Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Barker) (LD)
My Lords, the hybrid Grand Committee will now begin. Some Members are here in person, others are participating remotely, but all Members will be treated equally. I ask Members in the Room to respect social distancing. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes. The time limit for this debate is one hour.
UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (Consequential Provisions and Modifications) Order 2021
Viscount Younger of Leckie
That the Grand Committee do consider the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (Consequential Provisions and Modifications) Order 2021.
Viscount Younger of Leckie (Con)
My Lords, I beg to move that this draft order, laid before the House on 14 April 2021, be considered. I am grateful for the opportunity this afternoon to debate this important order, which allows the Scottish Government to fully implement their new environmental governance body, Environmental Standards Scotland, which I will now refer to as the ESS. This order is part of the Government’s ongoing commitment to devolution and is made in consequence of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021, which I shall now refer to as the continuity Act.
I will begin by providing some background to this order, which is to be made under the Scotland Act 1998. The 1998 Act devolved powers to Scotland and legislated for the establishment of a Scottish Parliament. Scotland Act orders are a form of secondary legislation made under the 1998 Act, which are used to adjust Scotland’s devolution settlement. The order before your Lordships today is a Section 104 order, which allows for necessary or expedient legislative provision in consequence of an Act of the Scottish Parliament. In this case, provision is required in consequence of the aforementioned continuity Act.
The continuity Act, which received Royal Assent on 29 January 2021, enables Scottish law to continue to keep pace with future EU developments, following the UK’s exit from the EU. It also establishes a new regime of environmental governance in Scotland, including the new governance body, the ESS. The ESS will enforce compliance by the Scottish Ministers and public authorities in Scotland with environmental law, and it will assume statutory powers and functions once fully vested. The ESS will also provide scrutiny of the effectiveness of environmental law and of its implementation and application. Reserved bodies in Scotland will naturally be excluded from its oversight.
It must be emphasised that the purpose of the debate is not to consider the content of the continuity Act or the powers of the ESS; rather, the amendments to reserved legislation that the order seeks to implement. The Scottish Parliament has already legislated to create the ESS, but consequential amendments are required to reserved legislation to give full effect to the ESS and allow it to carry out its functions.
I will now turn to the instrument itself and explain what it does. Its consequential purpose is twofold. First, it will make the ESS part of the Scottish Administration. This will provide for its designation as a non-ministerial office that is independent from Scottish Ministers but accountable to the Scottish Parliament. It also provides that the Crown Suits (Scotland) Act 1857 does not apply to the ESS, with the effect that the Lord Advocate cannot sue or be sued in place of the ESS. Secondly, it amends the House of Commons Disqualification Act 1975 by adding the ESS to the list of bodies whose members are disqualified from being Members of the House of Commons. This is required to ensure the independent basis of the body’s work.
The Scottish Government are unable to make these amendments to reserved law, so, without the order and the small changes it makes to UK legislation, the Scottish Government could not confirm the ESS as a body of the Scottish Administration. It would also mean that members of the ESS could stand in the House of Commons, which would undermine its purpose as an independent body.
Your Lordships may wish to note that equivalent provisions for environmental governance in England are contained in the UK Government’s Environment Bill. This Bill completed its Second Reading in this House yesterday, 7 June, and is now preparing for the Committee stage. Like the continuity Act, the Bill sets a new and ambitious domestic framework for environmental governance. The Government are aiming for the Environment Bill to have Royal Assent by the autumn.
This Bill will set up the office for environmental protection, which I will subsequently refer to as the OEP. The OEP is a similar organisation to the ESS and will hold the Government to account on their environmental commitments. Both the ESS and the OEP are still being set up. However, I can confirm that the ESS has been operating on a shadow, non-statutory basis since 1 January 2021. A transition team has been appointed to help to establish the ESS and to ensure that it is prepared to take on its statutory functions once vested. Similarly, work establishing the OEP is continuing at pace. From July 2021, the new interim office for environmental protection will be set up in non-statutory form to provide independent oversight of the Government’s environmental progress and to build a strong foundation for the OEP delivering its full statutory functions.
There will naturally be scenarios where governance bodies in different parts of the UK will have to co-operate on issues where there is an overlap or joint exercise of reserved and devolved powers. As independent bodies, it will be for these bodies to determine how best to work on these issues. However, we can be sure that good communication and co-operation will be key, and it is expected that both bodies will collaborate to maintain environmental standards across the UK.
One example here is standards for waste disposal, for which guidance documents have been produced for similar, but separate, regulatory systems in Scotland and England. Should any concerns be raised to either the OEP or the ESS with respect to the application of the guidance, it would make sense to work together to address concerns. Another example is producer responsibility, a UK-wide regime where co-operation would be needed for the regulation of compliance schemes registered in one nation but operating across the UK. Indeed, through their respective legislation, each body will be required to consult other environmental governance bodies where a particular exercise of its functions may be relevant to the exercise of the other’s.
In summary, this instrument facilitates the implementation of the ESS by adding the body to the Scottish Administration, and ensuring that its members are disqualified from becoming Members of the House of Commons. It demonstrates the commitment of the UK Government to strengthening the devolution settlement and the partnership working between the two Governments to deliver for Scotland. I commend the order to the House, and I beg to move.
Baroness McIntosh of Pickering (Con)
My Lords, I am pleased to have this opportunity to discuss the statutory instrument before us this afternoon. I thank my noble friend Lord Younger of Leckie for introducing it and for the brief conversation we had earlier in this regard.
I want to focus on some of the issues that my noble friend highlighted in his introduction: primarily, what the relationship will be between the ESS and the OEP, and what remedies will be at the disposal of each respectively. I should perhaps also declare that I am a non-practising member of the Faculty of Advocates.
With regard to the role of the ESS, I take the opportunity to explore and perhaps understand better what powers, and in particular what resources, will be available to the ESS and, more specifically, what the comparative remedies will be and whether they will be sufficient. My noble friend referred to the debate yesterday on Second Reading of the Environment Bill. We are tasking both these bodies with major jurisdiction and enforcing not just new targets that may be set under the Environment Bill but our existing international responsibilities.
I understand that each will have their role set out in their respective jurisdictions in implementing our current international commitments. I am thinking of the Berne convention, which looks at some of our international obligations in habitats and environmental protections, as well as the whole raft of retained EU law. In particular, what will cause great interest in the context of the Environment Bill is the EU habitats directive and the extent to which we may stray from what was originally intended and which in any event has been gold plated.
My further understanding is that the trade and co-operation agreement provides for a level playing field, which commits the UK—I therefore understand that the ESS will apply this in Scotland and the OEP will apply it in England—to maintain the broad common standards on environmental regulations to which we have agreed. I understand also that the trade and co-operation agreement, which we have concluded as part of our agreement with the EU, although that seems a long time ago now, includes a commitment for the EU and the UK to co-operate effectively in maintaining and enforcing the law on climate.
It is intended that regular meetings will be held between the EU and relevant supervisory bodies in the UK. I understand, if the Scotsman is correct, that the ESS has already undertaken almost a courtship with, or a reaching-out to, its EU counterparts in the EU Commission. Can my noble friend follow up in writing, if not today, on the extent to which that is the case and, if it is the case, whether it is intended that there will be separate overtures from the ESS representing Scotland in this regard and the OEP representing England in a similar regard? That would be very helpful to know.
It is not just the domestic issue of environmental enforcement to which I refer but our current and future international commitments, to which my noble friend referred in passing. That is the main thrust of my interest today, along with the degree of independence which the ESS will enjoy from the Scottish Administration and the OEP will enjoy from the English Administration. I understand that the order before us today says that the ESS will become part of the Scottish Administration. I have great difficulty understanding that expression if it is actually to operate independently. That is referred to in paragraph 2.1 of the Explanatory Memorandum. It would be helpful to understand the extent to which it is intended that the ESS will operate independently.
It is very clear in paragraphs 16 and 17 of the relevant schedule to the Environment Bill—I cannot remember which one it is—that the English Secretary of State will have regard to the independence of the Organisation for Environmental Protection. However, Clause 24 of the Bill clearly says that the Secretary of State will issue guidance, which it is expected the OEP will follow. That is highly regrettable, and I am tabling an amendment to explore that further in Committee, because it goes to the heart of independence that the OEP should be operationally independent. I hope my noble friend will be able to confirm that, perhaps in writing subsequent to this meeting. I certainly hope that he will be able to confirm this afternoon that it is expected that the ESS will operate independently of the Scottish Government.
Perhaps particularly vexatious are the remedies that will be available to each body. It does not seem to be set out in any great detail what the remedies would be, should there be what used to be called an infraction proceeding. In the Commission, you used to be able to refer this to the European Court of Justice, which would uphold any of the effective remedies—not just fines but demands to desist that could be laid down by the European Commission. Paragraph 6.3, on page 2 of the Explanatory Memorandum, simply tells us:
“ESS has the power to investigate whether a public authority is failing (or has failed) to comply with environmental law, as well as any question about the effectiveness of environmental law or whether it is (or has been) implemented or applied effectively.”
This is obviously only a cursory reading. The EM goes on to say:
“ESS has the power to take appropriate action to secure a public authority’s compliance with environmental law, and to secure improvement in the effectiveness of environmental law or how it is implemented or applied.”
My concern in regard to that part of the statutory instrument before us today was reflected in the words of the noble Lord, Lord Anderson of Ipswich, in yesterday’s proceedings on the Environment Bill. The OEP does not seem to be empowered to issue fines or any demands to desist. The noble Lord said:
“Of course, the OEP, resources permitting, can apply to a court for an environmental review, but that procedure is itself fatally limited for two interlocking reasons”—[Official Report, 7/6/21; col. 1231.]
which the noble Lord went on to highlight.
Say, for example, that there was a huge chemical spill and it was the fault of a chemicals company, or there was sewage in a major river. My main concern, having sat as an MEP for 10 years, is that we are stepping back from the powers that the European Commission had, and it was made very clear at the time we were leaving the European Union that we would have similar powers in UK legislation. So I would be grateful if my noble friend could point to the ESS’s specific powers, and ideally also the OEP’s.
I will conclude by saying that it is very good to have had the opportunity to discuss these issues. What is as yet unclear is how the relationship between the OEP and the ESS will unfold and who will have the responsibility for ensuring that the two co-operate and collaborate as intended under the instrument before us this afternoon.
Lord Bruce of Bennachie (LD) [V]
My Lords, as the Minister said, this order is needed to enable Environmental Standards Scotland to become fully operational. As he also said, the board has been appointed, it has been meeting monthly since January, and it is laying the foundations for its work once it is vested later in the year. Of course, this order is necessary to enable it to be vested.
The objective is for it to be independent of the Scottish Government and transparent in its working. However, it is worth noting that its board members are appointed by Scottish Ministers, who also control its budget. So time will tell how effective its teeth as a watchdog will prove to be.
It is a matter for the Scottish Government how divergent environmental standards in Scotland will be from those in the EU or in the rest of the UK. However, the Scottish Government have stated their objective of staying close to the EU in pretty well every aspect. This is primarily to sustain the fantasy promoted by Scottish Government Ministers that there will be a quick and easy route back into the EU for an independent Scotland. Close—or even cursory—examination of the facts would suggest otherwise. Nevertheless, the fantasy is maintained.
In those circumstances, I would presume that Ministers would want minimal divergence from EU rules. The question is whether the ESS, an independent body, would be able to take a different view if it felt that it was in the interests of the Scottish environment. If England or other parts of the UK pursue different environmental standards over time—I accept that there is an agreement to try to maintain the same standards at the moment, but this could change—that too could present a tension that tested the independence and the powers of the ESS.
It is asserted in the Explanatory Memorandum that the ESS does not affect small businesses as it applies to public bodies, but might there be an indirect effect for businesses; for example, businesses supplying goods or services to public agencies that may be required to comply with environmental standards? Indeed, they should be required to comply with such standards, but it is difficult to see the case for saying that it has no impact on small businesses.
The Minister said specifically that reserved agencies were exempt from the ESS’s jurisdiction. Are the UK Government relaxed about the direction the ESS may take as a fully devolved body? Will engagement on shared or common issues that may arise be pursued on a constructive basis of mutual respect and compromise? I speak as a member of the Common Frameworks Scrutiny Committee, which met this morning and had an extremely useful evidence session with the noble Lord, Lord Dunlop. One point that is being made is to try to create a climate of co-operation across the United Kingdom rather than one of megaphone confrontation. Of course, these new agencies will not be subject to common frameworks because they did not exist when that process was set in motion, but will the very useful principles being developed by common frameworks be applied to any divergence, difference of opinion or potential dispute between the emerging new agencies in different parts of the UK?
The Minister mentioned the UK internal market Act. Might that impinge on the work and operation of the ESS? Under the Act, would UK Ministers be able to overrule the ESS? Will the ESS be consulted on or informed of likely impacts on environmental standards during any trade negotiations? From utterances from Ministers and other government officials at this stage, the answer would appear to be no, their argument being that it is a reserved matter that devolved Administrations should not be part of, which the devolved Administrations of course strongly challenge.
If the UK Government negotiated a trade agreement that changed, for better or worse, environmental standards in England, would they be able to say that, under the terms of the trade agreement, those standards would have to be accepted by the ESS, with the ESS therefore effectively finding itself independent of Scottish Ministers but subject to direct jurisdiction of UK Ministers? I would be grateful if the Minister could clarify whether that is likely to be the case. I hope the Minister will at least agree that any divergence of approach on environmental standards needs to be handled with extreme sensitivity.
In conclusion, does the statutory instrument effectively guarantee the independence of the ESS from Scottish Ministers, given that they appoint and control the budget, and does it have the same effect for UK Ministers? Clearly, that will be a matter of some concern in the future. We have operated under the umbrella of the European Union for more than 40 years. That has been the testing framework to ensure that tensions were minimised. There is no immediate desire to diverge from that, but, over time, there may well be differences and changes that could create tensions. One would like to think that there will be mechanisms and a will to ensure that those tensions are resolved. I must make it clear that that will needs to come both from the UK Government and from the devolved Administrations. I accept and understand the purpose of this order, but I hope that the Minister will in turn accept that it raises some pretty interesting questions which we would like to hear answers to.
Lord Falconer of Thoroton (Lab) [V]
My Lords, I am grateful to the noble Viscount, Lord Younger, for his clear explanation of what this order does. We on these Benches broadly support the purpose of the order, which I understand to be to make Environmental Standards Scotland a part of the Scottish Administration as a non-ministerial office accountable to the Scottish Parliament. I echo the concerns of the noble Lord, Lord Bruce of Bennachie, and the questions asked by the noble Baroness, Lady McIntosh of Pickering.
I shall frame my concerns about the ESS, if I may call it that, under six headings. The first is independence. The noble Lord, Lord Bruce of Bennachie, made the point that all the board members are appointed by Ministers and the budget comes, in effect, from Holyrood Ministers. The independence of the ESS is important, because one of the major bodies it will be acting as a guardian of and watchdog over will be the Scottish Administration. Will the Minister explain how the independence of the ESS is to be ensured?
The second is the differences between the ESS and the OEP. We on this side of the House are concerned to see that environmental standards are kept up in Scotland and right across the United Kingdom. That will necessarily require co-operation between the ESS and the OEP. What steps are being taken to ensure that there is proper co-ordination between the activities of the two bodies and, separately, co-operation between the ESS and the enforcement of European Union standards?
The third is enforcement power. We on this side of the House are disappointed that in Holyrood the Tories and the SNP worked together to defeat a Labour amendment that would have empowered the ESS to take enforcement action on individual decisions. That would have provided continuity for the existing European Union arrangements under which anyone in Scotland could have raised a complaint if they thought that a decision taken by a public body contravened environmental law and could have expected action to be taken if that complaint turned out to be justified. If the ESS does not have the power to take that sort of action, how will complaints that public bodies are contravening environmental standards be enforced in the courts after the setting up of the ESS?
The fourth is the overall relationship between the devolved Parliaments and the United Kingdom Parliament. The noble Lord, Lord Bruce of Bennachie, referred to a megaphone relationship between the two. I agree. I noted that the Prime Minister of the United Kingdom indicated that there was going to be a summit which he invited the First Minister of Scotland, the First Minister of Wales and the First Minister of Northern Ireland to attend. That has now been postponed while there is haggling over the agenda. Will the Minister explain what has happened about that summit? Could he give us some indication of what steps the United Kingdom Government are taking to move on from a megaphone relationship to a proper relationship between the two?
My fifth point is a more technical question. Section 19 of the 2021 Scottish Act establishes Environmental Standards Scotland, the ESS. On what date is Section 19, and therefore this order, coming into force?
My sixth and final point echoes a point made by the noble Lord, Lord Bruce of Bennachie. What is the relationship between the internal market Act and the powers of the ESS? Can the UK Government in effect put a stop to an the ESS enforcement action, if they want to, with their powers under the internal market Act?
Viscount Younger of Leckie (Con)
I thank noble Lords for their valuable contributions to this short debate. Let me start by saying that I appreciate the broad support for this order from all concerned. Let me also say, particularly in relation to the six points made just now by the noble and learned Lord, Lord Falconer, that if I do not answer all the points today, I will most certainly study Hansard and write to him.
The Government are absolutely committed to working collaboratively with the Scottish Government to ensure a functioning settlement for Scotland, and I hope that this instrument and my remarks today demonstrate that commitment. However, important questions have been asked both recently and this afternoon, querying the relationship between the ESS, the OEP and other devolved environmental governance bodies. I hope that I can attempt to answer them.
My noble friend Lady McIntosh of Pickering asked how the ESS and the OEP will work together near the borders. I will answer that in a moment. She also asked about the funding aspect. Again, I have an answer for that.
Clearly, there was a mood in this debate—particularly from the noble Lord, Lord Bruce, the noble and learned Lord, Lord Falconer, and my noble friend Lady McIntosh—regarding independence. The Scottish Government have designed the ESS as they see fit, which is consistent with the devolution settlement. Similarly, the UK Government have carefully designed the OEP for it to deliver its functions effectively in England and over reserved matters.
My noble friend Lady McIntosh asked about the ESS and its engagement. I can confirm for her that the ESS has already undertaken early engagement with the OEP and the UK Government. The trade and co-operation agreement—the so-called TCA—is a complex matter. I will need to write to my noble friend, as I think she expected.
My noble friend also asked about the powers of the OEP. As she might expect me to say, I realise that this matter was raised during yesterday’s debate on the Environment Bill. I do not believe that this is the place to debate it, but I understand the gist of her question; I know that she will have time to debate it before too long during the upcoming Committee stage of the Environment Bill.
Moving on to the details of the ESS, my noble friend Lady McIntosh raised the matter of how the ESS deals with Scottish public authorities that breach environmental standards and environmental law. This is really more a question of remedies. Once the relevant provisions of the continuity Act have been commenced, the ESS will have a range of formal powers at its disposal to ensure that public authorities comply with environmental law, including powers to prepare compliance notices and improvement reports. I am aware that the organisation’s principles state that it will seek to resolve issues through agreement, where possible, with recourse to its formal powers where the ESS considers it necessary to deliver the expected outcomes. The ESS has powers to issue compliance notices to public authorities where an authority is failing to comply with environmental law and that failure is causing, or has caused, environmental harm or a risk of such harm. The ESS will also have the power to report public authorities to the Court of Session where they fail, without reasonable excuse, to adhere to the compliance notice.
On the ESS and the OEP working together within a common or similar framework, I assure the Committee that, as both bodies are independent of Ministers, it would be inappropriate for a common framework to be agreed. However, environmental bodies across the UK will need to co-operate to ensure that shared environmental objectives continue to be achieved through effective delivery. Where devolved Ministers or public bodies are also responsible for delivery through devolved functions, it would be for the relevant governance body, such as the ESS in Scotland, to agree how to co-ordinate any subsequent action, depending on the specifics of the particular issue.
As I said earlier, the Scottish and UK Governments have started discussions on co-ordination in UK governance as part of wider discussions on the implementation of the trade and co-operation agreement. In particular, there will need to be agreement on how our arrangements will meet aspects of that agreement covering good regulatory practice and co-operation on effective performance.
To come to my noble friend Lady McIntosh’s question about the ESS and the OEP working together on the border, as independent bodies it is for them to determine their approach to collaboration and co-operation. The legislation that establishes these bodies ensures clarity for parties when dealing with matters of mutual interest. The UK Government anticipate that this network of bodies will deliver effective governance across the UK.
In terms of matters European, which a couple of speakers raised, I was asked whether the ESS will look to apply policies to Scotland that are being developed in Europe. That is a key question. In exercising its functions, the ESS may keep under review developments in international environmental protection legislation to inform advice on whether changes should be made to Scottish environmental law. The power to make provision corresponding to EU law in devolved areas rests with the Scottish Parliament. Part 1 of the continuity Act gives Scottish Ministers the discretionary power to make regulations to achieve alignment with EU law where no specific powers are available.
Moving on to independence, which was raised, I may need to write more on this matter. Perhaps I may reiterate to my noble friend Lady McIntosh, and particularly to the noble Lord, Lord Bruce, and the noble and learned Lord, Lord Falconer, that the ESS, as a non-ministerial body, is accountable to the Scottish Parliament but has operational independence from both the Scottish Parliament and Government. The appointment of board members must be approved by the Scottish Parliament, and Scottish Ministers must seek parliamentary approval to remove members on the grounds of impairment or unsuitability. I feel that I may need to write further on a point raised by the noble and learned Lord on the appointment of board members. I hope that I have given some reassurance, but I may need to go slightly further.
I was asked how the ESS will be funded. The ESS will receive a budget allocation from the Scottish Government and will publish its own annual reports and accounts. Under the continuity Act, Scottish Ministers are required to ensure that the amount of resources allocated for use by the ESS is reasonably sufficient to enable it to perform its functions. In its annual report, the ESS must include an assessment of whether the resources allocated for its use in the financial year to which the report relates were sufficient to enable it to carry out its functions, so I hope that gives some reassurance.
The noble Lord, Lord Bruce, asked whether the OEP will be extended to Northern Ireland. I know that the answer is that it is very much for the Northern Ireland Assembly to decide whether to extend the OEP to cover Northern Ireland. If the OEP is to operate in Northern Ireland, it will clearly be beneficial to ensure that any gap between it becoming operational in England and Northern Ireland is minimised. I think he will know that DAERA and Defra officials are working closely with the chair-designate of the OEP to ensure that as much preparatory work as possible can be completed in advance of the Environment Bill receiving Royal Assent, thereby allowing the Northern Ireland Assembly to consider commencement at the earliest opportunity.
I believe that I have covered the majority of questions raised. However, other questions were raised, and judging by my notes I will need to read Hansard tomorrow. I think I shall have to write, as there are some questions that I still need to address, but I hope that has covered the bulk of it.
I conclude by saying that the UK’s new approach to environmental governance, which we have discussed today in relation to this order, is testament to our leadership on environmental issues. I am very aware of COP 26, which is being hosted in Glasgow. I believe the ESS will make a valuable contribution to this cause. With that, I commend the order to the committee.
Arrangement of Business
The Deputy Chairman of Committees (Baroness Barker) (LD)
My Lords, the hybrid Grand Committee will now resume. Some Members are here in person, others are participating remotely, but all will be treated equally. I ask Members in the Room to respect social distancing. If the capacity of the Room is exceeded, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes. The time limit for this debate is one hour.
Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2021
Viscount Younger of Leckie
That the Grand Committee do consider the Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2021.
Relevant document: 1st Report from the Secondary Legislation Scrutiny Committee
Viscount Younger of Leckie (Con)
My Lords, I beg to move that the draft Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2021, which was laid before this House on 26 April 2021, be approved. Under this order, trials without a jury can take place in Northern Ireland for a further two years from 1 August 2021. The current provisions expire on 31 July. This is the seventh such extension of these provisions, but I hope to leave noble Lords in no doubt of the continued necessity of these provisions for another two years.
I will start by providing some background. The presence of violent terrorist and paramilitary groups, which continue to exert coercive control over the communities in which they operate, poses specific risks to Northern Ireland’s criminal justice system. Regrettably, this makes the non-jury trial provisions necessary for a small number of exceptional cases.
We must recognise that the security situation in Northern Ireland remains unique and volatile. There is a small number of people who continue to try to destabilise the political settlement through acts of terrorism. Their activity causes harm to individuals and communities across Northern Ireland. Violent dissident republican terrorist groups continue to plan and carry out attacks against the police, prison officers and members of the Armed Forces. The threat from Northern Ireland-related terrorism remains at “severe” in Northern Ireland, meaning that an attack is highly likely.
I must also mention paramilitarism. Members of paramilitary groups are still lining their own pockets and using brutal violence, intimidation and fear to exert influence and control in their communities. They hold their own communities back, deterring investment and jobs and preventing people from moving forward with their lives. Statistics from the Northern Ireland Housing Executive indicate that 2,773 people have been driven out of their homes since 2014 due to paramilitary and sectarian intimidation. In addition, a report published by the Department of Justice, Northern Ireland, in 2019, found that 15.4% of respondents agreed that paramilitaries create fear and intimidation in their area. This kind of activity can never be justified.
Real fear and intimidation are caused by terrorists and paramilitary groups across and within communities in Northern Ireland. Where the defendant or the crime is suspected of being associated with a proscribed organisation, this fear and intimidation has the real potential to impact the administration of justice in two ways: either via a direct threat to jurors from members or supporters of that organisation, or via the perceived threat that the jurors feel in participating in such a case. Either could lead to a perverse verdict.
It is important to note that non-jury trial provisions are available only in exceptional circumstances in Northern Ireland, where a risk to the administration of justice is suspected by the Director of Public Prosecutions. This could, for example, be through jury tampering, whereby intimidation, violence or the threat of violence against members of a jury could result in a perverse conviction or acquittal. It could also be due to jury bias; there is the potential for jury bias as a result of the defendant’s alleged association with a proscribed organisation, or if the offence being tried is in connection with religious or political hostility. Such cases are high profile and continue to provoke strong public opinion on both sides of the community in Northern Ireland.
Decisions for non-jury trials are made on a case-by-case basis, taking into account the circumstances of both the offence and the defendant. The Director of Public Prosecutions for Northern Ireland must suspect that one or more of four conditions is met. The conditions are specified in the Justice and Security (Northern Ireland) Act 2007 and relate to association with proscribed organisations or offences connected with religious or political hostility.
A case that falls within one of the four conditions will not automatically be tried without a jury. The DPP must also be satisfied that there is a risk that the administration of justice might be impaired if a jury trial were to be held. In Northern Ireland today, there is a presumption of jury trial in all cases. In 2020, only 1% of all Crown Court cases in Northern Ireland were conducted without a jury. To reiterate, this is not like the old Diplock system. Non-jury trials are now the exception, and there is a presumption of jury trial in all cases before the Crown Court. This is in stark contrast to the old Diplock system where the default was a non-jury trial for certain offences. Non-jury trials are not Diplock courts.
I now touch on the public consultation. The Secretary of State held a full public consultation on whether or not the non-jury trial provisions should be extended. The consultation ran for 12 weeks and concluded in February this year. It received a total of 13 responses from interested stakeholders and organisations, many of whom have in-depth specialist knowledge of this issue. The contents of all consultation responses, whether in the majority or not, were considered in detail by the Secretary of State when reaching a decision. In addition to the consultation responses, the Secretary of State receives regular briefings on the security situation in Northern Ireland, and it was his knowledge in the round that informed the conclusion reached by him.
In light of all the evidence and views before him, the Secretary of State has decided to renew the non-jury trial provisions for a further two years and to keep them under regular independent review. This decision reflects the fact that the number of consultation responses that supported an extension of the provisions far outweighed those that opposed the extension. The ongoing review of non-jury trials has been included in the remit of the Independent Reviewer of the Justice and Security (Northern Ireland) Act 2007 since 2017.
As I said earlier, I am aware that this will be the seventh extension of the non-jury trial provisions under the 2007 Act and that these were designed to be temporary. However, I trust that noble Lords will agree that the safety of the people of Northern Ireland is paramount and that the administration of justice cannot risk impairment. The Government are, of course, committed to working strategically with security partners to tackle the threat from Northern Ireland-related terrorism and to support the Northern Ireland Executive’s programme to tackle paramilitarism. However, we are not prepared to put individuals’ safety or the administration of justice at risk and believe that further progress on the Northern Ireland security situation is required before we can be confident that these non-jury trial provisions are no longer required.
In order to work towards this, the Northern Ireland Office will establish a working group, as recommended by the Independent Reviewer of the Justice and Security (Northern Ireland) Act. The intention is that this group will identify practical measures that can reduce the number of non-jury trials and examine the indicators that would assist in determining when the provisions could be brought to an end. The working group will comprise a mixture of security, legal, academic and other independent bodies. The consultation responses were highly supportive of the formation of this group, with respondents expressing a clear wish to participate.
Over the past 10 years, non-jury trials have consistently accounted for less than 2% of all Crown Court cases. This figure reflects the small but consistent need for non-jury trials in Northern Ireland. In the light of all the evidence before him, the Secretary of State has decided to seek to renew non-jury trial provisions for a further two years and to continue to keep them under regular independent review. Noble Lords can rest assured that the Secretary of State has not taken this decision lightly.
I beg to move.
Lord Browne of Belmont (DUP) [V]
My Lords, I thank the Minister for his clarity on this issue. I am pleased to support the order before us.
Young people in Northern Ireland now live in a different climate to that of their parents and grandparents. We still have some distance to travel, but it is important to acknowledge that good progress has been made to date. We have a responsibility to ensure that peace, stability and justice are protected and long lasting.
In relation to the matter before the Committee, David Seymour, the Independent Reviewer of the Justice and Security (Northern Ireland) Act, suggested in his annual report that
“the time has now come for a serious assessment of whether NJTs remain necessary.”
I contend that the security and integrity of our justice system is paramount and must continue to be protected.
Today, there are only a small number of cases where a non-jury trial is necessary. In those very exceptional circumstances, it remains my view and the view of my party that the current provisions, although far from perfect, should continue to serve Northern Ireland as a necessary function in supporting the effective delivery of the criminal justice process.
Naturally, there is a certain reluctance to renew such exceptional provisions. I, too, wish that such measures were a thing of the past. Nobody wishes to have trials without a jury but, given Northern Ireland’s exceptional security complexities and the spectre of threats of intimidation from dissident, paramilitary and other criminal elements, the renewal of non-jury trial provisions must be welcomed.
It is my hope that a day will come where measures such as those before us will be unnecessary. Regrettably, we are not quite at that stage yet. The onus is on all of us to continue to work together maturely to work out practical ways forward towards a more normalised society in Northern Ireland: that is, a society that no longer requires such measures. Hopefully, there will be even fewer non-jury trials in the next few years, making such legislation redundant.
I am pleased to support this legislation today.
Lord Hay of Ballyore (DUP) [V]
My Lords, I speak in support of extending the measures before us. They certainly remain an important tool in specific circumstances to protect Northern Ireland’s criminal justice system. I wish we were in a place in 2021 where specifically designed Northern Ireland-only provisions such as this were a thing of the past. But it is always worth saying that we have come a long way, even if we are not quite where we want to be yet in Northern Ireland. We have relative peace, our political institutions remain in place, and businesses and tourists from around the globe continue to see Northern Ireland as an attractive place both to do business and to visit as a tourist.
However, we still live in a divided society, with a lingering legacy and the huge, complex challenge before us all of the severe threat from terrorists and paramilitary activity in Northern Ireland. Non-jury trials need to continue in order to combat those who wish to use fear and intimidation to undermine Northern Ireland’s peace, and indeed the criminal justice process itself. It is vital in Northern Ireland that we protect the justice system. The Minister alluded to the number of non-jury trials. They have accounted for less than 5% of all Crown cases in Northern Ireland over the past five years. Of course, we know the important role that the PPS plays in identifying cases for non-jury trials in Northern Ireland. I welcome the commitment from the Government to see an end to non-jury trials in Northern Ireland when it is safe to do so.
I support these measures at this time and, as the noble Lord, Lord Browne, indicated, it is my hope too that the day will come when such measures, and other similar measures, will not be necessary.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I would like to take this opportunity to thank the Minister for his explanation of this order, the main purpose of which is to extend for a further two years the provision that certain offences in Northern Ireland can be tried without a jury. I note what the Minister said: that this is the seventh such extension. Like other noble Lords, I hope that, in the fullness of time, there will be no necessity for these non-jury trials, although they are small in number.
At the very outset of this debate, I will say that I have always been and will remain, along with my party, totally opposed to violence, terrorism, mayhem and murder in Northern Ireland. I totally repudiate those acts of violence and terrorism to pursue political ends. Nothing can replace political dialogue, discourse and democratic means of accountability. So it is important that the institutions—the Northern Ireland Assembly, the Executive, the North/South Ministerial Council and the British-Irish Council, along with other necessary means of discourse infrastructure such as the joint intergovernmental conference involving both the British and the Irish Governments—are sustained and underpinned, because political stability is the key here to our future stability as a region within the island of Ireland and within these islands. That is the key, and we all have a role in this, as politicians and members of the wider community, and as two Governments.
I have been opposed to the indiscriminate and unfair system of trials without a jury, going back to the days of the Diplock courts. I know that these are not Diplock courts, but they do breed a lack of confidence and trust in the judicial system. The Diplock courts system was associated with emergency legislation during a period of heightened paramilitary violence against the police, prison officers and the security forces. It also impacted on the wider community. However, I understand the reasons and the necessity for this legislation, particularly with the prevalence of dissidence, but I hope that this will be the last such extension and we can move to a totally normal society, because that is what the local population wants to see.
For me, the judicial system needs to be jury based at all levels. I realise that those involved in policing and justice issues will state that the threat from terrorism remains severe. There are threats from dissident republicans and loyalists, which have been heightened in the past few months because of opposition by some to the Northern Ireland protocol. There have also been attacks on security forces, but this should not mean that there is a need for a continuation of such non-jury trials into perpetuity.
I should also say that the days have long gone of the hegemony and domination by paramilitaries in communities. They should no longer be allowed to imperil communities. One message that I would give to them is: “So long, goodbye”. We, as communities, have had to tolerate the existence of paramilitarism for far too long. It is 23 years since the Good Friday agreement, and it is time that they hung up their boots.
There is a need to ensure that we have a full judicial system that does not restrict the right of defendants to trial by jury of their peers, whether in the interests of administrative speed or for some other policing and political reasons. Maybe the Minister could advise us today on the future intentions of the Government and what discussions are taking place with the Minister for Justice in the Northern Ireland Executive to do just that.
I noted that the powers in the 2007 Act allowed the DPP to issue a certificate for a non-jury trial that is subject to renewal every two years, and that is what we are doing today. We are in a relatively peacetime situation. The Minister has indicated instances where this has been used, with a very small number in the past year. Given that, can he give us the assurance today that this will be the last extension? I noted that the Lords Secondary Legislation Scrutiny Committee stated:
“Whilst acknowledging the reasons for trial without jury, we have concerns about their potential impact on trust in the judicial system and expect this option to be used only sparingly.”
I have concern about the impact on the trust of the people in the judicial system. Issues to do with human rights compliance, fairness and the quality of justice come into play in this respect.
For my part, I do not rest easy with the contents of the legislation, as it does not lend itself to a fair and just judicial system. However, at the same time, I recognise their necessity. I hope that it is the last extension. The bottom line is that we want to see an end to paramilitarism, and to see the building up of a sound political system full of political and economic stability, giving hope to our population throughout Northern Ireland.
The Deputy Chairman of Committees (Baroness Barker) (LD)
Before calling the next speaker, I remind the Grand Committee that, if there is a Division in the Chamber, we will adjourn this Committee for five minutes for a vote. That may very well happen in the next few minutes.
Baroness Hoey (Non-Afl) [V]
My Lords, as the Minister and others have said, this is the seventh time that we are renewing these regulations—
The Deputy Chairman of Committees (Baroness Barker) (LD)
The vote has been called, so we will move to the vote and, after five minutes, come back to the noble Baroness, Lady Hoey, for her full speech.
The Deputy Chairman of Committees (Baroness Barker) (LD)
My Lords, the Divisions in the House have been deferred because of the technical problems and we will therefore resume our debate. I invite the noble Baroness, Lady Hoey, to begin her speech again.
Baroness Hoey (Non-Afl) [V]
My Lords, I repeat that this is the seventh time that we are renewing these regulations. I am very pleased that the Government say that they want to see an end to the use of non-jury trials when it is safe to do so and compatible with the interests of justice. Now is clearly not that time, so I support the renewal today, but I believe that this an opportunity to look at some of the conditions in the regulations. I welcome the Independent Reviewer David Seymour having said that
“the time has come for serious assessment”
of whether non-jury trials “remain necessary”. I also welcome the working party that the Secretary of State has set up and would be interested to know whether the Minister has any idea of its timescale.
David Seymour’s report also said that in marginal cases the DPP
“should consider not issuing a certificate”
but putting in more jury-protection measures. Is this also being considered?
As a non-lawyer I get the feeling that, sometimes, going for a non-jury trial could be seen as a softer option. We do need to look at some of these conditions. On one of the tests, the Director of Public Prosecutions can certify only if he suspects that any of the conditions prescribed in the subsection are met and if he also suspects that, because such conditions are met, there is a risk that the administration of justice might be impaired with a jury. However, the threshold for “suspicion” is low—suspicion is a lesser state of mind than belief. While suspicion might be entertained in good faith and is not therefore to be regarded as synonymous with a pretext, it surely follows that suspicion may be shown subsequently to be entirely unfounded; a suspicion must be capable of rational justification.
One of the conditions is that the defendant is, or is an associate of, a member of a proscribed organisation, or has at any time been a member of an organisation that was at that time proscribed. But Section 1(9) gives a very broad definition of an associate, which includes a friend. As we know, there are persons who have publicly renounced their own former terrorist feelings and affiliations, and some have a wide circle of friends—some, for example, have friends even here in Parliament. This could be construed as meaning that, if an MP or Peer is charged with an ordinary common-law offence such as misconduct in public office, and is, or has been, a friend of Mr Y, who is a former and now repentant member of a terrorist group, the MP or Peer will satisfy the condition in the Act.
The regulation also explains that religious or political hostility can be based, to any extent, on a supposed religious belief or political opinion. Suppose, for example, two members of the same party in Northern Ireland disagree, perhaps on abortion, and get very angry and one punches the other and causes a severe injury to his jaw. He will be charged with inflicting grievous bodily harm with intent. Now Mr A, the person who has caused the grievous bodily harm, will satisfy the condition in Section 1(6). It is surely absurd that the funnel for non-jury trials should be so wide as to permit so many persons to potentially satisfy the enabling set of conditions in Section 1(2). So I believe that these conditions must become more tightly drawn; that is something that the working party and others must look at over the next two years.
The test in Section 1(2)(b) is also too low. The DPP has only to be satisfied of a possible risk to the administration of justice. Surely, at the very least, this test should require a likelihood that the administration of justice would be impaired. Does the Minister not think that it would be a good idea to require the director to satisfy a High Court judge unconnected with the trial that the test was properly met? This would arguably enable the protection provided by Section 7 of the 2007 Act to be revoked, as the decision of the director would have been validated by a High Court judge.
Although this is about security and threats to jurors, it must also be about the public interest, which must always be about the transparency of the law and our justice system. Non-jury trials must never be used, particularly in cases of corruption. I worry slightly about the word “exceptional” because it does not always seem that the trials are being used in what I would class as exceptional cases.
A worrying example is the National Asset Management Agency, a body created by the Government of Ireland in 2009 in response to the Irish financial crisis and the property bubble bursting. Corruption has been alleged in the scheme, and some people have been charged with fraud. One of the young activists in Northern Ireland, whom the High Court in Northern Ireland has described as a journalist, gave evidence to a statutory scrutiny committee investigating political corruption. He has now been charged with conspiracy to commit misconduct in public office. Out of the blue, a non-jury certificate has been issued in this case.
To me, non-jury trials should be for where terrorism is involved and there is clearly a threat to individuals. I believe that this has been an overreaction by the DPP and a gross overinterpretation of the regulations. So all I am really saying is: let us use the next two years to look at this much more carefully and make sure that we are not back in another two years, simply renewing the same regulations, without realising that maybe, just sometimes, they are being abused.
Lord Marks of Henley-on-Thames (LD)
My Lords, our commitment to trial by jury has never been in doubt. In the United Kingdom, jury trial has always been rightly seen as a cornerstone of citizens’ involvement in democracy. The derogation for jury trial in Northern Ireland therefore has to be justified as a necessary and temporary emergency measure.
The question that this House is considering today is whether the case has been made for a two-year extension—for the seventh time, as we have heard—of the exceptional system that permits non-jury trials on indictment in Northern Ireland under the Justice and Security (Northern Ireland) Act 2007 if the statutory conditions, which are stringent, are met.
We reluctantly accept that the case has been made for this extension, but we have heard it stressed that non-jury trials take place in only a very limited number of cases and in exceptional circumstances. In 2019, there were only 14 non-jury trials in the Crown Court, out of a total of nearly 1,300.
However, sadly, as has been recognised by all who have spoken, violence in Northern Ireland continues. In 2020, there were 13 casualties as a result of paramilitary-style shootings and 42 casualties of such assaults. In April of this year, there were a number of violent incidents aimed at members of the Northern Ireland police service, including that near Dungiven, where an explosive device was left at an officer’s home.
We are therefore forced to the conclusion that, although we would prefer criminal offences to be tried and proved before juries without exception, there is a continuing danger of violence associated with paramilitary groups, which carries with it the risk of jury intimidation. The intimidation with which we are concerned is not just the intimidation of individual jurors but sometimes involves whole sections of communities being put in fear, so that jury selection, the trial process, the taking of evidence, jury deliberations and jury decision-making are all put at risk in extreme cases.
However, there are two important sets of safeguards—one specific and one more general. Specifically, the 2007 Act gives the DPP a discretionary power to certify for a non-jury trial only if he suspects that one of four conditions is met, relating to the offender or the offence, which establishes a link to a proscribed organisation or religious or political hostility as a motivating factor.
Secondly, the DPP must consider that there is a risk that the administration of justice might be impaired if there were a jury trial. I interpose that the noble Baroness, Lady Hoey, is right to say that suspicion is not itself a high threshold, even though such suspicion has to be rationally held.
The more general safeguard arises from the involvement of the independent reviewer of the 2007 Act, a post held by David Seymour. In his annual reports, the independent reviewer keeps under review the issue of non-jury trials. In his 10th report, published in 2018, Mr Seymour reported that the existing arrangements were working reasonably well; he did not suggest any changes to the legislation. Prior to the publication of his 13th report in April of this year, the Northern Ireland Office, as we have heard, held a public consultation on a further extension of the provision for exceptional non-jury trials. The majority of respondents were in favour of such an extension, expressing concerns for continued paramilitary activity, including forcing people from their homes—a horrible kind of violence, mentioned by the noble Viscount in opening—a continued risk of jury tampering and possible jury bias. Nevertheless, most respondents wanted to see a return to universal jury trials as soon as the removal of non-jury trials could be safely achieved without risk to the interests of justice.
In his 13th report, the independent reviewer said that the time for a serious assessment of whether non-jury trials should continue had arrived. He expressed the view that there appeared
“to have been no meaningful dialogue … in recent years”
on this issue and said that
“after 14 years, a robust examination of the need for these provisions is now required.”
Along with Jonathan Hall QC, the UK Independent Reviewer of Terrorist Legislation, we agree with that recommendation.
As the noble Viscount said, the Northern Ireland Office has now announced that it will establish a multidisciplinary working group to identify practical measures to reduce the number of non-jury trials, while leaving the provisions of the 2007 Act in place. That is very welcome. However, we profoundly hope that we will soon find a way of bringing an end to non-jury trials in Northern Ireland.
To that end, can the Minister provide more detail to Parliament about the remit of the working party? What questions will be asked and how wide-ranging will the permitted inquiry be? Will it be possible for it to recommend an end to the provisions? I join the noble Baroness, Lady Hoey, in asking: what will be the timescale for this working party’s work? When will the working party be selected and what will be the criteria for selecting members? What powers will it have in relation to evidence gathering and when will it report? Can the Minister also commit to publishing its recommendations as soon as they are ready, along with the government response? We urgently need to reach a safe but just solution to this issue.
Lord Murphy of Torfaen (Lab) [V]
My Lords, the noble Lord, Lord Hay, mentioned in his contribution that the world has changed a lot in Northern Ireland with regard to this matter over the past 20-odd years. Certainly, my memory of when I started as a junior opposition spokesman on Northern Ireland 26 years ago is that it was a different world with regard to how juries were intimidated—and, of course, how judges, both Catholic and Protestant, were assassinated. The criminal justice system was hugely compromised by the Troubles and all that went with them.
Of course, that was exacerbated by the fact that Northern Ireland is a small place. Although it could be argued that juries can be intimidated in London and other great cities in Great Britain, it is not quite the same because of the small size of Northern Ireland and the fact that people know each other in a very special way. So we understand the reason for it, but the world has changed. As the Labour Opposition, we reluctantly support the extension but agree with the Minister that only a tiny number of cases are now dealt with in this way—I think he said it was currently 2% of criminal cases. In 2017, for example, out of 1,640 criminal cases, only nine were non-jury ones. However, that is still nine too many in a liberal democracy.
I welcome the Government’s review of this, as other members of the Committee have, and the setting up of a working party. Yes, we would like to know its terms—who goes on it and when it will report, and so on—but the idea of a working party to look at when this will end is excellent. I would particularly like the Minister to take up the important issues referred to by the noble Baroness, Lady Hoey.
I will make another couple of points before I conclude. First, this measure comes against a background of a backlog of thousands of criminal cases in Northern Ireland which have not been heard yet, particularly because of Covid. That has an impact on the need to deal not just with those who perpetrated the crimes but with the victims. We do not want the victims to fall out of any criminal justice system because of that backlog. Perhaps the Minister could say a few words about how the Government propose to deal with that.
Finally, this is about security. We do not have the paramilitary threats that we used to have, but there is a paramilitary threat—linked most of the time to criminality—right across Northern Ireland. Although it is not huge, a number of Members of the Committee have indicated that political instability can lead to security problems, and there is no doubt that things are unsettled in Northern Ireland at the moment. The DUP is currently in crisis because of what happened to the First Minister. Clearly the unionist community is unsettled by the Northern Ireland protocol. Let us remember that the Good Friday agreement was there to satisfy both nationalists and unionists, so these things have to be addressed. We are almost in the marching season, and there could be difficulties unless we try to address that political instability.
I say for the umpteenth time that the noble Lord, Lord Frost, and the Government should now concentrate on engagement with the European Union—which itself should stop talking about legal writs and start talking. The Government should pay less attention to articles in newspapers and more to proper diplomacy and negotiation, and try to resolve at least the most difficult issues surrounding the protocol so that at least there is an attempt to engage Northern Ireland political leaders, the Irish Government and the European Union in ensuring that things settle down. If there is not a settlement politically, there will still be insecurity, and if there is still insecurity, because there are still nasty people about, there will still be a need for non-jury trials. Hopefully that will not happen, but let us hear what the Minister has to say in response.
Viscount Younger of Leckie (Con)
I start by thanking all noble Lords who have contributed to this short debate. I appreciate the support that has come from all quarters, starting with the noble Lords, Lord Browne of Belmont and Lord Hay, and the noble Baronesses, Lady Ritchie and Lady Hoey. I also thank the noble Lord, Lord Marks, for his support—although I noted that he made the point that it was with some reluctance that he supported the case in this order for a two-year extension.
As I said at the outset, this is an exceptional system—as the noble Lord, Lord Browne, mentioned too—used in only very limited circumstances. There is rightly a presumption for jury trial in all cases. As I have already said, non-jury trials account for less than 2% of all Crown Court cases in Northern Ireland.
The threat from terrorism in Northern Ireland remains severe—the noble Lord, Lord Hay, spoke eloquently about this, as did the noble Baroness, Lady Ritchie—and it has been at the same level for more than 10 years. However, the Government remain committed to tackling the threat from Northern Ireland-related terrorism and to supporting the Northern Ireland Executive’s programme to tackle paramilitarism. But we believe that further progress on the security situation is required before we can be confident that these non-jury trial provisions are no longer required. As I said earlier, I think that here I am echoing the views from this debate.
I thank the noble Baroness, Lady Ritchie, for her eloquent views on this matter. She is right that the way forward in Northern Ireland is strong political dialogue and discourse to provide political stability. That is so necessary, and I know that she is working very hard on that, as are many others involved in politics in Northern Ireland.
Having listened to this debate, I shall focus my remarks on the working group. I hope that I will be able to answer questions on it, as I think it is an open door for the way forward. Before I start, I want to pick up on something that the noble Lord, Lord Marks, said. He was right that there were 13 responses to the consultation, down by two on the previous occasion in 2019, and the vast majority were in favour of what the Government have decided to do. It is right to point out that the Bar of Northern Ireland was not wholly in favour and produced some points—which I shall not go through today—but David Mulholland, who produced the response, said he was supportive of the working group, would welcome dialogue with stakeholders and would like clarification from the Northern Ireland Office on the timeframe. I shall give a short response on that in a moment.
As I have said, the UK Government continue to be committed to bringing an end to these provisions. As indicated by the majority of consultation responses, the time is not right for this now. However, the working group will assist in pursuing this aim. Following this consultation, the Secretary of State decided, as we know, that a working group should be convened to identify practical measures that could be taken to reduce the number of non-jury trials. During the renewal debate in 2019, noble Lords asked what criteria the Government would use to determine when the non-jury trial provisions were no longer needed, so the working group will also examine what indicators would assist in determining when it would be safe and compatible with the interests of justice to allow the provisions to expire.
The noble Baroness, Lady Ritchie, asked about future intentions in working with the Justice Minister. I hope I can reassure her that the Northern Ireland Department of Justice will be invited to participate in the working group. She also expressed concerns about fair trial. I will allude that in a moment. As the noble Baroness said, the seventh extension is here. However, we hope that it will be the last, and I want to say a little more about that.
The provisions were designed to be temporary and the Government remain fully committed to bringing them to an end when it is safe to do so and when it is compatible with the interests of justice. In order to work towards this, the Northern Ireland Office will establish a working group. The intention is that this group will identify practical measures that can reduce the number of non-jury trials. The responses to the consultation were highly supportive of the formation of this group.
The noble Baronesses, Lady Ritchie and Lady Hoey, and the noble Lord, Lord Marks, asked about a date. None of us wants to see the system in place for longer than is needed, but much depends on the security situation. The Government will keep the provisions under constant review. We introduced a further safeguard in 2017 requesting that the then independent reviewer of the JSA, David Seymour, review non-jury trials in his annual work. As was mentioned by other speakers in this debate, the new independent reviewer of the JSA, Marie Breen-Smyth, will keep the annual review of non-jury trial provisions in her remit.
Whether non-jury trials are fair was raised by the noble Baroness, Lady Ritchie. We believe they are. The European Court of Human Rights guarantees fair trial; it does not guarantee jury trial. Every defendant facing a criminal charge is entitled to a fair trial. This principle remains where the trial is by judge alone. All defendants who are convicted of a crime have the right to seek an appeal. Under this system, only the mode of trial is changed. Non-jury trials deliver an equivalent quality of justice to jury trials. Where there is a risk of paramilitary or community-based pressures on a jury, they could actually be fairer.
The noble Baroness, Lady Hoey, and the noble Lord, Lord Murphy, asked further questions about the working group. On the timescale, again, if the Motion passes through both Houses, the NIO will write to the proposed membership to convene the first meeting of the working group as soon as possible—hopefully this summer.
I want to clarify the term “associate”. The DPP is independent and makes a decision on meeting one of the conditions and on the suspicion of a risk to the administration of justice.
The noble Baroness, Lady Hoey, asked whether a judge can help with decisions and why a judge cannot decide whether a non-jury trial is needed. If a judicial process were adopted, it would take longer for decisions on the non-jury trial to be reached, delaying the administration of justice. We believe that the DPP is in the best position to make the assessment of risk that the decision will require. The decision is similar to that on whether to prosecute. The DPP already makes decisions about mode of trial in Northern Ireland—that is, whether certain offences should be tried before a jury in the Crown Court or without a jury in the magistrates’ court.
The noble Baroness also asked about the decision to issue a non-jury trial certificate. Perhaps I can reassure her by saying that a non-jury trial is possible only when the DPP issues a certificate for a specific case in relation to a trial on indictment, as tried in the Crown Court. As I said earlier, decisions for non-jury trials are made on a case-by-case basis, taking into account the circumstances of both the offence and the defendant. Further, the decision for issuing a certificate is based on a two-stage test set out in Section 1(2) of the JSA. The DPP must, first, suspect that one or more of the four conditions is met and, secondly, be
“satisfied that … there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury”.
The noble Baroness, Lady Hoey, asked about a particular case. She will know that I cannot comment on any particular case, I am afraid. She also made points about transparency. Again, let me provide some reassurance. Since the provisions have been in place, the DPP has shown that he applies the statutory test stringently. Statistics provided by the PPS show that the DPP regularly rejects applications for non-jury trial certificates, evidencing the thorough consideration given before a certificate is granted. We can be confident that only exceptional cases are certified for non-jury trials.
I realise that time is running out. I conclude by thanking all noble Lords again for contributing to this short debate. I will of course study Hansard with my usual scrutiny, and will be pleased to write to noble Lords where I have not managed to answer any questions.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the Grand Committee stands adjourned until 4.27 pm, when we will move on to the next item of business. I remind Members to sanitise their desks and chairs.
Arrangement of Business
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the hybrid Grand Committee will now resume. All Members will be treated equally. I ask Members in the Room to respect social distancing. If there is a Division in the House, the Committee will be adjourned for five minutes. The time allocated for the following debate is one hour.
Pollution Prevention and Control (Fees) (Miscellaneous Amendments) Regulations 2021
(2 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Callanan
That the Grand Committee do consider the Pollution Prevention and Control (Fees) (Miscellaneous Amendments) Regulations 2021.
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, I beg to move that these regulations, which were laid before the House on 21 April 2021, be approved. I will refer to them as the fees regulations.
As the environmental regulator of the offshore oil and gas industry, which I shall refer to as the offshore industry, BEIS’s Offshore Petroleum Regulator for Environment and Decommissioning, OPRED, recoups the cost of its regulatory functions from the industry, rather than the taxpayer footing the bill. OPRED’s role is to minimise the impact of the offshore industry on the environment by, for example, controlling air emissions and discharges to sea and minimising disturbance over the lifecycle of operations, from seismic surveys through to post-decommissioning monitoring. Regulatory activities for which OPRED can recover costs are covered in two ways: within a suite of regulations that are covered by the fees regulations and by four fees schemes that are not, because they do not require legislative change and will be amended administratively.
OPRED’s annual fees income is on average £6.2 million, which is recovered from around 130 companies. These are billed quarterly. OPRED recovers its costs via fees based on hourly rates. The fees regulations will increase the hourly rates used to calculate fees payable by the offshore industry. The fees relate to the provision of regulatory functions for the environmental management of offshore operations. Currently, the fees that OPRED charges for providing its regulatory services are based on hourly rates of £190 for environmental specialists and £101 for non-specialists. Environmental specialists are qualified technical staff who carry out the legislative functions of the Secretary of State and non-specialists are administrative staff who support them.
The current hourly rates have been in place since April 2020. OPRED has reviewed the cost base and concluded that the existing hourly rates need to be increased to fully recover the costs of providing specific regulatory services. The fees regulations will therefore amend the charging provisions by increasing the hourly rates for environmental specialists and non-specialists to £197 and £108 respectively. As the increases relate to cost recovery, they do not represent monetary changes linked to inflation.
OPRED’s fees are determined by adding together the recorded number of hours worked by environmental specialists and non-specialists on cost-recoverable activities, multiplied by the hourly rates. The new hourly rates were approved by Her Majesty’s Treasury in November last year. They were calculated in line with the Treasury’s Managing Public Money guidance and cover the expenditure on all resources used by OPRED to support cost-recoverable activities: for example, staff salaries, accommodation, IT and office services and corporate services such as human resources, senior management, legal, finance and learning and development.
Guidance on OPRED’s fee-charging regimes is published and clearly explains the scope of the cost-recoverable functions undertaken by OPRED and how the costs are to be calculated and recovered. The cost-recoverable functions undertaken by OPRED include: the evaluation of applications and issuing of consents for seismic surveys and the conducting of appropriate assessments on the likely significant environmental effects of proposed projects; assessing and approving operators’ oil pollution emergency plans; and compliance monitoring activities, including offshore environmental inspections.
The revised fees to be paid will increase by a small amount, sufficient only to allow OPRED to recover its eligible costs. In this regard, the additional total cost resulting from the increase in hourly rates will be around £300,000 per year. OPRED’s guidance on its fees-charging regime will be revised to reflect the new hourly rates. Those charged by OPRED are aware that it reviews its hourly rates annually and, although there was no statutory requirement to consult on the fees regulations, in February OPRED informed the offshore industry of the planned increase to the hourly rates. No representations were received.
I conclude by emphasising the importance of the increase to the hourly rates being introduced by the fees regulations. The increase will enable OPRED to recover the costs of providing regulatory services from those who benefit from them, instead of those costs being passed on to the taxpayer. The fees regulations were debated and approved by the House of Commons on 26 May. I therefore hope that noble Lords will support the measure and I commend the regulations to the Committee.
Lord Bourne of Aberystwyth (Con) [V]
My Lords, I thank my noble friend the Minister for setting out so clearly the background to these regulations and their effect, as he always does. I support the regulations, which represent the annual review of the hourly rates used to determine the fees payable by the offshore oil and gas industry to BEIS’s Offshore Petroleum Regulator for Environment and Decommissioning, for activities engaged in by OPRED in relation to environmental management of the offshore hydrocarbons industry. These activities include the conservation of habitats and species, as well as matters relating to the storage of gases and some of the seismic changes on the continental shelf. As the Minister rightly said, the last review of fees was conducted in April 2020 and the industry, when asked about the increases, had no comment to offer.
The regulations appear reasonable and unexceptional, but I would like to explore with my noble friend the Minister the current position on carbon capture and storage. It has long been recognised that carbon capture and storage can play a key role in economic terms for the United Kingdom and, crucially, in achieving net zero. Indeed, its deployment could lead to the UK offshore oil and gas sector actually becoming carbon negative.
The Government committed to CCS deployment at scale happening during the 2030s, subject to the costs coming down. For that to happen, clearly there needs to be commissioning from the fast approaching mid-2020s. We have massive potential for this as the United Kingdom’s continental shelf, because of oil and gas drilling, is absolutely the area to develop it in. Of course, we have staff and personnel who could be deployed from the UK oil and gas industry to help with speedy deployment of CCS—staff who have the relevant expertise. I would be most grateful if my noble friend could update the Committee on progress in that area.
I recall the noble Lord, Lord Oxburgh, who of course has massive knowledge and expertise in this area from his commitment to it and his time in the energy industry, doing a brief report for the Government on this area when Amber Rudd was Secretary of State. The only downside then apparent was the cost; that was some five to six years ago, and I believe that the cost may now have come down and that the attitude of government to the cost may have changed, in any event—along, indeed, with the attitude of the world. Perhaps governmental and world attitudes have changed, as they need to, as we approach the time when action is absolutely vital. We need to do this at speed and at scale, looking at experience elsewhere: in the United States, Canada and, I think, in Australia. Can my noble friend give some update on progress in this area, ahead of the important COP 26 in Glasgow and the fast-approaching need for immediate action?
Baroness Jones of Moulsecoomb (GP)
My Lords, this looks like a fairly simple instrument, and I congratulate the Minister on laying it out with what appeared to be great transparency—so I thank him for that. We seem to be looking at some incredibly paltry rises in administration fees to deliver a government service to the oil and gas industries at cost price. Why are we selling at cost price? I do not understand. This is a subsidy for a government service, and yet another example of the oil and gas industries being massively undercharged, in spite of their negative impact on the environment and highly polluting practices.
I salute the noble Lord, Lord Bourne, too, for his enthusiasm and optimism about carbon capture and storage. He is absolutely right that it would be a fantastic thing if we had it, and action is vital now—but we do not have it. So why not take another route, which is to make the oil and gas industries pay their fair share, not only of what we allow them to have but for the pollution that they cause? I can well imagine that no representations were received from the industry. If my fees were being increased from £190 to £197 I would probably not complain either, because the increase is negligible. Why are the Government doing this? Quite honestly, I think that this is a ridiculous SI. What we should have in front of us is something that actually reflects what is happening in the world in terms of the climate crisis.
I have a question here that I would like an answer to. Can the Minister outline what changes the Government will seek at COP 26 to make sure that fossil fuel companies stop getting a free ride, so that their financial costs reflect their true environmental and social costs? We heard an Oral Question today about a government guidance document, Aligning UK International Support for the Clean Energy Transition. We have some cheek talking about this sort of thing and proselytising about it when we are actually subsidising polluting oil and gas industries. What I would very much like to know is: how on earth are this Government ever going to live up to the sort of standards that we expect to see from a responsible Government?
Baroness Altmann (Con) [V]
My Lords, I thank my noble friend the Minister for his clear explanation of this SI, which, on the face of it, seems pretty uncontroversial. Given that his department is responsible for the environmental regulator—OPRED—and aims to recoup the costs of its regulatory activity from the industry rather than from taxpayers, which I wholly support, it seems as if the increases in cost that we are being asked to approve today fit with that aim.
Protecting the environment and controlling our emissions and discharges into the sea are hugely important for the future of the planet, the future of our country, the future of our children and future generations. However, I wonder whether I could follow on from the noble Baroness, Lady Jones, and ask one or two questions about the rationale for the pricing structure that is being applied to what are, in effect, qualified technical specialists in environmental matters. Rather low fee rates seem to be being applied here. Even with the increases, we are talking about something like £1,400 a day. Daily rates for lawyers or specialist consultants are more like double that, or even more. Even for the non-specialists, we are talking about perhaps £700 to £750 a day.
I understand that we do not want to destroy or damage an industry that literally keeps the lights on in our country, but I want to ask my noble friend the Minister something particular; I do not expect him to have the answer to hand, but I would be grateful if he could write to me. To what extent are the employees—I assume they are public employees—who are doing this very important work members of public sector pension schemes? Have the true costs to the taxpayer of those pension contributions and ultimate pension payments been factored in to the costs being charged to these oil and gas companies?
Clearly, we must control air and sea pollution. The industry itself has accepted this regime. Again, I understand that the department may not wish to rock the boat—if noble Lords will excuse the expression—but it is important that taxpayers do not subsidise the cost of regulation for this industry in any way. In the current environment, the costs of a public sector pension scheme are more like 40% to 50% of salary on top of actual earnings. I would be interested to know whether this has been reflected in the new charges or the old charges.
I have one final question. I believe that the Government are doing marvellous work, and I commend my noble friend the Minister, his department and Defra for what they are aiming to do to control environmental damage. However, it is important, and I would be grateful if my noble friend could give the Committee some idea of the measures being taken to encourage the offshore oil and gas industry to rapidly diversify away from fossil fuels, abandon new developments because there is risk of stranded assets down the line and invest in alternative energies, such as offshore wind and solar power. That could replace some of the activity and jobs that are otherwise potentially at risk in areas that have become so dependent on our very successful oil and gas industry.
I support the measures but have some further questions and concerns, and I would be grateful to hear my noble friend’s response.
Baroness McIntosh of Pickering (Con)
I am delighted to welcome the regulations before us this afternoon—certainly as far as they go. I thank my noble friend for his clear introduction to them.
My concern follows directly from the plea of my noble friend Lady Altmann to look more to offshore wind farms—that is what concerns me. Paragraph 13.2, on page 6 of the Explanatory Memorandum, says:
“It is crucial that all businesses operating offshore, regardless of size, are subject to the same regulatory regime to ensure that they continue to provide a high level of protection for the marine environment.”
If my understanding is correct and the regulations before us this afternoon refer only to the offshore hydrocarbons industry, which regulations from his department, which I understand will be the regulatory authority, actually apply to offshore wind farms?
I mention this because we did a piece of work before the EU Sub-Committee was disbanded at the end of the period of its supervisory authority. I quote what one of the witnesses said about how we mitigate the offshore wind pollution of our shores:
“It is fair to say that offshore wind is still a very new sector. It has been around for only the last 10 years. It has, throughout that period, innovated and continues to do so. It is probably fair to say that the focus for that has been more on construction impacts, and potentially pre-construction impacts, and less on the overall operation. Moving forward, we need to bring together the cumulative and ongoing impacts from servicing of the wind farms, for example, and the additional disturbance from vessels that are regularly attending.”
It concerns me that we are seeing a 10-gigawatt increase in one year alone—so we are literally upping the renewable source of offshore wind farms. Yet it is staggering to think that, as I understand it, no research at all has been done into the effects of not just, as the lady witness said, the construction phase and the ships going out to deliver materials but the operational phase and, for the purposes of these regulations, decommissioning. I presume that each wind turbine will have a life of some 10 or 15 years. This urbanisation of the sea, as the witnesses in that hearing called it, has specific ecological impacts on the maritime environment.
If my further understanding is correct, the maritime environment and marine ecology are not included in the Environment Bill, so we have two omissions: no research on the ecological and environmental impacts, in terms of not just noise but disruption to marine life. We have to ask ourselves: why are dolphins, porpoises and whales beaching in increasing numbers on our shores? I would like to think that it is not because of offshore wind farms, but we honestly do not know. I take this opportunity to ask why hydrocarbons, a very important part of the economy, have been singled out for this particular type of regulation? Which regulation covers offshore wind farms? Is there a similar regulation to what is before us this afternoon in relation to the recovery of the charges?
So how do offshore wind farms relate to the comparative structure and fee structure in the regulations before us relating to hydrocarbons? Also, mindful that there will be a rising degree—10 gigawatts in one year— of noise pollution in both the construction and operational phases, will my noble friend put my mind at rest that some research has been done over the period and that the regulatory regime is akin to that before us this afternoon?
With those concerns, I endorse the regulations before us. I am absolutely concerned that any regulatory regime should apply to all protections for the marine environment, whether in relation to hydrocarbons or to offshore wind farms.
Lord Bhatia (Non-Afl) [V]
My Lords, this SI has been prepared by BEIS, which explains that its purpose is to increase the hourly rates used to determine the fees payable by the offshore oil and gas industry and the Oil and Gas Authority to BEIS’s Offshore Petroleum Regulator for Environment and Decommissioning—OPRED—for certain activities undertaken by OPRED in relation to the environmental management of the offshore hydrocarbons industry.
We are told that the instrument is subject to the affirmative resolution procedure. It contains enabling powers that are both negative and affirmative. The European Union (Withdrawal) Act 2018 makes provision for the affirmative procedure to take precedence over the negative procedure where there is a combination of instruments. To enable OPRED’s new hourly rates to be introduced from 1 July 2021, the instrument will enter into force on the day after it is made, which will be beyond the common commencement date of 6 April 2021.
As the Explanatory Memorandum says, the increases in eligible costs to be charged to the offshore hydrocarbons industry and the Oil and Gas Authority were identified following a review of the cost base for the current OPRED fee schemes. The increases, which will allow OPRED to recoup the costs for the provision of regulatory services, are not alterations to reflect changes in the value of money. The territorial extent of this instrument is the United Kingdom.
I support this SI and particularly support what the noble Baroness, Lady Altmann, said about bringing in wind and solar energy procedures to replace those for the current sources of energy.
Lord Oates (LD)
My Lords, I thank the Minister for introducing this statutory instrument with his customary clarity. My starting point is a certain scepticism about this SI similar to that expressed by the noble Baroness, Lady Jones of Moulsecoomb. Personally, I think the SI should be unnecessary, because the industry should be paying all the costs of the Offshore Petroleum Regulator for Environment and Decommissioning. If it were not for the activity of the industry, that regulator would not need to exist, and given the profits which the companies concerned have made over the years it is unclear to me why the taxpayer is picking up any of the cost. I note that the description of the role of OPRED on the GOV.UK website includes
“protecting the taxpayer from bearing the full cost of decommissioning”.
Can the Minister tell us why we are paying any of this cost?
I also note the contrast between the way in which the oil and gas companies are treated, paying only part of the cost, and the way in which, for example, people who wish to become British citizens are treated; they pay not only the full cost of processing their application but many multiples of it, because for some reason they alone of British citizens are regarded as an easy touch to pay a supercharge for the cost of our border and immigration system as a whole. The oil and gas companies must have some very important friends to have achieved an outcome where they not only do not pay the full cost of decommissioning but they continue to receive huge subsidies to exploit fossil fuels that imperil the future of our planet.
On the increase in fees to which this statutory instrument gives effect, can the Minister clear up some issues? First, can he clarify the total amount of revenue raised by the fees which the SI relates to? The Minister gave us a figure of 1,243 hours as the figure representing an average of hours per annum spent on potentially cost-recoverable activity. If we take the average of the specialist and non-specialist hourly rates, it comes out at £152.50 per hour. If that was multiplied by the number of hours, it would come to—if my maths is correct—about £189,557. Is that the correct figure raised by the fees levied under this SI? If it is not the correct figure, can the Minister tell us what it is and how it is calculated between specialist and non-specialist hours, because the Explanatory Memorandum and the SI do not give the breakdown?
The Explanatory Memorandum tells us that the calculation of the costs charged to the industry
“removes the hours spent on leave, bank holidays, staff management etc.”
Why are those excluded given that they are clearly staffing costs?
Can the Minister also tell us the total cost of running the Offshore Petroleum Regulator for Environment and Decommissioning? I think he told us in his introductory remarks that the fees and other charges outside the ones we are discussing in this SI raised £6.2 million. Does this cover the entire cost of running the regulator? If not, what is the deficit?
Can the Minister remind us of the total level of subsidies provided by Her Majesty’s Government to the oil and gas industry in the last year for which figures are available? I hope that the noble Lord will not try to tell us that the Government do not provide any subsidies, because that sort of dissembling is exactly what has got the UK ranked joint bottom for transparency on these issues among the G20 nations.
The noble Baroness, Lady Altmann, raised some important issues about how we get the industry moving towards transition rather than the existing policy of maximum economic recovery, which makes no sense in the context of our climate goals. The noble Baroness, Lady McIntosh of Pickering, raised some interesting issues about wind farms and the marine environment.
I await with interest the Minister’s response on those and his response to my questions. I do not oppose the increase in charges set out in this SI, but I strongly object to the continued subsidies that are pumped annually to an industry that poses an existential threat to life on this planet.
Lord Grantchester (Lab)
I, too, thank the Minister for his introduction to the regulations before the Committee. It was necessarily detailed. The Explanatory Memorandum was fulsome in listing all the various regulations under various Acts of legislation where cost recovery is now embraced as part of government policy and fee schemes are introduced. His department is to be commended for the coherent analysis of fees payable by the offshore hydrocarbon industry and Ofgem to the Offshore Petroleum Regulator for Environment and Decommissioning—OPRED—for certain activities. I now understand better the Treasury’s Managing Public Money guidance on the methodology of cost-recoverable activities.
I have very few questions about these regulations. However, to start with, can the Minister confirm whether OPRED is entirely cost neutral to the taxpayer and that all its costs are recoverable? I thought I heard him say that its full budget of £6.2 million was recovered from industry. I think that is correct and that OPRED prevents a lot of possible pollution occurring.
The cost recovery system appears entirely non-judgmental—that is to say, there appears to be no analysis of the cost increases against any parameter. The noble Baroness, Lady Jones, called the increase negligible. However, I note that the cost increase of £7 per hour for both specialist and non-specialist staff in tandem is slightly above the rate of inflation. As the increase is in tandem to two different rates, it is not by any defined percentage consistently. Will the cost recovery system in the department in this instance be reviewed on any regular basis? I would not expect the policy to be changed into a profit centre.
From this, it can be asked whether and by what means costs are controlled. No doubt it is by the wages policy undertaken by public bodies such as OPRED and under the influence of HM Treasury. I am sure that any validation of cost increases across any organisation is not necessarily a smooth process. As the noble Lord, Lord Bourne, expressed, the future of the infrastructure on the continental shelf will become very important for the urgent development of CCUS and hydrogen. With that, I am happy to approve the regulations today.
Lord Callanan (Con)
First, I thank all noble Lords for their valuable contributions to this debate. It is not often that I come along with charging instruments to have people complain that we are not increasing the fees enough but, as always, the noble Baroness, Lady Jones, provides a contrary view to established practice in this House. Nevertheless, it was an interesting debate.
As I said during my opening remarks, the fees regulations will enable OPRED to recover its costs for the provision of regulatory services under the offshore oil and gas environmental legislative regime, as opposed to such costs being passed on to the taxpayer. In response to the noble Lords, Lord Oates and Lord Grantchester, let me set out the position on OPRED’s budget and fees income. As they both said, OPRED’s annual fees income is £6.2 million on average. This represents around 65% of the cost of running its environmental operations unit. The total costs of around £10.6 million a year include that of the office in Aberdeen and corporate support provided from London.
On chargeable activities, OPRED considers the environmental implications of all offshore oil and gas operations before issuing permits and consents covering areas as diverse as seismic surveys, marine licences, oil pollution emergency plans, chemical permits, oil discharge permits and consent to locate permissions for offshore installations. To this end, OPRED reviews around 5,000 applications for permits and consents annually. In addition, there is a regular programme of monitoring and inspection to ensure compliance with the environmental regulations.
As the noble Lord, Lord Grantchester, said, in line with Her Majesty’s Treasury’s Managing Public Money guidance, OPRED does not charge for policy work—for example, the enacting of new, or revisions to existing, offshore environmental legislation. Nor is OPRED able to charge for enforcement activity, such as prosecutions. Let me also point out that OPRED had originally planned to implement the changes to its hourly rates through the Oil & Gas Authority (Levy and Fees) Regulations 2021, which were laid before Parliament under the negative resolution procedure and entered into force on 1 April 2021.
However, OPRED is relying on a power that requires an affirmative procedure. This is because the increases allowing it to recoup the costs for the provision of regulatory services are not alterations to reflect changes in the value of money. The OPRED provisions were therefore not suitable for the Oil and Gas Authority’s regulations, hence the proposal to introduce these fees regulations.
In response to my noble friend Lord Bourne, who asked about UK progress on the deployment of carbon capture and storage, let me highlight the following. CCS will be essential for meeting the UK’s 2050 net-zero target, playing a vital role in levelling up the economy, supporting the low-carbon economic transformation of our industrial regions and creating many new, high-value jobs. In November 2020, we announced a £1 billion CCS infrastructure fund, which will provide industry with the certainty required to deploy CCS at scale.
In addition, CCS will play an important role in the Government’s industrial clusters mission, which sets out the ambition to establish the world’s first net-zero carbon industrial cluster by 2040, backed by £170 million from the Industrial Strategy Challenge Fund, with the spend profile running between January 2021 and March 2024. In February this year, BEIS published a consultation seeking stakeholder input on a potential approach to determining a natural sequence for locations to deploy CCS. Close to 100 responses to the consultation were received and BEIS recently published guidance for organisations wanting to take part in phase 1 of the CCS cluster sequencing process, which helps to meet the Government’s commitment to capture 10 million tonnes of CO2 per annum and have 5 gigawatts of low-carbon hydrogen capacity by 2030.
In response to the noble Baroness, Lady Jones, who asked why the costs were rising by such a very small sum and appear, as she said, to be subsidising the industry for government service, I remind her that, as I said earlier, the fees are calculated in accordance with Her Majesty’s Treasury’s Managing Public Money guidance, of which I am sure the noble Baroness is a great supporter, and any revisions to OPRED’s charges that result from annual reviews can cover only the actual cost of providing its regulatory services. OPRED is not permitted to make a profit under Treasury rules. I know that the noble Baroness will be a strong supporter of Treasury rules, so our hands are tied in this regard.
When conducting future annual reviews of the fees-charging regime plus associated functions, OPRED will ensure that the fees being charged fully reflect its regulatory activity and, in turn, the level of offshore operations in any given year. It is important to emphasise that, while the offshore oil and gas industry transitions to a net-zero basin, a comprehensive environment regulatory regime will be applied to its operations to ensure that a high level of protection for the marine environment is maintained. As we move towards net zero, the noble Baroness, Lady Jones, will also no doubt be delighted to hear that oil and gas will play a smaller role in meeting UK energy demand; however, it will still continue to play a role.
In response to my noble friend Lady Altmann, OPRED is an integral part of the Department for Business, Energy and Industrial Strategy. It is based in Aberdeen and currently has 97 staff. Those staff are civil servants. The calculation of the fees includes the full economic costs of the staff, including superannuation costs, which are also taken into account.
Questions were asked by, I think, the noble Lord, Lord Oates, about decommissioning costs. They are recovered through separate fees regulations. Currently, about 50% of the cost of running this unit is recovered through fees, and a consultation opened on 24 May on a proposal to increase fees recovery to around 80%.
My noble friend Lady Altmann also asked about transition. I would like to mention the North Sea transition deal, which will help significantly to reduce emissions, ensuring a net-zero basin by 2050 and supporting our goal of decarbonising the wider economy. Commitments in the deal will help to achieve a reduction in UK greenhouse gas emissions of 60 million tonnes, including 15 million tonnes through the progressive decarbonisation of UK production over the period to 2030. If the UK stopped producing gas, we would then need to import it and would therefore have little control over the carbon intensity of those inputs while losing the benefits of a domestic natural resource.
In response to the points made by my noble friend Lady McIntosh, I am sure that she is well aware that the wind farm fee regime is not part of these regulations. I will write to her on the main points she asked about. The North Sea transition deal will harness the existing skills of the offshore oil and gas sector supply chain to help to deliver our new low-carbon technologies, such as hydrogen and carbon capture usage and storage, helping the UK to meet its net-zero targets.
I think I answered the questions asked by the noble Lord, Lord Oates, in the early part of my speech.
On the question from the noble Baroness, Lady Altmann, the fee increase mainly comprises two elements: an increase in staff costs as a result of a pay award and an increase in corporate costs relating to IT, HR, finance et cetera, which is allocated on a per head basis. As I explained earlier, it is all in line with the Treasury’s Managing Public Money guidance, which does not allow OPRED to make a profit on its activities.
In response to the points made by the noble Lord, Lord Grantchester, although it might be helpful to the industry to have a form of indexing, again, this would fall foul of the favourite document of the noble Baroness, Lady Jones: Her Majesty’s Treasury’s Managing Public Money guidance regime, which provides that charges should be set to recover the full costs of the service being provided. This approach is intended to ensure that the Government neither profit at the expense of the industry nor make a loss for taxpayers to subsidise. OPRED’s fees are reviewed annually to ensure that, year on year, the full costs of the service are recovered. If costs were to reduce, the fees would also reduce; however, if the costs increase, the fees will also increase so that the burden does not fall on the taxpayer but remains on those benefiting from the service.
I think I have dealt with most of the questions asked by noble Lords and I therefore commend the regulations to the Committee.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the Grand Committee stands adjourned until 5.15 pm. I ask anyone leaving the Room to please sanitise their desk.
Arrangement of Business
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
My Lords, the hybrid Grand Committee will now resume. The time limit for the following debate is one hour.
Ecodesign for Energy-Related Products and Energy Information Regulations 2021
(2 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Callanan
That the Grand Committee do consider the Ecodesign for Energy-Related Products and Energy Information Regulations 2021.
Relevant document: 1st Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)
My Lords, I beg to move that these regulations, which were laid before the House on 28 April 2021, be approved.
Before I begin, let me provide a brief overview of ecodesign and energy labelling and what these policies are attempting to achieve. Ecodesign policies regulate products that consume energy when in use, such as household white goods, by setting minimum energy performance standards to increase their energy efficiency. More recently, ecodesign policies have also included resource efficiency measures, which seek to make products more repairable and recyclable, thereby reducing their use of material resources. In effect, ecodesign policies make the products we use in our homes and businesses more environmentally friendly, and also support long-term product innovation.
Energy labelling policies are intended to make clear and consistent information on a product’s energy usage readily available to consumers at the point of purchase, to help them make more informed purchasing decisions. In effect, energy labelling encourages the uptake of more energy-efficient products, thereby reducing energy usage and saving consumers and businesses money on their energy bills.
Taken together, these policies make an important contribution to reducing energy use, improving environmental outcomes and cutting energy bills. It is estimated that the suite of ecodesign and energy labelling policies in force in Great Britain will save consumers £75 on their energy bills and save 8 megatonnes of carbon dioxide in 2021—the equivalent of the average yearly carbon emissions from electricity use of something like 12 million homes.
This statutory instrument seeks to enact commitments made by the UK in 2018 and 2019 when it was an EU member state in support of a package of new product-specific ecodesign and energy labelling measures. New ecodesign requirements are introduced by this statutory instrument for welding equipment, electric motors, household washing machines and dishwashers, domestic and commercial fridges, and televisions placed on the market in Great Britain. These requirements will raise the minimum energy efficiency of products on the market. In effect, this will phase out the least energy-efficient products—in other words, the most costly and environmentally damaging products to run.
New obligations on manufacturers to make these products easier to recycle and repair will also be introduced. When buying a new washing machine or television, consumers will now be entitled to access spare parts with which to repair their appliances. This will help consumers keep appliances in use for longer, thereby reducing electrical waste. A wider range of spare parts and helpful information will be made available to professional repairers, which will facilitate even more complex repairs to be carried out by people with the right skills to do it safely.
In addition, this statutory instrument will introduce an energy label for commercial refrigerating appliances for the first time. Underpinned by new minimum energy efficiency requirements, the energy label will provide information to businesses when buying a new refrigerated sales cabinet, for example, to help them to understand and compare the energy consumption of different products. This will encourage businesses to opt for more energy-efficient fridges for use in supermarkets and other commercial environments, helping to cut down on the energy use and associated carbon emissions of this product group. Furthermore, by setting ambitious boundaries for the A-G classes on the energy label, this policy will spur innovation in the design of commercial refrigerating appliances as manufacturers compete to achieve the highest energy efficiency ratings.
By introducing these more ambitious and environmentally friendly ecodesign and energy labelling requirements, we will ensure that we maintain high product standards in Great Britain and push the market to achieve ever greater carbon savings. The measures introduced by this SI will contribute savings of approximately 1.7 megatonnes of carbon dioxide between now and 2050. On top of this, the resultant reduction in energy use will improve air quality in Great Britain and cut many pounds from household and business energy bills. As I mentioned earlier, through greater repairability and recyclability of these electrical appliances, the measures introduced by this SI will help reduce the quantity of electrical waste reaching landfill each year. Lastly, introducing these requirements in Great Britain will ensure a common set of product standards with Northern Ireland, thereby facilitating trade across the Irish Sea.
A public consultation was conducted between September and November 2020. Feedback on the consultation proposals showed significant support among the respective manufacturing bases for the affected products and among environmental campaign groups for implementing these new requirements in Great Britain.
In conclusion, introducing these requirements is aligned with the Government’s ambitions to achieve our carbon budget and net-zero targets; they will take us ever closer to reducing our energy use and environmental impact. Furthermore, the new measures will provide greener choices for consumers and businesses and will encourage product innovation. I therefore commend this statutory instrument to the Committee.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is impossible for me as a Green to disagree with anything in the opening statement, because these are things that we have been saying for 30 or 40 years—so I am glad that the Government have finally caught up with all these concepts, such as lower power usage, longer life for all sorts of goods, repairing them, saving money for customers on their bills and having less waste to landfill. Those are all things that we have been arguing for for decades. However, in the statutory instrument, all I could really see is that it changes the flag on a label from an EU flag to a union flag. Please tell me if I am wrong; it is a very thick document, so presumably something else is in it, but that seemed to me the only pertinent point.
The rest of the instrument is all about ensuring that EU law continues to operate effectively in the UK. For me, it is another sad reflection of this Government’s implementation of Brexit, because they made lots of promises about how we would be free from the shackles of the EU and how it would allow us to have the best environmental protections in the whole world—world-leading environmental protections, even. But the reality is that we are actually keeping 99% of EU laws, or weakening them, and then just sticking a union jack label on. Perhaps the Minister can point me to where I have gone wrong on this.
After reading this, I wonder what happened to creativity, ambition and even, as the Minister said, innovation. I know that the Government were carrying out a consultation on higher energy standards, and I am curious about that because, although I had only a quick search, I could not see the results. I do not know whether it is still ongoing, but it will be interesting if that says anything about improving on EU levels.
Of course, as any fool doth know, the cleanest, greenest and cheapest energy that you can have is the energy that you do not actually use. Our appliances and devices still use far more than they need to. The EU’s headline energy efficiency target for appliances is for at least 32.5% by 2030. Are we going to improve on that or are we going to be left behind? The consultation to which I referred talked about the possibility of appliances being part of a smart grid—so, for example, a freezer could store the energy and might store electricity in the form of extra cold to be used when there was a bit more demand or energy is scarcer. That is an important advance in an entire rethinking of the energy system, relying on renewables and storage.
There is also talk of displaying lifetime energy costs at the point of purchase for a product, plus additional information on the cost of running it and, importantly, how easily it can be repaired, reused and recycled—namely, how durable it is. I have quite a lot of questions, but my main one is: what has happened to that consultation on higher energy standards, and has it encouraged the Government to raise their own standards?
Lord Oates (LD)
My Lords, I thank the Minister for his introductory comments and his explanation of this statutory instrument.
I note that the Explanatory Memorandum states:
“this legislation will protect the Great British market from the risk of ‘dumping’ of less efficient products which do not meet the minimum standards in the EU and in Northern Ireland ... For some products, without this SI suppliers may need to have two product lines—one for the GB market and one for the EU and Northern Ireland market ... Suppliers may also have to undertake dual conformity assessment procedures to ensure compliance with both sets of requirements. This legislation avoids this outcome and the associated costs to business.”
I am sure that the Minister will agree with me that this is a powerful argument for regulatory alignment and, indeed, for membership of the single market and, in order to influence the single market, membership of the European Union—but that is perhaps for another day.
I wonder whether the Minister can answer a few questions about this SI. Paragraph 7.8 of the Explanatory Memorandum states:
“In order to demonstrate or measure conformity with the ... Labelling requirements introduced by these Regulations, designated standards must be used ... However, none of the standards for the requirements in these Regulations is available to be designated yet due to their ongoing development.”
Is it usual to introduce legislation imposing labelling requirements where standards have not been designated? I understand that some of the products covered will be expected to use existing standards, but the Explanatory Memorandum states:
“For commercial refrigeration and welding equipment, for which there are no existing Regulations nor a transitional method of measurement, we expect suppliers to use the best available standards.”
Can the Minister explain what that means and how conformity will be achieved between different manufacturers? Who will decide?
Could the Minister also explain why the regulations do not apply to appliances that are battery operated but can operate via a separately purchased AC/DC converter? Can the Minister also tell us what the practical difference is between the EU provision, referred to in paragraph 7.12, for a “product database” and the UK Government’s proposal for a “publicly accessible website”? Can he explain how those two differ? Can he also tell us when the designated standards are likely to be available?
Finally, I note that, while the standards for the appliances under this regulation relate to energy efficiency, products covered here include dishwashers and washing machines. I wonder what plans the Government have—or whether there are different measures by which they can set standards for water usage. People who took part in the debate on the Environment Bill will know the difficulties and pressures that are caused by excess water usage, so I hope that the Government will consider how these may be brought in in future.
Lord Grantchester (Lab)
Once again, I thank the Minister for his introduction to the regulations. They seem to be simple, straightforward updating regulations to continue the in-built progress to consumer standards from increases in product developments. This raises energy performance and efficiency standards in electric motors, various household goods and now, for the first time, welding equipment and commercial refrigeration. Has welding equipment become an everyday item in the marketplace?
I am pleased to the see that the Government are being practical and sensible in resisting the temptation to insist that the UK undertakes its own post-Brexit consumer products standards. While these standards were agreed by the UK as a member state, I trust that the Government will continue with this alignment. Independent standards would be extremely tedious in relation to the Northern Ireland protocol and would add greatly to costs generally.
As these regulations continue with the updating practice that existed before Brexit, I presume that trading standards will be able to pick up the changes relatively smoothly. Since monitoring of regulations and post-implementation reviews will continue, does the Minister foresee any problem resulting from these regulations across any part of the United Kingdom? The full 29 schedules covering online labelling and internet selling would suggest that the department is following well-worn pathways and extending these to welding equipment with practised ease.
If I may, I will make one consumer observation on product development. I do not often stray into the market for vacuum cleaners but, when I have done so, I have seen that generally the most powerful machines become irreplaceable with powerful replacements no longer available. Does the insistence on energy-saving improvements necessarily rule out the continuation of more powerful machinery in the marketplace? The more power that is needed tends to lead to these more powerful machines being withdrawn. Do the minimum energy performance standards—MEPS—need to take account of the range of options available within the average energy efficiency of all products in a product category? There may be other cases in the household product marketplace. Does the Minister have any insights from the department on this aspect?
I am glad that repairability is now being recognised as important. As the noble Lord, Lord Oates, remarked, it does seem rather unusual under paragraph 7.8 in the Explanatory Memorandum to bring in regulations on ecodesign and energy labelling before any of the standards for the requirements are available to be designated, due to ongoing development work. While I appreciate that the GB market must be protected from the risk of the dumping of less efficient products, should these regulations not be implemented in tandem with the EU, can the Minister explain why this is happening in this case? With that, I am happy to approve the regulations today.
Lord Callanan (Con)
First, let me thank noble Lords for their contributions to this debate. As I said before, the Government are committed to delivering their carbon budget and net-zero targets. These regulations will help to achieve this by increasing resource efficiency and setting higher product standards, leading to 21.5 terawatt hours of electricity savings in the domestic sector by 2050, equivalent to around 1.7 megatonnes of carbon dioxide.
In response to the points made by the noble Baroness, Lady Jones, I thought for one brief moment that she was about to agree with something we were doing but, sadly, about two minutes into her speech, my hopes were dashed: she did not quite agree with everything we were doing, although perhaps she thought that we were on the right track.
On what the SI actually does, it will raise the minimum energy efficiency requirements of these products. Manufacturers will be obliged to make products easier to recycle and repair, including giving consumers access to spare parts to repair their appliances. An energy label for commercial refrigeration will be introduced to provide businesses with information to help them to understand and compare the energy consumption of different products, encouraging them to opt for more energy-efficient fridges. Furthermore, the measures will ensure a common set of product standards with Northern Ireland, helping to facilitate trade across the Irish Sea.
The regulations closely reflect the EU regulations, with the exception, as the noble Baroness pointed out, of the UK flag. We will be coming forward with our own proposals for how the UK can go further with ecodesign and energy labelling in future with our energy-related products framework. I am sure that the noble Baroness will be delighted to support us when we do so.
In response to the noble Baroness’s question about consultation, the 2020 call for evidence will help to inform which products and policies to pursue as part of our energy-related products policy framework, which was announced in the Prime Minister’s 10-point plan last November. To support building the UK evidence base for energy-related products, we have launched a study that will help to inform which products are high priority in terms of their overall environmental impact, considering their contribution to carbon emissions and resource depletion and the potential for improving their environmental performance. I am sure the noble Baroness and the Greens will welcome the Government’s intention to launch a world-class product policy framework for energy-related products later this year, when more details will be set out on future policy and ambitions.
In response to the points raised by the noble Lord, Lord Oates, who asked about designated standards, it is not uncommon to introduce new requirements before standards have been officially designated here. The regulations and supporting test standards have been discussed at length with industry, and alternative methods are available to measure the technical parameters. The designation process will take place very shortly, and the designated standards will be made clear in guidance. I would be very happy to write to the noble Lord about battery-powered appliances. It is a fact that the UK no longer has access to the public part of the EU product database, so the same information will be available to consumers on a free-to-access website. In relation to water usage, as part of our world-class policy framework we will set out our ambition to maximise the energy, carbon and energy bill savings from these energy-related products.
The noble Lord, Lord Grantchester, asked about the Northern Ireland protocol. These regulations will apply to Great Britain only. Under the terms of the Northern Ireland protocol, equivalent eco-design and energy label requirements already apply in Northern Ireland in line with EU regulations. This will ensure that a consistent approach on product standards is followed across Great Britain, Northern Ireland and the EU. In all future policy we will need to uphold the terms of the protocol.
To close, let me underline once more the main purposes of the instrument. It will help raise the minimum energy efficiency of a range of electrical products sold in Great Britain, including many household goods, such as washing machines, dishwashers and televisions. It will involve new obligations on manufacturers to make products easier to recycle and repair through better access to spare parts, and it will introduce energy labelling for commercial refrigerating appliances for the first time, helping to make the fridges we see in our supermarkets and shops more energy efficient. These measures will help to spur innovation, maintain high product standards and give consumers the choice of more energy-efficient products on the market. I commend these regulations to the Committee.