Waste and Agriculture (Legislative Functions) Regulations 2022

Baroness Jones of Whitchurch Excerpts

Tuesday 8th February 2022 Grand Committee

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I thank the Minister for his full introduction to this relatively straightforward instrument dealing mainly with waste. The Explanatory Memorandum claims that without this SI it would be “cumbersome” and difficult to make any necessary changes to take account of new methods of sampling and waste treatment in future.

Paragraph 7.2 of the EM sets out the functions already in place and working well but does not mention those that are perhaps not working well. Is the Minister able to say whether any of the functions under the EU directives concerning waste that have transferred are not working as expected?

I am afraid I have some somewhat detailed questions. The various categories of waste covered by this SI are wide. In Chapter 5, Regulations 12 and 13 deal with the retention of functions from the batteries directive. This includes powers to specify criteria relating to the export of waste batteries. Regulation 12(1) states that an

“appropriate authority may, by regulations, make provision specifying criteria for the assessment of equivalent conditions where treatment and recycling of waste batteries takes place outside the United Kingdom.”

The Minister will know that all households are now aware that they cannot just throw their expired batteries into the waste bin but have to dispose of them safely. Having disposed of my batteries in the relevant safe way, I am sure I am not alone in not expecting them to be exported for their final resting place. Can the Minister say just what percentage of the

“batteries, accumulators and battery packs”

referred to in Regulation 13 is disposed of within the United Kingdom and what percentage is exported for disposal, and which countries take our batteries for disposal?

While I have not read all the directives covered by this SI, I have done some investigation on the mining waste directive, 2006/21/EC. This covers extractive waste from land-based extractive industries and the relevant regulatory procedures required for England and Wales under the Environmental Permitting (England and Wales) Regulations 2010. This relates to unpolluted soil, non-hazardous waste from prospecting of mineral resources, except oil and evaporates, and waste from peat extraction. The definition of extractive waste is unpolluted soil and waste arising from prospecting for mineral resources and from peat workings. I am sure the Minister can see which way I am going.

Article 3(15) further states that for a site to be considered as a mining waste facility, the extractive waste would have to be kept in it for differing periods of time depending on the category of waste. For

“unpolluted soil, non-hazardous prospecting waste, waste resulting from the extraction, treatment and storage of peat and inert waste”,

this is specified as

“a period of more than three years”.

Can the Minister say what the average time period of storage is for extractive peat waste and what the quantities are currently likely to be?

The section in the instrument relating to agriculture is at the end under Part 4 and relates solely to the financing, management and monitoring of the common agriculture policy, in so far as it relates to CMO markets and rural development measures, and corrects errors in previous SIs on the subject. Given the number of SIs in the past on this subject, although they were before the Minister was in post, can he give reassurances that this SI is a catch-all and corrects all previous errors, or are there likely to be more? As I said, this is something of a tidying-up SI, and I am happy to support it.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the Minister for his introduction to this SI, and the Secondary Legislation Scrutiny Committee for drawing this SI to our attention. As the Minister said, the SI proposes to transfer several technical powers relating to waste from the European Commission to the Secretary of State, as well as correcting an error. In this regard, I have a number of questions.

First, can the Minister say when the error was first identified and why it has taken so long to bring the correction before us? This partly echoes the point made by the noble Baroness, Lady Bakewell, that a lot of water has gone under the bridge since the SI was first drafted. We have dealt with a number of corrections over the years, so why has this one taken so long? Perhaps he could address that point.

Could the Minister also say whether there have been any adverse consequences resulting from this drafting error? If there was no definition of the appropriate authority, I would have thought it undermined the whole legislation and that the legislation had no standing if it did not say who had the authority to carry it out. I would like to have a better understanding of what has been happening in the intervening period since the original wording was agreed by us. Perhaps he could also explain how that error came to light and why that took so long.

Secondly, referring to the various waste management standards, which the Minister said are all currently operational, can I double check whether all those standards were approved by Parliament in the first place? In other words, have they been signed off in the normal way?

Thirdly, paragraph 6.1 of the Explanatory Memorandum says that

“if this SI were to fail and the powers were not transferred to the Secretary of State”,

it would not be possible to make regulations to take account of improved scientific techniques in the future. In other words, this is the only way to do that. I take slight issue with that, because surely there remains the option of bringing forward new regulations to take account of improved scientific knowledge, an option that would exist at any time, without necessarily giving all those powers to the Secretary of State. We are being asked to give up our involvement in those decisions. That matters because, as we all know, having debated so many SIs in the past, the definition of improved scientific knowledge is a bit of a movable feast, and we might have a different view in Parliament from the Secretary of State.

The Explanatory Memorandum says that this is to allow more flexibility for the Secretary of State in responding

“to scientific and technical changes”.

But given the Government’s current excitement about the forthcoming Brexit freedoms Bill, how can we be sure that the freedoms for the Secretary of State set out in this SI will not be used to reduce standards in the name of technical advance? For example, there are several references in the SI to the Secretary of State being able to exercise this power only if it is considered

“appropriate to do so as a result of scientific and technical progress”.

This phrase is used in Schedule 6(3) relating to end-of-life vehicles, in Schedule 11(2)(a) relating to mining waste, and in Schedule 20(2) relating to the WEEE directive.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I appreciate that the Minister said he will go through Hansard and perhaps give us a more detailed reply, but I suspect he already knows the answer to the last question I asked him. Partly on the back of the Brexit freedoms Bill, is there a wider review of the powers of the Secretary of State arising from the withdrawal Act, as set out in paragraph 7.6 of the Explanatory Memorandum? Is this a one-off, devolved to the Secretary of State, or are the Government going back and looking at all the provisions in the withdrawal Act? Is that a bigger process that Defra is involved in?

[Lord Goldsmith of Richmond Park (Con)]

No, it is not. Defra is one of the busiest departments of government at the moment, not least because we have an enormous amount of follow-up to do following the passing of the Environment Act. An enormous amount of secondary legislation and work will follow. One area of the work we are looking at is how we can refine, and potentially improve, the habitats directive. That is also taking up a lot of bandwidth. What we are talking about here today is not the thin end of any kind of wedge. There is no overall Defra review that is happening. In the context of what we are talking about today, I can say that this is a one-off, as opposed to part of an overall review.