Draft Floods and Water (Amendment etc.) (EU Exit) Regulations 2019
(Limited Text - Ministerial Extracts only)
Read Full debateThe Committee divided: - Ayes: 9 / Noes: 7 - Question accordingly agreed to.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Dr Thérèse Coffey)
I beg to move,
That the Committee has considered the draft Floods and Water (Amendment etc.) (EU Exit) Regulations 2019.
It is a pleasure to serve under your chairmanship, Sir Christopher. This is the second of the affirmative statutory instruments on the environment to be considered as the UK leaves the European Union, as provided for by the result of the 2016 referendum and as subsequently agreed by Parliament. In line with the European Union (Withdrawal) Act 2018, the regulations simply make technical, legal amendments to maintain the effectiveness and continuity of UK legislation that would otherwise be left partially inoperable, so that following our exit from the EU, the law will continue to function as it does today. As the Committee will see, this statutory instrument and others are quite lengthy and make many adjustments. However, I can assure the Committee that those adjustments represent no changes of policy; nor will they have any impact on businesses or the public. We have also worked with the devolved Administrations on this instrument, and where it relates to devolved matters, they have given consent.
Part 2 of the SI makes operability amendments to four Acts. Those amendments mainly replace the words “EU obligations” with “retained EU obligations” to reflect the fact that such obligations will be retained in domestic law after EU exit. Regulation 4 also addresses the use of the term “environmental objectives”, which is defined in the water framework directive. The amendments define that term by reference to our domestic legislation that implemented the water framework directive, rather than the EU directive itself.
Regulation 2, regarding the Water Act 1989, applies to England and Wales only. It changes “an EU obligation” to “a retained EU obligation”; similar changes to the Water Industry Act 1991 and the Water Act 2014 are set out in regulations 3 and 5 respectively. In regulation 4, similar changes are made to the Water Resources Act 1991, and under the definition of “environmental objectives”, to which I referred, we specifically mention the two river basin districts that cross the border between England and Scotland. That issue is tackled in further detail in part 3 of the SI, in regulations 10 and 11.
Part 3 amends technical deficiencies in several pieces of secondary legislation, and I will highlight the key types of amendments. Regulation 6 amends the Sludge (Use in Agriculture) Regulations 1989, which apply to England and Wales only. It places an obligation on the Secretary of State and Welsh Ministers to report every three years on the implementation of regulations, which reflects current reporting to the European Commission.
Regulation 7 amends the Urban Waste Water Treatment (England and Wales) Regulations 1994, which apply to England and Wales only. It changes references to EU law to references to “retained EU law”, and includes a requirement for relevant environmental reports to be published by the Secretary of State and the Welsh Ministers.
Regulation 8 deals with water fittings regulations, which extend and apply to England and Wales. That amendment removes automatic approval for plumbing systems and water fittings with EU or European economic area markings, but ensures that those products can still be approved if they meet the equivalent UK standard.
Regulation 9 amends the Drinking Water (Undertakings) (England and Wales) Regulations 2000, which extend to England and Wales. It changes the word “implement” to “implemented”, to reflect the fact that there will be no future requirements to transpose EU directives after exit.
I have already referred to regulations 10 and 11 regarding the cross-border river basin districts. Given that article 10 of the water framework directive refers to other directives that are already transposed into domestic law, there is no need to use article 10, as it has no impact on ongoing regulation. Our lawyers have devised this way of making sure that we do not have even longer, and even more, SIs than are necessary for regulation. If we did not omit article 10, the ongoing chain of cross-references in regulations would mean we had to make considerably more changes, and make other SIs even longer.
The Water Industry (Special Administration) Rules 2009 are amended by regulation 12. Rule 123(2) is omitted, as it refers to the EU regulation on the service of judicial documents between member states, which will no longer apply. The special administration regime is an insolvency regime specifically created for water and sewerage companies. It is a reserved matter, but the regime only applies to England and Wales, as Scotland and Northern Ireland have different water industry structures.
The Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010 apply to England only. They are amended by regulation 13 to allow products such as silos and slurry tanks that are of equivalent standards to the British standards to be installed, wherever they are manufactured.
Regulation 14 amends the Incidental Flooding and Coastal Erosion (England) Order 2011, which applies to England only. It changes the definition of “environmental objectives”, so that it relates to the domestic UK legislation that implemented the water framework directive, rather than to the directive itself.
Regulation 15 amends the Bathing Water Regulations 2013, which extend to England and Wales. The amendments correct cross-references to the bathing water directive that would be deficient on exit. A requirement is also included for the Secretary of State and Welsh Ministers to publish a report each year containing information about the bathing water season.
Similar amendments to deal with cross-references to EU legislation are made to the Nitrate Pollution Prevention Regulations 2015 by regulation 16. These regulations apply to England only. An obligation is also placed on the Secretary of State to publish reports on the implementation of these regulations.
Regulation 17 amends the Flood Reinsurance (Scheme Funding and Administration) Regulations 2015. This is a reserved area, so the regulations cover all the United Kingdom. A minor technical amendment is made to the reference to the scheme administrator’s obligation arising from directly applicable EU legislation. This will instead read as the obligations arising from retained direct EU legislation.
Regulations 18 and 19 refer to water supply and private water supplies regulations, which apply to England only. The amendments fix cross-references that are deficient. An obligation is also placed on the Secretary of State to produce and publish reports on drinking water quality.
Regulation 20 amends the England and Wales regulations that implement the EU water framework directive for operability. It replaces the term “EU instrument” with the term “retained EU law”. These amendments cover England and Wales, reflecting the fact that the two countries share a single set of regulations implementing the directive. The Welsh Government agreed to this approach. The Committee will recognise that the instrument makes operability corrections to regulations on the water framework directive, such as those governing the cross-border river basin districts between England and Scotland.
Just as with regulations 10 and 11, proposed new schedule 5 to the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 instrument makes a series of modifications to the water framework directive and two other connected directives, so that references to those directives continue to work properly after EU exit. This process includes modifying references to member states and to EU legislation, and omitting redundant articles, such as one referring to the European Commission resolving issues between member states.
The two sets of water abstraction regulations mentioned in regulations 21 and 22 extend and apply to England and Wales. The changes in regulation 21 reflect the changes made by the EU exit SI amending the Conservation of Habitats and Species Regulations 2017. Changes in regulation 22 fix cross-references to terminology used in the water framework directive to make it operable.
In part 4, there are technical amendments to several EU decisions. The amendments to and revocations of these decisions and other EU decisions extend and apply to all the UK; they have been drafted in liaison with the devolved Administrations, and with their consent.
Regulation 23 removes a provision about the entry into force date of the EU decision on symbols on bathing water signage. Regulation 24 removes a similar boilerplate provision in an EU decision on equivalence of microbiological standards. The substantive content of these decisions will be part of retained EU law on exit.
Regulation 25 amends the EU decision on the values of monitoring system classifications for water quality. This decision is amended so that references to obligations on member states in that decision are read as a reference to the appropriate Minister or regulator in the United Kingdom.
Regulation 26 concerns the EU decision on establishing a watch list of substances for monitoring in water. The watch list contains new substances that are of concern for water quality. Once several years’ data is collected on these substances, they may be placed on the priority substances list, and their presence in water would have to be tackled to meet water framework directive objectives. A United Kingdom watch list will be preserved; the instrument simply removes references to “Union-wide” monitoring.
Regulation 27 revokes three decisions. An EU decision establishing the list of priority substances to be monitored in water is revoked. These are substances considered most harmful to the water environment. The decision only inserted into the water framework directive a revised list of priority substances that has already been incorporated into domestic law through the implementing water framework directive regulations.
The EU decision to establish a list of monitoring sites to form a network for monitoring water quality will also be revoked. Most member states, including the United Kingdom, set up those sites some years ago, and the United Kingdom will no longer need to provide that list to the European Commission. The EU decision on formats for reporting to the European Commission under the urban waste water treatment directive will be revoked too, as the UK will no longer report to the Commission. All those proposed revocations were drafted in agreement with the four nations of the United Kingdom.
I emphasise to the Committee that the instrument addresses technical deficiencies in floods and water legislation to ensure that it continues to operate effectively when we leave the European Union. It does not introduce new policy, and preserves the current regime for protecting and improving the water environment.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Dr Thérèse Coffey)
It is a pleasure to respond to the points made by the hon. Member for Plymouth, Sutton and Devonport. I recognise that the hon. Gentleman wants to get into politics, and I am sure that the Labour Government in Cardiff will be disappointed to hear that the Westminster Labour Opposition have decided to vote against the SI to which the Welsh Government had consented and participated in drafting. I hope he will consider that carefully when he has the conversation with Lesley Griffiths to discuss their approach and why they do not believe the assurances given by the Welsh Labour Government.
I am conscious that a number of different words and terminology are used in the SI. I do not pretend to be a lawyer; I rely on my lawyers for that. I am pleased that we have got them here today to help answer many of the questions that the hon. Gentleman asked, but there are some procedural points for Parliament. First, the explanatory note states that
“no, or no significant, impact…is foreseen.”
I challenged my lawyers about it, but that is the wording that the Joint Committee on Statutory Instruments stipulates for such instruments. I wanted to remove the words “or no significant”, so that the wording would read “no impact”, but the procedures of both Houses did not allow me to take that approach. Further examples of wording decreed by the JCSI will continue to arise in every statutory instrument that we lay before Parliament.
The hon. Gentleman asked for clarity on some other legal elements, particularly with respect to the words “omitted” and “ignored”. The Government have adopted the drafting approach of using the word “omit” in reference to UK regulations that we are amending, but “ignore” in reference to EU directives that we are modifying. It would not surprise me if hon. Members wanted even more clarity, so I am happy to send a note to Committee members to set out the matter in more detail. The draft regulations use legislative wording in a technical format to ensure consistency; I will not pretend that every piece of legislative phrasing will necessarily be what we would use in general speech.
The hon. Gentleman spoke about stakeholders. I have to say that the document from Greener UK and Wildlife and Countryside Link was brought to my attention only today. Our reading room system, which is also available online, is open to a number of stakeholders, including stakeholders from Scotland, Wales and Northern Ireland, so that they can see our statutory instruments and comment on them. No stakeholder made any comment about the draft regulations, so the concerns raised today by the Opposition come as news to me, but I hope to address them.
The hon. Gentleman spoke in detail about how there will be no requirement to transpose future EU directives. He described that as a problem with the draft regulations, but the point is that we are leaving the European Union, so we will not be subject to future European directives as we have been before. It will be for this Parliament to decide what changes and enhancements to make to our environmental standards.
I assure the hon. Member for Bassetlaw that the draft regulations are not about trying to roll back or do different things; they are about ensuring that the law that we have today will still work on the day after we leave.
With respect to scientific expertise, updates and so on, it is fair to say that the United Kingdom has a strong record of contributing to EU-wide research. It is my understanding that the research used by the Commission is publicly available, so it will be open to us to use research shared across the European Union about any changes made, as well as research available domestically. I do not think that there will be an extra onus on advisers beyond what there is today. We work with other member states of the European Union when we are considering making changes to regulations, and I expect that that will still be the case.
The Greener UK briefing—which, as I say, was not presented to the Government with any questions in advance of this Committee—refers to article 20 of the water framework directive, which permits certain technical annexes and articles to be adapted by the European Commission based on scientific and technical progress. The concern has been raised that such powers will somehow no longer be in place. The power will be transferred to the Secretary of State and to Ministers in the devolved Administrations in a future DEFRA cross-cutting statutory instrument that will be entitled Transfer of Functions (Environment Directives) (EU Exit) (Miscellaneous Amendments). That instrument will be made under the affirmative procedure, but we deem that the functions that it transfers—including the function in question—are not time-critical for day one. We would be aware today of any changes that the European Commission proposed to make through the European Parliament and the European Council. No such change has been proposed at this stage; therefore, that function does not need to be ready for day one. We believe that laying the SI before Parliament in April will give us the powers and functions necessary for the future.
The hon. Member for Plymouth, Sutton and Devonport referred to WTO rules. I assure the Committee that this is about WTO rules that say, “You cannot treat one country differently from another.” The SI is about making that change. As it stands, standards in the United Kingdom are the same as in the rest of the European Union. We are bringing over those standards, and it will be for the United Kingdom to decide what standards are appropriate in the future. I remind the Committee that there are a number of differences, albeit not in this case, between us and most of the European Union, such as the way we treat electricity and our plug system. That does not mean that we will make big changes going forward, or would make them for the WTO.
I am not sure that the hon. Gentleman is right about insufficient care in drafting. I believe that we have covered the points that he made on the intercalibration network. The reality is that that work has already been done. It will not be done again; we do not see the need. As I said, the Scottish Government, the Welsh Government and directors on behalf of the Northern Ireland Administration agreed to revoke that decision, as well as to make some other changes.
On different levels of reporting—on whether reporting should be every three years, five years or two years—the point is that we are not changing what we have to do today. If we decide in the future that we want to change the reporting cycles, we can, but we will not do it through this legislation. We will bring over what we have to today, and that will become the requirement from day one.
I do not think that there is a need to introduce a review clause, or a sunset clause for review of any of the regulations. That would add unnecessary uncertainty—and, by the way, I would then be in contravention of what statutory instruments are allowed to do under the European Union (Withdrawal) Act, which allows me to make regulations only so that the system is operable, not to introduce new conditions. We are not trying to change stuff for the future; we are actually trying to keep it the same.
On the governance gap, the hon. Gentleman will be conscious of the draft clauses that the Government have tabled. So far, only in England is a proposal in place for a similar body to the European Commission in terms of scrutiny and powers. Other Governments will have to make their own decisions. Although Northern Ireland is interested in consulting on having an office for environmental protection, alongside that for England, we have not been advised by either the Welsh or the Scottish Government that they would like to do the same as us.
The hon. Gentleman asked why the amendment to annex IV of the water framework directive omits the words “Community, local and national” from the annex. The annex states:
“The summary of the register required as part of the river basin management plan shall include maps indicating the location of each protected area and a description of the Community, national or local legislation under which they have been designated.”
Such a description is required because that information would be pertinent to the European Union; it is not necessary in our domestic legislation.
I understand what the hon. Gentleman said about derogations. It is important to state that the Commission does not decide about a derogation; my understanding is that it will give advice. The Secretary of State will take over any function that the Commission has in relation to derogations; as now, they will continue to make decisions on derogations by considering the evidence against specific criteria. Those criteria are being brought into domestic law through the SI, both for drinking water and for nitrates. The basis for decisions will remain the same.
On drinking water, the United Kingdom has used derogations in the past. In England, the last one to be granted was in 2006 for a period of one year. I believe that it is fair to say that the UK has extremely high-quality drinking water, and we can meet all the standards in the drinking water directive. For that reason, we do not intend to use, or envisage using, the derogative provision in the future. With regard to nitrates derogations, the Secretary of State is required to publish on a regular cycle an explanation of why they have been allowed. For drinking water, the water supplier must publish the information; that will continue.
In my opening comments I went into some detail about why we have made changes to article 10. I explained to the Committee that the directives linked to article 10 have already been brought into UK law. I also explained to the Committee that if we do not do it this way, we will have even longer SIs, and more of them, to deal with those cross-cutting references. We believe that it is straightforward—I appreciate that not everybody is an environment lawyer—to make these changes. Greener UK did not raise this point with the Government before it published its concerns just a couple of days ago. I am very happy to take those away and explain to it why what we have done absolutely keeps our current obligations in our transposed law.
Luke Pollard
The example the Minister has just given sums up perfectly the concern that environmental stakeholders have about the volume of SIs coming out. Perhaps the Minister could reassure stakeholders that there will be additional scrutiny of future SIs, in order to give them, the Opposition and parliamentarians the chance to review properly what is being proposed.
Dr Coffey
As I say, the reading room—the pre-legislative procedure—is deliberately open to stakeholders. I shall take away the hon. Gentleman’s request for pre-access for Members of Parliament; I am not aware of that being the normal procedure, but I am very happy to check that. In essence, stakeholders did not share any of these concerns with the Government, even though they saw the regulations a week before they were laid before Parliament, which is why those concerns came as a surprise.
It is important to state that the reports that we will publish will be exactly what is provided for in current legislation. On formatting, we must recognise that the Commission puts forward proposals for 28 EU member states; we will be reporting on something that is fit for the United Kingdom. As for other nations in the UK, my expectation is that when we try to agree common frameworks, which we are starting to do, we will have regard to each other in how we go about reporting on different elements. At the moment, no change is required; the regulations just stop us from having to change our reporting in future if the European Commission decides to do something for the EU27, should we not think it necessary to change our reporting format. This will kind of ensure that we are not locked into certain aspects of the EU’s operational activities when we are no longer part of it.
I hope that I have answered a number of questions from the hon. Member for Plymouth, Sutton and Devonport. I am conscious that the legal wording can get rather technical, but I believe that the regulations do exactly what they say on the tin: they bring over the regulations that are required to ensure that the day after exit, things operate just as they did the day before—no more and no less. Otherwise I would have been breaking the Ministerial Code when I signed the transparency statement. There is no change in policy; the regulations are simply technical. I therefore encourage the hon. Gentleman to reconsider voting against the regulations. I point out that the Labour-run Welsh Government and the Scottish Government, run by the Scottish National party, have both endorsed this SI.
Question put.