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International Waste Shipments (Amendment) (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 International Waste Shipments (Amendment) (EU Exit) Regulations 2019.

Relevant document: 14th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

My Lords, the primary aim of this instrument is to amend EU and domestic legislation on waste shipments to enable their continued operability. The technical changes contained in this instrument will eliminate the risk that UK regulators would be unable to prosecute for, or prevent, illegal shipments of waste. They also provide legal clarity, certainty and reassurance for UK businesses involved in waste shipments. The legislation is this area is reserved, but this instrument has been the subject of extensive consultation with the devolved Administrations, who are content.

This instrument makes many adjustments, and I will highlight some of them. Noble Lords will not be surprised to learn that they are fairly technical in nature.

Part 2 corrects outdated references to the “Department of the Environment” in Northern Ireland to its new name, the “Department of Agriculture, Environment and Rural Affairs”.

Regulations 14 and 15 omit references to “Community Regulation”. Regulations 16, 17, 42 and 43 omit provisions in the domestic legislation relating to EU bodies, historic transitional provisions and previous revocations, which are all now redundant.

Regulations 18 to 25 make provision for the UK Plan for Shipments of Waste, dated May 2012, to continue to have effect and to be changed in the future.

Regulations 26 to 41 make technical changes to the offence provisions in the domestic regulations. These changes preserve the scope of existing offences and ensure that no new offences are created.

Part 4 removes references to the relevant retained EU law in Annexe XX to the European Economic Area agreement. The references are no longer needed because the retained EU legislation on waste shipments has been amended so that it sets out all of the rules which govern shipments to or from EFTA countries.

Regulations 46, 47, 50, 63 and 105 to 108 amend the scope of retained EU law to make it clear that it applies to waste shipments to, from or through the UK; they also correct definitions and out-of-date references to EU legislation.

Regulation 48 amends definitions and make technical changes to ensure that references to competent authorities and references to the 2008 waste framework directive, which appear throughout the retained EU legislation, will continue to be effective.

Regulations 52 and 53 make technical changes that preserve the existing powers of the regulators to object to notifiable waste shipments for disposal or recovery. The draft instrument substitutes references to principles in the EU’s waste framework directive with Basel convention obligations to have adequate disposal facilities and to minimise the movements of hazardous wastes and to ensure that shipments of wastes are only allowed if the state of export does not have the facilities to dispose of the wastes in question in an environmentally sound manner. The changes also ensure that regulators can continue to object to proposed shipments where the destination operates to lower environmental standards than those in the UK.

Regulation 69 omits Article 33 of the EU regulation, as this requires member states to set up systems for internal waste movements consistent with the system used between member states. Given that the UK has a system for internal waste movements, these provisions are considered redundant.

Regulation 91 makes a number of amendments to enforcement provisions. The provisions of Article 50 have already been implemented in the UK and so some of these provisions are redundant and can be omitted. The changes made preserve the requirement for a national inspection plan.

In addition, Regulation 91, and Regulations 92, 94 and 96 make changes that preserve obligations to report to the secretariat of the Basel convention, publish information and omits obligations to designate competent authorities and provide information to the European Commission.

Regulation 95 makes technical changes that maintain a power for the Secretary of State to designate places where waste entering or leaving the United Kingdom will be controlled.

Although there was no statutory requirement to consult on this instrument, Defra officials have engaged with industry and NGO representatives. The Explanatory Memorandum refers to,

“a large face-to-face event”.

In fact, there have been two large events and a number of one-on-one meetings with industry representatives to explain this instrument’s approach. No substantive comments or issues were raised, and questions received related to clarification on how the existing processes will function after the UK leaves the EU.

The Committee will be aware that the Secondary Legislation Scrutiny Committee raised concerns about the UK’s ability to continue exporting hazardous and other notifiable waste to the EU in a no-deal scenario. On the basis of those concerns, the committee recommended that this instrument should be subject to the affirmative resolution procedure. It highlighted a transitional issue with the validity under EU law of approvals to ship notified wastes where those approvals extend beyond the date of the UK’s withdrawal from the EU. The Committee will be pleased to hear that this issue has now been largely resolved.

Should the UK leave the EU without a deal, the UK regulators have obtained agreement from their EU counterparts that 98% of the approvals to ship notifiable waste to the EU can continue in their current form. No new applications will be required to allow the export of these wastes, and there will be no additional administrative costs associated with the approvals process. Spain is the only member state still to provide a response to 11 approvals. Defra officials have met with officials from the Spanish ministry of environment. Given that these shipments have previously been approved, there is agreement on both sides that it is important to avoid unnecessary duplication.

These adjustments represent no changes of policy. While there was no statutory duty to conduct an impact assessment, in developing these instruments we have sought to ensure the minimum disruption to businesses involved in the shipment of waste through retaining existing law. I beg to move.

My Lords, I thank my noble friend for setting out the background to this instrument, which I welcome. I would like to ask a couple of questions.

The Minister referred to a national plan being in place. Has anyone voiced concerns about this plan? Are they entirely happy with it? At what date will that national plan kick in?

I think that my noble friend has addressed the concerns raised by Sub-Committee B of the Secondary Legislation Scrutiny Committee, but there was a scenario referred to whereby 556 UK approvals to export notified waste to the EU, with an associated tonnage of just under 25 million tonnes, might be caused to fall into an abyss. Can my noble friend put my mind at rest that the situations in paragraphs 3.6 and 3.7 on page 3 of the Explanatory Memorandum have been resolved?

My Lords, I would also like to thank the Minister very much for participating in a meeting—I only managed to get to the very end of it, but the invitation was there. I also congratulate her on making what seems like a mundane statutory instrument really exciting through the enthusiasm of her reading.

However, this is an exciting issue, and it is a global issue. This whole market has fundamentally changed since the beginning of last year—almost a year ago—when China refused imports of what it called low-grade plastic, anything below about 99.7% pure plastic recyclate. Since then, that tide of waste from the developed world to the developing world has now been stopped by Thailand temporarily, as well as by Vietnam and Malaysia. We had the irony of President Trump blaming Asia for the litter that was washing up on the west coast of America, when of course most of it had already been exported from developing countries, particularly the United States, to east Asia. I will come back to this theme at the very end, but I want to put this SI in the context of an important issue and a quickly changing world.

Perhaps I could go through a few questions about the SI itself. I understand from it that we are, obviously, already members of the OECD and tied by those regulations and agreements, but are also we signed up not just as a member state of the EU but as a member in our own right to the Basel convention, which covers this area, so that we do not have to have a treaty change for that?

I was interested that the Minister mentioned Spain and, as I understand it from her, we have got to a stage where we are agreeing to agree but have not actually agreed. I understand also that the SI’s territorial limitations are to the United Kingdom. Does the Minister have any information about the relationship between Gibraltar and mainland Spain regarding its waste disposal? I think that the overseas territory—that is its status—relies very much on Spain for that as well. I do not know whether that is included as part of the negotiations going on at the moment.

I note the Minister’s remarks on consultation, but I would be interested to understand whether waste contractors and waste exporters have now been sent precise instructions on what they have to do.

I found the actual form on page 33 of the SI rather quaint. It read a little like one of those forms you get when you go to the United States, which says, “Have you indulged in terrorist activities recently?”, as if you are going to casually tick that for yes. I was quite surprised to see such a 1950s-style document here, but perhaps it is all computerised. I would be interested to understand that from the Minister.

I want to be clear on another area which affects all these things. As we know, Defra is the department that has suffered more cuts under our fiscal regime than pretty well any other department, outside that for local government—the MHCLG, as it is now. Does the Environment Agency have the capacity to take on any additional responsibilities in this area, particularly given the rise in waste crime that there has been? Frankly, I suspect that the amount of waste crime internally in the UK is absolutely dwarfed by the amount of potential exported material that should not be exported. Despite saying that we should not export waste to countries that have lower environmental standards than us, I see no track record of that whatever.

I come back to the fundamental point I made at the beginning. I read through the resources and waste strategy published by Defra at the end of last year. Chapter 6 of that is entitled “Global Britain: international leadership”, and I could not see anywhere in it a wish to stop this trade in waste, so that we would clean up our own backyard and no longer send that waste to other parts of the world. The greatest thing about this SI ought to be that it should become absolutely redundant within five to 10 years.

My Lords, I join in thanking the Minister and her officials for a useful and helpful discussion yesterday. It was probably intended to answer questions to shorten this debate, but unfortunately it gave me more things to think about after the discussion, so it may not have achieved its end. However, I appreciate the trouble the Minister and her officials went to to answer questions and to brief us.

I appreciate this SI is based on the Basel convention, which is not an EU convention, and therefore it is quite right that we should conform to it. I also hope that the bulk of what we are talking about will be proved unnecessary if we do not crash out of the EU, as some people fear. I am not sure whether yesterday’s discussions in the House of Commons have made that easier, but that is not for debate today. I understand that something has to be done, even if we leave the EU on the basis that the Government are suggesting, as some elements of this will have to be carried over eventually, but that is not for today.

There is obvious concern about Spain and Gibraltar but not because there may not be a simple answer. I read in the papers that the Spanish Government are concerned about Gibraltar and may be using this and other measures to bring pressure to bear on our Government about the future of Gibraltar. The danger is that this may drag on beyond the exit date—although we now probably have three months longer—but what happens if the Gibraltar and Spain issue is not resolved by the time we leave the EU? How many businesses will be affected? What is the position there? The House of Lords Secondary Legislation Scrutiny Committee was,

“concerned that any refusal by a competent authority to treat an existing approval as valid could have an impact on the UK’s ability to export notified wastes”.

If we cannot reach an agreement with Spain in time, we would presumably have to have new agreements with other countries to get rid of the waste there, or are we stuck with it? What is going to happen?

I have a few more questions beyond Spain and Gibraltar. Do the Government expect an additional workload for the UK’s competent authorities—the Environment Agency, the Scottish Environment Protection Agency, the Northern Ireland Environment Agency and Natural Resources Wales—as a result of Brexit? What will be the cost to taxpayers of any additional workload?

The Secondary Legislation Scrutiny Committee recommended that the instrument should be upgraded,

“to the affirmative procedure so that the House may consider any potential impact on UK manufacturers”.

Can the Minister tell us a little more about what impact there might be on British manufacturers? Is there an impact assessment somewhere, or do the Government feel one is not necessary?

Paragraph 6.4 of the Explanatory Memorandum, which is perhaps easier to understand than the main document—that is not surprising—states:

“Provisions …. on waste shipments, which transfer legislative powers from the European Commission to the Secretary of State, are included in a separate cross-cutting transfer of legislative functions instrument relating to the environment”.

Is that a different statutory instrument? If so, which is it, when will it be published and how does it relate to the SI we are discussing now?

Paragraph 7.4 states that, in the event of no deal,

“UK exporters will need to familiarise themselves with the customs guidelines the EU has laid down for imports of waste from outside the EU”.

What have the Government done to publicise these guidelines to UK exporters? What is the cost to UK exporters if we leave the EU without a deal?

Paragraph 7.6 states that the instrument is:

“Amending references to the EU and EU institutions and administrative processes to UK equivalents”.

What are the UK equivalents? What is the cost to the UK taxpayer for this additional workload? Will the UK equivalent institutions need to take on new members of staff to handle the administrative processes? How many new members of staff have already been hired to deal with this?

Paragraph 7.8 states:

“A number of amendments … on waste shipments are not included in this instrument but will instead be contained within a separate cross-cutting statutory instrument relating to the environment”.

Which SI is that? Is it the one I asked about earlier? Has it already been published? If no, when will it be?

Paragraph 10.2 states:

“Government informally engaged stakeholders at a large face-to-face event … No substantive comments or issues were raised”.

What stakeholders did the Government engage with? What were their concerns?

Finally, I am not trying to pull a fast one, but page 29 of the instrument refers to Article 55 under the heading “Designation of frontier crossing points”. I must ask about Northern Ireland; the Minister is nodding. Is any waste going back and forth between Northern Ireland and the Republic? If so, what are the implications of this designation on the wider discussions concerning an open border between the United Kingdom and the Republic? I should have given the Minister some warning about the last point; she will not have been expecting it, but I thought I should make it anyway.

I thank noble Lords for their contributions, especially the noble Lord, Lord Dubs, whose approach to this SI has been particularly forensic—I hope that he will do many more. I will address some of the issues raised today. A number of questions were asked that go into slightly more detail beyond the nugget of legislation that noble Lords are looking at today. I will therefore probably write a letter in addition to what I say today, particularly on the border crossing issue, which goes far beyond the scope of our considerations. I hope that I can answer noble Lords’ questions and put their minds at rest.

My noble friend Lady McIntosh mentioned the UK plan. I assure her that there are no concerns about the UK plan; it has been in place since 2012 and will continue.

Furthermore, my noble friend referred to the 556 approvals. She is quite right: when this instrument was laid, it looked like we had a mountain to climb in getting this waste approved and out of the country. I am pleased to say that this is an example of us working really well with our EU counterparts, who recognise the same as us that the shipment of this type of waste is hugely beneficial on both sides. It is an economic arrangement and makes sure that we get our waste treated in the right place, particularly where we do not have the capacity to do it ourselves.

The noble Lord, Lord Teverson, mentioned the trade in waste, both with China and more generally. If we lived in a perfect world, we would be able to dispose of and treat waste in our own nations, and that would continue for ever. However, some waste has a greater economic value to other countries or they have greater facilities to process that specific sort of waste, so I cannot see a future, at least in the short term, where we will ban all waste exports, because we simply cannot deal with some waste ourselves. However, we want to promote UK-based recycling and export less waste to be processed abroad. We are looking at a suite of measures, such as increasing the monitoring of international waste shipments and charging higher fees to improve compliance. We set out all these ideas in the recent resources and waste strategy, as the noble Lord will know, and we will publish more detailed plans soon.

The instrument retains the prohibition on the export of waste for disposal to countries outside the EU or the European Free Trade Association. The export of hazardous or household waste for recovery to countries outside the OECD is prohibited. Where we export waste destined for recycling to countries such as China—there will be other examples—that are better able to cope with this sort of waste, they will have specified which wastes they are willing to import and the procedures that UK exporters must follow are very well set out.

Do we have officials who check what happens to this stuff once we have exported it outside the EU and EFTA? Do we follow the supply chain and check what happens to it?

I would not want to confirm that 100%, but I hope very much that that is the case. I will investigate exactly what happens in the supply chain in order to find out whether we know exactly what happens at the other end. I think that all noble Lords will find that interesting; I know that I certainly would.

Turning to the Basel convention, I can confirm that we are members in our own right and that in fact we play a leading role within the convention in the way that it moves forward. We ensure that we get the best environmental outcomes from that particular organisation. That will remain the case and noble Lords should be reassured in that regard.

On Gibraltar, we are working closely with the Government of Gibraltar to support their EU exit preparations on waste shipments. Where the UK has 11 approvals outstanding, Gibraltar currently has 45 consents to ship waste to Spain which extend beyond exit day, and these will require reapproval by the Spanish authorities. It is a transitional issue for approvals to ship waste which have already been consented to. The EU legislation provides a framework for where consent has yet to be granted. Gibraltar is covered by the UK’s ratification of the Basel convention and our membership of the OECD, so there is no legal impediment to Gibraltar continuing to ship waste to Spain after our departure from the EU. If no agreement is reached within the next short period of time, what will happen is that Gibraltar would put forward new applications which will be submitted from 30 March onwards. Again, there is no legal impediment to those applications being agreed to. There will be a slight break in the continuity of service, but we do not think that it would be for very long. The Environment Agency has spoken to the affected exporters and contingency plans are being made.

I turn now to consultation, an issue which was raised by the noble Lord, Lord Teverson. This is a technical instrument and, if I may coin a phrase, nothing has changed. Much of what happens already will continue to happen. Organisations will get their approvals. There will be two countries working together, and the waste will go from A to B. However, it is important that we make sure that everyone is aware of the plans we have in place. As I explained earlier, we have held events where we talked to the stakeholders involved in this area. The conversations were focused strongly on contingency planning and encouraging them to make sure that they are ready for Brexit, if it is a no-deal Brexit, on 29 March. We have issued a technical notice on the continuity of waste shipments which was published on 14 October.

A number of questions were asked about costs and resourcing. I would like to reassure noble Lords that much of this will not change. The amount of enforcement which has to happen will stay the same, and the number of applications which have to be submitted to a certain office in a certain place will also remain as it is. We do not foresee any significant changes in costs or additional resources being required as a result of us leaving the EU without a deal. The systems are already in place, and we are confident that they will continue.

I would like to respond to some of the questions put by the noble Lord, Lord Dubs. He mentioned the sister—or brother—legislation, which has been mentioned. This is happening with some of the no-deal SIs, in particular Defra SIs. Some of the cross-cutting SIs are picking up various issues from other SIs and putting them into one because they sit more comfortably with each other. The SI we are talking about is the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019. These regulations were approved by the House of Lords on 12 February and the instrument was then passed by the House of Commons on 14 February. That piece of legislation has gone through and, once this instrument has gone through, the two will combine together and the SI will be made.

Turning now to the imports of waste from Ireland and the impact on the Irish border— which again I will try to answer as much as possible—we have in the past agreed to allow imports of hazardous waste to the UK for specialist disposal, for example, by high-temperature incineration. This has been at the request of the Irish Government, and these imports have been agreed on the basis that suitable disposal facilities are not available in Ireland. This is the same for many countries when they work together on these transactions. When the UK leaves the EU, such import of waste for disposal from EU member states will be prohibited under EU law. If EU member states wish to continue to export waste to the UK for disposal—that is, from Ireland to Northern Ireland—it will be for the EU to amend its legislation to make this possible. So it will not be possible in the future. In 2017, the UK imported 12,973 tonnes of waste from Ireland. Of this, 7,978 tonnes of hazardous waste was imported to England for HTI.

I shall probably stop at this point on the Northern Ireland-Irish border issue. I can see myself getting into hot water around it, and it would be sensible for us to give a considered response on this specific issue.

However, in general terms, I hope noble Lords will agree that the SI does what it says on the tin and keeps as much the same as possible. We hope it will not be needed in the future, but if it is, we know that the international transfer of waste will happen in an orderly fashion. I commend the Motion to the Committee.

Motion agreed.