Skip to main content

Waste and Agriculture (Legislative Functions) Regulations 2022

Volume 818: debated on Tuesday 8 February 2022

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Waste and Agriculture (Legislative Functions) Regulations 2022

Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee

My Lords, the instrument before us was laid before the House on 13 January. It makes small but crucial changes to repatriate powers to the UK and correct an error in a previous agriculture SI by restoring an accidentally omitted definition of an appropriate authority. This instrument covers two subject areas: waste management and agriculture. I shall take them in turn.

First, for waste management, this instrument transfers powers relating to several directives concerning waste from the European Commission to the Secretary of State. Where appropriate, these powers are also transferred to the devolved Administrations. The powers will largely give the Secretary of State and, where appropriate, the DAs, the ability to make regulations to set various technical standards, criteria, thresholds, and conditions. All these standards are currently operational, and we do not anticipate the need to alter them soon. However, there may be a need to amend them in future. For instance, should a superior waste treatment method be developed, without the amendments made by this SI we would not be able to make regulations to take account of the new method, which may weaken our high environmental standards.

I shall briefly outline the power, or powers, being transferred from each EU directive. Regulation 5 transfers the power to set standards for the sampling of waste going to landfill from the landfill directive. Regulations 6 to 9 transfer powers from the end-of-life vehicles directive to update and modify exemptions covering the use of certain heavy metals in vehicles based on scientific or technical progress; to specify minimum requirements for the certificate of destruction for waste motor vehicles; to modify conditions for storage and treatment for waste motor vehicles in line with scientific or technical progress; and to specify material and component coding standards for vehicles.

Regulations 10 to 11 transfer powers from the mining waste directive to modify non-essential elements such as guidelines for inspecting waste facilities and sampling methods, and to update regulations in line with scientific and technical progress. Regulations 12 to 13 transfer powers from the batteries directive to specify export criteria and to grant exemptions from labelling requirements for batteries and accumulators.

Regulations 14 to 17 transfer powers from the waste framework directive: first, powers to prescribe detailed criteria for what substances may be considered a by-product of a manufacturing process rather than a waste product, whereupon it can be sold or treated differently; secondly, powers to prescribe detailed criteria for when waste may no longer be considered waste, such as if the substance can be put to a more useful purpose elsewhere; and, finally, powers to specify the application of the formula for incineration facilities.

Regulations 18 to 20 transfer powers from the waste electricals and electronic equipment directive to update selective minimum treatment technologies for waste electrical and electronic equipment, or WEEE; to update the technical requirements for WEEE treatment and storage operations and the non-exhaustive list of products listed as falling into each of the categories specified in the WEEE directive; and to update the crossed-out wheeled bin symbol. These powers could, for example, be used to tighten treatment requirements of substances in WEEE found to be hazardous to health and the environment. The powers, apart from those relating to the batteries directive and the mining waste directive, will apply in England, Wales, Scotland, and Northern Ireland. The powers relating to the batteries directive and the mining waste directive will apply in England, Wales, and Scotland but not in Northern Ireland.

I shall now cover this instrument’s effect on agriculture- related legislation. This instrument amends Regulation (EU) No 1306/2013 of the European Parliament and of the Council as it relates to the organisation of common markets and rural development measures. Regulation-making powers from that regulation were previously transferred to the Secretary of State and their counterparts in the devolved Administrations by three EU exit SIs. However, the effect of the interactions between these three SIs has resulted in Regulation (EU) No 1306/2013 no longer containing a definition of “appropriate authority” in relation to the financing, management and monitoring of the organisation of common markets and rural development measures. Therefore, this instrument reinserts the definition of appropriate authority into Article 2 of Regulation (EU) No 1306/2013 and revokes the ineffective definition in a previous EU exit SI, the Agriculture (Payments) (Amendment, etc.) (EU Exit) Regulations 2020, to correct this deficiency.

No impact assessment has been prepared for this instrument, because this instrument only repatriates powers to the UK and corrects an accidental omission in a previous EU exit SI. The impacts will be considered if regulations are made using the repatriated powers.

Safeguards are provided through a requirement, in relation to the waste-related powers, to consult appropriate authorities and such other persons as the Secretary of State or the devolved Administrations consider appropriate, before making regulations under these powers. Any regulations made under these powers would receive Parliamentary scrutiny through the negative procedure, except one agriculture-related power to make regulations in the event of an emergency to make payments to beneficiaries. This allows use of the urgent affirmative procedure where it is both necessary and justifiable to ensure that beneficiaries can be paid.

I commend these regulations to the Committee and I beg to move.

My Lords, I am most grateful to my noble friend for such a full explanation of the impact of this measure. Did I hear him say that this will allow the Government and the devolved Administrations powers to amend the waste regulations, presumably in their area? Does he expect the powers to vary between the different areas? On the disposal of cars, one can see that a devolved Administration could perhaps make the regulations less onerous and thereby attract cars for disposal to set up a bit of industry or activity in their area. Have the Government considered that? Is it likely to be beneficial in these areas?

My Lords, I thank the Minister for his full introduction to this relatively straightforward instrument dealing mainly with waste. The Explanatory Memorandum claims that without this SI it would be “cumbersome” and difficult to make any necessary changes to take account of new methods of sampling and waste treatment in future.

Paragraph 7.2 of the EM sets out the functions already in place and working well but does not mention those that are perhaps not working well. Is the Minister able to say whether any of the functions under the EU directives concerning waste that have transferred are not working as expected?

I am afraid I have some somewhat detailed questions. The various categories of waste covered by this SI are wide. In Chapter 5, Regulations 12 and 13 deal with the retention of functions from the batteries directive. This includes powers to specify criteria relating to the export of waste batteries. Regulation 12(1) states that an

“appropriate authority may, by regulations, make provision specifying criteria for the assessment of equivalent conditions where treatment and recycling of waste batteries takes place outside the United Kingdom.”

The Minister will know that all households are now aware that they cannot just throw their expired batteries into the waste bin but have to dispose of them safely. Having disposed of my batteries in the relevant safe way, I am sure I am not alone in not expecting them to be exported for their final resting place. Can the Minister say just what percentage of the

“batteries, accumulators and battery packs”

referred to in Regulation 13 is disposed of within the United Kingdom and what percentage is exported for disposal, and which countries take our batteries for disposal?

While I have not read all the directives covered by this SI, I have done some investigation on the mining waste directive, 2006/21/EC. This covers extractive waste from land-based extractive industries and the relevant regulatory procedures required for England and Wales under the Environmental Permitting (England and Wales) Regulations 2010. This relates to unpolluted soil, non-hazardous waste from prospecting of mineral resources, except oil and evaporates, and waste from peat extraction. The definition of extractive waste is unpolluted soil and waste arising from prospecting for mineral resources and from peat workings. I am sure the Minister can see which way I am going.

Article 3(15) further states that for a site to be considered as a mining waste facility, the extractive waste would have to be kept in it for differing periods of time depending on the category of waste. For

“unpolluted soil, non-hazardous prospecting waste, waste resulting from the extraction, treatment and storage of peat and inert waste”,

this is specified as

“a period of more than three years”.

Can the Minister say what the average time period of storage is for extractive peat waste and what the quantities are currently likely to be?

The section in the instrument relating to agriculture is at the end under Part 4 and relates solely to the financing, management and monitoring of the common agriculture policy, in so far as it relates to CMO markets and rural development measures, and corrects errors in previous SIs on the subject. Given the number of SIs in the past on this subject, although they were before the Minister was in post, can he give reassurances that this SI is a catch-all and corrects all previous errors, or are there likely to be more? As I said, this is something of a tidying-up SI, and I am happy to support it.

My Lords, I thank the Minister for his introduction to this SI, and the Secondary Legislation Scrutiny Committee for drawing this SI to our attention. As the Minister said, the SI proposes to transfer several technical powers relating to waste from the European Commission to the Secretary of State, as well as correcting an error. In this regard, I have a number of questions.

First, can the Minister say when the error was first identified and why it has taken so long to bring the correction before us? This partly echoes the point made by the noble Baroness, Lady Bakewell, that a lot of water has gone under the bridge since the SI was first drafted. We have dealt with a number of corrections over the years, so why has this one taken so long? Perhaps he could address that point.

Could the Minister also say whether there have been any adverse consequences resulting from this drafting error? If there was no definition of the appropriate authority, I would have thought it undermined the whole legislation and that the legislation had no standing if it did not say who had the authority to carry it out. I would like to have a better understanding of what has been happening in the intervening period since the original wording was agreed by us. Perhaps he could also explain how that error came to light and why that took so long.

Secondly, referring to the various waste management standards, which the Minister said are all currently operational, can I double check whether all those standards were approved by Parliament in the first place? In other words, have they been signed off in the normal way?

Thirdly, paragraph 6.1 of the Explanatory Memorandum says that

“if this SI were to fail and the powers were not transferred to the Secretary of State”,

it would not be possible to make regulations to take account of improved scientific techniques in the future. In other words, this is the only way to do that. I take slight issue with that, because surely there remains the option of bringing forward new regulations to take account of improved scientific knowledge, an option that would exist at any time, without necessarily giving all those powers to the Secretary of State. We are being asked to give up our involvement in those decisions. That matters because, as we all know, having debated so many SIs in the past, the definition of improved scientific knowledge is a bit of a movable feast, and we might have a different view in Parliament from the Secretary of State.

The Explanatory Memorandum says that this is to allow more flexibility for the Secretary of State in responding

“to scientific and technical changes”.

But given the Government’s current excitement about the forthcoming Brexit freedoms Bill, how can we be sure that the freedoms for the Secretary of State set out in this SI will not be used to reduce standards in the name of technical advance? For example, there are several references in the SI to the Secretary of State being able to exercise this power only if it is considered

“appropriate to do so as a result of scientific and technical progress”.

This phrase is used in Schedule 6(3) relating to end-of-life vehicles, in Schedule 11(2)(a) relating to mining waste, and in Schedule 20(2) relating to the WEEE directive.

However, there is no definition of scientific and technical progress. Only in Regulation 11(2)(b) does it add the extra provision—the extra safeguard, if you like—that the power should be exercised only

“with a view to achieving a high level of environmental protection.”

Why is not the extra protection of that phrase used in all the other categories: on end-of-life vehicles, the WEEE directive, and so on? I should have thought that that would have given us greater assurance.

Finally, is this a one-off set of measures or is Defra carrying out a wider review of the European Union (Withdrawal) Act 2018, as set out in paragraph 7.6 of the Explanatory Memorandum? Are these new freedoms and flexibility for the Secretary of State now part of a process to review all the withdrawal legislation? I should like an answer to that point, particularly, but also to my other questions. Perhaps if the Minister does not feel able to reply today, he could write to me on those matters. I look forward to his reply.

I thank noble Lords who have contributed to this debate today. Now that we have left the EU, it is essential that our legislation reflects this new reality, and I shall try to address the questions that were put to me. On the first, put to me by the noble Duke, the Duke of Montrose, I simply emphasise that there is and has been very close co-operation between the Government and the devolved Administrations, and between the devolved Administrations themselves. Waste policy is devolved, but the current UK approach on, for example, ELVs, gives no indication so far that the DAs have any intention of diverging. If there are exceptions to that, I shall come back to the noble Lord, but I am unaware of them. It is also the case that some elements are regulated at the UK level—for example, end-of-life vehicles, which therefore applies across the board.

The noble Baroness, Lady Bakewell, asked some quite detailed questions about the percentage of batteries disposed of, where they are exported to, and so on. I shall not be able to answer all her questions, but I shall do my best to answer some of them. As she knows, there are certain labelling requirements for batteries. The powers here would enable exemptions from labelling to be put in place if necessary, but currently there are no exemptions in place. There are numerous portables exported to major EU destinations, including Belgium. However, to provide the noble Baroness with a comprehensive list we need to get data from the Environment Agency, and we will do so on the back of this debate.

The noble Baroness also asked about agricultural waste. The amendments in this SI effectively reinstate the definition of an appropriate authority; that is what it is about. It amends EU 2013/1306, the horizontal or cross-cutting regulations underpinning the CAP schemes, in so far as they relate to the organisation of common markets and rural development measures. Defra previously transferred secondary legislation-making powers in this regulation to the appropriate authority—that is, the Secretary of State and the devolved Administrations. The noble Baroness, Lady Jones, asked the same question. Through the unintended effect of three interacting statutory instruments, the definition of the appropriate authority was deleted, so the amendment will allow the Secretary of State and the devolved Administrations to use these already transferred secondary legislation powers to develop and refine the technical details required to operate rural development schemes and marketing measures. The Scottish Government have told us that they wish to use these powers to make a Covid-related derogation in inspection rates for new Scottish domestic agricultural support schemes early this year.

The noble Baroness, Lady Jones, pressed me in this area and asked whether it was a one-off. I think it is; I would like to say so. I cannot absolutely guarantee that I will not come back with more, but my understanding is that we are done now—this is the end. The error was identified in summer last year, and we have taken steps to make the correction that we are dealing with now at the earliest opportunity. I am reassured that there were no adverse steps that we are aware of. Neither Defra nor the devolved Administrations have sought to use the particular powers that we are legislating for today since we left the European Union, so this has not cost us in any way. It was an error, but the error is being corrected. The human explanation is simply that there has been a flurry of activity since we left the European Union, as the noble Baroness knows as she and I have dealt with much of it. I think it is inevitable that some errors were going to be made.

I know that the noble Baronesses, Lady Jones and Lady Bakewell, asked other questions, but I will have to go through Hansard and find them and give the specific answers they are looking for, rather than waste time now, because I did not catch all the questions while I was going through my papers. In any case, I will need to consult the experts. I hope I have covered at least the most serious questions that have been put to me by Members.

To conclude, I am grateful to noble Lords for both understanding and accepting the need for this instrument. It is small but crucial. The changes it makes to repatriate powers to the UK correct an accidental omission in a previous SI, and it is clearly something that has to be done. This instrument makes it possible to swiftly update many technical standards, criteria, thresholds and conditions in the field of waste management to reflect the latest developments and to ensure that our high environmental standards are maintained. It will also enable our agricultural legislation regarding the organisation of common markets and rural development measures to function as intended. Once again, I thank noble Lords for their contribution and support today.

My Lords, I appreciate that the Minister said he will go through Hansard and perhaps give us a more detailed reply, but I suspect he already knows the answer to the last question I asked him. Partly on the back of the Brexit freedoms Bill, is there a wider review of the powers of the Secretary of State arising from the withdrawal Act, as set out in paragraph 7.6 of the Explanatory Memorandum? Is this a one-off, devolved to the Secretary of State, or are the Government going back and looking at all the provisions in the withdrawal Act? Is that a bigger process that Defra is involved in?

No, it is not. Defra is one of the busiest departments of government at the moment, not least because we have an enormous amount of follow-up to do following the passing of the Environment Act. An enormous amount of secondary legislation and work will follow. One area of the work we are looking at is how we can refine, and potentially improve, the habitats directive. That is also taking up a lot of bandwidth. What we are talking about here today is not the thin end of any kind of wedge. There is no overall Defra review that is happening. In the context of what we are talking about today, I can say that this is a one-off, as opposed to part of an overall review.

Motion agreed.

Committee adjourned at 5.53 pm.