but important debate. It has raised serious questions about the level of parliamentary scrutiny—or, frankly, the lack of it—which can result when ambulatory references appear of the breadth and significance of that within the Environmental Noise (England) (Amendment) Regulations 2009. As has been said, that is the issue. It is not about ambulatory references being used simply in relation to technical matters; it is about when they are used to cover much greater breadths and issues of much greater significance.
The further information from the Department for the Environment, Food and Rural Affairs states:
“The agreed position is that care should be taken before the power to make ambulatory references is used. This is highlighted because of the effect that an ambulatory reference may have and that it will catch all future amendments to the Community instruments, and not just technical ones”.
It then goes on to state—these are the department’s words in the letter it sent to the Merits Committee—
“Such future amendments may be significant, and may not necessarily be foreseen at the time of making the ambulatory reference”.
So the issue is the way in which they are used and the breadth and significance of them, which has been highlighted in the regulations that we are discussing today.
Reference is made in the further information from the department to the fact that some of the consequences may not necessarily be foreseen. There are also references to unintended results. By definition, if you are talking about unintended results and something might not necessarily be foreseen, it is difficult to say that you have looked at it and decided that the impact in that regard is minimal. How can you decide it is minimal in relation to something described as an unintended result or something that might not necessarily be foreseen?
I am grateful to the Minister for his reply. He went into considerable depth although, as he said, he was not able to give the full assurances that were being sought that we would not see further ambulatory references of the breadth and significance that we have been discussing in this debate, and on which the department concerned has had welcome second thoughts. The issue is parliamentary scrutiny and the recognition of it being more important than administrative convenience or—another word that has been used this evening—expediency.
I hope that your Lordships’ House, particularly the Merits Committee, will continue to keep a close watch on the way that ambulatory references are used and will not hesitate to raise concerns with the Ministers and departments involved if further ambulatory references of such breadth and significance appear again.