Environment (Amendment etc.) (EU Exit) Regulations 2019

Baroness Byford Excerpts

Tuesday 12th February 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, in line with the European Union (Withdrawal) Act 2018, these regulations make technical, legal amendments to maintain the effectiveness and continuity of UK legislation that would otherwise be left partially inoperable. The regulations will also, where appropriate, prevent the otherwise automatic incorporation of EU legislation into our national law. The SI presents no changes of policy.

The regulations consist of three main components. The first set of amendments, in Part 2, are to three environmental Acts: the Environmental Protection Act 1990, the Environment Act 1995 and the Pollution Prevention and Control Act 1999. Because these regulations amend primary legislation, they have undergone additional legal scrutiny by the Office of the Parliamentary Counsel.

Regulation 2 amends the Environmental Protection Act 1990. This Act contains references to the UK’s obligations under EU law, which will no longer work legally after exit, and we are replacing them with references to “retained EU law” and “retained EU obligations”.

Regulation 3 amends the Environment Act 1995 and makes similar amendments to those in Regulation 2. It also includes adjustments to powers in the Act to make directions and regulations for the purposes of implementing EU law, so that they can instead be made for the purposes of retained EU obligations following exit. There are also amendments to the power for appropriate agencies—for instance, the Environment Agency, the Natural Resources Body for Wales or the Scottish Environment Protection Agency—to impose charges in relation to retained EU law.

Regulation 4 amends the Pollution Prevention and Control Act 1999 and makes similar amendments to those in Regulation 2. It also adjusts the power in the Act to make regulations under Section 2 of the Act for the purposes set out in Schedule 1 to the Act. That power can currently be used in relation to EU directives, which Ministers designate from time to time. Regulation 4(3) removes this power to designate but lists the directives which have already been designated, preserving our existing ability to change and improve the relevant environmental regulations. If we did not do so, the reduction in the scope of the power could mean that we would have to use primary legislation to make the necessary changes to maintain and update environmental standards.

Part 4 of these regulations addresses existing directions and regulations made using powers under the Environment Act 1995. We are providing for them to continue for what will be domestic purposes. This will ensure, for example, that the recent air quality directions to English local authorities, requiring them to prepare local air quality plans, remain in force.

Part 3 of these regulations makes amendments to three cross-cutting environmental statutory instruments: the Contaminated Land (England) Regulations 2006, the Environmental Noise (England) Regulations 2006 and the Environmental Damage (Prevention and Remediation) (England) Regulations 2015. These instruments make similar references to EU law to those made in the Acts I have already mentioned, and for the same reason need to be amended. The instruments apply to England only; devolved Administrations are addressing separately any similar issues in devolved legislation. The amendments in these regulations make no changes to policy and these instruments will continue to operate substantively as they do now.

There is a type of EU legislation that is directly applicable. This is law that applies in the UK without any further legislation by our Parliaments, and includes EU regulations and decisions. These will automatically be brought into national law by the European Union (Withdrawal) Act, as part of retained EU law. In some cases, however, that is not appropriate. When we are no longer a member state, the UK will no longer be allowed to authorise participation in the EU’s Eco-Management and Audit Scheme—EMAS—or the EU’s Ecolabel scheme. Existing EMAS and Ecolabel registrations with UK bodies will no longer be valid. These regulations do not bring about this change: it is a result of our leaving the EU. These regulations make appropriate legal amendments to reflect the situation.

The EU EMAS regulation establishes the Eco-Management and Audit Scheme. Participation in this scheme is entirely voluntary, and there are only 17 UK-registered organisations. ISO 14001, a similar scheme established by the International Organization for Standardization, has more than 16,000 UK-registered participants. The EU Ecolabel regulation establishes another entirely voluntary scheme, under which producers, importers and retailers can apply for the EU Ecolabel for their products. Again, uptake in the UK has been low. In fact, a European Commission fitness check of EMAS and Ecolabel across member states in 2017 found that the schemes were substantially limited by levels of uptake.

The Government nevertheless attach importance to voluntary schemes that encourage businesses to improve their environmental performance. In our resources and waste strategy, we recognise that providing transparency of information can help those consumers or organisations that want to make environmentally friendly choices to do so. Guidance is also provided on how to look after their products and dispose of them at end of life. We will develop options for domestic eco-labelling before consulting more widely.

In the meantime, businesses holding existing EMAS registrations and Ecolabels will still be able to sell their products in EU member states, and they can apply to rejoin these schemes through other member states offering the service. We have published and circulated information notes on EMAS and Ecolabels to affected businesses. If we do not act, the European Union (Withdrawal) Act will bring EMAS and Ecolabel regulations into our national law. For the purposes of good public administration, and to avoid any confusion for businesses wanting to join such schemes in the future, these regulations stop that happening.

Finally, there are further EU decisions included in the schedule to these regulations, which refer to EU environmental action programmes. These EU decisions are either already out of date or will serve no ongoing purpose after we leave the EU. We will be making these amendments for the same reasons as with EMAS and Ecolabels.

These provisions apply to the whole of the UK and have been agreed between all four nations. The amendments in these regulations will ensure that UK law continues to operate smoothly when we leave. They represent no change in policy and the regulatory impact experienced by businesses and the public will not change as a result of these regulations. I beg to move.

[Baroness Byford (Con)]

My Lords, I thank my noble friend for introducing this section of statutory instruments and have listened carefully to what he said: there is no change in policy. Indeed, it is important that we pass these statutory instruments to maintain the existing regulations that we have been connected with.

My noble friend also talked about sustainability in the long term but recognised that the current audit and labelling schemes will no longer be valid. Perhaps I might press him a little more on that because clearly we will have to introduce a scheme to replace the existing ones. Is he able to tell us a little more about that and how the department will approach it? Also on that issue, I think he said that we were going to be consulting more widely. Again, it is a matter of timeframe: how soon that will happen? Clearly, that would help us in dealing with this statutory instrument.

Lastly, my noble friend mentioned that some aspects of existing EU law have become out of date and we would need to transfer powers to a new set of regulations. Can he give us any indication of how many of the changes taking place are to regulations that are considered out of date?

[Lord Whitty (Lab)]

My Lords, in general, this is obviously a sensible regulation. However, I have a number of queries, one of which is exactly the same as that of the noble Baroness, Lady Byford. There are references to redundant and inappropriate regulations, but there is no list, as far as I can see, of which regulations they are or whether further regulations might be deemed to fall within that category. I may have misread the rather complex way in which the regulations are presented, but there may be a whole batch of regulations which, down the line, Defra officials may decide are redundant and use the power under the Act to take off the statute book.

My other two questions are these. It is true that EMAS and Ecolabel have been a bit of a slow burn, but, nevertheless, there is a degree of consumer recognition and take-up. Is the Minister saying that in no circumstances could we use those terms under British law to continue to reflect the qualities that some consumers have now come to recognise, or will his consultation be directed to providing an entirely new British scheme—which, by definition, will require a further educational and informational period before it begins to be recognised? Even in the more benign context of a deal of some sort, would it not be sensible for some mutual recognition and continued use of the existing labels to operate post the UK leaving the EU?

Finally, I declare my presidency of Environmental Protection UK, one main concern of which has been air pollution and air quality. The Minister referred to that in passing. The problem with the air quality regulations is that, hitherto, the effective enforcement of those regulations has depended substantially on the Commission’s intervention and on campaigners—ClientEarth, mainly, in this case—taking the British Government through the courts on the basis of EU law.

In both those respects, I am not entirely sure what mechanism replaces that. Is it the much-heralded but still unclear new environmental statutory body, which will presumably appear in the environment Bill when we eventually get it, or is it simply to be enforcement of these new regulations, having become British law, or retained EU law, enforceable through the British courts? The problem hitherto has been that it has been government bodies at local and national level which have failed to meet, for example, the provisions on maximum NOx levels for air quality. Unless we stipulate in the new regulations who will enforce equivalent standards to the European standards, we may well have something on the statute book but we will be unable to enforce it.

--- Later in debate ---

I will look at Hansard, because a number of distinct questions were raised. On the ecolabelling and EMAS labelling issues, it seems to me that at the moment there is not a great deal of traction within the EU, and I suspect that that is something which will need to be considered in the longer term. On the ISO standards, I wish I had the exact figure, but it is over 300,000 registrations across the world, with many of the major EU countries using ISO in far greater numbers than EMAS. It is important to say that we will consider how best to encourage the consumer to understand about environmentally friendly products and the producer and manufacturer to have confidence that they have something of a standard that we can all be proud of in terms of enhancing the environment. Again, I will look at Hansard, because there are a number of detailed points on timing that I hope I will be able to furnish your Lordships with.

[Baroness Byford]

I wonder if my noble friend might give way. Is it possible to find out what body or who will be responsible before the new environmental body is set up? The difficulty is that it could be many weeks or months; we really do not know how soon that will come in. Therefore, the natural question is: after 29 March, if things are not going as we hope, where does the buck stop? Who is responsible in the meantime? It may well be that his own department takes that on, but I did not think it was clear in the statutory instruments we have just been debating. I would be grateful for some clarification.

[Lord Gardiner of Kimble]

I have to say that that area is not what this statutory instrument is about. I can say that we will bring forward measures so that there is no gap in environmental governance in the event of a no-deal Brexit. We fully realise that the independent environmental body will not be complete; we have to have primary legislation for that. But I can say—I hope it provides some reassurance—that once the office comes into effect it will have the power to review and take action on any breaches that occur from the day of us leaving. There will therefore be no period of time during which government actions cannot be held to account by an enforcement agency. I hope that is an assurance that the Government’s bona fides on this are very strong and that we do not want there to be an environmental governance gap. I am not sure that I can add anything further, but I look forward to the noble Baroness’s intervention.