My Lords, my Amendment 130 in this group would ensure that the powers to amend the important pieces of retained EU environment law do not reduce the level of environmental protection that is provided for in them. As we heard in the previous debate, there is a huge risk to the laws on the environment and animal welfare protections. I brought a list of wildlife protections that are at risk—there are so many, and that is just on wildlife—to give noble Lords an idea of the number of regulations and the complexity of what we are talking about.
My amendment would also specify that, when exercising these powers, authorities
“must have regard to … the conservation and enhancement of biodiversity … improving water quality … protecting people and the environment from hazardous chemicals”.
I thank the noble Lord, Lord Krebs—who is not in his place today—and the noble Baronesses, Lady Bakewell and Lady Bennett of Manor Castle, for their support for this amendment.
On Report of the Bill in the Commons, Minister Ghani said:
“The Department for Environment, Food and Rural Affairs has committed to maintain or enhance standards”.—[Official Report, Commons, 18/1/23; col. 395.]
But we should compare that with Clause 15, which, as the noble Baroness, Lady Parminter, said, we have to touch on when looking at these amendments. Clause 15 has been described by some as a “do whatever you like” provision, because it gives Ministers extremely wide powers to revoke or replace retained EU law and to lay the replacement legislation either with
“such provision as the relevant national authority considers to be appropriate … to achieve the same or similar objectives”
or with
“such alternative provision as the relevant national authority considers appropriate”.
Unfortunately, the reason why we are so concerned is that this is so subjective. The judgment is on what is appropriate, which is accompanied by a very limited
link to the objectives in the original legislation, leaving an open door for sensible, long-standing protections to be replaced by regulations with entirely different divergent aims and outcomes. Without the amendment that I have laid, and the amendment proposed by the noble Baroness, Lady Parminter, the power allows for replacement legislation to change both the content and objectives of the law. That is without any kind of scrutiny or consultation; it is further deregulation without oversight.
As I mentioned during last week’s debate on the environment in this Bill, the running total of laws affected by REUL in Defra is suggested to be 1,781—by far the largest share of any Whitehall department. That highlights the hugely significant implications of the Bill for environmental law-making. The Defra body of REUL also contains many regulations that are of significant public interest, aiming to protect every single element of our natural environment and, as was mentioned last week, many aspects of human health—we must not forget that.
We have also heard about how the laws being debated in the REUL discussions are bound together in a complex way, with significant case law attached to them. That is why there is such a profound risk when you try to disentangle it in the manner proposed by the Bill, but also because of the speed at which it is being proposed, and the lack of scrutiny, consultation and oversight. That has been discussed at length in both Houses, and I would hope that Ministers have taken note.
The problem is that Clause 15 substantially exacerbates these concerns because of its unfettered nature and because of the burdens test in Clause 15(5), which the noble Baroness, Lady Parminter, talked about. She referred particularly to issues around revenue and taxation. As I say, we support everything that she said on that matter. She also referenced the letter to all Peers from the noble Baroness, Lady Bloomfield, on the burdens test. I think that noble Lords felt that it raised more questions than it answered; there was no explanation of how a department such as Defra, which has so many laws covering a large number of subject areas, is going to apply the in-the-round consideration that was in the letter. Perhaps the Minister could explain how that is going to be managed.
I shall give some examples. If Defra Ministers wanted to make changes to one nature regulation that increased one of the regulatory burdens specified in the non-exhaustive list, would that mean that they would have to bring forward changes to another nature regulation that decreased burdens to balance the books? What is meant by “category” and how is that implied when looking at the different regulations that come under Defra? Does the removal of redundant or superfluous laws, as the Minister talked about in the last debate on the environment, count as a removal of burdens, even if they were not active components on our statute book? Parliament is being asked to agree to Clause 15 without a satisfactory explanation of how it is going to be practically applied. Furthermore, with regard to the stipulation in Clause 15(5), there is no confidence that the power will not lead to a de facto lowering of standards, which is the opposite of what Ministers repeatedly say they want to achieve.
My Amendment 130 focuses on regulations that have been earmarked as priorities for review and on which the Government already have amending powers. For example, during the evidence session with the House of Lords Environment and Climate Change Committee, the Defra Secretary of State referred to the goal of the Environment Agency to change quite a lot of the water framework directive. What does she mean by that? Perhaps the Minister could expand.
We support a sensible, consultative approach to strengthening regulations that underpin the water frame- work and other directives. However, tackling the dire state of our water bodies will not be possible without substantial investment. That would trigger both the financial cost and profitability limbs of Clause 15(5). Can the Minister explain how Clause 15 can then be a route through which the Government are able to deliver the improved environmental outcomes that they keep promising? To me, it is the opposite; it is a blockage.
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These amendments would give legal substance to the voluntary objectives that Defra Ministers indicate that they would use to inform their review of REUL. It is really important that any environmental law we have going forward is fit for purpose and able to drive improved environmental outcomes. I do not have any confidence that some of the clauses in the Bill, as drafted, would allow that to be achieved.
The Government already have the powers to amend environmental REUL and regulations. Given that powers to amend key environmental regulations that are referred to by the Bill already exist in primary legislation, why are the Government seeking the additional powers in the Bill? For example, the Government recently sought and were granted powers to amend the REACH regulation under Schedule 21 to the Environment Act, the water framework directive regulations under Section 89 of that Act, and the habitats regulations under Sections 112 and 113 of the Act. The Environment Act powers are a much more appropriate vehicle for amending these regulations. For example, amendments to the habitats regulations must not reduce the level of environmental protection; amendments to the water framework directive regulations must entail expert consultation; and amendments to REACH must respect the precautionary principle. I believe that my Amendment 130 would provide comparable safeguards.
I will speak very briefly to Amendment 126 in the name of the noble Baroness, Lady Parminter. As she said, her amendment would create additional conditions to be satisfied. We strongly support what she seeks to do with her amendment and everything that she said in her introduction to it. It is an important amendment. I draw particular attention to her words on the importance of non-regression safeguards in the Bill. That is absolutely critical and something that we covered a lot in our debates on the Environment Bill as it was going through the House.
Finally, I want to come back to something that the Minister said in our previous discussion on the environment. He was absolutely adamant that the regulations would be retained by default. There was a lot of confusion in your Lordships’ House, because it
had been expected before that things would fall by default. This is such an important point, and we really need to understand what is happening. I will read from a few of the reports, so that the Minister understands why I am somewhat confused by his assertion that it is retained by default.
The Constitution Committee report says that the Bill
“also provides UK ministers and ministers of the devolved administrations with the option of doing nothing, and allowing EU law in certain policy areas to be automatically revoked.”
The Delegated Powers and Regulatory Reform Committee says:
“The normal way of changing the law to deliver significant policy change is by Act of Parliament, following consultation, debate, amendments and (if at all) with targeted and proportionate delegated powers. This Bill takes a radically different approach. Under clause 1, considerable swathes of REUL will automatically expire at the end of 2023 unless Ministers decide otherwise.”
The Secondary Legislation Scrutiny Committee said, referring to the dashboard:
“The scale of the task, both in terms of cataloguing a definitive list of relevant legislation and the deadline by which it has to be achieved, as a result of the sunset provisions is extraordinary and deeply troubling. The work is still ongoing and we remain wholly unconvinced that there is not a significant risk of inadvertent omission and that pieces of REUL will fall by accident.”
I cannot see where there is security of retained by default; I just do not see it and it is such an important issue that we really need proper clarification on. If the Minister is able to point out exactly where the Bill states that it is retained by default, that would be extremely helpful.