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

Volume 795: debated on Tuesday 12 February 2019

Motion to Approve

Moved by

My Lords, in line with the European Union (Withdrawal) Act 2018, these regulations make technical, legal amendments to maintain the effectiveness and continuity of UK legislation that would otherwise be left partially inoperable. The regulations will also, where appropriate, prevent the otherwise automatic incorporation of EU legislation into our national law. The SI presents no changes of policy.

The regulations consist of three main components. The first set of amendments, in Part 2, are to three environmental Acts: the Environmental Protection Act 1990, the Environment Act 1995 and the Pollution Prevention and Control Act 1999. Because these regulations amend primary legislation, they have undergone additional legal scrutiny by the Office of the Parliamentary Counsel.

Regulation 2 amends the Environmental Protection Act 1990. This Act contains references to the UK’s obligations under EU law, which will no longer work legally after exit, and we are replacing them with references to “retained EU law” and “retained EU obligations”.

Regulation 3 amends the Environment Act 1995 and makes similar amendments to those in Regulation 2. It also includes adjustments to powers in the Act to make directions and regulations for the purposes of implementing EU law, so that they can instead be made for the purposes of retained EU obligations following exit. There are also amendments to the power for appropriate agencies—for instance, the Environment Agency, the Natural Resources Body for Wales or the Scottish Environment Protection Agency—to impose charges in relation to retained EU law.

Regulation 4 amends the Pollution Prevention and Control Act 1999 and makes similar amendments to those in Regulation 2. It also adjusts the power in the Act to make regulations under Section 2 of the Act for the purposes set out in Schedule 1 to the Act. That power can currently be used in relation to EU directives, which Ministers designate from time to time. Regulation 4(3) removes this power to designate but lists the directives which have already been designated, preserving our existing ability to change and improve the relevant environmental regulations. If we did not do so, the reduction in the scope of the power could mean that we would have to use primary legislation to make the necessary changes to maintain and update environmental standards.

Part 4 of these regulations addresses existing directions and regulations made using powers under the Environment Act 1995. We are providing for them to continue for what will be domestic purposes. This will ensure, for example, that the recent air quality directions to English local authorities, requiring them to prepare local air quality plans, remain in force.

Part 3 of these regulations makes amendments to three cross-cutting environmental statutory instruments: the Contaminated Land (England) Regulations 2006, the Environmental Noise (England) Regulations 2006 and the Environmental Damage (Prevention and Remediation) (England) Regulations 2015. These instruments make similar references to EU law to those made in the Acts I have already mentioned, and for the same reason need to be amended. The instruments apply to England only; devolved Administrations are addressing separately any similar issues in devolved legislation. The amendments in these regulations make no changes to policy and these instruments will continue to operate substantively as they do now.

There is a type of EU legislation that is directly applicable. This is law that applies in the UK without any further legislation by our Parliaments, and includes EU regulations and decisions. These will automatically be brought into national law by the European Union (Withdrawal) Act, as part of retained EU law. In some cases, however, that is not 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—or the EU’s Ecolabel scheme. Existing EMAS and Ecolabel registrations with UK bodies will no longer be valid. These regulations do not bring about this change: it is a result of our leaving the EU. These regulations make appropriate legal amendments to reflect the situation.

The EU EMAS regulation establishes the Eco-Management and Audit Scheme. Participation in this scheme is entirely voluntary, and there are only 17 UK-registered organisations. ISO 14001, a similar scheme established by the International Organization for Standardization, has more than 16,000 UK-registered participants. The EU Ecolabel regulation establishes another entirely voluntary scheme, under which producers, importers and retailers can apply for the EU Ecolabel for their products. Again, uptake in the UK has been low. In fact, a European Commission fitness check of EMAS and Ecolabel across member states in 2017 found that the schemes were substantially limited by levels of uptake.

The Government nevertheless attach importance to voluntary schemes that encourage businesses to improve their environmental performance. In our resources and waste strategy, we recognise that providing transparency of information can help those consumers or organisations that want to make environmentally friendly choices to do so. Guidance is also provided on how to look after their products and dispose of them at end of life. We will develop options for domestic eco-labelling before consulting more widely.

In the meantime, businesses holding existing EMAS registrations and Ecolabels will still be able to sell their products in EU member states, and they can apply to rejoin these schemes through other member states offering the service. We have published and circulated information notes on EMAS and Ecolabels to affected businesses. If we do not act, the European Union (Withdrawal) Act will bring EMAS and Ecolabel regulations into our national law. For the purposes of good public administration, and to avoid any confusion for businesses wanting to join such schemes in the future, these regulations stop that happening.

Finally, there are further EU decisions included in the schedule to these regulations, which refer to EU environmental action programmes. These EU decisions are either already out of date or will serve no ongoing purpose after we leave the EU. We will be making these amendments for the same reasons as with EMAS and Ecolabels.

These provisions apply to the whole of the UK and have been agreed between all four nations. The amendments in these regulations will ensure that UK law continues to operate smoothly when we leave. They represent no change in policy and the regulatory impact experienced by businesses and the public will not change as a result of these regulations. I beg to move.

My Lords, I thank my noble friend for introducing this section of statutory instruments and have listened carefully to what he said: there is no change in policy. Indeed, it is important that we pass these statutory instruments to maintain the existing regulations that we have been connected with.

My noble friend also talked about sustainability in the long term but recognised that the current audit and labelling schemes will no longer be valid. Perhaps I might press him a little more on that because clearly we will have to introduce a scheme to replace the existing ones. Is he able to tell us a little more about that and how the department will approach it? Also on that issue, I think he said that we were going to be consulting more widely. Again, it is a matter of timeframe: how soon that will happen? Clearly, that would help us in dealing with this statutory instrument.

Lastly, my noble friend mentioned that some aspects of existing EU law have become out of date and we would need to transfer powers to a new set of regulations. Can he give us any indication of how many of the changes taking place are to regulations that are considered out of date?

My Lords, in general, this is obviously a sensible regulation. However, I have a number of queries, one of which is exactly the same as that of the noble Baroness, Lady Byford. There are references to redundant and inappropriate regulations, but there is no list, as far as I can see, of which regulations they are or whether further regulations might be deemed to fall within that category. I may have misread the rather complex way in which the regulations are presented, but there may be a whole batch of regulations which, down the line, Defra officials may decide are redundant and use the power under the Act to take off the statute book.

My other two questions are these. It is true that EMAS and Ecolabel have been a bit of a slow burn, but, nevertheless, there is a degree of consumer recognition and take-up. Is the Minister saying that in no circumstances could we use those terms under British law to continue to reflect the qualities that some consumers have now come to recognise, or will his consultation be directed to providing an entirely new British scheme—which, by definition, will require a further educational and informational period before it begins to be recognised? Even in the more benign context of a deal of some sort, would it not be sensible for some mutual recognition and continued use of the existing labels to operate post the UK leaving the EU?

Finally, I declare my presidency of Environmental Protection UK, one main concern of which has been air pollution and air quality. The Minister referred to that in passing. The problem with the air quality regulations is that, hitherto, the effective enforcement of those regulations has depended substantially on the Commission’s intervention and on campaigners—ClientEarth, mainly, in this case—taking the British Government through the courts on the basis of EU law.

In both those respects, I am not entirely sure what mechanism replaces that. Is it the much-heralded but still unclear new environmental statutory body, which will presumably appear in the environment Bill when we eventually get it, or is it simply to be enforcement of these new regulations, having become British law, or retained EU law, enforceable through the British courts? The problem hitherto has been that it has been government bodies at local and national level which have failed to meet, for example, the provisions on maximum NOx levels for air quality. Unless we stipulate in the new regulations who will enforce equivalent standards to the European standards, we may well have something on the statute book but we will be unable to enforce it.

My Lords, clearly this is one of the less contentious SIs under the Defra brief, but important scrutiny still needs to be undertaken. I put on record my gratitude to the staff who, this morning, when I had particular points on which I wanted clarification, were able quickly to reassure me on some of them. I thank them. They were about the Ecolabel issue. I was not clear what would happen if there were not a no-deal scenario.

It is clear from the Explanatory Memorandum what happens if there is no deal and a British company which operates both in the UK and in other parts of Europe wants to continue using the Ecolabel: it can do so as long as it registers in a member state elsewhere. The logo would still be usable in the UK in the event of no deal. I press the Minister on what would happen if we do get a deal. I want to be absolutely clear that if we get a deal with our European partners in the foreseeable future, the scheme, with the very distinctive Ecolabel—which looks very European and, as the noble Lord, Lord Whitty, said, is gaining traction among consumers in an important area—the regulations, the processes and the scheme will carry on exactly as they do now, maintaining what is to many of us an important initiative for businesses to help us deliver our environmental objectives.

My Lords, I thank the Minister for his exposition of the statutory instrument. I know that it has made his brain hurt, so he is in common with all of us. I will focus on some specific issues and particularly tax him on one of its more arcane elements. This SI is one of those known as a jumbo regulation, because it sweeps up so many provisions in a high-level way, but it has one oddity. Regulation 5(4) dives into the detail of the Northumbria and Solway Tweed river basins. Can the Minister explain this arcanity in his response?

In a more mainstream way, I want to focus on some other issues. The Schedule to the regulations stops the EU legislation on the environmental action programme, EMAS and the Ecolabel from being brought into UK law. Personally, I am sad that we will no longer have the framework of the environmental action programmes, which were, at a minimum, the forum for EU member states to come together to express ambition for the environment. In my experience, EU Ministers and the Commission working together were braver and bolder than they would be individually when they came back home and were faced with conflicting pressures against the environment. That is another loss that we will suffer from leaving the Union.

I turn to EMAS, the European Management and Audit Scheme, of which we will no longer be a part when we leave the EU. The Minister kindly provided a briefing session involving him and a veritable army of Defra civil servants; I think of the £4 billion costs so far of exiting the EU. We were rather surprised to learn at the briefing that, as he outlined, only 17 organisations in the UK have adopted EMAS, compared to 16,000 which perform to ISA 14001, which is the global standard.

The Minister confirmed that the Government are, therefore, not planning to develop an EMAS-type scheme for the UK after Brexit. EMAS has some benefits in its approach which are beyond ISA 14001. It delivers not just continuous improvement in environmental performance and credibility—it is externally validated—but, most importantly, it promotes much greater transparency, with publicly available information on environmental performance by businesses and organisations. I ask the Minister to consider how this virtue of greater transparency could be applied to environmental performance schemes in the UK, post Brexit. What arrangements will be made for promoting continuous improvement in the environmental performance of businesses and other organisations?

At the Minister’s briefing sessions, we also heard that only 50 UK organisations use the EU Ecolabel. Ecolabels—for they are many and varied—help the public make informed purchasing choices in products and services with a reduced environmental impact. The Government made a commitment, through the waste and resources strategy, to look at developing a UK ecolabel. I say commitment, but the strategy actually says that the Government will consult key stakeholders, consult “more widely”, consider whether ecolabelling makes any difference to the public’s buying habits, consider how to encourage the public to use label information in purchasing, then decide whether a statutory scheme is needed at all. Perhaps business could just do it.

This all seems a bit “jam tomorrow”. I know that Defra is the department for food, farming and rural affairs, but tomorrow’s jam is the only food it seems to concentrate on these days. I assume that all this considering and consulting cannot happen before 29 March, so we have another example of a gap in the environmental governance framework post Brexit, with no clear timetable for the introduction of a UK alternative ecolabel. Can the Minister tell us the timetable for the introduction of a UK ecolabel and whether it will cover simply waste and resources issues or the wider environmental impacts of products and services?

Of course, as was pointed out by the noble Lord, Lord Whitty, it will be important for us to maintain alignment with the EU Ecolabel scheme if we want to trade with our nearest neighbours. What assurances can the Minister give that importers and exporters will not have to operate with different labels for the home market and the export market? In the midst of all that, how will he ensure that ecolabelling is kept as simple as possible for consumers?

While we are talking about tomorrow’s jam, the major hiatus concerns who will monitor, enforce, sanction and handle complaints about the way the new arrangements are carried out by UK authorities. We are not talking about inconsequential matters: this SI alone covers serious environmental issues contained in the Environmental Protection Act, the Pollution Prevention and Control Act, and regulations on contaminated land and environmental noise—to name but a few. The Government promised us the office for environmental protection to fill some of the gaps left by the substantial remedies we currently enjoy as an EU member, which will disappear as we leave the EU. For example, in instances where government and public bodies fail to perform, cases can be referred to Europe, with remedies through the infraction and fining process and, ultimately, the judgments of the European Court of Justice. However, we have no timetable for the legislation needed to create the office for environmental protection—the environment Bill—or its establishment in practical terms. We have no clarity yet about the real weight of its powers.

The talk on the streets is that, bearing the legislative timetable in mind, the OEP is unlikely to be fully operative until the end of the transition period, if we have one. Can the Minister confirm his understanding of the timetable? He very kindly wrote to me to say that there would be interim arrangements in the meantime but that he could not yet tell me what they might be. We are only six weeks away from potentially needing such arrangements. Either Ministers know what they are planning, and arrangements are under way behind the scenes but they are unwilling to be open with Parliament, or they do not know and no arrangements are being planned. Which is worse: being secretive or being unprepared? It is a case of one or the other; I leave noble Lords to choose one.

The environment and the people of this country are at risk from this potentially protracted governance gap. Is the Minister in a position yet to provide a timetable for the permanent and interim solutions? Can he give the House details of, or even a broad clue about, the interim solution? I hope that he accepts these comments and questions as a constructive contribution, as they are intended.

My Lords, I will say from the outset that I consider all the contributions made in the debate immensely constructive. If I am not in a position to answer any questions concerning precise detail, I will address them in due course. I was struck by the exchanges between my noble friend Lady Byford and the noble Lord, Lord Whitty; I have been in other skirmishes with them when they put their heads together, knowing that they dealt with the water Bill or whatever, so I know that I am in difficult territory. I can confirm that my noble friend Lady Byford is absolutely right that there is no change of policy.

Noble Lords raised ecolabelling and EMAS immediately. As I said, we are not in a position to continue with those schemes because we are leaving the EU. However, if we get a deal, such arrangements and schemes would continue during the implementation period; everyone seems to be working extremely hard on that. Of course, how those schemes could continue would then be open to further phases of negotiation. The question concerns how we would proceed given that, as the EU has conceded, uptake across the European Union for such schemes has been low. I was struck by the number of participants in ISO schemes compared with European ones: thousands of organisations in EU countries are registered with the ISO, but only a comparatively small number are registered with EU schemes. I do not wish to denigrate the EU Ecolabel or EMAS in any way, but it is worth considering that the number of UK-based registrants to ISO schemes is substantial.

A number of questions were asked about our vision. Noble Lords have heard this before but our vision is for environmental standards to be not only maintained but enhanced. Our waste and resources strategy recognised that information transparency is essential. As I said, we will develop options for domestic ecolabelling before consulting more widely. I am not in a position to outline the precise timing for that, but we wish to develop those options as part of our strategy. I suspect that if we get a deal—I hope we do—the ISO scheme, which runs in parallel with the ecolabelling scheme, will continue. I am sure that we would welcome noble Lords’ views about how best to ecolabel.

One issue is particularly important. I sympathise with noble Lords and say that we have a lot of ambition for primary legislation. We wish to enshrine in the environment Bill the 25-year environment plan and the establishment of the Office for Environmental Protection, which will be independent and will hold the Government to account. It is a matter of parliamentary timing. We said that legislation would be brought forward in the second Session, and we are absolutely clear that it will have teeth. It will ensure that all the areas referred to by noble Lords who have concerns about governance are addressed.

I wrote to the noble Baronesses, Lady Jones of Whitchurch and Lady Young of Old Scone, about interim arrangements. I am not in a position tonight to say precisely what they are. I do not recognise what the noble Baroness, Lady Young of Old Scone, said, because we have said in public that we are considering interim arrangements. I am simply not in a position to say tonight. I know that it is being worked on, because it has come from colleagues that this matter is being worked on. I have promised to tell both noble Baronesses, as well as all noble Lords in this debate, as soon as there is some announcement about what the interim arrangements are.

The noble Baroness, Lady Young of Old Scone, referred to Northumbria and the Solway Tweed. When I did research into this I was intrigued, and I am afraid I have to give a technical reply. Regulation 5 amends references to the water framework directive to refer instead to the domestic legislation that implemented the directive. These references would not work satisfactorily after exit day without modifications, and it is more straightforward to restructure the provision and refer to the domestic legislation instead. Your Lordships will note that there are some references to the river basin districts of Solway Tweed and Northumbria. These are cross-border districts falling partly in England and partly in Scotland, so are dealt with by specific legislation. All other districts in England are dealt with by the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017. I am glad the noble Baroness asked that question, because it was one that I too was intrigued by. These matters sometimes take us into territory that is intriguing but perhaps a little distinct.

The noble Lord, Lord Whitty, referred to lists of regulations and their redundancy. Paragraphs 6 and 22 in Part 1 of the Schedule relate to EU action programmes, are already out of date and will be legally redundant. Parts 2 and 3 of the Schedule cover designation orders for directives, which are also legally redundant as a result of the changes in these regulations. I say to the noble Lord that I will study that a little more carefully and, if there is any further information that makes it more readily agreeable and understandable, I will oblige.

The noble Lord, Lord Whitty, rightly referred to new enforcement mechanisms. We are committed to ensuring that future environmental standards are at least as high as those currently in place. There are no changes in enforcement measures as a result of this SI. As I said, in this SI there are absolutely no changes in policy. The Government absolutely want standards to be as high as possible. This is why the environment Bill will enshrine in law the 25-year environment plan, the clean air strategy, the resources and waste strategy and the clean growth strategy. They are all top-line and important, and what we need—I know noble Lords wish this—is action to put them into place. So, in terms of timing, I am as anxious as anyone here for us to get as many of these points advanced as possible.

I will look at Hansard, because a number of distinct questions were raised. On the ecolabelling and EMAS labelling issues, it seems to me that at the moment there is not a great deal of traction within the EU, and I suspect that that is something which will need to be considered in the longer term. On the ISO standards, I wish I had the exact figure, but it is over 300,000 registrations across the world, with many of the major EU countries using ISO in far greater numbers than EMAS. It is important to say that we will consider how best to encourage the consumer to understand about environmentally friendly products and the producer and manufacturer to have confidence that they have something of a standard that we can all be proud of in terms of enhancing the environment. Again, I will look at Hansard, because there are a number of detailed points on timing that I hope I will be able to furnish your Lordships with.

I wonder if my noble friend might give way. Is it possible to find out what body or who will be responsible before the new environmental body is set up? The difficulty is that it could be many weeks or months; we really do not know how soon that will come in. Therefore, the natural question is: after 29 March, if things are not going as we hope, where does the buck stop? Who is responsible in the meantime? It may well be that his own department takes that on, but I did not think it was clear in the statutory instruments we have just been debating. I would be grateful for some clarification.

I have to say that that area is not what this statutory instrument is about. I can say that we will bring forward measures so that there is no gap in environmental governance in the event of a no-deal Brexit. We fully realise that the independent environmental body will not be complete; we have to have primary legislation for that. But I can say—I hope it provides some reassurance—that once the office comes into effect it will have the power to review and take action on any breaches that occur from the day of us leaving. There will therefore be no period of time during which government actions cannot be held to account by an enforcement agency. I hope that is an assurance that the Government’s bona fides on this are very strong and that we do not want there to be an environmental governance gap. I am not sure that I can add anything further, but I look forward to the noble Baroness’s intervention.

I thank the Minister for giving way. I just express a slight nervousness about the provision, which I absolutely recognise is necessary, for the new body to be able to take action on complaints that arise from the day of exit, whenever that is. If we were to leave without a deal and the new body did not come into being for 18 months or two years, which is quite possible under the current timetable, I would not like to think of this growing pile of complaints mounting up as the new body comes into being, so that its first act is facing a huge backlog.

I entirely accept what the noble Baroness has said. It is our duty as a Government, whoever is in office, to ensure that we enhance the environment. That is the whole purpose of the 25-year environmental plan, but I am very conscious of what the noble Baroness has said. In the meantime, I commend this instrument to the Committee.

Motion agreed.