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Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019

Volume 796: debated on Wednesday 27 February 2019

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019.

My Lords, the Government take the issue of waste and resource efficiency very seriously and place real importance on this area. We always have in mind the need for strong policies to enhance and promote the circular economy and encourage actions to reduce, reuse and recycle. This instrument being presented before your Lordships makes technical changes to ensure the operability of waste-related legislation after exit. These technical and legal amendments will maintain the effectiveness and continuity of UK legislation that would otherwise be left partially inoperable following our exit from the EU. We wish to ensure that the law will continue to function as it does today. It will preserve the current regime, ensuring protection and maintaining improvement in the environment.

I can assure noble Lords that these adjustments represent no changes of policy, nor will they have an impact on businesses or the public, or indeed put any additional burden on or require any working practice changes for the Environment Agency or other UK enforcement bodies. Our recently announced resources and waste strategy sets out how we will preserve our stock of material resources by minimising waste, promoting resource efficiency and moving towards a circular economy. At the same time, we will minimise the damage caused to our natural environment by reducing and managing waste safely and carefully, and by tackling waste crime. It combines actions we will now take with firm commitments for the coming years and gives a clear longer-term policy direction in line with our 25-year environment plan.

The instrument makes technical amendments to three waste-related Acts of Parliament: the Control of Pollution (Amendment) Act 1989, Part II of the Environmental Protection Act 1990, and the Waste and Emissions Trading Act 2003. It also amends 14 related EU regulations and decisions to ensure operability. The general changes in this instrument include amending references to the European Union, EU institutions and EU administrative processes to UK equivalents, and updating legal references to refer to relevant UK legislation. The instrument introduces modifications into the Acts of Parliament and retained direct EU legislation relating to waste, so that references to EU directives continue to function after exit day as they function before exit day.

One purpose of these modifications is to ensure continuity as to which public bodies exercise certain functions. Those obligations and discretions placed on member states under the directives will continue to be exercised after exit by the same appropriate authorities, appropriate agencies and/or local authorities before exit. In this context, “appropriate authority” means the Secretary of State in relation to England and each of the devolved Administrations in relation to their respective parts of the United Kingdom. “Appropriate agency” means the Environment Agency in relation to England and the relevant environment agency or body in the other parts of the United Kingdom.

The main amendments made to these EU regulations by this instrument are therefore to insert new provisions which set out modifications to the way in which references to EU directives in the EU regulations are to be read on and after exit day. Additionally, technical operability amendments are made to account for the fact that 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, known as EMAS.

In the United Kingdom, verification will be through a conformity assessment body accredited by the United Kingdom Accreditation Service. In the meantime, verifiers can still apply to be accredited EMAS verifiers through other member states offering the service. Defra made all the businesses and organisations directly impacted aware of this prior to legislation being laid.

Under the waste framework directive, there is a target to recycle 50% of UK household waste by 2020. As part of the technical amendments made by Regulation 21 of this instrument, we have made changes to ensure that the Secretary of State publishes a report called the “progress report” on whether this target has been met in respect of England. This progress report must be published by the Secretary of State before 1 January 2022. This instrument does not create an obligation on the devolved Administrations to publish such a report and it will be for each country to address these matters.

The instrument also revokes directly applicable EU legislation relating to waste. Some of this legislation is being revoked because it is redundant in a domestic context. For example, Commission Decisions 97/622/EC and 2009/851/EC set the format of questionnaires that EU member states complete and return to the European Commission every three years in relation to the implementation of EU directives on packaging waste and waste batteries respectively.

Some of the directly applicable EU legislation is being revoked because its requirements are already embedded in UK legislation. For example, Commission Decision 2003/138/EC covers material and component coding standards for end-of-life vehicles, and another, Commission Decision 2002/151/EC, relates to minimum standards for the certificate of destruction for those vehicles. In both cases, the requirements of these decisions are already set out fully in the End-of-Life Vehicles Regulations 2003.

We have worked very closely with the devolved Administrations on this instrument and, where it relates to devolved matters, they have given their full support and consent. These regulations will help to ensure that our waste management legislation continues to operate as intended, and as before, following EU exit. I beg to move.

My Lords, first, I declare my interests as a member of a local authority and a vice-president of the LGA. I thank the Minister for his comprehensive opening remarks and for his time and that of the Defra officials in the very useful briefing sessions held ahead of these SIs being debated. This SI, as indicated by its title, is something of a catch-all on the waste front, covering a number of waste issues from scrap metal to hazardous waste, batteries and accumulators, glass cullet, as well as landfill. I have a number of minor points to raise.

In paragraph 2.2 of the Explanatory Memorandum there is reference to the criteria for determining when certain of the materials that I have just mentioned would cease to be waste and to calculations of the efficiency of recycling processes. I would be grateful if the Minister could say what is meant by the,

“efficiency of the recycling processes”.

A number of EU Commission decisions on waste are revoked, and the Minister has just broadly referred to that. They include Decision 76/431/EEC, which concerns the setting up of a committee on waste management. This is referred to on page 2 of the Explanatory Memorandum and in the main SI on page 62. Can the Minister explain why there is no mention of a replacement committee on waste management? Is there no longer any need for this committee?

The Minister referred to Decision 2003/138/EC establishing component and material coding standards for vehicles, which is being revoked along with Decision 2005/293/EC on the reuse/recovery and reuse/recycling targets on end-of-life vehicles on the basis that they are already enshrined in UK law. I just wonder why they need to be mentioned if they are already enshrined in UK law.

The powers under directive 2008/98/EC, which were in place before exit day, will transfer after exit day to,

“the appropriate authority, appropriate agency or local authority”.

After exit day, the European Eco-Management and Audit Scheme, EMAS, will no longer have status and registrations will become invalid, although those wishing to can register under EMAS Global. The Government are proposing to make alternative provision for references to the certification of environment management standards by retaining a reference to a conformity assessment body. Transitional provisions will ensure that certifications granted to quality management systems will continue to be recognised as valid. Can the Minister say what these transitional provisions will be and when they will come into operation?

I am concerned about the mechanism for publishing and monitoring targets on waste. The Secretary of State is required to produce a progress report on the UK’s target to recycle 50% of household waste by 2020. However, this does not have to be published until 1 January 2020 and is not a requirement for the devolved Administrations, which the Minister has already referred to. Given the public’s concern about the level of waste, especially plastic waste, would it be better to bring this date forward so that action can be taken to ensure that the targets are met and adhered to?

This SI empowers the Environment Agency and equivalent bodies in other areas, including local authorities, to deal with decisions relating to landfilling of waste and waste from extractive industries, as well as waste criteria for metals, glass and so on. There is, however, no mention of additional resources being allocated to allow these agencies and bodies to take on these powers. Could the Minister say whether there are any plans to provide sufficient resources for this work to be carried out effectively and efficiently?

Finally, reference is made to the reclassification of some hazardous waste products in 1357/2014. The list in Annex III—I am very grateful to officials for providing this—which is referred to in the SI, contains some extremely toxic materials, including explosives, flammable liquids, irritants and carcinogenic materials. This is potentially extremely concerning and could have implications for public safety. Could the Minister give a little more detail on how this might be implemented?

My Lords, I thank the Minister for his introduction to this SI and his helpful prior briefing; I also thank the noble Baroness, Lady Bakewell, for her contribution.

As the Minister described, this SI contains a series of amendments to different aspects of the waste management system required to be in place by exit day. In the main, we are content with the proposals, which appear to replicate closely the current arrangements with the EU. These are regulations from which the UK has benefitted in the past and it is important that these standards are upheld.

However, I want to make a couple of points about the drafting, then I have some questions. On the drafting of the SI, although this is a very lengthy document, I found both the SI and the Explanatory Memorandum very clear and I commend those that drafted them. In particular, I welcome the inclusion in the SI of a very clear definition of who is the appropriate authority and appropriate agency in each case. The Minister will know that we have raised this issue time and again, but in this document, it is spelled out; indeed, the document goes further. Where there is a more generic reference, it is qualified by the phrase,

“the appropriate authority, appropriate agency or local authority which, immediately before exit day, was responsible for the United Kingdom’s compliance with that obligation”.

I commend that wording and I believe that this phrase could be used more widely in other SIs to avoid ambiguity. There is learning for us all in that.

I now have a few questions. Along with the noble Baroness, Lady Bakewell, I would be grateful if the Minister could clarify the arrangements for external verification, reference to which is made several times in the document. For example, on page 22, the amendment to Article 5(7) uses an EU regulation to define a “conformity assessment body”. Do the Government intend to retain that EU definition and accreditation in the longer term? Is that how we will operate—namely, that we will not have our own UK definition and we will stick with the EU definition?

Paragraph 7(c) adds that other accreditation can be solved through the EMAS scheme, which has been referred to. However, this seems to be slightly at odds with the wording on page 4 of the Explanatory Memorandum, which states that references to EMAS “will be omitted” and that any registration would have to be through EMAS Global. Can the Minister clarify that wording? What is the difference between EMAS and EMAS Global? Does EMAS Global have the same authority and impact as EMAS and are the same resources available to provide the required verification?

I refer now to the reporting on the UK target to recycle 50% of household waste by 2020. As the noble Baroness, Lady Bakewell, said, this is an issue of great public interest, particularly as we seem to be heading towards missing that very important target. This was a requirement to report to the EU, which has been replaced by one called the “progress report” to be published,

“in a manner that the Secretary of State considers appropriate”,

before 2022. I am grateful to Richard Gregson, the Defra lawyer, for sending me the existing wording to compare with the new wording. The original wording refers to an “implementation report” that should demonstrate compliance with the targets to the Commission. This is to be replaced by a progress report, which it appears the Secretary of State will publish to himself with no penalty for inaction.

Let us compare this to what would happen if we remained in the EU. I am advised that if a member state is found guilty of failing to meet targets in a directive, an EU penalty formula would be applied—in this case, a maximum fine of around €700,000 each day if we do not meet the target in 2020 and continue not to meet it for a significant period. It does not need too much imagination to see how that threat would concentrate the minds of those responsible for the targets in Defra. Moreover, it once again puts into stark relief the need for an independent watchdog that can hold the Government to account and issue fines that will deliver real compliance with these important environmental objectives.

I am very unhappy with the wording of this SI as it stands. It seems to represent a considerable watering down of the current provision and I would contend that it goes further and represents a policy change as the 50% target now becomes advisory rather than compulsory. This is of course compounded by the fact, as we have heard, that the targets will apply to England only with no obligation on the devolved nations to report. I ask the Minister to look at this wording again to bring it more in line with the expectation of implementation as set out in the original wording and to put on record that the interim watchdog, the details of which we still await although the clock is ticking, will have equivalent powers to issue fines similar to those currently in operation in the EU.

Finally, on a small point of detail, there is a provision on extractive mining which covers the definition and the dangers therein. However, paragraph 5(c) of new Article 2B on page 16 of the SI includes a reference to,

“Article 2 of Council Directive 2009/158/EC on animal health conditions”,

relating to trade with the EU and third countries in “poultry and hatching eggs”. I struggle to see the connection between poultry and hatching eggs and extractive mining. I would be grateful if the Minister could explain that connection and why this provision appears not only in the paragraph that I have referred to but in several others. I am curious to hear the answer to that, but I look forward more seriously to his substantive response on the issue of waste targets.

My Lords, I first thank the noble Baroness, Lady Jones of Whitchurch, for her generous remarks on the drafting of the statutory instrument and Explanatory Memorandum. I am the first to say that I always go to the Explanatory Memorandum and hope that I can then somehow figure out the statutory instrument—so many regulations can be most complicated. I will pass the noble Baroness’s remarks back as a template; they are on the dot.

I re-emphasise from the start that these regulations make only technical changes that maintain continuity. They will not: make any changes to policy; lead to any change in operational delivery; impose additional costs on businesses, individuals or public organisations; or result in any additional environmental impacts, compared with the legislation being amended or replaced.

The noble Baroness, Lady Bakewell, made an important reference to the efficiency of recycling processes under paragraph 2.2 of the Explanatory Memorandum. Regulation 493/2012 sets out a method of calculating recycling efficiency in relation to waste batteries and accumulators. The calculation method is set out in Annexe I to that regulation. It provides a standard approach for all recyclers of waste batteries so that, in any given case, it can be confirmed whether recycling processes have met the minimum efficiency standards set out in Annexe III to Directive 2006/66/EC. I am sorry to be technical again, but I wanted to make that response.

The noble Baroness, Lady Bakewell, also asked about revocations in relation to the end-of-life vehicles directive. The three EU decisions relating to that directive, referenced in the Schedule to the instrument, are to be revoked instead of being retained and amended. Commission decision 2001/753/EC sets out a questionnaire for member states to report on the implementation of the end-of-life vehicles directive. Following exit, the requirements of this decision would be redundant. The requirements of the two Commission decisions on end-of-life vehicles which relate to minimum requirements for the certificate of destruction, and component and coding standards, are already implemented in UK law. This has been done through Regulation 29 in Schedule 3 and Regulation 15 in Schedule 2 respectively to the End-of-Life Vehicles Regulations 2003. Accordingly, these two decisions are to be revoked as their requirements are already embedded in domestic legislation.

I very much agree with the noble Baroness about plastic waste. Clearly, a huge amount is going on in both the public and private sector to reduce the use of plastic, in relation to the resources and waste strategy as well as what we look to retailers to do, but clearly there is much more to be done. I will endeavour to explain the references to the reporting progress requirement, which the noble Baroness, Lady Jones of Whitchurch, emphasised. As has been said, Article 5 of Commission decision 2011/753/EU, as amended by this instrument, requires the Secretary of State to publish a progress report before 1 January 2022. Following exit, it would not be appropriate to publish a report on the implementation of EU obligations.

This amendment commits the Government to publish a report on progress towards the attainment of the 50% target set out in law for England and the devolved Administrations. The format of this report is to be determined, but it would set out whether England has attained the target and any other necessary information on progress in relation to these targets. On the question of progress or implementation, my understanding is that it is all related to it being set out as before: a report on the implementation of an EU obligation would no longer be an obligation when we are no longer a member. The noble Baroness should not interpret removing “implementation” and putting in “progress”—

I am sorry to intervene but on this important subject of reports on recycling, particularly of plastic waste, which my noble friend will remember that I am very interested in, he seems to be saying that this is about implementing an EU obligation which we will no longer have. I thought that the principle of these regulations, which I fully support, was to bring into UK law equivalent provisions to those that exist in EU law. Therefore, it would be helpful if he could tell us—either now or in writing—what the plan is for reporting on the recycling of plastic and other waste in the UK once these regulations come in, because I am worried that there might be a gap. I think that is what the noble Baroness was saying earlier.

Perhaps I might add to that. One cannot have it both ways, as the Minister is trying to do here, because the new wording says that in the progress report for 2020, the Secretary of State shall demonstrate,

“compliance with the targets set in article 11(2)”

of directive 2008. It makes reference to that directive, so it is either a progress report or an implementation report. Either way, it is referring to the directive, and I would contend—as with the noble Baroness’s helpful intervention—that an implementation report puts slightly more teeth into it than a progress report.

The noble Baroness is absolutely right. It is in reference to Article 11(2) of the waste framework directive, which is still referred to in domestic legislation with the modifications that have been made in this instrument. The 50% household waste recycling target is already part of our statute. I understand what she says: she thinks that “implementation” is stronger than “progress”. But because it is already in statute, it is still going to have to deal with whatever references are contained in Article 11(2). There will still be the same requirements of that directive in setting out whether the target has been attained and any other relevant information.

The noble Baroness referred to the environment Bill, which clearly everyone is waiting for. Everyone will be waiting for the new independent body—the office of environmental protection, with its powers to review and take action in relation to the attainment of this target. We will definitely need to attend to those points.

I also have some references, which I have mentioned before. It is understood that with the environment Bill not being on the statute book until sometime in the second Session, while I am not in a position today to talk about the form of that body, the Government have made it absolutely clear that there will be no governance gap. If there were any issues between the day of exit and the day of that office having legal authority, it would be in a position to act on it with full authority. Clearly, the body needs to have a legal entity but, in the meantime, interim arrangements will be announced should there be a governance gap. Obviously we are seeking a deal. I think noble Lords realise that everyone wants a deal, meaning that there would not be a governance gap, but if there is a need to ensure that these matters are attended to, announcements would be made.

Perhaps I should not quibble about the word, but I had better use it again and refer to the “progress” report. We will publish, as we do, yearly statistics setting out the UK and devolved Administrations’ progress towards meeting the 50% recycling target. We need to do it.

I am afraid that I did not realise my noble friend Lady Neville-Rolfe has been here since the beginning of the debate. I am sorry. I would have expected her to say something before. These statutory instruments are absolutely to do with operability. We will need to attend to a range of areas through the resources and waste strategy and the clean growth strategy. As I said, work is going on in the public and private sectors to ensure that we move quickly to a circular economy so that we are less wasteful as human beings.

On efficiencies and transitional provision for EMAS, EMAS Global is the European Commission’s answer to allowing non-member states to enter and place goods on the market in accordance with the management standards set out in EMAS. Those are the arrangements as I understand them.

The noble Baroness, Lady Jones, mentioned the wording “appropriate authority”. This wording has been used more frequently in exit SIs where modifications have been made to EU directives. By their nature, directives often place obligations on a number of different authorities, and we need to maintain that effect. In other EU regulations, decisions are placed more firmly on a finite set of authorities and bodies. In those cases, EU exit legislation will refer specifically to the authority in question.

On poultry and the connection between extractive waste and animal health, given the reference in Regulation 9, I should say to the noble Baroness, Lady Jones, that the reference to EU poultry legislation relates to modifications to the industrial emissions directive which is further down the page. The connection between the two is that the industrial emissions directive applies to pollution arising from industrial activities. One of those activities, which is described further at 6.6 of Annexe 1 of the industrial emissions directive, is the intensive rearing of poultry and pigs. I hope that explains how that appears on that page.

The noble Baroness, Lady Bakewell, raised hazardous waste. Annexe 3 of the waste framework directive sets out the definition of waste which can be classed as hazardous. The statutory instrument makes provision in law to allow reference to Annexe 3—I am sorry, I will have to set that out more clearly—in delivering what waste can be considered hazardous. I have an awful feeling that my official must have been a doctor in another life—prescriptions for chemists are always interesting. I should declare that I have three godchildren who are doctors.

As to who and what are the verifiers that will replace the EU bodies, in the case of end of waste, UK-based conformity assessment bodies—CABs—can take on the role of verifier to assess whether producers and suppliers have the appropriate management systems in place. We are confident they have sufficient expertise because the option to verify a management system through a UK-based CAB already exists and is currently used by producers and suppliers. Previously, this could be done through either a UK-based CAB or an accredited EU-based body, referred to in the statutory instrument as “any other environmental verifier”. The SI will remove this second option so that, after exit day, verification will be done only through a UK body.

Three verifiers are accredited by the UK Accreditation Service—UKAS. These independently verify that the environmental management system—EMS—and the environmental statements prepared by organisations applying to be registered with the EU eco-management audit system meet the conditions for being part of the scheme. For example, for an EMS to meet the requirements of the ISO 14001, internal audits will be undertaken, including checks on legal compliance, environmental performance improvements and environmental statements. Arrangements are in place, but I will look at whether any further details would be helpful.

I want to respond on one further issue. We are not weakening our environmental protection. We will maintain, and wish to enhance, our already high environmental standards. The EU withdrawal Act will ensure existing EU environmental law continues to have effect in UK law. We are absolutely clear that this is a technical instrument to ensure that the law is operable. In every case, there is no change to policy or to the environmental standards already in place. We have a lot of work to do on enhancing the environment, and the reduction of waste and moving to a circular economy is a clear component of that. We want to ensure that this country is in a better state than when we inherited it. It is important we make sure that this operability SI is successful.

Unless I missed it, the Minister did not refer to the committee on waste management. I am very concerned about what, if anything, will replace it.

Motion agreed.