Air Quality (Legislative Functions) (Amendment) Regulations 2021

Lord Goldsmith of Richmond Park Excerpts

Wednesday 19th May 2021 Grand Committee

Moved by

[Lord Goldsmith of Richmond Park]

That the Grand Committee do consider the Air Quality (Legislative Functions) (Amendment) Regulations 2021.

[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con) [V]]

My Lords, before you today are the Air Quality (Legislative Functions) (Amendment) Regulations 2021, which were laid before this House on 22 March. The Government are committed to continuing our high standards of industrial pollution reporting. All the changes introduced by this instrument are technical and are required to ensure that the United Kingdom’s industrial pollution reporting remains relevant and up to date, reflecting scientific, technical and international progress.

These regulations make amendments to our regulations on pollutant release transfer registers, or PRTRs, and specifically a piece of retained direct EU law. The original regulation 166/2006 was amended on EU exit and provides for a PRTR to be maintained for the United Kingdom in the form of a publicly accessible electronic database. Now that the transition period has ended, this EU-derived legislation otherwise risks being left partially ineffective, should there be a rapid industrial or technological change.

These regulations amend the PRTR regulation to confer two powers. The first power will enable the Secretary of State and the devolved Administrations to make regulations on reporting on releases of pollutants from diffuse sources. Diffuse pollution can be caused by a variety of activities that have no specific point of discharge, or are difficult to place at a specific location. The appropriate authority can do this if it determines that no data on the release from diffuse sources exists, and it must use internationally approved methodologies where appropriate.

The second power means that the Secretary of State can amend annexe II of the PRTR regulation for the purposes of adapting it to scientific or technical progress, or to reflect any future amendments to the Kiev protocol on PRTRs. I assure the Committee that this power could be used only for that purpose. Annexe II of the PRTR regulation sets out a list of pollutants and threshold values which, if exceeded, operators of industrial facilities are required to report any releases of the pollutants to air, land or water.

Both these powers are limited in their scope and can be exercised only for specified purposes. These powers are critical to ensure that the UK Government and devolved Administrations can act quickly to strengthen pollution reporting on emerging scientific or technical evidence—for instance, should there be a new pollutant on which it is in the public interest to report pollution information. It is therefore appropriate for these powers to be exercisable by secondary legislation.

These powers also ensure that the Government can reflect in UK legislation any changes made to the Kiev protocol on PRTRs so that we can continue to meet our obligations as a party to the protocol. We anticipate that any future changes to the protocol will strengthen parties’ reporting to better fulfil the aims of the protocol, rather than being fundamental changes to the principles of the protocol.

These powers mean that future technical changes to the regulations can be made with secondary legislation, which is the most proportionate approach. Such amending legislation would be subject to the negative procedure, which would allow appropriate scrutiny, given the technical nature of any changes.

The PRTR regulation will continue to function similarly to how it always has, but with UK authorities now having legislative functions under the regulation. I should make it clear that all the amendments introduced by this instrument are technical operability amendments to maintain the effectiveness of this important UK industrial emissions reporting obligation. These regulations maintain existing regulatory standards and do not create new policy.

Provision for the transfer of powers for PRTR was included in the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019. However, the PRTR regulation was amended in EU law after the 2019 EU exit statutory instrument was made, which meant that the PRTR part of the EU exit statutory instrument no longer operated as intended. Therefore, further amendments to the PRTR regulation are needed to ensure that the transfers of legislative powers are reinstated and have effect as intended following EU exit.

This instrument is subject to the affirmative procedure as it involves the transfer of powers. Furthermore, because the instrument does not alter existing reporting, it was not subject to consultation. There has been no need to conduct an impact assessment for this instrument, in line with published guidance, because there is no foreseen impact on the private or voluntary sector as the instrument relates to maintenance of existing regulatory standards, and there are no direct or cost impacts from these regulations.

This statutory instrument forms part of our important air quality and industrial emissions legislation. Noble Lords will be aware of other important legislation we have introduced to improve air quality. For instance, the new legislation restricting the sale of the most polluting fuels used in domestic burning came into force on 1 May 2021. This will restrict the sale of traditional house coal, small volumes of wet wood and high sulphur manufactured solid fuels.

In addition, our ground-breaking Environment Bill will protect and improve the environment for future generations. The Bill will improve air quality by setting a duty to introduce a legally binding target to reduce fine particulate matter—PM2.5—which is the most damaging pollutant to human health. I beg to move.

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[Lord Goldsmith of Richmond Park (Con)]

My Lords, I thank Members of the Committee who have contributed to today’s debate. The UK continues to support the UNECE Kiev protocol and to publish industrial pollution release and waste transfer data on an annual basis. I thank the noble Baroness, Lady Hayman, for her support for this instrument. As she said, it is vital that we keep our UK PRTR up to date according to technical, scientific or international developments, and all the changes introduced by this instrument are necessary to enable this to happen. My understanding in relation to one of her points is that we are not actually correcting an error but reinstating giving of powers to the appropriate authorities.

In answer to questions from the noble Lord, Lord Whitty, which were also raised by the noble Baroness, Lady Hayman, about the division of these powers between devolved Administrations and the Secretary of State, the power to change the annexes of the PRTR have been transferred to the Secretary of State. The power to update the reporting of diffuse sources has been transferred to the appropriate authorities, which include the Secretary of State and devolved Administrations—but the Secretary of State can act with the consent of the DAs.

We have agreed with the devolved Administrations that it is important to continue to have a single UK PRTR, which will ensure the uniformity of this important industrial pollution release and transfer register. Therefore, the power has been given to the Secretary of State to exercise for the whole of the UK, with the consent of the DAs. The updates would be triggered if there were scientific and technical progress or updates to international agreements that needed to be reflected in the reporting parameters. If each UK Administration worked to different technical annexes, there would be a risk to the uniform UK PRTR approach and a single coherent register would not be possible.

The power to take measures to initiate reporting on releases of relevant pollutants from diffuse sources where no data exists has been transferred to the appropriate authorities—the Secretary of State, the Welsh Ministers, the Scottish Ministers and the Department of Agriculture, Environment and Rural Affairs—to exercise in their respective areas. The Secretary of State can also exercise the function for a devolved Administration, with their consent. Although we do not have any plans to update the list of pollutants, we closely consider technical and scientific evidence that will inform possible future changes.

On the timing of these regulations, a question raised by a number of noble Lords, the vast majority of legislation needed for EU exit was made prior to finishing the transition period. The transfer of powers for PRTR was completed alongside other environmental legislation in 2019, via the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019 (S.I. 2019/473). However, new PRTR legislation adopted since that SI inadvertently reversed the effect of the previous statutory instrument, meaning that the Secretary of State’s powers needed to be reinstated. This is the earliest opportunity to lay and debate this legislation.

I reiterate for the Committee that the legislation will not change PRTR reporting. These regulations maintain existing regulatory standards and do not create new policy or change any aspects of the PRTR reporting. These regulations just ensure that the UK statute book remains operable now that we have left the European Union. Any future changes that are made to PRTR reporting are more appropriate for Ministers to make through secondary legislation, with parliamentary scrutiny throughout the process. This will be the best use of parliamentary time, given the technical nature of updates which will be made, which will be made only if there is technical or scientific evidence to suggest an update is needed, or if the PRTR protocol itself is updated. We anticipate that any future changes to the protocol will be to strengthen parties’ reporting to better fulfil the aims of the protocol, rather than fundamental changes to the principles of the protocol. Therefore, updates to reporting parameters will be best managed through secondary legislation instead of primary legislation.

With regard to the international origins of this legislation, the UK is continuing to work with other countries on PRTRs through the United Nations Economic Commission for Europe—UNECE—and the OECD.

We undertook a call for views on the UK’s implementation of the Kiev protocol on PRTRs last year, and no responses raised concerns or issues with the accessibility of publicly available information. This regulation is an important part of our wider legislation on air quality and industrial emissions. Our commitment to air quality and industrial emissions is also, as a number of noble Lords commented, underpinned by our ambitious environmental agenda, including our 25-year environment plan and our clean air strategy, which has been praised by the WHO as

“an example for the rest of the world to follow”.

We are delivering a £3.8 billion plan to clean up transport and tackle NO₂ pollution and going further in protecting communities from air pollution, particularly PM2.5 which is especially harmful to human health. Through the Environment Bill we are also setting ambitious new air quality targets, with a focus on reducing public health impacts.

In response to my noble friend Lord Randall of Uxbridge, of course we want a dramatic reduction in the use of pesticides. However, pesticides are authorised for use when scientific assessment demonstrates that this will not cause harm to human health. Pesticide users are required to take all reasonable precautions to protect human health and the environment and to confine the product to the area intended to be treated. When using a pesticide in areas used by the public or vulnerable groups, operators must also ensure that the amount and frequency of use is as low as reasonably practicable. Pesticide users must follow the statutory conditions of use for every pesticide they use. However, as I say, we absolutely want to see a dramatic reduction in their use.

On Heathrow, we have worked together for many years on this issue and noble Lords know my views. The Government have been clear that it is a private sector project which must meet strict criteria on air quality, noise and climate change, as well as being privately funded and delivered in the best interest of consumers. It is now down to an applicant to demonstrate that it can meet all those criteria.

Also in response to my noble friend Lord Randall, our landmark Environment Bill will improve air quality by establishing a duty to set a target to reduce fine particulate matter—PM2.5—alongside a further long-term target on air quality as part of the wider framework for setting legally binding environmental targets. The Government are committed to evidence-based policy-making and will consider the World Health Organization guideline level for PM2.5 as we approach setting the targets, alongside independent expert advice, evidence and analysis on a diversity of factors.

Finally on this point, following comments by my noble friend Lady Altmann, it is important to set out the Government’s record on and commitment to improving air quality. Air pollution at a national level has reduced significantly since 2010. Emissions of fine particulate matter—PM2.5—have fallen by 11%, while emissions of nitrogen oxides are at their lowest level since records began. She asked about the impact of lockdown. I am afraid that I cannot give her the precise figures at this point, but I shall follow this up. We know that NO₂ fell during lockdown, but we also know that levels are now rising again, unfortunately, as traffic increases. She also asked about the efficacy of electric vehicles. Certainly, they are a critically important part of the transition, but we are continuing to invest in research to ensure that we fully and properly understand all aspects of the issue.

Again in response to my noble friend Lady Altmann, while emissions continue to improve year on year, we know of course that there is much more to do. She asked what steps we were planning to take, and I have mentioned some already. Our clean air strategy outlines a package of measures across the whole economy to meet our 2030 commitments and the Environment Bill contains the new legal framework to do this. We have a strong pipeline of action, including on particulate matter, controlling emissions from domestic burning and, also on particulate matter, work to establish new air pollution targets. We are continuing to tackle emissions from agriculture following our consultation on solid urea fertilisers. We are establishing the most suitable approach for non-road mobile machinery, and we are controlling industrial emissions by driving innovation and enabling regulatory certainty through UK BAT.

Looking forward, we have committed in the Environment Bill to a systematic review of the national strategy, which focuses on local air quality management, aiming to better align national and local policies to deliver air quality improvements, and build the capacity of local delivery partners to effectively tackle localised air quality issues, which is a critical part of the national effort to reduce and address air pollution.

My noble friend Lady McIntosh also raised the issue of electric vehicles. She probably already knows that we are spending £880 million on retrofitting vehicles. Powers in our Environment Bill will enable government to force the recall of vehicles when they do not meet the environmental standards that they are legally required to meet.

As I have outlined, the Air Quality (Legislative Functions) (Amendment) Regulations 2021 make no change to the existing content of the UK industrial reporting or the nature of PRTR legislation. Therefore, I commend the draft regulations to the Committee.

Motion agreed.