Considered in Grand Committee
That the Grand Committee do consider the Ozone-Depleting Substances and Fluorinated Greenhouse Gases (Amendment etc.) (EU Exit) Regulations 2020.
Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
My Lords, there are three instruments in this group before the Committee today. Two are concerned with the regulation of chemicals and chemical products, and the third concerns the regulation of fluorinated gases and ozone-depleting substances. A common thread is that each one contains provisions necessary to implement the protocol on Ireland and Northern Ireland.
We have worked with the devolved Administrations on all three instruments and they have given consent. I confirm that all three instruments will be able to function with or without a deal with the European Union. I also confirm that all three instruments have been considered by the JCSI and that no issues have been drawn to the attention of the House.
The first instrument that I will cover is the Ozone-Depleting Substances and Fluorinated Greenhouse Gases (Amendment etc.) (EU Exit) Regulations 2020. The EU’s ODS regulation and F-gas regulation implement the Montreal protocol by controlling and reducing the use of ODS and HFCs, which are the main types of F-gas. Registration, licensing of production, imports and exports and quota limits underpin these controls.
The instrument will enable the UK to meet the requirements of the Northern Ireland protocol regarding restricting the use of ozone-depleting substances and fluorinated greenhouse gases, which I will refer to as ODS and F-gases from hereon. This will be done by making changes to existing EU exit legislation. The instrument also amends dates to prevent errors of law.
The Northern Ireland protocol requires that the EU F-gas and ODS regulations remain applicable to and in Northern Ireland. Northern Ireland will remain part of the EU’s systems. This means establishing quota systems for Great Britain that are separate from the EU systems. Producers or importers will require GB quota to place on the GB market, with businesses selling into Northern Ireland needing EU quota.
This instrument also introduces provisions to control the movement of F-gases and ODS between Great Britain and Northern Ireland. This movement will be deemed as imports or exports. Controlling such movement is vital to maintain the integrity of the GB F-gas and ODS systems, meet the Northern Ireland protocol requirements, and ensure UK compliance with its Montreal protocol obligations.
The instrument meets two key principles: first, to continue our contribution to UK climate ambition through complying with our Montreal protocol obligations; and, secondly, to impose the most light-touch measures that we can on the movement of goods between Northern Ireland and Great Britain while adhering to the Northern Ireland protocol and meeting our international obligations.
The previous SI, the Ozone-Depleting Substances and Fluorinated Greenhouse Gases (Amendment etc.) (EU Exit) Regulations 2019, as amended by this instrument, will transfer powers and functions previously held by European institutions to appropriate bodies in England, Scotland and Wales. The Scottish and Welsh devolved Administrations will have the competence to establish their own ODS and F-gas systems if they choose to do so in the future. They have also agreed in principle to the operation of GB-wide ODS and F-gas systems. The Secondary Legislation Scrutiny Committee highlighted this instrument given its impact on movement of goods between Northern Ireland and Great Britain.
I now move on to the Control of Mercury (Amendment) (EU Exit) Regulations 2020. This instrument makes amendments to the retained EU law to ensure that legislation which manages the control of mercury is operable at the end of the transition period. In addition, it reflects the requirements of the Northern Ireland protocol. This instrument revokes and replaces the Control of Mercury (Amendment) (EU Exit) Regulations 2019, as well as Regulation 8 of the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019. These provisions are now included in this instrument. Revoking the two SIs made in 2019 and remaking the provisions contained in those SIs in this instrument ensures that we do not have more than one set of amending legislation.
This instrument also amends the Control of Mercury (Enforcement) Regulations 2017. In addition, we will be introducing new procedural requirements for the transport of elemental mercury between GB and Northern Ireland and introducing a prohibition on the transport of specified products containing mercury between GB and Northern Ireland. There are currently no controls on the movement of these specified products containing mercury or elemental mercury between EU member states. These new requirements should prevent the uncontrolled flow of elemental mercury and the specified products containing mercury from the EU into Great Britain via Northern Ireland.
This instrument provides for the exercise, by the appropriate GB Minister, of a number of legislative functions currently carried out by the European Commission. These legislative functions were previously included in Regulation 8 of the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019. That instrument was debated in the House of Lords and House of Commons on 12 and 14 February 2019 respectively and agreed by both Committees.
Following the UK’s withdrawal from the EU, the retained EU legislation, as amended by this instrument, will continue to implement the UK’s obligations as a party to the Minamata convention and provide a regulatory framework for the management of mercury. Northern Ireland will continue to apply EU regulation 2017/852 to manage mercury in the environment.
This SI meets the Government’s commitment to the Northern Ireland protocol and ensures continued levels of protection for human health and the environment, as well as providing stability and continuity for business.
I turn to the third and final instrument, the Detergents (Amendment) (EU Exit) Regulations 2020, whose primary aim is to ensure that the UK meets its obligations under the Northern Ireland protocol in respect of Regulation (EC) No. 648/2004 on detergents—the EU detergents regulation. This has been done by amending the existing EU exit regulations on detergents, which are already in place.
I will highlight the key amendments that this instrument makes to the existing EU exit regulations. Noble Lords will not be surprised to learn that they are merely technical in nature. This instrument makes special provision for detergents in Northern Ireland in respect of qualifying Northern Ireland goods, creating a category of protected imports from Northern Ireland and enabling them unfettered access to the Great Britain market, while maintaining standards of protection for the environment and human health. The technical changes made by this instrument will give effect to the Northern Ireland protocol by ensuring that the EU detergents regulation, as it has effect in EU law, continues to apply in Northern Ireland, and that the amendments to the retained version of the EU detergents regulation extend to Great Britain only.
Trade from Northern Ireland to the rest of the UK should continue to take place as it does now—that is, there will be unfettered access, as provided for by the protocol. Therefore, at the end of the transition period, businesses in Northern Ireland may continue to place their goods in any part of the UK internal market without new restrictions.
In addition to these changes made to the existing EU exit regulations on detergents, this instrument amends the Detergents Regulations 2010—the domestic enforcement regulations on detergents—ensuring that the Northern Ireland enforcement authorities can continue to enforce the EU detergents regulation as it has effect in EU law, while the retained version of the EU detergents regulation can continue to be enforced in Great Britain. The changes made to the 2010 regulations will also have the effect of ensuring that the competent authority functions, currently exercised by the Secretary of State under the EU detergents regulation, will be exercised by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.
The Secondary Legislation Scrutiny Committee has considered and cleared this SI from scrutiny without comment. I assure Members of the Committee that the overarching aim of this instrument is to provide continuity for detergent businesses, to ensure that, following the end of the transition period, the high standards of human health and environmental safety will continue across the UK, and to reflect the obligations under the Northern Ireland protocol. I beg to move.
My Lords, I will focus on mercury today, not because ozone-depleting substances, fluorinated greenhouse gases and indeed detergents are not extremely important but because mercury is so toxic and is in use for quite a number of developmental practices. I am quite concerned that it should be taken very seriously.
Exposure to mercury is a huge problem. There is a sort of global pool that moves around between air, water, sediment, soil and, of course, organisms, including ourselves. It is a highly toxic metal which causes significant harm to human health and to ecosystems. Of particular concern are the levels of mercury in seas and oceans, where mercury accumulates up the food chain and reaches humans in concentrated mass through the consumption of seafood—it has certainly put me off seafood. The most damaging human health impact is exposure of pregnant women and unborn children, with permanent impacts on brain function, so we absolutely have to take it seriously and make sure that we are doing as much as we can to render it safe.
The EU has taken the problem of mercury very seriously. It has implemented the legislation that we are discussing today and set Europe the goal of becoming mercury-free, which is quite an ambition. Is it the Government’s intention to continue to reduce our use of mercury to zero? When will the UK eliminate mercury usage entirely? Also, will the Government do something about it internationally? We have all read newspaper stories about children looking for gold and using mercury to separate the gold out, which is absolutely horrific. Perhaps it is done already—I do not know—but there is an argument for labelling all gold from that sort of production process “mercury gold” and explaining to people why perhaps they should not buy it. It is part of our role as an engaged nation to deal with this problem internationally. It is not something that we can turn our back on. Also, mercury-polluted sites can wash out into watercourses, where mercury is released into the air. What are the Government going to do to decontaminate mercury from the environment and remediate damaged ecosystems?
I hope that the Minister can answer my questions. If not, perhaps he will write to me.
My Lords, I thank the Minister for the clarity of his introduction of these three sets of regulations and for outlining their intent. I also thank the noble Baroness, Lady Jones, for asking a number of important questions about the mercury regulations.
In many ways, these are technical amendments to ensure that our law continues to comply with the international obligations that we have signed up to, particularly the Ireland-Northern Ireland protocol, the Montreal Protocol on Substances that Deplete the Ozone Layer and the Minamata Convention on Mercury. I hope that we can all agree on the importance of upholding our international obligations now that the Government have stepped back from the idea of breaking international law in the internal market Bill. I hope that this episode proves a one-off aberration rather than a pattern of behaviour—although I should note that it has already caused us huge damage around the world and fundamentally undermined our ability to hold others to their international obligations. Nevertheless, at least we have stepped back from the brink.
Whether or not we disagree on that point, I think that we can certainly agree on the need to control the substances under discussion today. To that extent, I have no argument with the technical provisions included in the three sets of regulations, which are clearly necessary. However, the regulations give rise to questions about restrictions on the movement of goods within the United Kingdom, and fundamental questions about the application of the law of a foreign entity to the citizens of a part of the United Kingdom. The regulations confirm that Northern Ireland will remain within the EU market for fluorinated gases and ozone-depleting substances. Defra has confirmed that the controls would apply to the movement of all ODS gas, goods and trade between Northern Ireland and GB, including household fridges, air-conditioning products and aerosol sprays. This means that there would be checks at the GB/NI boundary—
Sitting suspended for a Division in the House.
My Lords, the regulations confirm that Northern Ireland will remain within the EU market for fluorinated gases and ozone-depleting substances. Defra has confirmed that controls will apply to the movement of all ODS and F-gas goods and trade between Northern Ireland and Great Britain, including household fridges, air-conditioning products and aerosol sprays, and that this will mean checks at what it describes as the GB/Northern Ireland boundary. Can the Minister expand on the nature of the checks that will be required at the GB/NI boundary and say whether these will apply to both NI to GB and GB to NI movement, and whether export declarations will be required?
The Explanatory Memorandum also states that the regulations will provide for
“unfettered access of detergents and surfactants … from Northern Ireland into Great Britain.”
Can the Minister tell us whether there will be unfettered access of detergents from Great Britain to Northern Ireland? Will there be checks required, or any other limitations on the free movement of detergents within the customs territory of the United Kingdom?
The regulations also underline the fact that EU law will continue to apply in Northern Ireland in respect of the control of ozone-depleting substances and fluorinated gases and of detergents. Can the Minister tell us what role Parliament, and the Northern Ireland Assembly in particular, will have in scrutinising the EU law that will apply to our citizens? Should EU law change in these areas, is it the intention of Her Majesty’s Government to follow such changes in GB law, or will we diverge from the law in Northern Ireland? Given the Minister’s commitment to Brexit, I am sure that he will have considered the ramifications of the law of a foreign entity being applied to the citizens of a part of our country and will have given appropriate thought to how effective scrutiny of such law can be applied.
The Minister may be aware that this issue has been a cause of serious concern to Members of the House of Lords European Union Select Committee since the withdrawal agreement was signed. As recently as Friday 4 December, the chairman of that committee, the noble Earl, Lord Kinnoull, raised this issue once again in a letter to the Chancellor of the Duchy of Lancaster. In this letter he said:
“I want to stress that, with now less than a month to go until the protocol on Ireland/Northern Ireland becomes operational, the urgency of agreeing mechanisms for the scrutiny of the EU laws that will apply to Northern Ireland under the protocol is acute.”
Finally, I would be grateful if the Minister could cast some light on when the Government intend to address these issues and why the people of Northern Ireland are being treated so disrespectfully by them leaving it so late to put in place the necessary mechanisms to do so.
My Lords, I thank the Minister for introducing these SIs this afternoon and for the helpful discussion that we were able to have beforehand.
I will look first at the ozone-depleting substances and fluorinated greenhouse gases regulations. The Minister has explained that their purpose is to implement the Northern Ireland protocol, specifically in relation to restrictions on the use of ozone-depleting substances and fluorinated greenhouse gases. As a result of the changes proposed by this instrument, as we have heard, two separate systems will operate in Northern Ireland and Great Britain after the end of the transition period, with controls on the movement of relevant gases, substances and equipment requiring checks between Northern Ireland and Great Britain. The noble Lord, Lord Oates, asked a number of questions in this area, and I am interested to hear the Minister’s response.
The department says that this approach is necessary to implement the protocol and to ensure that the UK remains compliant with its international obligations and can deliver its wider climate change commitments. What work has been carried out by the department on the potential practical impacts on trade between Northern Ireland and Great Britain?
This instrument amends a previous EU exit SI, rather than revoking and replacing it. There is an inconsistency in Defra’s approach to this legislation. Some instruments have provided an element of consolidation, but others have slightly muddied the waters. Look at the SIs in front of us today. Paragraph 3.1 in the EM for the new regulations for the control of mercury states that it is completely replacing the previous SI, whereas others are just adding to them. It would be interesting to get some clarification of the department’s thinking on the latest instruments we have been looking at.
Looking in more detail at the ozone-depleting substances regulations, we see that paragraph 2.8 of the EM notes that current Commission competences will be transferred to England, Scotland and Wales. Can the Minister confirm whether this will be a complete and like-for-like transfer of powers, or whether there are some areas which have been deemed surplus to requirements?
Paragraph 2.10 notes that the devolved Administrations can establish and operate their own systems if they want to, and the Minister referred to this in his introduction. What consultation was carried out with them and has the Minister had any indication of whether this is the direction they would like to take? If so, what kind of timescales are we looking at?
Paragraphs 10.1 and 11.1 mention the detailed technical guidance on how the ODS and F-gas systems will operate in GB after the end of the implementation period. Paragraph 11.1 explicitly states that this was due to be published in October. Can the Minister confirm whether this has actually happened, and, if so, when it was published? Has the promised engagement with industry now also been undertaken?
Finally on this SI, paragraph 14.1 confirms that the EU requirement for a review of the regulation by 2022 will be retained, with the Secretary of State and devolved Administrations to carry out this task, either together or separately. Does the Minister have any idea how long this process is expected to take and when it is likely to commence?
I turn to the control of mercury regulations. We have recently considered a number of SIs to implement the Northern Ireland protocol which have not raised any concerns in relation to trade between Northern Ireland and Great Britain. However, the noble Baroness, Lady Jones, drew attention to the extreme toxicity of mercury. Paragraph 2.7 of the EM outlines the new procedural requirements for products containing mercury to move between the two, including a prohibition on the movement of mercury-added products in both directions. I draw attention to this because it is a major departure from the current system, where products can move freely between EU members. Can the Minister give further detail about the department’s thinking in drawing up this new system?
Paragraph 10.2 states that the market for such goods is
“small and decreasing in size”
and that data indicates it will affect only a
“small number of imports per year.”
The Minister referenced in his introduction paragraph 10.3, which states that industry engagement suggests
“there is very little movement of any elemental mercury or mercury added products”
between Northern Ireland and Great Britain or between Great Britain and the EU. Does the Minister have an estimate of how many movements we are looking at? Does he see any practical problems that could arise from the approach being taken?
Finally, I turn to the detergents amendment. The Minister has already explained that, among other things, this instrument will allow the continued movement of detergents and surfactants from Northern Ireland to Great Britain after the end of the transition period. Paragraph 7.4 of the Explanatory Memorandum notes that while movement will be maintained, so will safeguard measures within Great Britain to protect human health and the environment. The SI also amends a couple of EU-derived regulations, as well as making minor amendments to previous exit SIs to ensure compatibility with the Northern Ireland protocol. We have no real concerns on this SI and are pleased to note that the devolved Administrations were given the opportunity to comment during the drafting of the proposals.
I look forward to the Minister’s response to my earlier questions.
My Lords, as I said at the start of the debate, these instruments are necessary to make sure that the Northern Ireland protocol is implemented properly. They correct operability deficiencies necessary for the implementation of the protocol. They also respond to the Government’s commitment to unfettered access for Northern Ireland goods and help to make sure that we are fully prepared for the end of the transition period on 31 December. These instruments will also ensure that the UK continues to meet its international obligations for mercury as a party to the Minamata convention, and for fluorinated gases and ozone-depleting substances under the Montreal protocol. They will also ensure that we continue to maintain the high standards of biodegradability for detergents and surfactants. The contents of all three are low key and technical, but they are all essential to fulfil our obligations under the Northern Ireland protocol and they all contribute in their own way to the effective functioning of the internal UK market, and to the Government’s continued commitment to environmental protection.
I thank noble Lords for their contributions and questions. I will endeavour to answer as many of them as I can, starting with the noble Lord, Lord Oates. With his permission, I will not engage on the issue of the UK internal market Bill, as it is slightly off-topic, but I heard his comments and very much note them.
The noble Lord made a number of interesting and useful points. Broadly, on our intentions in relation to the Government’s application and maintenance of high standards in future, we have been clear that we will maintain the existing regulation of mercury and will continue to fulfil the UK’s commitments under the Minamata convention. This is an answer to a number of contributions: we will not look to diverge for the sake of it. In relation to detergents, the decisions we make will reflect what is best for the UK and the environment. In future, there may be some divergence over time between the GB and EU regimes, but that will be based on what is in our interest and on independent decision-making, and in the context of wanting to maintain the highest possible standards. Having the freedom to make our own decisions based on the science that we have and tailored to the needs of our businesses categorically does not mean reducing standards in any meaningful sense at all, as we have made clear.
In relation to our global obligations, the UK in its entirety is obliged to comply with the obligations set out under the UN Montreal protocol. Those obligations relate primarily to consumption controls. From 1 January, compliance will be achieved by controlling consumption within Great Britain through licensing and quotas, and by maintaining oversight of consumption in Northern Ireland, which will be controlled through the EU F-gas and ODS regulation. The UK will report to the UN Ozone Secretariat on UK annual consumption.
The noble Lord asked about the border and how movements and transactions will be monitored and how enforcement will take place. As he would expect, there will be close co-operation between the UK, Scottish and Welsh Governments in the operation of the GB system, and continuous dialogue of course with Northern Ireland. Officials of the Administrations, including Northern Ireland for UK-level matters, are working on the UK common framework for F-gas and ODS, which will set out the arrangements for co-operation, including the governance arrangements, decision-making and dispute resolution procedures.
In no particular order, because I have managed to write the questions down in no particular order, I will address some of the important points raised by the noble Baroness, Lady Jones. She raises the issue of the toxicity of mercury, and mentioned a story that I do not think I have read about children in Ghana. There are many such examples, and the problem is not limited to Ghana. Illegal mining takes place throughout parts of the Amazon, particularly Colombia, where the effects on the water systems and the health of people, including young children, are abhorrent. It is a really toxic, destructive and dangerous substance. She rightly said that the EU had taken the issue of mercury seriously, and the UK has absolutely been part of that; indeed, the UK has been a leading voice in maintaining standards at the appropriate level. We will remain strongly committed to the effective and safe management of chemicals to protect both the environment and the public, and that will not change after the transition period. We will continue to implement decisions made internationally under the Minamata convention, on which this legislation is based.
The noble Baroness asked when the UK will eliminate mercury usage entirely. Use of mercury in dental amalgam is an issue that often comes up; that will continue to be the main use of mercury in the UK. I am told that the UK Chief Dental Officers are considering how to reduce the use of dental amalgam, as laid out in the national plan to phase down the use of dental amalgam, published in June last year. I admit that this is not an area that I have followed closely in terms of their plans for the future but, like her, I hope that they take a very enthusiastic and bullish approach to minimising, and eventually eliminating, exposure to mercury.
The noble Baroness asked what the Government are doing internationally to end the use of mercury. The UK is a party in its own right to the Minamata convention and will continue to uphold and fulfil our obligations under it, which includes reducing man-made emissions to the environment. Existing legislation has driven down the use of mercury significantly. We have seen emissions of mercury to air decline by 90% in the last 30 years. A commitment to further reduce land-based emissions of mercury to air and water by 50% by 2030 is set out in the Government’s 25-year environment plan, to which we are very much committed.
The last point the noble Baroness raised was on mercury-polluted sites and what we can do to clear them up. I point out that, technically, it is the responsibility of the local authorities to identify and prioritise contaminated land remediation where there is an unacceptable risk to health and the environment as under Part 2 of the Environmental Protection Act, but Part 2 also outlines the “polluter pays” principle regarding contaminated land remediation. This is very much a central theme in the Environment Bill, which will shortly come to the House. Applied rigorously and properly, and robustly enforced, the “polluter pays” principle would create a strong lever to prevent those responsible for mercury releases from doing so. The only way to ensure that in future we will see less of this kind of pollution will be through turning that pollution into a very serious financial liability. That is what the “polluter pays” principle does, and for as long as I am Minister, I want to enforce and press it very firmly.
I turn to the points raised by the noble Baroness, Lady Hayman. I thank her for her time earlier, when we chatted through some of these issues and she raised some of her concerns. I will have to whizz through this, but I will try to get through it.
This SI amends the previous EU SI, but the noble Baroness asked whether there are any surplus elements—is it amended, revoked or revised? The previous exit SI will remain in place, but it is amended by this SI to implement the protocol on Northern Ireland/Ireland. The SI also amends dates in the previous EU SI that fell before the end of the implementation period to prevent errors of law. The noble Baroness asked whether the transferral was like for like or whether there are any changes in relation to paragraph 2.8. The transfer of functions is, as she asks, like for like, or at least it is as like for like as is feasibly possible. There will be some changes to account for differences in the UK and EU processes—for example, EU references to “implementing acts” have been replaced with references to “regulations”—but it is effectively like for like.
The noble Baroness asked whether the devolved Administrations are likely to set up their own systems. The Scottish and Welsh Governments have agreed in principle to GB-wide systems administered by the Environment Agency. This will involve devolved Ministers consenting to various functions being administered on their behalf by the Secretary of State and directing the Environment Agency to administer certain regulatory functions. At this stage, the DAs have not expressed any plans to establish and operate their own systems, but they will have the power to do so, if they so choose.
The noble Baroness referenced paragraphs 10.1 and 11.1 on technical guidance and asked when it will be published, or indeed if it has. It was published on 15 October and was shared with stakeholders, and it can be found on the government website.
In reference to paragraph 14.1, the noble Baroness asked how long the process will take and when it is likely to start. We plan to formally launch the review process early in 2021 and we envisage that it could take between 12 and 18 months. However, in any case, we have to publish a report following the review no later than by the end of 2022.
I am out of time—my apologies. I will write to the noble Baroness with answers to the remaining questions.